San Bernadino Cnty. Children & Family Servs. v. T.B. (In re R.B.)
| Decision Date | 09 March 2023 |
| Docket Number | E079457 |
| Parties | In re R.B. et al., Persons Coming Under the Juvenile Court Law. v. T.B., Defendant and Appellant. SAN BERNADINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Nos. J290883 & J291348, Lynne M. Poncin, Judge. Affirmed.
Donna P. Chirco, under appointment by the Court of Appeal, for Defendant and Appellant.
Tom Bunton, County Counsel, David R. Guardado, Deputy County Counsel, and Pamela J. Walls, Special Counsel, for Plaintiff and Respondent.
While pregnant with B.B., T.B. (Mother) barricaded herself and her 10-month-old son, R.B., inside a gas station bathroom. Mother, who had been diagnosed with paranoid schizophrenia bipolar disorder, anxiety disorder, attention deficit hyperactivity disorder (ADHD), and posttraumatic stress disorder (PTSD), violently attacked sheriff's deputies before being subdued and transported to the hospital, where she was detained for psychiatric assessment and treatment pursuant to Welfare and Institutions Code section 5150. (Unlabeled statutory citations are to this code.) R.B. was taken to the Loma Linda University Children's Hospital where examination revealed a large skull fracture, a healing fracture of the right clavicle, and abrasions on his left shoulder. The forensic pediatrician's report stated that at least one of R.B.'s injuries "would have been noted by a reasonable caregiver" and that "there are several unexplained injuries for which medical care was not reportedly sought," which is "suspicious for child abuse and severe neglect." R.B. was detained from his parents.[1] When B.B. was born five weeks later, he was also detained from Mother. The juvenile court sustained dependency petitions as to both children, removed both children, denied reunification services, found visitation would be detrimental, and set a section 366.26 hearing. Mother appeared for the first time at the section 366.26 hearing but declined the court's offer for her to testify at a contested hearing. The court terminated parental rights and selected adoption as the permanent plan for both children.
On appeal, Mother argues that: (1) her due process rights were violated by the failure to appoint counsel before the section 366.26 hearing; (2) she was not provided notice of her right to seek review by writ petition when the section 366.26 hearing was set; (3) she is not an offending parent and therefore could not be denied reunification services under subdivision (b)(5), (b)(6), or (b)(7) of section 361.5; (4) the juvenile court abused its discretion by denying her visitation; and (5) San Bernardino County Children and Family Services (CFS) failed to discharge its duty of inquiry under California statutes implementing the Indian Child Welfare Act of 1978 (ICWA). We conclude that Mother's arguments lack merit and therefore affirm the order terminating parental rights.
On the morning of October 11, 2021, sheriff's deputies responded to a service call requesting a welfare check for Mother and her 10-month-old son, R.B. Mother was homeless and apparently experiencing a mental health crisis when she barricaded herself and R.B. inside a gas station restroom and stopped responding to the gas station attendant, who notified police. Mother appeared to be in an altered state, was "'combative and uncooperative,'" refused to exit the restroom, and slammed the door shut after deputies forced it open. One deputy observed Mother push the stroller with R.B. in it, into a wall, but R.B. was not hurt. Mother punched, kicked, and hit the deputies. One of the deputies deployed a taser, which failed to subdue Mother, who then attempted to grab the taser from the deputy. Mother was eventually subdued, arrested on charges of felony battery against a peace officer engaged in the performance of his or her duties (Pen. Code, § 243, subd. (c)(2)) and obstructing or resisting an officer (id., § 69, subd. (a)), and transported to the West Valley Detention Center. At the time of the incident, Mother was 32 weeks pregnant with B.B. Mother "was not booked at a detention center for her charges" but was advised charges would be referred to the district attorney for filing. She was "released to Arrowhead Regional Medical Center [ARMC] for further medical evaluation for her pregnancy." Mother was detained on a 72-hour psychiatric hold and admitted to ARMC's behavioral health unit for evaluation and treatment. (§ 5150.)
Law enforcement contacted CFS to take custody of R.B. after Mother refused to provide the names or contact information for R.B.'s father or any other family member who could care for the child. A CFS investigation eight months earlier had noted that Mother had been diagnosed with paranoid schizophrenia, bipolar disorder, anxiety disorder, ADHD, and PTSD. Her psychiatrist had "informed the social worker that her only concern for [M]other caring for the baby would be if [M]other stopped receiving mental health services" and that Mother "is only compliant with her treatment because of the open referral with CFS."
R.B. was taken to the emergency room at Loma Linda University Children's Hospital to be examined for possible injuries. X-rays and a CT scan revealed R.B. had a large skull fracture at the back of the head, which was determined to be "old" because there was no swelling of the scalp or intracranial hemorrhage; no precise date of injury could be determined. R.B. was also found to have a healing fracture of the right clavicle and parallel abrasions on his left shoulder. The forensic pediatrician's report stated that at least one of R.B.'s injuries "would have been noted by a reasonable caregiver" and that "there are several unexplained injuries for which medical care was not reportedly sought," which is "suspicious for child abuse and severe neglect." The report also noted that R.B. had eye surgery scheduled four months earlier to remove cataracts, but Mother cancelled the surgery and never rescheduled. Failure to remove pediatric cataracts can lead to permanent blindness.
The following day, a CFS social worker received a call from a maternal aunt, Amber, stating that Mother had been released by law enforcement and admitted to ARMC. The social worker spoke with Mother's nurse, who confirmed that Mother had been admitted "on a 5150 hold with an unknown discharge date" and was awaiting transportation to another hospital. The nurse reported Mother was "'somewhat lucid but mostly delusional.'" The nurse confirmed that Mother "is aware that her child is in CFS custody" and agreed to provide Mother with the social worker's contact information and notice of the detention hearing. Mother called the social worker later that evening, talked about "'some people trying to get'" Mother and R.B., and refused to provide R.B.'s father's contact information. When asked about R.B.'s skull and clavicle fractures, Mother immediately denied causing the injuries and said maternal aunt, Amber, must have done it. Mother became agitated and yelled, "'I didn't abuse my baby!'" She then hung up the phone.
Mother was not present at the October 14, 2021, detention hearing. The juvenile court found notice had been given as required by law, ordered R.B. detained from his parents, authorized further forensic examination of R.B. by the Children's Assessment Center, found visitation to be detrimental, and therefore suspended visitation pending the jurisdiction and disposition hearing, which the court set for November 4, 2021.
On October 30, 2021, Mother confirmed to the CFS social worker that she had received notice of the November 4 jurisdiction and disposition hearing. Mother reported that she was staying in a hotel and provided the address. Mother again refused to provide any information regarding relatives, hung up on the social worker, and did not respond to the social worker's subsequent call or text.
Mother was not present at the jurisdiction and disposition hearing on November 4, 2021. The matter was continued to November 30 to obtain the reports from the Children's Assessment Center.
In November 2021, Mother gave birth to B.B. Hospital staff reported Mother was exhibiting symptoms of untreated psychiatric illness and refusing to allow any staff to touch B.B. or to take him to the neonatal intensive care unit (NICU). Staff referred to Mother as a "'frequent flyer'" at the hospital because of her history of psychiatric illness and refusal to take medication. Hospital security reported that Mother had been in and out of the hospital for mental health problems frequently in the past month, including a section 5150 hold three weeks earlier, and that she had a history of being physically and verbally aggressive, physically attacking staff, and not taking her psychiatric medication.
The CFS social worker documented a bruise on B.B.'s lower back, which the nurse said Mother may have caused by holding the child too tightly while refusing to allow staff to assist with feeding or take B.B. to the NICU. A nurse reported Mother had been observed walking around her room naked and bleeding and then squatting over a bedpan and urinating into it, all while holding B.B.
When interviewed by the social worker, Mother had difficulty providing responsive information and stated she was "'confused.'" The social worker observed that Mother's "thoughts did not always make sense and she would often change topic, stop talking and stare off and start talking again." Mother denied taking any medication and denied drug or alcohol use. At one point, Mother said she was living in a "'studio.'" Later she reported living in a hotel, and she also reported...
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