In re Nathan A. CA2/2 ( 2013 )

Filed 8/6/13 In re Nathan A. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re NATHAN A., a Person Coming B245254
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No. CK82342)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Appellant,
v.
KARINA G.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles County.
Debra Losnick, Juvenile Court Referee. Reversed and remanded.
John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel,
Kim Nemoy, Deputy County Counsel, for Plaintiff and Appellant.
Roni Keller, under appointment by the Court of Appeal, for Defendant and
Respondent.
___________________________________________________
The juvenile court granted Karina G. (Mother) reunification services with her
newborn son Nathan A. despite finding that she (1) caused the death of a six-month-old
daughter and (2) lost parental rights to her son Alex. There is no evidence that Mother
resolved her past problems: on the contrary, Mother denies any wrongdoing. The court
cannot order reunification services for a parent who caused another child‟s death unless
there is clear and convincing evidence that reunification is in the surviving child‟s best
interest. (Welf. & Inst. Code, § 361.5, subd. (c).)1 Nothing in the record overcomes the
presumption against reunification.
FACTS
The Prior Writ Proceeding
We take judicial notice of a writ opinion relating to the death of Mother‟s daughter
Laylanee.2 Below we summarize the facts and conclusions stated in the writ opinion.
Mother and her biological children, Alex and Laylanee, lived with three maternal
relatives: the children‟s grandmother (MGM), aunt (Gabby), and an uncle. In October
2009, six-month-old Laylanee was found face down and motionless in her crib, and was
pronounced dead by paramedics. In May 2010, the LAPD took two-year-old Alex into
custody after the coroner‟s office deemed Laylanee‟s death “suspicious.” When
detained, Alex smelled bad, his clothing was stained and dirty, and his diaper was soaked.
Mother and the MGM were placed in an LAPD interview room, where their
conversation was monitored. The MGM warned Mother not to change her “story,” and
the two women agreed that they needed to talk to Gabby before the LAPD did so. LAPD
officers promptly interviewed Gabby, who told them that Mother inflicted Laylanee‟s
injuries in the presence of the MGM. Gabby believed that Mother could “have done
something” to Laylanee: Mother considered Laylanee to be a burden and resented the
1 Unlabeled statutory references are to the Welfare and Institutions Code.
2 Karina G. v. Superior Court (Mar. 23, 2011, B230008) (nonpub. opn.). The prior
opinion is a related proceeding leading to the present appeal. (Evid. Code, §§ 452, subd.
(d), 459, subd. (a); Taliaferro v. Davis (1963) 216 Cal.App.2d 398, 401; In re Kinney
(2011) 201 Cal.App.4th 951, 954, fn. 3.)
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baby because the biological father abandoned them due to Laylanee‟s birth. Gabby
believed that Mother injured Laylanee‟s head, though she never saw Mother strike the
baby.
The LAPD arrested Mother and the MGM for child abuse. (The MGM served
time in 1993, when she was convicted of felony child cruelty for inflicting burns on
Mother.) DCFS assumed custody of Alex and filed a dependency petition alleging that
Laylanee suffered traumatic brain injuries while in Mother‟s care, placing Alex at risk of
similar harm. Attached to the detention report was an autopsy report stating that
Laylanee had brain malformations and hemorrhages indicating prior head trauma.
During interviews with DCFS, Mother stated that Laylanee was alive and well
when Mother left to go shopping; the infant was being babysat by Gabby when she was
discovered dead in her crib. When questioned about possible head trauma, Mother
described an incident in which Laylanee accidentally rolled off the couch and onto the
floor while Mother was in the kitchen: Mother did not seek medical attention because
Laylanee was not bleeding. Mother initially insisted that this was the only incident in
which Laylanee suffered head trauma. However, in a subsequent interview with law
enforcement officials, Mother admitted that one month before Laylanee‟s death, she
threw the baby up into the air and did not catch her. Laylanee landed on her head when
she hit the floor. Mother did not seek medical attention for Laylanee.
A follow-up autopsy report by the coroner revealed evidence of three different
head injuries occurring at different times, with no explanation that the injuries were not
inflicted. The medical evidence indicated a reasonable probability that this is a case of
battered child syndrome. Laylanee‟s death certificate was amended by adding the words
“abusive head trauma” and the manner of death was ascribed to “homicide.”
At the jurisdiction hearing, Mother invoked her Fifth Amendment right against
self-incrimination and refused to testify. A neuropathologist from the coroner‟s office
testified that he observed three injuries on Laylanee‟s brain. Two of the injuries were
caused by a lack of oxygen, such as repeated episodes of suffocation or an obstructed
airway. A subdural hematoma was likely caused by trauma to the baby‟s head. The
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physician could not determine the cause of death based on his examination of Laylanee‟s
brain alone, but was inclined to agree that Laylanee was a victim of battered child
syndrome. The medical examiner who performed the initial autopsy testified that there
were no signs of bruising or skeletal fractures; however, there was a brain hemorrhage
occurring within 24 hours of death, and the brain appeared enlarged and abnormally
shaped. The examiner agreed that “abusive head trauma” contributed to Laylanee‟s death
in some fashion. A defense expert testified that Laylanee died of an acute brain bleed,
likely due to brain malformations, and that the hematoma on the infant‟s brain possibly
resulted from falling off the couch and more likely resulted from her head hitting the
floor when Mother tossed her in the air but failed to catch her.
Maternal aunt Gabby testified that Mother was a “good mother” to Laylanee and
Alex. She stated that LAPD detectives had subjected her to aggressive questioning and
basically forced her to falsely implicate Mother in Laylanee‟s death. Gabby maintained
that neither Mother nor the MGM was violent toward the children.
The juvenile court sustained allegations of endangerment against Mother and
assumed jurisdiction over Alex. Mother asserted the Fifth Amendment and refused to
testify about her progress with reunification services. The court found by clear and
convincing evidence that Mother caused Laylanee‟s death by abuse and neglect, and that
it would not be in Alex‟s best interest to reunify with Mother. The court terminated
reunification services and scheduled a permanent placement hearing.
Mother filed a writ petition challenging the termination of reunification services
and the scheduling of a hearing to consider termination of parental rights. This Court
found ample evidence of repeated injury inflicted upon Laylanee, and that Mother caused
the child‟s death through abuse or neglect. Mother admitted that Laylanee twice suffered
head trauma in her care, once from rolling off a couch while unsupervised, and once
when Mother tossed her in the air and her head struck the floor. Mother failed to seek
medical attention in both instances. The testimony from physicians at the coroner‟s
office showed that the baby sustained three different head injuries and was a battered
child, leading to a coroner‟s finding that her death was a “homicide.” Because Mother
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caused Laylanee‟s death through neglect or abuse, the court properly denied reunification
services with Alex. The petition for an extraordinary writ was denied.
The Nathan A. Petition
Mother‟s son Nathan was born in May 2012. At the hospital Mother was initially
“nonresponsive” to her infant. She sought very little prenatal care and last saw a
physician in November 2011. The hospital became suspicious and alerted DCFS after
Mother disclosed that one of her babies died and her parental rights to the other child
were terminated in March 2012.
In an interview with a DCFS social worker, Mother ascribed Laylanee‟s death to a
congenital malformation. She maintained that she lied to the police when she told them
that Laylanee fell from the sofa, or that she threw Laylanee up in the air and failed to
catch her. Mother was happy with newborn Nathan because she feels that the baby‟s
father, G.A. (Father) is supportive.
DCFS filed a petition on behalf of Nathan on May 14, 2012. It alleged that
Nathan is at risk of serious physical harm because Mother caused the death of a sibling
who was abused or neglected by Mother, and the death was deemed a homicide. Further,
Nathan‟s sibling Alex received permanent placement services due to Laylanee‟s death.
The court found a prima facie case for detaining Nathan from Mother‟s care and he was
placed in Father‟s custody as a non-offending parent, under DCFS supervision. Mother
was given monitored visitation.
A jurisdiction/disposition report was submitted by DCFS. In her statement,
Mother was vague about the cause of Laylanee‟s death: she variously stated that
Laylanee died from being in a broken baby crib that lacked a screw; she told police that
“I tossed her in the air and I couldn‟t catch her and she fell on the floor”; she also told
police on a different occasion that Laylanee fell from a couch. Mother insisted that
“[t]here was no evidence that I did something. . . . I didn‟t do anything bad. I never
abused them. The only big bad mistake was changing my versions” of how Laylanee
sustained head injuries. Mother asserted that “it‟s unfair that we are in the system. I
think it‟s unfair that they see my background.”
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In his statement, Father indicated that Mother told him at the outset of their
relationship that “Laylanee passed away from SIDS.”3 Father attributed Mother‟s neglect
to lack of maturity (Mother was 19 when Laylanee died) and a defective crib, saying, “I
think it was the crib that caused the death. They didn‟t see any bruising. . . . My focus is
on the crib because that‟s where they found her dead.”
DCFS recommended that Mother receive no reunification services because she
caused the death of a child. Mother gives conflicting stories about Laylanee‟s injuries
and falsely told Father that the baby died of SIDS. Father denies the gravity of the
situation, insisting that Laylanee died of SIDS even after he was presented with
information regarding Laylanee‟s physical injuries and parental abuse. Father lacks
insight into Mother‟s behavior.
In a last-minute addendum, DCFS reported that Mother was visiting three times
weekly, with Father serving as a monitor. Mother claimed to have completed parenting,
anger management and individual counseling, but was unable to produce certificates of
completion. Upon speaking to the director of Mother‟s program, the DCFS social worker
learned that Mother had recently enrolled and had participated in only two parenting
sessions. Mother was not forthcoming about her compliance with the case plan, which
minimized the probability of successful rehabilitation.
The petition was adjudicated on August 29, 2012. The court sustained allegations
that Mother caused the death of a child in her care, thereby posing a risk of serious harm
to Nathan. Nathan was declared a dependent child pursuant to section 300, subdivisions
(a), (b), (f), and (j). Nathan‟s attorney asked the court to deny reunification services,
given that there was a lengthy dependency trial for Mother‟s son Alex in which the court
determined that Mother did, in fact, cause Laylanee‟s death. DCFS observed that Mother
believes the big problem is that she changed her story too often, not that she caused a
3 SIDS is Sudden Infant Death Syndrome.
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child‟s death. DCFS argued, “There is no sense of remorse. There is no sense of
responsibility.”
After acknowledging the opposition of DCFS and Nathan‟s attorney, the court
granted Mother reunification services. It stated, “I do think that the child would benefit
from the mother being ordered reunification services. I do feel that it may ameliorate the
risk that may be presented to the child by the mother. The mother has already shown her
willingness and ability to care for the child at least in the sense of breastfeeding the
child.” The court directed Mother to participate in parenting education and individual
counseling with a licensed therapist who must be provided with all of Mother‟s DCFS
history and reports. DCFS appeals.
DISCUSSION
Appeal is taken from the disposition order granting Mother reunification services.
(§ 395.) While family reunification services are generally offered when a dependent
child is removed from parental physical custody, reunification services are not
appropriate in every case. (In re Ethan C. (2012) 54 Cal.4th 610, 626.) Specifically, “the
court shall not order reunification” for a parent who (1) killed a child, or (2) had
reunification services terminated for a sibling or half sibling, or (3) had parental rights to
a child permanently severed and has not subsequently made a reasonable effort to treat
the problems that led to the child‟s removal. (§ 361.5, subd. (b)(4), (10), (11), and subd.
(c), italics added.) When one or more of these conditions apply, the court is prohibited
from ordering reunification services unless the court finds, by clear and convincing
evidence, that reunification is in the best interest of the child. (§ 361.5, subd. (c); In re
Ethan N. (2004) 122 Cal.App.4th 55, 64.)
When parental misconduct has culminated in a death, the circumstances that
justify removal of the children from parental custody give rise to a presumption against
reunification. (In re Ethan C., supra, 54 Cal.4th at p. 634.) For example, a father who
killed an unrelated child when both were minors may be denied reunification services
during his adulthood. (Mardardo F. v. Superior Court (2008) 164 Cal.App.4th 481, 484,
489-490.) The Legislative has determined that in some situations, attempts to facilitate
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reunification are likely to be futile and may not serve the child‟s best interests. (D.B. v.
Superior Court (2009) 171 Cal.App.4th 197, 202.)
The juvenile court has discretion to decide whether reunification services are in
the child‟s best interests. (In re William B. (2008) 163 Cal.App.4th 1220, 1229.) To
determine whether reunification is in a child‟s best interests, a parent must demonstrate
current ability to parent; the court also considers parental fitness and history; the
seriousness of the problem that led to the dependency; the strength of the parent-child
bond; and the child‟s need for stability and continuity. A best interest finding requires a
showing that reunification services are likely to succeed. (Id. at p. 1228; In re Allison J.
(2010) 190 Cal.App.4th 1106, 1116; In re A.G. (2012) 207 Cal.App.4th 276, 281.) If
there is no substantial evidence in the record to support a decision to grant services, then
the order for such services is an abuse of discretion. (In re William B., supra, 163
Cal.App.4th at p. 1229.)
The juvenile court sustained jurisdictional findings that Mother caused Laylanee‟s
death and that Laylanee‟s sibling Alex received permanent placement services due to
Laylanee‟s death. Despite jurisdictional findings that triggered the nonreunification
presumption in section 361.5, the court exercised its discretion and found that
reunification is in Nathan‟s best interests because (1) services could ameliorate the risk to
Nathan posed by Mother, and (2) Mother‟s willingness to breastfeed Nathan showed an
ability to care for the child.
Mother made no effort to show that she treated the issues leading to Alex‟s
adoption following Laylanee‟s death. In fact, she completely denies culpability. She
now attributes Laylanee‟s death to SIDS caused by a broken baby crib and believes she
lost Alex because she told too many versions of how Laylanee sustained head injuries.
Far from coming to terms with her history, Mother complained it was “unfair” that DCFS
should bring her history of child abuse or neglect to the court‟s attention.
Mother insists “there was no evidence that I did something bad. I never abused
them.” Yet evidence in the prior dependency proceeding showed that Mother knew
Laylanee fell from a sofa and worse, was thrown into the air by Mother and landed on her
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head. Mother never sought medical treatment for Laylanee despite the patent likelihood
that an infant who flies through the air and lands on its head will suffer a brain injury. In
short, there is no evidence in the record—let alone substantial evidence—that Mother has
addressed the issues that led to the termination of her parental rights to Alex.
“[I]t is „“the enormity of a death”‟ of a child arising from parental inadequacy that
invokes the provisions of sections 300 and 361.5. [Citations.] The Legislature has
clearly provided that when one‟s abuse or neglect has had this tragic consequence, there
is a proper basis for a finding that his or her surviving child may be made a dependent of
the juvenile court, and that, if the circumstances then also justify the child‟s removal from
the parent‟s or guardian‟s physical custody, a presumption against reunification should
arise.” (In re Ethan C., supra, 54 Cal.4th at p. 634.) Abuse that results in the death of a
child “is simply too shocking to ignore” when granting reunification services with
surviving children: “The fact of a death and a subsequent petition . . . arising out of that
death simply obliterates almost any possibility of reunification . . . .” (In re Alexis M.
(1997) 54 Cal.App.4th 848, 851, fn. 2.)
The decision in Ethan N. is instructive. There, a mother‟s neglect caused the death
of Ethan‟s half-sibling, who died at the age of one month in 2001 from suffocation due to
a wad of paper lodged deep in his esophagus, and suffered contusions to his head and
back, a burn, anal penetration and 12 broken ribs. She consequently lost her rights to two
other children. When Ethan was born in 2003, dependency jurisdiction was established
under section 300, subdivisions (b), (f) and (j). The court granted reunification services
even though the mother caused the death of one child and lost her parental rights to
surviving children. (In re Ethan N., supra, 122 Cal.App.4th at pp. 59-61.)
On appeal in Ethan N., the trial court was found to have abused its discretion.
Substantial evidence supported the court‟s finding that the mother made progress toward
alleviating her drug addiction by demonstrating sobriety and completing drug treatment
programs. (In re Ethan N., supra, 122 Cal.App.4th at pp. 65-66.) However, there was no
substantial evidence that reunification was in Ethan‟s best interest. Merely being Ethan‟s
biological parent did not militate in favor of reunification. The gravity of killing a small
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child effectively swallowed up competing concerns about the possible benefit of
reunification with a later-born child. (Id. at pp. 66-69. See also Alexis M., supra, 54
Cal.App.4th 848 [father incarcerated for killing his infant by shaking and dropping him is
not entitled to reunification services].)
In the view of the juvenile court, Mother demonstrated that she was capable of
caring for a newborn because she was breastfeeding Nathan. Mother‟s breastfeeding is
not clear and convincing evidence that reunification is in Nathan‟s best interests. The
court either discounted or did not consider Mother‟s overall fitness and history, or the
seriousness of the problem that led to the dependency. As detailed in our opinion in
B230008, Mother resented and abused Laylanee because the child‟s birth caused the
biological father to abandon them, and she neglected two-year-old Alex, who was filthy
when he was detained. Mother is now taking an interest in Nathan because Father takes
an interest in the boy. If Father were to leave Mother for a new girlfriend, or be
incarcerated, there is a high risk that Mother would abuse or neglect Nathan. Certainly,
Mother‟s indifference to the well-being of Laylanee and Alex does not bode well for her
future treatment of Nathan.
A best interest finding requires a showing that reunification services are likely to
succeed. That showing was not made in this case. Mother has zero insight into the
misconduct that led to the death of Laylanee and the loss of Alex. Instead of striving to
atone for her history of child abuse and neglect, Mother demands that everyone ignore
that history because it is “unfair” to bring it up. She takes no responsibility for her
conduct. Mother managed to convince Father that Laylanee died from a defective crib.
He told DCFS that “My focus is on the crib because that‟s where they found her dead.”
He continued to insist that Laylanee died of SIDS even after he was presented with proof
that Laylanee sustained three different head injuries occurring at different times, and her
death was deemed a “homicide.”
It appears that Father, as a non-offending parent, will keep custody of Nathan. It
is chilling to know that Father refuses to accept that Mother is capable of killing an
infant: without this insight, it is difficult to see how he can protect Nathan from harm.
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While acknowledging the possibility that Father will allow Mother unfettered access to
Nathan in the future, it does not justify the use of government resources to provide
reunification services to an unrepentant parent who caused the death of a child in her
care. The court erred by granting reunification services to Mother because there is no
evidence that reunification is in Nathan‟s best interest and no showing that reunification
services are likely to succeed.
DISPOSITION
The order of the juvenile court granting reunification services to Karina G. is
reversed and the matter is remanded for further proceedings.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN, P.J.
We concur:
ASHMANN-GERST, J.
CHAVEZ, J.
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