In re Ethan C. 9/24/10 CA2/1

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B219894

Case Date: 12/21/2010

Preview:Filed 9/24/10

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE

In re ETHAN C. et al., Persons Coming Under the Juvenile Court Law.

B219894 (Los Angeles County Super. Ct. No. CK78508)

LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Appellant, v. WILLIAM C., Defendant and Appellant.

APPEALS from an order of the Superior Court of Los Angeles County, Sherri Sobel, Juvenile Court Referee. Affirmed in part; reversed in part. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Judith A. Luby, Principal Deputy County Counsel, for Plaintiff and Appellant. Christopher Blake, under appointment by the Court of Appeal, for Defendant and Appellant. --------------------

A father drove his toddler daughter after failing to secure the child in a car seat. The father became involved in a traffic accident, and the child was thrown from the car and died. The father`s other two children were detained by Department of Children and Family Services (DCFS). The father contends dependency court jurisdiction was improperly asserted because, although he negligently failed to secure his daughter in a car seat, his undisputed negligence did not rise to the level of criminal negligence he claims is required by Welfare and Institutions Code section 300, subdivision (f).1 We affirm. DCFS filed a cross-appeal, arguing the juvenile court erred by dismissing allegations under section 300, subdivision (b), which refer to the father`s neglect of his daughter which resulted in her death. These allegations are a necessary predicate to sustain identical allegations under section 300, subdivision (j), which the juvenile court sustained. We agree the juvenile court erred in this respect; the dismissed allegations must be reinstated and sustained. FACTUAL AND PROCEDURAL BACKGROUND Appellant William C. and his wife Kimberly G. (who is not a party to this appeal) are the parents of three children, Ethan C. (born January 2006), Jesus C. (born November 2008), and the now-deceased Valerie C. (born November 2007). On June 17, 2009, 18month-old Valerie died in an automobile accident. The circumstances surrounding that accident led up to the filing of the Welfare and Institutions Code section 300 petition in this action by DCFS. In March or April,2 William and Kimberly separated. The children lived with William and numerous members of his extended family in their paternal grandmother`s home, which was described as very crowded and unkempt. On June 17, William left Valerie in the care of her paternal grandmother and a paternal aunt. When he returned, he noticed Valerie`s arm was injured,3 and he decided

1 Undesignated 2 Unspecified

statutory references are to the Welfare and Institutions Code. 2

date references are to 2009.

to take her to the hospital to have the arm checked out. His car, which had a child`s car seat, was being used by someone else. William was unable to get another car seat from Kimberly so he drove his daughter to the hospital unsecured by any child safety restraint. Valerie traveled in the car sitting on the lap of her aunt or paternal grandmother. As William, who had the right-of-way, drove into an intersection, another car traveling at a high rate of speed ran through a stop sign and struck William`s car, causing it to spin into another car. William`s car was then struck by a fourth vehicle. As a result of the collisions, Valerie was thrown from the car and landed on her head. The coroner concluded the cause of Valerie`s death was accidental, and due to blunt force injury. An early DCFS report indicated that criminal charges would likely be filed against William and the driver who ran through the stop sign; no criminal charges have been filed against William. About a week after Valerie`s death, DCFS received a referral claiming Ethan and Jesus were the victims of general neglect by their parents. The children`s hygiene was reportedly quite poor, and their paternal grandmother`s home was allegedly filthy, with food, feces and trash strewn everywhere. Although a DCFS investigation revealed the conditions at the paternal grandmother`s home were not as severe as reported, the home was unsanitary, none of the utilities were working properly, the children lacked cribs or appropriate sleeping arrangements, and there appeared to be an excessive number of people (20 or more) living in the home. Ethan and Jesus were dirty and they ran around the yard with no one paying any noticeable concern for their safety. Kimberly told DCFS she was not sure William had ever had any car seats. Kimberly seemed detached from her emotions, and had difficulty understanding and responding to questions. Kimberly`s mother (the children`s maternal grandmother), told DCFS Kimberly had cognitive impairments: she was 20 years old at the time, but had the mental capacity of an 11 year old. The maternal grandmother said Kimberly`s child, left unsupervised, had fallen out of bed. Until William returned, no one had noticed Valerie`s injury. 3
3 The

impairments became more noticeable after she, William and their children began living with William`s relatives, who treated Kimberly poorly and were sometimes physically abusive to her. Shortly before Valerie`s death, the maternal grandmother had taken Jesus to live with her because she worried that he had been neglected, isolated and that his medical needs were going unmet. After Valerie died, the maternal grandmother brought Ethan to her home too. She believed all the children had been seriously neglected by William`s family, and that Ethan would be in danger if he stayed with his paternal relatives. When the maternal grandmother took Ethan to her home, his diaper contained a bowel movement so firmly stuck to his buttocks the child had to be bathed in order to soften and remove the feces. Ethan, who was then three years old, did not know how to use utensils to feed himself (he ate using his hands), was confused about the difference between day and night, and lacked language skills. He also displayed what appeared to be signs of developmental delays, and had several rotten teeth that required extraction. Additional investigation revealed the children`s parents had engaged in acts of domestic violence in the home. Kimberly was the primary aggressor. On various occasions, Kimberly had hit William with objects and had cursed at, slapped, socked and threatened him. William attributed Kimberly`s behavior to emotional instability and his wife`s extreme jealousy. He told DCFS that three times the behavior had escalated to a point that Kimberly wanted to harm herself. William took her in for mental health services, but Kimberly had not consistently complied with her treatment plans. Kimberly admitted she got angry at and sometimes hit or threw objects at William, but she said she did not physically abuse him, just like a punch.` She did not believe her punches were abusive, or that William had not been physically hurt because she did not give him a black eye or nothing.` Kimberly conceded she had difficulty controlling her anger, but said she had never hit her children and never would. There was evidence Kimberly had been diagnosed with borderline personality disorder, had a history of suicide attempts and generally functioned at a level no greater than a 13 year old. A psychologist expressed serious reservations about her ability to care for young children. 4

DCFS and the parents agreed the family would participate in a voluntary reunification plan. Nevertheless, DCFS decided the children should be detained due to, among other things, safety concerns about inappropriate adult supervision that had resulted in Valerie`s initial arm injury, the apparent lack of children`s cribs or car seats, and the unacceptable conditions at the paternal grandmother`s house. The boys were placed in foster care, and the parents were given monitored weekly visitation, and agreed to participate in psychological assessments. Beginning in late June, William and Kimberly began participating in parenting classes, and William started grief counseling. But William still had not moved out of paternal grandmother`s home into a clean, safe, less populated residence into which DCFS could safely restore the children to his care. In addition, the criminal investigation surrounding Valerie`s death remained open. In mid-August, the LAPD informed DCFS it planned to ask the District Attorney to charge William with child neglect and endangerment, but was waiting for more information before it did so. A psychological evaluator told DCFS William continued to experience difficulty dealing with his grief over the death of his daughter, and as a result had some negative and violent interactions with Kimberly. William was also taking painkillers for back pain he suffered as the result of another traffic accident in which he had been involved in 2008. DCFS determined it was not feasible to consider whether the children could safely be returned to William`s care within the time parameters provided by the Voluntary Family Reunification program. Other limitations inhibited DCFS`s ability to consider returning the children to Kimberly. Her limited cognitive abilities and acknowledged need for assistance to help her properly care for and supervise her children presented a serious impediment. It was clear the parents loved their children. Nevertheless, DCFS had continued and significant concerns that the children would remain at physical and emotional risk in either parent`s care. DCFS opined that the issues could be worked through, and the family would greatly benefit from supportive services. Accordingly, it recommended the juvenile court detain and assert its jurisdiction over the children. 5

A section 300 petition was filed on August 18. As ultimately sustained, the petition alleged that Ethan and Jesus were at substantial risk of suffering serious harm due to Kimberly`s inability to provide regular care, as a result of her mental impairments or developmental disability, that the parents` history of domestic violence endangered the children`s physical and emotional health and safety, and Kimberly had significant cognitive impairments which would require extensive services in order to enable her to appropriately care for and supervise her children. (

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