Opinion
E053685 Super.Ct.No. J233558 Super.Ct.No. J233821
11-18-2011
B.O. et al., Petitioners, v. THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Real Party in Interest.
Valerie Ross for Petitioner B.O. K.O., in pro. per., for Petitioner K.O. No appearance for Respondent. Jean-Rene Basle, County Counsel, and Jeffrey L. Bryson, Deputy County Counsel, for Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
OPINION
ORIGINAL PROCEEDINGS; petition for extraordinary writ. Barbara A. Buchholz, Judge. Petitions granted.
Valerie Ross for Petitioner B.O.
K.O., in pro. per., for Petitioner K.O.
No appearance for Respondent.
Jean-Rene Basle, County Counsel, and Jeffrey L. Bryson, Deputy County Counsel, for Real Party in Interest.
I. INTRODUCTION
K.O. (Mother) and B.O. (Father) filed petitions for extraordinary writ pursuant to California Rules of Court, rule 8.452 challenging the juvenile court's orders denying reunification services and setting the matter for hearing pursuant to Welfare and Institutions Code section 366.26. The services at issue involve their daughters, Ha. and Ho. We grant the petitions.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated. All references to subdivisions are to subdivisions of section 361.5 unless otherwise indicated.
In June 2010, the parents' 11-month-old daughter, C.O., died. At the time of C.O.'s death, Ha. was two years old. Based on the belief that the parents caused C.O.'s death, San Bernardino County Children and Family Services (CFS) removed two-year-old Ha. from her parents' custody.
Ho. was born in July 2010. The next day, she too was removed from the parents' custody. The juvenile court ordered both children detained and placed them in CFS custody.
In May 2011, following a jurisdictional and dispositional hearing, reunification services for the parents were denied and the matter was set for a section 366.26 hearing. The trial court denied reunification services on two grounds. The first ground was subdivision (b)(4): "That the parent or guardian of the child has caused the death of another child through abuse or neglect." The second ground was subdivision (b)(6): "That the child has been adjudicated a dependent . . . as a result of . . . the infliction of severe physical harm to . . . a sibling . . . by a parent or guardian, . . . and . . . it would not benefit the child to pursue reunification services with the offending parent or guardian."
As to Mother's petition, we hold there was insufficient evidence to deny reunification services based on subdivision (b)(4). Specifically, there was no substantial evidence that she "caused" the death of C.O. As to the subdivision (b)(4) finding against Father, while there may be some evidence to support the finding, the record is unclear as to whether the court actually found that Father "caused" the death of C.O. We will therefore direct the juvenile court to conduct further proceedings on this point.
Relative to the second basis for denying reunification—subdivision (b)(6)—we conclude that the juvenile court failed to make the findings necessary to deny services. As we explain below, when the juvenile court determines that someone has inflicted severe physical harm on a child or sibling but cannot identify who directly inflicted the harm, the court must determine whether the parent knew the child was being injured or abused, and thereby inflicted harm by omission or consent. (See Tyrone W. v. Superior Court (2007) 151 Cal.App.4th 839, 851-852 (Tyrone W.).) The existence of obvious or apparent physical injuries on the child can be evidence of such knowledge. (Ibid.) Here, the record appears devoid of evidence as to the identity of the individual who directly inflicted serious injury on C.O.; therefore, the juvenile court was required to determine whether the injuries to C.O. were obvious and apparent such that the parents had knowledge of the fact that serious injury was being inflicted upon C.O. It failed to make any findings on this issue.
The court also failed to comply with subdivisions (i) and (j), which require the juvenile court to consider certain factors when applying subdivision (b)(6) and to specify in the record its basis for finding the infliction of severe physical harm under subdivision (b)(6) and the facts used to determine that reunification services would not benefit the child.
Finally, if, after remand, the court finds that subdivison (b)(4) or (b)(6) applies, it must also consider the factors set forth in In re Ethan N. (2004) 122 Cal.App.4th 55, 63-64 (Ethan N.), in determining whether reunification would be in the best interests of the children pursuant to subdivision (c).
II. FACTUAL SUMMARY AND PROCEDURAL HISTORY
A. Overview of Record
We begin by noting that almost the entirety of the lower court record deals with the events surrounding C.O.'s death and the subsequent investigation. According to the initial autopsy protocol prepared by Dr. Frank Sheridan, C.O.'s cause of death was "[a]sphyxia, hours, due to smothering, hours," and the manner of death, "[h]omicide." Dr. Sheridan further commented that the "autopsy indicate[d] death by non-accidental smothering, evidenced by the presence of multiple injuries in the face involving the nose, mouth and cheek. In addition, there is evidence of ongoing physical abuse with healing bilateral rib fractures."
CFS commenced the juvenile dependency proceedings based on Dr. Sheridan's report, stating in its initial detention report that "Dr. Sheridan reported [C.O.'s] cause of death was suffocation, and . . . is ruling the death a homicide." Over the next 10 months, the juvenile proceeding moved forward premised on Dr. Sheridan's conclusion as to the cause of death and his additional findings that C.O. had some healing rib fractures and bruising.
From the filing of the initial juvenile dependency petition on June 22, 2010, up through and including the filing of a seventh addendum report dated April 1, 2011, CFS clearly remained convinced that C.O. died of nonaccidental trauma.
In December 2010, Father was arrested for C.O.'s murder; Mother was arrested for felony accessory. Mother was released on bail. At each of the juvenile court appearances, Father was present, in custody, including an appearance for the jurisdictional and dispositional hearing on April 1, 2011.
One week prior to the April 1, 2011, appearance, Dr. Sheridan wrote an addendum report to the autopsy protocol. The addendum report states, in part: "The undersigned was recently made aware of the existence of some photographs of the decedent [C.O.], taken shortly before her death. These photographs were provided and showed multiple blisters around the mouth, most consistent with herpes simplex blisters ('cold sores'). The blisters visible in the photographs coincided with the locations of the lesions noted around the mouth and nose area at autopsy, which were interpreted as being abrasions and superficial lacerations. Consequently, multiple additional sections of the tissues . . . were obtained and reviewed. [¶] Based on the above review, the lesions noted in and around the mouth at autopsy can no longer be considered to be traumatic in origin, and the diagnosis of asphyxia due to smothering can no longer be supported. [¶] . . . [¶] Although the original cause of death needs to be amended, it is not at all clear what did cause the death of this child. As the autopsy report indicates, there were additional findings which were suspicious for physical abuse. Most notable of these was the presence of multiple healing rib fractures and some contusions on the left chest and abdominal area, suggestive of grasp marks. The rib fractures clearly did not occur at the time of death as they showed quite pronounced callous formation, indicative of injuries at least ten days to two weeks old at the time of death. . . . The autopsy examination, including total body x-rays, gave no indication that the subject had any bone disease which might increase her susceptibility to fractures. Therefore, the presence of these healing rib fractures is a cause for concern."
Following Dr. Sheridan's addendum report, the criminal cases against the parents were dismissed.
On April 13, 2011. Father moved for a continuance of the jurisdictional/dispositional hearing because his expert, Dr. Charles Hyman, was unavailable. On April 15, the motion was denied. Over the next month, during three separate afternoons, testimony dealing with the events surrounding C.O.'s death was taken. Following argument, the court found true jurisdictional allegations and declared the children to be dependents of the court. The court then denied reunification services based on section 361.5, subdivision (b)(4) and (b)(6) and set the matter for a section 366.26 hearing. B. Facts
1. Mother's Testimony
Mother testified that on the night C.O. died, C.O. had been teething and was a little cranky. C.O. woke from a nap and crawled around the living room. About 10:00 p.m., C.O. attempted to stand, then fell and hit her head on the tile floor of the kitchen. Because this concerned Mother, she kept C.O. awake to make sure nothing was wrong. When C.O. showed no signs of anything being wrong, Mother put C.O. to bed at around 10:45 p.m. After Mother put her down, C.O. threw up. Mother gave her a bath, changed her clothes, and put her to bed a second time. Mother gave C.O. a bottle and left the room. When C.O. started crying, Mother returned and found that C.O. had thrown up again. Mother cleaned her up and changed the bedding.
At around 11:36 p.m., as Mother was returning to the room, Father asked if she wanted him to try and put C.O. to sleep; Mother said that that would be fine. Father came out of C.O.'s room around midnight. C.O. was no longer crying. Father lay down for about five minutes, then returned to check on C.O. He was not there very long when he called for Mother and said, "call an ambulance." Mother ran out of the room and called an ambulance. She was on the telephone with the dispatcher when Father left to go to a nearby fire station with C.O. Over the span of the evening, cardiopulmonary resuscitation (CPR) was performed on C.O. by Mother, Father, and Father's mother and father.
Despite C.O.'s squirming around and fighting going to sleep, Mother did not forcibly put her down in the bed. Her habit was to wait until C.O. stood up and then pick up C.O. underneath her arms and lay her back down. She never expressed anger or agitation at the child for not going to sleep.
In the three weeks before the accident, Mother and Father were the only individuals providing care for C.O. She did not cause injuries to C.O. She never saw anyone physically harm Ha. or C.O. She does not know how C.O. received her broken ribs. She never applied force that could have caused rib injuries and never observed Father do that. Neither she nor Father ever placed anything over the face or mouth of C.O.
Mother testified that while it doesn't make sense, the only explanation she has for the rib fractures is that C.O. fell off the couch when she was about three months old.
2. Father's Testimony
Father testified that he is the father of Ha., Ho., and C.O. On the evening of C.O.'s death, Mother observed C.O. fall backwards and hit her head. (Around this time, C.O. was pulling herself up by grabbing onto things, such as the couch.) After the fall, C.O. seemed okay. Later that night, Mother put C.O. to bed in her crib. C.O. was having problems sleeping; she was crying and making a fuss. Mother told C.O. it was time to go to sleep and to stop sitting up. Mother was with C.O. from about 10:00 p.m. to 11:00 p.m. When Father walked in to help, C.O. was on her knees in the crib. Father picked her up and laid her down. He was with her from approximately 11:00 p.m. to 11:30 p.m. During this time, C.O. cried a lot. She got up about three times, and each time Father put her back down. On other occasions, to keep C.O. from getting up, Father would put his hand out so that when she attempted to get up, her chest area would encounter his hand. He did this once during the half hour he was with C.O. that night. Eventually, C.O. relaxed and went to sleep.
When Father left the room, C.O. was breathing. Five minutes later, he returned to check on her. (The parents always checked on the children before they went to sleep.) When he turned on the light and looked at C.O., he saw that she was still; she was not breathing. He blew into her mouth and vomit, consistent with formula, sprayed out of her mouth as if it was under pressure. It happened again, but to a lesser extent. He pressed on her chest 10 to 15 times, then placed her on the floor and called for Mother. Mother called 911.
Father and his younger brother took C.O. to a nearby fire station, but no one was there. Upon returning home, his mother was on the telephone with the paramedics. At this time, his father performed CPR on C.O.
Father testified that at no time did he cause harm to C.O. He does not believe he did anything that caused her to die or to break her ribs. He never grabbed C.O. around the chest with sufficient force to cause injury. The only possible explanation for C.O.'s rib fractures was that Ha. caused the injury when she pulled C.O. off a couch when C.O. was four months old. He never covered C.O.'s mouth with anything.
3. Additional Evidence
The court also received into evidence the following: A report of a sheriff's department interview with Father in which Father described the vomit coming from C.O.'s mouth as similar to bubbles in a soft drink; a report that an emergency medical technician (EMT) told an investigating detective that he did not see any vomit on C.O.'s body or around her mouth; a report that Dr. Sheridan did not notice any signs of vomit during the autopsy; evidence that C.O. was born six weeks premature and was hospitalized for several weeks because of the premature birth and the fact that her lungs needed to develop; and evidence that C.O. tended to bruise easily as a result of playing and falling. In addition, CFS presented the transcript of a telephone call in which Father told his father that "we would cover her mouth with something." Father's father, however, testified that Father was not saying he had covered C.O.'s mouth; rather, that an interviewing officer had suggested this to Father as "a scenario." Mother testified that Father gave her a similar explanation for the statement. C. Autopsy Report and Addendum
The initial autopsy was performed on June 17, 2010. In the autopsy report, Dr. Sheridan described the cause of death as "[a]sphyxia, hours, due to smothering, hours," and the manner of death as "[h]omicide." Dr. Sheridan also noted: "Cutaneous contusions consistent with grasp marks, left lateral chest and abdominal area" and "[m]ultiple healing rib fractures involving right seventh rib, eighth through twelfth posterior left ribs, and left lateral eighth rib."
After reviewing various photographs and performing further tests on tissue, Dr. Sheridan issued his addendum report in March 2011. He stated the cause of death and the manner of death to be "[u]ndetermined." He further wrote: "[T]here were additional findings which were suspicious for physical abuse. Most notable of these was the presence of multiple healing rib fractures and some contusions on the left chest and abdominal area, suggestive of grasp marks. The rib fractures clearly did not occur at the time of death as they showed quite pronounced callus formation indicative of injuries at least ten days to two weeks old at the time of death." D. Juvenile Court's Findings Regarding Subdivision (b)(4) and (b)(6)
At the conclusion of the jurisdictional/dispositional hearing, the juvenile court stated: "[A]t the end of the day we do have a finding by the coroner that the cause of the death is undetermined, but as far as the court is concerned, the inability to pinpoint the cause of the death still allows the petition to be sustained. What the court is aware of is that I have two separate instances: I have parents that are the primary caretakers; I have no explanation as to how the injury could be caused or how the death could be caused. I have both parents denying knowledge and at the end of the day the court believes that there is enough evidence to find that the parents have failed to protect the minor, in this case that being [C.O.] With that said, of course then the court is in that position where it would find one or more of the [section] 361.5 [subdivision (b)], subparts applicable and in this case the court does find the 4 and the 6 subpart[s] applicable to the case."
III. ANALYSIS
A. The Statutory Scheme and Our Standard of Review
Whenever a child is removed from the custody of a parent or guardian, subdivision (a) directs that the court "shall" offer the parent or guardian reunification services, unless it finds by clear and convincing evidence that one or more exceptions or bypass provisions described in subdivision (b) apply. (Ethan N., supra, 122 Cal.App.4th at pp. 63-64; In re Angelique C. (2003) 113 Cal.App.4th 509, 516.) The general rule of subdivision (a) reflects a "strong preference for maintaining the family relationship if at all possible. [Citation.]" (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 474.) When, however, one or more of the exceptions or bypass provisions apply, "the general rule favoring reunification is replaced by a legislative assumption that offering services would be an unwise use of governmental resources. [Citation.]" (Id. at p. 478; see also Renee J. v. Superior Court (2001) 26 Cal.4th 735, 744.)
Subdivision (b) requires bypass findings to be supported by clear and convincing evidence. "Clear and convincing evidence requires a high probability, such that the evidence is so clear as to leave no substantial doubt." (Tyrone W., supra, 151 Cal.App.4th at p. 852.) "'"The sufficiency of evidence to establish a given fact, where the law requires proof of the fact to be clear and convincing, is primarily a question for the trial court to determine, and if there is substantial evidence to support its conclusion, the determination is not open to review on appeal."'" (In re Angelique C., supra, 113 Cal.App.4th at p. 519.) When, as here, the court finds that a parent or guardian is described in subdivision (b)(4) and (b)(6), the parent or guardian has the burden of affirmatively demonstrating that reunification with the child—and therefore offering reunification services to the parent or guardian—would be in the child's best interest. (Ethan N., supra, 122 Cal.App.4th at p. 66; Tyrone W., supra, at p. 846; Subd (c).)
The court has broad discretion in determining whether the parent or guardian has met this burden and therefore whether to offer the parent or guardian reunification services under subdivision (c). (In re Angelique C., supra, 113 Cal.App.4th at p. 523.) An appellate court may not disturb the trial court's best interest determination absent a showing of an abuse of discretion. (Id. at pp. 523-524.) An abuse of discretion is shown when there is no substantial evidence to uphold the findings. (Ethan N., supra, 122 Cal.App.4th at pp. 64-65.)
The "'exercises of legal discretion must be grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue.' [Citations.] Therefore, a discretionary decision may be reversed if improper criteria were applied or incorrect legal assumptions were made. [Citation.] Alternatively stated, if a trial court's decision is influenced by an erroneous understanding of applicable law or reflects an unawareness of the full scope of its discretion, it cannot be said the court has properly exercised its discretion under the law. [Citations.] Therefore, a discretionary order based on the application of improper criteria or incorrect legal assumptions is not an exercise of informed discretion and is subject to reversal even though there may be substantial evidence to support that order. [Citation.] If the record affirmatively shows the trial court misunderstood the proper scope of its discretion, remand to the trial court is required to permit that court to exercise informed discretion with awareness of the full scope of its discretion and applicable law. [Citations.]" (F.T. v. L.J. (2011) 194 Cal.App.4th 1, 15-16.) B. Juvenile Court's Subdivision (b)(4) Determination
To bypass reunification under subdivision (b)(4), the juvenile court must find by clear and convincing evidence "[t]hat the parent or guardian of the child has caused the death of another child through abuse or neglect." (Italics added.) As is evident from the statutory text, a causal connection is required between the parent's acts or omissions and the child's death. "To be considered a proximate cause of [the victim's] death, the acts of the defendants must have been a 'substantial factor' contributing to the result. . . . '[N]o cause will receive juridical recognition if the part it played was so infinitesimal or so theoretical that it cannot properly be regarded as a substantial factor in bringing about the particular result. . . .' [Citation.]" (People v. Caldwell (1984) 36 Cal.3d 210, 220-221.) As has been "stated in the civil context, the tests for 'but for' and 'substantial factor' causation usually produce the same result . . . ." (People v. Jennings (2010) 50 Cal.4th 616, 644.) "The criminal law thus is clear that for liability to be found, the cause of the harm not only must be direct, but also not so remote as to fail to constitute the natural and probable consequence of the defendant's act." (People v. Roberts (1992) 2 Cal.4th 271, 319.)
Based on our record, there is absolutely no evidence to suggest that Mother's acts or omissions brought about or contributed to the death of C.O. All of the testimony supports the fact that when Mother left C.O. on the evening of her death, C.O. was alive. There is nothing in the record to suggest that during the time she interacted with C.O. she did anything to bring about C.O.'s death. Additionally, there is nothing in the record to suggest that she knew of any prior abuse or injury that could have led to C.O.'s death.
As to Father, the only facts that point to his conduct as a cause of death are: (1) he was the last individual to be with C.O.; (2) he indicated that when he began CPR, C.O. aspirated formula, which may be contrary to observations of an EMT and Dr. Sheridan that there were no signs of vomit; and (3) he made a statement to his father that could be construed as suggesting he had, at times, covered C.O.'s mouth with something when she was crying. While we may not believe such evidence meets the threshold of clear and convincing, it nonetheless could possibly be viewed as "substantial evidence" for purposes of our standard of review.
Even if there is some evidence to support a finding that Father caused C.O.'s death, it is not clear that the court made that finding. Among other jurisdictional allegations, CFS alleged under section 300, subdivision (f), that C.O. "was killed while in the care and custody of the Father." (Capitalization omitted.) At the conclusion of the jurisdictional/dispositional hearing, the court indicated it was amending the section 300, subdivision (f) jurisdictional allegation by deleting the words "was killed" and, in its place, interlineating the word "died." This is significant because section 300, subdivision (f) basically mirrors section 361.5, subdivision (b)(4). "Killed," of course, connotes death at the hand of another, while "die" may include death by a cause unknown or unrelated to Father's care. The amendment suggests the juvenile court did not determine that Father actually caused the death of C.O. Furthermore, the juvenile court in explaining its section 361.5, subdivision (b)(4) finding, indicated that it had "no explanation as to how the injury could be caused or how the death could be caused. . . . [A]t the end of the day the court believes that there is enough evidence to find that the parents have failed to protect the minor . . . ." (Italics added.) Section 361.5, subdivision (b)(4), however, requires much more than merely failure to protect; the court must find that the parent "caused the death of another child through abuse or neglect." The court therefore seems to have applied an incorrect principle in denying services under this subdivision.
Section 300, subdivision (f) provides: "The child's parent or guardian caused the death of another child through abuse or neglect." Subdivision (b)(4) of section 361.5, states: "That the parent or guardian of the child has caused the death of another child through abuse or neglect."
At a minimum, the record is extremely ambiguous as to whether the court did in fact conclude that Father caused the death of C.O. in reaching its decision that subdivision (b)(4) applied. Given the ambiguities of the juvenile court's finding and the fact that fundamental rights are affected, the case is remanded for a "redetermination of the ultimate issue on the proper grounds." (In re Carmaleta B. (1978) 21 Cal.3d 482, 496 ["where fundamental rights are affected by the exercise of discretion . . . , such discretion can only be truly exercised if there is no misconception by the trial court as to the legal basis for its action."].) C. Juvenile Court's Subdivision (b)(6) Determination
As for the subdivision (b)(6) finding, the juvenile court must conclude by clear and convincing evidence that "the child has been adjudicated a dependent . . . as a result of . . . the infliction of severe physical harm to . . . a sibling, . . . and the court makes a factual finding that it would not benefit the child to pursue reunification services with the offending parent or guardian." As is evident, this is a two-prong evaluation, both of which must be shown by clear and convincing evidence. First, it must be demonstrated that severe physical harm was inflicted on a sibling. Second, it must be shown that reunification services with the offending parent would not benefit the dependent child. The court's basis for finding the infliction of severe physical harm and the factual findings used to determine that the child would not benefit from reunification services must be read into the record. (Subd. (j).)
Looking first to whether there was clear and convincing evidence that there was infliction of severe physical harm to a sibling, it appears clear the juvenile court relied on the unrebutted evidence contained in the autopsy report that C.O. had "[c]utaneous contusions consistent with grasp marks, left lateral chest and abdominal area" and "[m]ultiple healing rib fractures involving right seventh rib, eighth through twelfth posterior left ribs, and left lateral eighth rib." In this regard, Tyrone W. is instructive.
In Tyrone W., Tyrone and Camela were the parents of T.W. and one-month-old Y.W. (Tyrone W., supra, 151 Cal.App.4th at p. 843.) One year prior to the death of Y.W. there had been a referral to child services regarding Tyrone placing his hand over two-month-old T.W.'s mouth and banging T.W.'s head against the crib. On the day in question, Tyrone fed Y.W. and placed her in her crib. (Id. at pp. 843-844.) Approximately three hours later, Tyrone checked on Y.W. and discovered she was not breathing. (During this time Camela was asleep and Tyrone was in charge of Y.W.) Emergency medical personnel were unable to resuscitate Y.W. The medical examiner suspected the cause of death as sudden infant death syndrome (SIDS). (Id. at p. 844.)
T.W. was removed from the parents' custody upon the filing of a section 300 subdivision (b) petition. (Tyrone W., supra, 151 Cal.App.4th at p. 844.) Thereafter, an autopsy "revealed [that Y.W.] had fractures on eight posterior right ribs and had similar, but smaller, healing fractures on three posterior left ribs." (Ibid.) The medical examiner opined that the fractures were not directly related to the cause of death. However, he now listed the cause of death as "undetermined," and viewed the death as "suspicious." (Ibid.)
"A child abuse expert . . . estimated the injuries to Y.W.'s right ribs were approximately 10 to 14 days old. The condition of the three left posterior ribs suggested these fractures were older than those on the right, consistent with two to four weeks of healing. [The child abuse expert] opined the rib fractures were 'likely indicative of child abuse' and did not occur from birth or natural disease." (Tyrone W., supra, 151 Cal.App.4th at p. 844.) Following issuance of the medical examiner's report, the dependency petition was amended to allege that "Y.W. suffered severe physical abuse and damage inflicted nonaccidentally by the parents and there was a substantial risk T.W. would suffer severe physical abuse by the parents as defined by section 300, subdivisions (e) and (j). The Agency recommended the court deny both parents reunification services . . . ." (Id. at p. 845.) Following a hearing, the court denied reunification services under subdivision (b)(6). (Tyrone W., supra, at p. 845.)
By way of writ petition, Tyrone contended that the court erred in denying him reunification services under subdivision (b)(6) in the absence of finding that he inflicted severe physical harm on T.W.'s sibling. (Tyrone W., supra, 151 Cal.App.4th at pp. 842-843.) Division One of this court agreed: "We hold that section 361.5, subdivision (b)(6) requires the juvenile court to find that a parent inflicted severe physical harm on the child by act, omission or consent before it may deny reunification services to that parent under subdivision (b)(6). The Legislature did not intend subdivision (b)(6) to apply to deny reunification services to a negligent parent; rather, the parent must have been complicit in the deliberate abuse of the child. Identification of the parent who inflicted severe physical harm on a child is required when the evidence does not show both parents knew the child was severely injured or knew the child was being abused." (Id. at p. 843.)
As the court explained: "Section 361.5, subdivision (b)(6) defines 'severe physical harm' as 'deliberate and serious injury inflicted to or on a child's body . . . by an act or omission of the parent . . . or of another individual . . . with the consent of the parent.' The word 'inflict' means 'to cause [severe physical harm] to be endured,' and implies some action. [Citations.] The word 'deliberate' suggests the infliction of physical harm must have been '[i]ntentional[,] premeditated[, or] fully considered.' [Citation.] [¶] The inclusion of the words 'deliberate' and 'inflicted' in, and the omission of the phrase 'reasonably should have known' from, section 361.5, subdivision (b)(6) indicates the Legislature did not intend the court to apply a standard of negligence when considering whether to deny reunification services to a parent under subdivision (b)(6)." (Tyrone W., supra, 151 Cal.App.4th at p. 850.) The court further stated that, as "defined in subdivision (b)(6), omission and consent both require actual knowledge, if not of the physical harm itself, then of another's abusive acts. We hold that subdivision (b)(6) applies to the parent or parents who inflicted severe physical harm to the child whether by act, omission or consent, and does not apply to a negligent parent." (Id. at p. 851.)
In concluding its discussion on this issue, the court stated: "We do not quarrel with the proposition that when the child's injury or injuries were obvious to the child's caretakers and they failed to act, the court is not required to identify which parent inflicted the abuse by act and which parent inflicted the abuse by omission or consent. In such a case, the evidence supports a conclusion that both parents knew the child was injured or being abused." (Tyrone W., supra, 151 Cal.App.4th at p. 852.)
Here, the juvenile court's true finding as it relates to subdivision (b)(6) appears premised on the fractured ribs and bruising to the left lateral chest and abdominal area, "consistent with grasp marks." If indeed the bruising and fractured ribs were caused by one of the parents, the record is silent as to the identity of the offending parent; as such, the juvenile court was unable to make any finding as to who directly inflicted the injury. Thus, to make a true finding on subdivision (b)(6) as to both parents, the juvenile court, under Tyrone W., must necessarily conclude that the parent had knowledge of the injuries or abuse being inflicted on the child. Such knowledge could be established by evidence of injuries that were apparent and obvious to both caretakers. No such finding was made.
There is nothing in the record to suggest that the fractured ribs were apparent or obvious to either parent. There is no evidence of any ongoing distress or other symptomatology on the part of C.O. that would lead one to conclude she had sustained injuries not apparent to the eye.
There was evidence of bruises on C.O. There is some testimony that C.O. bruised easily and that bruises had been noticed on her in the past. Additionally, Ha. had a tendency to play rough with C.O. and hit her with toys. On the evening of C.O.'s death, when Mother was giving C.O. a bath, she noticed a small bruise on the left side of C.O.'s abdomen. At the time of the autopsy, there were three contusions visible on the left side of her body. Two of them were linear running along the left side of the rib cage. A paramedic noted bruising on the left abdomen and left chest. Some of the responding emergency personnel noticed the presence of some small bruising, while others observed no bruising. Lastly, a number of household members attempted CPR by doing chest compressions on C.O., which may have caused bruising. (One member of the responding emergency personnel stated that what the EMT's did on the evening of the incident would not have caused the bruising.)
While the bruising may have been preexistent and may be indicative of a deliberate injury, the court did not indicate that such bruising was a basis for finding a parent had knowledge of the infliction of severe physical harm. (See subd. (j).) As explained above, in order to deny reunification services under subdivision (b)(6) when the evidence does not demonstrate which parent directly inflicted the injuries, there must be a finding that a parent had knowledge that injuries or abuse was being inflicted on the child, thereby allowing the injuries to occur by consent or omission. That finding could be supported by evidence of injuries that are obvious or apparent to the parent. Here, the juvenile court gave no indication that the evidence of bruises had any bearing on its ruling.
Additionally, under the second prong of subdivision (b)(6), the court must also find by clear and convincing evidence that reunification services with the offending parent would not benefit the dependent children. Although the court stated "it would not benefit the minors to pursue reunification services with the offending parents," it did not set forth the factors it considered in making that finding.
Subdivision (i) provides: "In determining whether reunification services will benefit the child pursuant to paragraph (6) or (7) of subdivision (b), the court shall consider information it deems relevant, including the following factors:
"(1) The specific act or omission comprising the . . . severe physical harm inflicted on the . . . child's sibling . . . .
"(2) The circumstances under which the abuse or harm was inflicted on the . . . child's sibling . . . .
"(3) The severity of the emotional trauma suffered by . . . the child's sibling . . . .
"(4) Any history of abuse of other children by the offending parent.
"(5) The likelihood that the child may be safely returned to the care of the offending parent . . . within 12 months with no continuing supervision.
"(6) Whether . . . the child desires to be reunified with the offending parent . . . ."
Subdivision (j) provides: "The court shall read into the record the basis for a finding of . . . infliction of severe physical harm under paragraph (6) of subdivision (b), and shall also specify the factual findings used to determine that the provision of reunification services to the offending parent . . . would not benefit the child."
In In re Kenneth M. (2004) 123 Cal.App.4th 16, the court agreed with the mother's assertion "that the record does not support denial of reunification services based on section 361.5, subdivision (b)(6), as that provision requires identification of the perpetrator and subdivision ([j]) requires certain factual findings not made by the juvenile court here." (Id. at p. 21.) The court explained that, by "its express terms, subdivision (b)(6) applies to the parent who inflicted severe physical harm to the minor. Moreover, section 361.5, subdivision ([j]) imposes on the juvenile court the duty to state the basis for its findings. Neither of those circumstances is present in the case. Accordingly, denial of services cannot be predicated on subdivision (b)(6)." This language applies with equal force to the present case.
In re Kenneth M. referred to subdivision (i). Subdivision (i) was subsequently redesignated subdivision (j). (Stats. 2010, ch. 559, § 13, p. 2678.)
Here, the juvenile court did not comply with the requirements of subdivisions (i) and (j). It failed to address on the record which of the parents, if either, directly inflicted serious bodily injury on C.O., and whether the injury was obvious and apparent such that both parents had knowledge of the abuse. Additionally, the court failed to place on the record its findings used to determine that reunification services to Father would not benefit the children. Following remand, the court must consider and determine these issues and make the requisite findings on the record. D. Subdivision (c)—The Best Interest Exception
Even were we to assume that the present record supports a subdivision (b)(4) finding as to Father or that subdivision (b)(6) applies to Mother or Father, the court must still consider whether there is clear and convincing evidence that reunification is in the best interest of the children. (Subd. (c); Ethan N., supra, 122 Cal.App.4th at p. 65.) The court in Ethan N. listed four factors juvenile courts should consider in determining whether reunification would serve a child's best interest. (Subd. (c).) These are: (1) the "parent's current efforts and fitness as well as the parent's history," (2) the gravity of the problem that led to the dependency, (3) the strength of the relative bonds between the child and the parent and the child and his or her caretakers, and (4) the child's need for stability and continuity. (Ethan N., supra, at pp. 66-67.)
From the record before us, we are unable to find that the court considered these factors.
Here, after finding subdivision (b)(4) and (b)(6) applicable, the juvenile court addressed reunification, stating: "[T]he court would be prohibited from ordering reunification services unless the court could find by clear and convincing evidence that reunification is in the minor's [sic]best interest. Court doesn't find that that burden has been met. And while the court is aware that mother has made some progress, and perhaps even father some progress, in receiving services and that they have been consistent with the visits, the court doesn't believe that it would look at the totality of the circumstances that that [sic] would amount to the best interest of the minors. The court does recognize that it is very difficult to imagine the circumstances as grave as this where a minor has died, and with that, the court will make the following findings and orders on jurisdiction: . . . ."
As for the considerations enunciated in Ethan N., the juvenile court only addressed the gravity of the problem that led to the dependency. While indicating that the parents had made some progress, it did not discuss the parents' fitness or history. Additionally, there was no mention of the strength of the relative bonds between the children and parents, and no reference to the children's need for stability and continuity.
In considering the gravity of the problem that led to the children's dependency, the court in Ethan N. noted: "It is difficult to imagine any problem more grave than the previous death of another child caused by abuse or neglect." (Ethan N., supra, 122 Cal.App.4th at p. 66.) And, while assuming, without deciding, that the death of another child by abuse or neglect "should not be weighed twice—first in connection with the . . . subdivision (b)(4) finding and again in determining best interest," the court emphasized that the death of the child in that case was "combined with a long history of drug abuse, family violence, and the abuse and neglect of other children even after extensive reunification services had been provided" to the mother. (Id. at pp. 66-67, fn. omitted.)
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While the present record does not appear to contain facts addressing each of the four criteria, it does contain some facts relevant to the parents' fitness and history. As shown: Mother and Father work from home in the family business. Neither parent has a criminal history and there is nothing to suggest that they have been involved with child services prior to the death of C.O. Both parents have participated in family systems management in terms of parenting and child abuse prevention classes. They have also been involved in counseling. Mother has visited with the children twice per week, and, she testified, if offered reunification services she would cooperate with CFS.
A report of Dr. John Kinsman, a clinical and forensic psychologist, indicated that Mother "is currently functioning within the average range of intellectual ability." From an emotional point of view, Dr. Kinsman indicated that she is "experiencing an excessive amount of emotional stress that is causing distress and increasing her susceptibility to becoming depressed. . . . [¶] . . . [She] makes great efforts to be socially acceptable and to conform to the rules of those in authority." She has "self-doubt" and is "preoccupied with approval." As to parenting considerations: "Nothing in the results of this evaluation indicates that [Mother] represents a threat to her children's safety. However, [Mother's] internal preoccupation with her own psychological issues may limit her maternal effectiveness. Her symptoms of depression and anxiety[,] as well as her unresolved issues regarding her own self worth, may at times interfere with her ability to safely and effectively parent her children. [¶] . . . [¶] With regard to the referral question concerning whether [Mother] could benefit from Family Reunification Services, it seems clear from her behavior since the children were removed from her custody, that she is deeply committed to the welfare of her family. The well being of her oldest child, who was over two years old when the death of [C.O.] occurred, bears testimony to [Mother's] maternal effectiveness. [¶] . . . [¶] . . . The results of this evaluation suggest that supervised visitation continue for some time to allow [her] to realize the benefits of psychological intervention and parenting education."
Tanja Adison, the social worker, testified that by the time she got the referral in this case, Mother was already in parenting classes. By the time of the jurisdictional/dispositional hearing, Mother had completed her parenting classes, as well as counseling. Father completed the same parenting classes, as well as counseling.
Mother consistently visits the children twice a week for one hour each time. Adison has not seen Mother do anything inappropriate. She has heard from others that Mother brings too much candy and gets the kids "hyped-up." Mother is loving during her visits with the children, and the children appear to be comfortable with Mother. At times, Ha. does not appear to be comfortable with Father. She regularly addresses Mother as mommy and Father as daddy.
Upon remand, the juvenile court is asked to make findings supported by facts as to each of the criteria set forth in Ethan N.
IV. DISPOSITION
Let a writ of mandate issue directing the superior court to (1) vacate its orders denying reunification services and setting a hearing pursuant to section 366.26, and (2) hold a further dispositional hearing, consistent with this opinion, to determine whether services should be denied Father on the basis of section 361.5, subdivision (b)(4) and/or whether services should be denied Mother and/or Father under the provisions of section 361.5, subdivision (b)(6). Further, if the court should reach the issue of reunification under section 361.5, subdivision (c), it is directed to consider each of the criteria set forth in Ethan N.
As to each of its findings, the juvenile court is asked to set forth its findings on the record in accord with section 361.5, subdivision (j), and Ethan N.
Lastly, the juvenile court in its discretion may take further evidence as to the relevant issues, or may simply base whatever findings it makes on the present record. NOT TO BE PUBLISHED IN OFFICIAL REPORTS
King Acting P.J. We concur: Miller J. Codrington J.