Opinion
NOT TO BE PUBLISHED
Napa County Super. Ct. No. JV16149
RIVERA, J.
In these consolidated actions, Kristine H. (Mother) and Brett B. (Father) seek extraordinary review of an order denying reunification services and setting a hearing pursuant to Welfare and Institutions Code section 366.26 (.26 hearing). (Cal. Rules of Court, rule 8.452.) We deny Mother’s petition on the merits (case No. A127940). We grant Father’s petition, and shall order the juvenile court to provide reunification services to him (case No. A127941).
All undesignated statutory references are to the Welfare and Institutions Code.
I. BACKGROUND
A. Petition and Detention
Napa County Health & Human Services (the Department) filed a petition pursuant to section 300 on August 14, 2009, alleging that seven-month-old Faith came within the jurisdiction of the juvenile court because her parents had inflicted serious physical harm (§ 300, subd. (a)) and failed to protect her (§ 300, subd. (b)), and because Faith had suffered severe physical abuse (§ 300, subd. (e)). According to the petition, Faith had suffered two broken legs, neither accidental, and had bruising on her arm, hand, and leg as a result of being grabbed and forcefully held. Faith was detained, and the juvenile court ordered two weekly visits for Mother and Father.
B. Jurisdiction
1. Jurisdiction Report
A jurisdiction report prepared by the Department indicated that Mother brought Faith to a hospital at 6:15 a.m. on August 12, 2009, saying there was a rash on Faith’s left leg and arm and that she was crying inconsolably. Faith’s left leg was swollen. The “ ‘rash’ ” on Faith’s arm was determined to be a bruise, and resembled the marks of a hand and fingers around the forearm. X-rays revealed a spiral fracture of the tibia of Faith’s left leg, and a fractured right tibia. Dr. Michael Shifflett, who examined Faith, stated that it would be unusual for these types of fractures to occur from normal activity in a seven-month-old child. The spiral fracture is generally the result of a twisting movement, and would typically occur from “ ‘pulling on the leg or the child falling while the leg is being held, ’ ” and the fracture to the right leg was unusual in a nonambulatory child. Dr. Christine Loffler-Barry was of the opinion that the injuries were not accidental and were caused by child abuse. A cast was put on the left leg. The fracture in the right leg did not appear to be causing pain or discomfort, and it was not treated.
Dr. Rachel Gilgoff of the Center for Child Protection Consultation at Oakland’s Children’s Hospital & Research Center reported that a skeletal survey carried out the previous month had revealed no fractures, and that fractures could be caused by “ ‘yanking, pulling, or forcefully lifting an infant by the legs.’ ” After consultation with a radiologist, she was of the opinion that both fractures were less than seven to ten days old when X-rays were taken on August 12, 2009-that is, that the first break took place between August 2 and August 12.
According to the jurisdiction report, Mother could not account for the injuries. A medical note at the hospital stated that Mother did not report any falling or injury, and did not think there was any chance Faith had become entangled in her crib. She told a detective who interviewed her at the hospital that she had taken Faith to the home of her boyfriend, Kyle C., at approximately 9:00 the previous evening. She went on an errand, and when she returned, Faith was in a Pack ’n Play play yard. Around 11:30 p.m., Faith became fussy, and Mother took her to the home she shared with her paternal grandparents, Ken and Pam H. She went to bed, but was awakened at 1:00 a.m. by Faith “ ‘screaming.’ ” Mother noticed bruising on Faith’s leg, and called her friend Alison H., who was an emergency medical technician, to look at the injuries. They took Faith to the hospital just before 6:00 a.m. Mother told a social worker that they delayed taking Faith to the hospital because they were trying to figure out what had caused the injuries and what to do about them. She suggested that the injuries might have been made by the Pack ’n Play. She said Father had last seen Faith about two weeks previously.
Mother’s mother is Debra, or Debbie, F. and her stepfather is Paul F. Her father is Daniel H. and her stepmother is Rhonda H. Her maternal grandmother and step-grandfather are Vince and Carol S. Her paternal grandparents are Pam and Ken H. Mother lived with Vince and Carol S. when Faith was born. She moved into Pam and Ken H.’s home in July 2009.
Father told a social worker he had last seen Faith approximately ten days or two weeks earlier. He reported that both he and Mother had become “ ‘frustrated’ ” with Faith in the past and used to tell her to “ ‘shut up’ ” but that they did not do so anymore. He had once seen Mother grab Faith’s legs and pull her up by them roughly while changing Faith’s diaper. He did not know what had caused the fractures.
Pam H. reported that before Mother and Faith left her house on August 11 to visit Kyle C., Faith was playing on the floor and was behaving normally, not crying or fussing. Pam H. saw bruises and swelling on Faith after she and Mother returned that night, and noticed that Faith cried when she was picked up or moved and did not kick as much as usual.
When interviewed, Kyle C. said that Mother and Faith had come to his house between 7:30 and 8:00 in the evening, that Mother had gone briefly to a store, and that at around 8:30 or 8:45, Faith became fussy and did not crawl around during the evening. She began to cry around 11:00 p.m., and when she could not be comforted, Mother took her home. Kyle C. did not know what had caused her injuries.
Mother’s maternal grandmother, Carol S., reported to a social worker that both parents had “anger issues, ” that Father had a history of drug and alcohol problems, and that she had seen Mother grab Faith by the ankle, raise her in the air, and toss her back onto the bed. She described Mother’s actions as “ ‘grabbing at the baby and whipping her up into the air to where only her head was touching the bed.’ ” She said Mother regularly became so angry with Faith that Carol S. “ ‘wouldn’t let Faith out of [her] sight when [Mother] was home.’ ” Mother’s mother, Debbie F., said she had seen Mother grabbing Faith, “ ‘flipping her up, ’ ” and “jamming her arms and legs into clothes.” Mother would “scream” at Faith when Faith woke her up and say Faith was doing so on purpose.
On Father’s first visit after Faith was detained, he raised her up over his head as he held her. Faith’s left leg was still in a cast.
A month earlier, on July 6, 2009, a referral had been made to Child Protective Services in Solano County. The reporter said that Faith had returned from a visit with Father in late June with scratches and marks on her armpits and thighs, and that a month earlier, she had returned from a visit with a severe rash that was the beginning stage of impetigo, caused by not having her diapers changed often enough. Father told Carol S. he had thrown Faith up in the air by her armpits to make her laugh. A pediatrician confirmed that a scratch under Faith’s armpit was consistent with Father’s story. A CT scan showed no recent or old injuries. A social worker determined the allegations of physical abuse by Father and neglect by Mother to be unfounded.
Mother and Father reported at the time that they were no longer a couple, but that Faith visited Father weekly.
At the time he made this determination, the social worker did not have access to a medical note confirming that Faith had had impetigo.
An addendum report indicated that as of October 2, 2009, no new fractures had occurred, and additional medical tests did not indicate that Faith suffered from brittle bone disease, rickets, or other bone disorder. The two breaks could have taken place at the same time. The report also indicated that Father had told a social worker on August 13, 2009, that he had seen Faith the previous weekend. He said he could not be responsible for the fracture of the left leg, because he had not seen Faith for the previous several days, but said he could “ ‘be considered’ ” for the other break, although he could not think of anything he might have done to cause it.
It appears that at the time of the interview, Father did not know when Faith’s right leg had been broken.
The report also noted that Father had met with a social worker, Noel Vargas, on July 13, 2009, as part of the investigation into the earlier referral in Solano County, and that Vargas cautioned Father about the danger of tossing an infant of Faith’s age. At the same meeting, he advised Mother against pulling Faith up from her crib by the arms and legs.
2. Jurisdictional Hearing
a. Medical Evidence
A contested jurisdictional hearing took place on October 26 and November 23, 2009. Shifflett, an orthopedic surgeon, testified that he examined Faith on August 12 and August 13. He saw minor bruises on her arm and bruising on her left leg. Faith had suffered a torus fracture to her right leg, which would result from pressure being applied to the bone in a longitudinal manner, that is, in the direction of the bone. Her left leg had a spiral fracture, which results from a twisting motion. The spiral fracture appeared to have occurred within days of the examination, and he could not determine the date of the other break. Such fractures are uncommon in nonambulatory patients. A child would react loudly and immediately to a broken bone.
Gilgoff, a pediatrician and expert in child abuse and neglect, testified that she examined Faith after her legs were broken. After suffering a broken bone, a child would immediately cry, and would be fussy and irritable for some time. Anyone nearby would know from the baby’s screams that “something terrible happened.” She reviewed Faith’s X-ray films with a radiologist, who said both breaks looked relatively new, meaning less than 10 days old. They could have happened virtually simultaneously. She believed the injuries had been caused by physical abuse, and testified that she had seen one other case in which similar broken bones were caused by a mother yanking and pulling aggressively on her baby’s legs. She doubted that Faith’s injuries had occurred when she was in her “exersaucer, ” because there was no report that she began crying suddenly when in the “exersaucer.” She acknowledged, however, that if an adult pulled up a child whose legs were caught in a partially collapsed Pack ’n Play, then dropped the child, spiral and torus fractures could result.
Gilgoff had reviewed Faith’s medical records, and noted that among her earlier minor ailments, she had been diagnosed with impetigo. She saw nothing in these earlier notes that would have raised a concern that Faith was being abused. She described impetigo as a “skin infection usually causing blistering, ” which was treatable with antibiotics, and agreed that impetigo is not necessarily a sign of abuse or neglect, but could be “just one of those things that happens to babies.”
Faith’s former pediatrician, Dr. Ferdinand Floresca, testified that Faith was found to have impetigo on May 8, 2009. Mother was given antibiotic ointment and advice on diaper rash care. Faith had follow-up appointments on May 11 and May 13, and by May 13 the impetigo blisters were gone. Floresca examined Faith in July 2009, after the Solano County CPS referral. He found a scratch on the front of Faith’s underarms, which was healing, some unexplained markings on her feet, and no bruises. He ordered a skeletal survey, and found no current or old fractures. The scratch could have come from Father tossing Faith up and slipping while trying to catch her, and Floresca did not conclude Faith had been abused.
b. Social Workers’ Testimony
The social worker assigned to the case, Sandra Maggioli, testified that during Father’s first visit after Faith’s injury, Maggioli saw him lift Faith above his head so she was dangling, while she had a cast on her left leg. She told him not to handle Faith that way because of her injuries, and he thanked her in a straightforward manner for her advice. She had not seen Father treat Faith in this way since. He had visited Faith regularly, his interactions had been appropriate, and Faith had demonstrated attachment to him. Father appeared to be more active than Mother in his interactions with Faith, although Faith appeared to enjoy being with Mother. However, Mother had become more engaged with Faith over time. Maggioli was concerned about Mother’s rough treatment of Faith, and noted that multiple people had advised her not to be rough, including Carol S., Father, and Vargas.
Vargas, the Solano County social worker, testified that he met Mother and Father after the Solano County referral. He cautioned Father about throwing an infant into the air, and advised Mother not to pull Faith from the crib by her arms and legs. When he met Faith, he found her “very interactive, ” particularly with Father. He examined her physically, and saw no unusual marks on her legs or buttocks. He spoke with Floresca, who told him-mistakenly-that Faith had not had impetigo. After speaking with Floresca, Vargas concluded the allegations of abuse were unfounded.
c. Mother’s Testimony
Mother testified that after Faith was born in December 2008, Mother, Father, and Faith lived in Carol S.’s home. Father moved out at the end of January, and Mother had primary custody of Faith. Faith would visit with Father on the weekends, and Mother was usually there. She and Father were still romantically involved until late June or early July. Around that time, she became involved with Kyle C. She denied ever having lifted Faith by her legs or ankles high enough for her to dangle with only her head touching the mattress.
Faith was playing with toys on the afternoon of August 11, 2009, and was not unusually fussy. Mother went with Faith to Kyle C.’s house around 8:00 in the evening. She left briefly to run an errand, and when she returned, Kyle C. told her Faith was asleep in her play yard in Kyle’s parents’ room. Mother went to sleep in Kyle’s room, and later heard Faith screaming. She described it as “a scream I had never heard before[;]... a mixture of come get me and I’m in pain.” She got up, went to the room where Faith was, and found Kyle had picked her up and was holding her. Faith calmed down a bit when Mother took her, and Mother decided to return to her home. She took down the Pack ’n Play, and did not turn on the light in the bedroom. She testified that she took it down quickly, and did not notice whether it had been set up correctly. Faith did not scream as Mother put her in her car seat, and she played with her car seat toys. On the way home, Faith fell asleep.
At the time, Mother was living with Pam and Ken H.
When Mother got home, she transferred Faith to her crib. Faith was awake, but went back to sleep after Mother gave her a pacifier. Mother went to her own room and lay down, but got up when she heard Faith crying. She and Pam H. went to Faith, and noticed some marks on the back of her leg that appeared to be a rash, and lines on her arm and hand area. Faith drank from a bottle, then “dozed in and out of sleep.” Mother texted Alison H., thinking that because she was an emergency medical technician she would know what the rash was. Alison arrived sometime after 2:00 a.m. Faith awoke again, and was screaming, with an urgent cry. Mother noticed additional marks on her lower leg. Alison H. examined Faith and thought the marks were a rash. Faith did not cry while being examined and later went back to sleep. Mother and Alison looked on the computer to try to find out what could have caused the rash.
Around 5:30 or 6:00 a.m., Alison H., Pam H., and Mother noticed swelling on Faith’s left leg, and decided to take her to the hospital. At the hospital, a doctor told Mother Faith’s leg had been broken, and Mother was shocked and did not understand how it had happened. She denied having injured Faith. She believed Faith might have received the spiral fracture by being caught in the Pack ’n Play or the exersaucer, and could not explain how the torus fracture might have occurred.
d. Father’s Testimony
Father testified that his last contact with Faith before her detention was August 2, 2009. He denied having tossed Faith in the air, saying that on the occasion she returned from a visit to him with bruises, he had “put her above [his] head” and rubbed her on his head, when he felt her slip. He squeezed his arms or hands closed to hold onto her. He denied having harmed Faith, and did not know how her legs were broken. He testified that on one occasion, between late December 2008 and early January 2009, he had seen Mother grabbing Faith’s legs in a rough manner and pulling them while she changed a diaper. He told her she was being a little too rough and that she should “watch it.” Mother apologized, and Father never saw Mother repeat this behavior. He never saw her lift Faith by the legs so just her head was touching the changing table. He once heard Mother tell Faith to “shut up, ” and acknowledged that he and Mother would become frustrated with Faith. His romantic relationship with Mother ended in mid-June 2009, but he continued to see her and Faith nearly every weekend.
e. Testimony of Family and Friends
Rhonda H., Mother’s stepmother, testified that Faith spent the night of August 9 at Rhonda H.’s home, and was fussy. Rhonda H. saw no unusual markings on her legs or arms, and Faith did not seem to be in pain.
Kyle C. testified that on the evening of August 11, he set up the Pack ’n Play for Faith. He had set them up before, and he made sure every part was locked in place and the center was pushed down. Faith went to sleep in it. Later, he heard her cry as if she was hungry. He did not recall hearing Faith cry in that way before, but she did not appear to be in pain. He went to her, picked her up, and comforted her as her crying decreased. He could see her legs, and did not see any bruising or markings on them. The Pack ’n Play looked normal, and was not collapsed. Mother decided to take Faith home, and Kyle C. rocked Faith back to sleep as Mother disassembled the Pack ’n Play. Faith awoke as he put her in her car seat, but went back to sleep when he put a pacifier in her mouth. He had never seen Mother treat Faith roughly. He did not know how Faith’s leg was broken.
At the hospital, Kyle C. told Pam H. that it was possible he had not set up the Pack ’n Play correctly.
Pam H. testified that when Mother returned from Kyle C.’s house in the early morning hours of August 12, Faith was sleeping. They saw brown dots on the back of her leg. Faith woke and fussed, and Pam H. and Mother noticed brown spots on the front of her leg. When Faith was picked up, she fussed but did not scream and cry. When they saw her leg was swollen, they took her to the emergency room. Pam H. spoke with Kyle C. later, and he told her he had had a hard time setting the play yard up for Faith to sleep in. Based on what Kyle C. said, Pam H. thought he had not set it up correctly. Pam H. had never seen Mother hold Faith up by the feet or ankles.
Alison H. testified that Mother texted her around 1:30 in the morning of August 12, saying she thought she might have to take Faith to the emergency room. Alison H. went to Mother’s home, and saw that Faith was asleep. She looked at Faith with a flashlight, and saw what appeared to be a rash on her left leg and some marks on her arm and foot. Faith later awoke crying, and appeared distraught. Alison H. saw that her left leg was swollen to twice the size of her right leg and had a large bruise, and recommended taking her to the hospital right away. At the hospital, Faith was very upset when she was moved.
Father’s mother, Cynthia B., testified that Father lived with her, and that she had seen Faith frequently. She was present at the house almost all the time that Faith was there, never saw Father or Mother treat Faith roughly or carelessly, and never saw Father throw Faith into the air. She had warned Father that putting Faith over his head was “asking for trouble” and that he should not do so. On one occasion, Cynthia B. gave Mother advice about how to distract Faith while changing her diaper, to keep her from rolling over, and Mother accepted the suggestion well. She never saw Mother lift Faith by her feet or ankles so that only her head touched the mattress. On the occasion Faith had impetigo, she came to their house with rash; Cynthia B. asked Mother and Father what was going on, and they said she had impetigo and an ointment had been prescribed for it. The last time Cynthia B. saw Faith before the broken legs were discovered was on August 2, 2009. Faith did not appear to be in pain on that day, and behaved normally.
f. Juvenile Court’s Ruling
After the jurisdictional hearing, the juvenile court sustained the petition and found it had jurisdiction under section 300, subdivisions (a), (b), and (e).
In doing so, it expressly rejected the view that the sides of the Pack ’n Play collapsed and caused Faith’s broken legs.
C. Disposition
1. Disposition Report
The Department prepared a report for the disposition hearing. Criminal charges were pending against Mother for injuring a child (Pen. Code, § 273a, subd. (a)), with an enhancement for inflicting great bodily injury (Pen. Code, § 12022.7, subd. (d)); and on the advice of her attorney, Mother did not speak with the social worker who prepared the report.
The report stated that Father had recently been laid off from his job, and intended to find another full-time job and a home of his own. He wanted to have custody of Faith and raise her. He was currently living with his mother, and intended to continue to do so until he could find a suitable place to live with Faith if he were granted custody of her.
Carol S. told the social worker she was concerned by Father’s anger and “ ‘violent side.’ ” She also told a police officer that after Faith returned from a weekend visit to Father, she had open sores on her genital and buttocks area, which Carol S. believed were the result of not having her diaper changed often enough.
According to Carol S., on one occasion before July 4, when Faith weighed 15 or 16 pounds, Mother yanked Faith up by the leg so that only her head was touching the bed, then let go of her leg, and let her flop back on the bed. Carol S. warned Mother not to treat Faith in that manner. She said that Mother often yelled at Faith, did not get her out of bed until 10:00 or 11:00 in the morning, and did not hold Faith while she fed her.
Mother’s step-grandfather, Vince S., told the social worker that Mother and Father “fought all the time”; that Father, who was not yet 21, was not mature enough to raise a child; that Father was financially irresponsible; and that he had lied about having a job. In an interview with a police detective, he described Mother as an immature 19-year-old, and said she was not “caring” when she dressed Faith.
Mother’s mother, Debbie F., told the detective she had seen Mother “ ‘manhandling’ ” Faith when dressing her, and that it seemed Mother “had no connection with Faith.” Paul F. had also seen Mother handling Faith “ ‘very roughly.’ ”
The disposition report noted that Kyle C. had made a pretext phone call to Mother in November 2009. He told her that he knew he had not hurt Faith’s legs in the Pack ’n Play, and that he knew she was okay when she left his house. Mother said she understood that. Kyle C. said it did not make sense to him that Faith was fine when she left his house but ended up with a broken leg, and Mother said it did not make sense to anyone and that she wished she knew how it had happened.
Mother and Father had two supervised visits with Faith a week. Their interactions with Faith were described as “generally favorable: They feed and change Faith and interact with her appropriately during play. They demonstrate some affection for Faith, and are aware of her stages of development; that is, her crawling and standing with some help.”
The Department recommended that reunification services not be offered to Mother or Father pursuant to section 361.5, subdivision (b)(5). It took the position that reunification services were not likely to prevent the parents from abusing or neglecting Faith, and there was no indication that Faith’s bond with either parent was close enough that she would suffer detriment by the lack of reunification services. The report stated: “Faith’s parents have not demonstrated that they are mature enough to take on the responsibilities of parenting no matter what services were provided, and Faith does not appear to have a close bond with either parent. In addition, the cause(s) of Faith’s injuries remains unknown to the Department. The Department can not expect with any measure of confidence that the parents would be able to protect Faith from further injury and neglect since they claim that they do not know how Faith acquired her presenting injuries or who inflicted them.”
2. Disposition Hearing
A contested disposition hearing took place on February 3, 8, and 9, 2010.
a. Maggioli’s Testimony
Maggioli, the social worker, testified that she was concerned that no one had taken responsibility for Faith’s injuries and that she could not be sure if the parents could protect Faith. She was also concerned about the evidence from other family members of the parents’ lack of attachment to Faith and their failure to notice and intervene to prevent abuse by the other parent. Because of the parents’ lack of maturity, she questioned whether they could benefit from services.
Mother and Father visited Faith regularly and had generally favorable interactions with her, feeding and changing her and interacting with her appropriately during play, and they showed some affection for her and were aware of her stages of development. A progress note described a visit in which Mother and Father took turns holding Faith at the beginning of a visit, Father kept a close eye on her as she explored the room and gave her a Gerber snack when she became fussy, Faith played happily, she smiled and laughed as she sat on her parents’ laps, and she walked toward Father as Debbie F. helped her. The visits, however, took place in a controlled environment, in which most parents would be on their best behavior. She was also concerned by statements made by Debbie and Paul F. and Carol and Vince S. indicating that Mother had a long-term history of anger and problems with impulse control, and did not believe the issue could be addressed with anger management classes, but that it would require intensive therapy over a period of years.
Maggioli was present when Faith first saw Mother on August 24, 2009, when she had not seen her since she had been detained 12 days earlier. Faith did not appear “joyful” when she saw Mother, as Maggioli would have expected. An infant who has a secure attachment to a parent will normally “light up” with facial expressions, body movements, laughs, or smiles when the parent appears. During the visit, Maggioli saw Father hold Faith up, although her leg was still in a cast. She told him not to do so, and he appeared to listen to her.
Maggioli had seen the end of some visits between Mother and Faith, and had seen Mother hug Faith. The notes of visit coaches indicated that Faith reached out for Mother only occasionally. Maggioli had seen Faith turn away when Mother approached her, which was a sign of an “avoidant attachment.” Faith did not show distress at the end of visits with her parents. At one visit on November 16, 2009, Faith became excited and reached her arms out toward Mother when she saw her. However, Maggioli described this as an isolated incident, and Faith did not repeat that behavior consistently. At that visit, Mother and Father noticed that Faith sounded congested. At another visit, on October 28, 2009, Faith appeared sleepy before her parents arrived, but when they arrived she instantly became alert and smiled, appearing happy to see them. At a November 2, 2009, visit, Faith’s foster mother warned that she might be cranky because she had awoken early, but Faith was happy and alert for the entire visit. However, Maggioli testified that Faith was also happy and alert with other people, including herself, visit coaches, and people Faith did not know.
In recent visits, according to Maggioli, Faith did not want to leave Debbie F.’s arms, and turned her head away when held out to Mother, on one occasion grabbing Debbie F.’s blouse and turning away as she was brought to Mother.
Maggioli did not rule out Father as having caused the break to Faith’s right leg. Although X-rays indicted the two breaks were similar in age, Father’s August 2009 statement that he could be considered as the source of the first break and that he had seen Faith on the previous weekend left open the possibility that he had inflicted one of the injuries. However, in itself, the injury Father inflicted on Faith at the end of June, when she slipped from his grasp as he threw her up in the air, would not cause the Department to recommend bypassing reunification services.
b. Testimony of Mother’s Family
Debbie F., Mother’s mother, testified that she had seen Mother handling Faith roughly when dressing her. Debbie F. showed Mother many times how to handle Faith gently. She had seen Mother with Faith almost daily during Faith’s first six months of life, and did not think Mother had an emotional bond to Faith, or put Faith’s needs before her own. Debbie testified that she often saw Father with Faith in her first six months, and that Father behaved appropriately with her. Mother’s stepfather, Paul F., testified that he had also seen Mother “grab[bing] Faith roughly, ” and that Mother was rough when she changed Faith’s diaper.
At the time of the disposition hearing, Faith had been placed with Paul and Debbie F., who wished to adopt her, and they were being considered as prospective adoptive parents. Father’s mother, a registered nurse, with whom he lived, was also seeking to have Faith placed in her home.
Mother’s maternal grandmother, Carol S., testified that Father threw Faith in the air and caught her when she was only three weeks old, and she told him he should not do that. On one occasion, Mother showed her a text message from Father that contained vulgarities. According to Carol S., “every other word was the ‘F’ word.” She testified that Father had a “really, really bad temper, ” that when he became angry he “gets in his truck and he just spins it all over the place and takes off just very recklessly, ” and that when he became angry when working on his car he “starts cussing and kicking and throwing tools.” She talked to Father about the text message, and he responded, “you don’t know me, nobody does, you don’t know what I’m capable of doing.” The marks that appeared on Faith in June, after a visit to Father, seemed to Carol S. to be cuts and bruises.
Carol S. testified that Mother would become angry with Faith when she wiggled while being dressed, and would say Faith was “doing it on purpose.” Mother was rough when dressing Faith, yanking her arms and legs back to put clothes on her. Carol S. also described having seen Mother diaper Faith by grabbing her left ankle, “yank[ing] her all the way up in the air where her head was just touching the ground, ” putting a diaper under her, and dropping her back down. Carol S. told Mother not to treat Faith that way, and Mother said she would not do it again. Carol S. did not see Mother repeat this behavior. Her husband, Vince S., testified that during the first six months of Faith’s life, when she and Mother were living with Carol and Vince S., he did not see as much of a bond as he would expect between a mother and a daughter. He confirmed that he saw bruising and fingernail imprints under Faith’s arms and on her legs after she returned from a weekend visit with Father.
Father took the position that Carol S. was biased against him, and that Debbie and Paul F. were biased because they wanted to raise Faith themselves. Father presented evidence that after the June incident in which Faith had bruises after a weekend visit with him, Paul F. said that Faith was “his, ” and that Father would never see Faith again, and that he made a threatening comment to Father saying: “[D]o you think you can take me?... [C]ome on over, I can take you any time of the day.”
Mother’s paternal grandmother, Pam H., testified that in the first months of Faith’s life, she saw Mother and Faith every week or two. She said that Faith loved Mother and wanted Mother to hold her if she was in the room. During the time Mother and Faith lived with her, Pam H. saw that Mother’s relationship with Faith was loving, Mother cared for Faith, and she did not treat her roughly or show any aggressive behavior toward her. Pam H. had seen Mother at her visits with Faith after the detention, and said that Faith would reach for Mother, “light up” when she saw her, and say “momma.” She believed Mother had become more mature since Faith’s birth. Faith had also interacted well with Father on the visits Pam H. had attended.
c. Mother’s Evidence
Mother testified she did not know how the injury to Faith’s legs occurred. However, she thought it possible that Kyle C. had caused the injury, and said that on the night in question, Faith had woken up screaming, and Kyle C. was holding her. Since Faith was removed from her care, Mother had taken parenting classes and participated in therapy. She had also looked into anger management classes and a child development class. She had a job, and used her earnings to buy clothes, toys, food, and diapers for Faith.
At the time of the disposition hearing, Mother was again romantically involved with Father, although she was not living with him.
Mother’s therapist, Lorraine Crockford, testified that Mother reported to her that she was sad and fearful about the prospect of losing contact with Faith. Crockford believed Mother had made “small progress” in 14 therapy sessions, and had the capacity to participate in therapy.
d. Father’s Evidence
Father testified that before the case was filed, he had last seen Faith on August 2, 2009. At the time, there was nothing to indicate she was injured. He believed he had a bond with Faith, and said she wanted to be with him whenever he walked into a room with her, liked to crawl up on his lap, and would call him “da-da” while looking at him. He also believed Faith had a bond with Mother, and said she would sit in Mother’s lap and hug and cling to her, and that before Faith was detained, she would “struggle[] to get out of [the] car seat to get to Mommy” after visits to Father.
Father testified that after Faith was born, he and Mother lived together at the home of Carol and Vince S. He later moved in with his mother, and saw Faith about four times a week. When he saw her, he would care for her, feed her, change her diaper, and play with her. Asked about the incident in which Faith returned from a visit with bruises, he said that when Faith was six months old, he held her up in the air above his head, and she was laughing and giggling. When she slipped and he caught her, she did not cry and was not distressed. He did not intend to play that game with Faith again because he had been told it was dangerous. However, he acknowledged that on that occasion, he was “ticked off” and upset because Faith had kept him up all night the previous night. On the occasion he saw Mother being too rough with Faith, he spoke with her about it, and afterward did not see her being rough. He had not seen anything in Mother’s treatment of Faith that would lead him to believe Faith would suffer broken legs. He did not know how Faith’s injuries had occurred, but did not think Mother had caused them. He had attended one session of a parenting class, which focused on child development.
Father’s mother, Cynthia B., a registered nurse, testified that before Faith’s broken legs were discovered, she had last seen Faith on August 2, 2009, and there was no indication Faith was injured in any way. During the year Father had been living with her, she had never seen him be abusive toward Faith. On the occasion Faith had impetigo, she already had it when she arrived for her visit with Father. Cynthia B. also testified that during supervised visits, Faith seemed to get excited as soon as she saw Father, and that she would get onto his lap. She would smile at him and bring him things to play with. When it was time to part, Faith did not cry or appear distressed, but she would turn and look at him. She had seen Faith behave in a similar manner toward Mother at supervised visits.
Father presented evidence that he was out of town on the weekend of August 8, 2009, the weekend before Faith was taken to the hospital.
e. Juvenile Court’s Findings
The juvenile court denied reunification services to Mother and Father. (§§ 361.5, subd. (b)(5), 300, subd. (e).) In doing so, the court found by clear and convincing evidence that Mother had broken Faith’s legs, “almost certainly on the ride to her paternal grandmother’s home when she was alone with Faith.” The court also found that Father had injured Faith by tossing or lifting her up; that Faith did not have a parental bond with Mother and Father; that reunification services would not protect Faith from her parents; that both parents “are immature, are dangerous to Faith, and the facts clearly show that they are incapable of gaining the necessary maturity, love for their child, and the profound change in their personalities required for Faith to thrive and be safe, within the brief time (a maximum of 12 months), the law allows for infants to reunify with their parents”; and that Faith would not benefit by reunification with her parents. The court set a hearing pursuant to section 366.26.
II. DISCUSSION
A. Denial of Reunification Services to Mother
Mother contends there is no substantial evidence to support the juvenile court’s finding that Faith suffered severe physical abuse at her hands. On review we decide “whether, viewed in the light most favorable to the judgment, there is substantial evidence to support the juvenile court’s finding. [Citation.] All conflicts must be resolved in favor of the respondent, and we must indulge in all reasonable inferences which support the finding. [Citation.]” (In re Joshua H. (1993) 13 Cal.App.4th 1718, 1728 (Joshua H.).) The juvenile court is the sole judge of the credibility of witnesses, and we may not substitute our own inferences or deductions for those of the trial court. (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1372-1373 (Ryan N.).) Rather, “the power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination of whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, which will support the decision of the trier of fact. [Citations.]” (Id. at p. 1373.)
“Family reunification services play a critical role in dependency proceedings. [Citation.] Unless a specific statutory exception applies, the juvenile court must provide services designed to reunify the family within the statutory time period. [Citations.]... [T]he court must find by clear and convincing evidence that one or more of the subparts enumerated in section 361.5, subdivision (b) apply before it may deny reunification services to a parent.” (Tyrone W. v. Superior Court (2007) 151 Cal.App.4th 839, 845 846 (Tyrone W.).) Section 361.5, subdivision (b)(5), allows the juvenile court to deny reunification services where it finds by clear and convincing evidence “[t]hat the child was brought within the jurisdiction of the court under subdivision (e) of Section 300 because of the conduct of that parent or guardian.” Section 300, subdivision (e) allows the juvenile court to take jurisdiction of a child who “is under the age of five years and has suffered severe physical abuse by a parent, or by any person known by the parent, if the parent knew or reasonably should have known that the person was physically abusing the child.” As relevant here, subdivision (e) defines “severe physical abuse” as “any single act of abuse which causes physical trauma of sufficient severity that, if left untreated, would cause permanent physical disfigurement, permanent physical disability, or death;... or more than one act of physical abuse, each of which causes bleeding, deep bruising, significant external or internal swelling, bone fracture, or unconsciousness....”
Where section 361.5, subdivision (b)(5) applies, the court may not order reunification unless it finds “those services are likely to prevent reabuse or continued neglect of the child or that failure to try reunification will be detrimental to the child because the child is closely and positively attached to that parent” (§ 361.5, subd. (c), 3d ¶). Once the department proves by clear and convincing evidence that a child falls within section 300, subdivision (e), “the general rule favoring reunification services no longer applies; it is replaced by a legislative assumption that offering services would be an unwise use of governmental resources.... While [the department] has the statutory duty to investigate and present the court with information about the prognosis for a successful reunification, it is not required to prove the services will be unsuccessful.” (Raymond C. v. Superior Court (1997) 55 Cal.App.4th 159, 164.)
Mother does not argue that Faith’s injuries were not the result of severe physical abuse, but instead contends that the evidence shows that Kyle C., not Mother, caused them. For this contention, she argues that there is no direct evidence that she did so, that the medical experts could not state exactly when the fractures occurred, and that there was evidence that at Kyle C.’s house, Faith screamed loudly and Mother awoke to find Kyle C. holding her. Under the applicable standard of review, however, the question before us is not whether the evidence might have supported an inference other than the one made by the juvenile court; rather, we must indulge all inferences that support the juvenile court’s findings. (Joshua H., supra, 13 Cal.App.4th at p. 1728.)
Applying that standard, there is sufficient evidence to support the juvenile court’s finding that Mother broke Faith’s legs. There was evidence that Mother had a history of treating Faith roughly and pulling her up by her legs. Mother was alone with Faith on the ride between Kyle C.’s home and her own; and afterward, Faith was found to have a “ ‘rash’ ” on her leg, which turned out to be bruising, a broken leg, and bruising on her arm. Mother did not dispute Kyle C.’s statement in the pretext phone call that he knew Faith was fine when she left his house on the night in question. The juvenile court could reasonably infer that Mother caused Faith’s injuries.
The juvenile court could also reasonably find that Mother did not show that services were likely to prevent reabuse. There was evidence that Mother regularly became angry with Faith; that she had been seen “yanking” Faith up by her ankle and then dropping her back down while diapering her; that her grandmother had told her not to treat Faith that way; and that Mother’s mother had shown her many times how to handle Faith gently. Maggioli testified that she did not believe Mother’s problem with anger could be addressed with anger management classes, but would require intensive therapy over a period of years. Mother’s own therapist testified that she had made “small progress” in 14 sessions. From this, the juvenile court could reasonably conclude that reunification services in the limited time available were not likely to be successful to preventing Mother from abusing Faith again.
The juvenile court found the evidence of Mother’s mother, stepfather, and grandmother that Mother treated Faith “deplorably, roughly, without affection and with resentment at various times” convincing and credible.
The record also supports the juvenile court’s conclusion that Faith’s bond with Mother was not strong enough to make denial of reunification services detrimental. We recognize there was evidence that Mother’s interactions with Faith on supervised visits were favorable, that Mother showed affection for Faith, that Mother’s relationship with Faith was loving, and that Faith would approach or reach for Mother or “light up” when she saw her. However, there was also evidence from Maggioli, whose testimony the juvenile court found credible, that Faith did not respond to Mother in a way that would be expected in an infant with a secure attachment to her mother. Moreover, there was testimony from Debbie F. that she did not see an emotional bond between Mother and Faith during Faith’s first six months of life, and from Vince S. that he did not see as much of a bond as he would expect between a mother and daughter. Bearing in mind that we may not judge the credibility of witnesses and must affirm if there is any substantial evidence, contradicted or uncontradicted, that will support the juvenile court’s determination (Ryan N., supra, 92 Cal.App.4th at p. 1373), we conclude that the record supports the juvenile court’s findings as to Mother.
B. Denial of Reunification Services to Father
In his petition, Father contends the injuries for which he was responsible do not meet the definition of “severe physical abuse” under subdivision (e) of section 300. The juvenile court stated in its order, “I do not think that the blame for breaking Faith’s legs can be placed by clear and convincing evidence on Father. He was probably not with Faith when this occurred, although the time of the injury to one leg cannot be ascertained with precision, while it is known that the injury to the other happened within a few hours before her examination by a physician. It is clear, however, that Father was responsible for an earlier injury, that is, scratches, bruises and severe diaper rash, that triggered an earlier investigation by the Solano County Child Welfare Services.” The court noted, however, that no petition had been filed as a result of this investigation because “it was unclear whether the injuries were serious, or possibly accidental.” The court also noted that Father had a practice of throwing Faith up, or at least of lifting her up and down, from the time she was three or four weeks old, resulting in “fairly deep scratches and bruises” that were visible after two weeks; and that he lifted her, letting her legs dangle, when she had a cast on her leg. The court found the evidence “overwhelming” that Father “scratched and bruised [Faith], and endangered her by tossing her into the air at three or four weeks old, and failed to attend to her hygiene and cleanliness, resulting in severe diaper rash.”
As we have explained, the section 300, subdivision (e) definition of “severe physical abuse, ” as relevant here, includes “any single act of abuse which causes physical trauma of sufficient severity that, if left untreated, would cause permanent physical disfigurement, permanent physical disability, or death;... or more than one act of physical abuse, each of which causes bleeding, deep bruising, significant external or internal swelling, bone fracture, or unconsciousness....” The injuries Father caused directly to Faith certainly were not severe enough that they would have caused death or permanent disfigurement or disability. Nor is there evidence that Father perpetrated more than one direct act that caused bleeding, deep bruising, swelling, bone fracture, or unconsciousness. The incident in which Faith was scratched and bruised-apparently when she slipped as Father lifted her and tried to catch her-appears to have been a single incident. Even if the resulting bruising could be seen as “deep bruising, ” and even assuming Father’s actions were abusive, there is no evidence that Father caused such bruising more than once. Nor can we conclude that failure to change a baby’s diaper often enough, resulting in even severe diaper rash and impetigo, falls within the terms of subdivision (e) of section 300.
The impetigo was treated quickly and successfully with an ointment. Gilgoff agreed that impetigo is not necessarily a sign of abuse or neglect, but that it could be “just one of those things that happens to babies.”
The Department argues, however, that Father’s own conduct led to Faith’s broken legs because he knew or reasonably should have known Mother was abusing Faith. As the Department points out, a parent need not personally cause the severe physical abuse to be subject to the bypass provision of section 361.5, subdivision (b)(5), which applies when the child is brought within the court’s jurisdiction under section 300, subdivision (e), “because of the conduct of that parent.” The Court of Appeal in Joshua H. rejected a mother’s contention that this provision applied only to a parent who actually inflicted the severe physical abuse, concluding instead that it applies to a parent “who, knowing the actual abuser, knows or reasonably should have known that the other person was physically mistreating the child, as well as to the parent who personally abuses his or her child.” (Joshua H., supra, 13 Cal.App.4th at pp. 1731-1732.) In Joshua H., the mother saw her boyfriend use his open hand against baby Joshua’s forehead and push him, causing him to fall. Another time, she tried unsuccessfully to stop him from hitting Joshua with a closed fist, again causing him to fall. She also saw the boyfriend repeatedly push a walker, in which Joshua was seated, with such force that the baby’s neck snapped backward. After the boyfriend bruised Joshua’s forehead by head-butting him, the mother first told a nurse at a day-care center that the bruise had come from Joshua’s bumping his head against a crib or wall, then kept him home for a few days to keep the center from reporting her to the authorities. Around the same time, she left Joshua home with the boyfriend while she went out; while she was gone, the boyfriend placed the baby on his back and repeatedly punched him in the chest with his fist. (Id. at p. 1723.) The following day, the boyfriend slapped Joshua nine or ten times, causing a black eye. (Id. at pp. 1723-1724.)
The court in In re E. H. (2003) 108 Cal.App.4th 659, 670, emphasized that where the perpetrator of the abuse is unknown, the critical inquiry is not whether the parent knew of the abuse inflicted by another, but whether the parent reasonably should have known. There, the mother lived with baby E. She and the father shared a bedroom with mother’s sisters; E. slept on the floor; and one of the sisters, a partially blind young adult who had cerebral palsy and could not walk, would “roll out of [her] bed and land on the floor and crawl to the door.” (Id. at pp. 662-663.) Baby E. suffered numerous broken bones in different parts of her body, which were at different stages of healing when discovered. (Id. at p. 661.) Neither parent could explain how the injuries occurred. (Id. at p. 662.) The juvenile court sustained the dependency petition as to certain allegations, but dismissed allegations made pursuant to section 300, subdivision (e). (E. H., at p. 667.) The Court of Appeal concluded E. came within the provisions of section 300, subdivision (e), reasoning that the evidence showed that she was never out of her parents’ custody and remained with a family member at all times; therefore, the parents either inflicted the abuse or reasonably should have known someone else was inflicting abuse on their child. (E. H., at p. 670.)
Citing E. H., the court in In re Kenneth M. (2004) 123 Cal.App.4th 16, 21 (Kenneth M.), noted that sections 300, subdivision (e) and 361.5, subdivision (b)(5) do not require identification of the perpetrator, but “permit denial of reunification services to either parent on a showing that a parent or someone known by a parent physically abused a minor. [Citation.] Thus, ‘conduct’ as it is used in section 361.5, subdivision (b)(5) refers to the parent in the household who knew or should have known of the abuse, whether or not that parent was the actual abuser.” The court in Tyrone W. likewise stated that “under section 361.5, subdivision (b)(5), the court may deny reunification services to a negligent parent.” (Tyrone W., supra, 151 Cal.App.4th at p. 847.)
In Kenneth M., one of the dependent children had been injured while in the care of her parents, although the identity of the abuser was not clear. (Kenneth M., supra, 123 Cal.App.4th at pp. 18-19.)
Here, although Father saw Faith regularly, he was not living in the same household with Mother, the perpetrator of the abuse. It appears that he had not seen Faith for 10 days when the broken legs were discovered, and Faith had never suffered such injuries before. Although there was evidence that Mother had treated Faith roughly in the past and that Father once told her she was being too rough while changing Faith’s diaper, there is no indication that Father had seen her treat Faith in a manner that indicated she would cause broken bones or other severe injuries. Nor does it appear Father tried to cover up for Mother when she injured Faith.
The Department points out the evidence that Father is immature, that he endangered Faith by lifting or tossing her in the air at too young an age, and that he has a “dark” side characterized by anger, at times directed toward Faith. The question we must first address, however, is not whether reunification efforts are likely to be successful, but whether a specific statutory exception to providing reunification services applies. (Tyrone W., supra, 151 Cal.App.4th at p. 845.) In this case, the question is whether the evidence supports a finding that Faith was brought within the juvenile court’s jurisdiction under subdivision (e) of section 300 because of Father’s conduct. (§ 361.5, subd. (b)(5).) In the absence of evidence that Father lived in the same home with Mother at the time the severe physical abuse took place, that he saw her treating Faith in a manner that would lead to such injuries, or that he covered up for her abuse, we must conclude that it does not.
III. DISPOSITION
Mother’s petition (case No. A127940) is denied on the merits. (§ 366.26, subd. (l)(1)(C); Cal. Rules of Court, rule 8.452; In re Julie S. (1996) 48 Cal.App.4th 988, 990 991.) Father’s petition (case No. A127941) is granted. Let a writ of mandate issue directing the juvenile court to set aside its order denying Father reunification services and issue new and different orders that provide for reunification services for Father. The June 8, 2010, hearing is stayed. Our decision is final immediately. (Cal. Rules of Court, rule 8.490(b)(3).)
We concur: REARDON, Acting P.J.SEPULVEDA, J.