Opinion
B231438
12-13-2011
In re W.A., et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. H.F., Sr., Defendant and Appellant.
Donna Balderston Kaiser, under appointment by the Court of Appeal, for Defendant and Appellant. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Peter Ferrera, Deputy County Counsel, for Plaintiff and Respondent. No appearance for Minors.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. CK84852)
APPEAL from orders of the Superior Court of Los Angeles County. Jacqueline Lewis, Temporary Judge. Affirmed.
Donna Balderston Kaiser, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Peter Ferrera, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for Minors.
Defendant and appellant H.F., Sr. (Father) appeals from the juvenile court's jurisdiction and disposition orders adjudicating his children dependents of the court pursuant to Welfare and Institutions Code section 300, subdivision (b), (e) and (j),removing them from his custody (§ 361, subd. (c)(1)) and denying him reunification services (§ 361.5, subds. (b)(5) & (b)(6)). We affirm. Substantial evidence supported the juvenile court's orders. The record showed that Father was aware both that his girlfriend had thrown his dog into traffic, causing its death, and that his infant son had been severely burned while in the girlfriend's care. Nonetheless, he again left his two-month-old son in her care when he went to a party, during which time the infant suffered irreversible brain injury from a head trauma.
Unless otherwise indicated, all further statutory references are the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Events Leading to Detention.
Father was the primary caretaker of W.A. (age five and not his biological child), twins G.F. and J.F. (age two), T.F. (age one) and H.F. (age two months). The family came to the attention of the Los Angeles County Department of Children and Family Services at approximately 4:00 a.m. on Sunday, October 24, 2010, when it received a referral that paramedics had brought H.F. to the Harbor UCLA Medical Center and he was suffering from multiple fractures of the head area and burn on his left arm. H.F. was unconscious and in critical condition.
When first interviewed at the hospital, Father said that all the children were at a babysitter's home on Saturday and one of his older daughters must have fallen on H.F. He refused to reveal the babysitter's name or address. He stated that he called the paramedics when he arrived home early Sunday morning and saw that H.F. did not look right. The on-duty physician indicated that H.F.'s injuries were inconsistent with Father's story. Dr. Bonnie Rachman in the hospital's pediatric intensive care unit stated that H.F.'s injuries were consistent with his head coming into contact with a hard surface—for example, being thrown against a wall or dropped on the floor. Dr. Rachman opined that H.F.'s prognosis was grave. He had multiple skull fractures and extreme brain swelling. He was also suffering from a burn on his left arm that was in the healing stages.
Father initially refused to disclose his other children's whereabouts. After being interviewed by the police, however, Father stated that the children were with a family friend. The Department immediately detained them.
The following day, October 25, 2010, the Department interviewed the children's mother, C.A. (Mother). Though often contradicting herself, Mother conceded that Father was the children's primary caretaker. Mother, then homeless, seemed to have little bonding or attachment to the children. She was unaware that H.F. had been burned. Her mother, H.F.'s maternal grandmother, later stated she heard at the hospital that Father's girlfriend had banged H.F.'s head on the bathtub.
The Department also re-interviewed Father, who stated that his live-in girlfriend, Danielle G., had been in the bedroom with H.F. when Father left for the evening on Saturday. Three other adults were also present. When Father returned home, Danielle and his other children were asleep. As he approached H.F., though, he saw that he was twitching, had foam oozing from his mouth and was staring blankly into space. Father called the paramedics immediately. Father acknowledged he was aware that Danielle had confessed to police she injured H.F., but Father believed she was only protecting the real perpetrator. Father reported that H.F. had sustained a burn when he was immersed in a basin of hot water.
The Department reported that Father did not disclose Danielle had been arrested for and charged with animal cruelty in February 2010 after she threw his dog into traffic and it was killed by an oncoming car. Danielle threw the dog because she was mad at Father for leaving her alone when he went to go pick up his daughters. Father also had not disclosed his extensive criminal history. Most recently, Father had suffered a heart attack while being questioned by the police about the murder of one of his closest friends. Father had developed a heart condition after being stabbed in the heart during a gang fight.
The Department's assessment concluded that detention of all children was necessary given that H.F. had suffered extreme physical trauma, no one could explain how H.F. was so seriously injured, no one could explain his prior burn and the child T.F. also had an unexplained "knot" on her forehead. The Department filed a section 300 petition as to all children on October 27, 2010, containing allegations under subdivisions (a), (b), (e) and (j). At the October 28, 2010 detention hearing, the juvenile court declared Father the presumed father of all the children except W. A. It found a prima facie case for detaining the children and placed all of them except H.F. with W.A.'s paternal grandmother. Mother and Father were permitted monitored visitation.
Jurisdiction and Disposition.
The Department's December 3, 2010 jurisdiction/disposition report indicated that H.F. remained hospitalized in the pediatric intensive care unit. He was intubated and in grave condition. H.F.'s doctor opined that H.F.'s injuries were from a non-accidental trauma and that his type of injury generally has significant consequences from any delay in treatment. He stated that while H.F. was not brain dead, H.F. would probably not develop; it was unlikely he would ever be able to walk or feed himself. According to a police interview, Danielle had been charged with corporal injury to a child and was awaiting trial.
The Department began an interview with Father, in which he described the normal day preceding H.F.'s injury and his arriving home at approximately 3:15 a.m. to find H.F. shaking and eyes half open. Father also indicated that Danielle had burned H.F. by putting his arm on a hot faucet during a bath. Father called a pediatric hotline for treatment, but did not take H.F. into the doctor because he did not think the injury was that bad. The Department was unsuccessful in completing Father's interview.
The paternal grandmother (Father's mother) was generally supportive of Father but critical of Danielle. She had been concerned about her ever since the dog incident. She denied that Father was gang-affiliated. The report described Father's criminal history, involving multiple arrests and several misdemeanor convictions, including possession of marijuana, theft and resisting arrest. It also outlined Mother's criminal arrest history, primarily involving charges of prostitution or loitering.
The Department maintained that the children were unsafe in Father's home: "Even though father was aware that his girlfriend Danielle G[.] threw his 8-week old puppy into the street (for which she was arrested and placed on probation) and burned the child [H.F.] while bathing him (according to father), he still allowed her to reside in the home and care for the children." The Department also remained concerned because it was still unclear precisely how H.F. was injured. Father had visited sporadically since detention.
The Department recommended that neither Mother nor Father receive reunification services. A supplemental report prepared on December 17, 2010 indicated that father had been arrested on December 6, 2010 as an accessory after the fact, but was released two days later. The report also provided a summary of the police report regarding Danielle's arrest for animal cruelty. The police report indicated that Danielle intentionally threw the dog by its collar into oncoming traffic. She was upset because Father was not allowing her to accompany him to H.F's doctor's appointment. As she went back into the house, the paternal grandmother asked her not to let the dog out, and in response Danielle said "fuck this dog," grabbed its collar and threw it into the street. A medical assessment had ruled out abuse as a cause of the knot on T.F.'s head. The report further indicated that neither Mother nor Father had visited the children since mid-November 2010.
After the matter was continued to February 2011, the Department reported that in mid-January 2011 Mother and Father had requested visitation. But when the Department requested them to drug test, neither appeared. H.F. had been moved to a group home and remained stable with no significant changes to his overall functioning.
At the February 15, 2011 adjudication, the juvenile court admitted the Department's reports into evidence and heard testimony from Mother and Father. Father testified that he put ointment on H.F's burn and several days later took him to a doctor. Though he believed the burn was an accident, he was upset about it and would no longer let Danielle bathe H.F. He denied being under the influence of alcohol when he returned home early Sunday morning and called the paramedics for H.F. He explained that his body does not digest alcohol. He did not believe that Danielle had intentionally thrown his dog in the street, but rather, thought that she was trying to hold onto the dog's choke chain.
Regarding the events surrounding H.F.'s brain injury, Father stated that he left H.F. with several adults that evening, though he considered Danielle to be the primary caretaker for the evening. He had dated Danielle off and on for about two years, and had been living with her for approximately one month. When he arrived home, he heard H.F. breathing strangely and saw that his eyes were rolling back in his head. One of the other adults in the home yelled to call an ambulance. Father conceded that he still did not know how H.F. was injured, but added that two of the adults who had been in the home that evening left permanently, leaving their cell phones at the house and failing to contact Father at any point after that evening. Father denied being in a gang. He was no longer seeing Danielle and he expressed a desire to reunify with his children.
In closing, counsel for the Department and the children argued that Father reasonably should have known of Danielle's violent tendencies and been aware of the risk of leaving H.F. with her. Father's counsel argued that there was no evidence to show that Father reasonably should have known Danielle was physically abusing H.F. as required by section 300, subdivision (e).
The juvenile court sustained the allegation under section 300, subdivision (e), which provided a description of H.F.'s injuries and, as amended, further alleged: "The child's injuries are consistent with non-accidental trauma and child abuse. The father knew or reasonably should have known that the child was being physically abused and failed to take action to protect the child. Such physical abuse of the child and the father's failure to protect the child endangers the child's physical and emotional health and safety, creates a detrimental home environment and places the child at risk of physical and emotional harm, damage, danger and death." The juvenile court also sustained the allegation in count (j)(1), similarly amended, and dismissed counts (a)(1), (b)(1), (b)(2), (b)(3), (b)(5) and (j)(2). It also sustained count (b)(4) regarding Mother's drug use.
In finding that Father knew or reasonably should have known of abuse by Danielle, the juvenile court read portions of the police report detailing the dog incident, noting that the report directly contradicted Father's version of the events. The juvenile court described as "lunacy" Father's protecting the person who murdered his dog. The court was also critical of Father's decision to forbid Danielle from giving H.F. a bath, yet make her responsible for H.F.'s care when he left to go to a party. The juvenile court summarized: "There is clear and convincing evidence here that this father knew or reasonably should have known that these children were at risk. If someone can kill an animal because she's jealous of the father taking the children to a doctor's appointment, how does he expect that person to respond when he leaves her in charge of his children while he goes out to party?"
At the February 18, 2011 disposition hearing, the juvenile court denied Father's request for a continuance. Following counsels' arguments, the juvenile court declared the children to be dependents of the court, removed them from their parents and placed them in the care, custody and control of the Department. It ordered family reunification services for Mother, but denied them for Father pursuant to section 361.5, subdivisions (b)(5) and (b)(6). The juvenile court expressed concern that Father had not yet acknowledged his role in H.F.'s injury and described this as a "textbook case" of when reunification services would be worthless. The juvenile court reasoned that denial was supported by both section 361.5, subdivision (b)(5), as H.F. was brought within the court's jurisdiction under section 300, subdivision (e), and section 361.5, subdivision (b)(6), as H.F. had suffered severe physical harm as a result of an act or omission by Father and there was no showing that it would benefit the children to pursue reunification services.
Father appealed.
DISCUSSION
Father contends that substantial evidence did not support the juvenile court's jurisdiction and disposition orders. We find no merit to his contentions.
I. Substantial Evidence Supported Jurisdiction Under Section 300, Subdivisions (e) and (j).
Section 300, subdivision (e) accords the juvenile court jurisdiction over a child if "[t]he child 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. For the purposes of this subdivision, 'severe physical abuse' means any of the following: 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 . . . ." Thus, to support a jurisdictional finding under section 300, subdivision (e), the Department must show: "(1) there is a minor under the age of five; [¶] (2) who has suffered severe physical abuse as defined in section 300, subdivision (e); [¶] (3) by a parent or any person known to the parent if the parent knew or reasonably should have known that the person was physically abusing the minor." (In re Joshua H. (1993) 13 Cal.App.4th 1718, 1727.) In turn, section 300, subdivision (j) permits the juvenile court to assume jurisdiction when "[t]he child's sibling has been abused or neglected, as defined in subdivision (a), (b), (d), (e), or (i), and there is a substantial risk that the child will be abused or neglected, as defined in those subdivisions."
We review the juvenile court's jurisdictional findings for substantial evidence. (E.g., In re E. H. (2003) 108 Cal.App.4th 659, 669.) Under this standard, we review the record to determine whether there is reasonable, credible, and solid evidence to support the juvenile court's conclusions, and we resolve all conflicts in the evidence and draw all reasonable inferences from the evidence in support of the juvenile court's orders. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393.)
Father challenges only the final element of the juvenile court's findings—that is, whether he "knew or reasonably should have known that [Danielle] was physically abusing the child." (§ 300, subd. (e).) As emphasized in In re E. H., supra, 108 Cal.App.4th at page 670, the statute does not require that parents actually know that a child was being injured by someone else; "the only requirement is that they reasonably should have known." (See Black's Law Dict. (8th ed. 2004) p. 1294, col. 2 [one has "reason to know" when he or she has "[i]nformation from which a person of ordinary intelligence . . . would infer that the fact in question exists or that there is a substantial enough chance of its existence that, if the person exercises reasonable care, the person can assume the fact exists"].) Further, a finding under section 300, subdivision (e) may be supported by circumstantial evidence. (In re E. H., supra, at p. 670.)
Substantial evidence supported the juvenile court's determination that Father knew or, at a minimum, reasonably should have known of Danielle's abuse. The juvenile court relied on evidence that H.F. had sustained injury while Danielle was bathing him and that Danielle had killed Father's dog. With respect to the first incident, the evidence showed that sometime between one week and three weeks prior to detention, H.F. had sustained a severe burn while in Danielle's care. According to Father, Danielle put H.F.'s arm on a hot faucet while bathing him, causing his arm to become red and puffy, and causing him to scream when Father touched the area. Though Father characterized the burn as an accident, he did not let Danielle bathe him after that.
The other incident on which the juvenile court relied involved Danielle's throwing Father's dog into the street. A police officer had observed Danielle exit a security screen door holding a puppy, later identified as Gucci, by its collar in her right hand. According to the officer, Danielle "then appeared to intentionally throw Gucci into the south bound traffic lanes of Prairie Ave. Gucci flew end over end approximately 2 times. Gucci landed in the #3 lane and was immediately struck by a passing car." The officer reported that after the dog had been run over, Danielle "showed complete disregard for her actions and for Gucci," and walked away from the dog.
H.F.'s paternal grandmother described the incident similarly, explaining that Danielle was upset because Father would not let her accompany him to a doctor's appointment because there was not enough room in the car. Danielle expressed her frustration to the grandmother, who then told Danielle not to let the dog out as she was leaving. Instead, Danielle reached down and grabbed the dog by its collar, said "fuck this dog," and threw it into oncoming traffic. After that incident, the grandmother did not want Danielle around her 13-year-old foster children.
Beyond Danielle's violent behavior toward the dog, what primarily concerned the juvenile court about this incident was Father's behavior. According to the police report, when the officer approached Danielle to arrest her, she pulled away and ran to Father, who physically blocked the officer from Danielle. An altercation ensued, resulting in Danielle's being taken down by two officers, one of whom was scratched several times. Father was subsequently arrested for violating Penal Code section 148, subdivision (a)(1) (resisting, delaying or obstructing a peace officer).
At the jurisdiction hearing, however, Father testified that the police report was false. Father denied arguing with Danielle before the incident. Rather, according to Father, Danielle did not throw the dog and she was actually trying to prevent the dog from going into traffic. He stated he saw nothing to indicate that she intentionally hurt the dog. He further testified that he did not interfere with the police when they began to pursue Danielle. He got involved only after the police tried to subdue her, because he understood—based on family members being police officers—that a male officer is not permitted to touch a female suspect.
Taken as a whole, the evidence was sufficient for the juvenile court to infer that Father knew or reasonably should have known of Danielle's propensity for abuse and her actual abuse of H.F. Our conclusion is consistent with the broad construction of section 300, subdivision (e) employed by other courts. (See, e.g., In re E. H., supra, 108 Cal.App.4th at pp. 669-670 [§ 300, subd. (e) does not require the identification of the individual responsible for abusing an infant where the infant was never out of the care of a parent or a household family member]; In re Joshua H., supra, 13 Cal.App.4th at p. 1729 [§ 300, subd. (e) does not require the parent's actual or constructive knowledge that the child in fact suffered severe physical abuse within the statutory definition].) His actions likewise placed H.F.'s siblings at risk within the meaning of section 300, subdivision (j).
We reject Father's argument that the evidence showed he had no reason to distrust Danielle. To support his argument, Father relies almost exclusively on his own testimony, which the juvenile court expressly found had "little credibility . . . ." Findings of fact and credibility determinations are made by the juvenile court. (In re Jasmine C. (1999) 70 Cal.App.4th 71, 75.) "The reviewing court may not reweigh the evidence when assessing the sufficiency of the evidence. [Citation.]" (Ibid.; accord, In re Matthew S. (1988) 201 Cal.App.3d 315, 321 ["We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court"].) If supported by substantial evidence, we must uphold the juvenile court's findings, even though substantial evidence to the contrary may also exist, and the court might have reached a different conclusion had it determined the facts and weighed credibility differently. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228; In re Tracy Z. (1987) 195 Cal.App.3d 107, 113 ["If there is any substantial evidence, contradicted or uncontradicted, which will support the judgment, we must affirm"].) Guided by these principles, we conclude that substantial evidence supported the juvenile court's jurisdictional findings.
II. Substantial Evidence Supported the Juvenile Court's Disposition Order.
Father challenges two key aspects of the disposition order—the removal of the children from his home and the denial of reunification services. We find no basis to disturb the juvenile court's rulings.
A. Substantial Evidence Supported the Removal Order.
We review for substantial evidence a parent's challenges to a disposition order removing the children from the parent. (Kimberly R. v. Superior Court (2002) 96 Cal.App.4th 1067, 1078; see In re Mark L. (2001) 94 Cal.App.4th 573, 580-581 [although trial court makes findings by the elevated standard of clear and convincing evidence, substantial evidence test remains the standard of review on appeal].) As with the jurisdictional findings, we view the evidence in the light most favorable to the juvenile court's determination, drawing all reasonable inferences in favor of the determination and affirm the order even if there is other evidence supporting a contrary conclusion. (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) Father bears the burden of showing there is no evidence of a sufficiently substantial nature to support the order. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 947.)
The juvenile court ordered the children removed from Father's custody pursuant to section 361, subdivision (c)(1), which provides that a dependent child may not be taken from the physical custody of the parents unless the juvenile court finds by clear and convincing evidence that "[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's . . . physical custody."
A removal order is proper if it is based on proof of parental inability to provide proper care for the child and proof of a potential detriment to the child if he or she remains with the parent. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, disapproved on another ground in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.) The parent's level of denial is an appropriate factor to consider when determining the risk to the child if placed with that parent. (In re Esmeralda B. (1992) 11 Cal.App.4th 1036, 1044 [denial is a factor often relevant to determining whether persons are likely to modify their behavior in the future without court supervision].) Because the focus of the statute is on averting harm to a child, the parent need not be dangerous and the child need not have been actually harmed before removal is appropriate. (In re Cole C. (2009) 174 Cal.App.4th 900, 917; In re Diamond H., supra, at p. 1136.)
Substantial evidence supported the removal order, as it showed that Father's conduct continued to pose a substantial danger to the children. Father never acknowledged the role that his behavior played in H.F.'s injury. He continued to date Danielle, and ultimately moved in with her, even after the dog incident. Though he knew that Danielle had burned H.F. while bathing him, he left H.F. in her care while he went to a party. Even after H.F. had suffered permanent brain injury while under Danielle's care, Father continued to protect her. When H.F. was detained, Father initially failed to disclose Danielle's identity to the police or the Department: he first refused to identify the babysitter's name and address and later claimed that he had left H.F. with a 16-year-old babysitter named Breanna. He also gave conflicting accounts of the other children's whereabouts that evening, initially stating they were with H.F., but later testifying that they were with an aunt all evening. At the jurisdiction hearing, Father still protected Danielle. Though he had ended their relationship, he maintained that the dog incident did not occur as described by the police. He claimed that the dog getting run over was an accident and denied that he had a role in the police confrontation.
In addition, after detention Father refused to cooperate with the Department in connection with its efforts to interview him; he also refused to sign a case plan and to submit to a drug test. Though Father visited the children other than H.F. in November 2010, he did not visit between December 2010 and February 2011. He never visited H.F. in his placement.
"In determining whether a child may be safely maintained in the parent's physical custody, the court may consider the parent's past conduct and current circumstances, and the parent's response to the conditions that gave rise to juvenile court intervention. [Citation.]" (In re Maria R. (2010) 185 Cal.App.4th 48, 70.) Here, evidence of Father's past and current protection of Danielle and denial of responsibility for his actions, coupled with his response to Department intervention, supported the juvenile court's determination to remove the children from his care. In re Henry V. (2004) 119 Cal.App.4th 522, the exclusive case on which Father relies, does not compel a different result. There, the court found insufficient evidence to remove a four-year-old child based on a single incident during which the mother burned the child's buttocks with a curling iron, where there was "ample evidence" that services could have been provided in the home, the mother was "fully cooperative" in taking advantage of the services offered, and there was no indication the juvenile court "understood the necessity of making the dispositional findings on clear and convincing evidence." (In re Henry V., supra, at pp. 529, 530.)
Here, in contrast, given evidence of Father's consistent denial of responsibility, there is no indication of what services could have resulted in adequate protection. Moreover, Father did not cooperate with the Department and the juvenile court fully understood the import of its findings. At disposition, the juvenile court explained that Father's lack of understanding that he did anything inappropriate remained a primary concern: "Instead of saying, 'Boy, did I miss it. Boy, did I screw up. I almost got my child kill[ed] by staying with this person,' [Father] continues to defend her today. He still seems to have no concerns that [H.F.] was burned. He completely defends what happened with the dog in spite of his mother's statement, in spite of the police statements. It's very, very concerning. Not only do I believe he knew or should have known before this, but then even after[] months, and months afterwards, and this is— we're four months past what happened to [H.F.] and the response is still what it is." Substantial evidence supported the juvenile court's removal order.
B. Substantial Evidence Supported the Denial of Reunification Services.
"Section 361.5, subdivision (b) symbolizes the Legislature's recognition of the fact that it may be fruitless to provide reunification services under certain circumstances." (Deborah S. v. Superior Court (1996) 43 Cal.App.4th 741, 750.) The juvenile court denied reunification services pursuant to section 361.5, subdivision (b)(5) as to H.F. and pursuant to subdivision (b)(6) as to the other children. (See Deborah S. v. Superior Court, supra, at p.748 ["pursuant to section 361.5, subdivision (b)(6), a parent who, by act or omission, deliberately inflicts severe physical harm on one child is not necessarily entitled to services to reunify with that child or any other child who has been adjudged a dependent under section 300 as a result of such abuse"].)
Father does not challenge the juvenile court's order under section 361.5, subdivision (b)(5), which allows the juvenile court to deny a parent reunification services if 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." (§ 361.5, subd. (b)(5); see also In re Joshua H., supra, 13 Cal.App.4th at p. 1732 ["the Legislature intended subdivision (b)(5) of section 361.5 to apply to the parent who, knowing the actual abuser, knows or reasonably should have known that the other person was physically mistreating the child"].) He contends only that substantial evidence did not support the denial of reunification services under section 361.5, subdivision (b)(6) because he was not the perpetrator of the abuse.
Section 361.5, subdivision (b)(6) permits the juvenile court to deny reunification services where it finds by clear and convincing evidence "[t]hat the child has been adjudicated a dependent pursuant to any subdivision of Section 300 as a result of severe sexual abuse or the infliction of severe physical harm to the child, a sibling, or a half sibling by a parent or guardian, as defined in this subdivision, and the court makes a factual finding that it would not benefit the child to pursue reunification services with the offending parent or guardian . . . . [¶] . . . [¶] A finding of the infliction of severe physical harm, for the purposes of this subdivision, may be based on, but is not limited to, deliberate and serious injury inflicted to or on a child's body or the body of a sibling or half sibling of the child by an act or omission of the parent or guardian, or of another individual or animal with the consent of the parent or guardian . . . ." We review an order denying reunification services pursuant to section 361.5 for substantial evidence. (Amber K. v. Superior Court (2006) 146 Cal.App.4th 553, 560; In re Harmony B. (2005) 125 Cal.App.4th 831, 839.)
In concluding that section 361.5, subdivision (b)(6) applied, the juvenile court emphasized that the statute allowed a finding of severe physical harm to be based on an act or omission of the parent. The juvenile court reasoned: "I think that father's omission here in regards to leaving this child, even as he puts it on the witness stand he left it in the house, the adults should know that they're in charge of this child. And [he] indicated that the primary caretaker was going to be the girlfriend, who had already killed a living being, based on the fact that she was jealous of father taking the children to a medical appointment, is clearly the omission which caused this child to be injured."
Case law construing section 361.5, subdivision (b)(6) supports the juvenile court's conclusion that reunification services may be denied under that provision when the parent does not physically inflict physical harm but enables the child to be harmed through an omission to act. For example, in Amber K. v. Superior Court, supra, 146 Cal.App.4th 553, the juvenile court denied family reunification services to a mother who permitted the father, a known child molester, to stay overnight in the family home when he was released from prison. During the overnight visit, he molested another child. The appellate court denied the mother's petition for extraordinary writ because she had impliedly consented to the sexual abuse of her second child. The court reasoned that "[b]y its express terms, section 361.5, subdivision (b)(6) applies to a parent who gave actual or implied consent to the sexual abuse of the child by another person, as well as to the parent who was the actual perpetrator of the sexual abuse." (Id. at p. 561.)
In another example of injury by omission, the court in Pablo S. v. Superior Court (2002) 98 Cal.App.4th 292 affirmed the denial of reunification services pursuant to section 361.5, subdivision (b)(6) to parents whose six-year-old son had broken his femur in a scooter accident. During the two months following the accident, the parents failed to obtain medical treatment for the child even though he had difficulty walking, often cried in pain and his leg began to heal in a deformed position. (Pablo S. v. Superior Court, supra, at pp. 294-295.) Observing that the parents' assertion they were unaware that the child required medical attention was not credible, the court reasoned that "[i]n light of [the child's] constant pain and the disfigurement that resulted from the broken leg, the parents' failure to provide medical attention constituted the infliction of serious injury by omission." (Id. at p. 301.)
We are not persuaded that a different construction of section 361.5, subdivision (b)(6) is required by the two cases on which Father relies. He contends that In re Kenneth M. (2004) 123 Cal.App.4th 16 and Tyrone W. v. Superior Court (2007) 151 Cal.App.4th 839 limited the application of the statute to a parent who has physically perpetrated a severe act of abuse. We do not read the cases so broadly. In In re Kenneth M., a child suffered abuse either at the hands of the parents or an unknown caretaker, and the appellate court reversed the denial of reunification services as to the child's sibling on the ground that section 361.5, subdivision (b)(6) required the identification of the perpetrator and also required certain factual findings not made by the juvenile court. (In re Kenneth M., supra, at p. 21.) In reaching this conclusion, though the court stated that the statute applied "to the parent who inflicted severe physical harm to the minor," (ibid.), it did not limit the infliction of such abuse to an act rather than an omission. Indeed, as explained in Amber K. v. Superior Court, supra, 146 Cal.App.4th at page 562, "we agree with the Kenneth M. court that section 361.5, subdivision (b)(6) applies to the actual perpetrator of the abuse, and also note that Kenneth M. did not restrict the application of subdivision (b)(6) to the actual abuser. In other words, Kenneth M. does not support mother's contention that she was not an offending parent within the meaning of subdivision (b)(6) simply because she was not the perpetrator."
In Tyrone W. v. Superior Court, supra, 151 Cal.App.4th 839, after an infant died of sudden infant death syndrome, the medical examiner discovered she was suffering from several two-week old rib fractures that were deemed suspicious and "'likely indicative of child abuse.'" (Id. at p. 844.) After the infant's sibling was found to be a child described by section 300, subdivisions (b) and (j), the juvenile court denied reunification services to the parents pursuant to section 361.5, subdivision (b)(6). (Tyrone W. v. Superior Court, supra, at p. 845.) Reversing the denial of reunification services, the court examined the evidence showing that the infant's injuries were not visible and there were no signs of injury; nor was there any evidence to show that, if one parent had inflicted injury on the infant, the other parent knew about it. (Id. at pp. 851 -852.) Given those circumstances, the court stated: "We do not believe section 361.5, subdivision (b)(6) applies to a parent who 'reasonably should have known' of the abuse because that parent was not complicit in the infliction of physical harm by act, omission or consent. 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.)
The Tyrone W. court acknowledged, however, that "[s]ection 361.5, subdivision (b)(6) is not limited to the parent or parents whose act directly caused the child's injury" and cited both Amber K. v. Superior Court, supra, 146 Cal.App.4th 553 and Pablo S. v. Superior Court, supra, 98 Cal.App.4th 292 as examples of the "proper application of subdivision (b)(6) to deny reunification services to a parent who inflicted the child's injury by omission or consent." (Tyrone W. v. Superior Court, supra, 151 Cal.App.4th at p. 851.) Ultimately, the Tyrone W. court affirmed the denial of reunification services on the ground that the sustained allegations under section 300, subdivision (j) showed more than negligence. (Tyrone W. v. Superior Court, supra, at p. 854.) Here, the evidence likewise supported the juvenile court's determination that Father's conduct amounted to the type of omission or consent required for the application of section 361.5, subdivision (b)(6). Father knew Danielle had killed in anger and knew that she had recently burned H.F., yet made the decision to leave him in her care when he went to a party. Substantial evidence supported the denial of reunification services under section 361.5, subdivision (b)(6).
C. Father Failed to Overcome the Presumption That He Was Not Entitled to Receive Reunification Services.
"'Once it is determined one of the situations outlined in [section 361.5] subdivision (b) applies, the general rule favoring reunification is replaced by a legislative assumption that offering services would be an unwise use of governmental resources. [Citation.]'" (Renee J. v. Superior Court, supra, 26 Cal.4th at p. 744; In re Ethan N. (2004) 122 Cal.App.4th 55, 65.) Section 361.5, subdivision (c) reflects that presumption, providing that "the court shall not order reunification in any situation described in paragraph (5) of subdivision (b) unless it finds that, based on competent testimony, 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." The statute further provides that "[t]he court shall not order reunification for a parent or guardian described in paragraph . . . (6) . . . of subdivision (b) unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child." (§ 361.5, subd. (c).) The burden is on the parent to establish the exceptions under section 361.5, subdivision (c). (In re William B. (2008) 163 Cal.App.4th 1220, 1227.)
The juvenile court concluded that Father had not met his burden to show that reunification was likely to prevent further abuse or that the failure to reunify would be detrimental to H.F.; nor had he shown by clear and convincing evidence that reunification was in the children's best interests. We defer to the juvenile court's determination under section 361.5, subdivision (c), reviewing it for an abuse of discretion. (In re William B., supra, 163 Cal.App.4th at p. 1229; see In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 ["'[E]valuating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling. . . . Broad deference must be shown to the trial judge'"].)
In finding that Father had not met his burden under section 361.5, subdivision (c), the juvenile court indicated that it had reviewed the Department's reports and considered Father's testimony. As to H.F., Father offered no evidence to show that services would likely prevent reabuse or that the failure to try reunification would be detrimental to H.F. To the contrary, Father consistently refused any services from the Department, denied his role in H.F.'s injury and defended Danielle against allegations concerning her violent behavior. Father offered no testimony to suggest that reunification services would be effective to modify his behavior in the future. The Department reported that Father had contacted the Department only once to request visitation, but then failed to appear for a scheduled appointment. (See Raymond C. v. Superior Court (1997) 55 Cal.App.4th 159, 164 [under § 361.5, subd. (c), parent bears the burden of showing why juvenile court should order reunification; it is not the Department's burden to prove services would be unsuccessful].) Nor did Father offer evidence to show that the absence of reunification would be detrimental to H.F. He did not show that H.F. was closely and positively attached to him. Rather, the evidence showed that Father had not visited H.F. since he was detained.
Similarly, Father offered no evidence to show that it was in the other children's best interests to offer reunification services. In determining whether reunification is in a child's best interests, the court may consider the parent's current efforts, fitness, and history; the seriousness of the problem that led to the dependency; the strength of the parent-child and caretaker-child bonds; and the child's need for stability and continuity. (In re William B., supra, 163 Cal.App.4th at p. 1228.) A best interests finding requires a likelihood reunification services will succeed—"[i]n other words, there must be some 'reasonable basis to conclude' that reunification is possible before services are offered to a parent who need not be provided them. [Citation.]" (Id. at pp. 1228-1229.) Here, Father had exhibited no effort to engage in reunification, and he failed to demonstrate any insight into how his behavior had contributed to the dependency proceedings. While he had infrequently visited the children, they were adjusting well in the home of W.A.'s grandmother and she was willing to provide a permanent home for them. In view of this evidence, the juvenile court properly exercised its discretion to find Father had not met his burden under section 361.5, subdivision (c).
DISPOSITION
The jurisdiction and disposition orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______, Acting P. J.
DOI TODD
We concur:
______, J.
ASHMANN-GERST
______, J.
CHAVEZ