In re F.W.

Full title: In re F.W., a Person Coming Under the Juvenile Court Law. STANISLAUS…

Court: COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Date published: Feb 26, 2018

No. F075570 (Cal. Ct. App. Feb. 26, 2018)

Opinion

F075570

02-26-2018

In re F.W., a Person Coming Under the Juvenile Court Law. STANISLAUS COMMUNITY SERVICES AGENCY, Plaintiff and Respondent, v. J.W., Defendant and Appellant.

Richard L. Knight, under appointment by the Court of Appeal, for Defendant and Appellant. John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.

GOMES, J.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 517785)

OPINION

APPEAL from orders of the Superior Court of Stanislaus County. Ann Q. Ameral, Judge. Richard L. Knight, under appointment by the Court of Appeal, for Defendant and Appellant. John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.

-ooOoo-

J.W. (father) appeals from orders declaring his now two-year-old son, F.W., a dependent under Welfare and Institutions Code section 300, subdivisions (b) and (e),¹ and removing him from parental custody under section 361, subdivision (c)(1). Father contends these orders were an improper exercise of the juvenile court's emergency jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA or Act), Family Code section 3400 et seq. He further contends the juvenile court erred in making jurisdictional findings as to him and by citing the incorrect statute when denying him, a previously noncustodial parent, custody of F. Finally, he asserts there is insufficient evidence that it would be detrimental to place F. with him. Finding no reversible error, we affirm.

1 Undesignated statutory references are to the Welfare and Institutions Code.

FACTUAL AND PROCEDURAL BACKGROUND

In the early hours of November 7, 2016, the Stanislaus County Community Services Agency (Agency) received a referral from Emmanuel Hospital that 13-month-old F. had a subarachnoid hemorrhage (brain bleed), a left cranial fracture, a left mastoid bone fracture, redness on the tip of his penis, and a rash. F.'s mother, Julia L. (mother), and maternal grandmother, Sandra A., brought him to the hospital and said he fell down three stairs while in the care of maternal grandmother's boyfriend, Manuel T. (Manuel). The doctor was concerned because the injuries were not consistent with a fall, as there was no bruising on the legs or other extremities. F. was transported to Valley Children's Hospital (VCH) for treatment. Later that morning, the Agency received an update from VCH that F. had an old frontal skull fracture and old bruising on both cheeks.

When a social worker interviewed mother by phone, she said that F. fell. Maternal grandmother got on the phone and said that she and mother were upstairs when the incident occurred and Manuel was downstairs with F. Social workers went to the family's home and spoke with Manuel, who said he left F. unattended for a short period of time while mother and maternal grandmother were upstairs and he thought F. climbed on the couch and fell and hit the coffee table, but he did not see it. Manuel knew something happened because F. was on the floor crying in front of the couch next to the coffee table. It was not immediately apparent to Manuel that F. hit his head - they discovered the bulge on his head two to three hours later. Manuel said that F. was always crying and he did not see mother discipline him, but she may have done so behind closed doors.

VCH social worker Leticia Orta provided the social workers with copies of records and reports. Dr. Fred Laningham of VCH read a CT scan of F.'s head that had been performed at Emmanuel. The CT images showed (1) a "coronally oriented fracture through the left calvarium that ascends from the anterior temporal bone region, upward into the frontal region that is an acute fracture"; (2) a "second lucency above the left coronal suture that could be an older fracture"; and (3) "[m]ore convincingly, there is a linear fracture in the right frontal bone, coursing from the supraorbital area to the right coronal suture, in a right paramidline position that seems to represent an additional fracture, age indetermina[te]." Under "Impression," Dr. Laningham wrote: "Acute fracture of the left anterior temporal bone ascending upward in a coronal plane in the left calvarium. There is extracranial hematoma and possibly some subarachnoid hemorrhage in the left frontal sulci. The patient has a lucency above the left coronal suture that is indeterminate for prior injury. There is a linearity in the right frontal bone, coursing from the right supraorbital region to the coronal suture that may be an older fracture. The fact that there may be multiple skull fractures in these ages might be different is a bit CONCERNING for repetitive trauma."

A bone survey was performed at VCH on November 7, 2016, and read by Dr. Michael R. Myracle. Dr. Myracle noted the bone survey included two views of the skull which showed a "linear lucency on the right side extending forward from the lambdoid suture and there is a diastatic vertical fracture on the left side in the parietal bone. The linear lucency on the right side could be a fracture and it might be of a different age than the current abnormality but I can't tell. Alternatively it may be a developmental fissure. Please correlate clinically. Follow-up radiographs may be useful." Under "Impression," Dr. Myracle wrote: "Vertical mildly diastatic left parietal fracture plus linear radiolucency extending forward from the right lambdoid suture which might be a fracture and might be older. Follow-up radiographs may be useful. 2 weeks would be a reasonable time interval . . . The CT also shows a possible right frontal skull fracture of uncertain age. This is not well visualized on these radiographs. Scalp swelling is definitely evident on the left." The rest of the bone survey was negative.

F. was found to have the following injuries that were highly concerning for non-accidental injury: (1) ecchymoses on the glans of the penis that appeared to be the result of forcible traumatic injury; (2) acute fracture of the left anterior temporal bone ascending upward in a coronal plane in the left calvarium; (3) extracranial hematoma and possibly some subarachnoid hemorrhage in the left frontal sulci; (4) a linear fracture in the right frontal bone, coursing from the supraorbital area to the right coronal suture, noted to be an older injury; (5) multiple bruises; and (6) bilateral toe injuries.

The social workers interviewed maternal grandmother, who said she was in a relationship with Manuel and expecting a child with him. She said that she and mother were upstairs when Manuel came upstairs and said that F. hit his head. Manuel told maternal grandmother that he had stepped out of the room for a minute and when he returned, he found F. face down on the hardwood floor. Maternal grandmother said they comforted F. and he fell asleep. They woke him up 20 to 30 minutes later. Maternal grandmother left the home to pick up her son from a relative's home and when she returned, she saw that the left side of F.'s head was swollen.² She scolded mother and Manuel and immediately took F. to the hospital. She agreed with the social worker that Manuel's explanation was not consistent with the severity of F.'s injury; she did not think it was possible that F. fell from the couch because he did not crawl on top of the couch. Maternal grandmother said that mother was developmentally delayed and had microcephaly, and mother had lived with father in Arkansas, but father had not seen mother or F. in five months.

2 Two other children lived in the home - maternal grandmother's 13-year-old son and nearly three year-old daughter, whose father is Manuel.

F.'s attending physician at VCH interviewed mother and maternal grandmother together. Maternal grandmother gave the same account as the one given to the social worker. She believed F.'s facial bruising might be from her nearly three-year-old daughter, who she said bullied F. and may have bitten him; she first noticed the bruise on the left cheek a week before and the right one the day before. Maternal grandmother did not know how F. obtained his penile injury, as she did not change his diapers, or how the toenails became injured, although he could have opened the door on his toes.

The social worker spoke with a Turlock Police Department detective on November 9, 2016, who said that Manuel admitted he threw F. in the air and dropped him. The social worker spoke with mother, who said she had not had any contact with father since July. Mother told the social worker that she and father were not getting along and argued a couple of times. Mother claimed it was she, not father, who cared for F. The social worker noted that a temporary restraining order protecting mother had been issued against father on June 21, 2016 in Stanislaus County.

F. was discharged from VCH on November 9, 2016, and released to his maternal great-aunt. Orta told the social worker that F. had an appointment scheduled on November 23, 2016 for follow-up x-rays.

Dr. Philip W. Hyden, the Child Advocacy attending physician, interviewed mother and maternal grandmother, examined F., and reviewed records, including the imaging reports and actual images, including the actual CT and x-rays. In his November 9, 2016 report, Dr. Hyden noted that mother was developmentally delayed and had a limited ability to discuss F.'s injuries. Maternal grandmother offered possible scenarios for how F.'s injuries occurred, but she was not certain of the etiology of any of the injuries. She recalled that F. had fallen off the couch a month before and she took him to Emmanuel, but the hospital's medical records do not document a fall and mention only that F. had been tugging at his ears. Maternal grandmother also said her two-year-old daughter had bitten F. on his left check and was rough with him. Maternal grandmother denied leaving F. with Manuel, but then stated F. fell while Manuel was watching him. Dr. Hyden noted that the histories Manuel offered had varied.

Dr. Hyden stated that the penile injury was not observed until F. was evaluated at Emmanuel before being transferred to VCH and appeared to be the result of forcible traumatic injury. The injury appeared to be acute and related to the acute head injury involving the left skull fracture. Dr. Hyden stated that F. also had a frontal fracture of the skull, unrelated to the acute left skull fracture, which "may be older than the acute left skull fracture"; the fractures did not appear to have occurred from a single impact episode. F. also had an abrasion on the left abdominal region, as well as bilateral great toe injuries involving trauma to the nail beds. Dr. Hyden noted that F. had undergone a skeletal survey, which revealed no other fractures besides the skull fractures.

Discussions with the Agency and law enforcement indicated concern that the histories were discrepant and inconsistent with F.'s injuries. Throwing F. into the air and dropping him would not explain the other skull fracture or the penile injury. Dr. Hyden opined that, at a minimum, F. sustained his injuries due to mother's lack of supervision, who may not be adequately able to care for F. without supervision herself, and maternal grandmother's lack of supervision, who might need assistance to care for mother, F., and her other children. There was a "high suspicion for non-accidental trauma," as Manuel had offered at least three different scenarios for F.'s head injury and was the last person alone with F. before his evaluation at Emmanuel. No explanation had been given for the penile injury and no report of its prior existence was confirmed. Dr. Hyden recommended that F. return to VCH in two weeks for a follow-up visit to the Child Advocacy Clinic. At that time, a repeat radiographic four-view evaluation of the skull would be performed to monitor healing of the existing fractures.

The Dependency Petition and Detention Hearing

A petition was filed on November 17, 2016, which alleged F. came within the provisions of section 300, subdivisions (a) (serious physical harm), (b)(1) (failure to protect), (e) (severe physical abuse of a child under five) and (g) (no provision for support). The allegations under subdivisions (a) and (e) were based on F.'s injuries and the assessment by medical professionals that the explanations given did not match the injuries and several of the injuries were highly suspicious for non-accidental trauma.

Under section 300, subdivision (b)(1), the petition alleged F. had suffered, or there was a substantial risk he would suffer, serious physical harm or illness as a result of parental failure or inability to adequately supervise or protect him, as shown by his injuries that were highly concerning for non-accidental trauma and the history of domestic violence between mother and father; the willful or negligent failure to adequately supervise or protect F. from the conduct of the custodian with whom he had been left, as F. was injured while in Manuel's care; the willful or negligent failure to provide F. with adequate medical treatment, as there was a delay in seeking medical treatment after F.'s most recent injury; and mother's inability to provide regular care for F., as her developmental disability affected her ability to adequately supervise F. The subdivision (g) allegation stated that father's whereabouts were unknown.

Mother was present at the November 18, 2016 detention hearing; the juvenile court appointed an attorney and guardian ad litem for her. The court found father to be the presumed father and that the Agency had exercised due diligence to attempt to locate and notify him. The court ordered F. detained and set a jurisdiction/disposition hearing for January 19, 2017.

The Assertion of Emergency Jurisdiction Under the UCCJEA

The social worker mailed a letter to father on November 23, 2016, notifying him of the juvenile court proceedings and asking him to call her. On December 1, 2016, Haley Smith, an Arkansas attorney who represented father in an Arkansas domestic relations case, spoke with the social worker. Smith believed Arkansas had jurisdiction over the dependency case, as F. was born in Arkansas and the family lived in Arkansas until they left to visit California in April 2016. According to Smith, an altercation occurred between father and mother around the end of May, and father decided to return to Arkansas, while mother remained in California with F. Immediately upon his return to Arkansas, father filed for divorce and custody of F. At the same time, mother filed for custody in Stanislaus County, but mother did not properly serve father with notice of the proceedings. Smith provided custody orders from Arkansas, which had been properly served on mother, that stated father had full custody of F. Smith was preparing a packet of documents to send to Stanislaus County Superior Court Judge Alan Cassidy, asking him to give full faith and credit to the Arkansas orders, which Smith sent to the social worker.

The documents Smith provided included a brief that was intended to provide the necessary information to determine which of the two contradicting child custody and visitation orders should control. In the statement of facts, Smith related that mother and father were married in California in February 2015 and moved to Arkansas in April 2015, where they lived with the paternal grandparents. F. was born in Arkansas in September 2015 and shortly after F.'s birth, maternal grandmother, Manuel, and their young daughter, came to Arkansas from California to visit. Mother, father, and F. traveled to California in April 2016 to visit mother's family and stayed at maternal grandmother's home. While on a walk on May 26, 2016, mother and father had a disagreement; thereafter, maternal grandmother refused to allow father to stay at her house, so father went to stay with his stepsister in Ceres. On June 4, 2016, mother took F. to visit father at his stepsister's home. While they agreed that father would return F. to mother in a week, three days later, mother came to the stepsister's home, grabbed F. while father was outside, jumped into a car, and drove away with F. on her lap. Stepsister's family contacted the Ceres police and filed a police report. The following day, June 8, 2016, father returned to Arkansas, leaving mother and F. in California.

On June 16, 2016, mother filed requests for a domestic violence restraining order, child custody and visitation, and a no travel order, in Stanislaus County. She listed father's address as Ceres, California. Judge Cassidy signed a temporary restraining order on June 21, 2016, which was to expire on July 11, 2016. Father, however, was never served with the restraining order or other documents, although a proof of service was filed that stated father was personally served by Manuel on July 29, 2016, in Ceres, at an address one number off from stepsister's address. On August 1, 2016, Judge Cassidy granted joint legal custody to both parents and sole physical custody to mother.

Meanwhile, on June 30, 2016, father filed a complaint for divorce in the Circuit Court of Searcy County, Arkansas, in which he asked for custody of F. Mother was personally served with the complaint on July 14, 2016 by the Stanislaus County sheriff, and the proof of service was filed in the Arkansas action. Mother failed to respond to the complaint and on August 26, 2016, a hearing was set for October 3, 2016. After the Stanislaus County Sheriff's Office had made three unsuccessful attempts to serve mother with the notice of hearing, the sheriff completed an affidavit of unsuccessful service and declaration of diligence on September 15, 2016, which was sent to the Arkansas court.

On September 7, 2016, father received a notification letter from the Stanislaus County Department of Child Support Services (child support services), which stated that mother had opened a child support case and asked him to complete and return certain documents. After father told Smith about the documents, Smith spoke with a representative from child support services on September 28, 2016, and learned for the first time about mother's August 1 child custody and visitation orders. The child support services representative was not aware of the pending Arkansas divorce action. Smith and the child support representative exchanged documents from each proceeding.

A hearing was held on October 3, 2016 in the Arkansas divorce proceeding, at which father, but not mother, appeared. Testimony and evidence was received pertaining to mother's alleged personal service on father. In an October 26, 2016 order, Judge Michael Murphy of the Circuit Court for Searcy County, Arkansas, Domestic Relations Division, found that mother's alleged personal service on father was ineffective, granted father physical custody of F., and ordered mother to pay child support. Father learned of the current dependency case when he received the Agency's notification on November 23, 2016.

In her brief, Smith asserted that Arkansas was the only state that had jurisdiction over the parties' divorce due to the residency requirements for Arkansas and California, and Arkansas was F.'s home state under the UCCJEA, which was codified in California and Arkansas. Smith asked that the orders in the Stanislaus County child custody action be vacated, and the Arkansas order be given full faith and credit, and enforced in both states.

The social worker spoke with father on December 5, 2016. Father claimed that he had been F.'s primary caregiver since F.'s birth and he wanted F. returned to him.

Based on her conversations with Smith and father, the social worker subsequently filed a motion to discuss jurisdictional issues, which was heard on December 13, 2016. At the hearing, the juvenile court judge, the Honorable Ann Q. Ameral, stated she had scheduled a conference with the Arkansas judge for the following day on the UCCJEA issues, but she believed Arkansas had continuing jurisdiction in the matter. Smith appeared telephonically at the hearing, but father was not present. Judge Ameral believed it was prudent to take emergency jurisdiction under the UCCJEA until the conference with the Arkansas judge the following day. Smith stated she did not object to this.

At the December 14, 2016, telephonic conference, Judge Ameral spoke with Judge Murphy. Also present were County counsel, F.'s attorney, and mother and her attorney. Smith appeared telephonically. Judge Ameral explained her position: she thought it was clear that Arkansas had home state jurisdiction over the matter, but she was concerned about how to handle the case to ensure F. was not subjected to any further physical injuries, due to the serious injuries F. sustained while in mother's care and Dr. Hyden's concern about F.'s older skull fractures. According to County counsel, Dr. Hyden told the social worker that it was not possible to determine the date of the older skull fracture because it had healed and he felt uncomfortable giving a time frame for the injury with a medical certainty. Judge Ameral stated that if not for the older skull fractures, she would immediately return F. to father's care. Her only concern was making sure father was not responsible for any injuries.

Judge Murphy suggested that Arkansas's Department of Human Services (DHS) be contacted to see if it was willing to open a case, so it could determine what safeguards needed to be in place so F. could be returned to Arkansas. It was agreed that Smith would initiate contact with DHS, as Judge Murphy was leaving the bench at the end of the year. Judge Ameral continued emergency jurisdiction over the matter, and set a further hearing on the UCCJEA issue for January 13, 2017.³

3 Subsequent references to dates are to dates in 2017.

At the January 13 hearing, Judge Chris Carnahan, who took over for Judge Murphy, appeared telephonically, along with Arkansas DHS attorney, Rita Atkinson, and father's Arkansas attorney, Smith. Also appearing were the social worker, County counsel, F.'s attorney, and mother and her attorney and guardian ad litem. Atkinson stated that Arkansas DHS did not file a petition in this matter, as it did not see a need for court involvement since there was an open domestic relations case before Judge Carnahan, and DHS was going to order a supportive services case to monitor the family and assist in providing services if needed. Atkinson believed that if a DHS petition were needed, a motion to transfer the case from California to Arkansas would be required.

Judge Ameral did not believe there was a vehicle to transfer the case from one state to another and explained her difficulty - that it appeared F. had been physically abused, but there was no way to ascertain whether the abuse occurred at the hands of mother or father. Given that California can exercise only emergency jurisdiction over F., Judge Ameral hoped Arkansas would file a petition. Atkinson responded that the DHS might be in a position to file a petition if father did not cooperate with the supportive services plan and comply with services, but there were no acts that occurred in Arkansas that would support a petition.

Judge Ameral believed there were two viable options: (1) continue with emergency jurisdiction in California until the California court could be assured F. was safe; or (2) return F. to Arkansas, but only if Arkansas DHS filed an abuse and neglect action and removed F. from both parents pending further investigation. Mother's attorney asked that California maintain emergency jurisdiction. Smith asked that F. be returned to Arkansas and stated father was willing to cooperate with any DHS case, investigation, or requirements. Judge Carnahan asked Atkinson whether DHS was able to determine what needed to be done to return F. to Arkansas should California retain emergency jurisdiction. Atkinson responded there was no basis to file a petition, as none of the acts occurred in Arkansas and F. was in California. Atkinson added that if they knew father was in "a good place," she would support opening a supportive services case and monitoring, but she did not see a basis for it. Atkinson was willing to check with their central office to see if she was missing something. Judge Ameral continued California's emergency jurisdiction over F., reset the jurisdiction hearing for January 27, with further conference on the UCCJEA issue to be held first.

The same parties appeared for the January 27 hearing. Atkinson confirmed that Searcy County would not file an emergency petition since F. was not in Arkansas. Based on that, Judge Ameral did not know what else she could do other than assert emergency jurisdiction over F. At first Judge Carnahan believed that, unless something further developed, father should be given custody of F., as Judge Murphy had determined he was a fit parent and there was no determination on who had inflicted the older injuries. Judge Ameral reiterated her concern that the older injuries could have been inflicted while F. was living with mother and father. Judge Carnahan was concerned how father was going to work through the California system to obtain custody of the child over whom he already had custody. Judge Ameral explained that father could still potentially obtain custody of F. even if jurisdiction were taken and F. adjudicated a dependent under emergency jurisdiction, and father was entitled to engage in services in Arkansas. Judge Carnahan understood and did not necessarily disagree with Judge Ameral's decision from her viewpoint, although he was concerned about his court's ability to enforce Judge Ameral's orders.

Smith asked if there was an updated injury report that verified the older injuries, as the only information she could find was the report which stated that the linear lucency on the right side could be a fracture and might be a different age, but the doctor could not tell. County counsel responded that she and the Agency had a phone consultation with Dr. Hyden and he was going to provide the Agency with follow-up clinical notes that included updated medical information, as well as his opinion regarding the injuries. Judge Ameral ordered the updated information provided to Smith and the other attorneys, adding that she had only taken emergency jurisdiction and father had every right to be represented by counsel in California.

Judge Carnahan did not believe he needed to continue his participation in the proceedings since Judge Ameral was exercising emergency jurisdiction. Judge Ameral set a hearing for February 7 to determine whether to appoint a California attorney for father, and set a contested jurisdiction and disposition hearing for March 20 and 21. At the February 7 hearing, at which father and Smith appeared telephonically, the juvenile court appointed an attorney for him.

The First Amended Petition

The Agency filed a first amended petition on March 14, which removed the allegations under section 300, subdivisions (a) and (g). Added to the petition was an allegation under section 300, subdivision (b)(1) that the history of engaging in domestic violence was based on reports by both parents that the other was physically violent toward them, as well as the June 21, 2016 temporary restraining order that mother was granted.

Identical allegations were added to subdivision (b)(1) and (e) that on January 27, Dr. Hyden noted the following concerns: (1) he was not able to date the skull fractures, which could have occurred any time prior to November 7, 2016, but the left temporoparietal skull fracture appeared to be acute and more recent due to the swelling, and the skull fractures were highly concerning for non-accidental trauma and, at a minimum, they indicated inadequate supervision; (2) he was also concerned that Emmanuel's records did not note any type of injury, despite the family's report, and although the family reported a "sunken in" spot on F.'s skull, the skull fractures were not depressed skull fractures; (3) the toe injuries were inconsistent with the family's explanation that he injured them while playing with the door and he would testify to a reasonable degree of medical certainty the toe injuries were non-accidental trauma; and (4) there was no reported history that would explain the penis and scrotal region injuries, and he would testify with a reasonable degree of medical certainty that they resulted from non-accidental trauma.

The Social Worker's Report

In the report prepared for the jurisdiction and disposition hearing, the Agency recommended that F. be adjudged a dependent and reunification services be provided to mother and father. F. was seen by Dr. Hyden on November 23, 2016, for a follow-up appointment and radiographs to check progress. The bruising on the penis and the facial hematomas had healed. Dr. Myracle reported the results of the radiographs. He observed both the vertical skull fracture in the left frontal bone and the vertical left parietal skull fracture, and stated that the scalp swelling had resolved. Dr. Hyden saw F. again on January 11 - he assessed the skull fracture and the contusions on the toes with damage to the nails. Dr. Hyden concluded that F. was doing much better. F. was eligible for regional center services as he was a "high risk" because of the skull fracture and mother's microcephaly. F. was receiving Early Start services and was to begin receiving once weekly services for fine motor skills and communication.

On December 2, 2016, the social worker placed a call to father, which paternal grandmother answered. Father was at work. Paternal grandmother said that father lived with her and her husband, and mother stopped communicating with them after father returned to Arkansas on June 8, 2016. The social worker asked if father had any issues with reading or understanding, or whether he was in special education when he was in school. Paternal grandmother replied that he was "a little slow and was slow to learn to read and write." She thought he might have been in resource or special education classes, but she was not sure.

Paternal grandmother said she and father were F.'s main caregivers, and F. was three months old before mother would even give him a bath. She related an incident in which F. was fussy while mother was giving him a bath and when she stepped in to help mother, she discovered the water was cold. Mother and father left Arkansas when F. was about seven months old. Paternal grandmother persuaded mother to take father with her for F.'s safety. When they left, they planned to return after a few months. According to paternal grandmother, father denied he was ever violent toward mother and said mother had been violent toward him. Paternal grandmother had seen scratch marks on father that mother inflicted. She provided her email address to the social worker. The social worker sent a test email to paternal grandmother, who sent a reply email which stated, "You got it right!"

The social worker spoke with father by telephone on December 5, 2016. Father said he had been very worried about F. and asked what happened to him. The social worker explained what led to the Agency's involvement and father said he was very concerned. The social worker noted she could hear people in the background telling father what to say, who the social worker confirmed were father's parents. Father agreed to allow the social worker to discuss the case with his parents and said he preferred it. Paternal grandmother explained that she usually helped father "with these types of things." The social worker verified father's address.

Father told the social worker he visited California in April and returned to Arkansas on June 8, 2016. When asked about the altercation that occurred before he returned to Arkansas, father said he and mother were having a conversation about returning to Arkansas when mother became angry and scratched him. Father denied hitting her and said the police were not involved and no one was arrested. Father said he did not know about the restraining order and was never served properly in mother's custody proceedings.

Father claimed to have been F.'s primary caregiver, and said mother did not touch F. until he was four months old. Father had to teach mother how to care for F. Father participated in a young moms class that was offered through the hospital. Father acknowledged there had been domestic violence in his relationship with mother, but it was always mother being violent toward him. Father said mother had choked him, threatened him with knives or scissors, and scratched him. Father denied ever physically retaliating and said he had to protect F. from mother. Father recalled an incident where mother almost dropped F. Police had never been involved in their domestic violence incidents.

Father said that until mother stayed in California, she had never been left alone with F. If he was not home, paternal grandmother and grandfather were with mother. He and mother were still attending the young moms class when they left for California. Father worked full-time at Walmart Monday through Friday, and he worked weekends if he was needed to cover a shift. If F. were in his care, he would take good care of him, and paternal grandmother and grandfather would be there to help care for F., just as they did before he and mother came to California.

The social worker interviewed mother on January 9. Mother claimed she was F.'s primary caretaker and father did not want to help, although he occasionally changed diapers and fed F. Mother said they got into lots of fights and yelled at each other. Once father choked her, but he did not physically harm her. Mother said father was "mean" because when F. cried, he would tell him to "shut up." She had never seen father hit F. Mother did not remember a lot about the May 2016 incident with father, but she thought he punched her in the stomach. When asked about the incident where she took F. from father's care, mother said she grabbed F. because she did not want father to take him to Arkansas. Mother did not know that father returned to Arkansas after this incident, but she assumed he did.

Mother said they took F. to the emergency room in October 2016 because he had a bump on his head and was tugging at his ears. They told the doctor about both issues and were told nothing was wrong, and F.'s head was just growing. Mother recalled the bump felt like a soft spot. Mother admitted it was hard for her to understand things due to her microcephaly, and she had a hard time reading, writing, speaking, and remembering recent events. She also had difficulty remembering dates, numbers, and what people said. Mother said she was in special education classes while in school.

The social worker and County counsel had a conference call with Dr. Hyden on January 27. Dr. Hyden recalled that F. had two identified skull fractures that appeared to have two different ages of healing. The left skull fracture appeared to be acute and more recent due to the swelling that usually occurs within 48 hours from the time of injury. Dr. Hyden reiterated that he cannot date skull fractures and they could have occurred any time before the November 7, 2016 hospital visit. He did not think any of the family's explanations for the injuries were plausible. He did not believe the family could have gone to the emergency room the month prior and noted concerns about F.'s head without it being noted in the medical records, and because F.'s skull fractures were not depressed, their recall of the "soft spot" on F.'s head was not consistent with his injuries. While Dr. Hyden did not believe the new or old fractures were from father, he could not say that with any certainty as skull fractures cannot be dated. Dr. Hyden saw F. for a follow-up and the two fractures were still visible.

According to Dr. Hyden, the skull fractures could have been accidental, but the circumstances were suspicious, especially without a consistent story. He absolutely believed the penis and toe injuries were non-accidental trauma. At a minimum, F.'s injuries were the result of very poor supervision. Dr. Hyden expressed concern about father leaving F. with mother when he supposedly was concerned about his safety.

The Agency did not believe either parent was a non-custodial parent since they both had custody orders stating they were F.'s custodial parent. The Agency asserted it would be detrimental to return F. to mother's care due to his unexplained injuries, which may have been left untreated due to mother's inaction or inability to observe the red flags of abuse, and because mother knew or should have known that he was being physically harmed. In addition, it was not known whether mother would ever be capable of independently caring for F., as the Agency did not understand how mother's microcephaly affected her functioning.

The Agency also asserted it would be detrimental to return F. to father since neither the Agency or Dr. Hyden were able to conclude that F. was not harmed while in father's care. In addition, although father admitted that before June 2016 he was concerned about F.'s safety while in mother's care, after mother took F. from him, he returned to Arkansas, where he filed for divorce and custody. Father apparently never returned to California to check on F. or attempted to contact mother for updates on him. The Agency was concerned that father left F. in mother's care when he knew, or at a minimum reasonably should have known, that given mother's cognitive delays and her reported propensity for violence when angry, she posed a risk to F., and he therefore was negligent in failing to protect F. Since becoming aware of child welfare involvement, father had not contacted the Agency to obtain information about F. and had not requested any contact with F. Finally, the Agency did not have a good understanding about father's possible cognitive delays and how they affected his functioning.

Mother was having weekly supervised visits at the Agency. She had some basic challenges in engaging with F. during visits, as she struggled to keep him occupied and to engage with him verbally. Mother continued to seek direction from staff when changing F., and mishandled him by picking him up by his wrists, bicep, and forearms. Mother had completed a substance abuse assessment, but there were no recommendations, and was completing a clinical assessment with Maryanne Cose at Sierra Vista. Cose was concerned about mother's ability to understand F.'s injuries and her role or responsibility in them. It was difficult to communicate with mother, who appeared to be unable to provide much information or history. Cose recommended that mother receive a neuropsychological exam to determine if her disability would prevent her from successfully completing her case plan and being able to raise her son.

Father had not been provided with referrals for services, as the social worker was in the process of securing a service provider where he lived. At the beginning of March, the social worker emailed Jennifer Matney, the supervisor of Searcy County DHS, requesting assistance with locating services. Matney responded on March 9 by providing the telephone number for Health Resources of Arkansas/Dayspring. On March 14, the social worker contacted that organization and was told it was the only service provider in their area and was used exclusively by the area's child welfare department for court ordered services. They offered individual counseling services which could focus on parenting and any other areas of focus identified by the Agency, and they could accommodate the Agency's identified service needs for father.

The Jurisdiction/Disposition Hearing

The contested jurisdiction and disposition hearing began on March 20. Both mother and father were present, as was mother's guardian ad litem. The Agency submitted photographs of F.'s injuries, which were received into evidence. Mother's attorney made an offer of proof regarding mother's testimony, which included that she never physically harmed or injured F., she was visiting F. regularly, she was participating in individual parenting and counseling, she was being assessed by the regional center, and she was living with the maternal great grandparents.

Father's attorney called social worker Julie Bartlett to testify. Bartlett attempted to contact father three or four times via telephone, text, and email. She also spoke with the paternal grandparents once or twice. She did not have anyone from the Agency go to Arkansas to check their home to determine if it was an appropriate placement.

The Agency did not recommend immediate placement with father because Dr. Hyden said it would be unsafe, as they were not sure if F. sustained one of his skull fractures while in father's care. In addition, when Bartlett spoke with father, he said he had concerns about F. being with mother and he was concerned when mother took F. from him in June 2016, yet he left the state and filed for custody without returning to see how F. was or checking on his welfare. Finally, father had not attempted to contact Bartlett to ask about F.'s wellbeing. Bartlett did not have any medical records from F.'s physician in Arkansas and she never asked for any.

The petition's domestic violence allegations were based on the parents' reports to Bartlett that they had experienced domestic violence with each other, as well as information from relatives. When asked what Bartlett had done to ascertain father's cognitive ability, Bartlett responded that she spoke with paternal grandmother, who told her he was slow at reading and writing, and may have been in special education classes, and father, who seemed to have difficulty understanding and almost always had his parents speaking for him. Bartlett was concerned about father's ability to provide day-to-day care for F. because mother said that when they lived in Arkansas, father did not provide care and was not very involved, and she was F.'s primary caregiver. Paternal grandparents, however, told Bartlett that father was the primary caregiver.

On cross-examination, Bartlett confirmed that during the course of the case, father never contacted her to provide her with documents or information about his role in parenting F., or to ask about F.'s condition. Mother told Bartlett that she was concerned that father was not involved in F.'s care, and he was mean to F. and told him to shut up when he cried. Bartlett also asked mother about an incident that occurred on May 27, 2016. Mother said that she and father began arguing while they were taking a walk with F., and father punched her. Family members confirmed the incident occurred and Manuel said he saw a mark on mother's chest. Father told Bartlett that if F. were returned to his custody they would live with the paternal grandparents. Paternal grandmother never told her that father cared for F. alone.

Father testified that he was F.'s primary caregiver from F.'s birth until he and mother separated in May 2016. He attended F.'s medical appointments when they lived in Arkansas. He did not remember if mother was the one who fed F. and changed his diapers at night. Father denied that F. was ever injured while in his care or that he ever injured him. Father also denied yelling at F. and said the reports that he had done so were untrue.

Father left F. in California when he returned to Arkansas because he felt safe leaving him in maternal grandmother's care, as maternal grandmother was helping mother learn how to take care of F. Father, however, also was concerned for F.'s safety because mother tended to get angry at multiple things; "tiny things can set her off." In addition, father said that when he called the police after mother took F. away from him, he was told he had no legal rights over F. since they were visiting and he could not "go through court" as they had not lived in California for six months. Father decided to get an attorney in Arkansas so he could get F. back. Paternal grandmother found an attorney, who filed for divorce and custody.

After being awarded custody, father made plans to come to California to get F., but this case began before he could do so. His plan was to save money to get to California on his own or borrow money from an uncle who lived in California. He thought he tried to contact mother to check on F. after he returned to Arkansas, but mother ignored him and his calls. Father did not ask for contact with F. after this case began because he worked full-time during the week and the Agency was closed on weekends. He did not come to California right away when he learned that F. had been injured because he had a job and he did not have enough money to travel here. His parents were unemployed and did not have money to lend him.

Father and mother both attended a young mom's course, which was a group for teen mothers, from F.'s birth until they came to California. Arkansas child protective services told mother to attend, since she was a teen mother who needed to learn how to care for a baby. The first time father became aware that F. had a skull injury was in these proceedings. Father said he could take care of F. and he had everything necessary to do so. Father lived with paternal grandparents, who would help him care for F. along with a paternal uncle and aunt. Paternal grandparents would take care of F. while father was working. Father had not seen F. since June 8, 2016, and he wanted F. returned to him that day.

Father denied choking mother. He said they got into daily arguments in front of F. when they were living together, but mother was "the one that skyrocketed" and he tried to calm her down. He "never spiked back," but admitted there was "verbal violence," by which he meant yelling and cussing. One time mother tried to grab scissors to attack him, but he was quickly able to knock the scissors away. Father admitted it was bad to yell and cuss in front of F., because no parent should argue in front of their child since it would "scar them for life." Father tried to protect F. from mother's anger by putting himself between her and F., so she would direct her anger toward him. Paternal grandparents were in the home when these arguments occurred. When asked if he was ever worried that mother might harm F., father responded that "[t]here were signs that she was getting to a point where she was angry," but he never felt he could not protect F. He was not concerned that mother would harm F. when he was not around.

Father was scared what mother might do during these violent episodes, but he did not call the police because he is "not good with talking."⁴ He thought he now had the ability to protect F. because he had "really matured a lot" through his job.

4 Father had been in special education classes since kindergarten because he had trouble speaking and writing. He has never been diagnosed with a mental health condition.

Father denied punching or shoving mother during their final argument in May 2016. He said that he put his arm up to defend himself because she jumped at him with her nails out, and denied grabbing her. He never grabbed her "violently," by which he meant he "never grabbed her out of anger. We were a couple. We had moments."

Father knew mother had microcephaly; he was concerned about the condition because he did not know if his son could get it. He was F.'s primary caretaker because he is a "hands-on person" and cared about his son; he was trying to teach mother how to do everything and help her understand what she needed to do. Father thought he needed services to help him, as he had never dealt with skull fractures and to make sure F. got to the right doctor. Mother did not touch F. until he was four months old because she was afraid of handling him. She tried breastfeeding for a while, but they switched to a bottle because she was not producing much milk. Father had only been alone with F. twice when they lived in Arkansas. Father planned on finding a house in Arkansas where he and F. could live together, but until he did so, he would live with his parents. He thought he was able to care for F. alone.

Although father had a cell phone and could have called the social worker from work while on a break or at lunch, he did not do so because he did not have the telephone number in his phone. He did not take the number to work because he was focused on work and nothing else. He did not remember getting a text from the social worker in December 2016. Paternal grandparents tried to contact the social worker through three different numbers, but they all went to voicemail or a different department. Father never tried to contact the social worker independently because "most of the time when I get asked big questions, it is very confusing for me to answer them correctly." In addition, Smith made some phone calls to find out if F. was okay.

Father had not received any referrals for services in Arkansas. He did not break up with mother, who became violent right after F.'s birth, because he hoped she would change. Father came to California for the hearing on March 16, but he did not ask to see F. until March 20, when he asked his attorney about a visit. Father did not try to make advance arrangements to see F. once he arrived in California because he was worried and "[a] lot of stuff" was going on, such as finding out what happened to F. and trying to get custody of him. This was the first time father had gone through this and he had a lot of emotions.

Paternal grandmother testified that she did not have any concerns about father's ability to take care of F. or that F. would be safe in his care. Father was F.'s primary caregiver because he did more than mother. She attended all of F.'s well-baby appointments with father, and drove them to appointments because father, who was 21, did not have a driver's license.

If father brought F. home, she would assist with his care and babysit when father was at work. She would attend all of F.'s doctor's appointments with father because father might forget something and she could help if there were a problem. Father had trouble with dates and in making phone calls on his own. His job at Walmart was his first job.

When father returned to Arkansas from California, she helped father hire an attorney at the end of June 2016, as the police told him to get one. Mother contacted the attorney and attended all of the appointments with father, who never went to an appointment alone. They never considered coming to California to check on F. because they did not have the money to do so.

Father had never lived independently and paternal grandmother did not have any concerns about him doing so. She persuaded mother to take father with her to California for F.'s safety because mother had never been on a plane before and she was afraid someone could easily take F. from mother. She was not concerned that mother would harm F. When asked if she ever saw anything that led her to be concerned about mother's ability to care for F., paternal grandmother responded that mother had to learn not to use ice cold or hot water for F.'s baths. Paternal grandmother had watched father care for F.; he "did everything he needed to" and she did not have to direct him, although she gave him parenting assistance if he asked.

Paternal grandmother recalled that mother and father would talk loudly to each other when they lived in her home, but it did not happen often. She was concerned about the loud talking and would go upstairs to see what was going on and if she could help. F. was present during the loud talking. She never witnessed father yelling at F. and calling him names, or any physical violence between mother and father. On one occasion, mother called her grandfather after an argument with father. Maternal grandfather became concerned because mother was crying and called the police. The police came to the house to check on mother, but she was fine.

Maternal grandmother testified that in March 2016 mother called her at around 1:00 a.m. crying; she said she wanted to come home, as she woke up and father was choking her. Manuel called the police in Searcy County. Maternal grandmother bought an airline ticket for mother to fly home. She also bought one for father because mother needed his help to fly. When mother and father were staying with her, she observed daily verbal arguments between them, although no physical ones, in F.'s presence. Mother primarily took care of F., while father either slept or ate. He held F. a couple times. She never saw father bathe F., change his diaper, or feed him. She and mother woke up at night with F. Father was never left alone with F. Maternal grandmother, Manuel, and their youngest daughter went to Arkansas right after F.'s birth and stayed for a week. She saw mother hold F., try to breastfeed him, and change him. She did not see father do much other than hold F.

On May 26, 2016, maternal grandmother was home and saw mother, father, and F. leave for a walk. When mother returned, she was crying and told maternal grandmother that father hit her in the chest, which was evident by a mark on mother's chest. After that, she asked father to leave.

The Juvenile Court's Ruling

Following oral argument, the juvenile court sustained the first amended petition as further amended at the hearing to state that the restraining order expired on July 11, 2016, and found that F. was a person described by section 300, subdivisions (b)(1) and (e). The court further found that while Arkansas was F.'s home state, continuing emergency jurisdiction was necessary to protect F. from potential further abuse.

As far as the subdivision (b) allegations, the court found that neither parent had displayed the ability to be properly protective of F.'s needs and safety. Specifically, the court found that mother reasonably should have known F. was being injured, yet she did not take appropriate steps to protect him from further injury. In addition, there was domestic violence between the parents, with each parent claiming the other was violent, which had been ongoing for a significant portion of F.'s life when the parents were living together and to which F. was exposed, and neither parent took any reasonable steps to prevent that exposure.

While the court suspected Manuel had injured F. on at least one occasion, it did not have any way to ascertain who perpetrated the injuries and, in order to protect F., it had no choice but to take jurisdiction. The court noted that as for as the subdivision (e) allegations, F. had sustained very serious, multiple injuries which were extremely concerning, and no one was there to protect him. In addition, the court was concerned that although father testified there was domestic violence and he was fearful of mother's ongoing violence and anger, he left F. in mother's care when he returned to Arkansas. In the court's view, this was not at all protective and did not indicate a parent who was able to adequately protect a very young child. The court was also concerned that while mother said father was domestically violent, she continued to maintain a relationship with him.

The court believed mother had cognitive issues which impaired or impacted her ability to provide for F.'s needs and to understand those needs. While the court believed father may have learning disabilities, it did not believe there was any evidence he had a major cognitive delay. In the court's mind, having a learning disability and being slow did not necessarily mean one's ability to care for a child was impaired, but father certainly displayed very poor judgment in his actions. The court believed that F. would not be safe in the care of either parent at that time. The court thought the parents needed services to learn how to ensure F. was protected and not subjected to further abuse, and jurisdiction was required to protect F. and ensure the parents had the necessary tools to properly advocate for their son so this will never happen again. Consequently, the court adjudged F. a dependent.

Pursuant to section 361, subdivision (c)(1), the juvenile court found, based on clear and convincing evidence, that there would be a substantial risk of detriment to F. if he were returned to the care of either parent at that time, and there were no reasonable means by which he could be protected without removal from the parents' physical custody. The court found reasonable efforts had been made to prevent or eliminate the need for removal, noting there was an excusable delay in obtaining referrals for services for father and the court may ultimately consider offering services longer than normally required due to the delay.

The juvenile court ordered reunification services for both parents. It encouraged father to use social media to stay in contact with F. Father was given a minimum of one two-hour supervised visit per week, with social worker discretion to increase duration and frequency, which may be in the form of Facetime/Skype visits. The court ordered the Interstate Compact on the Placement of Children (ICPC) process initiated with Arkansas, and set a progress review hearing for March 29 to determine father's specific services. At the March 29 hearing, father was ordered to participate in the following services in Arkansas: an eight-session parenting class; and a twice weekly one-on-one parenting, anger management, and safety planning classes.

DISCUSSION

I. Emergency Jurisdiction under the UCCJEA

Father first contends the juvenile court's orders at the jurisdiction and disposition hearing were not a proper exercise of jurisdiction under the UCCJEA. The parties agree the UCCJEA governed the proceedings and the juvenile court was required to adhere to the provisions of the Act because F. was the subject of a custody order made in Arkansas. The issue before us is whether the circumstances were sufficient to invoke the juvenile court's emergency jurisdiction under the Act.

The UCCJEA is the exclusive method for determining the proper forum in custody disputes involving other jurisdictions, including juvenile dependency proceedings. (Fam. Code, §§ 3421, subd. (b), 3402, subd. (d); In re Nada R. (2001) 89 Cal.App.4th 1166, 1173 (Nada R.).) Under the UCCJEA, a California court has "temporary emergency jurisdiction" to issue custody orders for a child subject to an existing sister state custody order only if the child is present in this state and the court finds that an emergency necessitates the protection of the child from mistreatment and abuse. (Fam. Code, § 3424, subd. (a); In re C.T. (2002) 100 Cal.App.4th 101, 107.)⁵ "An 'emergency' exists when there is an immediate risk of danger to the child if he or she is returned to a parent." (In re Jaheim B. (2008) 169 Cal.App.4th 1343, 1349; Nada R., supra, 89 Cal.App.4th at pp. 1174-1175.) " 'Although emergency jurisdiction is generally intended to be short term and limited, the juvenile court may continue to exercise its authority as long as the reasons underlying the dependency exist.' " (In re Cristian I. (2014) 224 Cal.App.4th 1088, 1097.) " 'We are not bound by the juvenile court's findings regarding subject matter jurisdiction, but rather "independently reweigh the jurisdictional facts." ' " (In re S.W. (2007) 148 Cal.App.4th 1501, 1508.)

5 In addition to exercising temporary emergency jurisdiction, a California court may modify a sister state's custody order if the conditions specified in Family Code section 3423 are met, namely that a California court has jurisdiction to make an initial child custody determination under paragraph (1) or (2) of subdivision (a) of Section 3421 and "either of the following determinations is made: [¶] (a) The court of the other state determines it no longer has exclusive, continuing jurisdiction under Section 3422 or that a court of this state would be a more convenient forum under Section 3427. . . . " Family Code section 3421, subdivision (a) provides that a California court has jurisdiction to make an initial child custody determination if: "(1) This state is the home state of the child on the date of the commencement of the proceeding . . . [¶] (2) A court of another state does not have jurisdiction under paragraph (1), or a court of the home state of the child has declined to exercise jurisdiction on the grounds that this state is the more appropriate forum under Section 3427 or 3428, and both of the following are true: [¶] (A) The child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence. [¶] (B) Substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships." "Home state" is defined as the state where the child lived with a parent for at least six consecutive months immediately before the commencement of the child custody proceeding, including periods of temporary absence. (Fam. Code, § 3402, subd. (g).)

Father does not challenge the juvenile court's assertion of emergency jurisdiction under the UCCJEA prior to the combined jurisdiction/disposition hearing. Instead, he contends the evidence does not support the continuation of emergency jurisdiction after the jurisdiction hearing, as the reason the juvenile court asserted for taking emergency jurisdiction - that F. may have sustained multiple other fractures that could not be dated - ceased to exist by the time of the combined hearing because the medical records provided to the court showed the physician did not know whether the older fractures existed.

Contrary to father's assertion, the conditions which placed F. at risk were not resolved by the combined hearing. While the juvenile court initially cited the older skull fractures when it originally took emergency jurisdiction, evidence developed at the combined hearing showed that F. was at risk if he were returned to father based on father's admitted domestically violent relationship with mother, his failure to protect F. from mother's angry outbursts, and his leaving F. with mother in California, despite his concerns about mother's ability to care for F., and returning to Arkansas.

Moreover, contrary to father's assertion, the evidence established that F. suffered an older skull fracture. While Dr. Myracle, who read the bone survey, could not tell if the linear lucency on the right side was a fracture and was of a different age than the left side fracture, Dr. Laningham, who read the CT scan, stated that there was a "linear fracture in the right frontal bone." Although Dr. Laningham further stated that the right fracture "seems to represent an additional fracture, age indeterminate," it appears that he was referring to the age of the fracture, not its existence. Dr. Matthew Bayer, who attended F. at VCH, noted the CT head study showed a "secondary finding of a right frontal fracture without soft tissue swelling . . . running perpendicular to the coronal suture." Dr. Hyden reviewed both these reports and the actual images, including the CT scan and x-rays, and found that F. had a frontal fracture of the skull, unrelated to the acute left skull fracture, that may be older than the left side fracture.

Dr. Myracle's report of the radiographic four-view evaluation of the skull taken two weeks after F.'s discharge confirmed there were two skull fractures. While Dr. Myracle's report referenced two left side fractures, one a "vertical skull fracture in the left frontal bone" and the other a "vertical left parietal skull fracture[,]" Dr. Myracle's original report did not identify a vertical skull fracture in the left frontal bone; instead, he identified a linear lucency on the right side. It is therefore unclear what second fracture Dr. Myracle was referring to. Regardless, Dr. Hyden later confirmed the existence of the two fractures, noting they were still visible when F. came to see him for a follow-up, and explained that because he could not date them, he could not say with any certainty that father was not responsible for the older fracture.

The evidence of the older skull fracture, coupled with the history of domestic violence, justified the exercise of the juvenile court's continued emergency jurisdiction over F., as the reasons giving rise to the emergency continued to exist. (See In re Stephanie M. (1994) 7 Cal.4th 295, 312 [in which our Supreme Court found "continuing jurisdiction because of the emergency presented by the abuse of the child, and the impossibility of returning her immediately to her parents"]; Nada R., supra, 89 Cal.App.4th at p. 1175 [same].) The court appropriately continued its emergency jurisdiction and instituted an ICPC evaluation in order to try to find a vehicle to return F. to Arkansas with the necessary and appropriate oversight to assure his protection.

II. Jurisdiction and the Removal Order

The crux of father's appeal is his contention that he is a non-offending, noncustodial parent to whom the juvenile court should have considered giving custody of F. pursuant to section 361.2, subdivision (a). To that end, father argues the jurisdictional allegations as to him are not supported by substantial evidence; since he is a non-offending, noncustodial parent, the juvenile court prejudicially erred in removing F. from his custody pursuant to section 361, subdivision (c)(1), as there is insufficient evidence that F. would be in danger if he were returned to father; and remand is required for the juvenile court to consider whether to place F. with him pursuant to section 361.2, subdivision (a).

A. Jurisdiction

We begin with the jurisdictional allegations.⁶ While father reviews each of the jurisdictional allegations in his opening brief, arguing there is no causal link to him, only two of the allegations pertain to him: (1) those under section 300, subdivisions (b)(1) and (e) that F. sustained an older skull fracture that could not be dated and could have occurred any time prior to November 7, 2016; and (2) that under section 300, subdivision (b)(1) regarding domestic violence between father and mother. Father argues the Agency failed to show that he injured F. or that another person inflicted F.'s injuries while in his care, and there was no evidence that the prior acts of domestic violence created a current risk of harm.

6 The Agency contends we need not address the jurisdictional issues father raises because the juvenile court's assertion of jurisdiction would be supported by the findings sustained regarding mother's failure to protect F., which father does not challenge. (See In re Alexis E. (2009) 171 Cal.App.4th 438, 451 [when dependency petition alleges multiple grounds for assertion that minor comes within dependency court's jurisdiction, reviewing court can affirm the juvenile court's finding of jurisdiction over the minor if any one of the enumerated bases for jurisdiction is supported by substantial evidence].) Appellate courts, however, generally exercise discretion to reach the merits of a challenge to a jurisdictional finding where, as here, it "(1) serves as the basis for dispositional orders that are also challenged on appeal [citation]; (2) could be prejudicial to the appellant or could potentially impact the current or future dependency proceedings [citation] ...." (In re Drake M. (2012) 211 Cal.App.4th 754, 762-763.) As father was the noncustodial parent at the time of the Agency's intervention, the jurisdictional finding is ordinarily reviewed due to its negative impact on a request for custody under section 361.2. (In re Christopher M. (2014) 228 Cal.App.4th 1310, 1317.)

When the sufficiency of the evidence to support a finding or order is challenged on appeal, we review the record to determine if substantial evidence supports the conclusion of the trier of fact. In doing so, we review the record in the light most favorable to the court's determinations and draw all reasonable inferences in support of the court's findings and orders. (In re I.J. (2013) 56 Cal.4th 766, 773.)

Section 300, subdivision (b)(1) applies when the "child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of [the] parent . . . to adequately supervise or protect the child, or . . . by the willful or negligent failure of the parent . . . to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent . . . to provide regular care for the child due to the parent's . . . substance abuse." A finding under section 300, subdivision (b)(1) requires three elements: "(1) one or more of the statutorily-specified omissions in providing care for the child ...; (2) causation; and (3) 'serious physical harm or illness' to the minor, or a 'substantial risk' of such harm or illness." (In re Joaquin C. (2017) 15 Cal.App.5th 537, 561; In re R.T. (2017) 3 Cal.5th 622, 626-628.)

The " 'basic question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm.' " (In re J.N. (2010) 181 Cal.App.4th 1010, 1022.) Evidence of past events may be probative in assessing the current conditions "if circumstances existing at the time of the hearing make it likely the children will suffer the same type of 'serious physical harm or illness' in the future." (In re Janet T. (2001) 93 Cal.App.4th 377, 388.)

Domestic violence in the household where children live creates a substantial risk of serious harm and is detrimental to children. (In re E.B. (2010) 184 Cal.App.4th 568, 576 (E.B.); In re Heather A. (1996) 52 Cal.App.4th 183, 194.) Violence by one parent against another harms the children even if the children do not directly witness it. Past abuse or violent behavior is a good indication that future abuse is likely to occur. (E.B., supra, at p. 576 [fact that mother remained in an abusive relationship and returned to father despite the abuse supported finding under section 300, subdivision (b)(1), that mother's conduct in domestic altercations endangered the children].)

Here, by father's admission, F. was subjected to mother's verbal abuse of father almost daily for the first eight months of his life, and on at least one occasion when mother threatened father with scissors, he had to intervene to ensure F. was protected. Despite the constant fighting, father did nothing to stop the abuse or protect F. from it. Although he finally separated from mother, it was because maternal grandmother threw him out of the house. Despite knowing that mother had violent tendencies and was quick to anger, father left F. with mother in California and returned to Arkansas. While father contends there is not a current risk of harm because he filed for divorce from mother and they lived in different states, it is father's history of making poor choices, such as leaving F. in mother's custody, that continued to place F. at risk of harm. Thus, substantial evidence supports the juvenile court's assertion of jurisdiction under section 300, subdivision (b) based on the parents' history of domestic violence.

There is also substantial evidence that F. was at risk of harm based on the older skull fracture. As we explained above, contrary to father's assertion, the evidence established that there was in fact an older skull fracture that could not be dated. Father contends there is insufficient evidence that he was responsible for the fracture or present when it occurred. The evidence established, however, that because the older fracture could not be dated, it could have occurred when father had custody of F., either before he separated from mother on May 26, 2016, or during the time he was caring for F. at his stepsisters' home in June 2016.

Thus, substantial evidence supports the juvenile court's findings as to father, namely that he was involved in domestic violence with mother that placed F. at risk of harm, and could have been responsible for F.'s unexplained older skull fracture that could not be dated. Accordingly, father's assertion that he was a "non-offending" parent is without merit.

B. Removal

Father next contends the juvenile court erred when it ordered F. from his custody under section 361, subdivision (c)(1), rather than making a detriment finding necessary to deny a noncustodial parent's request for placement under section 361.2. The Agency first asserts, without citation to authority, that because father had legal custody of F. pursuant to the Arkansas custody order, the juvenile court was required to treat him as a custodial parent. It also contends that if the court erred, any such error was harmless and did not prejudice father. Determining whether the court erred in failing to make findings under section 361.2, subdivision (a) is an issue of law, which we review de novo. (In re D'Anthony D. (2014) 230 Cal.App.4th 292, 298 (D'Anthony D.).)

Section 361, subdivision (c)(1) prohibits removal from custodial parents unless there is clear and convincing evidence of a substantial danger to the child, or a risk of such danger, and no reasonable means to protect the child without removal. To qualify as a custodial parent, the child must be living with the parent at the time the petition was initiated. (In re Anthony Q. (2016) 5 Cal.App.5th 336, 351-352; In re Dakota J. (2015) 242 Cal.App.4th 619, 628.) In contrast, under section 361.2, subdivision (a), if a noncustodial parent requests custody, "the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child." The court must make its findings "either in writing or on the record[.]" (§ 361.2, subd. (c).)

Since F. was not living with father at the time the petition was filed, the juvenile court erred in removing F. from his custody pursuant to section 361, subdivision (c)(1). Instead, since father asked that F. be returned to his custody, the juvenile court should have determined whether placing F. with him would be detrimental to F.⁷ Thus, the juvenile court erred when it failed to make the required detriment finding under section 361.2, subdivision (a), before denying father's request to have F. placed with him. (D'Anthony D., supra, 230 Cal.App.4th at p. 301 [constitutional due process requires a detriment finding by clear and convincing evidence before a noncustodial parent can be denied placement under section 361.2].)

7 The parties agree that a parent's status as an "offending" parent does not preclude the application of section 361.2 to the juvenile court's placement decision. (D'Anthony D., supra, 230 Cal.App.4th at p. 298; In re Nickolas T. (2013) 217 Cal.App.4th 1492, 1505.)

The juvenile court's failure to make a detriment finding under section 361.2, however, was harmless error. (D'Anthony D., supra, 230 Cal.App.4th at pp. 303-304.) The juvenile court found clear and convincing evidence there was a substantial danger to F.'s physical health and safety, or physical or emotional well-being, if he were placed with father. Although the juvenile court's findings were incorrectly made under section 361, subdivision (c)(1), rather than section 361.2, "in assessing whether this error was prejudicial, we can neither ignore the similarity between these statutes' mandatory findings, nor disregard the evidence supporting the court's 'substantial danger' finding concerning placement with father." (D'Anthony D., supra, at p. 303.)

Here, the record contains substantial evidence in support of the juvenile court's section 361, subdivision (c)(1) "substantial danger" finding. Father had demonstrated poor judgment and an inability to protect or care for F. He engaged in ongoing verbal domestic violence with mother in F.'s presence during F.'s first eight months of life. Although father knew this was harmful to F., he did not take steps to prevent the exposure and did not separate from mother until maternal grandmother threw him out of the house. Father left F. in mother's care when he returned to Arkansas despite being concerned for his safety due to mother's angry outbursts. While father filed for divorce and custody in Arkansas, he made no effort to check on F.'s welfare in California, other than to make one attempt to contact mother. Father continued to demonstrate a lack of commitment to F. after these proceedings began, as he did not call the social worker to see how F. was doing and did not request a visit until he came to California for the jurisdiction hearing, four months after F. was taken into protective custody. Although father had not parented F. since June 2016, had never lived independently from paternal grandmother, and had only been alone with F. a few times, he intended to find a house where he and F. could live.

Father contends F. should have been placed with him because there was no evidence he was responsible for F.'s older skull fracture and he was no longer in a relationship with mother. Even if father had no connection to the older fracture, he still demonstrated an inability to protect F. The fact the father ended his relationship with mother did not resolve the much deeper problem for father, namely his poor judgment. Given father's lack of parenting skills, it was necessary for F.'s protection to delay his return to father until father had shown the ability to benefit from the parenting, anger management, and safety planning services the juvenile court ordered.

Since there is substantial evidence to support the juvenile court's "substantial danger" finding, we infer the juvenile court would have relied on the same evidence to make a detriment finding against father. "In view of the juvenile court's 'substantial danger' finding under section 361, subdivision (c)(1), and the evidence supporting that finding with respect to father, we conclude the court's error did not result in a miscarriage of justice. (Cal. Const., art. VI, § 13 ['No judgment shall be set aside . . . for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice'].)" (D'Anthony D., supra, 230 Cal.App.4th at p. 303.) We have no doubt that had the juvenile court applied the correct standard, it would have found "that placement with [father] would be detrimental to the safety, protection, or physical or emotional well-being of [F.]." (§ 361.2, subd. (a).) No miscarriage of justice appears in this case.⁸

8 Father also challenges the juvenile court's finding under section 361, subdivision (c)(1) that there were "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." This finding, however, is not required under section 361.2, subdivision (a), when determining whether it would be detrimental to place a child with a noncustodial parent. Since section 361.2 was applicable to father, his argument on this issue is irrelevant.

DISPOSITION

The juvenile court's orders are affirmed.

/s/_________

GOMES, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
FRANSON, J.