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N.L. v. Superior Court

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Dec 31, 2019
E073900 (Cal. Ct. App. Dec. 31, 2019)

Opinion

E073900

12-31-2019

N.L. et al., Petitioners, v. THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Real Party in Interest.

John L. Dodd & Associates, John L. Dodd and Benjamin Ekenes for Petitioner N.L. B.C., in pro. per., for Petitioner B.C. No appearance for Respondent. Michelle D. Blakemore, County Counsel, Jamila Bayati, Deputy County Counsel, for Real Party in Interest.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.Nos. J280947 & J280948) OPINION ORIGINAL PROCEEDINGS; petitions for extraordinary writ. Erin K. Alexander, Judge. Petitions denied. John L. Dodd & Associates, John L. Dodd and Benjamin Ekenes for Petitioner N.L. B.C., in pro. per., for Petitioner B.C. No appearance for Respondent. Michelle D. Blakemore, County Counsel, Jamila Bayati, Deputy County Counsel, for Real Party in Interest.

Petitioner N.L. (father) filed a petition for extraordinary writ pursuant to California Rules of Court, rule 8.452, challenging the juvenile court's jurisdictional findings as to his children, Mi. L. and Me. L., the court's order bypassing his reunification services, and the order setting a Welfare and Institutions Code section 366.26 hearing. He has requested a stay of the section 366.26 hearing, which is scheduled for February 5, 2020. Petitioner B.C. (mother) has filed a letter simply joining in father's writ petition. We deny the writ petitions, as well as the request for stay of the section 366.26 hearing.

All further statutory references will be to the Welfare and Institutions Code, unless otherwise noted.

FACTUAL AND PROCEDURAL BACKGROUND

On May 8, 2019, the San Bernardino County Department of Children and Family Services (CFS) filed section 300 petitions on behalf of both children. Mi. L. (hereinafter, Mi.) was two months old at the time. Me. L. (hereinafter, Me.) was two years old. Mi.'s petition alleged that she came within section 300, subdivisions (a) (serious physical harm), (b) (failure to protect), and (e) (severe physical abuse). Me.'s petition alleged that she came within section 300, subdivisions (b) (failure to protect) and (j) (abuse of sibling). Both petitions alleged that, on May 6, 2019, Mi. was examined at Loma Linda University Medical Center (Loma Linda) and was found to have multiple injuries, including rib fractures at different healing stages, a wrist fracture, a right distal tibia fracture, and a hematoma in the left ear. The petition further alleged the injuries occurred while Mi. was in the care and custody of father and mother (the parents), and their explanation was not consistent with the injuries. Furthermore, two doctors found the injuries to be consistent with nonaccidental trauma. Me.'s petition additionally alleged that her sister, Mi., was found to have sustained multiple injuries, therefore placing her at risk of similar abuse.

The detention report stated that the social worker received a referral alleging physical abuse to Mi. Mother brought Mi. to the Loma Linda emergency room with a hematoma in her left ear, stating that she thought it was a bug bite, but was unsure how the injury occurred. The social worker spoke to a doctor, who stated that Mi. had swelling to the ear, as well as seven rib fractures at varying stages of healing. She also had a wrist fracture and a tibia fracture. Two doctors were concerned that Mi. had sustained nonaccidental trauma. When the hospital staff informed mother of the rib fractures, she initially became very distraught and accused the staff of lying. She then stated her two-year-old, Me., was very strong and was always touching Mi., so Me. could have caused the fractures.

The social worker went to the parents' residence to interview father. He said he did not know how Mi. was injured. He worked Monday through Saturday from 3:00 p.m. to 11:00 p.m. Mother was the primary caregiver, and Mi. and Me. (the children) spent time with their grandparents.

The court held a detention hearing on May 9, 2019, detained the children in foster care, and ordered predisposition services for the parents.

Jurisdiction/Disposition

The social worker filed a jurisdiction/disposition report on May 28, 2019, recommending that the court sustain the petitions, that the children be removed and placed in out-of-home care, and that no reunification services be provided to father or mother. Mother reported that she noticed Mi. had something on her ear, which she thought was a bug bite. She took her to urgent care and was given antibiotics. When the antibiotics did not help, she stopped giving them. One or two days later, she took Mi. back to urgent care. At that time, she was told to take Mi. to the emergency room at Loma Linda. At Loma Linda, the medical staff extracted blood from the hematoma and determined there was no sign of infection, so they believed it was caused by a friction injury. Because mother had no explanation for the hematoma, the medical staff performed a full body exam and discovered the rib fractures, and wrist and ankle fractures. Mother denied that Mi. ever acted differently or cried excessively.

The social worker reported that mother denied she injured or handled Mi. roughly, or that anyone else in the family injured her. Mother said that she was the primary caregiver, that she often visited the maternal grandmother, and that the paternal grandmother would watch the children a few days a week. Mother denied the children were left with anyone for extended periods of time. When asked if any accidents had occurred, mother said Mi. fell out of a swing, but she did not know the exact date. Mother also said Me. would try and hug Mi. and was sometimes rough when trying to be affectionate. However, Mi. did not cry or appear distressed during any of these incidents.

Mother said she believed Mi. sustained her injuries while in the hospital. Mi. was born with jaundice and spent a week in the hospital. When she was released, she entered outpatient care and contracted respiratory syncytial virus (RSV). Mother said the child likely sustained the rib fractures and wrist fracture while being treated for jaundice and RSV. When father was interviewed by the police, he denied causing injury to Mi. and also said he believed she sustained the injuries while in the hospital. He said he was not concerned about mother's care of the children.

The social worker spoke to Dr. Laura Jacobson, who said the injuries were not consistent with prior hospital treatment, since treatment for jaundice and RSV was common and would not explain the injuries. Dr. Jacobson said Mi.'s rib fractures were indicative of a hand gripping around the chest and squeezing. The social worker attached a copy of a forensics report signed by Dr. Jacobson and Dr. Melissa Egge, who were both physicians in the Loma Linda Division of Forensic Pediatrics. They opined that Mi.'s ear hematoma was caused by a direct blow or blunt trauma, the rib fractures were caused by a squeezing/compression force on the rib cage, and metaphyseal lesions were the result of forces such as shaking or violent twisting of the extremity. They stated that the injuries were consistent with multiple episodes of physical abuse. The injuries were not consistent with Mi. falling off a swing or being hugged tightly by her sister. A pediatric surgeon examined Mi. and agreed that the injuries were caused by nonaccidental trauma. An orthopedic doctor concurred.

The social worker was concerned because the parents were allegedly unaware of Mi.'s injuries prior to CFS involvement and never noticed any change in her behavior, or that she was hurt or in pain. The social worker was also concerned that the parents believed the injuries were likely sustained while Mi. was in the hospital, although there was no corroborating information that she sustained the injuries during prior hospital care.

On October 2, 2019, the social worker filed a memorandum with additional information for the court. She spoke with Dr. Jacobson on September 24, 2019, and asked about Mi. being seen at an urgent care appointment for her ear hematoma. Dr. Jacobson indicated that doctors do not always notice healing fractures during routine visits, if there are no visual signs of injury. Moreover, if the injuries were in the healing stages, they would have been less painful. Since Mi. had sustained multiple injuries, as an 11-week old baby, she would have been in pain at some point. Dr. Jacobson maintained her opinion that the injuries indicated physical abuse and inflicted trauma.

It was later revealed at the disposition hearing that there were no records from an urgent care appointment, only mother's allegation that she took Mi. into urgent care regarding the hematoma.

The social worker further reported that the parents had completed eight individual therapy sessions, and 12 parenting classes, as required by CFS. The therapy progress report indicated father still adamantly denied having anything to do with Mi.'s injuries and continued to theorize that the injuries may have occurred while she was in the hospital's care.

The court held a contested jurisdiction hearing on October 2, 2019. Father's counsel called Dr. Thomas Grogan to testify. The court qualified him to testify as an expert pediatric orthopedist. Dr. Grogan testified that he did not examine Mi. but was asked to look at her medical records. He said her injuries included left ear swelling and two sets of fractures to her right and left ribs, which appeared to have occurred at two different times. He opined that, at the time of the original presentation to the hospital on May 5, 2019, the right side rib fractures were over two weeks old, and the left side rib fractures were about 10 days old. Dr. Grogan explained that it was difficult for a baby that age to have fractured ribs, since infants' bones are very pliable; thus, there had to have been 50 to 60 newtons of force that caused the fractures. He opined that a normal two-year-old could produce between 50 to 60 newtons of force. He further testified that the rib fractures were caused by hoop stress, or a squeezing stress. He did not agree that the other reported injuries to the wrists and tibia were real fractures, rather just unusual bone morphology on the x-rays.

On cross-examination, Dr. Grogan testified that an infant sustaining the rib fractures in this case would have had an immediate reaction and would have cried. Furthermore, it would have been evident to anyone who lived with her that she was hurt. He also testified that such injuries would heal in four or five days, but during that time, if one pushed directly on the area of the fractures, it would cause discomfort. Dr. Grogan testified that ear hematomas could develop when the ear rubbed against an object. He also said they could be caused by a bug bite, although that was uncommon. He said, given the information the doctors at Loma Linda had, he would have considered this case to be possible child abuse, as well.

After hearing testimony and counsels' arguments, the court found true the section 300, subdivisions (a) and (b) allegations as to Mi. The court began with the ear hematoma and reasoned that it believed the reports of the doctors who actually examined Mi., rather than Dr. Grogan, who only saw a photograph of the ear. Multiple doctors examined the injury and indicated it was the product of nonaccidental trauma. As to her ribs, there was no dispute they were broken, and there were two incidents of inflicted injuries. The court acknowledged Dr. Grogan's opinion that the rib fractures could have been caused by a two-year-old, but did not find that explanation compelling. The court also found the parents' statements to be inconsistent. First, they blamed the hospital for Mi.'s injuries; however, even Dr. Grogan dated the rib fractures well after Mi. was released from the hospital due to RSV. Mother then blamed Mi.'s injuries on her fall from a swing. Finally, the parents blamed their two-year-old, Me., for the injuries, even though they could not state a specific occasion when she could have caused the injuries. The court did not find it feasible that a two-year-old caused such significant injuries repeatedly, especially since the parents were unaware of a single occasion of when or how the injuries occurred. The court further stated that, during a diaper change or a bath, someone would have touched the fractured areas, since Mi. had fractures on both sides, and it would have been obvious she was in pain.

The court further found the section 300, subdivision (e) allegations true by clear and convincing evidence, with a few modifications. The court said it could not find true by clear and convincing evidence that the other fractures alleged beyond the ribs were true, in light of Dr. Grogan's testimony regarding the wrists and tibia. However, it was satisfied from the other doctors' opinions that there were some additional fractures. Thus, the court modified the allegations to delete the specific fractures alleged and just state that there were "rib fractures and additional fractures." As to Me., the court found that she came within the provisions of section 300, subdivisions (b) and (j), with the subdivision (b) similarly modified to say, "rib fractures and other fractures."

The court held a contested disposition hearing on October 10, 2019. Father called Dr. Sheryl Monaughan, a psychologist who evaluated the parents, to testify. She testified that she conducted a number of tests on the parents, including a "child abuse potential inventory." She concluded that there was nothing stopping them from being good parents. She said she went through different scenarios with mother and asked how she would protect Mi. On cross-examination, Dr. Monaughan admitted that she had never testified in a dependency court, although she had conducted psychological evaluations for a dependency court 10 times before.

Father testified on his own behalf. He said he accepted the fact that someone injured his daughter and that it was not an accident. However, he said he did not injure her. He agreed that the only other people who had regular contact with Mi. were the paternal grandparents, the maternal grandmother, and mother. He further testified that, if it was shown that any of them injured Mi., he would not let them see her, including mother. On cross-examination, father testified he did not know what caused Mi.'s injuries. However, when asked how he could protect her going forward, he said he would keep Mi. from getting close to Me., since it could have been Me. being too forceful with her, and he would watch his family members when they were with Mi.

Mother also testified and said she understood the court's finding that somebody intentionally injured Mi., but she still denied hurting her. When asked how she would deal with the fact that a family member hurt Mi., mother said she would be "extra precautious." She also said she was willing to do anything to protect Mi., even separate from father.

After hearing testimony and argument from counsel, the court found that father was the presumed father, continuance in the parents' home was contrary to the children's welfare, and reasonable efforts were made to prevent the need for removal.

The court then addressed whether any bypass provision applied. It noted that both parents indicated they would separate from the other and would keep family members away from Mi. The court stated that it could offer the parents all the services available, but it did not know how that would help protect Mi. in six months, when the perpetrator remained unknown. The court noted that, with respect to section 361.5, subdivision (b)(5), it found by clear and convincing evidence that Mi. came within section 300, subdivision (e). The court then found that it was not clear services were likely to prevent reabuse. The court observed that they were five months into the case, and it still had no explanation as to what caused fractures on separate occasions to a young child, who was fairly immobile. It further noted that each parent had participated in a series of therapy sessions, and mother was still blaming the hospital for Mi.'s injuries, while father had no explanation. As to the testimony presented, the court noted that Dr. Grogan never said the injuries were caused by accident, but indicated that they were caused by inflicted trauma.

The court reiterated that it still did not know who hurt Mi., and the parents were unable to explain the injuries, even though they were the two people in the best position to know. It then stated that, if father knew someone hurt his child, and it was not him, it defied logic that he would still reside with mother and go to therapy with her, while testifying that he would be willing to separate from her. Similarly, mother was still residing with father, who had not provided an explanation for the injuries. The court stated that it was equally likely that either parent caused the injuries, although it was not ruling out the possibility that the relatives were responsible.

The court additionally noted that the doctors, including Dr. Grogan, indicated the injuries would have been painful, and Mi. would have been tender during bathing and diaper changes due to the location of the injuries. Yet neither parent explained how they could have missed the injuries or accepted responsibility for missing them.

The court then stated the parents had the burden to present competent testimony that services were likely to prevent reabuse. It opined that Dr. Monaughan did not appear to be competent in juvenile law, noting she had never testified in dependency court before. The court was disturbed by her statement that she believed the parents could benefit from services. It questioned why, if the parents could benefit from services, they were five and one-half months into the case with no explanation as to what happened to Mi. The court concluded that it could not find the parents met their burden of showing that services were likely to prevent reabuse. It observed the parents were in the same position as when the case started, after almost six months, despite all the information they had. The court also could not find that failure to order services was likely to be detrimental to the children and stated that the safety of the children was paramount. The court bypassed services under section 361.5, subdivision (b)(5), as recommended by the social worker. It noted that it was not bypassing services under section 361.5, subdivision (b)(6), since that subdivision required an identified perpetrator, and it was not clear which parent injured Mi. Moreover, since it was denying services as to Mi. under section 361.5, subdivision (b)(5), it applied section 361.5, subdivision (b)(7), to deny services as to Me. The court declared the children dependents, removed them from the parents' custody, and set a section 366.26 hearing for February 5, 2020.

ANALYSIS

I. The Court's Jurisdictional Finding Under Section 300, Subdivision (e), Was Supported

By Substantial Evidence

Father argues that the court improperly sustained allegations under section 300, subdivisions (a) and (e). We initially note that "[w]hen a dependency petition alleges multiple grounds for its assertion that a minor comes within the dependency court's jurisdiction, a reviewing court can affirm the juvenile court's finding of jurisdiction over the minor if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence. In such a case, the reviewing court need not consider whether any or all of the other alleged statutory grounds for jurisdiction are supported by the evidence." (In re Alexis E. (2009) 171 Cal.App.4th 438, 451 (Alexis E.).)

Here, father expressly states he is not challenging the court's jurisdictional finding under section 300, subdivision (b). As such, he is conceding that the court properly sustained the section 300, subdivision (b) allegation. In other words, there is no apparent dispute that the court properly took jurisdiction over the children, since the juvenile court's jurisdiction may rest on a single ground. (D.M. v. Superior Court (2009) 173 Cal.App.4th 1117, 1127.) Thus, we find it unnecessary to address the challenge to the section 300, subdivision (a) allegation. However, we will address the challenge to the section 300, subdivision (e) allegation, since father also takes issue with the court's order bypassing reunification services under section 361.5, subdivision (b)(5). (See § II., post.)

Section 361.5, subdivision (b)(5), requires that the children be brought within the court's jurisdiction under section 300, subdivision (e). (§ 361.5, subd. (b)(5).)

A. Standard of Review

"In a challenge to the sufficiency of the evidence to support a jurisdictional finding, the issue is whether there is evidence, contradicted or uncontradicted, to support the finding. In making that determination, the reviewing court reviews the record in the light most favorable to the challenged order, resolving conflicts in the evidence in favor of that order, and giving the evidence reasonable inferences. Weighing evidence, assessing credibility, and resolving conflicts in evidence and in the inferences to be drawn from evidence are the domain of the trial court, not the reviewing court. Evidence from a single witness, even a party, can be sufficient to support the trial court's findings." (Alexis E., supra, 171 Cal.App.4th at pp. 450-451.)

B. Substantial Evidence Supports the Court's Jurisdictional Finding Under Section 300, Subdivision (e)

Section 300, subdivision (e), provides that a child comes within the jurisdiction of the juvenile court when "[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." (Italics added.)

Father contends there was insufficient evidence that he reasonably should have known about Mi.'s fractured ribs. We conclude the evidence was sufficient.

At the outset, we note that section 300, subdivision (e), does not require the court to identify the perpetrator. (In re E.H. (2003) 108 Cal.App.4th 659, 670 (E.H.).) "A section 300(e) abuse finding may be based on circumstantial evidence showing that the parents knew or reasonably should have known about the abuse, even when it cannot be determined which caretaker inflicted the abuse." (K.F. v. Superior Court (2014) 224 Cal.App.4th 1369, 1382 (K.F.).) "A finding may be supported by circumstantial evidence . . . [o]therwise, a family could stonewall the Department and its social workers concerning the origin of a child's injuries and escape a jurisdictional finding under subdivision (e). (E.H., supra, 108 Cal.App.4th at p. 670.)

There was sufficient evidence presented that father knew or reasonably should have known that Mi. suffered physical abuse. Upon being examined on May 5, 2019, doctors found seven fractured ribs in various stages of healing, distal metaphyseal fractures and other irregularities, and an ear hematoma. Mi. was never out of the parents' custody and remained with a family member at all times. (See E.H., supra, 108 Cal.App.4th at p. 670.) Dr. Jacobson and Dr. Egge opined that Mi.'s ear hematoma was caused by a direct blow or blunt trauma, the rib fractures were caused by a squeezing/compression force on the rib cage, and metaphyseal lesions were the result of forces such as shaking or violent twisting. The doctors stated the injuries were consistent with multiple episodes of physical abuse. The evidence showed numerous doctors agreed that Mi.'s injuries were caused by nonaccidental trauma. Father's own witness, Dr. Grogan, testified Mi. had two sets of fractures to her right and left ribs, which appeared to have occurred at two different times. He opined that, at the time of the original presentation to the hospital on May 5, 2019, the right side rib fractures were over two weeks old, and the left side rib fractures were about 10 days old. He further testified that the rib fractures were caused by hoop stress, or a squeezing stress.

Moreover, Mi. was an immobile infant, which meant she was constantly picked up and carried. She was also bathed and had diaper changes. As the court found, it was not reasonable to believe that Mi. would not have been touched on the injured areas, due to her having rib fractures on both sides. Moreover, Mi. would have been in pain due to the multiple injuries she sustained. Father's witness, Dr. Grogan, testified that an infant sustaining rib fractures would have had an immediate reaction of crying, and it would have been obvious to anyone living with her that she was hurt. He also testified that it would cause discomfort to push directly on the areas of the fractures.

Father argues the evidence was insufficient to show he should have known about Mi.'s fractured ribs. He asserts that Mi. had a routine doctor's visit on April 23, 2019, which was after the estimated time she sustained the rib fractures, and observes that the notes from the doctor's visit indicated Mi. was alert, active, and easily consolable. Father contends that if Mi.'s doctor did not discover the fractures, he "need not necessarily have discovered" them either. We disagree. Dr. Grogan estimated the right side rib fractures occurred approximately two weeks prior to the May 5, 2019 visit to Loma Linda, and the left side rib fractures occurred approximately 10 days prior. By his estimate, the second incident of abuse causing the fractures to the left side did not occur until after the April 23, 2019 doctor's visit. The fractures to the right side would have occurred prior to the doctor's visit. However, Dr. Jacobson explained that pediatricians would not always notice fractures that were healing, during routine examinations, if there were no other visual signs of injury. Moreover, they would have been less painful if they were healing. In any event, father lived with Mi., and, according to Dr. Grogan, it should have been obvious she was injured.

Father points out there were no reports that Mi. cried when handled or moved, or that she otherwise exhibited discomfort or pain. However, father and mother were the people in the best position to make such reports, and they consistently denied knowing anything about Mi. being injured.

Drawing all reasonable inferences in favor of the court's ruling, the circumstances support the finding that father reasonably should have known Mi. was being physically abused by someone. (§ 300, subd. (e); see E.H., supra, 108 Cal.App.4th at p. 670; see also K.F., supra, 224 Cal.App.4th at pp. 1382-1383.)

II. The Court Properly Denied Reunification Services

Father argues that since the section 300, subdivision (e) finding was unsupported, the court erred in bypassing reunification services under section 361.5, subdivision (b)(5) and (b)(7). He points out that, to apply the bypass provisions, the court must find that the child was brought within the jurisdiction of the court under section 300, subdivision (e), because of that parent's conduct, and he claims the court did not make this finding. He further argues the court erred in finding he had not met his burden in showing services were likely to prevent reabuse, and in finding that reunification would not be in the children's best interests. (§ 361.5, subd. (c)(2) & (c)(3).) We conclude the court properly bypassed reunification services.

Father also argues that the court's erroneous finding under section 300, subdivision (a), was prejudicial. He claims that, if the court had asserted jurisdiction over Mi. solely under subdivision (b) and not subdivisions (a) and (e), it is reasonably probable the court would not have bypassed reunification services and would have permitted the children to remain in the home. We find it unnecessary to address this claim since the court properly asserted jurisdiction under section 300, subdivisions (b) and (e). --------

A. The Court Properly Denied Services Under Section 361.5, Subdivision (b)(5) and (b)(7)

When a "child [is] brought within the jurisdiction of the court under subdivision (e) of section 300 because of the conduct of that parent or guardian," the court may decline to provide reunification services. (§ 361.5, subd. (b)(5).) When CFS "proves by clear and convincing evidence that a dependent minor falls under subdivision (e) of section 300, the general rule favoring reunification services no longer applies; it is replaced by a legislative assumption that offering services would be an unwise use of governmental resources." (Raymond C. v. Superior Court (1997) 55 Cal.App.4th 159, 164.) We review the court's decision to deny reunification services under the substantial evidence test to determine whether it is supported by evidence that is reasonable, credible, and of solid value. (Curtis F. v. Superior Court (2000) 80 Cal.App.4th 470, 474.)

"Section 300, subdivision (e), and subdivision (b)(5) of section 361.5, however, do not require identification of the perpetrator. [Citation.] Read together, those provisions permit denial of reunification services to either parent on a showing that a parent or someone known by a parent physically abused a minor. [Citation.] Thus, 'conduct' as it is used in section 361.5, subdivision (b)(5) refers to the parent in the household who knew or should have known of the abuse, whether or not that parent was the actual abuser." (In re Kenneth M. (2004) 123 Cal.App.4th 16, 21 (Kenneth M.).)

As discussed ante, the court properly found that father reasonably should have known Mi. was being physically abused by someone, under section 300, subdivision (e). (See § I., ante.) The court established jurisdiction pursuant to section 300, subdivision (e) by clear and convincing evidence. Accordingly, the court was permitted to deny reunification services as to Mi. under section 361.5, subdivision (b)(5). (Kenneth M., supra, 123 Cal.App.4th at p. 21.) The court was also permitted to deny reunification services as to Me. under section 361.5, subdivision (b)(7). (§ 361.5, subd. (b)(7) [reunification services need not be provided when the parent is not receiving services for a sibling of the child pursuant to section 361.5, subdivision (b)(5)].)

B. The Court Properly Found That There Was No Evidence Services Were Likely to Prevent Reabuse, and That Reunification Would Not Be in the Children's Best Interests

Relying upon a myriad of arguments, father contends the court erred in finding he had not met his burden in showing services were likely to prevent reabuse, and in finding that reunification would not be in the children's best interests. We disagree.

Section 361.5, subdivision (c)(2), provides that the court shall not order reunification described in subdivision (b)(5) "unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child." Additionally, section 361.5, subdivision (c)(3), provides the court shall not order reunification in any situation described in subdivision (b)(5) "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." In considering the best interests of the children, the court here assumed the children were bonded to the parents but determined that the safety of the children was paramount to the bond.

Father claims the court denied services under section 361.5, subdivision (c)(2) and (c)(3), because neither parent would confess to abusing Mi. He additionally contends the court improperly based its order bypassing reunification services on "speculation on whether the perpetrator's identity would become known." Contrary to father's claim, the court did not deny services because neither parent would confess to abusing Mi. The court was not required to identify the perpetrator. (E..H., supra, 108 Cal.App.4th at p. 670.) As such, the court was not requiring the parents to confess; rather, it determined that the parents at least should have known who abused Mi and noted they had gained no insight despite engaging in predisposition services for nearly six months. The court observed that both parents had engaged in a series of therapy, and mother was still blaming the hospital for Mi.'s injuries, and father still had no explanation for the injuries. In other words, they failed to benefit from predisposition services or accept any responsibility for their child's injuries. The court noted that it would be futile to offer more services when the perpetrator remained unknown, and, furthermore, that the parents were unable to identify what services they could participate in that would likely prevent reabuse.

Father also contends the court improperly discounted the opinion of his expert witness, Dr. Monaughan, and applied allegedly "legally irrelevant factors" in finding she did not appear to be competent in juvenile law. He argues that her knowledge of juvenile law was irrelevant to the question of whether services were likely to prevent reabuse. However, father presented Dr. Monaughan's evaluation and testimony to show that he was able to benefit from services and could safely parent the children. Thus, her expertise in the area of dependency law was relevant to her ability to evaluate him. The court properly weighed the credibility of Dr. Monaughan, noting that she did not have much experience in dependency law, as she had never testified in juvenile court before.

Father next claims CFS failed in its duty to investigate whether reunification was likely to be successful and whether failure to order reunification was likely to be detrimental to the child. However, the record shows that the social worker interviewed father, mother, and the maternal grandmother. She also reviewed Mi.'s medical records and spoke with Dr. Jacobson before concluding the children were not safe in the parents' custody and recommending that the court remove them from the parents' custody and deny reunification services.

Father further contends the court applied the "wrong legal test" when it found failure to offer services would not be detrimental "to the parent." In order to deny services pursuant to section 361.5, subdivision (c)(3), the court must find services unlikely to prevent reabuse, or that "failure to try reunification will be detrimental to the child because the child is closely and positively attached to that parent." (§ 361.5, subd. (c)(3), italics added.) Thus, father correctly points out the court stated it could not find that failure to try reunification would be detrimental "to the parent." However, it appears the court simply misspoke when it said it could not find failure to try reunification would be detrimental "to the parent" rather than "to the child." The court stated it was placing the safety of the children as its priority, which indicates it was properly considering whether reunification would be detrimental to the children, rather than the parents. In any event, the court was required to find either that services were unlikely to prevent reabuse, or that failure to try reunification would be detrimental to the child, and it properly found that services were unlikely to prevent reabuse, as discussed ante. (§ 361.5, subd. (c)(3).)

Finally, father argues that the court erred in failing to find reunification to be in Me.'s best interest, as she was "situated differently from Mi" since she was two years old, was bonded to the parents, and had lived with them her entire life. However, since the court properly denied services as to Mi. under section 361.5, subdivision (b)(5), it accordingly applied section 361.5, subdivision (b)(7), as to Me. Moreover, in order for the court to order services under section 361.5, subdivision (c), it would have had to find, by clear and convincing evidence, that reunification was in Me.'s best interest (§ 361.5, subd. (c)(2)), and there was no such evidence before the court. For the same reasons the court denied services as to Mi., the court properly denied services as to Me, since she was at risk of similar harm.

DISPOSITION

The writ petitions are denied. The request for a stay of the section 366.26 hearing is also denied.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

J. We concur: RAMIREZ

P. J. RAPHAEL

J.


Summaries of

N.L. v. Superior Court

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Dec 31, 2019
E073900 (Cal. Ct. App. Dec. 31, 2019)
Case details for

N.L. v. Superior Court

Case Details

Full title:N.L. et al., Petitioners, v. THE SUPERIOR COURT OF SAN BERNARDINO COUNTY…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

Date published: Dec 31, 2019

Citations

E073900 (Cal. Ct. App. Dec. 31, 2019)