Opinion
NOT TO BE PUBLISHED
Original proceedings; petitions for a writ of mandate to challenge orders of the Superior Court of Orange County Nos. DP019248, DP019249 & DP019250 Gary Bischoff, Juvenile Court Referee.
Juvenile Defenders and Bryan Patridge for Petitioner D.W.
Law Offices of Vincent W. Davis & Associates and Linda M. Nakamura for Petitioner L.W.
No appearance for Respondent.
Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Real Party in Interest Orange County Social Services Agency.
Law Office of Harold LaFlamme and Karen S. Cianfrani for Real Parties in Interest R.W., G.W. and N.W.
OPINION
FYBEL, J.
Introduction
M.W., then 23 months old, died as the result of blunt force trauma to her head and torso, while in the care of her mother, L.W. (mother). M.’s three siblings, R.W., G.W., and N.W., were taken into protective custody immediately after her death. The juvenile court sustained allegations of threat of serious physical harm, failure to protect, severe physical abuse to a child under five years old, causing another child’s death through abuse or neglect, and cruelty, and declared R., G., and N. to be dependents of the court. The court later determined that reunification services need not be provided to mother or her husband, D.W., the children’s father (father). Mother and father filed petitions for a writ of mandate to challenge the juvenile court’s orders.
With respect to father’s petition, we conclude there was substantial evidence to support the juvenile court’s assertion of jurisdiction over G., pursuant to Welfare and Institutions Code section 300, subdivision (e), based on testimony that G. had suffered from mother and father’s willful, prolonged failure to provide him adequate food. (All further statutory references are to the Welfare and Institutions Code, unless otherwise noted.) We further conclude there was substantial evidence to support the juvenile court’s finding that father caused the death of M. by neglect, pursuant to section 300, subdivision (f).
With respect to mother’s petition, the juvenile court did not err in denying reunification services. The court’s findings that mother caused M.’s death through abuse or neglect and that the children came within the court’s jurisdiction because they were under five years old and had suffered severe physical abuse by a parent were supported by substantial evidence. Mother did not provide clear and convincing evidence that reunification would be in the best interests of the children.
We therefore deny the petitions.
Statement of Facts and Procedural History
Detention
On December 17, 2009, Seal Beach police officers responded to the W. family’s home and found 23-month old M. on the floor of a bedroom, unresponsive. CPR was performed, and M. was transported to a local hospital, where she was pronounced dead. M.’s three siblings, R. (then three years old), G. (then 23 months old-M.’s twin), and N. (then six months old) were immediately taken into protective custody. G. had injuries to his head, chest, and back; an X-ray revealed he had suffered a skull fracture. The doctor examining him also suspected G. was malnourished.
A juvenile dependency petition was filed on December 21, 2009, alleging R., G., and N. came within the jurisdiction of the juvenile court under section 300, subdivisions (a) (serious physical harm), (b) (failure to protect), (e) (severe physical abuse to a child under age five), (f) (causing another child’s death through abuse or neglect), and (i) (cruelty).
Jurisdiction/Disposition and Addendum Reports
In the jurisdiction/disposition report, the social worker wrote that father denied ever having seen mother hit the children, though he admitted both he and mother had spanked or “popped” the children. Father had on occasion returned home to observe the children with “reddish skin” on their arms, legs, and hips, “as if they were ‘popped too hard.’” Father admitted he had “started to have concerns with [mother] over the last month” before M.’s death. “He observed her to be increasingly irritable and ‘everything was getting to her more.’ ‘She was yelling a lot[.’] When asked at whom, he stated ‘all of us.’ He denies having witnessed any hitting. He tried talking to her to no avail. He explained that when his wife is frantic and ‘freaked out[, ’] she needs to be left alone because she won’t say anything.” The social worker noted “that the father had concerns regarding the mother’s ability to care for the four young children, based on him describing the mother as getting, ‘increasingly’ crazy. However, the father continued to leave the children under the mother’s care, while he went to work.”
Because of the pending criminal investigation, mother did not make any statements to the social worker. On the date of M.’s death, mother had told one of the responding police officers that M. woke up sick that day, did not want to eat anything, and had vomited clear liquid three times during the day. Mother left the children in a bedroom, unsupervised and with the door closed, for about three hours. When she checked on the children, mother found M. on the floor, unresponsive, with a bloody nose. Mother told a different officer that when she checked on the children, M. was standing, then “appeared to go weak and limp and fell.” Although mother was worried, she waited about 20 minutes to call 911.
One of the responding police officers told the social worker that when father arrived home on the day of M.’s death, he “was informed that his baby was transported to the emergency room in serious condition and that they had no further news. Mr. W[.] sighed, stated ‘what else can go wrong’ and looked away. He subsequently went to his car, grabbed a bag out of the trunk and walked into the house. He didn’t acknowledge his wife or children, but walked to a room near the garage. He put on some gloves, got a box cutter and opened a box of golf clubs. For 5-10 minutes, he was involved with these golf clubs and made some sort of statement to Officer Jones that ‘this relaxes me[.’] He then went to his home office and began checking email on his laptop. [¶] Officer Jones states that the father did not acknowledge the mother or children or ask to go to the emergency room.”
The social worker also reported that an examination after M.’s death revealed G. “had a skull fracture and multiple bruises to most of his body. There appeared to be hand prints on his body.” G.’s liver function test indicated he had suffered abdominal trauma, not related to disease. G. also appeared to be malnourished, with his weight in the third percentile.
R. displayed no signs of physical abuse, but suffered from a verbal speech delay.
N. appeared in good health, but had protein malnutrition. He had a mark on his chest that might have resulted from trauma, rather than a birthmark; the mark was not noted on N.’s birth records.
In the report, the social worker did not make any recommendation regarding jurisdiction or disposition, because the investigation was still ongoing. The social worker did recommend that the children remain in out-of-home care until the investigation was completed.
Mother was arrested in February 2010, and charged with one count of child assault causing death (Pen. Code, § 273ab), and three counts of child abuse and endangerment (id., § 273a, subd. (a)).
In an addendum report filed in March 2010, father was reported to have said he “cannot explain how he didn’t see these things.... He wonders if his problems with the mother could have distracted him from what was happening with their children. Her ‘irate episodes’ and his avoidance of the problems by not coming home could have prevented him from seeing what was happening to them. He was also having some problems at work which made this time to be very overwhelming for him.”
In another addendum report filed in March 2010, the social worker wrote: “The undersigned asked [father] about his statement that the three of them (himself, G[.] and M[.]) were targeted by the mother. He confirmed making this statement. When asked if he thought about what could have happened to the other two targets, M[.] and G[.], in his absence, he stated no. The undersigned commented that he is 6 feet 2 inches, approximately 200 pounds, and was avoiding his 5 foot 7 inch wife who weighs about 130 lbs. Did he consider that maybe the twins were more afraid of their mother than he was of his wife? Mr. W[.] admitted he didn’t think about it when he withdrew from his home and family.” The social worker also wrote: “The undersigned confronted the father about his apparent disregard for his children while they were at home living with their mother. He did not think to protect them from a person he suspected was suffering from some mental illness and was behaving erratically. He did not respond.”
An addendum report filed in May 2010 reads, in relevant part, as follows:
“The Court has for its consideration the safety and welfare of the children, R[.], G[.] and N[.] W[.], who were brought into protective custody on December 17, 2009, due to the suspicious death of the sibling, M[.]. The undersigned believes the petition to be true and that the children are in need of the protection of the Court.
“The child, M[.], died on December 17, 2009, as a result of blunt force trauma. The blunt force trauma caused an aortic tear that lead [sic] to her pericardium filling up with blood, eventually stopping her heart. The child died approximately ten minutes after being struck, while in the sole care of her mother. This child sustained injuries previously, as evidenced by the multiple bruising on her body at various stages of healing and the new and old rib fractures that became evident at the autopsy.
“M[.]’s twin, G[.], sustained a skull fracture of an unknown age, malnourishment and environmental deprivation. He was subsequently diagnosed with Failure to Thrive, a medically avoidable condition which would have been prevented with consistent medical supervision and intervention.
“When placed into custody, G[.] appeared to have autistic qualities which were attributed to environmental deprivation. Although he continues to demonstrate some delays in all areas, his improvements have been significant with minimal professional intervention, mostly from attention and guidance by the foster parents. His rebounding from his autistic like characteristics le[a]ds the undersigned to believe that Dr. Wong’s assessment of environmental deprivation is accurate.
“The children’s mother has been arrested for the child abuse leading to the death of M[.] and the severe abuse of the child, G[.]. The undersigned has had little meaningful contact with Ms. W[.], as instructed by her counsel, yet the undersigned is of the opinion that she suffers from a mental condition as evidenced by the mother’s erratic behavior at a visit. This, however, does not preclude her culpability in the death of her daughter, M[.], and the abuse/neglect of the other twin, G[.]....
“Despite the mother’s arrest, this does not deflect the responsibility of the father to have protected the children from their mother.
“Mr. W[.] has repeatedly admitted to suspecting that something was amiss with his wife, L[.]W[.]. He was researching mental health diagnoses and treatment on the computer for months, as evidenced by the search logs obtained by the police. He admittedly stayed away from the family residence in an effort to avoid the ‘erratic’ and ‘irate’ behavior of his wife.
“He has also made statements as to his wife not liking him and the twins. The undersigned finds it difficult to believe such insight would not have led a concerned parent to protect his children from their mother or at least warrant further inquiry and/or investigation as to whether he needed to protect the twins from his wife. Instead, he admits that he did not consider that the children were in danger, and instead pursued other goals which included his career, his aspiration to be a professional golfer and his business degree.
“It is curious that the military has communicated that assistance is readily available to anyone who asks for help, yet the father did not ask for any assistance. If he had made any comments to his immediate supervisor expressing concern for what was happening in his home, the services and interventions available to any and all military personnel and their families would have become available to them. Unfortunately for M[.] and G[.], the father did not think to mention his concerns or difficulties with his sergeant, or anyone else for that matter. He appears to simply have protected himself and ignored the problem as a whole.
“Another curious observation by the undersigned is the father’s lack of knowledge about the conditions that plagued the child, G[.]. He did not seem to notice that the child had sustained multiple bruises on his body over a period of time or that he was suffering from malnourishment. He didn’t seem to notice that his son was developmentally delayed and was acting with autistic features. He even provided developmental information to the pediatrician in July 2009, stating that G[.] was capable of doing things that he is unable to do, such as speak 10-20 words. Mr. W[.] genuinely appeared to be in shock when the undersigned presented him with the developmental delays of G[.], as provided through the Regional Center of Orange County. [¶]... [¶]
“In view of the foregoing, it is respectfully recommended that the Court sustain the allegations of the Petition and that the children be declared dependent children of the Juvenile Court and that the Court find that no Family Reunification services be ordered for the children’s parents pursuant to Section 361.5(b)(4), (5), and (6) of the Welfare and Institutions Code. It is further recommended that the Court find reasonable efforts were made to prevent or eliminate the need for removal of the children from their home; that for the welfare of the children, custody be vested in the Social Services Director for suitable placement, and that the matter be scheduled for a hearing pursuant to Section 366.26 of the Welfare and Institutions Code.”
Jurisdiction Hearing
At the jurisdiction hearing, the assigned social worker testified father had made conflicting statements, sometimes stating that mother and the children had been fine, and he had not noticed anything wrong, but at other times stating mother “seemed overwhelmed.” Father had recognized G. and M. were targets for mother, but did not notice anything wrong with their physical states or their development. The social worker had confirmed with medical professionals that the bruising on G. and M. would have been evident on the day of M.’s death. G. was improving and had been eating well while in foster care.
Dr. Daphne Wong, the medical director of the child abuse and neglect team at Children’s Hospital of Orange County, had examined G. after he was taken into protective custody. At that time, G. had multiple bruises on his face, on his eyes, and on his sides under his arms. G. had suffered a skull fracture and injuries to his liver as the result of blunt force trauma; his injuries were not consistent with those typically associated with children at play.
Dr. Wong testified G.’s low weight, growth recovery lines, and nutritional test results indicated G. was malnourished. After being placed in foster care, G. gained weight, indicating he was able to eat and gain weight. Dr. Wong also testified there was no credible or rational explanation for G.’s previous low weight and failure to grow other than lack of adequate nutrition.
The doctor who performed M.’s autopsy testified M. died due to nonaccidental blunt force injuries to her head and torso, and determined M. was the victim of a homicide. M. had suffered old and new fractures to her rib cage. M. had also suffered a cut and bruising on her lip. Bruising on M.’s back was unlikely to have been caused by performing CPR; rather, it was consistent with being grabbed.
One of the police detectives who spoke with mother at the hospital on the day M. died testified mother showed little emotion after learning of M.’s death. Father did not seem surprised or shocked when informed of M.’s death, and told the detective he worked under pressure and therefore did not get worked up about what was transpiring. Father told one of the police detectives he had noticed bruising on the children, mother hit the children because they acted up, and mother treated M. and G. differently than she did R. and N.. Father told the detective he did not seek help for mother’s issues through the military because “[h]e didn’t want to have to go through the hoops to get it done.”
At the conclusion of the jurisdiction hearing, the court found there was clear evidence of severe abuse to M. and G. and clear evidence that G. “suffered from willful prolonged failure to provide adequate food and nutrition.” The court then found G. was subject to the jurisdiction of the juvenile court pursuant to section 300, subdivisions (a), (b), (e), (f), and (i). The court further found that R. and N. were subject to the court’s jurisdiction pursuant to section 300, subdivisions (a), (b), and (f).
Disposition Hearing
At the disposition hearing, the social worker testified she was recommending mother and father not be offered reunification services. The social worker did not believe denial of reunification services would be detrimental to the children, because they had not shown any “adverse adjustment effects” from their placement in foster care, and showed more positive reactions to the foster parents than to father.
A psychiatrist testifying on father’s behalf opined that reunification services would prevent the reabuse or continued neglect of the children by father. The psychiatrist admitted he had not observed father interacting with the children, and it would be important to know whether father had a bond with the children before recommending reunification services.
Father’s parenting and child abuse program group facilitator testified father was cooperative and attentive during his sessions. Father did not discuss the circumstances leading to M.’s death, or his responsibility for her death.
Father’s therapist testified father was cooperative and engaged during their sessions, but had made minimal progress in the therapeutic goal of accepting and processing responsibility for M.’s death.
The juvenile court found, at the conclusion of the hearing, that it would be detrimental to the children to be placed in the custody of mother and father; that reasonable efforts had been made to prevent or eliminate the need for removal of the children from their home; and that reunification services need not be provided to mother and father, pursuant to section 361.5, subdivision (b)(4) and (5). The court then set a permanency hearing. Mother and father separately filed notices of intent to file a writ petition. This court ordered real parties in interest to show cause why a writ of mandate should not issue. The Orange County Social Services Agency filed an opposition to the petition, and the children filed a response in which they incorporated by reference the agency’s arguments and requested the petitions be denied.
Discussion
I.
Father’s Petition
Father argues the juvenile court erred in finding the allegations under section 300, subdivisions (e) and (f) true. In determining whether the children came within the juvenile court’s jurisdiction under any subdivision of section 300, “we use the substantial evidence standard of review, where we determine whether evidence that is of reasonable, credible and solid value supports the dependency court’s findings. We do not reweigh the evidence, nor do we consider matters of credibility.” (In re E. H. (2003) 108 Cal.App.4th 659, 669.)
Initially, we note that father does not challenge the juvenile court’s assertion of jurisdiction over the children, pursuant to section 300, subdivision (a) or (b), or its assertion of jurisdiction over G., pursuant to section 300, subdivision (i). Dependency jurisdiction may be based on any one ground set forth in section 300. (D.M. v. Superior Court (2009) 173 Cal.App.4th 1117, 1127.) Therefore, even if father were correct that there was not substantial evidence to support the juvenile court’s jurisdictional findings under section 300, subdivisions (e) and (f), we would nevertheless deny the petition for a writ of mandate, because the court’s jurisdictional findings under section 300, subdivisions (a), (b), and (i) are unchallenged.
There could not be any real dispute that there was substantial evidence that mother and father’s surviving children were at a substantial risk of physical harm inflicted nonaccidentally, or suffered as a result of the failure or inability of mother and father to supervise or protect the children. (§ 300, subds. (a), (b).)
A. Section 300, subdivision (e)
As relevant to this case, section 300, subdivision (e) permits a juvenile court to exercise jurisdiction over a minor if “[t]he child is under the age of five years and has suffered severe physical abuse by a parent, or by any person known by the parent, if the parent knew or reasonably should have known that the person was physically abusing the child. For the purposes of this subdivision, ‘severe physical abuse’ means... the willful, prolonged failure to provide adequate food.” The section 300, subdivision (e) count was dismissed with regard to R. and N., and was sustained only as to G.
At the jurisdiction hearing, the juvenile court made the following findings regarding the application of section 300, subdivision (e) as to G.: “[T]he court does have evidence, and I think it’s clear evidence, that the child has suffered from willful prolonged failure to provide adequate food and nutrition. [¶]... The fact that at a fairly recent period in time, this child was close to normal weight, and over this period of time is running to the third percentile is something that could only occur as a result of the willful and prolonged failure to provide adequate food. [¶] There could have been an argument that the child suffered from some medical condition or such that would prevent the child from being able to gain weight, but the evidence subsequent to the child being brought into protective custody shows just the contrary. The child is gaining weight and is moving towards a healthy status. The doctors have opined, after fairly exhaustive examination of the child, the child does not suffer from any medical condition which would have resulted in the child’s physical condition at the time, and so the court finds that under that analysis, that the [section 300, subdivision (e)] count does apply to G[.]. [¶]... And while, perhaps, the key to finding that the child comes under [section] 300(e) has to do with the... willful and prolonged failure to provide adequate food, the court, nevertheless, believes that the other injuries to the child and the child’s sibling are significant facts which supports the finding under sub[division] (e). [¶] I should address the idea of willful. Clearly, if the child is losing that kind of weight, if the child is not gaining weight, if the child is in the third percentile, it would have to take an effort of will to not take the child to an appropriate professional to find out what’s wrong with the child and there is no evidence to suggest that the parents did that either. And with respect to that, I find that father is equally culpable, perhaps in some ways even more so, in terms of that because... as things progressed worse and worse at home, it seemed that father distanced himself further from the home, so whereas one could argue that gradual changes over a period of time might be something that some casual observer may overlook. [¶] The fact that the father is seeing the child as infrequently as, apparently, he was should have made a stark contrast to the child’s appearance from time one to time two and I think that he would have noticed. I don’t think that there is any substantial evidence to suggest that he wouldn’t. It seems to me that he would have noticed that kind of weight loss of one of his children, and so the court-that helps the court to substantiate the [section 300, subdivision (e)] count as to the father, as well.”
Because the juvenile court based its section 300, subdivision (e) finding on the willful, prolonged failure to provide adequate food to G., we need not address father’s argument that there was insufficient evidence to support the court’s exercise of jurisdiction under this subdivision based on other types of severe physical abuse.
Dr. Wong testified G.’s weight was “quite low for his age at 23 months.” G. was in the third percentile for weight for children his age. Dr. Wong testified that G.’s low weight was significant because he was less than two kilograms heavier than N., who was 18 months younger. The results for G.’s prealbumin test, which measures nutritional status, particularly regarding protein levels, were “very low.” Dr. Wong observed growth recovery lines on G.’s X-rays, indicating that “for some reason, the bone wasn’t growing, and then it started growing again.” The growth recovery lines, combined with other test results and the comparison between the weights of N. and G., signified to Dr. Wong that G. was malnourished. G. gained 500 grams in weight within five days after being removed from mother and father’s custody, “which indicated to [Dr. Wong] that he could eat and gain weight.” G.’s pediatric records, which Dr. Wong reviewed, did not show anything out of the ordinary at his last doctor’s visit five or eight months before M.’s death. The juvenile court could reasonably have inferred from this evidence that G.’s malnourishment was swift and significant. Dr. Wong testified it was significant that G. had only gained one pound in six months: “[I]t would tell me over that period of time something happened where he wasn’t getting the nutrition he needed or he had a significant disease process.” Ultimately, Dr. Wong concluded G. was malnourished.
The court engaged in the following colloquy with Dr. Wong regarding G.’s malnourishment:
“[The court:]... [¶] First of all, with respect to the malnutrition, ... is there anything that you observed with respect to that which would lead you to believe that the malnutrition was as a result of a prolonged failure to provide adequate food?
“A. I believe that, again, while the child was in the hospital and the child did have some what we call oral aversion to certain foods, only liked the pureed foods would not really take any solid chunk foods, but given the foods that the child would take, we did offer and the child did gain weight, significant weight within the hospital-over a pound within five days would lead me to believe that the child was not provided adequate nutrition.
“Q.... [W]ith those sets of circumstances that you just described, is there any other credible or rational explanation for the child’s malnutrition which fits those circumstances?
“A. I don’t believe so. Looking at, also, the records, you know, the child being in the 25th percentile and then dropping to the third percentile, the child would have had to have a significant disease process going on, which we did not find, to explain the malnutrition.”
Dr. Wong’s expert opinion that G. suffered from malnutrition was sufficient evidence on which the juvenile court could sustain the allegations under section 300, subdivision (e). Ample evidence supported Dr. Wong’s testimony. There was thus substantial evidence to support the juvenile court’s assertion of jurisdiction over G., pursuant to section 300, subdivision (e).
Father challenges Dr. Wong’s conclusion that G. was malnourished. Father contends the results of the test for protein nutrition levels were low, but not excessively so; the difference between G.’s actual weight and a normal weight for a child his age was not significant; and the fact G.’s X-rays showed growth recovery lines meant that at some point G. was provided an adequate amount of food. Father’s challenges, individually or collectively, do not compel a conclusion that there was not substantial evidence supporting the juvenile court’s findings.
B. Section 300, subdivision (f)
Section 300, subdivision (f) permits a juvenile court to exercise jurisdiction over a minor if “[t]he child’s parent or guardian caused the death of another child through abuse or neglect.” Father was not alleged to have caused M.’s death through abuse. Rather, R., G., and N. were alleged to have come within section 300, subdivision (f) because father’s neglect caused M.’s death. The juvenile court made the following findings: “And the court also has to, in terms of dealing with father’s knowledge of what was occurring, he stated it clearly. His comments were that he knew that the mother was-had problems with both him and the children. That was one of the reasons why he stayed away, but the children had nowhere to escape to and the father understood this and that these multiple bruises, these injuries to the children, fractured skulls and that sort of thing, it’s just beyond comprehension that the father could have been ignorant of all of that, especially when he should have been in a posture of, actually, looking for it. [¶]... [¶] I truly believe father knew what was going on. He knew there was a problem.... I think that father did look into some things, but never took an active role in attempting to protect the children, and unfortunately, that was with tragic consequences.”
Father cites two cases in support of his argument that there was insufficient evidence he caused M.’s death through neglect: Patricia O. v. Superior Court (1999) 69 Cal.App.4th 933 (Patricia O.), and In re Ethan N. (2004) 122 Cal.App.4th 55 (Ethan N.). Neither is directly on point, because in both cases the issue was not whether jurisdiction could be asserted under section 300, subdivision (f), but whether reunification services were properly denied under section 361.5, subdivisions (b)(4) and (c), respectively.
In Patricia O., supra, 69 Cal.App.4th at pages 935-936, the child died as a result of physical abuse, presumably inflicted by the mother’s boyfriend. The mother denied observing any physical abuse by the boyfriend (other than one occasion on which the boyfriend struck the child with a belt). (Id. at pp. 936, 940.) One of the mother’s surviving children claimed he had reported the abuse he and his siblings suffered to the mother. (Id. at p. 937.) Father attempts to distinguish Patricia O. on the ground that he was not present when mother’s abuse of the children occurred, while the mother in Patricia O. was “present during multiple acts of physical abuse and did not take any steps to protect [her] children.” But, for the reasons we explained, father’s description of the mother’s knowledge in Patricia O. is incorrect. Father’s refusal to acknowledge and address the abuse inflicted by mother is comparable with that of the mother in Patricia O.
In Ethan N., the local social services agency recommended that reunification services not be offered to the mother, in part, because she had “caused the death of [another child] through abuse or neglect [citation].” (Ethan N., supra, 122 Cal.App.4th at p. 61.) The juvenile court granted reunification services. (Id. at p. 63.) The social services agency appealed, and the appellate court reversed. (Id. at p. 59.) Although father presents Ethan N. as a case of death caused by neglect where the mother failed to take steps to protect her child despite being present during “multiple acts of physical abuse, ” the language of the case consistently discusses the mother as someone who caused the death of a child by abuse or neglect. (See id. at pp. 61, 66, 68.)
More relevant to our decision are two recent cases applying section 300, subdivision (f) in the context of jurisdictional findings. In In re A.M. (2010) 187 Cal.App.4th 1380, 1382, the appellate court affirmed the juvenile court’s order declaring the minors to be dependent children of the court, pursuant to section 300, subdivision (f). “Here, there is sufficient evidence to support the court’s findings. The court relied on the statements [the father] made to the [Naval Criminal Investigative Service] agents in supporting its findings. [The father] stated that when he was in the family bed, he ‘pushed’ [six-day old] James as far as he could toward [the mother] in hopes that she would wake up and attend to James’s crying. [The father] later admitted he heard James struggling to breathe and that James was not breathing normally. He listened to James struggle for about two minutes. [The father] stated he did not take any action and instead, he went to sleep. As Dr. Chapman concluded in the amended autopsy report, James died of asphyxiation with compression/overlay. While Dr. Chapman did not find the manner of death to be homicide, he also did not find the manner of death to be accidental. As the trial court stated, [the father] recognized there was a risk to James and he had the ability to ‘qualify, quantify and assess the risk, and, more importantly, [was] in a position and [had] the means to intervene.’ [The father], however, did not intervene even though he heard James struggling to breathe. The evidence is sufficient to support the juvenile court’s finding that [the father] caused the death of James through neglect.” (In re A.M., supra, at p. 1388.) Here, too, father was in a position and had the means to intervene to prevent risk of harm to M. Failing to do so caused the death of M. through neglect.
Another recent case is relevant to our analysis, although it is factually different, because there were no allegations of abuse of a child. In In re Ethan C. (2010) 188 Cal.App.4th 992, the father drove his daughter, Valerie, in a car without securing her in a car seat. An automobile accident caused by another driver resulted in Valerie being thrown from the car, and suffering a fatal injury. (Id. at p. 995.) The father’s two other children were declared dependents of the juvenile court, pursuant to section 300, subdivision (f), because the father had caused the death of Valerie by neglect. (In re Ethan C., supra, at pp. 998-999.) The majority concluded that there was substantial evidence to sustain the jurisdictional finding. (Id. at pp. 1001-1002.) One dissenting justice would have concluded the father’s one time lapse in judgment was insufficient to justify the juvenile court’s exercise of jurisdiction over the surviving children; notably, the dissenting justice did not conclude Valerie’s death was not caused by the father’s neglect. (Id. at pp. 1004-1006 (dis. opn. of Rothschild, J.).) Here, father’s failure to prevent M.’s death, despite his concern regarding mother’s increasingly dangerous behavior, and, indeed, his decision to withdraw from the family despite his realization that M. and G. were targets of mother’s anger, are at least as neglectful as the failure to properly use a car seat.
The juvenile court’s assertion of jurisdiction over R., G., and N., pursuant to section 300, subdivision (f) was supported by substantial evidence.
II.
Mother’s Petition
Mother argues the juvenile court erred by denying her reunification services under section 361.5, subdivision (b)(4) and (5). “We affirm an order denying reunification services if the order is supported by substantial evidence. [Citation.] ‘In making this determination, we must decide if the evidence is reasonable, credible, and of solid value, such that a reasonable trier of fact could find the court’s order was proper based on clear and convincing evidence. [Citation.]’” (In re Harmony B. (2005) 125 Cal.App.4th 831, 839-840.)
Pursuant to section 361.5, subdivision (a), “[w]hen a child is removed from the custody of his parents, reunification services must be offered to the parents unless one of several statutory exceptions applies.” (In re William B. (2008) 163 Cal.App.4th 1220, 1227.) The juvenile court need not provide the parents with reunification services if it finds, by clear and convincing evidence, that any of the exceptions set forth in section 361.5, subdivision (b) applies. (§ 361.5, subd. (b).) In Renee J. v. Superior Court (2001) 26 Cal.4th 735, 744, the California Supreme Court stated, “‘[o]nce it is determined one of the situations outlined in [section 361.5, ] subdivision (b) applies, the general rule favoring reunification is replaced by a legislative assumption that offering services would be an unwise use of governmental resources. [Citation.]’”
As relevant to this case, section 361.5, subdivision (b)(4) and (5) provide that reunification services need not be provided if the juvenile court finds by clear and convincing evidence that the parent “has caused the death of another child through abuse or neglect” (§ 361.5, subd. (b)(4)), or that the children were brought within the juvenile court’s jurisdiction because they were under five years old and had suffered “severe physical abuse by a parent” (§§ 300, subd. (e), 361.5, subd. (b)(5)). There was substantial evidence to support the juvenile court’s finding that section 361.5, subdivision (b)(4) and (5) applied in this case. As detailed ante, mother had sole care of M. when she died as the result of blunt force trauma; M.’s death was classified as a homicide. Mother was also caring for the children when they suffered multiple bone fractures, bruising, and other injuries caused by an adult, and when G. suffered from prolonged malnutrition.
Once the juvenile court determined that reunification services need not be provided pursuant to section 361.5, subdivision (b)(4) and (5), reunification services could not be ordered unless the court found by clear and convincing evidence that reunification would be in the best interests of the children. (§ 361.5, subd. (c).) The court specifically found there was no evidence, much less clear and convincing evidence, that it would be in the children’s best interests to offer any reunification services to either father or mother. Although father’s expert witness testified father should be afforded reunification services because, in his opinion, such services would likely prevent further abuse or neglect of the children, the expert never opined on whether services would be in the children’s best interests. The expert testified it would be relevant to a recommendation regarding reunification services to know whether father had a relationship or bond with his children; the expert also admitted his only information in this regard came from what father had told him. Father’s parenting and child abuse program facilitator testified father was responsive and participated in class, but offered no evidence regarding whether reunification services would be in the children’s best interests. The assigned social worker testified at the disposition hearing that failing to offer reunification services to father would not be detrimental to the children, in part because their relationship with and bond to the foster parents were greater than with father.
Mother argues the juvenile court could not deny her reunification services vis-à-vis N. and R., based on section 361.5, subdivision (b)(5), because those two children were not adjudicated as dependent children pursuant to section 300, subdivision (e). This is true, but irrelevant, because the juvenile court denied reunification services for mother under section 361.5, subdivision (b)(4) as well.
Mother appeared before the juvenile court referee in a jail jumpsuit; she argues she was therefore prejudiced by being “assumed ‘guilty’ because of her incarceration.” Although a criminal defendant has a constitutional right not to be forced to stand trial before a jury while wearing identifiable prison clothes (People v. Pena (1992) 7 Cal.App.4th 1294, 1303), no such right exists in a nonjury juvenile dependency proceeding. Even if such a constitutional right could be asserted, mother waived it by failing to raise the issue before the juvenile court. (Id. at p. 1304.)
Disposition
The petitions for a writ of mandate are denied.
WE CONCUR: MOORE, ACTING P. J., ARONSON, J.