Opinion
F079953
05-07-2020
In re NOAH H. et al., Persons Coming Under the Juvenile Court Law. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Appellant, v. J.S., Defendant and Respondent.
Daniel C. Cederborg, County Counsel, and Kevin A. Stimmel, Deputy County Counsel, for Plaintiff and Appellant. Katie Curtis, under appointment by the Court of Appeal, for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. 19CEJ300027-1, 19CEJ300027-2)
OPINION
THE COURT APPEAL from orders of the Superior Court of Fresno County. Brian M. Arax, Judge. Daniel C. Cederborg, County Counsel, and Kevin A. Stimmel, Deputy County Counsel, for Plaintiff and Appellant. Katie Curtis, under appointment by the Court of Appeal, for Defendant and Respondent.
Before Smith, Acting P.J., Meehan, J. and DeSantos, J.
-ooOoo-
At a combined and contested jurisdictional and dispositional hearing in July 2019, the juvenile court adjudged then two-year-old Noah H. and four-month-old J.S. dependent children under Welfare and Institutions Code section 300, subdivisions (a), (b), (e), (i) and (j), denied their father, Jose H., reunification services under section 361.5, subdivisions (b)(5), (6) and (7), and ordered reunification services for their mother, J.S. (mother).
Statutory references are to the Welfare and Institutions Code.
Appellant Fresno County Department of Social Services (the department) appeals from the juvenile court's order granting mother reunification services, contending the evidence compelled the juvenile court to deny her services under section 361.5, subdivision (b)(6) as a matter of law. Subdivision (b)(6) of section 361.5 requires the court to deny reunification to a parent whose child was severely physically harmed by an act or omission of the parent and the child would not benefit from reunifying with the parent. When the statute applies, the court may only order services if reunification serves the child's best interest. (§ 361.5, subd. (c)(2).)
We conclude the juvenile court erred in not finding section 361.5, subdivision (b)(6) applied. We remand the matter for a hearing on whether continuing reunification services for mother serves the children's best interests.
I.
INTRODUCTION
On January 27, 2019, mother and Jose, a young unmarried couple, took their firstborn child, then 22-month-old Noah, to the emergency room at Valley Children's Hospital where he was treated for a life-threatening head injury. Noah was promptly admitted to the pediatric intensive care unit (PICU) diagnosed with a skull fracture, cerebral hemorrhage, hematoma and nonaccidental trauma.
Over the ensuing several days, mother provided different versions of how Noah was injured. She and Jose claimed he was injured 24 hours before they took him to the hospital. There was evidence, however, he was injured up to 48 hours before. Mother described Noah as unconscious immediately after the injury and unable to move his upper body, stand, maintain his balance or feed himself. He also vomited and cried. Mother claimed she delayed seeking medical treatment because she did not realize how badly he was hurt and did not want to look bad in front of Jose. On January 30, 2019, during an interview with law enforcement, mother admitted after extensive questioning she observed Jose throw Noah to the floor, hitting his head. Afterward, Jose took Noah into the bedroom closet, closed the door and threw him to the floor two more times. Jose confessed to throwing Noah to the floor, striking his head.
No one disputes that Noah suffered severe physical harm by Jose's deliberate act. The question on this appeal is whether the juvenile court was compelled to find as a matter of law under section 361.5, subdivision (b)(6) that mother's delay in seeking medical treatment for Noah caused him severe physical harm by omission. Based on our summary of the facts which follows, we conclude the evidence compelled such a finding.
II.
PROCEDURAL AND FACTUAL SUMMARY
Social worker Lung Vang from the department and law enforcement responded to the hospital on January 27, 2019, to investigate the report of Noah's injury. Jose said he was at work the day before when mother texted him, stating that Noah fell and hit his head on a rock but was fine. When he arrived home that night around 8:00 p.m., Noah was sleeping and appeared to be fine. Around 2:00 p.m. on January 27, mother called him and said Noah was not doing well. He left work and took them to the hospital. On the way to the hospital, Noah slept but Jose noticed he had a bump on the left side of his head near his eye and was only looking to the left. Noah appeared fine but was crying. Jose returned to work and arrived at the hospital approximately an hour before speaking with Vang and law enforcement.
Mother told Vang the incident occurred the night before at approximately 7:00 p.m. at the park of the apartment complex where they lived. Noah was running to the swings when he tripped and fell on a rock. He appeared "blacked out" and she had to shake him awake. She carried him back to the apartment because he could not walk. He was unable to move his upper body and appeared to be "shaking as he was moving his legs only." He had not moved his upper body since the accident and was vomiting. At home, he ate chips and nuggets, which made her think he was fine. Ordinarily, he ate without assistance, but she had to feed him the day of the accident and he was sleeping while she fed him. She noticed that he had a bump on the right side of his face and was not talking, but he only knew four words. She slept in bed with him that night because she was concerned about him. He slept from 8:00 p.m. to 5:00 a.m. She gave him his medication and noticed that his bump was getting bigger. At approximately 2:00 p.m., she noticed he was vomiting after she fed him, and he had a fever. At 5:00 p.m., he was crying but she gave him an analgesic and his fever went down. She did not take him to the hospital because she thought he would get better on his own. When Jose arrived home after work, she took him to see where Noah had fallen and Jose thought maybe Noah just needed some air. Jose drove him to a fast food restaurant to get some food. Noah could not hold his head up while seated in his car seat and his head hung down.
Jose denied going to a fast food restaurant the night before, explaining his car was impounded. Noah was sleeping in his crib when he returned from work the night before. He showered, watched television and went to bed. Noah was also sleeping in his crib the next morning when he left for work. Asked why mother would lie about the events of the previous evening, he said he did not know and did not believe she would harm Noah. Mother denied hurting Noah and said she lied about the car drive because she was scared.
Neither Jose nor mother had any history of child abuse allegations. They denied any current or past use of drugs or alcohol, domestic violence or criminal history. Mother was Noah's primary caregiver and was then 35 weeks pregnant with J.S. Noah was developmentally on target and, aside from a surgery at three months to repair a pyloric stenosis, he did not have any medical problems.
While being evaluated in the emergency room, Noah's condition deteriorated quickly; he became unresponsive, his heart rate dropped to a very low level and he manifested a "left gaze preference." He was transferred to the PICU where he remained unresponsive and had some withdrawal to pain. The attending neurosurgeon noted that mother rarely made eye contact while being interviewed. The medical social worker noted that mother appeared to have a flat affect and her emotional response was incongruent with the situation and Noah's injury. Mother disclosed she had a history of depression and was not taking medication. Other social workers noted she showed limited affection for Noah.
Noah's treating physician, Dr. Linda Keele, said Noah was still unresponsive and had seizures, which resolved with medication. Dr. Keele described Noah's injuries as the "worst-case scenario," stating such injuries were only seen in motor vehicle accidents. Noah had a skull fracture from the left front skull going to the back of the head. The left side of his brain was swollen, and he had subdural hemorrhaging on his left side. She also noticed a dime-sized bruise on his back.
At approximately 10:30 p.m. on January 27, 2019, police officers placed a protective hold on Noah at the hospital. Approximately an hour later, they informed the parents that their explanations for Noah's injury were not consistent with the severity of his injury. After conferring in private, the parents revised their explanation for Noah's injuries, stating he fell down approximately five steps while playing at the playground. Mother then said Noah actually fell down the steps of the apartment complex while she was teaching him to ascend and descend the stairs. She did not see him fall because she was distracted by a text message she received on her cell phone. She found him on the floor on his back. She lied because she was scared.
On January 28, 2019, Dr. John Kinnison, Noah's primary physician, reported that Noah was critically ill with elevated intracranial pressure, extensive complex left-sided fracture, subdural hematoma and hygroma. Noah was intubated and had a subdural drain in place. Mother told Dr. Kinnison Noah fell down the concrete stairs leading up to the apartment, which she estimated was five to six feet off the ground. She did not see Noah fall. Dr. Kinnison opined Noah's head injury could have occurred from such a fall. Based on Noah's injuries, he would have suffered neurologic complications immediately after the incident. Dr. Kinnison stated, " 'Although mother reported minor was symptomatic, it appears she is medically unsophisticated or unable to recognize the behaviors as symptoms of a head injury.' " She did not seek treatment because she was unable to recognize the warning signs. When he asked mother why her story kept changing, she said she was afraid because she did not want to look bad in front of Jose. While talking with mother, Dr. Kinnison observed a bruise on her chin and asked her about it. She denied domestic violence in her relationship with Jose.
On January 29, 2019, social worker Lisa Reyna received the results of drug testing the parents completed the day before. Both tested positive for cocaine and mother additionally tested positive for cannabinoids and opiates. That same day, Officer Kenneth Dodd interviewed Dr. Sam Lehman, Noah's treating physician in the PICU, who said Noah had retinal hemorrhaging but not to the degree one would find with classic shaken baby syndrome. Noah's injury was not consistent with falling and hitting his head. It was more consistent with being thrown from a car traveling at 60 miles per hour or falling from a second story building. Noah was on life support and there was a possibility he could die.
The department filed a dependency petition on Noah's behalf, alleging counts as to each parent under section 300, subdivisions (a) (serious physical harm), (b) (failure to protect), (e) (severe physical abuse), and (i) (cruelty). As factual support, the department cited the details and nonaccidental nature of Noah's injuries and the parents' failure to provide a reasonable explanation for them. The petition additionally alleged under subdivision (b) the parents' substance abuse placed Noah at a substantial risk of harm.
On January 30, 2019, Dodd interviewed the parents at the police department. Mother said she and Jose lived in a room in an apartment they rented from a woman named Delia. Mother reiterated her claim that Noah fell from stairs at the apartment building. However, after much prodding, she admitted that Jose threw Noah to the ground in their room in the apartment. She demonstrated by standing, raising her arms and moving both hands from the top downwards as if throwing something to the ground. She said Jose threw Noah down "with everything he had," and then took him into the closet and shut the door. Asked how many times Jose threw Noah to the floor, mother said she was not sure but then said he threw him down "a couple of times." When asked again, she said Jose threw him down once. She estimated the closet door was closed for approximately one minute. She opened the door because she thought Jose was "done." She did not hear Noah crying and thought Jose was talking to him. When Jose came out of the closet, Noah was unconscious, lying on the floor. She screamed at Jose, "He's going to die." She shook Noah, telling him to wake up. He regained consciousness after "seconds." Jose told her he threw Noah down two more times in the closet. During the incident, Delia knocked on the door. Asked whether Jose hit her, mother said he slapped her a couple of times before she was pregnant with Noah and pushed her while she was pregnant. She never sustained any bruises.
Jose also initially told the officers Noah fell on the steps but eventually broke down and admitted throwing Noah to the ground. He could not remember how many times Noah hit the ground but knew his head hit the floor. Jose was under the influence of cocaine and in a rage. He denied hurting Noah in the closet, stating he was trying to talk to Noah but Noah was not listening. He denied hurting Noah in the past. Jose was placed under arrest.
Delia told the officers she was not interested in any trouble and initially said she did not hear or see anything the day of the incident. Several days later, she contacted Dodd and informed him the parents moved out of her apartment at her request and she remembered more in terms of what she saw and heard. On January 25, 2019, a Friday, at around 7:00 or 8:00 p.m., she heard loud yelling coming from the parents' bedroom. She heard Jose yell, " 'Get the f*** out of here.' " She knocked on the door, opened it and asked what was going on. Jose said mother was in the closet. The closet door opened and mother exited with Noah, who was crying. She could not see Noah's face and did not know he had been hurt. Mother stayed in her room the next day and Delia did not see the parents. On Sunday, Jose asked her to take him to get his car, which had been towed by the police the day before. Jose told Delia they had to take Noah to the hospital because he was vomiting.
On February 6, 2019, the juvenile court ordered Noah detained and offered the parents random drug testing and mother supervised visitation. The court did not offer Jose visitation. That same day, social worker Reyna received a call from Dr. Goorsman of Children's Hospital. Dr. Goorsman was concerned about mother's ability to protect Noah because she bailed Jose out of jail. She did not inquire about Noah's condition or appear to understand the severity of his condition when the doctors explained his significant brain and neurological damage. She also presented with a flat affect and no emotion. Dr. Goorsman said Noah was able to open his eyes and appeared to be able to smile but was weakened on one side and appeared to have visual damage to the right eye. She said Noah might be paralyzed and had brain and neurological damage. He appeared to be developmentally delayed with a developmental age of approximately six to seven months. Approximately two weeks later, Noah was discharged from the hospital and placed in foster care, pending placement with a suitable relative.
In late February 2019, mother gave birth to J.S. The department filed a dependency petition, alleging she was a minor described by section 300, subdivisions (a), (b) and (j) (abuse of sibling) based on the facts alleged in Noah's petition. She was placed in foster care with Noah.
Mother told social worker Reyna she was no longer in a relationship with Jose and planned to apply for a restraining order. She was residing with a family friend, Norma. Her last incident of domestic violence was on January 13, 2019, when Jose slapped and pushed her. She did not make a police report. On March 4, 2019, mother participated in a spot test and tested negative for all drugs.
The department recommended the juvenile court sustain the allegations and deny the parents reunification services under section 361.5, subdivision (b)(5) and (6) as to Noah and under subdivision (b)(6) and (7) as to J.S.
Mother objected to the department's recommendations and the juvenile court set a combined, contested jurisdictional/dispositional hearing. In issue statements filed for the hearing, county counsel and minors' counsel argued mother's failure to seek medical treatment constituted serious physical harm by omission under section 361.5, subdivision (b)(6), citing Pablo S. v. Superior Court (2002) 98 Cal.App.4th 292 (Pablo S.). Mother's attorney argued the subdivision did not apply because pursuing reunification would benefit the children.
On June 4, 2019, the department requested information from Noah's doctors whether the delay in seeking treatment caused him additional medical damage. None of the doctors were willing to provide additional statements about Noah's condition. That same day, the juvenile court granted the department's request to withdraw the section 300, subdivision (a) count as to mother and set the matter for trial on July 23.
By July 23, 2019, the children were placed together with paternal relatives and mother had initiated services on her own. She completed a parenting program and a 12-week domestic violence program for victims. She participated in a few mental health therapy sessions but stopped attending. She sought substance abuse treatment but did not appear for the intake appointment on May 23. She tested negative for drugs and alcohol until June 20 when she tested positive for alcohol. She consistently visited the children and was able to meet the children's needs during the one-hour supervised visits.
Mother submitted the matter of jurisdiction at the contested hearing on July 23, 2019. She testified she was living with her mother, working for a security company and going to school to become a medical assistant. If the children were returned to her, she would continue to live with her mother. She was no longer in a relationship with Jose. She had not spoken to him for a couple of months and obtained a restraining order against him. She had never witnessed Jose hit or physically abuse Noah before the incident.
Mother learned in the domestic violence program not to let anyone control her and to "let go of things." Jose sometimes controlled her behavior but she thought it was normal. He sometimes controlled her parenting. She understood some of what the doctors and nurses were telling her about Noah's condition. Sometimes she did not feel she understood enough to ask questions. She knew Noah's condition was serious but did not understand the words the doctors used. No one in her family had ever had a head injury.
Mother tested positive for alcohol because she was drinking due to the stress of losing the children. She completed a substance abuse assessment and was not recommended for treatment. She believed the parenting class made her a better parent. She learned to put her children first, to reward them and to discipline them effectively. She believed she could parent Noah if he were returned to her custody, stating, "Yes, my son is my everything and that's why I have a lot of regret because I wish I would have put him first at that time." She stopped attending mental health therapy because it was "overwhelming" and she did not believe she needed someone to help her work on herself. She was raised to do things on her own. She planned, however, to start taking medication for depression.
Mother visited the children twice a week. When Noah walked in the visitation room, he knew he was going to see her and was happy. He wanted her to hold him all the time and not let him go. When visits were over, the children cried, especially Noah. Because he was not very verbal, he shook his head as if saying "No" and started throwing a fit. When mother left the visits, she felt as though part of her was gone. She cried herself to sleep but was excited about the prospect of seeing the children again in a few days.
The juvenile court questioned mother about her drug use history, beginning with what she reported during her substance abuse assessment. She told the evaluator she had never been a drug user and used drugs once in her lifetime on the day she tested positive for cocaine and opiates. Mother was inconsistent when asked about whether she was under the influence of drugs when Jose injured Noah. She initially denied being under the influence but after further questioning admitted she was under the influence of cocaine. She insisted she only used drugs twice in her life but admitted it was more than twice after the court told her it did not believe her and urged her to be truthful.
The maternal grandmother testified mother had been living with her for the previous two months and she was mother's support person. Mother and Jose lived with her when Noah was a newborn. She never saw any signs Noah was being physically abused or witnessed any domestic violence between the parents, which contradicted her statement to the department she contacted the police because they were engaging in domestic violence. She had no knowledge of them using drugs while in her home and did not observe either of them under the influence.
The juvenile court adjudged Noah a dependent under section 300, subdivisions (a), (b), (e) and (i), sustaining counts as to Jose under all four subdivisions. The court found allegations as to mother under subdivisions (b) and (i), finding the subdivision (e) count not true because she did not inflict Noah's injuries. The court adjudged J.S. a dependent child under section 300, subdivisions (a), (b) and (j), sustaining counts as to Jose under each subdivision and as to mother under subdivisions (b) and (j). The court denied Jose reunification services as recommended by the department but ordered services for mother, finding subdivisions (b)(5) and (6) of section 361.5 did not apply to her. The court set a six-month review hearing for January 8, 2020.
III.
DISCUSSION
A. Section 361.5, subdivision (b)(6)
Section 361.5, subdivision (a) sets forth the general rule that a parent whose child has been removed in a dependency proceeding must be provided reunification services. There are, however, exceptions listed in subdivision (b) of section 361.5 that allow the juvenile court to deny reunification services. Relevant here is section 361.5, subdivision (b)(6), which provides in relevant part:
"(b) Reunification services need not be provided to a parent ... described in this subdivision when the court finds, by clear and convincing evidence, .... [¶] ... [¶]
"(6)(A) That the child has been adjudicated a dependent pursuant to any subdivision of Section 300 as a result of ... the infliction of severe physical harm to the child, [or] a sibling, ... by a parent ..., as defined in this subdivision, and the court makes a factual finding that it would not benefit the child to pursue reunification services with the offending parent .... [¶] ... [¶]
"(C) A finding of the infliction of severe physical harm, for the purposes of this subdivision, may be based on, but is not limited to, deliberate and serious injury inflicted to or on a child's body or the body of a sibling ... by an act or omission of the parent ...."
In deciding whether reunification services will benefit the child under section 361.5, subdivision (b)(6), subdivision (i) of section 361.5 requires the juvenile court to consider, but does not limit it to, the following factors:
"(1) The specific act or omission comprising the severe sexual abuse or severe physical harm inflicted on the child or the child's sibling or half sibling.
"(2) The circumstances under which the abuse or harm was inflicted on the child or the child's sibling or half sibling.
"(3) The severity of the emotional trauma suffered by the child or the child's sibling or half sibling.
"(4) Any history of abuse of other children by the offending parent ....
"(5) The likelihood that the child may be safely returned to the care of the offending parent ... within 12 months with no continuing supervision.
"(6) Whether or not the child desires to be reunified with the offending parent ...."
When any of the section 361.5, subdivision (b) exceptions apply, "[t]he court shall not order reunification ... unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child." (§ 361.5, subd. (c)(2).) In such a case, "the general rule favoring reunification is replaced by a legislative assumption that offering services would be an unwise use of governmental resources." (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478.)
"[T]he party seeking bypass of reunification services under section 361.5, subdivision (b) has the burden of proving that reunification services need not be provided, ...." a showing that must be made by clear and convincing evidence. (§ 361.5, subd. (b); In re Angelique C. (2003) 113 Cal.App.4th 509, 519, 521.) However, once the court finds specific exceptions under section 361.5, subdivision (b) apply, including subdivision (b)(6), the burden of proof shifts to the parent to establish affirmatively that reunification nevertheless would be in the best interest of the child. (§ 361.5, subd. (c)(2); See In re Z.G. (2016) 5 Cal.App.5th 705, 721.)
When the party with the burden of proof fails to meet his or her burden, on that party's appeal the question "becomes whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically, the question becomes whether the appellant's evidence was (1) 'uncontradicted and unimpeached' and (2) 'of such a character and weight as to leave no room for a judicial determination that it was insufficient to support [the] finding.' " (In re I.W. (2009) 180 Cal.App.4th 1517, 1528.)
"A juvenile court has broad discretion when determining whether ... reunification services would be in the best interests of the child under section 361.5, subdivision (c). [Citation.] An appellate court will reverse that determination only if the juvenile court abuses its discretion." (In re William B. (2008) 163 Cal.App.4th 1220, 1229.)
1. Mother's failure to obtain medical treatment for Noah constituted infliction of severe physical harm by omission.
Severe physical harm for purposes of subdivision (b)(6) of section 361.5 requires deliberate and serious injury inflicted on a child by a parent or guardian by act or omission. In not applying the subdivision to mother, the court reasoned that she did not directly act on Noah's body causing injury and did not permit Jose to harm him by ignoring an obvious risk. The court explained, "There was no identified risk factor for the child here other than some vague evidence of prior domestic violence between parents and some drug use and abuse, which I do think on the day [in] question impaired their judgment ...." Nor did the court find mother's failure to seek medical treatment constituted infliction of serious injury by omission. The court stated:
"So the question is, this kid in this dramatic state of being essentially unresponsive for a period of time before brought to the hospital. Throwing up for a period of time before that[,] unable to move legs for the entire time minimum 24 hours perhaps as long as 48 constitutes a Pablo S. type of appellate underlying Court factors of conduct by parent that's sufficient for (b)(6) bypass and is certainly ... appealing. The Court does not so find."
The court continued:
"There's absolutely no proof [mother's delay] exacerbated ... an injury, or cause[d] new injury. But there is proof this child must have been absolutely ... suffering and in great jeopardy by the delay. Suffering for that day, or two days, and if that's enough I would have appellate jurisdiction tell me so.... [F]inding Pablo S. goes beyond what I can say because I don't have disfigurement before me. I don't have two months. I don't have additional physical abuse, mental emotional abuse that occurred when the Court cited its decision it was based upon the deformity and suffering. Not the suffering or pain alone."
In our view, mother's failure to act is as egregious if not more so than that of the parents in Pablo S. given her actual knowledge of the mechanism and life-threatening nature of Noah's injury. In Pablo S., six-year-old Pablo fell while playing with a scooter and broke his left femur. For nearly two months, his parents failed to seek medical treatment for him. During that time, Pablo crawled with his arms to pull himself along the floor because he could not walk and a neighbor heard him crying and screaming. His left leg healed in a rotated position and was shorter than the other leg. Finally, a neighbor took Pablo to the hospital. Pablo told a social worker he cried every day after the injury and his parents ridiculed him because he could not walk. He also said his mother hit his left leg and picked him up by the hands, made him walk and then dropped him on the floor. Pablo's surgeon said Pablo would have been in constant pain and that early medical treatment would have obviated the need for surgery. (Pablo S., supra, 98 Cal.App.4th at pp. 294-297.) The juvenile court denied the parents reunification services under section 361.5, subdivision (b)(6) and they sought writ review. (Id. at p. 294.)
The Pablo S. court denied the writ petitions, concluding the parents' failure to provide medical attention in light of Pablo's constant pain and the disfigurement that resulted from his broken leg constituted the infliction of serious injury by omission. The court rejected the parents' excuses to explain their failure to act, noting that the neighbor who took Pablo to the hospital immediately recognized the deformity of his leg. (Pablo S., supra, 98 Cal.App.4th at pp. 301-302.) The court stated:
"Thus, for either parent to suggest they did not know Pablo needed medical help is simply not credible. Their neglect caused Pablo to suffer unreasonably and unnecessarily for two months and continues to harm Pablo who, in all probability, will have to undergo major corrective surgery. Instead of taking Pablo to see a doctor, father and mother physically and emotionally abused the child, forcing him to walk and throwing him around " 'like ... a pillow.' " (Pablo S., supra, 98 Cal.App. 4th at p. 301.)
Here, mother knew Noah sustained a serious physical injury. She saw Jose throw him to the floor "with everything he had," striking his head. She saw him lying unconscious and knew that Jose had thrown him to the floor twice more while in the closet. Mother was also aware Noah's injury was life threatening, exclaiming to Jose that Noah was "going to die." Over the ensuing 24 to 48 hours, she watched as he suffered neurologically from his traumatic brain injury and manifested the consequences: vomiting and the inability to move his upper body, maintain his head upright and eat. At the hospital, he had to have a drain placed in his brain. As a result of his injury, he suffered neurological damage and was developmentally delayed.
We believe looking to Pablo S. for guidance under these circumstances was unfruitful given the nature of the injury involved. Pablo sustained a broken femur, which while very painful, was not life threatening. In addition, unlike Noah's head trauma, Pablo's broken femur was discrete in that it did not result in a subgroup of related injuries. The deformity that resulted from the parents not treating Pablo's fractured femur caused the serious injury that warranted applying the statute. Here, as the impact of Noah's brain injury progressed, it resulted in further serious injury as the brain bled and swelled. Although Noah's doctors were unwilling to opine whether mother's delay in seeking treatment exacerbated his condition, the court could infer from the force applied to his head and the critical nature of his condition that it did.
We conclude based on the foregoing that mother's delay in seeking medical treatment for Noah caused him serious injury by omission under section 361.5, subdivision (b)(6).
2. Providing Mother Reunification Services Would Not Benefit the Children
Having concluded mother did not inflict severe harm on Noah, the juvenile court was not required to consider whether providing her reunification services would benefit the children under section 361.5, subdivision (i). If applied, however, the four factors that pertain, i.e., the specific act or omission, the circumstance under which the harm was inflicted, the severity of the emotional trauma suffered by the child and the likelihood the children could be returned to mother's custody within 12 months with no continuing supervision, do not favor her. As we discussed above, the severity of Noah's trauma and mother's failure to seek medical treatment were egregious. We must presume given Noah's physical suffering that he suffered emotionally as well. The likelihood the children could be returned to mother's custody within 12 months without supervision appears low given her extreme failure to protect Noah and the minimal benefit she derived from the services she obtained. She had great difficulty explaining what she learned in parenting and domestic violence classes and did not believe she needed mental health services, though she knew she suffered from depression. More importantly, she minimized her drug use and lied under oath to the court.
Whether mother had a history of abusing another child and whether the children wanted to reunify with her are inapplicable since she did not have any children before Noah and Noah and J.S. were too young to say whether they wanted to reunify with her. (§ 361.5, subds. (i)(4) & (6).)
The juvenile court, anticipating an appeal, addressed the factors, stating "that's a tough call." The court expressed its belief that a "child will always benefit with services to the offending parent if there's [a] sufficient bond ...." It continued,
"Mom has done ... some services on her own. She was capable of insight that she got from those services and she repeated a number of times how much she [regretted] not telling the truth up front and how wrong she was and how clearly she recognizes that. She didn't do a great job in explaining a lot of awareness, a lot of what she learned. I think that's in part from lack of sophistication and ... [¶] inability to [be] more verbally expressive .... [¶] It did not help mom in the least that she lied to me and delayed so long giving statements about her drug use. Even if it was only to say two occasions it should have come rapidly and did not .... [¶] When you're taking multiple drugs and testing positive ... [for] ... very dangerous ... and ... addictive ones cocaine, opiates and the like. When you've done it [on] more than one occasion [and are] not being truthful about it. When you deny a real problem with it. When you have [an] extraordinarily young person in your care and when this happens to the child while you're under the influence you [have] a problem, and to this date you're not fully acknowledging it .... [¶] ... [¶] "Overall I think she would ... [get] some benefit. Benefit from [her connection] to Noah that already [exists] and ... [her positive response] during visitation. The child would benefit. Less could be ... said of [J.S.] [who was] removed so immediately and ... [a parent-child] relationship exists and overall benefit could be obtained and the child [could] benefit as well."
We conclude the evidence compelled the court to find that services would not benefit the children. Apart from the dire consequences of mother's failure to act, her understanding about what she learned in her classes was very superficial. Whether that was lack of education, as the court believed, or something more profound is unknown as that was not explored. In any event, mother's poor insight likely contributed to her inability to protect Noah. More disturbing, however, is mother's penchant for lying. She lied to the doctors, social workers and police officers about how Noah was injured. It was only after extensive questioning that she finally told the truth. In similar fashion, she lied to the court about her drug use until the court confronted her on it. In short, mother posed a very real risk of harm to her children such that offering her services would not benefit them.
B. Best Interests
As stated above, when section 361.5, subdivision (b)(6) applies, the juvenile court may not order reunification services unless it finds reunification would serve the best interest of the child. (§ 361.5, subd. (i).) Having found the statute did not apply, the juvenile court in this case was not required to make a best interest finding. The court, however, indicated what evidence it believed supported a best interest finding, stating, "If I were to find bypass if it [applied] I think given the big picture, mother's age, and participation and attachment with the child and nonoffender [status]. She's employed, seeking independence living with her mother. No longer in a relationship, and even going to school. All those factors show it would be in the best interest by clear and convincing evidence to provide services notwithstanding the bar."
Although we could decide whether reunification serves the children's best interests based on the record developed by the juvenile court, we decline to do so. Deciding what course of action will best serve a child's interest is a delicate balance of many factors, including the parent's and the child's current circumstances. (In re Ethan N. (2004) 122 Cal.App.4th 55, 66-68.) For this court to assess the children's best interests on the evidence as it existed nine months ago without any consideration of progress mother may have made in the interim or the current parent-child bond serves no one. We therefore remand the matter to the juvenile court for its determination.
IV.
DISPOSITION
The juvenile court is directed to enter a finding section 361.5, subdivision (b)(6) applies to mother. The court is further directed to conduct a hearing on the issue of whether providing mother continued reunification services serves Noah and J.S.'s best interests. If the court determines that providing reunification services serves the children's best interests, it shall proceed as required by statute. If, however, the court determines reunification services do not serve the children's best interests, it shall order them terminated and set a section 366.26 hearing.