Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County Super. Ct. No. CK62047, Robert L. Stevenson, Referee.
Harry Zimmerman, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel and Lisa Proft, Deputy County Counsel, for Plaintiff and Respondent.
EPSTEIN, P. J.
Mother Nicolette B. appeals from an order of the juvenile court denying her family reunification services with her sons Andrew and Anthony. We find no abuse of discretion and affirm the order.
FACTUAL AND PROCEDURAL SUMMARY
Mother had been dating Andrew S. for six months when she decided to move in with him in December 2005. At that time she was pregnant with his child. She and her three sons, Alex, Andrew and Anthony, moved from the maternal grandparents’ home to Andrew S.’s apartment the week before Christmas. Alex was 13 months old, Andrew was five, and Anthony was eight.
Shortly after she moved into the apartment, mother left Alex there with Andrew S. for 10 or 15 minutes while she went to a market. Alex was in his playpen when she left. When she returned, Alex had a red bruise on his forehead about the size of a quarter. She asked Andrew S. what happened, and he said Alex had fallen out of the playpen. Mother put ice on the bruise and the swelling went down. When she checked the next morning, she noticed the bruise was turning a “bluish/purplish color.” Alex seemed to be acting normally, so she was not concerned. The bruise lasted a week or less.
On the morning of January 2, 2006, mother was in the bathroom of the apartment getting ready to go to lunch. Andrew S. was in bed, and Alex was in his playpen in the bedroom. (The two older boys were at their grandparents’ house.) Mother heard the playpen hit the wall. When she came out of the bathroom, Alex was sitting on the floor outside of the playpen. He had a bruise on his temple, which was red and swollen to the size of a golf ball. Andrew S. told her Alex must have fallen out of the playpen. He said he had been lying down and did not see or hear what happened. Mother put ice on Alex’s bruise and the swelling went down. Andrew S. asked if they should take him to the doctor. Mother said no, because Alex was behaving normally, eating well and talking.
The following morning, Alex’s eye was swollen shut and there was purple bruising around it. Mother was a little concerned, but she applied ice and Alex then was able to open his eye most of the way. She continued to apply ice throughout the day.
On January 4, Alex’s left eye looked better, but the bruising had extended slightly into his right eye. He was eating normally and still was playful. Mother and Alex went to her parents’ house to bring some clothes for the older boys. The maternal grandfather saw Alex’s bruised eye. Mother explained that Alex had fallen out of the playpen. The grandfather was upset, and told her she should take him to the doctor. When the maternal grandmother came home, she also was concerned about Alex’s bruised eye. She asked if mother had taken him to the doctor. Mother said no, and told her Alex was eating normally. The bruise faded some over the next few days.
Mother and the three children went camping with the maternal grandparents on Saturday and Sunday, January 7 and 8. Alex seemed fine during the trip.
Early Monday morning, January 9, mother helped Anthony and Andrew get ready for school. She changed Alex’s diaper and put him in the playpen with a bottle. She woke Andrew S. and told him she was leaving to take the older boys to school, and that Alex was in the playpen.
She returned about an hour later to discover that Alex had been rushed to the hospital, where he was pronounced dead. Andrew S. told her that he found Alex gagging, unable to breathe. He said he tried to resuscitate the child, and then sought emergency help. An autopsy revealed that Alex’s death was a homicide. The cause of death was multiple traumatic injuries from blunt force trauma. Andrew S. was arrested and charged with the homicide.
Andrew and Anthony were detained and placed with the maternal grandparents. The Los Angeles County Department of Children and Family Services (Department) filed a Welfare and Institutions Code section 300 petition on their behalf. The court sustained the petition, finding that mother knew or reasonably should have known that Alex was being physically abused and failed to protect him, and her failure to protect Alex placed Anthony and Andrew at risk of harm.
All statutory references are to the Welfare and Institutions Code.
The Department recommended that the court deny mother reunification services pursuant to section 361.5, subdivision (b)(4) and (6). After a contested hearing, the court denied family reunification services to mother. She appeals from that order.
DISCUSSION
I
Under section 361.5, subdivision (a), whenever a child is removed from a parent’s custody, the juvenile court is required to order family reunification services. Section 361.5, subdivision (b) (hereafter subdivision (b)) sets out exceptions to this requirement. Two are relevant to this case.
Under subdivision (b)(4), reunification services need not be provided when the court finds, by clear and convincing evidence, “[t]hat the parent or guardian of the child has caused the death of another child through abuse or neglect.” Under subdivision (b)(6), reunification services need not be provided when the court finds by clear and convincing evidence, “[t]hat the child has been adjudicated a dependent pursuant to any subdivision of Section 300 as a result of severe sexual abuse or the infliction of severe physical harm to the child, a sibling, or a half-sibling by a parent or guardian, as defined in this subdivision, and the court makes a factual finding that it would not benefit the child to pursue reunification services with the offending parent or guardian. [¶] . . . [¶] A finding of the infliction of severe physical harm, for the purposes of this subdivision, may be based on, but is not limited to, deliberate and serious injury inflicted to or on a child’s body or the body of a sibling or half-sibling of the child by an act or omission of the parent or guardian . . . .”
Mother claims the juvenile court abused its discretion in finding that the Department met its burden of proof for denying her reunification services pursuant to subdivision (b)(4) and (6). When the sufficiency of the evidence to support a finding or order is challenged on appeal, even where the standard of proof in the trial court is clear and convincing evidence, the reviewing court must determine if there is any substantial evidence to support the court’s conclusion. (In re Jasmine C. (1999) 70 Cal.App.4th 71, 75.) “In making this determination, we recognize that all conflicts are to be resolved in favor of the prevailing party and that issues of fact and credibility are questions for the trier of fact.” (Ibid.)
Mother argues there was insufficient evidence that she caused Alex’s death through abuse or neglect. It was undisputed that 13-month-old Alex died as a result of multiple traumatic injuries to his body, and that Andrew S. caused these injuries when mother left Alex in his care. Based on the two other injuries Alex suffered in the short time mother and Alex had lived with Andrew S., the court found that mother knew, or reasonably should have known, that Alex previously had been physically abused by Andrew S. The evidence supports this conclusion.
Soon after mother moved in with Andrew S., she left Alex in the apartment with him while she went to the market. When she returned, Alex had a bruise on his forehead. Andrew S. told her Alex had fallen out of his playpen. Mother apparently believed Andrew S.’s explanation, but the court had before it photographs of the playpen, which showed it was three and a half to four feet high, and was sitting on a carpet. On Christmas eve, the maternal grandmother saw the bruise on Alex’s forehead. It spread from the upper part of the bridge of his forehead to his eyebrow, and was approximately two inches wide. Mother told her that Alex had stacked up toys in the playpen and fallen out. The grandmother asked mother if she had taken Alex to the hospital, but mother said no, because Alex seemed to be fine.
On January 2, 2006, Alex again suffered a head injury while he was alone with Andrew S. This time, mother was nearby, in the bathroom, and she heard a loud sound, as if the playpen had hit the wall. Alex had been in the playpen when she left the room, but she found him on the floor when she came out, with a bruise on his temple which swelled to the size of a golf ball. Andrew S. claimed he did not know what had happened. Despite the extent of the swelling, mother did not seek medical attention for Alex; she just put ice on his bruise. By the next morning, his eye was swollen shut, there was purple bruising across his face, as if he had a black eye. Mother continued to ice the injury, rather than seeking medical attention. Mother called the maternal grandmother and told her Alex had stacked up blankets and toys and fallen out of the playpen again. The grandmother did not believe Alex was tall enough to do that, since his face was just at the top of the playpen. When the maternal grandparents saw Alex two days later, the bruise was about three inches in size, and was very visible. There was blood in his right eye. Separately, both grandparents told mother she should take Alex to the doctor. Mother insisted he was fine and refused to seek medical attention for him.
Others were concerned about Alex’s bruise. Alex’s siblings, Anthony and Andrew, saw Alex at their grandparents’ house, and they asked mother if Alex was okay. Andrew S.’s mother, Eugenia, saw Alex five days after the incident, and noticed he had a heavily bruised left eye and other bruising to his face. She asked mother what happened, and then suggested that mother take him to the doctor. Mother told her Alex would be fine.
After Alex’s death, mother admitted to the dependency investigator that although she wanted to believe Andrew S.’s explanation about what happened, she had a “gut feeling” he was not telling the truth. She also admitted she was concerned that if she had taken Alex to the hospital or the doctor, “‘maybe that they (hospital) would have thought we had done something (caused the injury).’” Asked what she meant by “done something,” mother explained: “‘Hurting him in some way and I know I didn’t and I assumed at the time he (Andrew S[.]) did not.’”
This evidence supports the inference that mother knew—or at least should have known—that Andrew had twice inflicted injury on Alex in a very short period of time. Even though she had a “gut feeling” that Andrew S. had caused these injuries, she left Alex alone with him a third time, with fatal results. She also refused to take Alex for medical care after the second, more serious injury, in part because she was afraid medical personnel would suspect child abuse. Although this second injury was not the direct cause of Alex’s death, mother’s failure to seek medical care for him after the second injury prevented any mandatory reporters from seeing the injury and investigating suspected abuse. Thus mother protected Andrew S., rather than Alex. After Alex’s death, Andrew S. attempted to have mother change her story about the second bruise on Alex’s face in order to protect himself from being charged with the death. Mother did not report this to the police or the dependency investigator. Mother continued to live with Andrew S. for 10 days after Alex’s death, moving out only after she was told by the police that Alex’s death was a homicide. This evidence supports the conclusion that mother caused Alex’s death by her neglect or omission, within the meaning of section 361.5, subdivision (b)(4) and (6).
Mother argues to the contrary, relying on factual distinctions between her case and Patricia O. v. Superior Court (1999) 69 Cal.App.4th 933. In Patricia O., reunification services were denied to a mother after her boyfriend caused the death of her youngest child. The deceased child had several bruises of different ages, indicating chronic abuse; a sibling had been abused by the boyfriend in the mother’s presence, and that child repeatedly told the mother of the boyfriend’s abuse, but mother did nothing to stop it; and mother visited the boyfriend and telephoned him frequently while he was in jail awaiting trial for the murder of her child, and indicated she still had feelings for him.
The facts in our case are not as extreme as the facts in Patricia O., but they are sufficient. The evidence, which we have summarized, is clear and convincing that mother knew or should have known that Andrew S. was abusing Alex, yet failed to take action to protect the child, resulting in his death.
II
Denial of reunification services based on section 361.5, subdivision (b)(6) requires not only a finding that the child was adjudicated a dependent based on a parent or guardian’s infliction of severe physical harm to the child, a sibling or a half-sibling, but the additional factual finding “that it would not benefit the child to pursue reunification services with the offending parent or guardian.” In making this determination, the court is to consider any information it deems relevant, including: (1) the specific act or omission comprising the severe physical harm; (2) the circumstances under which the harm was inflicted; (3) the severity of the emotional trauma suffered; (4) any history of abuse of other children by the parent; (5) the likelihood the child may be safely returned to the parent within 12 months without continuing supervision; and (6) whether or not the child wishes to be reunified with the parent. (§ 361.5, subd. (h).) The court is required to specify the factual basis for its decision on the record. (§ 361.5, subd. (i).)
Mother claims there was insufficient evidence to support the juvenile court’s finding that it would not benefit the children to pursue reunification services with her. The court found that mother’s failure to take Alex to the doctor when she should have “was responsible in great part” for Alex’s death. Had she done so, the court believed “something may have happened either through contacting the Department of Child and Family Services or perhaps some other conversation with the mother that this child may be alive today.” Instead, mother put ice on the bruises, and again left Alex alone with the abuser, who physically traumatized the child, resulting in his death.
As to the trauma to the dependent children, the court noted that Andrew and Anthony were in grief counseling and were suffering emotionally because of the death of their sibling, and that they probably would be scarred for life.
Although there was no other history of abuse in the family, the court found it unlikely the children could be returned home without supervision within 12 months. Mother had completed one parenting class and enrolled in another. Mother also had begun individual counseling. The June 8, 2006 report from her child abuse counseling program indicated that she had attended three individual sessions since April, and had been cooperative. “During therapy, the client has made minimal progress on resolving outstanding problems [and] also needs to work further on social functioning and family relations. Client needs to gain confidence and deal with issues regarding the death of her son and loss of children to parents and now has supervised visits.” The court was concerned that while the counseling was aimed at helping mother deal with her grief, she was not working on skills to stay out of verbally and physically abusive relationships and how to keep her children safe. The court noted that mother had chosen to remain involved with Andrew S. in spite of the fact that he had called her a whore and other derogatory names and had told her to abort the child with whom she was pregnant. Even after he injured and ultimately killed Alex, mother continued to live with Andrew S. until the police told her the child’s death was a homicide and helped her move out.
Finally, the court recognized that the children had expressed the desire to be with their mother, but that factor did not carry enough weight against the court’s other concerns. These factors support the conclusion that at that time, it would not benefit the children to pursue reunification services.
The court also was required to consider the benefit of reunification services to the children under section 361.5, subdivision (c). That section provides: “The court shall not order reunification for a parent or guardian described in paragraph (3), (4), (6), (7), (8), (9), (10), (11), (12), (13), (14), or (15) of subdivision (b) unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child.” The evidence supports the court’s conclusion under subdivision (b)(6) that reunification is not in the best interests of the children.
Mother had failed to protect her youngest child from an abuser, and failed to seek medical care for the child for fear that abuse would be discovered. While she was enrolled in therapy, she had not yet made substantial progress on areas of concern, including the avoidance of abusive relationships and protection of her children.
There were indications that reunification could, in the future, be in the children’s best interests. The boys missed their mother and wanted to reunify with her. Their therapists recommended that the boys begin conjoint therapy with mother, and the Department supported that plan. Mother was visiting the children four or five days each week, and their behavior had improved with these frequent visits.
We join with the juvenile court in encouraging mother to continue in her therapy and to work on her problems with regard to abusive relationships and the protection of her children. As the court suggested, if mother learns to deal with these issues, she can seek modification pursuant to section 388 to ask the court to reconsider family reunification services and permit unmonitored visitation. But the record before us supports the juvenile court order.
DISPOSITION
The order is affirmed.
We concur: WILLHITE, J., MANELLA, J.