Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from judgments and orders of the Superior Court of San Diego County, Martin W. Staven, Judge. (Retired Judge of the Tulare S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.), Super. Ct. No. NJ13632A/B
NARES, J.
Donald J. appeals from judgments declaring his children, E.J. and T.J., dependents of the juvenile court under Welfare and Institutions Code section 300, subdivisions (e) and (j). He also appeals from orders denying reunification services to him under section 361.5, subdivisions (b)(5) and (b)(6). We affirm.
Unless otherwise indicated, further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Donald J. and N.J. are the parents of E.J., born March 2006, and T.J., born December 2006 (together, children). T.J. was born prematurely at 28 weeks. She weighed three pounds, three ounces and displayed respiratory distress syndrome, apnea, jaundice, anemia and retinopathy of prematurity. T.J. was released from the hospital on January 24, 2007, after a six-week stay.
N.J. is not a party to this appeal.
Donald and N.J. separated and shared custody of the children. In September 2006 N.J. had asked Donald to leave the family home after she saw him shaking E.J.'s crib and yelling at the crying baby, "shut up, shut up." On October 2 the parents had an incident of domestic violence in which N.J. scratched Donald's face and neck, and he responded by grabbing N.J., lifting her and slamming her to the ground. She was about four months pregnant at the time. A police officer arrested N.J. as the instigator. The charges were later dismissed.
On Sunday, February 25, 2007, Donald was caring for E.J. while N.J. was with T.J. Around 2:00 p.m., N.J. also left T.J. in Donald's care. At 4:15 p.m., Donald brought T.J. to Tri-City Medical Center. He explained she was "not acting right" and kept crying as if she was in pain. While at Tri-City Medical Center, T.J. had apnea, bradycardia and seizures. She was transported by ambulance to Rady Children's Hospital (Children's Hospital) in San Diego. Medical personnel conducted a variety of tests to determine the cause of T.J.'s condition, which was worsening.
"Bradycardia in a distressed child is a sign of impending cardiac arrest." (Merck Manual (18th ed. 2006) p. 542.)
N.J. arrived at Children's Hospital around 8:30 p.m. shortly before Donald arrived. She was interviewed by medical personnel. N.J. did not know of any trauma to the child. Donald told her that he brought T.J. to the hospital because she was screaming loudly for an extended period. T.J. did not have a history of seizures. T.J. did not attend daycare. Either N.J., Donald or the maternal grandparents cared for her.
On February 27, 2007, an ophthalmology exam revealed retinal hemorrhages in T.J.'s right eye. On February 28 a CT scan of T.J.'s head showed she had two subdural hematomas, one old, one new. Dr. Marilyn Kaufhold, the medical director of the forensic and medical program at the Chadwick Center for Children and Families at Children's Hospital, told N.J. that T.J.'s injuries resulted from trauma, consistent with shaking, a car accident or a fall.
N.J. denied T.J. had been dropped. The maternal grandparents reported that N.J. and the children stayed with them on Saturday night. Both children were "perfectly fine, healthy, no problems." The children's paternal stepgrandmother (grandmother) told the social worker she observed Donald violently shaking T.J. on February 20, 2007.
Donald did not return to the hospital after Sunday night. He was not interviewed by forensic medical personnel or social workers.
Consistent with child abuse investigation protocol, medical personnel conducted a skeletal survey of 11-month old E.J. on February 28, 2007. E.J. had two corner or "bucket-handle" fractures of his left leg. Dr. Wendy Wright concluded that the fractures were most likely caused by nonaccidental inflicted trauma. The San Diego County Health and Human Services Agency (Agency) detained the children.
On March 2, 2007, the Agency filed section 300 petitions (petitions) on behalf of the children. The petitions alleged E.J. and T.J. had suffered severe physical abuse by a parent, or by any person known by the parent and the parent knew or reasonably should have known the person was physically abusing the child. (§ 300, subd. (e).) The petitions also alleged each child was at risk of abuse or neglect because of severe physical abuse to the child's sibling. (§ 300, subd. (j).)
At the jurisdiction hearing on July 11, 2007, the Agency's reports and addendum reports were admitted into evidence. Dr. Kaufhold testified T.J. had extensive retinal hemorrhages in one eye. This type of injury was associated with acceleration and deceleration mechanisms such as shaking or slamming down on a surface. T.J. had extensive bleeding in the subdural and subarachnoid spaces, which were outside the brain but within the skull. There were two different bleeding injuries. One injury was acute, which meant it was less than one-week old. The bleeding was not related to T.J.'s prematurity; two ultrasounds taken after her birth had been normal.
The parties agreed the court could consider the evidence presented at the jurisdiction hearing at the disposition hearing.
Dr. Kaufhold testified that in the absence of any reports of accidental trauma, such as an automobile accident or fall from a great distance, T.J.'s head injuries were likely caused by shaking or slamming on a surface. Dr. Kaufhold opined that injuries to T.J. were very likely to be nonaccidental, which meant they were inflicted "at the active hands of another person or the active mechanism initiated by another person."
Dr. Kaufhold testified E.J. had two metaphyseal fractures of the left leg around the knee. The metaphyseal area of bone grows rapidly in young children. In very young children, this area is particularly susceptible to fractures associated with yanking, twisting and shaking. Fractures of this type are not generally seen in accidental trauma from normal childhood activity. E.J.'s fractures were less than 10 days old.
The court found that the petitions were true and adjudicated each child a dependant of the court under section 300, subdivisions (e) and (j). The court proceeded to the disposition hearing.
Social worker Kris Bailey recommended the court deny reunification services to Donald. In March 2007 she gave Donald referrals to domestic violence treatment programs, therapy and parenting classes. He attended one parenting class in June. Donald did not come to the hospital to visit T.J. He did not telephone her or the foster parents to check on the children. Bailey did not believe Donald was motivated to reunify with the children.
Bailey testified Donald would not be able to reunify with the children within 12 months with services. Donald's problems were not easily resolved. He was a victim of child abuse and was exposed to domestic violence while growing up. Donald appeared to be very angry. He had engaged in incidents of domestic violence with N.J. In addition, Bailey testified there was "no bonding at all" between T.J. and Donald. She doubted whether E.J. looked to Donald as a parental figure. Bailey opined that it was not in the children's best interests to provide reunification services to Donald.
The court stated that "the record was clear the court believes the evidence shows that the father is the actual perpetrator" of severe physical harm to the children. The court found that it would not benefit the children to pursue reunification services with Donald. The court found that providing reunification services to Donald was not likely to prevent reabuse of the children and failure to attempt reunification would not be detrimental to the children because they did not have a close and positive attachment to Donald.
The court removed the children from parental custody, ordered the Agency to provide reunification services to N.J. and denied reunification services to Donald under section 361.5, subdivisions (b)(5) and (b)(6). The court determined that contact between Donald and the children would be substantially detrimental to the children and did not authorize visitation.
DISCUSSION
I
Substantial Evidence Supports the Court's Findings Under Section 300, Subdivisions (e) and (j)
Donald contends the jurisdictional findings under section 300, subdivisions (e) and (j) are not supported by substantial evidence. Donald argues there is no evidence to show he inflicted the children's injuries. He posits the children's injuries may not have been caused by physical abuse.
The Agency asserts substantial evidence supports the court's finding that Donald physically abused the children. Minors' counsel joins the Agency's argument.
At the jurisdictional hearing, the court considers only the question whether the child is a person described by section 300. (In re C.T. (2002) 100 Cal.App.4th 101, 108.) Here the Agency alleged that the children suffered severe physical abuse "inflicted by [the] parent(s)" under section 300, subdivision (e). In addition, the Agency alleged each child was at substantial risk of abuse or neglect under section 300, subdivision (j) because of the injuries to the sibling. Allegations that a child is a person described by section 300 must be proved by a preponderance of the evidence. (§ 355, subd. (a).)
We review the trial court's findings to determine whether they are supported by substantial evidence. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) The evidence must be reasonable in nature, credible and of solid value. (DiMartino v. City of Orinda (2000) 80 Cal.App.4th 329, 336.) The appellant has the burden of showing that there is no evidence of a sufficiently substantial nature to support the finding or order at issue. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
Donald contends there are explanations for the children's injuries other than physical abuse. Citing T.J.'s indefinite diagnosis when admitted to Children's Hospital, Donald argues T.J.'s injuries could have resulted from a variety of factors, including conditions arising from her prematurity. He also asserts Dr. Kaufhold did not examine E.J. before she concluded that his injuries were nonaccidental.
We need not consider Donald's challenges to Dr. Kaufhold's credibility. (See In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.) The record contains reasonable, credible evidence of solid value to show that the children's injuries were nonaccidental. (DiMartino v. City of Orinda, supra, 80 Cal.App.4th at p. 336.) Early in the case, medical personnel did not rule out nonaccidental trauma as the cause of T.J.'s injuries. After comprehensive testing and evaluation, Dr. Kaufhold concluded that T.J.'s injuries were nonaccidental trauma likely inflicted by a person shaking her or slamming her on a surface. Dr. Wendy Wright concluded that E.J.'s metaphyseal fractures were most likely caused by nonaccidental inflicted trauma. After reviewing the medical reports, Dr. Kaufhold concurred with Dr. Wright's opinion. Dr. Kaufhold testified E.J.'s injuries were likely caused by a person shaking, yanking or twisting his leg.
We reject Donald's assertion there is insufficient evidence to show he inflicted the children's injuries. The timeline shows T.J. became distressed while in Donald's care. T.J. was healthy when N.J. left her with Donald around 2:00 p.m. on February 27, 2007. The children were in Donald's sole care. At 4:15 p.m., Donald brought T.J. to the local emergency room after she began to have breathing problems and was crying as if she was in pain. Donald did not provide an explanation for her condition when he arrived at the hospital.
In addition to reasonable inferences from the timeline, the record contains an eyewitness account of child abuse. On February 20, 2007, Grandmother observed Donald "violently" shake T.J. On February 28 T.J.'s CT scans showed she suffered subdural injuries on two separate occasions. One injury was acute, meaning it occurred within the last seven days; the other was more than one-week old. Thus, the record shows T.J. suffered injuries on two occasions consistent with shaking or slamming. Donald was observed "violently" shaking T.J. within the time the older injury may have occurred.
E.J.'s metaphyseal fractures were less than 10 days old. Thus, the fractures were inflicted within the same time frame as T.J.'s injuries. Further, E.J.'s injuries could be inflicted by shaking, the likely cause of T.J.'s injuries. The record shows Donald was easily frustrated by his children's needs. He often left E.J. with the neighbors instead of caring for him. In September 2006 N.J. "shoved in between Don[ald] and the crib" to get E.J. when she observed Donald shaking his crib and yelling, "shut up, shut up." Donald's behavior prompted N.J. to lock him out of the family home.
We conclude that substantial evidence supports the court's finding that Donald inflicted severe physical abuse to T.J. and E.J. We affirm the jurisdictional findings under section 300, subdivisions (e) and (j).
II
Substantial Evidence Supports the Court's Order Denying Reunification Services to Donald
Donald asserts the court erred when it denied reunification services to him under section 361.5, subdivisions (b)(5) and (b)(6). He argues the evidence was insufficient to establish that he physically abused the children and the Agency did not have adequate reasons for denying reunification services to him.
Family reunification services play a critical role in dependency proceedings. (In re Alanna A. (2005) 135 Cal.App.4th 555, 563.) Unless a specific statutory exception applies, the juvenile court must offer or provide services designed to reunify the family within the statutory time period. (§ 361.5; 42 U.S.C. § 629a(a)(7); see In re Alanna A., supra, 135 Cal.App.4th at pp. 563-564.) There is no general exception to the provision of reunification services; the court must find by clear and convincing evidence that one or more of the criteria described in section 361.5, subdivision (b) applies before it may deny reunification services to a parent. (§ 361.5, subd. (b)(1)-(15); see also 42 U.S.C. § 671(a)(15)(D).)
Here the court proceeded under section 361.5, subdivisions (b)(5) and (b)(6). Section 361.5, subdivision (b)(5) mandates the court deny reunification services to a parent when "the child was brought within the jurisdiction of the court under subdivision (e) of Section 300 because of the conduct of that parent or guardian." The court may only order services under section 361.5, subdivision (b)(5) if it finds that "services are likely to prevent reabuse . . . or that failure to try reunification will be detrimental to the child because the child is closely and positively attached to that parent." (§ 361.5, subd. (c).)
Under section 361.5, subdivision (b)(6), the court must deny reunification services to a parent when "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, a sibling, or a half sibling by a parent or guardian, . . . and the court makes a factual finding that it would not benefit the child to pursue reunification services with the offending parent . . . ." (See § 361.5, subd. (h) [list of factors used to determine benefit to child of providing reunification services to offending parent].) The court may order reunification services for a parent of a child adjudicated dependent under section 300, subdivision (b)(6) if the court finds by clear and convincing evidence that reunification is in the best interest of the child. (§ 361.5, subd. (c).)
We affirm an order denying reunification services if the order is supported by substantial evidence. "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.]" (Curtis F. v. Superior Court (2000) 80 Cal.App.4th 470, 474; Amber K. v. Superior Court (2006) 146 Cal.App.4th 553, 560.) The party challenging the ruling of the trial court has the burden to show the evidence is insufficient to support the ruling. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
The children were adjudicated under section 300, subdivision (e). As we discussed ante, substantial evidence supports the court's findings that Donald inflicted severe physical harm to the children. Thus, section 361.5, subdivisions (b)(5) and (b)(6) both apply. The only issues for further review are whether substantial evidence supports the court's findings that services were not likely to prevent reabuse and failure to try reunification would not be detrimental to E.J. and T.J. because they were not closely and positively attached to Donald (§ 361.5, subds. (b)(5), (c)), and that it would not benefit the children to pursue reunification services with Donald (§ 361.5, subds. (b)(6), (h)).
Social worker Bailey testified Donald was not receptive to participating in reunification services. In March 2007 she provided Donald with referrals for domestic violence treatment programs, therapy and parenting classes. He attended one parenting class in June. Bailey did not believe Donald was motivated to reunify with the children. Further, his anger issues were long-standing and were not likely to be resolved with services within 12 months. The record supports the finding that Donald was not amenable to services; thus, the court could reasonably determine that services were not likely to prevent reabuse of the children.
Bailey testified there was "no bonding at all" between T.J. and Donald. T.J. was released from the hospital about one month before she was injured; thus, the record permits the inference that she was in Donald's care for only a short time. Grandmother saw Donald shake T.J. on February 20, 2007, less than three weeks after her release. He did not return to Children's Hospital to check on T.J.'s welfare after she was admitted to the hospital. Donald had a history of asking his neighbors and parents to care for E.J. when he had custody. He displayed an inappropriate response to E.J.'s crying sufficient to prompt N.J. to ask him to leave the family home. Substantial evidence supports the court's finding the children were not closely and positively attached to Donald and the failure to order reunification services would not be detrimental to them. (§ 361.5, subds. (b)(5), (c).)
In view of the severity of the children's injuries, the manner in which the children's injuries were inflicted, the fact there were multiple injuries to the children and the improbability the children would be safely returned to Donald's care within 12 months with no continuing supervision, substantial evidence supports the court's findings that it would not benefit the children to pursue reunification services with Donald. (§ 361.5, subds. (b)(6), (h)(1), (2), (4), (5).) For the reasons discussed ante, the record supports the finding that reunification with Donald was not in the children's best interests. (§ 361.5, subds. (b)(6), (c).) We conclude that the court properly denied reunification services to Donald under section 300, subdivisions (b)(5) and (b)(6).
DISPOSITION
The judgments and orders are affirmed.
WE CONCUR: McCONNELL, P. J., AARON, J.