Opinion
B300879
08-25-2020
In re S.C., et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. C.M., et al., Defendants and Appellants.
Megan, Turkat-Schirn, under appointment by the Court of Appeal, for Defendant and Appellant C.M. Paul A. Swiller, under appointment by the Court of Appeal, for Defendant and Appellant L.C. Mary C. Wickham, County Counsel, Kim Nemoy, Acting Assistant County Counsel, and Tracey Dodds, Principal Deputy County Counsel, for Plaintiff 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. 19CCJP01417) APPEAL from orders of the Superior Court of Los Angeles County, Craig A. Barnes, Judge. Affirmed in part and reversed in part. Megan, Turkat-Schirn, under appointment by the Court of Appeal, for Defendant and Appellant C.M. Paul A. Swiller, under appointment by the Court of Appeal, for Defendant and Appellant L.C. Mary C. Wickham, County Counsel, Kim Nemoy, Acting Assistant County Counsel, and Tracey Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent.
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The instant appeals arise from two juvenile court orders in a single dependency proceeding involving three children of appellant C.M. (Mother). The children S.C. and A.C. are Mother's children with appellant L.C. (Father C.); the child V.D. is Mother's child with A.D. (Father D.), not a party to this appeal. When the children came to the attention of the Los Angeles County of Department of Children and Family Services (DCFS), all three were living with Mother and Father D., and Father C. had not been in contact with S.C. or A.C. for several months.
Mother appeals from the juvenile court's dispositional order denying her reunification services pursuant to Welfare and Institutions Code section 361.5, subdivisions (b)(5) and (c)(3), a mandatory services "bypass" provision, triggered by the court's unchallenged finding that Mother and Father D. caused V.D. severe physical harm, including several broken bones, when V.D. was only a few months old. We conclude that substantial evidence supports the court's denial, because Mother failed to make the showing necessary to avoid the mandatory services bypass under those sections. Namely, Mother failed to offer competent testimony establishing that reunification services would likely prevent the risk of reabuse, or that the children had such a positive and close attachment to Mother that terminating services would be detrimental to the children.
Subsequent statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
Father C. appeals from the court's jurisdictional order finding that he failed to provide for S.C. and A.C., and thereby rendered them children at risk of harm as described in section 300, subdivisions (b)(1) and (g). The sole basis for the risk to S.C. and A.C. was Mother and Father D.'s physical abuse of S.C. and A.C.'s half sibling V.D. DCFS presented no evidence causally linking Father C.'s failure to provide for S.C. and A.C. with V.D.'s abuse. Thus, substantial evidence does not support the court's jurisdictional findings that Father C.'s failure to support or be involved in the lives of S.C. and A.C. provided a basis for juvenile court jurisdiction.
Accordingly, we reverse the court's jurisdictional findings regarding Father C. In all other respects, including the remaining jurisdictional findings of the court on other bases and the court's dispositional order denying Mother reunification services, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Family Background
As noted, S.C. (born July 2016) and A.C. (born August 2017) are the children of Mother and Father C.; V.D. (born November 2018) is the child of Mother and Father D. Father D. is not a party to this appeal.
Because Father is not a party to either appeal before this court, we do not attempt to summarize the court's rulings and findings with respect to him. We provide information about him only to the extent it is relevant in assessing the issues Mother and Father C. raise on appeal.
In February 2019, Mother lived with Father D. and all three children, then ages: Two years, one year, and three months, respectively. Mother was the primary caregiver during the day while Father D. worked. Other maternal relatives lived on the same property, but in separate homes. Among them were the maternal grandmother and maternal step-grandfather, who sometimes helped Mother with the children.
B. Initial and Amended Section 300 Petitions
On February 26, 2019, Mother and Father D. took baby V.D. to the hospital for pain and swelling in his leg. They reported that V.D. had been with Mother all day, and that when Father D. returned from work late that evening, he discovered the swelling during a diaper change. Hospital personnel determined that V.D. had fractures in both legs—a fractured upper right femur, as well as a metaphyseal corner fracture in the lower left femur—multiple healing right and left rib fractures, a left conjunctival hemorrhage (broken blood vessel in the eye), and facial bruising.
Neither Mother nor Father D. had any explanation for V.D.'s broken legs. Maternal grandmother stated that she believed Mother had either caused V.D.'s injuries, or knew how the injuries had occurred and was lying.
Mother and Father D. initially explained that the injury to V.D.'s eye was the result of V.D. scratching himself, and that V.D.'s facial bruising was the result of S.C. attempting to kiss V.D. and banging against him. They stated that S.C. was often rough with V.D. and had once dropped him. When the maternal step-grandfather was interviewed, he indicated that V.D.'s facial bruising was likely caused by S.C. hitting the infant in the face with a remote control.
As to V.D.'s broken ribs, Mother and Father D. stated they had once taken V.D. to the hospital after hearing a "clicking sound" when he breathed and observing him vomit blood. They reported hospital personnel informed them V.D. was fine and did not take any X-rays.
On March 5, 2019, DCFS filed a section 300 petition on behalf of all three children. The petition alleged that, due to the nature of V.D.'s injuries, they were necessarily a result of deliberate, unreasonable and neglectful acts by Mother and Father D., and that these acts placed all three children at risk of physical harm. Although physical exams of S.C. and A.C. did not reveal any signs of physical abuse, they were alleged to be at-risk siblings based on V.D.'s injuries. The juvenile court detained the children from Mother and Father D., placing S.C. and A.C. in a nonrelative foster home and V.D. with the paternal grandmother.
DCFS subsequently located and interviewed Father C., with whom S.C. and A.C. had not had any contact since approximately fall 2018, and who was not actively involved in the children's lives. On April 23, 2019, DCFS filed a first amended petition, which added allegations that Father C. had not provided for S.C. and A.C., and that he had failed to protect them from the risk of physical abuse evidenced by V.D.'s injuries.
C. Jurisdiction/Disposition Reports
DCFS filed several reports in anticipation of the jurisdiction and disposition hearings. These reports contained the following information relevant to Mother's and/or Father C.'s appeal:
1. Mother's explanations for V.D.'s injuries
DCFS's reports reflect that Mother's explanation for how V.D. sustained his injuries changed over time. Mother initially indicated she did not know what happened to V.D., and took a polygraph test, the results of which were inconclusive. The day after the test, Mother indicated to detectives for the first time that V.D. had been strapped in a baby bouncer on top of the table and somehow made himself fall off the table, causing him to break his leg. Mother explained that she had not told the detectives this during the polygraph test because she was worried " 'people would think she was a bad mom.' " The detectives concluded this explanation was not physically possible. Mother suggested at various times that S.C. may have caused some or all of V.D.'s injuries, but never provided a specific description of what had (or could have) happened.
2. Forensic evaluation of V.D.'s injuries
A doctor and nurse practitioner at Children's Hospital of Los Angeles performed a full forensic evaluation of V.D. and his injuries. The evaluation's ultimate conclusion was that "the family ha[d] provided no specific witnessed mechanisms of accidental trauma to adequately explain all of V.D.'s injuries and there is no medical evidence of any underlying medical condition which would increase the risk of and/or contribute to [the] findings. These injuries would not occur with daily routine handling of an infant . . . nor during routine play with an infant, and non-accidental/inflicted trauma is of primary concern and the leading diagnosis."
More specifically, the evaluation noted that the type of fracture in V.D.'s femur is recognized as highly specific for inflicted injury, as it requires biomechanical forces not produced by usual accidental traumas, such as a violent shaking or a "significant grab and yank with a twist." The final evaluation indicated "it is unclear how a complex fracture of his femur may have occurred" while V.D. was strapped in a bouncer, that a fall from a table while in a bouncer chair "may (although it seems unlikely)" be a sufficient mechanism to cause the fracture, and that, in any event, such a fall "would not explain the other fractures either by mechanism or timing."
V.D.'s seven fractured ribs were in different stages of healing, indicating that some occurred when V.D. was approximately four weeks old, some when he was approximately two to four weeks old, and some when he was approximately six weeks old. While rib fractures are painful and can cause infant irritability, often there are no other signs of trauma, such as bruising or swelling. Fractured ribs are uncommon injuries in infants and have a high degree of specificity of nonaccidental/inflicted trauma. V.D. had both posterior and lateral rib fractures. Posterior rib fractures generally occur due to a significant compression such as forceful grasping and severe squeezing of the chest. Lateral rib fractures may result from direct blows to the area but are usually caused by significant compression. The nurse practitioner who contributed to the forensic evaluation did not believe S.C. could cause these injuries.
Finally, as to the bruises on V.D.'s face, the report noted that unexplained facial bruising is often compatible with inflicted trauma in an infant V.D.'s age (that is, one who is not yet walking or crawling). V.D.'s bruises were of particular concern because they were patterned. The nurse practitioner contributing to the report described the bruises as "marks [that] looked like fingerprints." The report concluded that Mother's explanation of a sibling accidentally bumping V.D. was not a sufficient mechanism to cause his bruising.
3. S.C. and A.C.'s behavioral and developmental issues
DCFS's reports reflect that S.C. and A.C. had developmental delays and behavioral issues. Consistent with Mother and the maternal grandmother's reports that S.C. was aggressive toward her younger siblings, S.C.'s foster mother reported that S.C. was hyperactive, verbally and physically aggressive with her brother and the other foster children in the home, and that S.C. often cursed when angry. A.C.'s behaviors included temper tantrums, eating things off the floor, screaming and hitting. These behavioral issues were so severe that they caused the foster mother with whom S.C. and A.C. were initially placed to request they be transferred to a different home. Both S.C. and A.C. were also diagnosed with developmental delays in several areas and referred for a regional center assessment and in-home mental health services. Mother would later testify that that S.C. has attention deficit hyperactivity disorder (ADHD) and that A.C. is autistic.
4. Statements of family members living on property
According to the maternal grandmother, Mother had received mental health services between the ages of 15 and 18 years in connection with behavioral issues, and was diagnosed with anxiety and possibly something else. After DCFS removed the children, Mother engaged in self-mutilation.
Maternal grandmother and maternal step-grandfather felt Mother was overwhelmed by caring for all three children, that she had a tendency to lie, and that she was not being forthcoming about what happened to V.D. They expressed concerns about mother's mental health and the manner in which S.C. was permitted to treat V.D. For example, S.C. pulled V.D. off the bed on one occasion, causing the family to take him to the hospital. The maternal grandmother and maternal step-grandfather often helped watch the children, primarily S.C. and A.C., taking them to their residence on the communal property for four to five hours at a time.
Other relatives living on the property acknowledged that S.C. was "a handful," and that Mother lacked parenting skills, but had never seen any signs of physical abuse and never had concerns about the children's welfare.
5. Information regarding Father D.
Throughout the proceedings, Father D. stated he was unaware of how V.D. became injured. DCFS received a text from someone identifying herself as "Jessica F." that stated Father D. "hit his lady" and that she is scared of him. These allegations were never corroborated; Father D. and Mother denied both the allegations and that they knew anyone named Jessica F. Maternal step-grandfather stated that he had found holes in the walls of Mother and Father D.'s home and speculated Father D. may have been punching the walls.
6. Mother's visits and services
As of the May 23, 2019 initial jurisdiction/disposition report, Mother reported that she had begun parenting classes, although when DCFS called the clinic to confirm this, it learned she had enrolled but had not yet scheduled or attended any appointments or classes. The June 16, 2019 addendum report reflected that Mother had completed eight parenting classes and was scheduled to begin anger management classes. As to the mental health evaluation and services in her case plan, Mother was diagnosed with "Adjustment Disorder Unspecified," but as of the June 2019 report had not yet scheduled any individual therapy appointments. The July 30, 2019 addendum report reflected that Mother was participating in parenting classes, anger management classes, and individual counseling. DCFS's case worker reported, however, that Mother was not demonstrating "improved [p]arenting skills or knowledge of child development even after having attended parenting classes on a regular basis." As of August 4, 2019, Mother had completed 21 parenting classes and 11 anger management classes.
As to visitation, Mother was approved for one 6-hour monitored visit per week but "missed several visits," was over an hour late on several occasions, and "constant[ly] need[ed] to change or shorten the visits." Mother indicated that visits with all three children would be too difficult to manage, and so initially scheduled visits with V.D. separately from the visits with the other children. Monitors reported that Mother did not redirect the children when they acted out (for example, by being physically aggressive toward each other or toward Mother), that she seemed to frustrate easily, and that when she became frustrated with the children, she would often either end the visit early or ask the monitor for help. The paternal grandmother monitored the parents' joint visits with the children and reported that Mother ignored the children and was more focused on Father D. At the conclusion of some of the visits, the children cried and did not want to leave.
A last minute information described a September 1, 2019 visit in a park involving all three children, both sets of caretakers, Mother, and Father D. The case worker present for the visit reported that Mother was "not engaging with any of [the] children" and "did not interact with [V.D.] in any meaningful way." "[B]oth children [S.C. and A.C. were] left alone and ignored by both parents" although it was "clear" that the children "needed lots of redirection and attention." The children spent "most of the visit playing alone." The case worker "observed that child [S.C.] would attempt to run away from [caregivers'] visible sight" and "not once during the times [this occurred did] either parent attempt[ ] to redirect, discipline or attempt to find the child." In addition, Mother did not react to or attempt to redirect A.C. when he on two occasions pulled Mother's hair while she was lying down. Foster caregivers ultimately intervened by redirecting or finding the children when Mother and Father D. repeatedly failed to do so.
7. Information regarding Father C.
Father C. was in a relationship with Mother until approximately 2017. Father C. told DCFS that he lost contact with Mother and the children in approximately fall 2018. One day when he attempted to visit them at Mother's former residence, the family was no longer there. He did not have a phone at the time and felt that Mother had intentionally ended contact with him. Father C. stated that he had previously given money to maternal grandmother for the children but no longer knew where she resided. Father C. remained in contact with the children's maternal step-grandmother.
Father initially told the social worker that his "main objective is just to get my kids back." He "expressed shock and surprise regarding the situation" with V.D. and "while he [could not] currently accommodate the children," he requested "some time to make arrangements, including securing housing in order to have [S.C. and A.C.] released to his care." He lived with a roommate, but he planned to move in with his fiancé and her son once they found the right home, and wanted to have custody of S.C. and A.C. once that happened.
Father C. also reported having another son with a woman other than Mother, and that he has made unsuccessful attempts to find that son and obtain custody. One DCFS report reflects that DCFS received anonymous information from a person who stated, "[Father C.] has a son with me" and that he had "anger issues," was physically abusive with her, and that he was gang-affiliated.
Father C. visited with S.C. and A.C. only once during the period leading up to the May 23, 2019 report. The visit went well and DCFS had no concerns, although case workers discussed with Father C. the need for him to visit consistently and remain in phone contact with the children in order to reestablish a relationship. As of the July 2019 addendum report, Father C. was having monitored visits with the children every other weekend, but was not contacting them in between visits.
D. Jurisdictional Hearing and Findings
On July 8, 2019, the juvenile court sustained the first amended petition and made true findings as to all jurisdictional allegations, as amended by interlineation. Specifically, the court found true allegations against Mother and Father D. under section 300, subdivision (a) (physical harm to V.D.), subdivision (b)(1) (failure to protect V.D.), subdivision (e) (severe physical abuse of V.D., a child under five years), and against Mother under section 300, subdivision (j) (risk of harm to S.C. and A.C. due to abuse of their sibling). In response to Mother and Father D.'s arguments that V.D.'s injuries were not intentionally inflicted, the juvenile court found that, "[w]hether this was done deliberately is not entirely clear, but the fact that it was unintentional . . . the recklessness that would have to occur to have these kinds of factures . . . is, in my mind, very close to deliberate."
The juvenile court viewed Father C.'s testimony regarding his efforts to support his children as "internally . . . inconsistent." The court also "saw nothing to indicate that . . . [F]ather [C.] was engaged in any manner with these children up until the petition being filed and his arraignment, and it looks as if . . . there's some blame shifting there. . . . [T]he evidence presented to this court is that [he] has made himself absent." On this basis, as to Father C., the court found true jurisdictional allegations under section 300, subdivision (b)(1) (failure to protect S.C. and A.C.) and subdivision (g) (failure to provide for S.C. and A.C.).
E. Disposition Hearing
The court held a disposition hearing on September 16, 2019.
1. Expert testimony
At the hearing, Mother offered the testimony of Dr. Nancy Kaser-Boyd, a psychologist with extensive experience testifying in child abuse cases. There was no dispute as to Kaser-Boyd's qualifications as an expert in this field. Kaser-Boyd offered her opinion on whether Mother had a mental disorder, was capable of responding to reunification services, and posed a risk of re-abusing.
Kaser-Boyd testified that Mother "would benefit from" and "be able to learn from" reunification services, and then identified several bases for this conclusion. First, Mother had no overriding mental disorder other than ADHD, which Kaser-Boyd testified does not keep people from learning and changing behavior. Second, Mother seemed "very attached to her children" in light of "the way [Mother] talks about them and the pictures she showed [Kaser-Boyd]." Third, Mother was "open to feedback" and "willing to look at her own behavior to see if she has used poor judgment and made mistakes and those are important personality features when . . . look[ing] at amenability to treatment." When asked about Mother's inability to explain the injury and apparent unwillingness to accept the court's finding that Mother and Father D. caused the injury, Kaser-Boyd acknowledged that this "could be denial," but that she viewed Mother as being in "a process of acceptance," "questioning whether she did something or whether someone else harmed the baby."
Kaser-Boyd first recommended that Mother participate in anger management to improve her frustration tolerance, parenting classes, and a parenting support group, and opined that participation in these services "would produce an outcome that would substantially reduce her risk" of re-abusing. Later in her testimony, however, Kaser-Boyd also indicated that Mother already did not present a risk of re-abusing even without these services, as "DCFS intervention and the court's proceedings by themselves are an intervention that educates parents and gets their attention to the extreme," something that had "already occurred" with Mother.
2. Mother's testimony
Mother testified that she was still participating in anger management, parenting, and individual counseling. She testified that her parenting classes had taught her how to better communicate with her children, including by not yelling in a harsh tone or getting angry, and that she also learned how to respond to tantrums by giving time outs, as opposed to letting them happen. She had also learned that she should not be spanking her children, which she had previously done with them as early as 18 months old. In her anger management classes, she was learning to avoid triggers and to minimize her frustration.
Mother testified that she felt she had always been a good parent in the sense that she always loved and cared for her children, but that she should have been more protective of V.D. When asked specifically how she would better protect him in the future, she stated she would "[m]ake sure his sister doesn't grab him" and that his brother and sister do not hit him. She also indicated that she understood her previous discipline methods, including spanking, were inappropriate and ineffective. She testified that she had never spanked V.D.
Mother acknowledged that she had often become overwhelmed caring for her children, but that if this happened now, she would reach out to her family support system for assistance, which she had not previously felt comfortable doing.
3. Father D. testimony
Father D. testified he did not have any understanding as to how V.D. sustained injuries. Father D. denied that he knew anyone named Jessica F. or that any of the unverified allegations of physical abuse made in her text were true.
4. Dispositional ruling and findings
DCFS reiterated its request that Father C. receive reunification services, but that Mother and Father D. not receive services. Counsel for the children requested that reunification services be provided to Mother and Father D.
The juvenile court first found by clear and convincing evidence that V.D. "suffered severe physical injury from abuse because of the conduct of [Mother and Father D.]," triggering an automatic denial of reunification services for Mother under section 361.5, subdivisions (b)(5) and (c)(3), unless Mother could show that receiving such services would likely prevent her from re-abusing the children. The court ultimately found that the testimony Mother offered to try and make this showing—that of herself and Kaser-Boyd—was insufficient to "dispell[ ] a risk of re-abuse."
The court gave several specific reasons for its assessment of Kaser-Boyd's testimony as competent but "conflicting," "not compelling" and "[not] convincing." For example, it was a "point for concern" for the court that Kaser-Boyd acknowledged Mother may have been in denial about her role in V.D.'s injuries, yet opined that Mother had learned from the experience and was in the process of examining her own culpability. The court further found it "curious" that Kaser-Boyd opined both that Mother could reduce the risk of reabuse by receiving services, and that, as Mother sat in the courtroom, she presented no such risk. The court also noted Kaser-Boyd "seemed to be dismissive of the concerns expressed by maternal relatives and the insights that they offer," "ignored Mother's attitudinal issues" that exist even "after Mother had gone through some measure of services," and "did not seem to be aware that Mother had engaged in self-harming behavior," which the court found "concerning because it suggests that abuse even when perpetrated on herself [that is, on Mother] escaped . . . Kaser-Boyd's testimony's fielded vision." Although this behavior was several months old, the court considered it a red flag that "should be part of the profile in the doctor's analysis" and was not.
As to Mother's testimony, the court noted that Mother continued to become frustrated with and overwhelmed by the children during visits, relying on the monitors for assistance, or moving to "the other end of the spectrum" and not disciplining the children at all. The court noted that this continued after Mother had participated in some services, and that Mother's self-identified anger "triggers" included behavior that is routine for young children. The court noted that these continuing issues were particularly hard to ignore, in "juxtaposition with the degree of injury that was sustained in this case." The court noted that Mother's "support mechanism or her support plan is essentially the same she had before," and that the evidence did not suggest additional services would increase this level of support in the manner necessary to dispel risk of reabuse.
The court found Mother had not "presented sufficiently competent testimony of substantial weight to allay the concerns" regarding continued abuse or neglect, and denied Mother reunification services pursuant to section 361.5, subdivision (b)(5).
The court granted Father C. reunification services, and his case plan included parenting and individual counseling to address child safety issues.
Mother and Father C. timely appealed the dispositional and jurisdictional orders, respectively.
Father D. initially filed a notice of appeal along with a notice of intent to file a writ petition, but this court dismissed the appeal as unauthorized and duplicative, given the concurrent filing of the notice of intent to file a write petition. This court ultimately dismissed his writ petition as well as a nonoperative writ (case No. B300880).
DISCUSSION OF MOTHER'S APPEAL
A. Applicable Law
Section 361.5, subdivision (a) requires that a parent in dependency proceedings receive reunification services unless one of several so-called "bypass provisions" applies. (In re A.E. (2019) 38 Cal.App.5th 1124, 1141; see § 361.5, subd. (a).) These bypass provisions, which are listed in section 361.5, subdivision (b), set out the circumstances under which a court may (or, in some cases, must) deny reunification services. (See ibid.; Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96 (Cheryl P.).) Once the juvenile court determines that a case presents one of the situations set forth in section 361.5, subdivision (b), "the general rule favoring reunification is replaced by a legislative assumption that offering [reunification] services would be an unwise use of governmental resources." (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478; Cheryl P., supra, 139 Cal.App.4th at p. 96 [§ 361.5 bypass provisions reflect "a legislative acknowledgement 'that it may be fruitless . . . to provide reunification services under certain circumstances' "].) Once a bypass provision is found to apply, the juvenile court may not order reunification unless it makes certain countervailing factual findings. (See § 361.5, subd. (c); In re A.E., supra, at p. 1146.)
The bypass provision at issue here is section 361.5, subdivision (b)(5), which applies when the court finds by clear and convincing evidence that "because of the conduct of [a] parent or guardian," "the child was brought within the jurisdiction of the court under subdivision (e) of Section 300"—i.e., that a child less than five years old suffered severe physical abuse because of the parent's conduct. (§ 361.5, subd. (b)(5); see § 300, subd. (e).) Section 361.5, subdivision (b)(5) may apply to a " 'parent in the household who knew or should have known of the abuse, whether or not that parent was the actual abuser.' [Citation.]" (L.Z. v. Superior Court (2010) 188 Cal.App.4th 1285, 1292; Tyrone W. v. Superior Court (2007) 151 Cal.App.4th 839, 849.)
Specifically, section 300, subdivision (e) jurisdiction requires a finding that the 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." (§ 300, subd. (e).)
Once the court determines that subdivision (b)(5) of section 361.5 applies, the court must deny reunification services to the parent, unless the court also makes a countervailing finding, "based on competent testimony," either that (1) reunification services "are likely to prevent reabuse or continued neglect of the child or [(2)] that failure to try reunification will be detrimental to the child because the child is closely and positively attached to that parent." (§ 361.5, subd. (c)(3).) The burden is on the parent to make a sufficient showing of either circumstance. (See In re William B. (2008) 163 Cal.App.4th 1220, 1227.)
B. Standard of Review
Mother does not dispute the court's finding by clear and convincing evidence that V.D. was under five years old and suffered severe physical harm because of Mother, nor does she dispute that this finding triggers the bypass provision in section 361.5, subdivision (b)(5). Rather, she argues the court erred in concluding that Mother failed to make the showing necessary to justify an exception to that bypass provision under section 361.5 subdivision (c)(3).
We review "an order denying reunification services under section 361.5, subdivision (b) for substantial evidence." (Cheryl P., supra, 139 Cal.App.4th at p. 96; In re D.H. (2014) 230 Cal.App.4th 807, 815; R.T. v. Superior Court (2012) 202 Cal.App.4th 908, 914; In re Albert T. (2006) 144 Cal.App.4th 207, 216-217.) We must therefore determine whether substantial evidence supports the court's conclusion that Mother failed to establish by "competent testimony" either that services were likely to prevent reabuse or continued neglect of the children, or that denying services would be detrimental to the children because of a close attachment to Mother. "[S]ubstantial evidence" refers to evidence that is reasonable, credible, and of solid value (In re Angelia P. (1981) 28 Cal.3d 908, 924; In re Veronica G. (2007) 157 Cal.App.4th 179, 185), whether or not contradicted by other evidence in the record. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393; In re Monique T. (1992) 2 Cal.App.4th 1372, 1378.) If a reasonable trier of fact could rule as the court did after reviewing the entire record, resolving all conflicts in favor of respondent and drawing all reasonable inferences in support of the judgment, we must affirm. (Ibid.)
The standard of review is slightly different where, unlike here, the denial of services was based on a bypass provision other than section 361.5, subdivision (b)(5), and the challenged finding is one regarding the best interests of the child. (Compare § 361.5, subd. (c)(2) [providing for exception to bypass provisions other than § 361.5, subd. (b)(5) based on best interest of child] and § 361.5, subd. (c)(3) [setting forth requirements for exception to bypass provision in § 361.5, subd. (b)(5)]; In re G.L. (2014) 222 Cal.App.4th 1153, 1164-1165 [applying abuse of discretion standard of review for determination of child's best interests under § 361.5 and substantial evidence standard to other § 361.5 factual findings].)
C. Likelihood That Services Will Prevent Reoccurrence of Abuse by Mother
Mother's request for reunification services required the juvenile court to determine whether services would likely prevent reoccurrence of the abuse that led to juvenile court jurisdiction in this case. (See § 361.5, subd. (c)(3).) As set forth above, the record does not establish exactly how or at whose hand that abuse occurred. The court found only that Mother and Father D. had caused severe physical harm to V.D.; it did not specify whether they had done so through neglect as opposed to physical abuse, or whether both parents were responsible in the same way. Still, the evidence and other unchallenged factual findings of the court permit only a few options: either Mother failed to protect V.D. from Father D., Mother failed to protect V.D. from S.C., or Mother inflicted the injuries on V.D. herself. Substantial evidence supports the court's conclusion that Mother failed to establish a likelihood that services would prevent any of these three types of conduct from reoccurring.
This is in and of itself not problematic. "Section 300, subdivision (e), and subdivision (b)(5) of section 361.5 . . . do not require identification of the perpetrator." (In re Kenneth M. (2004) 123 Cal.App.4th 16, 21.)
We consider first the possibility that Father D. caused V.D.'s injuries. If this is the case, the risk of reabuse is a risk that Mother will again fail to protect the children from him. Mother did not offer any testimony regarding how reunification services will assist her in protecting the children in this way. The court was also entitled to consider the fact that Mother and Father D. were still in a relationship, and Mother did not testify that she would not live with Father D. (See § 361.5, subd. (c)(4) ["The fact that a parent or guardian is no longer living with an individual who severely abused the child may be considered in deciding that reunification services are likely to be successful, provided that the court shall consider any pattern of behavior on the part of the parent that has exposed the child to repeated abuse."].) Nor is there any logical connection between the services at issue—classes to improve Mother's ability to appropriately discipline and her tolerance for the frustrations of caring for three young children—and her ability to protect the children from an abusive coparent.
We next consider the possibility that S.C. somehow inflicted these injuries on V.D. If so, then Mother failed to protect V.D. from S.C., and it is theoretically possible that improvements in her ability to effectively discipline S.C. and appropriately supervise her children could reduce the likelihood that such abuse will reoccur. Kaser-Boyd testified that Mother was willing and able to improve her discipline and parenting strategies through parenting and anger management classes, and that the juvenile court proceedings alone had already brought about such improvements. In addition, Mother testified that she had learned how to better discipline her children through the services she had received so far, and acknowledged a need to better protect V.D. from his siblings.
The juvenile court questioned how convincing Mother's and Kaser-Boyd's testimony was in establishing these points, and we owe a substantial amount of deference to this determination. (See In re Tania S. (1992) 5 Cal.App.4th 728, 733-734 [reviewing court must defer to the lower court on issues of credibility of the evidence and witnesses in reviewing for substantial evidence]; Schmidt v. Superior Court (2020) 44 Cal.App.5th 570, 582 ["[c]redibility determinations thus are subject to extremely deferential review"].) "The trial judge may believe or disbelieve uncontradicted witnesses if there is any rational ground for doing so." (Ibid.) Here, the court provided several well-reasoned bases for its assessment of Mother's and Kaser-Boyd's testimony as not "convincing."
Even absent the court's concerns regarding the credibility of this testimony, however, other evidence in the record supports the court's conclusion. "[F]ailure of [a] parent to respond to previous services . . . [is] among the factors indicating that reunification services are unlikely to be successful." (§ 361.5, subd. (c)(4).) The court had before it reports indicating that, as late as two weeks before the dispositional hearing—at which point Mother had attended two-months worth of parenting and anger management classes—Mother failed to adequately supervise S.C. and failed to redirect or discipline A.C. when he engaged in aggressive behavior. DCFS's reports also include concerns that Mother was not learning from her participation in parenting classes, based on Mother's description of her discipline methods. This constitutes substantial evidence to support a finding that additional reunification services would not help Mother protect V.D. from his siblings. Because we review for substantial evidence, it is irrelevant that other evidence in the record—Mother and Kaser-Boyd's testimony, even if deemed credible—supports an opposite conclusion, as we are to defer to the trial court's weighing of conflicting evidence and resolve any conflicts in favor of affirming the judgment. (In re Monique T., supra, 2 Cal.App.4th at p. 1378.)
Third and finally, we consider the possibility that Mother inflicted the injuries on V.D. herself. Again, substantial evidence supports the conclusion that services would not likely prevent Mother from again inflicting such harm (if, in fact, she did). First, if Mother did inflict the injuries herself, "meaningful participation [in services] would require some recognition or acknowledgement of th[at] abusive behavior." (In re A.E., supra, 38 Cal.App.5th at pp. 1143-1144; see In re A.M. (2013) 217 Cal.App.4th 1067, 1077-1078 ["[T]here are no services that will prevent reabuse by a parent who refuses to acknowledge the abuse in the first place."].) If Mother cannot recognize the actions that harmed her child and identify the circumstances that led to those actions, then she cannot learn how to prevent such actions in the future. In In re A.M., for example, in the face of "overwhelming evidence that [an infant] had been brutally treated on more than one occasion and that either [the mother] or [the f]ather had inflicted the injuries, [the m]other was unwilling to acknowledge any source for [the infant's] injuries," which "amount[ed] to a willful denial of the injuries themselves." (Ibid.) The court concluded this rendered it impossible for the mother to make the requisite showing that services could prevent reabuse. (Ibid.) Moreover, as a practical matter, Mother cannot make the necessary showing that services are likely to prevent reabuse without showing a connection between past abuse and the potential benefits of the services she seeks. For example, parenting classes regarding proper discipline may help prevent reabuse if the parent has previously harmed the child in the course of severe physical discipline. But anger management training may be what is required to help prevent reabuse by a parent who has previously harmed a child by lashing out physically in anger. Absent some indication as to how, if at all, Mother may have inflicted these injuries on V.D., the court did not have the information it needed to determine whether the reunification services at issue are likely to prevent similar injuries in the future.
D. Children's Attachment to Mother
Mother also argues that she should have received services because the children are "closely and positively attached to" her, such that it would be "detrimental" to them for her not to work toward reunification. (§ 361.5, subd. (c)(3).) The court did not make an express finding in this regard, but substantial evidence supports the court's implicit finding that this other potential exception to the bypass provision in section 361.5, subdivision (b)(5) is inapplicable.
Mother again bears the burden of establishing by "competent testimony" that this exception to the bypass provision applies. (§ 361.5, subd. (c)(3); In re A.E., supra, 38 Cal.App.5th at p. 1146.) A reasonable trier of fact could easily find that Mother failed to satisfy this burden with her general testimony that she loved and missed her children, her testimony that the children enjoyed their regular visits with her, and/or Kaser-Boyd's testimony—which was not based on any observation of Mother with the children—that Mother was very attached to the children.
Looking more broadly at the record as a whole, Mother argues the children "lived with [her] since birth and are thus presumably bonded to her," that she participated in regular visits with them, and that the children cried and did not want to leave at the conclusion of at least some of the visits. But the record also contains reports that Mother was generally disinterested in the children during visits, and that she often terminated the visits early. Indeed, the report on Mother's visit approximately two weeks before the dispositional hearing describes Mother as virtually apathetic in response to her children. Moreover, Mother must show something more than that the children are attached to her and that she loved them; section 361.5, subdivision (c)(3) requires a "close[ ] and positive[ ] attach[ment]," the termination of which would actually harm the children. (Ibid.) Considering the record as a whole, and resolving all conflicts in the evidence in favor of the respondent, there is ample evidence that Mother did not have (and certainly has not met her burden of presenting testimony that establishes) the requisite level of attachment.
E. Mother's Remaining Arguments
Mother also argues that the court erred in denying reunification services because granting her services would be in the children's best interests. But this is not a basis on which the court could have granted Mother services. "[O]nce the juvenile court found [section 361.5,] subdivision (b)(5) applicable with respect to [Mother], it was prohibited from ordering reunification services for [Mother], unless it expressly found that those services were 'likely to prevent reabuse.' " (In re Madison S. (2017) 15 Cal.App.5th 308, 325-326, quoting § 361.5, subd. (c)(3).) The court found section 361.5, subdivision (b)(5) applicable, and that services were not likely to prevent abuse. Given these findings, which we affirm, the court was required to deny Mother services.
Mother appears to be relying on section 361.5, subdivision (c)(2), which applies by its own terms only to situations in which denial of reunification services is based on bypass provisions other than that in section 361.5, subdivision (b)(5). (See § 361.5, subd. (c)(2) ["[t]he court shall not order reunification for a parent or guardian described in paragraph[s] (3), (4), (6), (7), (8), (9), (10), (11), (12), (13), (14), (15), (16), or (17) of subdivision (b) unless the court finds . . . that reunification is in the best interest of the child"].)
Moreover, even if the statute permitted the court to grant reunification services based on a showing that doing so would be in the children's best interests, Mother necessarily failed to make such a showing, because she failed to establish a likelihood that the children will be safe if returned to her care. It cannot be in the children's best interests to return to a parent who poses a risk of abusing them, even if, as Mother speculates will be the case given their behavioral issues, S.C. and A.C. may face difficulty finding adoptive homes if they fail to reunify with Father C.
Mother stresses in her briefing—and we do not take lightly—the fact that the children's counsel argued in favor of providing Mother with reunification services. A child's counsel in dependency proceedings is charged with representing the child's interests, has a duty to investigate the facts (§ 317, subd. (e)(1)), and "is required to make a factual investigation and may 'make recommendations to the court concerning the child's welfare.' " (In re Kristen B. (2008) 163 Cal.App.4th 1535, 1541.) But this recommendation is not a substitute for the testimony section 361.5 requires in order to make an exception to an otherwise mandatory denial of services. (See § 361.5, subd. (c)(3).) Nor did the children's counsel's recommendation identify any facts or testimony that would support such a finding. To the contrary, the children's counsel based his recommendation on the logic that, in order to deny Mother reunification services, the court would need to "essentially assume that . . . [M]other . . . [is] beyond help. That [she is] so twisted that [she is] incapable of benefiting from services." But this is not a correct description of the standard. As noted, once the court makes the finding described in section 361.5, subdivision (b)(5)—and Mother does not challenge the sufficiency of the evidence to support that finding here—the burden shifts to the parent to show one of two specific things, neither of which is that Mother is not "beyond help." (See § 361.5, subd. (c)(3).) As discussed above, substantial evidence amply supports the court's conclusion that Mother failed to make such a showing.
For these reasons, substantial evidence supports the court's dispositional order denying Mother reunification services.
DISCUSSION OF FATHER C.'S APPEAL
Father C. argues on appeal that substantial evidence does not support the juvenile court's finding that S.C. and A.C. were children described in section 300, subdivisions (b)(1) and (g) based on Father C. failing to provide them with the necessities of life. (See In re Savannah M., supra, 131 Cal.App.4th at p. 1393 [juvenile court's jurisdictional findings reviewed for substantial evidence].)
A. Justiciability of Father C.'s Appeal
DCFS argues that we should not consider Father C.'s challenges to certain jurisdictional findings, because jurisdiction over S.C. and A.C. is proper based solely on the unchallenged jurisdictional findings regarding Mother's conduct. (See In re I.A. (2011) 201 Cal.App.4th 1484, 1492 [jurisdictional finding involving one parent is good against both; the child is " ' "a dependent if the actions of either parent bring [him or her] within one of the statutory definitions of a dependent" ' "]; In re Alexis E. (2009) 171 Cal.App.4th 438, 451 [same].)
Even when reversing a challenged jurisdictional finding will not deprive the juvenile court of jurisdiction, however, we may exercise our discretion to address the merits of the challenge if, as is the case here, the outcome "could be 'the difference between [a parent] being an "offending" parent versus a "non-offending" parent,' a finding that could result in far-reaching consequences with respect to these and future dependency proceedings" or other proceedings. (In re Quentin H. (2014) 230 Cal.App.4th 608, 613, quoting In re Drake M. (2012) 211 Cal.App.4th 754, 762-763.) We likewise may exercise our discretion to address the merits where the challenged jurisdictional finding "could have other consequences for [the appellant], beyond jurisdiction." (In re I.A., supra, 201 Cal.App.4th at p. 1493; see In re Drake M., supra, at pp. 762-763.)
DCFS argues that the jurisdictional findings against Father C. cannot prejudice him in these dependency proceedings, because he is not seeking custody of the children. Certainly, this limits the findings' potential prejudice to Father C. in these proceedings. But Father C.'s status as an offending parent may prejudice him in other proceedings, such as family law proceedings that may arise regarding the son Father C. told DCFS he had with another woman and was seeking to reunite with, or his fiancé's son, with whom he states he plans to live. Given the other children in Father C.'s life and the potentially far-reaching implications of the jurisdictional findings, we exercise our discretion to consider the merits of his appeal.
B. Sufficiency of the Evidence to Support the Court's Jurisdictional Findings Regarding Father C.
Father challenges the sufficiency of the evidence to support the court's findings that S.C. and A.C. are children described in section 300, subdivisions (b)(1) and (g), which are based on the following factual allegations in the amended petition: "The children [S.C. and A.C.]'s father, [Father C.], has not provided the children [S.C. and A.C.] with the necessities of life, including but not limited to food, clothing, shelter, and medical care. The father has not been involved in the children's life for an extended period of time during which they were removed from the mother and her male companion's home due to severe physical abuse of their sibling [V.D.] Such failure to make a plan for the children's care, failure to provide for the children, and failure to protect the children on the part of the father endangers the children [S.C. and A.C.]'s physical and emotional health and safety and places the children at risk of physical and emotional harm and damage."
Father C. argues both that these factual allegations are unsupported by the evidence, and that even if they were true, they would be insufficient to satisfy either section 300, subdivision (b)(1) or subdivision (g). We conclude that substantial evidence does not support a non-speculative causal connection between any failure by Father C. to support S.C. and A.C. and the risk of harm they faced.
1. Section 300 , subdivision (b)(1) jurisdictional finding (failure to protect)
Section 300, subdivision (b)(1) provides a basis for juvenile court jurisdiction when, inter alia, "there is a substantial risk that the child will suffer[ ] serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child, or the willful or negligent failure of the child's parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left, or by the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment." (§ 300, subd. (b)(1).)
Section 300, subdivision (b)(1) jurisdiction requires a causal connection between the failure to protect, supervise or provide and the risk of harm to the child. (See In re Rocco M. (1991) 1 Cal.App.4th 814, 820.) Nothing in the record suggests that, had Father C. provided additional financial support for S.C. and A.C., or shared custody with Mother, V.D. would not have suffered the injuries that created the risk of abuse to S.C. and A.C. Although it is theoretically possible that Father C. providing such additional assistance could reduce Mother's childcare duties and allow her to better supervise the children or be less overwhelmed, this is pure speculation, not substantial evidence. (See In re James R. (2009) 176 Cal.App.4th 129, 135 [inferences that are the result of mere speculation or conjecture cannot support a finding].) Nor would such improved supervision necessarily have led to a reduced risk of V.D. suffering the injuries he did, given the lack of evidence necessarily linking those injuries to Mother's level of supervision. (See In re Matthew S. (1996) 41 Cal.App.4th 1311, 1318 [DCFS "has the burden of showing specifically how [the child has] been or will be harmed"].) The record also contains no evidence suggesting that, had Father C. been in more frequent contact with Mother or the children, he would have had reason to be concerned about the safety of his children, such that his leaving them with their Mother was in itself a negligent act, as neither S.C. nor A.C. showed any signs of abuse. (See In re Roberto C. (2012) 209 Cal.App.4th 1241, 1254 [where child appeared normal and healthy despite internal injuries caused by abuse, "[t]here [was] no evidence that provides any basis to attribute knowledge to the[ ] parents that [the child] was being abused"].) As such, substantial evidence does not support the court's ruling sustaining count b-3 of the amended petition.
2. Section 300 , subdivision (g) jurisdictional finding (necessities of life)
A jurisdictional finding under section 300, subdivision (g) requires DCFS to show that "[t]he child has been left without any provision for support." (§ 300, subd. (g).) Here, DCFS's concerns derived solely from the physical abuse of V.D., and nothing in the record suggests S.C. or A.C. were at risk due to a lack of sufficient food, clothing, shelter, or medical care. (See In re Matthew S., supra, 41 Cal.App.4th at p. 1320 [reversing jurisdictional finding under section 300, subdivision (g) where their Father failed to provide financial support to a financially strained mother, because there was "no evidence of malnutrition, deprivation of shelter, clothes or medical care"].) Indeed, nothing suggests the children lacked these or other physical necessities of life—only that Father C. was not the parent who provided them. But "[t]hat [Father C.] failed to contribute to [the children's] support does not justify jurisdiction under section 300, subdivision (g)." (In re Anthony G. (2011) 194 Cal.App.4th 1060, 1065 ["[d]ependency jurisdiction is invoked to further the welfare of neglected and abused children, not to determine which parent must provide child support"].) As such, substantial evidence does not support that S.C. and A.C. were children described in section 300, subdivision (g).
DISPOSITION
The dispositional order of the juvenile court is affirmed. The jurisdictional order of the juvenile court, to the extent it sustains counts b-3 and g-1 of the amended interlineated petition regarding L.C. (Father C.) is reversed. In all other respects, the jurisdictional order is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J. We concur:
BENDIX, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.