Opinion
E070082
10-01-2018
In re P.G. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. S.G., Defendant and Appellant.
Melissa A. Chaitin, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Dawn M. Martin, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.Nos. J272346 & J272349) OPINION APPEAL from the Superior Court of San Bernardino County. Annemarie G. Pace, Judge. Affirmed. Melissa A. Chaitin, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Dawn M. Martin, Deputy County Counsel, for Plaintiff and Respondent.
I
INTRODUCTION
S.G. (Father) is the father of five-year-old son W.G., and one-year-old daughter P.G. The children were removed from parental custody after then seven-week-old P.G. sustained a non-accidental fractured femur and bruising to her face. The mothers were offered reunification services. However, the juvenile court denied Father reunification services under Welfare and Institutions Code section 361.5, subdivision (b)(6), after determining it was not in the children's best interest to offer him services. Father challenges the court's findings and orders denying him services, contending the evidence demonstrated reunification services were in the children's best interest. For the reasons explained below, we affirm the judgment.
The children have different mothers, who are not parties to this appeal.
All future statutory references are to the Welfare and Institutions Code unless otherwise stated.
II
FACTUAL AND PROCEDURAL BACKGROUND
On August 17, 2016, San Bernardino County Children and Family Services (CFS) responded to a referral at Loma Linda Medical Hospital due to injuries sustained by seven-week-old P.G. P.G. suffered an acute mid-shaft fracture to the left femur and facial bruising due to her face being squeezed. The forensic examiner, Dr. Amy Young, concluded P.G.'s injuries were non-accidental and caused by severe physical abuse. Father admitted that P.G.'s injuries occurred while in his care, but claimed they were accidental.
The fracture was incorrectly identified as occurring to the left humerus in the August 22, 2017 report from CFS. We utilize the findings and impression in the August 17, 2017 final radiologic report throughout this opinion.
Upon questioning, Father was unable to explain how P.G. sustained her injuries. He stated that he and A.G. (P.G.'s mother) brought her to the pediatrician because she was choking and vomiting. He did not notice her leg was swelling because his focus was on getting her examined and " 'back to breathing.' " He claimed that he was rocking P.G. in his arms and perhaps her leg got caught in his arm. P.G.'s mother stated that Father was holding P.G., who was crying a lot, " 'and turned her in an awkward position,' " which could have injured her. P.G.'s mother denied knowing how P.G.'s injuries occurred because Mother was on various medications, including sleep medications, to treat postpartum depression and other mental health issues.
On August 21, 2017, CFS filed a section 300 petition on behalf of P.G. pursuant to section 300, subdivisions (a) (serious physical harm), (b) (failure to protect), (e) (severe physical abuse of child under five), and (j) (abuse of sibling), due to P.G.'s injuries sustained while in the parents' care, in addition to P.G.'s mother's mental health problems, and the delay in seeking medical treatment for P.G. CFS also filed a section 300 petition on behalf of W.G. pursuant to section 300, subdivisions (b), (g), and (j), alleging his mother's whereabouts were unknown, and she failed to provide support and care for him. The petition further alleged that W.G. was at risk of abuse and neglect given the injuries suffered by P.G.
The children were formally detained and removed from parental custody at the August 22, 2017 detention hearing.
CFS recommended no family reunification services for any of the parents and setting a section 366.26 hearing. The social worker reported that P.G. was discharged from the hospital on August 24, 2017, and she was placed with W.G. in the paternal great-grandmother's care.
On August 31, 2017, Father told the social worker that P.G. had been choking and vomiting while he fed her and he " '[f]lipped her over and twisted her when he slammed her down to get her breathing.' " Father also stated that P.G. was screaming and crying but he was able to calm her and he did not notice any injuries to P.G. He further asserted that he did not tell P.G.'s mother what happened and said nothing to her about any concerns about what happened to P.G. CFS was concerned that Father would continue to physically abuse P.G., noting he not only failed to seek medical treatment for P.G., but he also did not inform P.G.'s mother or any other family members that P.G. had been injured.
On September 11, 2017, CFS filed amended section 300 petitions for both children. The petitions alleged that while in the parents' care, P.G. was "twisted, turned and slammed causing or worsening her non-accidental injuries," which included an acute mid-shaft fracture of her left femur and a bruised face. The petitions also alleged that P.G.'s mother was diagnosed with "bipolar disorder, anxiety, PTSD and postpartum depression," which compromised her ability to care for P.G.
The initial September 12, 2017 jurisdictional/dispositional hearing was continued in order for Father and his counsel to obtain medical reports and police reports.
On October 19, 2017, CFS reported that the children were moved from the paternal great-grandmother's home to the home of non-related extended family members. Father and P.G.'s mother had separated. Father was residing with the paternal stepgrandfather. He was engaged in services and had completed a parenting program.
A few days later on October 23, 2017, CFS submitted additional information to the court, which included P.G.'s x-rays and color pictures of her injuries.
On October 24, 2017, the jurisdictional/dispositional hearing was continued again as the parties were still awaiting the police and medical reports.
On November 14, 2017, CFS summited the police report with supporting documents to the court. After being questioned, Father and P.G.'s mother took a polygraph examination, which was deemed inconclusive. Following the polygraph examination, a police deputy asked Father if he was the one that caused P.G.'s injuries. Father responded, " 'Yes, but not intentionally.' " He also admitted to causing the bruising to P.G.'s face. Police also questioned Dr. Young, and she opined that P.G.'s femur fracture was not caused by an accident and was the result of suspected child abuse.
On November 28, 2017, Father was arrested and charged with corporal injury to a child (Pen. Code, § 273d, subd. (a)) and great bodily injury to a child under the age of five years (Pen. Code, § 12022.7, subd. (d)). He was released from jail on December 6, 2017, and had a scheduled criminal court hearing for January 16, 2018. A restraining order was issued preventing Father from having contact with P.G. Meanwhile, P.G.'s mother voluntarily drug tested with negative results and was attending therapy.
CFS recommended reunification services be provided to W.G.'s mother and denied to Father pursuant to section 361.5, subdivisions (b)(5) and (6).
The contested jurisdictional hearing was held on January 8, 2018. At that time, following testimony from P.G.'s mother and argument from counsel, the juvenile court found true the allegations in the petitions as amended. The court found jurisdiction for P.G. under section 300 subdivisions (a), (b), and (e), and jurisdiction for W.G. under section 300, subdivisions (a), (b), and (j). The matter was continued for the contested dispositional hearing.
On February 21, 2018, CFS recommended reunification services be provided to P.G.'s mother and continued to recommend no reunification services for Father. The criminal court restraining order barring Father from having contact with P.G. remained in place, and Father had an upcoming criminal court date. CFS had received Father's psychological evaluation dated January 6, 2018, in which Father continued to deny responsibility for P.G.'s injuries. In addition, during the psychological evaluation, Father failed to mention that he had been arrested and charged with child abuse and great bodily injury to a child. Based on the police report, in which Father admitted to causing P.G.'s injuries, Father being found researching " 'can a broken femur on a 27 week-old infant be accidental' " prior to Father's polygraph examination, and Dr. Young's report, CFS remained concerned for the children's safety. CFS also noted that given Father had "continue[d] to deny, minimize, and manipulate the incident in which he broke" P.G.'s femur and "caused bruising to her face," it did not appear Father had benefitted from the services provided to him. However, Dr. Kristina Roberts, who performed the psychological evaluation of Father, concluded that Father could benefit from reunification services and that services were likely to prevent reabuse or neglect of P.G. in the future.
The contested dispositional hearing was held on February 26, 2018. All parties stipulated that Father regularly visited W.G. on a weekly basis and that there were no issues with the visits. It was also stipulated that Father was participating in anger management and counseling sessions. However, it was noted that the social worker was unable to receive a progress report regarding his counseling. Father was unable to visit P.G. due to the criminal protective order.
Dr. Roberts testified that Father had the ability to benefit from services based on his strengths, which included his insight into his parenting ability, and his ability to manage his emotions and ability to utilize feedback to make changes in his behavior. She recommended that Father continue in counseling and noted that Father would benefit from a parenting class, which he had completed. She opined that Father could safely parent the children within the next six months and after having received services. Dr. Roberts also stated that during his interview with her, Father discussed his arrest and took some responsibility for injuring P.G., believing it was an accident. Father's psychological testing showed Father was slightly defensive, which Dr. Roberts stated was normal. She explained that Father's profile was within normal limits, and testing showed he "is more of an easy going type, a passive person who tries to avoid conflict. There was no indication he would abuse substances, had any past trauma that would cause him to become abusive in the future, no immaturity, and no problems with authority." Dr. Roberts also administered the "child abuse potential inventory," which indicated he did not have the potential to abuse children. She noted that Father did have a more authoritarian style, but she believed it could be softened with a parenting class and counseling. Dr. Roberts was also aware that the court found true the allegations regarding the injuries sustained by P.G. Despite the court's finding P.G.'s injuries to be non-accidental, Dr. Roberts believed Father had the ability to benefit from services and prevent re-abuse of the children.
During cross-examination, Dr. Roberts noted she spent a total of three hours with Father. Generally, she prefers to conduct the tests over several days, but in Father's case she had a short timeframe. Dr. Roberts acknowledged that she did not interview any of Father's friends or family members, Dr. Young or the social worker. She also conceded that she did not observe Father during a visit with W.G.
Following testimony from Dr. Roberts and hearing argument from the parties, the court found that Father had met his burden under section 361.5, subdivision (b)(5), in regard to competent testimony to prevent reabuse, and therefore found that bypass section inapplicable. In regards to section 361.5, subdivision (b)(6), the court stated: "Under [section 361.5, subdivision] (b)(6) I'm not to order services unless there is clear and convincing evidence that reunification services are in the best interest of the child. And [Father's trial counsel] highlighted the factors I am to consider as part of that determination, [including] the specific act or omission constituting the severe physical harm. [¶] What we have in this case is a month-old child that has a broken bone as well as bruising to the face which, given the child's age and the force necessary to create that broken bone is something that I am considering quite heavily in this case. The circumstances under which the abuse or harm was inflicted, kind of go both ways. I think that [Father's trial counsel] rightfully highlighted the positives in that the father was in the middle of the night taking care of the child to assist the mother who was having some postpartum issues. So that was a significant [factor] in his [favor]. [¶] However, I also believe that this abuse and harm was inflicted because the father was frustrated and rightfully frustrated, but we can't let that rise to the level of this kind of significant abuse to a one-month-old child. The severity of emotional trauma suffered by the child—I don't have any real information for either child as to that. Although I'm sure that [P.G.] was in significant pain during—due to her injury. There is no prior history of abuse of any prior children, no criminal history. [¶] The likelihood the children may be returned safely within 12 months with no supervision, on that factor I am considering the testimony of Dr. Roberts, in that the factor does weigh in favor of the father, and whether or not the child desires to be reunified. [P.G.] is too young. [¶] I don't have any information about [W.G.] Although [Father] was, if not one of, his primary caretakers, and he is I think four years old now. [¶] Based on the totality and the circumstances, however, I am going to find that the father has not met his burden by clear and convincing evidence that it is in the child's best interest to offer services. So I am going to deny services under the [section 361.5, subdivision] (b)(6) bypass. . . ."
The court declared the children dependents of the court and granted services to P.G.'s mother and W.G.'s mother. Father was denied services pursuant to section 361.5, subdivision (b)(6). The court granted Father visits one time per week for two hours with P.G. once the criminal restraining order was lifted or modified to permit such contact. This appeal followed.
III
DISCUSSION
Father argues that the juvenile court should have ordered reunification services to be provided to him under section 361.5, subdivision (c), notwithstanding the court's finding that the bypass provision under section 361.5, subdivision (b)(6), applied, because reunification services were in the children's best interest.
As a general rule, when a child is removed from parental custody under the dependency laws, the juvenile court is required to provide reunification services to "the child and the child's mother and statutorily presumed father . . . ." (§ 361.5, subd. (a).) However, subdivision (b) of section 361.5 exempts from reunification services " 'those parents who are unlikely to benefit' " from such services or for whom reunification efforts are likely to be " 'fruitless.' " (In re Joshua M. (1998) 66 Cal.App.4th 458, 470, 474; see In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478; In re G.L. (2014) 222 Cal.App.4th 1153, 1163-1164.) The 17 different paragraphs set forth in subdivision (b) of section 361.5—which authorize denial of reunification services under various specific circumstances—are sometimes referred to as " 'bypass' " provisions. (Melissa R. v. Superior Court (2012) 207 Cal.App.4th 816, 821.)
In the present case, the juvenile court denied reunification services to Father pursuant to section 361.5, subdivision (b)(6). That bypass provision states, in relevant part, that reunification services need not be provided if the court finds by clear and convincing evidence that "the child has been adjudicated a dependent pursuant to any subdivision of Section 300 as a result of . . . the infliction of severe physical harm to the child, a sibling, or a half sibling by a parent . . . , and the court makes a factual finding that it would not benefit the child to pursue reunification services with the offending parent . . . ." (§ 361.5, subd. (b)(6)(A).) Infliction of severe physical harm includes, but is not limited to, "deliberate and serious injury inflicted to or on . . . the body of a . . . half sibling of the child by an act or omission of the parent . . . ." (§ 361.5, subd. (b)(6)(C).)
We review an order denying reunification services under subdivision (b) of section 361.5 for substantial evidence, keeping in mind the higher standard of proof required in the court below when reunification bypass is ordered. (See § 361.5, subd. (b) [requiring bypass findings to be established by clear and convincing evidence]; Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96; In re A.E. (2014) 228 Cal.App.4th 820, 826.) Under such circumstances, we do not make credibility determinations or reweigh the evidence. (Jennifer S. v. Superior Court (2017) 15 Cal.App.5th 1113, 1121.) Rather, we review the entire record in the light most favorable to the juvenile court's findings to determine if there is substantial evidence, contradicted or uncontradicted, in the record to support those findings. (Id. at pp. 1121-1122.) Issues of fact and credibility are the province of the lower court, and we do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the lower court. (In re I.J. (2013) 56 Cal.4th 766, 773.) If there is substantial evidence to support the order, we must affirm the order even if there is evidence that could have supported a contrary order. (In re Megan S. (2002) 104 Cal.App.4th 247, 251.)
Father first argues that the juvenile court "never made a factual finding that it would not benefit either child to pursue reunification services with [him]." As noted, section 361.5, subdivision (b)(6)(A), requires the court to make "a factual finding that it would not benefit the child to pursue reunification services with the offending parent" in order to deny reunification services to the parent. Here, the court did not expressly find that reunification services would not benefit the children. However, findings supporting a denial of reunification services pursuant to section 361.5, subdivision (b)(6), may be implied when the record contains substantial evidence to support such implied findings. (In re S.G. (2003) 112 Cal.App.4th 1254, 1260-1261.) And here, the record contains substantial evidence to support the court's implied finding that reunification services for Father would not benefit the children.
Subdivision (i) of section 361.5 provides: "In determining whether reunification services will benefit the child pursuant to paragraph (6) or (7) of subdivision (b), the court shall consider any information it deems relevant, including the following factors." These six factors include: "(1) The specific act or omission comprising . . . the severe physical harm inflicted on the child or the child's sibling or half sibling. [¶] (2) The circumstances under which the abuse or harm was inflicted on the child or the child's sibling or half sibling. [¶] (3) The severity of the emotional trauma suffered by the child or the child's sibling or half sibling. [¶] (4) Any history of abuse of other children by the offending parent or guardian. [¶] (5) The likelihood that the child may be safely returned to the care of the offending parent or guardian within 12 months with no continuing supervision. [¶] (6) Whether or not the child desires to be reunified with the offending parent or guardian." (§ 361.5, subd. (i).)
The record shows the juvenile court considered the factors set forth in section 361.5, subdivision (i), and concluded, based on substantial evidence, that reunification services for Father would not benefit any of the children. First, the court acknowledged that it did not have information on the severity of the emotional harm suffered by either child and that there was no prior history of abuse. (§ 361.5, subd. (i)(3), (4).) But the court also observed that P.G. was in significant pain due to her injuries and that P.G. had suffered severe physical harm. (§ 361.5, subd. (i)(1).) The court pointed out that P.G., who was "a month-old child," had a broken bone as well as bruising to her face and that "given the child's age and the force necessary to create that broken bone [was] something that [the court] consider[ed] quite heavily in this case." The court also noted the positive and negative circumstances under which the abuse was inflicted. (§ 361.5, subd. (i)(2).) In addition, the court considered the likelihood the children may be returned safely within 12 months with no supervision and whether or not the children desired to reunify with Father, noting the children's young ages. (§ 361.5, subd. (i)(1), (5), (6).) In sum, by its comments, the court made it manifestly clear it was finding that the children would not benefit from reunification services for Father.
Father next asserts that "assuming arguendo this [c]ourt finds the juvenile court properly applied this bypass subdivision," under section 361.5, subdivision (c), the juvenile court should have offered him reunification services since reunification was "clearly in the best interests of these children, particularly so with respect to four year old minor W.G."
If the court finds that a provision of section 361.5, subdivision (b), applies, then the court "shall not order reunification for [the] parent . . . unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child." (§ 361.5, subd. (c)(2).) When a court determines that one of the section 361.5, subdivision (b) exceptions to reunification services applies, the burden then shifts to the parent to rebut the legislative assumption that services would be an unwise use of governmental resources and show that reunification services for that parent would be in the child's best interest. (In re William B. (2008) 163 Cal.App.4th 1220, 1227.)
We review for abuse of discretion the juvenile court's finding whether a parent has met his or her burden to show it is in the child's best interest that the parent receive reunification services. (In re G.L., supra, 222 Cal.App.4th at pp. 1164-1165.) "A juvenile court has broad discretion when determining whether . . . reunification services would be in the best interests of the child under section 361.5, subdivision (c). [Citation.]" (In re William B., supra, 163 Cal.App.4th at p. 1229.) On appeal, we presume the juvenile court's order is correct and Father has the burden to overcome that presumption and affirmatively show the court erred. (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) In other words, we will not disturb such a discretionary decision unless the lower court made "an arbitrary, capricious, or patently absurd determination." (Adoption of D.S.C. (1979) 93 Cal.App.3d 14, 24-25.)
Because the juvenile court in this case found that section 361.5, subdivision (b)(6), applied to deny Father reunification services, the burden then shifted to Father to rebut the legislative assumption that services would be an unwise use of governmental resources and show that reunification services for him would be in his children's best interest. (In re William B., supra, 163 Cal.App.4th at p. 1227.) "To determine whether reunification is in the child's best interest, the court considers the parent's current efforts, fitness, and history; the seriousness of the problem that led to the dependency; the strength of the parent-child and caretaker-child bonds; and the child's need for stability and continuity." (In re Allison J. (2010) 190 Cal.App.4th 1106, 1116.)
In this case, we conclude the juvenile court did not abuse its discretion in finding reunification services for Father was not in the children's best interest. P.G. was only seven weeks old when Father severely abused her, causing her to suffer a broken bone and bruised face. Father admitted to causing P.G.'s injuries, albeit he alleged they were unintentional. Nonetheless, Dr. Young opined that such injuries could not have been accidental and were the result of suspected child abuse. As a result of the incident, Father had a pending criminal case with charges for corporal injury to a child and great bodily injury on a child under the age of five years. Furthermore, a criminal restraining order was in place preventing Father from having any contact with P.G., and there was nothing suggesting if, and when, the restraining order would be removed. Consequently, Father had not had any visits with P.G. since she was removed from parental custody at seven weeks old. P.G.'s removal at such a young age, without having seen Father for several months, showed that there was little to no bonding between Father and P.G. Father was unable to prove otherwise. In regards to W.G., as noted by the court, Father failed to present any evidence regarding W.G.'s desire to reunify with him. There was nothing in the record or any evidence presented by Father demonstrating W.G. had a strong bond with Father.
Despite showing his current efforts, fitness, and history, Father failed to affirmatively show he was bonded with his children or that reunification would be in the children's best interest. To the extent that the record is silent as to any bond between Father and the children, it was Father's burden to establish that bond under section 361.5, subdivision (b)(6).
Father points to several circumstances that he believes should have persuaded the court to allow reunification. He calls attention to the positive psychological evaluation by Dr. Roberts, his engagement in services, W.G. having lived with him a majority of his short life, and his lack of a criminal history other than this case. However, none of this evidence demonstrated reunification was in either of the children's best interest. Under the totality of the circumstances in this case, as noted by the juvenile court, Father has not met his burden to show, by clear and convincing evidence, that reunification services would be in the children's best interest. We are not at liberty to reweigh the evidence supporting the juvenile court's ruling. Even if we might have reached a different conclusion, we cannot say that "the evidence compels a finding in favor of the appellant as a matter of law." (In re I.W. (2009) 180 Cal.App.4th 1517, 1528.) The juvenile court did not exercise its discretion in an arbitrary, capricious, or patently absurd way. Accordingly, we uphold the denial of reunification services to Father.
IV
DISPOSITION
The February 26, 2018 dispositional order denying Father reunification services pursuant to section 361.5, subdivision (b)(6), is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: RAMIREZ
P. J. MILLER
J.