Opinion
E066702
07-17-2017
In re M.B., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. E.B., Defendant and Appellant.
Melissa A. Chaitin, under appointment by the Court of Appeal, for Defendant and Appellant. Jean-Rene Basle, County Counsel, and Jamila Bayati, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.No. J264508) OPINION APPEAL from the Superior Court of San Bernardino County. Erin K. Alexander, Judge. Affirmed. Melissa A. Chaitin, under appointment by the Court of Appeal, for Defendant and Appellant. Jean-Rene Basle, County Counsel, and Jamila Bayati, Deputy County Counsel, for Plaintiff and Respondent.
I
INTRODUCTION
Appellant E.B., the father of M.B., challenges the findings and orders of the juvenile court after a contested disposition hearing on August 23, 2016, sustaining the dependency petition under subdivision (e) of Welfare and Institutions Code section 300 [severe physical abuse], and denying father reunification services with his daughter.
All statutory references are to the Welfare and Institutions Code unless otherwise specified.
Substantial evidence showed that M.B. had suffered a broken femur and abdominal injury while in father's care. The juvenile court's findings of severe physical abuse and serious or severe physical harm (§§ 300, subds. (a), (b), and (e) and 361.5, subd. (b)(5) and (6)), and its denial of family reunification services were not an abuse of discretion. We affirm the juvenile court's orders.
II
COMBINED STATEMENT OF CASE AND FACTS
Detention
M.B. was born in August 2015. C.E. is the mother. In March 2016, the child suffered an acute fracture of her right femur while in the care and custody of her parents. The San Bernardino County Children and Family Services (CFS) filed a petition alleging M.B. was a child subject to serious physical harm, failure to protect, and severe physical abuse, as described under section 300, subdivisions (a), (b) and (e).
CFS interviewed the parents separately. Mother stated she woke up around 6:00 a.m., swaddled the baby, fed her, and put her back to sleep in her swing. The baby appeared happy. At around 9:00 a.m., mother awoke again when the baby was crying. Father said, "There's something wrong with her. I think it's her leg." The baby cried when mother touched her leg and mother could not calm her. When the father lifted the baby to a standing position, the baby's right leg was "bent and dangling." The parents called the paternal grandmother, who is a registered nurse, and a medical hotline before taking the baby to Riverside Community Hospital (Riverside).
When the doctors told the parents the baby's hip was broken, mother "started freaking out." Mother explained the baby had fallen off a couch the week before and the baby sleeps in a swing/sleeper with a harness and "thrusts upward a lot," which could also have caused the baby's injury. Father watched the baby while mother was at work. Mother denied any criminal history and any domestic violence in her relationship with the father.
When he was interviewed, father stated mother awoke at 6:00 a.m. and fed the baby. Father awoke at 9:00 a.m. and changed the baby's diaper and the baby seemed to be crying "an unusual amount." He stood the baby up and noticed her right leg was bent. The baby continued to cry and father "knew something was up." The baby's right leg was warm and swollen. The parents called the paternal grandmother and a hotline and took the baby to the Riverside hospital.
Father stated he usually watched the baby and he did not know how the injury happened. Father denied any substance abuse but admitted to having a 2012 domestic violence charge and a 2013 domestic violence charge for which he had completed classes and "volunteering." He thought the baby may have injured herself while she was in the harness by thrusting her hips up, turning and kicking her leg.
A doctor did not believe the injury could have been sustained by falling off a couch or from thrusting upward while in the swing's harness. Instead, the injury required either force or a type of bone disease. The baby had a broken femur and would need a pelvic harness. A bone scan showed it was the baby's only injury. A forensic pediatrician was conducting a further examination.
After performing a risk assessment, CFS confirmed that the parents' explanations were not consistent with the baby's injury. The baby was transferred from Riverside to Loma Linda where Dr. Young, a forensic specialist, viewed the baby's x-ray and determined the injury was nonaccidental. At the detention hearing on March 14, 2016, the juvenile court ordered the baby detained from her parents' custody and placed with her maternal great-aunt.
Jurisdiction and Disposition
In the April 2016 jurisdiction/disposition report, CFS reported mother and father were each advised by their respective lawyers not to discuss the incident. A social worker examined the swing and saw no reason it could have injured the baby. CFS recommended the petition be sustained and that no reunification services be ordered to either parent.
On April 29, 2016, father's counsel filed a motion, seeking placement of the baby with the paternal aunt or paternal grandmother or, in the alternative, standing for these relatives to be heard on the issues of visitation and contact. The court ordered the baby to remain detained with her maternal great-aunt and continued the hearing due to father's recent incarceration. In May 2016, father's counsel filed opposition to placement out of county with the maternal relative. CFS asserted it would be detrimental to the baby to be moved. Mother wanted the baby to remain with her aunt. In addition, mother admitted she was concerned because the baby had screamed when she was in father's care.
CFS submitted the 1,166-page "Medical Report: Suspected Child Physical Abuse and Neglect Examination," in which Dr. Young concluded the baby suffered "an acute right proximal fracture, torn upper labial frenulum, and transaminitis, all of which are typical of physical abuse." Included were police reports and medical records.
At the pretrial settlement/trial setting conference on May 18, 2016, the matter was continued and set for a contested jurisdictional/dispositional hearing by father and a contested jurisdictional hearing by mother. The court denied father's motion objecting to out of county placement.
On July 12, 2016, CFS filed additional information about a further interview with mother. Mother repeated her account of hearing the baby scream while the father was tending to her in another room. Mother said father refused a lie detector test but denied hurting the baby. After father was arrested, mother decided to separate from father. She changed her phone number, stopped talking to him, and did not intend to reunite with him. She sought full custody of M.B. Mother could not say father injured the baby because she did not witness anything. However, she knew the baby's injury was first observed while in father's care.
CFS changed its recommendation: remove the baby from father's custody and deny him reunification services, and release the baby to mother. CFS also recommended mother receive family maintenance services and father's separate independent visits be monitored.
At the pretrial settlement hearing, the court ordered the baby be detained with her maternal great-aunt and mother be allowed daily supervised visits. The court also ordered CFS to reassess release to mother, provided father was no longer in the home, and granted CFS authority to allow mother unsupervised visits.
On August 17, 2016, CFS submitted additional information that mother was having five hours of unsupervised visits each day and that she worked nights. Mother had completed her case plan and was transitioning to having overnight visits.
CFS submitted more information about father participating in therapy and treatment for three months. Father expressed his emotions about losing his daughter, addressed issues that led to CFS's involvement, and identified ways to create a safe environment for a child. Father denied hurting the baby but acknowledged she had fallen off the couch. Father was frustrated with CFS but was open to learning about and implementing child safety.
The combined contested jurisdiction and disposition hearing lasted several days. Father asserted the Fifth Amendment and did not testify.
Mother's Testimony
Mother testified she was watching television and holding the baby before putting her to sleep in her swing in the bedroom. Mother heard the baby cry and found the baby "dangling" from the swing. Mother was startled and called to the father to show him the baby was out of the swing and unsecured; the harness or strap was near her hips or abdomen, up to her thigh. Mother then swaddled the baby in a "little pouch" and put her back into the swing. The baby was crying but did not appear to be injured. Eventually, the parents went to bed.
At around 6:00 a.m., mother awoke to the baby crying. Mother picked her up and took her into the living room to feed her. She did not "unswaddle her completely." She played with her a little and put her back to sleep. Mother was awakened at around 9:00 a.m. because the baby was crying while father was tending her. From the bedroom, mother heard a "worse cry," like a loud scream, coming from the living room and mother ran in to find out what was wrong. Father said the baby was not standing on her right leg.
Father told mother the baby had become tangled in the swing. The baby emitted another "bad cry." Mother was very concerned and called father's mother because she is a nurse. Mother also called an emergency hotline and was told to go to the hospital. The baby continued to cry. The parents took the baby to the hospital.
Mother identified the swing from photographs. Mother explained they always used the waist restraint to secure the baby. They did not use the restraint around the crotch when the baby was swaddled. When the hospital said that the baby's leg was broken, mother repeatedly asked father what happened. Father believed it had something to do with the swing. Mother accepted father's response because she did not think father could or would hurt the baby. Mother could not say if father hurt the baby because she was not present when the baby was injured. Father refused to talk to the police or the doctor but reiterated he would never hurt their baby. Eventually, mother learned from the paternal grandmother that a medical doctor, hired for father's defense, believed that the injury could have been caused by the swing and father was not responsible for the injury.
Dr. Young informed mother the baby had suffered a severe fracture to her upper femur, due to a nonaccidental cause, as well as exhibiting enzyme levels signifying she had been hit in the stomach. The paternal grandmother explained to mother that enzyme levels were affected by trauma. Father continued to deny hurting the baby and blamed the swing. Mother had a negative opinion about the doctor and did not necessarily trust her because she had been told the doctor had misdiagnosed abuse in other cases.
Mother believed the baby could have been injured in the swing. When mother observed the baby trying to wiggle out of the swing seat with her legs dangling, that was the first time mother thought it may have been dangerous for the baby to sleep in the swing.
Mother was six feet tall and father was six feet four inches tall. The baby was in the highest percentile for height and very strong. Mother described father as a "super dad," very involved with caring for the baby, and very loving. Mother never saw father behave violently with a child. Mother never observed suspicious marks or bruises when the baby was alone with the father. Mother would not have hesitated to confront father or contact the police. Mother and father were engaged but mother broke off their engagement when father was arrested for child abuse. The baby was her top priority. Mother was prepared to protect the baby from father, including preventing any contact. Father was living with his mother.
Mother was willing to accept as true a judicial finding that the baby was hurt nonaccidentally. If the baby was returned to mother's care, the maternal great-aunt would provide day care while mother worked. Mother had completed a parenting class and was in therapy for 12 weeks. She agreed to abide by all court orders and asked the court to return the baby to her custody. Mother was willing to cooperate with unannounced home visits and have other services for the baby. The baby's fracture had healed without any permanent damage.
Testimony of Social Worker Daniel Almaraz
Social worker Almaraz became involved in March 2016, soon after the detention hearing. The parents had no prior social services history. The injury sustained by the child was the right femur fracture. Initially the social worker recommended neither parent receive reunification services. He changed his recommendation to mother receiving services after she agreed to be interviewed and her story was credible. The social worker understood the child had no permanent damage and was healthy and active.
Almaraz recalled mother's statements that father was a "super" or "perfect" dad. He believed father was willing to participate in services and counselling. Almaraz did not obtain information about father's progress in counselling and parenting classes. Almaraz did not receive any negative information about father's visits; father behaved appropriately. However, Almaraz recommended father not receive reunification services because father refused to communicate with CFS and CFS was unable to conduct a full risk assessment as to father. When a parent asserts the Fifth Amendment, it is difficult for the social worker to conduct an investigation.
The social worker admitted there was some positive information regarding father's progress in individual counseling, including the fact that father continued to address issues that led him to CPS involvement. Father was open to learning about parenting and the social worker agreed that was positive. Ultimately, the social worker did not believe it would be in the child's best interest for the father to receive services. Testimony of Dr. Young
Dr. Young has been a medical doctor in the division of forensic pediatrics at Loma Linda since 2006. She examined M.B. in March and April 2016. M.B. was admitted with a proximal femur fracture of the right femur and placed in a Pavlik harness. Lab tests revealed "low hemoglobin level, elevated liver enzymes, and elevated D-dimer and creatine kinase. . . ." Dr. Young explained the area where the injury was sustained is atypical "because it is the thicker part of the femur." It was a "high velocity injury because of the strength of the bone at that location." Within a reasonable degree of medical certainty, the child's injury was most consistent with an abusive event, requiring a large amount of force to cause the fracture.
Dr. Young considered whether the swing could have contributed to the injury. She saw photographs of the swing and discussed it with mother. She did not think the baby could have caused the injury to herself or that the injury could have occurred by someone lifting the baby out of the seat, even if the baby's legs were strapped. The force would have to be significant, "applied perpendicularly to some rotation of axis." In addition, it was a "transverse fracture . . . which means straight through the bone."
Dr. Young reviewed Dr. Grogan's report and his assertion the baby's femur could have been fractured by removing the child from the swing. Dr. Young disagreed because it was a high velocity injury. In her experience, she never saw a child sustain a fracture like this from a swing. Dr. Young explained that if the leg was lifted and bent towards the minor's head forcibly, it could cause the injury. Significant manipulation or bending of the bone would be required to cause a fracture. She has seen cases where fractures occurred when the adult changing the diaper became frustrated and applied too much force.
Dr. Young did not request any genetic tests regarding OI, osteogenesis imperfect [brittle bone disease]. She did not believe there were any OI clinical indicators present for M.B. When asked to assume the child had a diagnosis of OI, Dr. Young opined it would be very atypical and would not explain "the entire presentation of this baby."
Dr. Young did not believe the fracture would cause permanent injury. She could not say whether there was permanent liver damage. The Riverside hospital did not find any type of trauma or marks or bruises on the child's abdomen. The CT scan did not uncover "any intra-abdominal injuries." Any injury healed quickly. The case was a typical presentation of an infant who suffered physical abuse.
During a meeting with mother, Dr. Young informed mother it was her opinion the baby had significant traumatic injuries caused nonaccidentally. Mother was upset but did not provide Dr. Young with an explanation. Dr. Young did not believe that falling off a couch could have been a potential cause of the child's injuries.
Dr. Young did not know how much force was required to cause a transverse fracture in a six-month old; instead, she knew by "experience of instances in which fractures like this are reported." Other doctors at Loma Linda classified the fracture in this case as a "moderately displaced transverse fracture." All reports indicated normal healing of the fracture. Dr. Young was told the child was doing well and healing normally.
Testimony of Paternal Grandmother and Aunt
The paternal grandmother regularly visited her granddaughter several times a month. She had visited her granddaughter four times since March 2016, and was requesting visitation, including overnight visits if possible. She was willing to cooperate with and follow all court orders and CFS's directives. She described her son as "very protective" of his daughter and a loving, attentive father. She last observed father with the child two months ago. They showed affection toward one another, were playful, and interacted together. Grandmother was a nurse for the past 36 years and a mandated reporter. She never saw any suspicious marks or bruises on the child.
The paternal aunt saw her niece almost every weekend for about five hours. She described father, as "really protective." She was an RN and worked as an emergency room nurse. She did not review any of the reports in this case but she was cognizant of elevated liver enzymes for children with injuries. She was a mandated reporter but she never saw her brother do anything to cause her concern about the baby. Testimony of Dr. Grogan
Dr. Grogan is a licensed physician and a pediatric orthopedic surgeon who has testified as an expert in child abuse cases over 100 times during the last five years, mostly on behalf of parents. He is not board-certified in the area of child abuse pediatrics. He has conducted seminars in the juvenile court about detecting bone injuries, soft tissue injuries, or injuries to infants. He has trained attorneys, social workers, and judges.
Dr. Grogan prepared a written opinion in which he explained a "transverse fracture of the proximal femur in a six-month-old child occurs from a bending moment applied to the femur. This is a single and isolated injury and therefore, there is no pattern of inflicted abuse." He also opined: "[i]f a bending moment was applied removing the child from the swing, that would be consistent with the fracture pattern observed both at Riverside and Loma Linda University Medical Center. However, direct application of force such as trying to lift the child to diaper the child only by lifting one leg is also a possible mechanism of fracture. As I stated, . . . in my opinion, even if left untreated, the fracture will go on to uneventful healing without deformity, disfigurement or dysfunction. . . .''"
Dr. Grogan explained "a newton of force" is a measure of force necessary to accelerate one kilogram one meter per second. He conducted a study regarding newtons of force and how much force was needed to cause a long bone fracture in an infant. It was determined 60 to 80 newtons of force was required to cause a fracture in a femur as in this case.
Dr. Grogan testified a bending moment was the type of mechanism that would cause a transverse fracture in the right femur in a six-month-old baby. To treat this injury, the child was placed in a Pavlik harness, "designed to hold the baby's legs and body in a semistable position." In Dr. Grogan's opinion, even if left untreated, the fracture would go on to uneventful healing without deformity, disfigurement or dysfunction.
Based on his review of the medical records and Dr. Young's report, Dr. Grogan stated there was "an increase in blunt abdominal pressure that caused a transient increase in liver enzyme that quickly decreased to normal within a few days." The transient rise probably occurred at the time of the injury to the femur and was related to the use of the swing. He opined the injury was not done by the child and could have been intentionally or accidentally caused but there was no pattern of injury or child abuse in this case. Grogan believed a fracture could have occurred when removing the child from the swing with a jerking motion, applying an inappropriate amount of force. He never saw a fracture attributed to a swing with a transverse strap. He also had seen a fracture occur at least 10 to 15 times when diapering was performed with inappropriate force.
Court's Findings and Orders
The court dismissed counts a.1 and count e.5. The court sustained counts a.2, b.3, b.4, and e.6, based on clear and convincing evidence that M.B. suffered an acute fracture of her right femur and an abdominal injury. The court offered a detailed explanation for its rulings. As to the section 300, subdivision (e) allegation, the court said: "The elements require severe physical abuse which can be a single act of abuse causing physical trauma that if untreated would cause permanent disfigurement or disability. I find that to be true in this case." The court continued: "I do find that it was abusive force that caused that injury [the broken femur] and sufficient to sustain the (e)'s, the (a)'s, and the (b) as written against father."
The court declared M.B, a dependent child of the juvenile court, removed the child from father's custody, and released her to mother's care with family maintenance services on the condition mother not allow any unauthorized contact between father and the child. The court denied father family reunification services under section 361.5, subdivisions (b)(5) and (b)(6), and ordered he receive supervised visitation at least four hours a week.
The court again offered detailed reasons for its findings regarding the family reunification bypass provisions. The court expressed its concern that father continued to deny knowing how the child was injured and the absence of "competent evidence that services are likely to prevent reabuse." The court commented there needed to be an assessment about what services would be appropriate and effective in light of what actually happened and suggested father could eventually file a section 388 petition. Lastly, the court stated it could not find "that failure to give services would be detrimental in light of the fact that we are six months out of the case without any explanation as to what happened or how we can go about trying to rehabilitate and make sure it does not happen again." The court adopted CFS's proposed findings under section 361.5, subdivision (b)(5) that father's conduct brought M.B. within the jurisdiction of the court and under section 361.5, subdivision (b)(6) that M.B. was the subject of severe physical abuse by father and it would not benefit the child to pursue reunification services with father.
III
FATHER LACKS STANDING
A threshold consideration concerns whether father has standing to bring this appeal, which involves a single allegation of the dependency petition. As a general rule, to be an aggrieved party, a parent must have legal rights that are injured by the court's decision. (In re Paul W. (2007) 151 Cal.App.4th 37, 55; Clifford S. v. Superior Court (1995) 38 Cal.App.4th 747, 751.) Father cannot claim to be an aggrieved party with standing based on the circumstances of this case.
When the court sustained the section 300 petition, it found clear and convincing evidence supported the allegations of subdivisions a.2, b.3, b.4, and e.6 that, while in father's care, M.B. suffered an acute fracture of her right femur and an abdominal injury that would not ordinarily occur except as the result of the unreasonable or neglectful acts or omissions.
During the trial, father's attorney argued the court lacked evidence to sustain a section 300, subdivision (e) allegation [severe physical abuse], and the court could only find "at the worst" that father was negligent, sustaining the section 300, subdivisions (a) and (b) allegations of serious physical harm and failure to protect. Also, defendant had no "specific intent" to hurt the child when pulling her from the swing. Instead, it was merely "negligent parenting . . . ."
A reviewing court can affirm the juvenile court's finding of jurisdiction if any single allegation is supported by substantial evidence. (In re Jonathan B. (1992) 5 Cal.App.4th 873, 875.) It is only necessary for the court to find that one parent's conduct has created circumstances triggering section 300 for the court to assert jurisdiction over the child. (In re P.A. (2007) 155 Cal.App.4th 1197, 1212; In re Alexis H. (2005) 132 Cal.App.4th 11, 16.)
Because father does not challenge the court's four jurisdictional findings, he effectively concedes the lower court had jurisdiction over M.B. Father's infliction of physical harm also supported family reunification bypass, pursuant to section 361.5, subdivision (b)(5) and (6). By father conceding to the appropriateness of the section 300 subdivisions (a) and (b) jurisdictional findings, the other dispositional findings and orders reasonably follow. Although father challenges the merits of the section 300, subdivision (e) allegation, and the family reunification bypass, alternative bases for jurisdiction remain unchallenged and father is not aggrieved by the court's findings. (In re Joshua S. (1986) 186 Cal.App.3d 147, 150.) Nevertheless, even if we entertain father's appeal in the interests of justice, we conclude the juvenile court did not err in making its jurisdictional findings.
Father's speculation about potential future prejudice does not mean there is no basis for the present jurisdictional findings.
IV
SUBSTANTIAL EVIDENCE SUPPORTS THE SECTION 300,
SUBDIVISION (e) FINDING
We review a juvenile court's jurisdictional findings for sufficiency of the evidence in the light most favorable to the trial court's order, drawing every reasonable inference and resolving all conflicts in favor of the prevailing party. (In re Misako R. (1991) 2 Cal.App.4th 538, 545; Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969; In re David M. (2005) 134 Cal.App.4th 822, 828.) The appellate court does not reweigh the evidence or express an independent judgment. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) The lower court determines issues of credibility and resolves any evidentiary conflicts. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 766.) Appellant has the burden to show the evidence was not sufficient to support the findings and orders. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
Juvenile court jurisdiction pursuant to section 300, subdivision (e), exists for a child under the age of five years who "has suffered severe physical abuse by a parent," meaning "any single act of abuse which causes physical trauma of sufficient severity that, if left untreated, would cause permanent physical disfigurement, permanent physical disability, or death . . . or more than one act of physical abuse, each of which causes bleeding, deep bruising, significant external or internal swelling, bone fracture, or unconsciousness. . . ."
In this case, M.B. suffered a bone fracture and abdominal injury requiring hospitalization. Nevertheless, appellant incorrectly argues the court lacked evidence M.B. would have suffered permanent physical disfigurement or disability if her injury was untreated. The facts showing that M.B. suffered a broken femur and abdominal trauma are enough to establish severe physical abuse.
The court's findings contradict father's arguments:
"The elements require severe physical abuse which can be a single act of abuse causing physical trauma that if untreated would cause permanent disfigurement or disability. I find that to be true in this case. [¶] Both doctors described this as a significant injury. . . . [I]t is more than sufficient evidence to show that it was a significant injury.
"As to the cause leaving a permanent disfigurement or disability, the Court did put a lot of emphasis on Dr. Young's testimony. . . . [¶] I also found it significant that she actually physically examined the child . . . [and] consulted with other experts who had personally observed the child . . . and she spent more time analyzing the case." The evidence showed that, if left untreated, there was potential for leg length discrepancy, foreshortening or lengthening of the leg. Substantial evidence showed M.B. would suffer "permanent physical disfigurement" or "permanent physical disability" had the femur fracture been left untreated.
Furthermore, M.B. was also a child as described under section 300, subdivision (e) because father committed "more than one act of physical abuse, each of which cause[d] bleeding, deep bruising, significant external or internal swelling, bone fracture. . . ." (§ 300, subd. (e).) Substantial evidence demonstrated father committed three acts of physical abuse on M.B.—the femur fracture, the abdominal injury, and the frenulum tear.
Dr. Young described the injury causing the fracture. "[I]t's significant manipulation or bending of the bone. For instance, a leg forcefully pushed towards the head of the child which causes deformation of the femur and failure and it fractures." Dr. Grogan's testimony also was that the fracture occurred from undue force. Both doctors described a "bending" motion and the need for significant force for the fracture to occur.
Dr. Young suggested the abdominal injury was caused by excess pressure or impact, causing liver injury. Dr. Grogan agreed elevated liver enzymes indicated blunt abdominal trauma and M.B.'s lab results indicated an inappropriate amount of force. As with the femur fracture and abdominal injury, substantial evidence also supported the fact that physical force to M.B.'s mouth caused the frenulum injury. Dr. Grogan only viewed a photograph of M.B. and did not examine her. He conceded a child's frenulum could be torn through abusive conduct.
This case did not involve a "single act of abuse" by father. Substantial evidence established father repeatedly physically abused M.B. by forcing her leg to the point of fracture, by squeezing her too hard or hitting her in the abdomen with blunt force, and by forcing something into her mouth leading to the frenulum tear. M.B. suffered extreme pain with ongoing effects. The foregoing establishes the alternative section 300(e) finding.
V
FAMILY REUNIFICATION BYPASS
The appellate court reviews the denial of reunification services for an abuse of discretion. (In re William B. (2008) 163 Cal.App.4th 1220, 1229; In re Angelique C. (2003) 113 Cal.App.4th 509, 523-524.) The court is required to make a "reasoned judgment." (In re Lee G. (1991) 1 Cal.App.4th 17, 26-27.) A reviewing court will not disturb a discretionary decision unless the trial court has made an arbitrary, capricious, or patently absurd determination. (In re Raymundo B. (1988) 203 Cal.App.3d 1447, 1456, citing In re Arthur C. (1985) 176 Cal.App.3d 442, 446.) The appellate court shall reverse an order only where the abuse of discretion was prejudicial and resulted in a "miscarriage of justice." (Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1069.)
Here the court properly applied family reunification bypass pursuant to section 361.5, subdivision (b)(5) and (6), although either basis was sufficient. Once the court found M.B. was a child described under section 300, subdivision (e), the court had no discretion to order services unless the court found by convincing evidence that reunification would serve the child's best interests (§ 361.5, subd. (c)(2)) and competent testimony demonstrated services were "likely to prevent reabuse" or "failure to try reunification will be detrimental" to the baby. (§ 361.5, subd. (c)(3).)
Father had been convicted of past domestic violence for which he received probation services. In this case, CFS concluded father caused the child's injuries, which father effectively conceded. Father's "past history of violent behavior" and "failure . . . to respond to previous services," suggested services would not prevent reabuse. (§ 361.5, subd. (c)(4).) The social worker testified it was not in M.B.'s best interests to offer family reunification services, given her age, the severity of her injury, and father's unwillingness to acknowledge the abuse.
Father did not present "competent testimony" indicating a grant of family reunification services to him would likely prevent reabuse. (§ 361.5, subd. (c)(3).) A parent may invoke his constitutional right to remain silent but father did not cooperate with CFS. Father tried to blame the child's injuries on implausible alternative reasons, and suggested mother hurt the baby during a diaper change. He focused on not incriminating himself rather than on his child's welfare. He also tried to manipulate mother's cooperation with the CFS and law enforcement concerning the child abuse investigation. Based on the foregoing, the court found that there was no competent evidence that services would likely prevent reabuse.
The evidence also did not demonstrate that "failure to try reunification will be detrimental" to the child because she was "closely and positively attached" to father. (§ 361.5, subd. (c)(3).) The social worker testified their visits were positive but not sufficient to justify services. It is for the juvenile court to assess credibility and weigh the evidence using the proper burden of proof when exercising its discretion to grant or deny a petition to modify a reunification services bypass order. (In re L.S., Jr. (2014) 230 Cal.App.4th 1183, 1194.) Here, it cannot be said the court made an arbitrary, capricious, or patently absurd determination in denying father family reunification services. (In re Raymundo B., supra, 203 Cal.App.3d at p. 1456.)
For section 361.5, subdivision (b)(6), to apply, the parent must have inflicted severe physical harm upon the child. (Tyrone W. v. Superior Court (2007) 151 Cal.App.4th 839, 845-852; Amber K. v. Superior Court (2006) 146 Cal.App.4th 553, 561.) The court sustained subdivision (a) and (b) allegations for infliction of serious physical harm, which father does not challenge. Father's infliction of "severe physical abuse" supported an family reunification bypass independently of the subdivision (b)(5) family reunification bypass.
Father faults the court for defects in its findings under section 361.5, subdivision (b)(6). Under section 361.5, subdivision (k): "The court shall read into the record the basis for a finding of . . . the infliction of severe physical harm under paragraph (6) of subdivision (b), and shall also specify the factual findings used to determine that the provision of reunification services to the offending parent or guardian would not benefit the child." Section 361.5, subdivision (i), explains the nonexclusive criteria the court is to use when determining whether family reunification services to the parent would benefit the child: "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: [¶] (1) The specific act or omission comprising the . . . severe physical harm inflicted on the child. . . . [¶] (2) The circumstances under which the abuse or harm was inflicted on the child. . . . [¶] . . . [¶] (5) The likelihood that the child may be safely returned to the care of the offending parent . . . within 12 months with no continuing supervision."
Here the court expressly found that father had committed both serious physical harm and severe physical abuse. The court certainly considered the nature and circumstances of the harm and determined that it was not likely M.B. could safely be returned to father. The court also explained why reunification services would not benefit the child. Ample evidence demonstrated why family reunification services to father would not benefit the child given the seriousness of her injuries, father's history of violence and his lack of progress toward reform. Even if there was any technical failure in the court's findings, they were certainly sufficient by implication to fulfill the requirements of section 361.5, subdivisions (i) and (k). (In re Corienna G. (1989) 213 Cal.App.3d 73, 83.) We see no necessity to remand for additional findings.
VI
DISPOSITION
Assuming father has standing to bring this appeal, we hold on the merits that the juvenile court did not abuse its discretion in sustaining jurisdiction on the dependency petition and denying father family reunification services. We affirm the orders of the juvenile court.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: MILLER
Acting P. J. FIELDS
J.