Opinion
E073354
11-22-2019
T.S., Petitioner, v. THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Real Party in Interest.
Vincent W. Davis for Petitioner. No appearance for Respondent. Michelle D. Blakemore, County Counsel, and Jamila Bayati, Deputy County Counsel, for Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J279354) OPINION ORIGINAL PROCEEDINGS; petition for extraordinary writ. Annemarie G. Pace, Judge. Petition denied. Vincent W. Davis for Petitioner. No appearance for Respondent. Michelle D. Blakemore, County Counsel, and Jamila Bayati, Deputy County Counsel, for Real Party in Interest.
The juvenile court denied petitioner, T.S. (Mother), reunification services as to L.L. (Minor) born in July 2018 pursuant to the bypass provisions of Welfare and Institutions Code section 361.5, subdivision (b)(5) (Minor subjected to physical abuse) and (6) (child adjudicated a dependent as a result of severe sexual abuse or the infliction of severe physical harm) and set the section 366.26 hearing. Mother contends insufficient evidence supported the court's sustainment of the D-6 and E-8 allegations. Mother further maintains the court erred in denying her reunification services.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated
Real party in interest, San Bernardino County Children and Family Services (CFS), argues the petition should be dismissed because Mother fails to challenge the A-2 and B-4 allegations which, separately, supported application of the bypass provisions of section 361.5, subdivision (b)(5) and (6). Assuming arguendo that Mother can challenge the sufficiency of the evidence to support the D-6 and E-8 allegations, CFS maintains sufficient evidence supports the court's findings. Finally, CFS asserts the court correctly denied Mother reunification services pursuant to the bypass provisions of section 361.5, subdivision (b)(5) and (6). The petition is denied.
I. FACTUAL AND PROCEDURAL BACKGROUND
On January 9, 2019, a social worker responded to an immediate response referral in which the reporting party stated he had been shown pictures of Minor and was concerned Minor was being sexually abused. Minor had several bruises on her lower body and blood in her stool. Minor's vaginal area had bruising and a half-moon-shaped bruise which may have been a bite mark. According to the reporting party, Mother and the maternal grandmother (MGM) were aware of the sexual abuse but had not taken any remedial action. The injuries were believed to be five days old. D.L. (Father) watched Minor while Mother was at work; he was believed to be the perpetrator.
Father is not a party to the petition.
The social worker arrived at the police station where a detective showed her pictures of Minor which reflected "an extreme red diaper rash, bruising to her right buttocks, what appeared to be bruising to her anal area, an incomplete large circle on her upper right thigh and hip area, a round bruise to her right lower cheek[,] and bruising to her outer left ear."
A detective interviewed Father at the police station. Father said he had lived with Mother since before Minor was born. Father had a strong odor of marijuana. Father said he smoked marijuana due to back problems; he denied any other drug use. Father reported that the bruising to Minor's face occurred when she was trying to sit up and "'face planted'" on a toy. He said the diaper rash was due to his use of Germ X antibacterial hand wipes on Minor when he ran out of diaper wipes. Father expressed anger at what he felt were slights to his family from Mother's family. He reported watching Minor all day, every day and felt unappreciated by Mother.
When Mother came home from work on January 2, 2019, and noticed the bruising on Minor's face, she asked the MGM to watch Minor while she was at work. Mother was concerned enough that she did not leave Minor alone with Father. However, Father continued to live in the same house. On January 3, 2019, the MGM became concerned about Minor's injuries, took pictures of them, texted them to Mother, and asked what had happened. At some point, the MGM took Minor to the doctor's office and was told by a nurse that if the child were seen by the doctor, CFS and law enforcement would be called. The MGM said she wanted to give Mother the benefit of the doubt so she did not have Minor seen by the doctor.
It was later determined that the individual at the doctor's office who had seen Minor was not a nurse, but the office manager.
On January 9, 2019, Father took Minor to the paternal grandmother's home. When Father returned to Mother's home on January 10, 2019, he was arrested. Small baggies and an apparent pipe containing white crystalline substances, which the officer suspected of being methamphetamine, were located in Father's phone case. Throughout the residence the officer noted the strong odor of marijuana and found several marijuana bongs and small empty baggies containing a white residue. Father's knuckles appeared discolored and scabbed; Father reported he would get angry and punch walls; he said he would get so angry that he would "'black out.'"
Mother agreed to have Minor examined at Loma Linda University Children's Hospital. When asked if Minor was afraid of anyone, Mother told the physician that Minor was only afraid of Father. A physician at the Children's Assessment Center was told Father had an obsession with changing Minor's diapers and was the only one to do so. Minor "was found to have multiple rib fractures, multiple tears in the lower portion where the labia meet[,] [a] [tear] in the hymen[,] and fissures around the anus." All the injuries were consistent with blunt force trauma and penetration of the genitalia. The social worker took Minor into protective custody.
CFS personnel filed a juvenile dependency petition alleging that on or about January 2, 2019, and on numerous occasions, Father physically abused Minor (A-1); that while in the care of Mother, Minor was physically abused (A-2); that Father had a substance abuse problem (B-3); that Mother failed to protect Minor from physical and sexual abuse by Father (B-4); that Father sexually abused Minor (D-5); that Mother failed to protect Minor from sexual abuse by Father (D-6); that on or about January 2, 2019, and on numerous occasions, Father physically abused Minor (E-7); that Mother failed to protect Minor from physical abuse by Father (E-8); and that Father was incarcerated (G-9). On January 15, 2019, the juvenile court detained Minor.
In the January 31, 2019, jurisdiction and disposition report, the social worker reported that a physician at Loma Linda University Medical Center had conducted a forensic child sexual abuse examination. The physician stated that Minor had possible saliva or semen in her vaginal area. There were submucosal hemorrhages of Minor's hymen and erythema of the labia majora. Minor had sustained multiple anal fissures and bruising on her ears, buttocks, check, thigh, and stomach. There were multiple healing rib fractures indicative of blunt force trauma. Minor had an abnormal anal-genital examination; sexual abuse was "highly suspected." The physician had been told by Mother that Father prefers to change Minor and that Minor starts to cry when being changed. An officer had found diaper wipes with a significant amount of blood on them in the home. Minor was discharged from the hospital on January 13, 2019, and placed in foster care.
Mother reported that the family waited so long to report the injuries because they did not want to get CFS involved. Mother said that she heard that the MGM had contacted law enforcement. Mother postponed Minor's doctor's appointment scheduled for January 7, 2019, to consolidate it with an appointment for vaccinations on January 10, 2019, even when told to bring Minor to the hospital as soon as possible. Mother reported there was a family gathering the day before where there were a lot of small children who were rough and liked to bite. She also reported that she had endured abuse by her stepfather as a child; the stepfather also lived in the home.
Mother denied saying Minor was afraid of Father. She denied saying that Father was "obsess[ed]" with changing Minor's diapers. Mother said Father was not the only one who cared for and changed Minor. She said her last contact with Father was when he was arrested; Mother was unsure whether she would have further contact with him, but did want to speak to him and did not believe he did what he was alleged to have done. She said that if Father was proven innocent, she wanted to continue to be with him; if "they" were 100 percent sure that Father abused Minor, then she would not continue to be with him. The social worker reported that Mother had made posts to her Facebook account which reflected that Mother was still in a relationship with Father.
Most of the attached copies of the Facebook postings are undated, the only ones of which could be construed as indicating that Mother remained in a relationship with Father consist of memes or reposts of others' postings such as one which reads, "Baby at the end of the day, no matter what we go through, I'd still do anything to be with you[.]"
Mother acknowledged that Father would punch walls and a punching bag as a way to let out his anger. Father told Mother the bloody wipes were due to Minor having hemorrhoids.
The MGM brought Minor into Dr. Case's office on January 4, 2019. The MGM showed the office manager photographs taken of Minor; the office manager told the MGM Minor's bruising and redness were not in "usual areas." The officer manger informed the MGM that they had two courses of action: call CFS or keep an eye on the areas and see if they changed.
The People charged Father with aggravated assault of a child, sexual penetration with a foreign object of a victim under 14, forcible lewd acts of a child, child abuse, possession of a controlled substance, and possession of drug paraphernalia. Father was already a ward of the juvenile court; previous allegations in 2014 of lewd and lascivious acts with a child and false imprisonment by violence were sustained when Father was 12 years old; the juvenile court placed him on probation. At the time of the detention in the instant case, Father was 17 years old and Mother was 21 years old.
Father reported that he may have fallen asleep on the couch while watching Minor and someone may have broken into the home and assaulted Minor. Father denied watching Minor on January 2, 2019. Father acknowledged sleeping in the bed with the Minor while naked.
In an additional information to the court filed on March 1, 2019, the social worker reported that Minor's relative caregiver had been supervising visits between Mother and Minor; she reported that Mother was not bonded to the child. The caregiver reported Mother spent 90 percent of the visitation time talking with the caregiver about Father and what a great father he is rather than paying attention to Minor. Mother showed no affection toward Minor; she did not hug or kiss Minor.
On April 16, 2019, the social worker filed an additional information to the court in which she reported that Mother had said she had taken a video of Father and Minor in the shower together because she thought it was cute. Mother had missed one visit with Minor without notification. Due to purported conflicts between Mother and the caregiver, the court moved visitation to the CFS office with CFS personnel supervising. In an additional information to the court filed on May 8, 2019, the social worker reported that Minor did not appear to recognize Mother during visitation.
At the contested jurisdictional hearing on May 8, 2019, Mother testified that on January 3, 2019, the MGM texted her around 9:00 p.m., while Mother was at work, with pictures of Minor's bruises. Mother got off work at 11:00 p.m. and became concerned because Minor had a couple of bruises and a really bad diaper rash. The next day, Mother left Minor with the MGM when Mother went to work; the MGM took Minor to the doctor. The MGM told Mother that the doctor said the bruises were in unusual places, but they were not signs of abuse. The MGM later told her that it was not a doctor, but a nurse who had seen Minor. The MGM, who was a mandated reporter, spoke with her supervisor who said she did not need to report Minor's injuries because they were "just bruises."
Mother testified that Father, who had left the home for several days, came back to the home on January 9, 2019. Father took Minor and was gone for around eight hours. The MGM called the police. Officers arrested Father. Mother picked up Minor from the police station. Mother changed Minor's diaper at the police station; there was no evidence of sexual abuse. The MGM had found a box of wipes with red on it, but she was not sure if it was blood or paint.
Mother took Minor to Loma Linda University Medical Center. The MGM asked medical personnel to check for signs of sexual abuse. Mother was informed there were signs of sexual abuse. Mother suspected Father's cousin was responsible for the sexual abuse. She also suspected Father, but he was not her number one suspect. Minor would cry when Father changed Minor, but that did not concern Mother. She was shocked about Father's previous sexual abuse case, which she did not know about until after his arrest. Mother believed Minor was sexually abused, she was just not sure who was responsible. She suspected at least three people could be responsible: Father, Father's cousin, and Mother's stepfather. Prior to this incident she had no reason to believe that Father was hurting Minor.
The court found that "[t]o the extent that the mother's testimony conflicts with the reports, I'm going to make a finding that the reports are far more credible than the testimony today." The court found that Father was the perpetrator of the abuse and sustained all the allegations against him. The court also found: "Mom was well aware, I believe, that there was a threat of physical injury to the child, and specifically the injuries that we now see which include the bruising on the head, the buttocks, the hip, [and] the rib fractures." The court found the allegations against Mother true due to "the delay in seeking treatment both for the sexual abuse and for the physical abuse." The court further noted: "I'm taking into account the questions about the mother's credibility as evidenced by the reports and in contrast to the statements of other people who appear to be credible and have no incentive to provide false information either to the police or to the social worker."
In an information to the court filed on June 6, 2019, the social worker reported about and attached text messages between Mother and the paternal great-aunt in which Mother stated she and Father wanted Minor placed with the great-aunt because she would return Minor to them, that CFS is blaming Father even if he is proven innocent, that CFS wanted Father to be proven guilty, that Father would have his prior sexual assault adjudication dismissed, and that he would obtain reunification services after he was proven innocent. Further, Mother texted that she would focus on getting Minor back first and then worry about getting Father released.
We note that none of the attached text messages are dated. One of the text messages reads: "I care about my daughter more than anyone in the fucking world[;] I fucking cry every damn day that I don't have her[;] no one can fuckin say I do not care for [Minor][;] she is everything to me she's everything I wanted in life[;] I wanted to be a mom more than anything and w[h]en I had her it was the greatest thing I have [ever] done[;] I'm protective of her[;] I never wanted to let her go[.]"
The social worker also noted that during visitation Minor responded to Mother by "grabbing her arm and holding onto her" as well as smiling at her. Mother brought her own diaper bag with toys and books for her visits. Mother was appropriate in ensuring Minor was safe; Mother played with Minor and spoke to her in quiet tones.
On June 24, 2019, Mother filed an exhibits list for the contested dispositional hearing which consisted of a psychological assessment of Mother by Dr. Robert Suiter, a report by Mother's therapist, and certification that Mother had completed a 12-week course in anger management/parenting. In his report, Dr. Suiter noted that Mother reported Father was 14 years old and she was 17 years old when they met. Mother became pregnant when she was 20 years old; Father then moved in. Minor stayed in the home with Father while she worked. Mother denied knowing Minor was being harmed; Mother claimed she had no contact with Father since his arrest. Mother reported that Father "was then arrested specific[ally] [for] possession of methamphetamines. Although it was determined the child had been physically abused, it was unclear from [Mother] if [Father] had actually been charged with any mistreatment of their child." A "Child Abuse Potential Inventory" was deemed invalid due to Mother's attempts to present herself favorably. Dr. Suiter noted: "CFS records indicate there [were] considerably more injuries to the child than . . . described by [Mother]." Dr. Suiter opined that: "In considering the ability of [Mother] to benefit from services it is evident she has some traits and characteristics which may make that difficult."
Dr. Suiter further observed: Mother "has difficulty with adequately attaching to others. Therefore, it is understandable that she formed a relationship with someone considerably younger than [she] and who felt safe to her. In that same vein, it is equally understandable she would have difficulty extricating herself from him, even given the circumstances where her daughter was harmed. Nonetheless, it is this examiner's opinion she was sincere in her assertions she does plan to stay separate from the father of her daughter, even as she will undoubtedly need considerable support towards bringing that about." "Amidst the areas of concern . . . there are still some favorable prognostic indicators that warrant close consideration of whether she can benefit from services as this examiner considers she would likely do so." Ultimately, Dr. Suiter opined reunification services would benefit Mother mostly in caring for the future children she was likely to have.
The juvenile court held the dispositional hearing on July 12 and August 7, 2019. Mother's therapist testified Mother had completed nine sessions of individual therapy. The therapist was not given the background of the allegations or injuries to Minor by CFS. Instead, the therapist relied upon what Mother reported to her. With respect to helping Mother reach an understanding of what was meant by the allegations in the case, as described by Mother, the therapist did not "feel that [Mother] got there 100 percent."
Mother never provided the therapist with copies of the reports, but Mother did tell her that Minor had been sexually abused. Only on the day of the hearing did the therapist receive the medical report and Dr. Suiter's report. She "was very upset" because "by reading that report I saw more of a severity of what was taking place. Because all I had was her understanding of what—what took place. But getting details such as I got this morning . . . ." Had the therapist learned of the severity of the injuries at an earlier stage, she would have been more confrontational with Mother in therapy.
The therapist testified that on the first day of therapy, Mother said she would no longer be involved with Father; Mother's focus and priority was being reunited with Minor. Mother said she had had no contact with Father. The therapist believed that Mother "believes that dad is the perpetrator." Mother indicated she would never let Father around Minor again.
The therapist recommended more therapy sessions: "Eight weeks as a therapist you are just getting your feet wet. And in light of what I discovered this morning too, I would have to say there is a lot more to deal with too." She believed that Mother could eventually reunify with Minor. The therapist believed Mother would be protective of Minor: "But I have to say this. It's out of my scope of practice for me to be involved in placement and normally the social workers don't even ask me that, and I don't volunteer that."
Dr. Suiter testified that Mother did not tell him Father had been arrested for sexual abuse of Minor; rather, he learned that from the reports. Mother stated she had not had any contact with Father since his arrest and would not reconcile with him. Dr. Suiter believed her and had reason to believe she would maintain that resolve. He believed she would be amenable to services, i.e., she would participate in and benefit from services. Mother would be more likely to be in a position to protect Minor if she continued with services.
Mother testified that Father would most often watch Minor when she worked. She did not know Father was a registered sex offender. Mother initially did not believe Father was responsible for the abuse, but through therapy came to accept that he was. She said she shared some responsibility for what happened because she could have prevented it if she had seen the signs sooner. Mother said that through therapy she had learned what signs to look for. She denied having any contact with Father since Father was arrested.
There is no evidence in the record that Father was a registered sex offender.
Mother admitted posting on Facebook memories of how much she loved Father: "And I was still like—at that point I was like on and off. Because I was mad, but then trying to convince myself that that is not who he is. But the more I learned about his past and everything that has happened when he was younger, I realized that that is who he is. And that is not the person that I met." If Father was released, she would obtain a restraining order to protect Minor. If he violated the restraining order, she would call the police.
Mother visited Minor once a week for two hours; she brought Minor toys, taught her, helped her learn to walk, and fed her. Minor smiled and reached for Mother when Minor saw her. Minor would get upset when Mother left a visit.
II. DISCUSSION
Mother contends insufficient evidence supported the court's sustainment of the D-6 and E-8 allegations. Mother further maintains the court erred in denying her reunification services. CFS argues this petition should be dismissed because Mother fails to challenge the A-2 and B-4 allegations which, separately, supported application of the bypass provisions of section 361.5, subdivision (b)(5) and (6). Assuming arguendo that Mother can challenge the sufficiency of the evidence to support the D-6 and E-8 allegations, CFS maintains sufficient evidence supports the court's findings. Finally, CFS asserts the court correctly denied Mother reunification services pursuant to the bypass provisions of section 361.5, subdivision (b)(5) and (6).
We hold that Mother has preserved her right to challenge, at least, the D-6 allegation because, contrary to CFS's contention, the court's denial of reunification services to Mother under section 361.5, subdivision (b)(5) is reliant, at least in part, on the sustainment of the D-6 allegation against her. Thus, we shall exercise our discretion to address Mother's contention that insufficient evidence supports the D-6 and E-8 allegations. We hold that substantial evidence supported both the D-6 and E-8 allegations. We further hold that the juvenile court erred in denying Mother reunification services pursuant to section 361.5, subdivision (b)(6). Nonetheless, any error was harmless because the court's denial of reunification services to Mother pursuant to section 361.5, subdivision (b)(5) was supported by substantial evidence. A. Discretion to Address the D-6 and E-8 Allegations
CFS maintains that because Mother fails to challenge the A-2 and B-4 allegations, Mother has conceded the bases for both the jurisdictional and dispositional orders such that she has effectively waived her right to challenge the orders on appeal; therefore, CFS asserts the appeal must be dismissed. We disagree.
"'[A] jurisdictional finding good against one parent is good against both. More accurately, the minor is a dependent if the actions of either parent bring [him] within one of the statutory definitions of a dependent. [Citations.] This accords with the purpose of a dependency proceeding, which is to protect the child, rather than prosecute the parent.' [Citations.]" (In re X.S. (2010) 190 Cal.App.4th 1154, 1161.) "As long as there is one unassailable jurisdictional finding, it is immaterial that another might be inappropriate." (In re Ashley B. (2011) 202 Cal.App.4th 968, 979.) "However, we generally will exercise our discretion and reach the merits of a challenge to any jurisdictional finding when the finding (1) serves as the basis for dispositional orders that are also challenged on appeal [citation]; (2) could be prejudicial to the appellant or could potentially impact the current or future dependency proceedings [citations]; or (3) 'could have other consequences for [the appellant], beyond jurisdiction' [citation]." (In re Drake M. (2012) 211 Cal.App.4th 754, 762-763; accord, In re D.P. (2014) 225 Cal.App.4th 898, 902 ["[W]e may also exercise our discretion to reach the merits of a challenge to any jurisdictional finding when the finding may be prejudicial to the appellant . . . ."].)
Here, the court's sustainment of the E-8 allegation against Mother provided one of the requisite bases for its order denying Mother reunification services pursuant to section 361.5, subdivision (b)(5). Section 361.5, subdivision (b)(5) provides that the juvenile court may deny a parent reunification services if "[t]he child was brought within the jurisdiction of the court under subdivision (e) of Section 300 because of the conduct of that parent or guardian." Thus, in order to uphold the denial of reunification services pursuant to section 361.5, subdivision (b)(5), we must find that sufficient evidence supported the E-8 allegation. Ergo, because the E-8 allegation served as the basis for one of the court's dispositional orders which is challenged on appeal, we may and shall exercise our discretion to address the E-8 allegation. We shall also address the D-6 allegation due to the prejudice which may attach to the finding that Mother knew or reasonably should have known that Father was sexually abusing Minor and the consequences that may have for Mother beyond the juvenile court's jurisdiction in the instant case, e.g., any attempt to take jurisdiction over any future children Mother may bear. B. Sufficiency of the Evidence to Support the D-6 and E-8 Allegations
Mother contends that the evidence was insufficient to support the court's findings that she had knowledge of, or reasonably should have known, of the severe physical abuse (D-6) and sexual abuse (E-8) perpetrated by Father and failed to protect Minor. We disagree.
"Section 300, subdivision (d) states in relevant part that jurisdiction over a child arises when '[t]he child has been sexually abused, or there is a substantial risk that the child will be sexually abused . . . by his or her parent . . . or the parent . . . has failed to adequately protect the child from sexual abuse when the parent . . . knew or reasonably should have known that the child was in danger of sexual abuse.'" (In re D.G. (2012) 208 Cal.App.4th 1562, 1570.) "Section 300[, subdivision] (e) provides for dependency court jurisdiction when: '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.'" (K.F. v. Superior Court (2004) 224 Cal.App.4th 1369, 1381-1382.) "A section 300[, subdivision] (e) abuse finding may be based on circumstantial evidence showing that the parents knew or reasonably should have known about the abuse, even when it cannot be determined which caretaker inflicted the abuse. [Citation.]" (Id at. p. 1382.)
"'In reviewing a challenge to the sufficiency of the evidence supporting the jurisdictional findings and disposition, we determine if substantial evidence, contradicted or uncontradicted, supports them. "In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court's determinations; and we note that issues of fact and credibility are the province of the trial court." [Citation.] "We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court. [Citations.] '"[T]he [appellate] court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence . . . such that a reasonable trier of fact could find [that the order is appropriate]."' [Citation.]" [Citation.]'" (In re I.J. (2013) 56 Cal.4th 766, 773.)
Here, sufficient evidence supported the juvenile court's determination that Mother knew or reasonably should have known that Father was physically and sexually abusing Minor and that Mother failed to protect Minor from such abuse. The social worker's report reflects that when Mother came home from work on January 2, 2019, she noticed bruising on Minor's face. Mother asked the MGM to watch Minor while she was at work the next day. Mother was concerned enough that she did not leave Minor alone with Father. However, Mother allowed Father to continue to reside in the same home as Minor.
On January 3, 2019, the MGM became concerned about the Minor's injuries and took pictures of them and texted them to Mother and asked what had happened. On January 4, 2019, the MGM took Minor to the doctor's office and was told by the office manager that if Minor were seen by the doctor, CFS and law enforcement would be called. The MGM said she wanted to give Mother the benefit of the doubt so she did not have Minor seen by the doctor.
The office manager wrote a letter in which she reported that on January 4, 2019, the MGM showed her a series of pictures which reflected bruising and redness on the Minor. The office manager told her the bruising and redness were not in the usual places. She advised the MGM that they had two options: one, to notify CFS; or two, to keep an eye on the areas and see if they changed. The MGM told the office manager that she was going to speak with Mother and let her know what they had discussed. Thus, it is a rational inference that the MGM informed Mother of what the office manger said.
Nonetheless, Mother reported that the family waited to report the injuries because they did not want to get CFS involved. Thus, Mother reasonably suspected abuse such that CFS would become involved if the Minor's condition was reported. Indeed, Mother postponed Minor's doctor's appointment on January 7, 2019, purportedly to consolidate it with an appointment for vaccinations on January 10, 2019, even when told to bring Minor to the hospital as soon as possible. The rational inference of the postponement of the visit is that Mother, again, knew of potential abuse to Minor but wished to avoid CFS involvement.
Mother allowed Father sufficient access to Minor that on January 9, 2019, he took Minor away from the home. It was the MGM, not Mother, who called the police. Indeed, the MGM reported that she was not speaking to Mother as they were "going back and forth with a 'lot of blame' while at the hospital." Thus, Mother continued to be resistant to reporting, and thereby protecting, Minor from further injuries inflicted by Father.
After officers arrested Father, they noticed Minor had several bruises on her lower body and blood in her stool. Minor's vaginal area had bruising and a half-moon-shaped bruise which they thought might have been a bite mark; the injuries were believed to be five days old. It was believed that sexual abuse had occurred on January 9, 2019. According to the reporting party, Mother was aware of the sexual abuse but had not taken any remedial action. An officer had found diaper wipes with a significant amount of blood on them in the home. The social worker arrived at the police station where a detective showed her pictures of Minor which reflected "an extreme red diaper rash, bruising to her right buttocks, what appeared to be bruising to her anal area, an incomplete large circle on her upper right thigh and hip area, a round bruise to her right lower cheek[,] and bruising to her outer left ear."
Mother agreed to have Minor examined at Loma Linda University Children's Hospital where Minor was determined to have "multiple rib fractures, multiple tears in the lower portion where the labia meet[,] [a] [tear] in the hymen[,] and fissures around the anus." There were submucosal hemorrhages of Minor's hymen and erythema of the labia majora. Minor had sustained multiple anal fissures and bruising on her ears, buttocks, check, thigh, and stomach. There were multiple healing rib fractures indicative of blunt force trauma. Minor had an abnormal anal-genital examination; sexual abuse was "highly suspected." All the injuries were consistent with blunt force trauma and penetration to the genitalia.
Moreover, Mother told the physician that Minor was only afraid of Father. A physician at the Children's Assessment Center was told Father had an obsession with changing Minor's diapers and was the only one to do so. Mother testified that Minor cried when Father changed her. Thus, both the extensive injuries to Minor and other evidence of abuse were such that Mother either knew or should have known of the injuries, but failed to take remedial action to protect Minor. Therefore, the evidence was sufficient to support the D-6 and E-8 allegations that Mother failed to protect Minor from physical and sexual abuse by Father. C. Denial of Reunification Services
Mother contends the court erred in denying her reunification services. We disagree.
"Reunification services must be provided to the mother and statutorily presumed father of children who have been removed from their parents' custody, unless a statutory exception applies. [Citations.] The statutory exceptions are contained in subdivision (b) of section 361.5, which provides that '[r]eunification services need not be provided' if the court finds 'by clear and convincing evidence' that any of 17 enumerated bypass provisions apply. [Citation.] Subdivision (c) of section 361.5 adds with respect to nearly all of the bypass provisions that, if a bypass provision applies, then the court 'shall not order' reunification services unless the court makes certain countervailing factual findings. [Citations.] In sum, section 361.5, subdivision (a), provides that reunification services are mandatory unless a bypass provision applies; section 361.5, subdivision (b), lists the bypass provisions and provides that reunification services are discretionary if any of them apply; but section 361.5, subdivision (c), provides that denial of reunification services is mandatory, not discretionary, with respect to nearly all of the bypass provisions, unless the court makes certain countervailing factual findings." (In re A.E. (2019) 38 Cal.App.5th 1124, 1141.)
"Reunification services need not be provided to a parent or guardian described in this subdivision when the court finds, by clear and convincing evidence, any of the following: [¶] . . . [¶] (5) That the child was brought within the jurisdiction of the court under subdivision (e) of Section 300 because of the conduct of that parent or guardian." (§ 361.5, subd. (b)(5)) "'"[C]onduct" as it is used in section 361.5, subdivision (b)(5) refers to the 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.)
The section 361.5, subdivision (b)(6) bypass provision does not apply "to a parent who 'reasonably should have known' of the abuse because that parent was not complicit in the infliction of physical harm by act, omission or consent. As defined in subdivision (b)(6), omission and consent both require actual knowledge, if not of the physical harm itself, then of another's abusive acts." (Tyrone W. v. Superior Court, supra, 151 Cal.App.4th at p. 851.) "[S]ubdivision (b)(6) applies to the parent or parents who inflicted severe physical harm to the child whether by act, omission or consent, and does not apply to a negligent parent. [Citations.]" (Ibid.) "By its express terms, section 361.5, subdivision (b)(6) applies to a parent who gave actual or implied consent to the sexual abuse of the child by another person, as well as to the parent who was the actual perpetrator of the sexual abuse." (Amber K. v. Superior Court (2006) 146 Cal.App.4th 553, 561.)
Here, the court erred in applying the bypass provision of section 361.5, subdivision (b)(6) because insufficient evidence supports a finding that Mother gave actual or implied consent to the severe sexual abuse of Minor. Although the court found that Mother was well aware of the injuries to Minor on January 2, 2019, the evidence at least shows that Mother attempted to shield Minor from such further abuse. Mother asked the MGM to watch Minor while she was at work because she was concerned enough that she did not want to leave Minor alone with Father. Mother said that Father was the only one who changed Minor's diaper, so she may not have even seen the injuries to Minor's genitalia and anus. Thus, although Mother almost certainly, albeit negligently, did not believe that Father was sexually abusing Minor, insufficient evidence supports a determination she consented to the abuse.
Nevertheless, any error is harmless because the denial of reunification services to Mother pursuant to section 361.5, subdivision (b)(5) is supported by sufficient evidence. As discussed above, sufficient evidence supports the court's determination to bring Minor under its jurisdiction as to Mother under section 300, subdivision (e), i.e., Minor was under the age of five years and had suffered severe physical abuse by Father and Mother knew or reasonably should have known that Father was physically abusing Minor and failed to protect her. (K.F. v. Superior Court, supra, 224 Cal.App.4th at pp. 1381-1382.) As such, sufficient evidence supported the juvenile court's order denying Mother's reunification services. D. Best Interests
Mother contends the juvenile court erred in not finding reunification services would have been in the best interest of Minor. We disagree.
Parents bear "the burden of proving, through competent testimony, the factual predicates to an order for reunification services under section 361.5[, subdivision] (c)(3). [Citation.]" (In re A.E., supra, 38 Cal.App.5th at p. 1148.) Section 361.5, subdivision (c)(3) states, in pertinent part: "[T]he court shall not order reunification in any situation described in paragraph (5) of subdivision (b) unless it finds that, based on competent testimony, those services are likely to prevent reabuse or continued neglect of the child or that failure to try reunification will be detrimental to the child because the child is closely and positively attached to that parent." "'"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.] An appellate court will reverse that determination only if the juvenile court abuses its discretion."' [Citations.] If the juvenile court's finding that further services would be in the children's best interest is not supported by substantial evidence, then the order for such services constitutes an abuse of discretion. [Citations.]" (In re A.E., supra, 38 Cal.App.5th at pp. 1140-1141.)
Mother failed her burden of proving that termination of reunification services would be detrimental to Minor. First, both Mother's psychologist and therapist failed to provide competent testimony that services would likely prevent reabuse of Minor. Dr. Suiter noted that Mother underreported the extent of abuse to Minor. He testified that Mother did not tell him Father had been arrested for sexual abuse of Minor; rather, he learned that from the reports. A "Child Abuse Potential Inventory" was deemed invalid due to Mother's attempts to present herself favorably. Nonetheless, Dr. Suiter opined that: "In considering the ability of [Mother] to benefit from services it is evident she has some traits and characteristics which may make that difficult." Dr. Suiter's initial position was that reunification services would help primarily with Mother's ability to care for future children, not necessarily in protecting Minor.
We acknowledge that Dr. Suiter believed Mother would be amenable to services, i.e., she would participate in and benefit from services, and ultimately, that she would be more likely to be in a position to protect Minor if she continued with services. However, the court would have acted well within its discretion in crediting Dr. Suiter's report over his testimony or in discounting Dr. Suiter's opinions entirely.
Mother's therapist testified similarly that Mother had underreported the severity of the injuries to Minor. Mother's therapist "was very upset" because "by reading that report I saw more of a severity of what was taking place. Because all I had was her understanding of what—what took place. But getting details such as I got this morning . . . ." Had the therapist learned of the severity of the injuries at an earlier stage, she testified she would have been more confrontational with Mother in therapy. Thus, as the therapist herself acknowledged, she was not in a position to opine on the propriety of providing Mother services.
Second, there was evidence that Mother would have attempted to continue a relationship with Father despite the allegations and charges against him. Mother continually denied having any contact with Father after his arrest. However, in texts purportedly obtained after Father's arrest, Mother expressed that she knew that Father did not want Minor placed with the relative caregivers anymore, indicating that she had had contact with Father subsequent to his arrest. Likewise, in Facebook posts subsequent to Father's arrest, Mother indicated her continuing love and affection for Father. Thus, there was evidence that Mother might fail to protect Minor from further abuse should Father be released.
Third and finally, there was evidence that Minor was not closely and positively attached to Mother. Minor's relative caregiver reported that Mother was not bonded to Minor. The caregiver reported Mother spent most of her visitation talking with the caregiver about Father and what a great father he is rather than paying attention to Minor. The caregiver noted Mother showed no affection toward Minor; she did not hug or kiss Minor. The social worker later reported that Minor did not appear to recognize Mother during visitation. Thus, the court acted within its discretion in finding that reunification services would not prevent reabuse or that termination of reunification services would be detrimental to Minor because Minor was not closely and positively attached to Mother.
III. DISPOSITION
The petition is denied.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. RAPHAEL
J.