Opinion
D076613
01-16-2020
A.C., Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY et al., Real Parties in Interest.
Dependency Legal Services of San Diego, Law Office of Lorraine Arrollado, and Jill Smith for Petitioner. No appearance by Respondent. Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Jesica N. Fellman, Deputy County Counsel, for Real Party in Interest San Diego County Health and Human Services Agency.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. NJ15386) PROCEEDINGS for extraordinary relief after reference to a Welfare and Institutions Code section 366.26 hearing. Michael Imhoff, Commissioner. Petition denied; request for stay denied. Dependency Legal Services of San Diego, Law Office of Lorraine Arrollado, and Jill Smith for Petitioner. No appearance by Respondent. Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Jesica N. Fellman, Deputy County Counsel, for Real Party in Interest San Diego County Health and Human Services Agency.
All subsequent statutory references are to the Welfare and Institutions Code.
A.C. (Mother) seeks writ review and stay of a juvenile court placement order made at the same hearing as the order under section 366.22 setting a section 366.26 hearing for her minor daughter, L.L. Mother contends the court erred in (1) finding there was a substantial risk of detriment in returning L.L. to her, and (2) granting the section 388 petition filed by the San Diego County Health and Human Services Agency (the Agency) requesting an order reverting the parents' unsupervised visitation with L.L. to supervised visitation. We deny the petition and Mother's request for a stay.
All orders made at a hearing in which a section 366.26 hearing is ordered must be challenged by writ petition. (In re Tabitha W. (2006) 143 Cal.App.4th 811, 815-817.)
FACTUAL AND PROCEDURAL BACKGROUND
On February 12, 2018, the parents took three-month old L.L. to the emergency room at Rady Children's Hospital because she was experiencing ongoing episodes of vomiting, rapid breathing, constant eye movement to the right, and seizure-like activity, including twitching and an overall decline in her level of alertness and interaction. The parents reported that these behaviors began on February 9 and increased in frequency over the next three days. A full medical examination revealed that L.L. had suffered multiple rib fractures, five to ten intra and pre-retinal hemorrhages around the left optic nerve, subdural hemorrhages, and a fracture of the left humerus.
Police interviewed Mother at the hospital on February 12, and detectives interviewed the presumed father, Louis L. (Father), the next day. The parents denied any history of trauma to L.L. and denied having any criminal history, mental health issues, discipline problems, or economic stress. Mother cared for the baby full-time while Father worked; Father cared for the baby when he returned home from work. There were only two times that L.L. had not been in the care of either parent. On January 1, 2018, they left L.L. with the paternal grandfather while they went to a movie, and on January 15 the maternal grandmother watched L.L. for two hours. The parents could provide no plausible explanation for the injuries L.L. suffered.
On February 20, the Agency filed a petition under section 300, subdivision (e), on behalf of L.L., alleging that she had suffered severe physical abuse by a parent, including "multiple rib fractures, a fractured left humerus, and pre-retinal subdural hemorrhages . . . ." A child abuse expert who examined L.L. and the results of her skeletal survey noted that no history of trauma had been provided to account for L.L.'s subdural hemorrhages, which usually are the result of trauma, making "inflicted head injury a significant concern." The expert reported that L.L.'s multiple fractures and subdural hemorrhages were indicative of inflicted trauma. He concluded: "This constellation of findings is consistent with child physical abuse. Returning this child to an unchanged environment would put [her] at risk for injury or even death."
At the detention hearing, Mother and Father denied the allegations in the petition and the court appointed separate counsel to represent each of them and L.L. The court ordered that L.L. be detained in a licensed foster home and the parents be provided liberal supervised visitation.
In its jurisdiction/disposition report, the Agency noted that both parents had "refused to take any responsibility or provide any explanation for [L.L.'s] many serious injuries . . . ." The Agency was "concerned about the parents' ability to care for their daughter, considering her injuries and the fact that no one can provide any reasoning behind them." It further concluded that the parents had not shown they could safely parent L.L. or protect her from serious harm.
The court conducted a jurisdiction hearing at a settlement conference on May 4, 2018. It sustained the petition and found its allegations true by clear and convincing evidence. At the disposition hearing approximately two months later, the court found L.L. was an Indian child as defined in the Indian Child Welfare Act (ICWA) and that ICWA applied to the case. It removed custody of L.L. from the parents, finding by clear and convincing evidence that continued custody of L.L. by the parents or the Indian custodian was likely to result in serious emotional or physical damage to her. The court declared L.L. a dependent of the court and ordered her "placed in a foster home licensed, approved, or specified by the child's tribe in accordance with the placement preferences of the [ICWA] and [section] 361.31." It further directed the Agency to provide rehabilitative services to the parents consistent with their case plans and ordered the parents to comply with those services.
Mother's writ petition does not raise any ICWA issues.
The Agency's status review report for the six-month review hearing noted that L.L. was placed in a confidential foster home and was in good health with no ongoing issues. The parents were both employed and living in an apartment with the maternal great-grandmother. The maternal grandfather lived with the parents when the dependency case began but had moved to Las Vegas since then. The parents were attending separate 52-week child abuse classes. They had been participating in supervised visitation with L.L. three times a week, and the visits had been positive.
One of the weekly visits occurred during the parents' Family Support Partner sessions provided by Community Services for Families (CSF) under the guidance of a CSF worker, who told the Agency social worker that Father regularly and appropriately interacted with L.L., but Mother would sit back and watch them without engaging with the child. The CSF worker instructed Mother to engage with L.L. by playing and interacting with her and Mother complied. However, Mother was "too rough" and needed more guided instruction. The CSF worker encouraged Mother to be more gentle with L.L. and the Agency social worker concluded that Mother had heeded the CSF worker's advice, based on his observations of their interaction over a two-month period.
The Agency reported that the difficulties in the case were "primarily related to trying to build safety in a home where both parents have denied for the past 10 months that they have any knowledge of how [L.L.] was severely injured." Its view of the evidence was that "one or both parents had an unstated episode of frustration toward [L.L.] which was expressed physically, with enough force to threaten the very life of their own child. If the frustration issue involves only one of the parents, the other has remained stalwart in defending them and denying that any problems exist in the home that could threaten [L.L.'s] safety. The risk to [L.L.], therefore, is that one or both parents could injure her severely, and the other parent would not protect her. Further, the risk of further injury or being subject to physically violent outbursts of anger is potentially permanent brain injury or death." Despite its concern that the parents were "not discussing with their group members or facilitators anything that is building safety for [L.L.] in their home," the Agency continued "to support the parents' ongoing education of [L.L.'s] needs and vulnerabilities, and of the parents' frustration triggers and coping mechanisms within each of them and in support of each other."
At the six-month review hearing on January 28, 2019, all parties withdrew their requests to set trial. The Agency informed the court that it had increased the parents' visitation and hoped to begin short unsupervised visitation with the concurrence of L.L.'s counsel. The court found by clear and convincing evidence that the return of L.L. to the care of the parents would be detrimental. It stated, "Due to the nature of the allegations and the injuries sustained to [L.L.], the parents would need to make progress with respect to identifying the dynamics that led to the injury of the child, would need to glean further insight with respect to formulating a plan of protection for the child and would need to provide stable and appropriate housing."
In its report for the 12-month review hearing filed in April 2019, the Agency recommended L.L. remain in foster care and the parents continue to receive reunification services to the 18-month review date. The Agency social worker observed that over the preceding several months, Mother had become significantly more comfortable and confident in handling and interacting with L.L. Mother's visitation coach reported that Mother had been attentive, affectionate, and protective of L.L. during visitation. Because both parents had consistently attended two supervised visits per week and the visits had been positive, their visitation was expanded to unsupervised visits for two hours at a time, on condition that (1) both parents be present, and (2) an approved relative check in on the parents and L.L. at the beginning, middle, and end of the visit.
L.L. was "hopefully on track for a full recovery of the traumatic brain injury and emotional damage caused by non-accidental injuries she suffered as an infant." The care she received in her foster home had been "superior in every respect," and she was thriving developmentally. The Agency remained concerned about the parents' continuing denial of having any knowledge of how L.L. was injured. It viewed the risk of returning L.L. to the parents' care as being compounded by "the fact that [they] took [L.L.] to the hospital three days after she was not in control of her own eye movements and was vomiting without an apparent cause." Although the Agency was committed to reunification, it advised that caution was prudent because the parents had "not thoroughly addressed their frustration tolerance levels, or their commitment to protecting [L.L.] even if one parent must intervene on [L.L.'s] behalf with the other parent."
The 12-month review hearing was continued several times to allow for further expansion of the parents' visitation with L.L. The parents had their first overnight visit with L.L. on June 16, 2019, and on June 27, 2019, the court authorized two 48-hour visits. Between June 29 and July 22, 2019, the parents had four 48-hour visits with two "overnights."
L.L.'s new injury
On July 20, 2019, Mother texted a photograph to the Agency social worker and L.L.'s caregiver showing bruising on L.L.'s neck in a pattern that matched the bead pattern of the amber teething necklace she wore. On July 22, the photograph became the basis for an immediate response child abuse referral. The social worker asked the parents to take L.L. to a doctor to have the bruising assessed.
The parents took L.L. to the emergency room at Rady Children's Hospital and were sent to the Chadwick Center, where L.L. was seen by child abuse expert Dr. Nicole Ayson. Father told Dr. Ayson that he spent July 20, 2019, with L.L. at his aunt's house. L.L. was lying across his lap watching a movie for two hours and fell asleep. He then noticed the imprints on her neck and sent a photo of them to Mother, who was at work.
After examining L.L. and consulting with other child abuse experts, Dr. Ayson reported that "[t]he bruises on [L.L.'s] neck were not caused by laying on her necklace as [Father] described. Laying on an object can leave a temporary impression on the skin that disappears quickly and does not cause bruising. Bruises form when excessive force is applied to the skin that causes capillaries to rupture. [L.L.'s] bruises on her neck are consistent with a strangulation injury, which means an external force was applied to her neck. Skeletal survey did not show any bony injuries. While it is possible that these injuries could occur accidentally, biological parents have not provided any plausible explanations. Also, this child has a significant history of abusive injuries while in the care of her parents. Overall, [L.L.'s] current neck injuries are highly concerning for inflicted injury."
On July 23, 2019, Agency social worker Kyrstal Devermann interviewed Mother. Mother told Devermann that the marks on L.L.'s neck were not present when she picked up L.L. from the foster father at around 10:30 a.m. on Saturday July 20, or when she dropped L.L. off with Father at around 11:30 a.m. Mother denied that L.L. got hurt or cried when they were together, and she did not believe that Father caused the marks on L.L.'s neck; she believed they were caused by lying on the necklace as Father described. Father texted a photograph of the bruising on L.L.'s neck to Mother at around 8:00 p.m. on July 20, and told her that L.L. was fine—she was not in pain and did not cry, which comforted Mother. Mother got off work at about 8:00 p.m. and went to a cousin's birthday party, where she spent the night. Consequently, she did not see the marks on L.L.'s neck until around 11:20 a.m. the next day.
When L.L.'s caregivers saw L.L. on Monday morning, they immediately noticed scratches on her forehead and nose that were not there when they brought her to Mother on Saturday July 20. They told Devermann that L.L. had been wearing her necklace since she was placed with them and had never before had any marks or bruises from it.
When Devermann interviewed Father on August 7, 2019, Father told her that he had moved out of his shared apartment with Mother the previous week, and that they were no longer together. He did not remember seeing any marks or bruises on L.L.'s neck when Mother brought her to him on July 20. He and L.L. spent a relaxing day together, during which they watched four movies on the couch and L.L. played with toys on the floor. At around 2:00 to 2:30 p.m. he put on a movie and L.L. drank a bottle and lay on his lap. At the end of the movie, L.L. rolled over and he saw a pink mark on her neck that resembled her necklace. He attempted to photograph the mark, but L.L. would not let him take the picture. L.L. did not appear to be uncomfortable or hurt. He informed Mother about the mark at 6:30 p.m. Father noticed the mark was darker when L.L. was having a bath at around 8:00 p.m. He took a picture of the mark around that time and texted it to Mother.
On July 31, 2019, the Agency filed a section 388 petition requesting that the parents' visitation with L.L. be supervised, based on her recent neck injuries. The next day, the court made a prima facie finding on the petition and set an evidentiary hearing on the petition for September 17, 2019. The court ordered supervised visitation between the parents and L.L. pending that hearing, based on its finding by clear and convincing evidence that unsupervised visitation would be detrimental to L.L.
On August 20, 2019, the parents set the 12-month review hearing for trial to coincide with the contested evidentiary hearing on the Agency's section 388 petition. The Agency changed its recommendation that the parents continue to receive reunification services to the 18-month review date and asked the court to terminate reunification services and set a section 366.26 hearing.
Mother told Devermann on August 20, 2019, that she and Father had broken up and father had moved out of the home in February 2019. Mother asked Father not to tell the Agency about their breakup because she was afraid it would work against them and cause the dependency case to take longer. Father later told Devermann that he and Mother had broken up in May because it was "rough keeping a steady relationship without [L.L.] there."
In her assessment/evaluation for the contested 12-month review hearing, Devermann stated, "It remains of great concern that there is continuous conflicting and inconsistent information that has been shared throughout this case." She noted the parents had not provided information that matched L.L.'s multiple injuries and had recently withheld information regarding their relationship and living situation. She concluded that although the parents had successfully completed their reunification services, they had not shown that the services remedied the protective issues. They chose to rely on each other for support and did not use the time and resources available to them "to practice their individual parenting and coping strategies, to rely on support network people when needed, or to demonstrate their abilities to make safe and appropriate choices on behalf of [L.L.'s] safety and well-being." The Agency was concerned that after receiving photos of the necklace bruises L.L. sustained while in Father's care, "the mother chose not to assess the injury until the next day and again, did not seek medical attention."
Combined 12-month review and section 388 hearing
The combined hearing on the Agency's section 388 petition and 12-month review hearing was held over two days. The court received in evidence the Agency's status review report for the 12-month review hearing and five subsequent addendum reports, and heard testimony from Dr. Ayson, social worker Devermann, and Dr. Stephen Carson, a pediatrician called by Father to testify as an expert witness.
Dr. Ayson testified that a bruise is damage to blood vessels that develops when enough force is applied to the skin to cause blood vessels to break and blood to rise to the surface of the skin. On direct examination she testified it was not common for bruising to occur from lying on an object and the bruising on L.L.'s neck was not likely caused by her lying on a necklace. Ayson explained that the type of bruise L.L. had was a negative impression—i.e., an outline of the object, and "to get an outline of the object, it requires high-velocity force." L.L.'s lying on Father's lap or the necklace lying on her neck would at most cause minimal redness that would go away within minutes. On cross-examination, Ayson testified that a bruise can never occur from a portion of a person's body lying on an object for an extended period of time. The bruising in the outline of the necklace on L.L.'s neck required high-velocity force applied to the necklace and then transferred to L.L.'s skin. L.L. was not old enough or strong enough to create sufficient force to leave the bruises on her neck by getting her hand between the necklace and her neck.
Mother's counsel asked Dr. Ayson if the bruising could have been caused by L.L.'s getting "her hand between her hand and the necklace[.]" (Italics added.) Presumably counsel misspoke and meant to describe L.L.'s hand getting between the necklace and her neck.
Dr. Carson testified that he disagreed with Dr. Ayson's opinion that L.L. "was purposely strangled with the amber necklace that was around her neck." He believed the distinct imprinting on L.L.'s neck could have been caused accidentally as a result of L.L.'s hand or forearm getting underneath the necklace and putting continuous pressure on the necklace for at least three to five minutes. He disagreed with Ayson's testimony that the marks on L.L.'s neck could not have been caused by the pressure of L.L.'s sleeping on the necklace. He stated that the imprints on L.L.'s neck were "exactly the kind of thing you would see with pressure that is constant but not to the degree that one would typically see with strangulation." Carson opined that "had there been a forcible effort, purposeful effort for strangulation, one would see a less distinct imprint with more bruising, more petechiae or bleeds around that together with . . . subconjunctival hemorrhages." If L.L. had been "struggling, even in the least bit, [Carson] would have expected a less distinct imprint."
Devermann testified that regarding L.L.'s neck injury, there was no basis for an allegation of physical abuse against Mother, but an allegation of general neglect against Mother was substantiated based on her failure to go to L.L. to personally assess the injury until around 12 hours after Father made her aware of it, and her failure to seek any medical care until the Agency directed her to do so two days after the injury. Devermann thought it was unreasonable for Mother to rely on Father's representation that L.L. was okay after he sent her the picture of L.L.'s injury. Mother's failure to seek medical attention until the Agency directed her to do so two days after L.L.'s injury occurred was particularly concerning because the parents had similarly neglected to seek a medical assessment for the injury that precipitated the original dependency petition.
Regarding the parents' separation, Devermann was concerned that because the parents had mostly visited and parented L.L. together, Mother had not demonstrated the ability to care for her without Father's support. She was also concerned that the parents were still relying primarily on each other and had not expanded their support system, explaining that it was "important to have other people to kind of problem solve with and rely on, as well, if the two of them can't work together all the time." Devermann recognized that "co-parenting is very important[,]" but noted the parents had the opportunity to show that they would be able to "manage some of these things on their own to put [L.L.'s] safety and well-being first and manage their own schedules, and they weren't transparent with the Agency." Because it was unaware the parents had separated, the Agency was unable "to make an assessment about either parent['s] ability to care for and put baby [L.L.'s] safety and well-being kind of at the forefront." Devermann testified that she could not consult or provide adequate services or referrals if she did not know what was happening in a case, and if a parent's family or "support system" does not "know what's happening, then they can't support."
After hearing closing argument, the court issued a lengthy oral ruling. It was unable to determine "which opinion of the doctors [was] the more accurate[,]" but noted that both doctors agreed L.L. was injured. The court did not believe L.L.'s neck injury was the result of a "strangulation effort," but noted that her prior injuries resulted in a true finding under section 300, subdivision (e), (physical abuse by a parent) and occurred while she was in the care of one or both of the parents, and that "[t]o this day we have no explanation as to how she was injured at that time." It observed that Father had made no effort to reconstruct what happened over the course of the two hours during which L.L. fell asleep on his lap and after which Father noticed the bruising on her neck.
The court acknowledged that Father notified Mother of L.L.'s neck injury, but could "discern no joint discussions, no joint strategizing by the parents on what should be done to verify that their daughter [was] not seriously injured." It noted there was "no evidence that there was outreach to family, which is very supportive and very important in this case, to also seek help in strategizing what to do with their daughter. [¶] Instead, approximately two days later, the child was returned to the foster home, and the Agency began their investigation."
The court concluded that the Agency had met its burden on its section 388 petition of showing a change in circumstances, explaining that L.L. had been injured and "[t]here was no evidence that there was a joint or collective effort to do more than just acknowledge the injury." It found it significant that "after all the parents have been through, all of the services they participated in, the progress that they've made, that there really wasn't even an inclination to do further investigation of the injury other than it occurred. [¶] Even . . . the most rudimentary steps of joint discussions, talking to family members, contacting the foster parents, those kind of things are steps that one would reasonably expect to be taken."
The court also concluded the Agency met its burden of showing the requested order was in L.L.'s best interests, finding by clear and convincing evidence that both parents' visitation should again be supervised. In making that finding, the court again commented that L.L.'s case was within the context of section 300, subdivision (e), and that when she was initially injured, "72 hours had lapsed between the time [L.L.] began to show the symptoms of vomiting and disquiet and being uncomfortable in the initial injury [and the time she] was seen medically. [¶] This is a family that [has] experience in understanding that what may appear at first blush to be involved with your child is far more serious than as a layperson you can ascertain simply by observation."
Turning to the 12-month review issues, the court found by clear and convincing evidence that returning L.L. to parental care would be detrimental to her. It explained that the factual basis for its detriment finding was that although the parents had been making progress with their case plans, L.L. was recently injured and the explanation for her injury was "still lacking depth as to how she was injured[.]" The court added that "the parents did not take reasonable steps to further assess what would be needed for their daughter."
The court's minute order includes the court's finding, by clear and convincing evidence, that "the return of [L.L.] to the custody of the parents would create a substantial risk of detriment to [L.L.'s] physical and emotional well-being."
The court found that reasonable services had been offered and provided to the parents and that the reunification plan remained reasonably fashioned to prevent or eliminate the need for L.L.'s removal. Although in its oral ruling the court found the parents had made progress with their case plans, the court's minute order stated that as to each parent, "[t]he extent of progress made by [the parent] toward alleviating or mitigating the causes necessitating placement has been minimal." It ordered that L.L. continue as a dependent of the court, that her custody continue to be removed from the parents, and that she continue in her current level of placement. After noting that the 18-month review date had passed approximately four weeks prior to the current 12-month review hearing, and that the factors authorizing the court to continue the case to 24 months under section 366.22, subdivision (b) were not present, the court terminated the parents' reunification services and set a permanency hearing under section 366.26.
DISCUSSION
1. Detriment Finding
Mother contends the juvenile court's finding that returning L.L. to her custody would create a substantial risk of detriment to L.L.'s physical and emotional well-being was not supported by substantial evidence.
In a dependency case, "at each review hearing prior to permanency planning, there is a statutory presumption that the child will be returned to parental custody." (In re Marilyn H. (1993) 5 Cal.4th 295, 308.) The juvenile court must order the child returned to parental custody at the review hearing unless it determines, by a preponderance of the evidence, that return would create a substantial risk of detriment to the child's physical or emotional well-being. (Ibid.; §§ 361, subd. (b), 366.21, subds. (e) & (f), 366.22, subd. (a).)
The serious risk of detriment need not involve the same type of harm that was the basis for the initial removal of the minor from parental custody and dependency jurisdiction. (In re Joseph B. (1996) 42 Cal.App.4th 890, 898.) "[S]ections 366.21 and 366.22 focus on the child's well-being at the time of the review hearing rather than on the initial basis for juvenile court intervention. [Citation.] Thus, while the court must consider the extent the parent has cooperated with the services provided and the efforts the parent has made to correct the problems which gave rise to the dependency (§ 366.22, subd. (a)), the decision whether to return the child to parental custody depends on the effect that action would have on the physical or emotional well-being of the child." (Id. at p. 899.)
On appeal, we apply the substantial evidence standard of review to the juvenile court's detriment findings, and view the record in the light most favorable to the court's order. (See In re Luke M. (2003) 107 Cal.App.4th 1412, 1426.) "We do not evaluate the credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts. Rather, we draw all reasonable inferences in support of the findings, consider the record most favorably to the juvenile court's order, and affirm the order if supported by substantial evidence even if other evidence supports a contrary conclusion." (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.) The parent challenging the order has the burden of showing the order is not supported by substantial evidence. (Ibid.) We conclude Mother has not met that burden.
The court reasonably based its detriment finding on the undisputed fact that L.L. sustained significant injury to her neck while in Father's care and there was no adequate explanation for the injury. In ruling on the Agency's section 388 petition, the court cited evidence of the parents' failure to take reasonable steps to assess the injury—specifically, their failure to seek a medical evaluation of the injury until the Agency directed them to do so two days after the injury occurred, and their failure to disclose the injury to the people in their family support system. As the court stated, there was "no evidence that there was outreach to family, which is very supportive and very important in this case, to also seek help in strategizing what to do with their daughter. [¶] Instead, approximately two days later, the child was returned to the foster home, and the Agency began their investigation." This evidence further supports the court's finding that return of L.L. to parental care would be detrimental to L.L.
The court also relied on the fact that upon learning of L.L.'s neck injury from Father the day it occurred, Mother did not immediately go to L.L. to personally assess the situation. Rather, she elected to spend the night away from her daughter after attending a cousin's birthday and did not see L.L. until the following morning. Social worker Devermann thought it was unreasonable for Mother to rely on Father's representation that L.L. was fine after he sent her the picture of the injury. She further observed that Mother's failure to seek a medical assessment of the injury until the Agency directed her to do so two days after the injury occurred was concerning because it was reminiscent of the parents' unreasonable delay in seeking medical treatment for L.L.'s initial injuries. The court could reasonably view Mother's failure to take appropriate action with respect to L.L.'s neck injury as evidence that returning the child to her care and custody would create a substantial risk of detriment.
The court additionally cited Devermann's testimony that because Mother withheld information about her separation from Father, she had not demonstrated the ability to care for L.L. without Father's support. Devermann was concerned that the parents had not expanded their support system or sufficiently relied on the people in it. Although the Agency understood they primarily relied on each other, the parents did not inform the Agency when they separated so that Mother's ability to care for and protect L.L. without Father in the home could be evaluated. The lack of that assessment, and both parents' failure to provide the Agency and their family support system critical information regarding their circumstances and L.L.'s injuries, further buttressed the court's conclusion. As noted, Devermann testified she could not consult or provide adequate services or referrals if she did not know what was happening in a case. Similarly, she said, if a parent's family or "support system" does not "know what's happening, then they can't support."
Finally, the court's detriment finding is supported by the fact that L.L. became a dependent of the juvenile court when she was three months old because she suffered severe life-threatening injuries while in the custody and care of the parents, and throughout the entire case the parents were never able or willing to provide any explanation of how those injuries occurred. As reflected by the dependency petition's allegation of physical abuse by a parent under section 300, subdivision (e), the evidence and circumstances of L.L.'s initial injuries strongly indicate she was severely physically abused by one or both of the parents. In its status review reports for the six- and 12-month review hearings, the Agency noted the main challenge in L.L.'s case was to build safety for her in the parents' home while both parents denied having any knowledge of how she was severely injured. The Agency's view of the evidence was that one or both parents injured the child during "an unstated episode of frustration toward [her] which was expressed physically, with enough force to threaten [her life]." There was significant concern that "[i]f the frustration issue involves only one of the parents, the other has remained stalwart in defending them and denying that any problems exist in the home that could threaten [L.L.'s] safety. The risk to [L.L.], therefore, is that one or both parents could injure her severely, and the other parent would not protect her."
Although the record indicates the Agency and court did not view the parents' professed ignorance of the cause of L.L.'s initial injuries as an insurmountable obstacle to reunification—at least up to and until L.L.'s second injury—the court could reasonably view L.L.'s severe initial injuries and the parents' failure to explain them as a major factor in any custody or visitation decision it made in the case. The absence of any explanation or determination of the cause of L.L.'s initial injuries itself created an inherent risk to L.L.'s safety and well-being in returning her to parental custody. Substantial evidence thus supported the court's finding that return of L.L. to Mother would create a substantial risk of detriment to her physical and emotional well-being.
2. Section 388 Petition
Even if L.L. could not be returned to parental custody, Mother contends the court erred by granting the Agency's section 388 petition requesting that the parents' contact with their daughter revert to supervised visitation. Section 388 provides that, "[a]ny parent or other person having an interest in a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court." The petitioning party has the burden of showing, by a preponderance of the evidence, that (1) there is a change of circumstances or new evidence, and (2) the proposed modification of the previous order is in the child's best interests. (In re Jasmon O. (1994) 8 Cal.4th 398, 415-416.) We review the juvenile court's ruling on the petition for abuse of discretion and will not disturb that determination " ' "unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations]." ' " (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) When two or more inferences can reasonably be deduced from the facts, we have no authority to reweigh the evidence or substitute our decision for that of the trial court. (Id. at pp. 318-319.)
Although we review the court's decision on a section 388 petition for abuse of discretion, the practical differences between this standard of review and the substantial evidence standard are not significant. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) " '[E]valuating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling. . . . Broad deference must be shown to the trial judge. The reviewing court should interfere only " 'if [it] find[s] that under all the evidence, viewed most favorably in support of the trial court's action, no judge could reasonably have made the order that he did.' . . ." ' " (Ibid.) --------
We conclude the juvenile court did not abuse its discretion in ruling that the Agency met its burden under section 388 of showing it was in L.L.'s best interests to modify the court's previous unsupervised visitation order to an order for supervised visitation due to a change of circumstances. Regarding changed circumstances, the court cited the parents' initial inaction after becoming aware of L.L.'s neck injury. Specifically, it noted "[t]here was no evidence that there was a joint or collective effort to do more than just acknowledge the injury." The court emphasized that the parents failed to even talk to family members or the foster parents about the injury despite "all [they] have been through, all of the services they participated in, [and] the progress that they've made . . . ." It could properly view the fact that L.L. sustained a new unexplained injury during unsupervised visitation with the parents, along with the parents' delay in seeking a medical evaluation of that injury, as a "change of circumstance or new evidence" within the meaning of section 388.
The court also reasonably found that reverting to supervised visitation was in L.L.'s best interests. It based its finding on the parents' previous delay in seeking a medical assessment of L.L.'s symptoms from her initial injuries when she was three months old, and their apparent failure to learn from that experience that a child may be suffering more serious physical harm than her symptoms "at first blush" indicate. Given the undisputed evidence that L.L. suffered a new and largely unexplained injury in Father's care during an unsupervised visit, Mother's delay in personally evaluating L.L.'s injury, as well as the delay in seeking a medical assessment of the injury, called into question the extent of the parents' progress. The court did not abuse its discretion in ordering that future visits be supervised in the interests of protecting L.L. from any future unexplained injuries in the parents' care.
DISPOSITION
The petition is denied. The request for stay is denied.
DATO, J. WE CONCUR: HALLER, Acting P.J. AARON, J.