Opinion
F062873 Super. Ct. No. MJP016680
10-03-2011
A.F., Petitioner, v. THE SUPERIOR COURT OF MADERA COUNTY, Respondent; MADERA COUNTY DEPARTMENT OF SOCIAL SERVICES/CHILD WELFARE SERVICES, Real Party in Interest.
Errin E. Woodward, for Petitioner. No appearance for Respondent. Douglas W. Nelson, County Counsel, and Miranda P. Neal, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
Before Wiseman, Acting P.J., Levy, J., and Kane, J.
ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Thomas L. Bender, Judge.
Errin E. Woodward, for Petitioner.
No appearance for Respondent.
Douglas W. Nelson, County Counsel, and Miranda P. Neal, Deputy County Counsel, for Real Party in Interest.
Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from the juvenile court's orders issued at a contested dispositional hearing denying him reunification services and setting a Welfare and Institutions Code section 366.26 hearing as to his one-year-old daughter, R. He contends the juvenile court erred in denying him reunification services pursuant to section 361.5, subdivision (b)(5) which he argues requires this court to vacate the section 366.26 hearing and direct the juvenile court to order services. Under the circumstances, however, even if we concluded that the juvenile court erred in denying petitioner reunification services pursuant to subdivision (b)(5) of section 361.5, it would have no practical effect because the court also denied petitioner services pursuant to subdivision (b)(6) of section 361.5 which petitioner does not challenge. Consequently, we will dismiss the petition.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
STATEMENT OF THE CASE AND FACTS
In light of our dismissal of the case, an abbreviated summary of the facts suffices. Petitioner and his girlfriend, L., are the parents of R. who on November 20, 2010, at the age of three months was admitted to the hospital with multiple healing rib fractures and linear bruising on the right abdomen, left leg and left knee. She also had bruising on both sides of her jaw and neck with a rash on her face that appeared to be small hemorrhages and a hemorrhage in her left eye. Petitioner and L. had no explanation for R.'s injuries and R. had no history of skeletal or hematological disorder. Petitioner and L. stated that they were R.'s only caregivers. R. was admitted to the hospital with a diagnosis of nonaccidental trauma and discharged to her paternal grandmother.
L. also filed a writ petition which is pending before this court (F062875).
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Dr. Phillip Hyden, a child abuse advocate doctor, stated that R.'s rib fractures appeared to be caused from squeezing and were ten to fourteen days old. He believed her bruises were caused by an object because of their linear pattern and that the bruising and marks around her neck, facial redness and hemorrhage in her eye indicated she had either been strangled or suffocated or that pressure was applied around her neck. Dr. Hyden said R. did not have signs of shaken baby syndrome.
Madera County Police Officer Alicia Keiser interviewed petitioner, L., and L.'s mother, Maryellen, at the hospital. Maryellen said that L., R. and petitioner live with her and that she was present the morning of November 19, 2010, when they discovered R.'s bruises. She saw R.'s legs and body when L. changed R.'s diaper and did not see any bruises. L. subsequently left to go to an appointment, leaving R. in the bedroom with petitioner. Shortly after L. left, Maryellen heard R. fussing. When she entered petitioner's bedroom, he was changing R.'s diaper. At that time, Maryellen noticed the bruises and asked petitioner about them. He did not know and called L.
Petitioner told Officer Keiser that he fell asleep after L. left the apartment. Later, he woke up and went to the bathroom and heard R. fussing. He lifted R. out of her bassinet and changed her diaper. During the process, Maryellen entered the room and they discovered the bruising on R.'s leg.
L. told Officer Keiser that approximately a week and a half before, R. woke up and was crying. L. said she was very tired and disoriented. R. was in the bassinet next to her. She reached over and squeezed and shook R. on the left side. Officer Keiser asked L. how hard she shook R. She said she did not know but "apparently hard enough to hurt her." She said after she squeezed R., she wondered if she had hurt her.
The Madera County Department of Social Services (department) took R. into protective custody and filed a dependency petition alleging that petitioner and L.'s conduct brought R. within the provisions of section 300, subdivisions (a) (serious physical harm), (b) (failure to protect) and (e) (severe physical abuse).
Petitioner and L. challenged the allegations at a contested jurisdictional hearing. Petitioner's mother, Lisa, testified that on October 31, 2010, petitioner, L. and R. were at her home and Lisa was getting the children ready to go trick-or-treating. Lisa went into her bedroom where L. was holding and patting R. who was screaming and crying. She said R. cried loudly when she wanted something, but her cry that day was different as if something was wrong. Lisa said she never saw L. or petitioner mishandle R. and R. slept in her stroller for the rest of the evening. Lisa did not see any signs that R. was injured.
L. testified that R. behaved as normal on October 31 and was not injured. She said that she did not observe any injuries on R. when she left her on the morning of November19. Later, petitioner called her to tell her that R. had "weird marks" on her body. L. suggested he call the doctor which he did. L. met petitioner and her mother at the doctor's office. When asked if she had an explanation for the bruising on R.'s body, L. said as far as she was concerned the doctor said it was not bruising, but rather a result of a high white blood cell count. She said she believed that R. sustained the rib fractures while being delivered by Caesarean section in early August 2010. She denied squeezing R.
Petitioner testified that he did not know how R.'s ribs were broken and had no explanation for her bruises. He denied hurting her and did not suspect L. of hurting her.
The juvenile court did not find petitioner and L. credible and adjudged R. a dependent child pursuant to section 300, subdivisions (a), (b) and (e). The court also set the dispositional hearing and ordered a bonding study.
The bonding study was performed by Kerri Freeman, LMFT. In her report, issued in May 2011, she opined that R. is attached to petitioner and L., but that it would be detrimental to R. to remove her from her paternal grandparents. She further opined R.'s interests would be best served by leaving her in their care.
The contested dispositional hearing was conducted in May 2011. Ms. Freeman was the only witness. At the conclusion of the hearing, the juvenile court found that petitioner caused R.'s bruising and that L. broke her ribs. The court denied petitioner and L. reunification services pursuant to section 361.5, subdivision (b)(5) and (6) and set a section 366.26 hearing. This petition ensued.
DISCUSSION
The juvenile court is required to order family reunification services whenever a child is removed from parental custody unless the court finds by clear and convincing evidence that the child is described by any of 15 exceptions set forth in section 361.5, subdivision (b). (§ 361.5, subds. (a) & (b)(1)-(15).) In this case, the juvenile court denied petitioner reunification services based on two exceptions, subdivision (b)(5) and (6) of section 361.5 (subdivision (b)(5) and (6)) which provide in relevant part:
"(b) Reunification services need not be provided to a parent ... described in this subdivision when the court finds, by clear and convincing evidence, . . . [¶] . . . [¶]
(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 . . . .
(6) That the child has been adjudicated a dependent pursuant to any subdivision of Section 300 as a result of . . . the infliction of severe physical harm to the child, . by a parent ., as defined in this subdivision, and the court makes a factual finding that it would not benefit the child to pursue reunification services with the offending parent . . . . [¶] . . . [¶] [s]evere physical harm . may be based on, but is not limited to, deliberate and serious injury inflicted to or on a child's body . . . by an act or omission of the parent . . . ."
Since petitioner only seeks appellate review of the juvenile court's order denying him reunification services under subdivision (b)(5), we would not direct the juvenile court to conduct a new dispositional hearing or order reunification services even if petitioner prevailed on his writ because there is an order denying him reunification services under subdivision (b)(6) which he does not challenge. Consequently, we cannot grant the relief sought and will dismiss the petition.
DISPOSITION
The petition for extraordinary writ is dismissed. This opinion is final forthwith as to this court.