Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for extraordinary writ. Marsha G. Slough, Judge. Super. Ct. No. J225133
Michael C. P. Clark for Petitioner A. M.
Tim L. Guhin for Petitioner T. M.
No appearance for respondent.
Ruth L. Stringer, County Counsel, and Dawn M. Messer, Deputy County Counsel, for Real Party in Interest.
KING, J.
The parents of the minors involved in this proceeding seek writ review of the juvenile court’s orders denying them reunification services and setting a Welfare and Institutions Code section 366.26 hearing. Mother contends that the juvenile court erred in sustaining the jurisdictional allegations insofar as the perpetrator of physical abuse was never identified. Father contends that the court did not apply the correct burden of proof when it determined that section 361.5, subdivision (b)(6), applied to him. Both mother and father contend that there was insufficient evidence to support the court’s order denying them reunification services and that the court failed to make the findings required by section 361.5, subdivision (i). We disagree and accordingly deny both petitions.
Petitioner A.M. is the mother of A.R., J.M., and of the deceased M.M. Petitioner T.M. is the father of J.M and of the deceased M.M. A.R.’s alleged father did not file a writ petition. Unless otherwise indicated in this opinion, petitioners will be referred to as mother and father or the parents.
Statutory references are to the Welfare and Institutions Code unless otherwise stated.
FACTUAL AND PROCEDURAL BACKGROUND
On January 2, 2009, the parents brought 21-month-old M.M. to the emergency room at Kaiser Hospital. He was in full cardiac arrest, unresponsive, not breathing, and very cold. The hospital staff was able to get a heartbeat, but placed the child on a ventilator. He was then transported to Loma Linda University Medical Center (hereafter LLUMC). The parents did not go to LLUMC, but returned to their home.
To personnel at Kaiser Hospital, it appeared that the parents acted oddly. They did not appear to be concerned or crying, but seemed to be detached. Father asked questions about the medical equipment and, even more strangely, asked whether M.M. could be circumcised. When told that the child was too ill to undergo the procedure, he asked whether his younger son J.M. could be circumcised.
This matter was reported to the San Bernardino County child abuse hot line. Because M.M.’s siblings, A.R. and J.M., had not been seen at Kaiser, a request was made that law enforcement conduct a welfare check. A police officer found both children to be doing well, noting that both parents were at home at the time.
A San Bernardino County Children and Family Services (department) social worker also went to the home and interviewed mother. Mother reported that shortly after 1:00 a.m., M.M. was discovered not breathing and in an unusual position. The parents decided to drive M.M. to the emergency room at Kaiser. They left the other two children with the paternal grandparents who lived in a fifth wheel trailer on the property. Asked why they had not gone to LLUMC, mother told the social worker that they were tired from celebrating New Year’s Eve. Mother added that she called the hospital around 6:25 a.m. to check on him. At the jurisdictional hearing, the parents stated that they had not gone to LLUMC because they did not have enough gas and because they wanted to find a babysitter for the other two children.
The social worker then went to LLUMC and spoke with Dr. Young, M.M.’s treating physician. Dr. Young reported that it was likely M.M. was brain dead and would probably not survive the next few hours. The child had a bruise on his left ear and multiple bruises on the right and left chin. He also had a diaper rash with blisters.
Dr. Young indicated that she was familiar with the family. She said that the parents would minimize medical concerns. The medical staff was concerned for the children due to the pattern of neglect, as well as failure to obtain medical attention. The social worker noted that the family was currently participating in a voluntary family maintenance service plan with the department
Thereafter, the social worker obtained a detention warrant based on her conclusion that the children living at the home suffered, or were at substantial risk of suffering, serious physical harm or illness.
Upon entering the home, the social worker detected a foul odor reminiscent of urine, sweat, and spoiled food. The interior was extremely dirty and cluttered with trash and debris consisting of various objects, clothing, and plastic bags that could pose a serious threat to young children in the form of choking. There was also animal food on the floor in the children’s bedroom. J.M. did not have appropriate bedding and M.M.’s bed was on top of debris including dry animal food.
The parents were informed by LLUMC at 4:15 p.m. that M.M. had passed away. The parents were asked to go to the police station for further questioning, and the other two children were taken into protective custody.
The social worker who took the children into protective custody on January 2, 2009, testified that J.M. had a red mark that was on the back of his head. It did not appear to be a scratch or anything of that nature, but possibly could have been from being held in the hand or on the couch or in the car seat he was in.
The social worker initially observed that A.R. had multiple bruising on her arms and legs. Later, after she was placed in the foster home, a large bruise was observed on her back, right above her diaper line, as well as some bruising on her thighs and what appeared to be handprints on the arm.
The parents denied that A.R. had any bruises before she was taken into custody by the department.
Prior to M.M.’s death, the family had been the subject of several referrals to the department; for general neglect on October 5, 2007; caretaker absence/incapacity and general neglect on February 12, 2008; and general and severe neglect on September 22, 2008. The parents participated in voluntary family maintenance service from February 12, 2008, through July 30, 2008. The latest referral was in September 2008 when A.R. suffered a spiral fracture of her arm when she fell off her bike in a cluttered area of the back porch. It was thought that the parents had not been supervising the child.
When J.M. was four months old, he was hospitalized for dehydration, which caused seizures. He was found to be pale, skinny, sluggish, with suspicions of neglect and failure to thrive.
Both A.R. and J.M. were examined by Dr. Massi at LLUMC in October 2008. Dr. Massi had significant concerns because they were not properly cared for and were developmentally delayed. He described them as being “unkempt” and noted that J.M.’s diaper had not been changed in a while. Dr. Massi also noted that the parents had not followed up with an earlier recommended orthopedic evaluation for J.M. While A.R.’s injuries could have been sustained in a fall, Dr. Massi opined that father’s inability to provide a reliable detailed account raised the concern of an inflated injury and that physical abuse was equally likely given the lengthy history of referrals.
On January 20, 2009, Dr. Young reported that A.R. still had bruising, which was fading. She had severe speech development delays and spoke with clicks, grunts and stutters. Since her last visit to the children’s assessment center in October 2008, A.R. had not increased in weight or height. Dr. Young found that the child was the victim of child abuse, stating that she lived in a home with parents who have severely limited parenting skills. Dr. Young also found the suspicious fracture and the bruises were not typical of accidental injury. Dr. Young expressed her belief that J.M.’s history of failure to thrive and hospitalization resulted from child abuse.
Following the detention of the two minors, the jurisdictional/dispositional hearing was continued several times to allow receipt of the coroner’s report. During the interval, the department recommended that the parents not receive reunification services. The parents had completed therapy with Catholic Charities, and it was reported that they had improved in stress management skills and coping mechanisms. However, they failed to take full responsibility for their past failures in parenting, and they continued to struggle with employment and financial concerns.
The social worker also reported problems during visits. The parents were often argumentative and refused to comply with visitation guidelines and ignored the social worker’s directives. In one instance, the parents had to be escorted out of LLUMC by security when they got into an argument with the foster parent and hospital staff. Eventually, the court suspended mother’s visits with both children and father’s visits with A.R.
Dr. Young testified at the jurisdictional hearing that she is a pediatrician at Loma Linda University Children’s Hospital and is affiliated with the children’s assessment center. She is in the process of obtaining board certification in a subspecialty in child abuse pediatrics. M.M. was referred to her by Dr. Angela Slaughter at Kaiser Hospital. Dr. Slaughter, as well as the transporting physician Dr. Minaya, believed that M.M.’s injuries were suspicious.
Dr. Young observed multiple bruises on M.M.’s body. He had two bruises behind the left ear, a bruise on the edge of the right ear and bruising on the scalp behind the right ear. He also had an abrasion over his right eye. There were two areas of petechiae (red dots of bruising) and a linear abrasion with some bruising on the neck. There were multiple bruises, some fairly recent on his arms and legs. Bruises on M.M.’s knees and lower legs were probably caused by normal toddler activity. However, Dr. Young opined that the bruising to the ear could not have been caused by a new pair of glasses as the parents had claimed. Dr. Young testified that the petechiae found on the neck was caused by grabbing. She indicated that bruising on the neck, back, forearm and head are not usually accidental and indicates very rough handling. She added that any unexplained bruises to the head of a child who is nonverbal are considered severe injuries.
Dr. Young stated that the eight-millimeter hemorrhage behind M.M.’s right ear was deep enough to be seen inside of his scalp. She considered this a severe injury, which indicated that the tissues had been crushed and bled through all layers of the skin.
The autopsy listed the cause of M.M.’s death as undetermined. Dr. Young explained that although the medical examiner could not make a definitive finding that M.M. died of an abusive injury, he also could not make findings to prove that he died of natural causes. The medical examiner stated that the prior history of this family raised the possibility that this might be an unnatural death due to either intentional or unintentional injury. Dr. Young echoed this opinion, suggesting that suffocation or strangulation could have been the cause of death.
At the conclusion of the contested jurisdictional hearing, the court found there was insufficient evidence to show that M.M. died due to petitioners’ conduct or failure to act. While the bruising was disturbing, the court noted that there was no evidence that the bruises were related to the child’s death. As to A.R., the court found true allegations under section 300, subdivisions (a), (b), and (j). In sum, it found that A.M. had sustained nonaccidental injury consisting of multiple bruises while in mother’s custody; that mother had failed to provide her with adequate shelter, clothing and safety, and that her sibling, M.M., had sustained nonaccidental injuries, including multiple bruises all over his body and a soft spot on his head, brain bleed and fluid in the abdomen while in mother’s care and custody.
With respect to J.M., the juvenile court sustained jurisdictional findings under section 300, subdivisions (b) and (j), finding that the parents had failed to provide him with adequate medical treatment and that he failed to thrive due to parental neglect. In addition, it found that his siblings had sustained nonaccidental injuries while in the parents’ care and custody, placing J.M. at risk of similar abuse or neglect.
At the dispositional hearing, the court denied reunification services under section 361.5, subdivision (b)(6).
DISCUSSION
Mother directly challenges the juvenile court’s jurisdictional findings under section 300, subdivisions (a) and (j), on the ground that there was insufficient evidence to prove that she herself inflicted injuries on her children. Both parents challenge the denial of reunification services under section 361.5, subdivision (b)(6), because neither was individually identified as the person who inflicted M.M.’s injuries.
We begin by noting that we review an order denying reunification services for substantial evidence. (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96.) If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we uphold those findings. We draw all reasonable inferences in support of the findings, view the record favorably to the juvenile court’s order, and affirm the order even if there is substantial evidence supporting a contrary finding. The parent has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
The juvenile court must provide services designed to reunify the family within the statutory time period, unless a specific statutory exception applies. (§ 361.5; 42 U.S.C. § 629a(a)(7); see Tyrone W. v. Superior Court (2007) 151 Cal.App.4th 839.) The statutory exceptions to providing reunification services under section 361.5 have been referred to as reunification “bypass” provisions. (§ 361.5, subd. (b)(1)–(15).) Section 361.5, subdivision (b)(6), is one of these bypass provisions, and it applies when a “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 [or] a sibling... 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....” (§ 361.5, subd. (b)(6).)
This subdivision further provides that a finding of “severe physical harm” may be based on, but is not limited to, “[D]eliberate and serious injury inflicted to or on a child’s body or the body of a sibling or half sibling of the child by an act or omission of the parent or guardian, or of another individual or animal with the consent of the parent or guardian; deliberate and torturous confinement of the child, sibling, or half sibling in a closed space; or any other torturous act or omission that would be reasonably understood to cause serious emotional damage.” (§ 361.5, subd. (b)(6).)
Although it has been held that section 361.5, subdivision (b)(6), does not apply to a parent who is merely negligent, its application is not limited to the parent or parents whose act directly cause a child’s injury. When the child’s injuries are obvious to the child’s caretakers and they failed to act, the court is not required to identify which parent inflicted the abuse by act and which parent inflicted the abuse by omission or consent. “In such a case, the evidence supports a conclusion that both parents knew the child was injured or being abused.” (Tyrone W. v. Superior Court, supra, 151 Cal.App.4th at p. 852.)
Here, M.M. had multiple prominent bruises, particularly to the head, neck and back. A.R. also had clearly noticeable bruises. Their injuries were obvious to the parents, and there was no need to identify which one inflicted them.
Similarly, the jurisdictional findings under section 300, subdivision (a), are supported by the evidence since the children were in the care and custody of both parents.
Father also contends that there was insufficient evidence to show that the injuries were severe or serious as defined under section 361.5, subdivision (b)(6). Father does not deny that both M.M. and A.R. had numerous bruises, but asserts that the number and severity of bruising was not above the average seen in dependency cases. Here again, we strongly disagree. Both minors had numerous bruises all over their bodies. The fact that they were in various stages of aging shows that they were inflicted over an extended period of time. M.M. had several bruises to the head, back, and neck—which Dr. Young considered severe in a child of his age. It was also her opinion that someone had caused these bruises and that they were abusive bruises. Finally, Dr. Young testified, in particular, that the bruise behind M.M.’s right ear was deep enough to be seen inside of his scalp, indicating that the tissues had been crushed against the bone, causing all layers of skin to bleed. The parents’ explanation for this injury is illogical if not absurd. This injury alone would support the court’s findings.
The parents also contend that the juvenile court failed to comply with the provisions of section 361.5, subdivision (i), which requires the court to read into the record the basis for a finding of severe physical harm under paragraph (6) of subdivision (b), and also specify the factual findings used to determine that the provisions of reunification services to the offending parent or guardian would not benefit the child. The juvenile court did in fact state the basis of its finding that under section 361.5, subdivision (b)(6), and, contrary to father’s argument, it is clear from viewing the entire hearing in context that the court made this finding using the clear and convincing standard. Although the court did not specifically refer to the factors set forth in section 361.5, subdivision (h), in finding that the reunification services would not benefit the minors, it is evident that the decision was based on the specific act comprising the severe physical harm inflicted on M.M. as well as the circumstances under which the harm was inflicted. In any case, the lack of explicit findings does not require us to set aside the order denying reunification services where substantial evidence supports such findings. (In re S.G. (2003) 112 Cal.App.4th 1254, 1259-1261.)
“In determining whether reunification services will benefit the child pursuant to paragraph (6) or (7) of subdivision (b), the court shall consider any information it deems relevant, including the following factors: [¶] (1) The specific act or omission comprising the severe sexual abuse or the severe physical harm inflicted on the child or the child’s sibling or half sibling. [¶] (2) The circumstances under which the abuse or harm was inflicted on the child or the child’s sibling or half sibling. [¶] (3) The severity of the emotional trauma suffered by the child or the child’s sibling or half sibling. [¶] (4) Any history of abuse of other children by the offending parent or guardian. [¶] (5) The likelihood that the child may be safely returned to the care of the offending parent or guardian within 12 months with no continuing supervision. [¶] (6) Whether or not the child desires to be reunified with the offending parent or guardian.” (§ 361.5, subd. (h).)
DISPOSITION
For the foregoing reasons, the petitions are denied.
We concur: RAMIREZ P. J.HOLLENHORST J.