Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for extraordinary writ, Super. Ct. Nos. J224852 & J224853. Marsha Slough, Judge. Petitions denied.
Michael C.P. Clark for Petitioner D.B.
Monica Cazares for Petitioner A.P.
No appearance for Respondent.
Ruth E. Stringer, County Counsel, and Adam E. Ebright, Deputy County Counsel, for Real Party in Interest.
Linda Bell Levine for Minors.
HOLLENHORST, J.
Petitioners D.B. (mother) and A.P. (father) filed separate petitions for extraordinary writ pursuant to California Rules of Court, rule 8.452, challenging the juvenile court’s order denying reunification services as to their children, D.P. and J.P. (the children), and setting a Welfare and Institutions Code section 366.26 hearing. Mother and father (the parents) argue that the juvenile court erred in denying them reunification services under section 361.5. We deny their writ petitions.
All further statutory references will be to the Welfare and Institutions Code unless otherwise noted.
Counsel for the children filed a response to the parents’ petitions on July 21, 2009, urging this court to affirm the juvenile court’s orders and deny the writs.
FACTUAL AND PROCEDURAL BACKGROUND
On December 5, 2008, San Bernardino County Children and Family Services (CFS) received a referral from the San Antonio Community Hospital, stating that six-month-old D.P. had a fractured left femur, fractured right tibia, and a dislocated retina. D.P. was transported to Loma Linda University Medical Center (LLUMC). Upon examination, he was found to have multiple scratches on his face and ears, multiple bruises in various stages of healing, a subdural hematoma, retinal hemorrhage, and pneumonia. He also had a fracture of the left ulna, a right distal femur fracture, a healing tibia and fibula fracture, a possible old clavicle fracture, and a possible old rib fracture. The doctors opined that the injuries were nonaccidental. Mother stated that she was not aware of any mistreatment of her son by anyone.
A social worker at LLUMC interviewed mother, who said the maternal grandmother advised her to take D.P. to the hospital because he was fussy. Mother said father was the primary care provider of the children during the day, and he was the only person who could have harmed D.P. Mother said she asked father if he had any idea what had happened to D.P., and he said “no.” When father was interviewed, he denied any knowledge of abuse or injury to the children. The social worker went to the maternal grandmother’s home where mother, father, and the children lived, and found J.P. sleeping. He had no visible bruises or marks on his body. Both children were removed from the parents, as neither parent could tell how, when, or how long D.P.’s injuries had been there. Father was arrested on charges of felony child abuse.
CFS filed petitions on behalf of the children. Each petition alleged that the child came within section 300, subdivisions (a) (serious physical harm), (b) (failure to protect), (e) (severe physical abuse), and (g) (no provision for support). J.P.’s petition also included an allegation under section 300, subdivision (j) (abuse of sibling). J.P. was 23 months old at the time.
A detention hearing was held on December 11, 2008, and the court detained the children.
Jurisdiction/disposition
The social worker filed a jurisdictional/dispositional report on December 26, 2008, recommending that the children be declared dependents of the court and that reunification services be provided to both mother and father. The social worker noted that the parents had expressed a great desire to reunify with their children and cooperate with the process. However, they were still in denial as to how this type of abuse occurred. The social worker opined that, with no one willing to accept responsibility for the injuries, the children were at risk.
The social worker attached a report from a consultation/examination that was performed by a doctor on December 5, 2008. The report stated that mother went to school from 8:00 a.m. to noon Monday through Friday, and that father took care of the children during that time. On December 2, 2008, mother came home to find two big bruises on D.P.’s forehead. Father claimed that J.P. dropped a toy truck onto D.P.’s head. Mother also noticed three “purple dots” on his head that looked like fingerprints. The next day, mother came home and noticed the bruises were darker, but D.P. was still “acting normal.” On December 4, 2008, mother came home from school and called the maternal grandmother, who said she kept hearing D.P. cry that morning. The maternal grandmother noticed that his left hand was swollen. Father said he did not notice a difference in size between D.P.’s arms. Mother looked and noticed that D.P.’s right arm was swollen from his wrist to his elbow. She took him to the doctor, even though father said D.P. did not need to go. The doctor summarized D.P.’s injuries as follows: Large bilateral subdural hemorrhages with “heterogenous signal indicating blood of various ages,” facial, scalp, and ear bruising and abrasions, multiple bone fractures in various stages of healing, numerous bruises over various planes of the body, and oral injury. In the doctor’s opinion, D.P. had been abused, battered and neglected.
The police interviewed one of the doctors who had examined D.P. The doctor said D.P.’s injuries were a “typical result of abuse.” He stated that D.P.’s fractured femur was consistent with a twisting motion the child could not cause himself. The doctor explained that the bones of a six-month-old are bendable, like young green tree branches, so that “it takes a lot for 6 month olds’ bones to break.”
A contested jurisdictional hearing was held on February 24, 2009. The court found that D.P. came under section 300, subdivisions (a), (b), and (e), and that J.P. came under section 300, subdivisions (a), (b), and (j). The court continued the matter.
The social worker filed an addendum report on April 2, 2009, changing her recommendations. She continued to recommend that mother receive reunification services, but she recommended that father not receive them since he was arrested the previous month for possession of cocaine. The social worker opined the arrest showed that he continued to “have some deficits necessary to become a successful parent.”
At the contested dispositional hearing, beginning on April 10, 2009, the court heard testimony from several experts, as well as both parents. Father called Dr. John Kinsman, who had performed a psychological evaluation of him. Dr. Kinsman diagnosed father with “an adjustment disorder with mixed anxiety and depressed mood.” Dr. Kinsman said father’s preoccupation with his own needs could sometimes relegate a child’s legitimate needs to secondary importance. However, he believed father was treatable. Dr. Kinsman answered in the negative when asked if there was anything in father’s diagnosis that would affect his ability to benefit from services or that would indicate that services would not be likely to prevent reabuse. He said it would take at least one year of psychotherapy before he would feel comfortable having a child go back to father. Dr. Kinsman further testified that father did not take any personal responsibility as a parent for D.P.’s injuries, or for his failure to protect D.P.
Father testified that he was in the house with D.P. on December 4, 2008, but he did not notice anything unusual about him that day or the previous week. When asked how D.P. got all those injuries, father said he did not know.
Mother testified at the hearing that on December 1 through December 4 (the days before D.P. was taken to the hospital) only she and father had access to D.P. Mother said she understood that the fact that D.P.’s injuries were in various stages of healing indicated he had been hurt on more than one occasion. She also understood that a child with broken bones and hematomas would be crying and acting out, and that a child’s bones are very difficult to break. Nonetheless, she maintained that she had no idea what or who caused D.P.’s injuries. Mother testified that she did not notice anything on him. She also said that she did not feel responsible in any way for the injuries, or feel that she should have seen something before December 4, 2008.
The social worker also testified at the hearing. She recommended no reunification services for father, since Dr. Kinsman said it would take more than one year to treat him, and the children needed a permanent plan as soon as possible. Father had been participating in parenting classes and counseling, but the social worker questioned whether he was learning anything since he was recently arrested for cocaine possession, which reflected his poor decision-making skills. The social worker testified that mother had completed her parenting classes and 10 sessions of counseling. She felt that mother should have had a better understanding of what happened to her child. She testified that neither mother nor father had taken responsibility for D.P.’s abuse, and no one had admitted to the social worker who caused his injuries. She added that mother had a deep level of denial, and as such, could not protect a child. The social worker also testified that it would not be detrimental to the children if the court were not to order reunification services for mother. Based on the social worker’s experience, the children were so young that, even though they loved their mother, they could love someone else if she was not around.
After hearing all the testimony and reading all the reports, the court stated that the parents had demonstrated “a complete and total lack of accountability when it comes to the injuries to this child.” The court said it did not think parenting classes or drug classes would be capable of motivating a parent to accept accountability some six or seven months after the injuries had occurred. The court further stated its belief that the parents were protecting one another above protecting their children. The court then denied reunification services to both father and mother under section 361.5, subdivision (b)(5) as to D.P., and section 361.5, subdivision (b)(7) as to J.P. The court set a section 366.26 hearing for August 11, 2009.
ANALYSIS
The Court Properly Denied Mother and Father Reunification Services
Mother and father argue that the court erred in denying reunification services. They both contend that there was insufficient evidence to support the denial of services. We disagree.
A. Standard of Review
“We affirm an order denying reunification services if the order is supported by substantial evidence. [Citation.]” (In re Harmony B. 125 Cal.App.4th 831, 839.) “‘In juvenile cases, as in other areas of the law, the power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the verdict, if possible.’” (Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 600 (Francisco G.).)
B. The Court Properly Denied Services Under Section 361.5, Subdivision (b)(5)
Section 361.5, subdivision (b), “sets forth a number of circumstances in which reunification services may be bypassed altogether. These bypass provisions represent the Legislature’s recognition that it may be fruitless to provide reunification services under certain circumstances. [Citation.]” (Francisco G., supra, 91 Cal.App.4th at p. 597.) Specifically, “Reunification services need not be provided to a parent or guardian... 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.... [or] [¶]... [¶] (7) That the parent is not receiving reunification services for a sibling or a half sibling of the child pursuant to paragraph (3), (5), or (6).” (§ 361.5, subds. (b)(5), (b)(7).)
Here, the court found that D.P. was brought within the court’s jurisdiction under section 300, subdivision (e) (severe physical abuse) because of the conduct of the parent. The parents do not dispute this finding. However, father argues that the court erred in denying him services under section 361.5, subdivision (c), which provides: “The 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.” In support of his claim, he contends there was evidence presented at the hearing that he would benefit from the provision of services. However, the standard is not whether he would have benefitted from services, but whether services would likely prevent reabuse or that failure to try to reunify would be detrimental to the child. (§ 361.5, subd. (c).) There was no evidence affirmatively showing that services would likely prevent reabuse. Dr. Kinsman did say “no” when asked if there was anything in father’s diagnosis that would indicate that services would not be likely to prevent reabuse. However, he also testified that it would take at least one year of psychotherapy before he would feel comfortable having a child go back to father. Since D.P. was only six months old when he was removed from the parents’ custody, father would have only been provided with services for six months. (§ 361.5, subd. (a)(1)(B).) Thus, pursuant to Dr. Kinsman’s opinion, such services would not have been enough to prevent reabuse or continued neglect.
There was also no evidence before the court that D.P. was closely and positively attached to father, as father claims. Father points to evidence that he had been visiting with the children, played with them, and was very attentive during the visits. He also cites Dr. Kinsman’s opinion that he had a good relationship with the children. However, because D.P. was detained at an early age, “there could be no legitimate claim [he] was closely and positively attached to [his] father.” (In re Rebekah R. (1994) 27 Cal.App.4th 1638, 1653 (Rebekah R.).) The failure to order reunification could therefore not have been detrimental to him under the second test of section 361.5, subdivision (c). (Ibid.)
As to mother, there was similarly no evidence presented that services were likely to prevent reabuse or continued neglect, or that failure to try to reunify would be detrimental to D.P. because he was closely and positively attached to her. (§ 361.5, subd. (c).) Rather, the evidence showed the opposite. The social worker testified that by the time of the dispositional hearing, mother had completed her parenting classes and 10 sessions of counseling. Nonetheless, mother still had not taken responsibility for D.P.’s abuse or admitted who caused the injuries. Mother testified that she did not feel responsible in any way for the injuries, or feel that she should have noticed anything before December 4, 2008. The social worker opined that mother had a deep level of denial, and as such, could not protect a child. In addition, the social worker specifically said it would not be detrimental to the children if the court did not order reunification services for mother. The children were so young that, even though they loved their mother, they could love someone else if she was not around.
Mother claims the court declined to order services for her solely because she was unable to say how the injuries occurred, and that this reason “[did] not compel a conclusion one way or the other concerning the likely success of reunification services.” (Rebekah R., supra, 27 Cal.App.4th at p. 1653.) Mother fails to accurately cite the court’s explanation for the denial of services. The court was convinced that someone knew who abused D.P. but believed the parents were choosing to protect one another above their children. The court then stated that its denial of services was based on the “absolute inability for anyone to step up and say what happened to this child.” The court added that “[t]he first step to change, the first step to protection, lies in admitting what happened.” Thus, contrary to mother’s claim, the court denied services because the parents were failing to admit what was obvious to the court—that one of them had abused the child.
Ultimately, the court was required not to order reunification services for the parents unless it found, by clear and convincing evidence, that reunification was in the best interest of the child. (§ 361.5, subd. (c).) Clearly, it was not in D.P.’s best interest to reunify with the parents. Father took care of D.P. every morning, yet failed to notice anything unusual about him the day before, or even the week before, he was found to have serious injuries. Moreover, father had no idea how D.P. got all of the injuries. Mother testified that she understood that D.P.’s injuries were in various stages of healing, which indicated that he had been hurt on more than one occasion, and that a child’s bones are very difficult to break. Nonetheless, she maintained that she had no idea what or who caused D.P.’s injuries. She also testified that she did not notice anything wrong with him. Considering the extent of D.P.’s injuries, the parents’ complete lack of awareness regarding their child’s condition is simply inconceivable. The court’s decision to deny services to parents who were in complete denial and took no responsibility for D.P.’s injuries and/or their failure to protect him was absolutely correct.
C. The Court Properly Denied Services Under Section 361.5, Subdivision (b)(7)
Section 361.5, subdivision (b)(7) provides that a court can deny reunification services if “the parent is not receiving reunification services for a sibling or a half sibling of the child pursuant to paragraph (3), (5), or (6).” As discussed above, the court correctly denied the parents services under section 361.5, subdivision (b)(5) as to D.P. Therefore, the court also properly denied the parents services under section 361.5, subdivision (b)(7) as to J.P.
DISPOSITION
The writ petitions are denied.
We concur: RAMIREZ, P.J., MILLER, J.