Opinion
C087495
09-13-2019
I. C. et al., Petitioners, v. THE SUPERIOR COURT OF SAN JOAQUIN COUNTY, Respondent; SAN JOAQUIN COUNTY HUMAN SERVICES AGENCY et al., Real Parties in Interest.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. STKJVDP20170000066; STKJVDP20170000297)
Petitioners I. C. and F. C., father and mother of the minors, seek an extraordinary writ (Cal. Rules of Court, rule 8.452) to vacate the orders of the juvenile court made at the jurisdiction hearing and disposition hearing setting a Welfare and Institutions Code section 366.26 hearing. We shall issue a peremptory writ of mandate directing the juvenile court to vacate its dispositional orders denying reunification services and setting the section 366.26 hearing.
References to rules are to the California Rules of Court.
Undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
I
Precipitating Facts
Minor Ab. C. (who was eight months old) came to the attention of the San Joaquin County Human Services Agency (Agency) on February 1, 2017, following a report from the hospital that the minor was brought in by mother the night before. Mother had reported an unwitnessed fall from the minor's walker. Mother had stated she presumed the minor had slipped out of the seat, slid down to the carpet and hit her head. The minor was initially seen by Dr. Roger Wu at St. Joseph's Medical Center, who explained that a CAT scan showed she had a right side brain bleed and a second healing brain bleed (bilateral) from one to two weeks prior. Mother, who was the primary caregiver, did not have an explanation for the second injury. The minor was transferred to Kaiser Hospital via ambulance for a nonaccidental trauma workup.
Attending physician at Kaiser, Dr. Jonathan Feldman, reported that a CAT scan showed the minor had suffered bleeding on the top of the brain and also showed older injuries, which was indicative of abuse. Additionally, an MRI showed multiple bilateral subdural hematomas of varying age, benign external hydrocephalus, and age-indeterminate punctuate focus of hemorrhagic shear injury within the left occipital gray-white matter.
Dr. Catherine Albin, a child abuse expert, stated that outside of the noted injuries, parents seemed to provide proper care for the minor and had taken her to all of her appointments. Hospital records noted no injuries or trauma following the minor's birth and the minor's injuries occurred after she was discharged from the neonatal intensive care unit (NICU). Dr. Albin explained that older x-rays showed the brain and space between was normal, but the most recent x-rays showed bilateral hemorrhaging, which occurred from a "sheer injury of significant force." Dr. Albin explained that the findings showed the minor had sustained multiple subdural hematomas with the x-rays showing at least three injuries. Dr. Albin stated mother's story about falling from a walker was inconsistent with the minor's injuries. Dr. Albin also noted that the circumference of the minor's head had increased at a faster rate than her height and weight around the times of the injuries and could have been caused by shaking. Dr. Albin further noted mother reported being bipolar and not on medication.
Pediatric ophthalmologist, Dr. Kevin Merrill, performed tests and found the minor had retinal hemorrhaging, which he knew had occurred as recently as one week earlier because a retinal check had been completed a week earlier with no such findings. Dr. Albin explained that the hemorrhaging would not have been caused by the minor slipping or falling out of her walker. Pediatric neurosurgeon, Dr. Saket, stated that the minor's injuries were old, intermediate, and new. All appeared to be sheer injuries to the brain and enough to cause small, moderate, and significant injuries, most likely caused by shaking and not due to the infant slipping out of her walker seat. The minor had a total of three subdural hematomas on three different dates occurring after her release from her 75-day stay at a Roseville Hospital after being born premature.
Regarding the minor's injuries, mother told the social worker she gave the minor a bottle, put her in her walker, and left the room briefly. She then heard a thump and the minor crying. She assumed the minor must have fallen backwards after slipping out of the seat and added that the minor stopped crying after mother picked her up. Mother then prepared the minor for bed and called her aunt to tell her what happened and to seek assistance. The aunt came over and drove mother and the minor to the hospital. Mother denied any prior incidents or accidents involving the minor falling.
The aunt reported that when mother called, she was crying hysterically. Mother told her the minor had slipped from the walker and asked her to come over to assess the situation. When the aunt arrived at parents' home, she saw that the walker, which was "cheaply made" had only half of the seat connected. The minor was not crying, but was "groggy," "not herself," and could not keep her eyes open. The aunt advised that they had better take the minor to the hospital.
Mother and father denied any substance abuse in the home. Mother (who was currently pregnant) informed the social worker that she had a history of bipolar disorder and was diagnosed 15 years ago. She said she had attended bipolar groups at Kaiser two times per month until she became pregnant and was told to rest. She then linked up with Natalie, her therapist, who checked in with her two to three times per month. Mother did not take any medication due to the negative impact it can have while pregnant. Mother said she managed her condition outside her check-ins by going to church groups for support and fellowship. Mother also said the minor was connected to services through Valley Mountain Regional Center and that someone came out to see her weekly.
Father was working two jobs at the time of the incident. He had taken two months off one of his jobs after the minor was born, but he had returned to working two jobs a month before the incident. While working two jobs, he left the house at 5:45 a.m. for his first job. He got off work at 4:30 p.m. He started his second job at 7:00 p.m. and got off at 3:30 a.m. He would not get home until 4:15 a.m. He came home every day for lunch for about an hour. He worked the two jobs five days a week.
II
The Petitions
On February 7, 2017, the Agency filed a dependency petition on behalf of minor Ab. C. alleging the minor came within section 300, subdivisions (a) (serious physical harm), (b) (failure to protect), and (e) (severe physical abuse). At the detention hearing on February 8, 2017, the juvenile court ordered the minor detained.
On June 21, 2017, shortly after mother gave birth to minor Am .C., the Agency filed a dependency petition on her behalf alleging Am. C. came within the provision of section 300, subdivisions (b) (failure to protect) and (j) (abuse of sibling). The court ordered Am. C. detained in protective custody and granted parents supervised visitation. Subsequently, the court ordered both Am. C. and Ab. C. placed with the maternal aunt and uncle. On July 6, 2017, the court determined that it would hear Am. C.'s case along with her sibling Ab. C.'s case.
III
Jurisdiction
The contested jurisdictional hearing spanned multiple days, beginning on May 17, 2017, and concluding with the ruling from the court on September 14, 2017. The court heard testimony from the following: the Agency's experts -- Dr. Albin (Kaiser regional pediatric ICU director for Northern California) and Dr. Richard Friederich (pediatric neurologist); the petitioners' experts -- Dr. Steven Gabaeff (retired emergency room doctor) and Dr. Susan Gootnick (radiologist); and from the parents.
Dr. Albin testified that the doctors at St. Joseph Medical Center had been concerned when the minor vomited, turned blue, had a seizure, and was subsequently difficult to arouse. Mother did not believe the minor had a seizure. Instead, mother insisted that the minor vomited formula and explained the bluish coloring as a "common finding" after having a period of vomiting. The CT scan, however, showed multiple pockets of bleeding and micro hemorrhaging ("little explosions of the blood vessels") that were consistent with acute brain injury from trauma or acceleration/deceleration, or a shear injury as seen in shaken babies. Dr. Albin explained that a shear injury or the amount of neurologic insult that would cause a child to vomit, become blue, and have a seizure, should never happen after a fall of less than a foot, such as the fall described by mother.
Dr. Albin also testified that the acute, most recent brain injury had occurred within three days of the minor's CT scans and the chronic injury had occurred anywhere from a couple of weeks to a couple of months before the scans. Bilateral subdural hemorrhaging showing blood in the area between the brain and the surrounding membrane in infants and small children was most commonly an "abusive head injury, due to shaking or some mechanism similar to that."
Dr. Friederich testified that shaken baby syndrome is suspected when intracranial bleeding of multiple ages exists and highly suspected with the existence of retinal hemorrhages, more specifically with retinal hemorrhages consisting of multiple layers extended out to the periphery. Dr. Friederich reviewed the CT scan and MRI results. The CT scan showed subdural hemorrhages of two different ages, acute (within the last three days) and subacute (between three days and three weeks), and the MRI showed at least three different ages. Dr. Friederich testified that he observed small points of blood in the back and left side of the brain, along with white matter underneath the cortex, which was indicative of shearing. It was not possible for the minor's injuries to have occurred from a fall from the walker (approximately 18 inches) because of the lack of rotational force or velocity to generate the energy necessary to cause that type of injury.
Drs. Albin and Friederich both also testified regarding the unusual and dramatic jump in the minor's head growth between January 9 and February 1, 2017. Dr. Albin testified that the minor showed two jumps in head circumference after her release from the NICU. The first jump was a little accelerated but could have been a "really thriving ex-premature baby, who was growing very well." The second jump, however, was a "tremendous amount of head growth," which was not normal and "coincided with an injury that caused fluid and/or blood to accumulate in the area around the outside of the brain, making the skull grow larger." Dr. Albin explained that the acceleration in the head circumstance was significant because of concerns about the multiple bleeds at different ages. Dr. Friederich agreed that something had occurred that caused a sudden more rapid growth in head size.
Dr. Gootnick testified that she reviewed the February 1, 2017, CT scan and did not see subdural hematomas, but instead saw benign fluid collections that occur in newborns. Her observations were based on a medical journal article she had read. She opined the minor had coagulopathy (a bleeding disorder). She also opined the minor had bilateral hygromas, not subdural hematomas, and that this was not a case of trauma and there were not three separate injuries. She opined the hygromas had developed into increased head size and suggested that this was indicative of BESSI (benign enlargement of the subarachnoid space in infants). Dr. Gootnick opined that the minor had BESSI and coagulopathy and bled in the NICU after her birth. She further indicated that her findings were consistent with mother's claim that the minor hit the back of her head.
Dr. Gootnick later admitted that the minor's blood and head scans were normal at birth in the NICU. She also admitted she did not review the minor's medical records and reports from around the time of the incident, January and February 2017, nor did she review the minor's birth records or the mother's delivery records, and she was unaware a nurse had witnessed the minor's seizure. Instead, she had based her findings on her interview of parents. It was also revealed that the article Dr. Gootnick relied on for her theory regarding the minor's injuries utilized a mathematical model which was beyond her area of expertise and was not based on findings using real infants, and was completely theoretical in nature. Dr. Gootnick admitted that the appearance of the subdural hematomas was indicative of a recent acute bleed.
Dr. Gabaeff testified that CT scans were very reliable in determining subdural hematomas. He presented a CT scan slide show which he indicated showed older injuries to the minor and attributed them to birth trauma. Dr. Gabaeff admitted that the retinal exam showed retinal hemorrhaging but insisted that the increased intracranial pressure could have been caused by anything. He testified that there was abnormal accelerated head growth reflected in documents but stated that the minor's head was enlarging from birth. Dr. Gabaeff testified that the fall from the jumper was sufficient to cause vomiting and seizures, as seen in a concussion, but not sufficient to cause severe injury.
Dr. Gabaeff testified that he had no neurological or pediatric experience and explained that he did not believe in shaken baby syndrome. However, as a mandated reporter, if he saw a minor with the subject minor's symptoms, he would have run a CT scan and reported it to child protective services and law enforcement. Dr. Gabaeff testified that he did not review mother's delivery records or the minor's birth records because he did not find them relevant to his findings. Dr. Gabaeff further testified that he did not read the police report generated for this case, interview the parents, or consult with an ophthalmologist -- although he did consult with Dr. Gootnick.
Mother testified that the minor was in the NICU following her premature birth for approximately 65 to 75 days and no one ever expressed concern about the size of the minor's head or its growth. Mother testified that when the minor went home from the NICU, father took time off work and they shared the responsibility of caring for the minor. Mother testified that petitioners were the minor's primary caretakers and the minor was generally only in their care. Mother testified that she did not shake the minor and insisted that she fell from the walker.
Mother testified that she stopped taking medication prescribed for her bipolar disorder with the pregnancy prior to Ab. C. and, because of her pregnancy with Am. C., had not restarted the medication. Mother testified that she did not believe the minor had a seizure upon arriving at the hospital; instead, she believed the minor vomited milk and choked. Mother explained that she was holding the minor at the time and father "stepped back and said, aren't you going to help her." Mother stated that nursing staff then came in and helped the minor.
Father testified that he never doubted the mother's story about what happened to the minor and believed mother would never hurt the minor. When Dr. Albin suggested that he find out what really happened to the minor, he became upset because he knew mother would never hurt the minor. Father testified that neither he nor mother were ever angry or frustrated with the minor. Like mother, father did not believe the minor had a seizure at the hospital. Instead, father believed the minor was "spitting up" as he had seen her do before, but it was "a little bit more" than he normally observed so he asked for help. Father also testified that he did not observe any postpartum depression in mother.
A new MRI of Ab. C. on May 10, 2017, showed no new brain bleeds, resolution of the prior bleeds, and no shearing. As of April 24, 2017, the retinal hemorrhages were almost gone.
On September 14, 2017, following a lengthy explanation of its findings and reasoning, the juvenile court found the allegations in the petition true and assumed jurisdiction over minor Ab. C. Jurisdiction as to minor Am. C. was continued.
IV
Disposition
The contested disposition hearing spanned numerous days beginning on March 27, 2018, and concluding on June 25, 2018. The parents, their therapists, and their evaluators were among the witnesses who testified.
In a December 13, 2017, psychological evaluation of mother, Dr. Sidney Nelson found that mother's lack of insight and unwillingness to acknowledge any responsibility for the minor's injuries prevented her from being open and honest in therapy and made it unlikely that she would benefit from any treatment to address the issue. Moreover, Nelson stated that because mother "did not report any stressors it would be very difficult for a therapist to know how to treat and how to develop a meaningful treatment plan." Nelson did not believe mother would benefit from therapy, as he was unaware of any type of therapy that could help a person who did not want treatment.
In a February 16, 2018, psychological evaluation provided for father, Dr. Blake Carmichael indicated that father recognized and did not deny the possibility of accidental causes for Ab. C.'s series of injuries. Carmichael reported that father truly believed mother had not intentionally inflicted injury. While changing father's conviction regarding mother's role in the minor's injuries was not essential for him to take steps to work with mother to prevent the occurrence of future injuries, father's denial could interfere with his ability to engage and be open and honest during treatment and this behavior could create a potential risk of harm to the minors.
Father testified at length about his relationship with mother and how he never saw her display any behaviors that caused him to have any concern that Ab. C. would be at risk in her care. He did not believe Ab. C. had suffered three nonaccidental injuries and maintained he was aware of only one accidental injury (the precipitating incident which brought the minor to the hospital). He did not believe mother to be a danger to the minor and did not believe mother abused her. He testified there would have to be eyewitness verification before he would believe mother intentionally injured the minor. When asked how he would prevent Ab. C. from further abuse or nonaccidental reinjury, father stated that his daughter had an accident, but going forward, he would do whatever was necessary and use resources the Agency might provide or whatever the case may be to protect his daughter.
Father had participated in therapy with Sybil Stafford and then Jon Page. Stafford testified positively about father, stating that he was very open to instruction and amenable to services. Page had worked with father since January 29, 2018, and completed 13 sessions. Page found father to be cooperative and willing to create a safety plan for the minors, but Page was unable to work on the treatment goals because father was steadfast in his position that the minor's injuries were accidental. Father further suggested the safety plan did not mean he was protecting the minors from mother because he did not acknowledge that mother injured the minor. Father believed the walker caused the minor's injuries and, as a result, was being more diligent about inspecting equipment the minor might use. Father was unable to identify any significant stressors that could have contributed to the minor's injuries. Page was unable to work with father on preventing future abuse because father had not gained insight regarding the minor's past abuse.
Mother testified that she did not take responsibility for the nonaccidental injuries that Ab. C. suffered while in her care. She understood that something could have happened to the minor, whether it was her or her husband. However, she said the probability of father abusing the minor was "pretty much not" as he did not exhibit any kind of abuse and was a calm and humble man. Mother testified that she was unaware of how the injury occurred and stated that there was a possibility that she injured the minor because she was an inexperienced parent. Later in the hearing, mother also testified that she now believed the minor's injuries were nonaccidental, but maintained she did not inflict the injuries and alluded to the possibility of an unknown assailant when she may have stepped out of the room, such as a family member or friend who had come to visit.
Since the institution of these proceedings, mother has had several therapists. Mother's current therapist, Diana Holt, testified to having seven counseling sessions with mother, who indicated to her she did not intentionally harm the minor. Holt testified that mother implied the minor's injuries occurred because she was medically fragile. Mother indicated she might have been too rough handling a fragile baby. Mother was unable to identify any significant stressors that could have contributed to the minor's abuse. Holt testified that, because mother had not gained any insight into her responsibility for the minor's injuries, it was impossible to treat mother in accordance with the treatment plan.
In making its disposition orders, the juvenile court stated the nature and extent of Ab. C.'s injuries were unmistakable and remarkable -- there were multiple injuries over an extended period of time, occurring on at least three separate occasions, and all of which occurred after the minor was released from the NICU and before the minor was admitted to the hospital on January 31, 2017. There was no evidence the injuries were birth related and the parents had offered no plausible explanation for them. All of the injuries occurred while the minor was under the care of the parents and there was no evidence to suggest that any other individual had access to the minor on such a basis so as to have inflicted the minor's injuries.
The court expressed disbelief regarding parents' testimony that neither of them had undergone any unusual stress -- particularly considering father's long work hours and mother being the primary caregiver for the premature minor while pregnant with another child. The court also noted mother suffers from bipolar disorder but was not taking medication; and further noted that mother's physician had indicated that "full remission" meant "no reported episodes" within a two-month period.
The court found that "[d]espite overwhelming evidence of injuries to the minor while in the care of the parents, each has denied any abuse or witnessing any abuse by the other. The parents have not explained the nature of the injuries nor have they been open and honest in discussing the non[-]accidental findings made by the Court." Based on those facts, the court found clear and convincing evidence that minor's severe injuries "resulted from the actions of both parents." With regard to the "perpetrator of the abuse," the court found "both parents share the responsibility for these injuries." "Both the mother and the father have steadfastly denied harming the child and do not believe the other parent did so either. There is no other explanation for these injuries and the non[-]accidental nature of these injuries has never been fully explained properly by the parents. Despite the overwhelming evidence that [the minor] was severely injured on more than one occasion and that either mother or father had inflicted the injuries, the mother and father are unwilling to acknowledge any source for [the minor's] injuries. Since mother and father know which of the two of them must have inflicted the injuries, their refusal amounts to a willful denial of the injuries themselves, and, therefore, there is no reason to believe further services will prevent them from inflicting or ignoring the infliction of similar injuries in the future."
Finding the unformulated safety plan suggestion of finding a 24-hour monitor, seven days a week, to be "unrealistic" and impractical, the court found clear and convincing evidence that removal of the minors from parental custody to be necessary to protect their physical safety. The court then denied reunification services under section 361.5, subdivision (b)(5), (6) and (7), and set a section 366.26 hearing.
DISCUSSION
I
Substantial Evidence For Jurisdiction
Petitioners contend the jurisdictional findings for Ab. C. under section 300, subdivisions (a), (b) and (e) are not supported by substantial evidence. We disagree.
Section 300 provides for jurisdiction if: "(e) 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." (§ 300, subd. (e); see In re Joshua H. (1993) 13 Cal.App.4th 1718, 1726-1727.) The appropriate agency must establish the following elements in order to justify a section 300, subdivision (e) jurisdictional finding: (1) there is a minor under the age of five; (2) who has suffered severe physical abuse as defined in section 300, subdivision (e); (3) by a parent or any person known to the parent if the parent knew or reasonably should have known that the person was physically abusing the minor. (In re Joshua H., at p. 1727.) The Agency must prove by a preponderance of the evidence that the child is a person described by section 300. (§ 355, subd. (a); In re A.S. (2011) 202 Cal.App.4th 237, 244.)
"[W]e use the substantial evidence standard of review, where we determine whether evidence that is of reasonable, credible and solid value supports the dependency court's findings. We do not reweigh the evidence, nor do we consider matters of credibility." (In re E. H. (2003) 108 Cal.App.4th 659, 669; accord In re A.S., supra, 202 Cal.App.4th at p. 244.)
Mother contends the evidence was insufficient to establish that mother either caused the minor's injuries or knew or should have known that the minor was being abused prior to the precipitating incident. She argues, specifically, that the court was required to find either: (1) she was the abuser, or (2) she should have known of prior abuse and willfully or negligently failed to protect the minor. She argues that because the juvenile court could not determine which parent was the abuser, and there was insufficient evidence that the minor exhibited symptoms to put someone on notice of prior ongoing abuse, it could not make either requisite finding. Similarly, father argues that there was insufficient evidence to establish that he was the abuser, since mother was the primary caregiver, or that he knew or should have known mother was abusing the minor. Thus, he argues, the jurisdictional findings as to him are not supported by the evidence.
While both parents emphasize the lack of evidence that the minor's earlier injuries resulted in noticeable symptoms, so as to put a parent on notice that she was being abused, and cite caselaw wherein jurisdiction was not found because the parents were not on notice that a third party was abusing their child, they fail to acknowledge that, here, there was no third party to blame.
For jurisdictional purposes, it is irrelevant which parent created the circumstances that establish jurisdiction. (In re I.A. (2011) 201 Cal.App.4th 1484, 1492.) " '[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 [the minor] within one of the statutory definitions of a dependent. [Citation.] This accords with the purpose of a dependency proceeding, which is to protect the child, rather than prosecute the parent.' " (In re Alexis H. (2005) 132 Cal.App.4th 11, 16.) Jurisdiction is taken over the child, not over or "as to" the parent(s). (See §§ 300, 355, subd. (a) [at jurisdiction hearing, court considers whether minor is a person described by section 300 and considers evidence "relevant to the circumstances or acts that are alleged to bring the minor within the jurisdiction of the juvenile court"].)
For this reason, there is only one simultaneous adjudication of jurisdiction and one simultaneous disposition. These orders are child-centric, not parent-centric, and cannot be "split" as to each parent. (See §§ 355, subd. (a), 358 [proper disposition is made "of the child"]; see also § 355.1.)
In order for Ab. C. to come within the court's jurisdiction under section 300, subdivision (e), the court needed only to find she is under the age of five years and has suffered severe physical abuse by a parent. For the purposes of this subdivision, "severe physical abuse" means any of the following: "any single act of abuse which causes physical trauma of sufficient severity that, if left untreated, would cause permanent physical disfigurement, permanent physical disability, or death; . . . or more than one act of physical abuse, each of which causes bleeding, deep bruising, significant external or internal swelling, bone fracture, or unconsciousness; or the willful, prolonged failure to provide adequate food. . . ." (§ 300, subd. (e).) The evidence here was more than sufficient for the court to make these findings.
The expert testimony established that the eight-month-old minor had suffered severe physical abuse, i.e., shaking causing retinal hemorrhaging, seizure, and multiple brain bleeds, and severe swelling of her head, and that she endured this abuse on more than one occasion. The evidence also established that mother and father were the only caretakers for the minor. Mother was the primary caretaker but father helped when he was home. No one else lived in the home or provided care for the minor. Indeed, the court noted parents' statements that no one, other than parents, was a caregiver for the minor. Thus, the evidence supports the finding that the minor's injuries occurred at the hands of one or both of the parents. The juvenile court was not required to determine which parent shook the minor on which occasion to take jurisdiction over the minor.
Because the evidence supports jurisdiction over Ab. C. under section 300, subdivision (e), we need not determine whether it also supports jurisdiction under the other subdivisions. (In re Andy G. (2010) 183 Cal.App.4th 1405, 1415, fn. 6; In re Tracy Z. (1987) 195 Cal.App.3d 107, 112-113.) Likewise, because the evidence supports jurisdiction over Ab. C. under section 300, subdivision (e), it also supports jurisdiction over Am. C. under section 300, subdivision (j) (abuse of a sibling).
II
Substantial Evidence For Removal Order
Next, petitioners contend the disposition order removing the minor from their custody is not supported by substantial evidence. We disagree.
Once the court has found that the minor is a person described by section 300, the minor may be removed from the parents' physical custody if the court finds clear and convincing evidence that there is or would be a substantial danger to the minor's physical health, safety, protection, or physical or emotional well-being if the minor were returned home, and there are no reasonable means by which the minor can be protected without removal. (§ 361, subd. (c).) "The jurisdictional findings are prima facie evidence that the child cannot safely remain in the home. (§ 361, subd. (c)(1).)" (In re Cole C. (2009) 174 Cal.App.4th 900, 917.) Although the juvenile court makes removal findings by the elevated standard of clear and convincing evidence, the substantial evidence test remains the standard of review on appeal. (In re Mark L. (2001) 94 Cal.App.4th 573, 580-581.)
In father's view, he should have retained custody of the minor because the evidence was stronger that it was mother, not he, who injured the minor. Father reasons that since the evidence was stronger that mother was the perpetrator of the abuse, and was insufficient to put a nonoffender on notice that the minor was being abused, the minor should have been placed with him. His reasoning is flawed.
As the juvenile court found, the evidence was insufficient to determine whether mother, father, or both parents had inflicted the minor's injuries. Although mother was the primary caregiver, and was alone with the minor just prior to bringing her to the hospital on January 31, 2017, father had regular access to the minor and was with the minor only hours before she was brought to the hospital. Father was working long hours with few breaks for sleep and would likely be quite tired when around the minor. He had regular and unsupervised access to the minor during the time frame in which she sustained three instances of abuse. Thus, father was not found to be a nonoffending parent who may otherwise be considered for custody.
We note that, even if the court had found it more likely that mother inflicted the injuries, placement with father would not sufficiently protect the minors. Disposition took place 17 months after the precipitating incident. During those months, father heard the extensive expert testimony establishing that the minor's injuries were nonaccidental. He participated in services and therapy. But while father's therapist testified he had made progress in the areas of grief and loss, father continued to insist that neither he nor mother was responsible for the minor's injuries. Indeed, father's therapist categorized the current status regarding nonaccidental injuries as "at an impasse" because father would not acknowledge the intentional nature of the minor's injuries. The juvenile court could reasonably find that, despite father's statements that he would make arrangements for mother to live elsewhere and he would not permit mother to be alone with the minors, father's refusal to acknowledge the severe physical abuse could prevent him following a realistic safety plan and protecting the minors from further abuse.
For the same reason, placement with mother clearly would not be sufficient to protect the minor. Although mother emphasizes that her bipolar disorder is in remission, and she had participated in and completed a parenting class and several months of individual counseling, mother still denied either she or father had intentionally inflicted the injuries on the minor. After at least five months of therapy, consisting of approximately 30 sessions, and hearing the overwhelming expert testimony, the most progress mother had made was "coming to grips" with the realization that "something" could have happened. Mother maintained, however, that whatever might have happened was accidental.
Finally, mother suggests that parents' agreement to a safety plan remediated the need for removal. The safety plan presented to the court, however, was one created to address two safety issues: "inadequate supervision and insufficient inspection of children used equipment." These were the safety issues identified by the parents; the ones the parents indicated would be the cause of injury and what brought about Ab. C.'s injuries to date. These were not, however, the safety issues that needed to be addressed in order to protect the minors from parents' nonaccidental abuse. Additionally, even though there was testimony that the parents agreed, in connection with the above-mentioned safety plan, that neither parent would ever be alone with either minor, it does not appear there was a plan in place to implement such a restrictive plan. Mother simply stated she would have somebody live with them, or bring in another family member or friend to assist her and help her take care of the children. She identified family and community support members who had agreed to assist them with child care and monitoring, but no arrangements for live-in or around-the-clock support and monitoring had been secured. Thus, even if the minors could be sufficiently protected with such a plan, one had not been developed.
We reject any contention that a camera monitoring system, as suggested by the parents, could protect the minors from abuse. Such a system would serve only to capture evidence of which parent was abusing the minors after the abuse occurred yet again.
In sum, there is overwhelming evidence that Ab. C. was severely physically abused on more than one occasion and that either mother or father inflicted the injuries. The juvenile court could reasonably conclude that the fact neither parent will accept responsibility for Ab. C.'s nonaccidental injuries or believe the other parent inflicted the abuse, despite the overwhelming evidence and 17 months of services, renders Ab. C., and her infant sibling Am. C., unsafe in the care of either parent. The removal order is supported by substantial evidence.
III
Denial Of Reunification Services
Finally, petitioners contend there is insufficient evidence to support the denial of reunification services pursuant to section 361.5, subdivision (b)(5) and (b)(6) and therefore, (b)(7) as well. As an initial matter, we accept parents' assertion that there is insufficient evidence in this case to establish that a nonoffending individual living in the home would know or should know that the minor was being abused prior to the precipitating incident. Indeed, the juvenile court did not so find. Instead, it appears the court attributed fault to both parents on the basis that one (or both) had inflicted the nonaccidental injuries and the other, by default, knew or should know at this point (by process of elimination of him/herself) which parent committed the abuse. But while the court attributed "fault" to both parents on this basis, it did not find both parents actually perpetrated the injuries on the minor. Both parents (but no one else) had unrestricted access to the minor during the period of time in which the minor sustained at least three separate injuries. It is because the court could not make the determination as to which parent perpetrated the injuries on the minor that we must reluctantly agree with petitioners neither may be "bypassed" for services.
As a general rule, reunification services are offered to parents whose children are removed from their custody, in an effort to eliminate the conditions leading to loss of custody and to facilitate reunification of parent and child. This furthers the goal of preservation of family, whenever possible. (Raymond C. v. Superior Court (1997) 55 Cal.App.4th 159, 163.) But recognizing that it may be fruitless to provide reunification services, the Legislature has enacted statutory exceptions to providing reunification services under section 361.5, also known as reunification " 'bypass' " provisions. (§ 361.5, subd. (b)(1)-(17); Tyrone W. v. Superior Court (2007) 151 Cal.App.4th 839, 845-846.)
Section 361.5, subdivision (b) allows the juvenile court to deny reunification services if it finds clear and convincing evidence that one of several enumerated conditions exists. Once it is determined that an individual falls within the provisions of section 361.5, subdivision (b), the general rule favoring reunification is replaced by a legislative assumption that offering services would be an unwise use of governmental resources. (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478.) We review the juvenile court's order denying reunification services under section 361.5, subdivision (b) for substantial evidence. (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96.)
Here, each parent argues that there is insufficient evidence that they, not the other parent, inflicted minor Ab. C.'s injuries. And because there was also insufficient evidence that the no perpetrator should have known the minor was being abused, they argue neither can be "bypassed" for reunification services. They are correct.
A
Section 361.5, Subdivision (b)(5)
Section 361.5, subdivision (b)(5), permits the denial of reunification services when 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." The scope of the phrase "the conduct of that parent" includes the parent who knows or reasonably should have known that the other parent was physically mistreating the child, as well as to the parent who personally abuses his or her child. (In re Joshua H., supra, 13 Cal.App.4th at p. 1732, fn. 4.) It does not, however, include a parent who is not the actual abuser and who did not know or have reason to know the other parent was abusing the child.
Here, although the parents know who abused Ab. C., the juvenile court was unable to determine which parent inflicted Ab. C.'s injuries. Because the evidence was also insufficient to establish that the nonperpetrator knew or should have known the other parent was abusing the minor prior to the precipitating incident, neither parent could be "bypassed" for services under section 361.5, subdivision (b)(5).
B
Section 361.5, Subdivision (b)(6)
Subdivision (b)(6) of section 361.5, applies to "bypass" a parent for services when "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, [or] a sibling . . . by a parent or guardian . . . 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)(A).) Infliction of severe physical harm includes, but is not limited to, "deliberate and serious injury inflicted to or on . . . the body of a . . . half sibling of the child by an act or omission of the parent . . . ." (§ 361.5, subd. (b)(6)(C).)
"By its express terms, subdivision (b)(6) applies to the parent who inflicted the severe physical harm to the minor." (In re Kenneth M. (2004) 123 Cal.App.4th 16, 21; see also Tyrone W. v. Superior Court, supra, 151 Cal.App.4th at pp. 848-851.) Thus, because the juvenile court was unable to identify which parent was the perpetrator, denial of services cannot be predicated on this subdivision.
C
Section 361.5, Subdivision (b)(7)
Section 361.5, subdivision (b)(7) provides for the "bypass" of reunification services when a parent is not receiving reunification services for a sibling under subdivision (b)(5) or (b)(6). It was under this section that reunification services were denied as to Am. C. Because it was error to deny parents reunification services as to Ab. C. under either subdivision (b)(5) or (b)(6), subdivision (b)(7) could not be used to deny services as to Am. C.
DISPOSITION
Let a peremptory writ of mandate issue directing the juvenile court to vacate its orders "bypassing" petitioners father and mother for reunification services, schedule a section 366.26 hearing, and enter new orders providing reunification services. This decision is final forthwith as to this court. (Rule 8.490(b).) In light of this disposition and having served its purpose, the stay of the section 366.26 hearing previously issued by this court on October 11, 2018, is vacated upon finality of this opinion.
/s/_________
Robie, Acting P.J. We concur: /s/_________
Butz J. /s/_________
Mauro, J.