Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County, Super. Ct. No. CK69568 Sherri S. Sobel, Referee.
Joseph D. Mackenzie, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Kirstin J. Andreasen, Associate County Counsel, for Plaintiff and Respondent.
J.O. (father) appeals an order denying family reunification services with respect to his infant son, C.O. We reject father’s claims of error and affirm the order.
KLEIN, P. J.
FACTS AND PROCEDURAL BACKGROUND
1. Detention of C.O. and A.R.
A detention report indicated that on August 13, 2007, at 5:35 p.m., mother brought nearly four-month-old C.O. to the Pomona Valley Hospital. Dr. Geoffrey Pableo immediately noticed a hematoma on the left side of the child’s scalp and found a superficial abrasion to the front of the child’s nose. The child also had an acute fractured right arm and mother could not explain how the injury occurred. Dr. Pableo found the child also had long bone fractures of the left arm that were old and in various stages of healing that mother could not explain. Mother stated the scalp hematoma may have occurred one and a half or two weeks earlier when she dropped the child during a bath. Dr. Pableo opined the hematoma to the scalp and the broken arm had occurred within the last 72 hours and were consistent with trauma caused by aggressive intent such as someone grabbing, twisting, pulling or dropping the child perhaps out of frustration, anger or even rough play. The hospital alerted the Lavern Police Department. C.O.’s medical records revealed that on the morning of August 14, 2007, the child cried inconsolably at abnormally high pitch and the child appeared to be in pain with movement.
Mother told the social worker she was a single parent who lived with her two children, A.R. who was nearly three years old, and C.O. Mother denied the use of corporal punishment and denied domestic violence between herself and father, with whom she had frequent interaction. Mother indicated father normally watched C.O. while mother was at work. Mother took the child to father’s home on Sunday, August 12. When mother picked the child up on Monday, August 13, father said the child had injured his right arm. Mother took the child to the hospital where she was informed of the multiple injuries to her son. Mother could not recall any incident that could have caused the child’s injuries.
Father denied that he was an abusive parent and stated he would never intentionally hurt C.O. Father resides in the home of paternal grandmother and there are no other children in the household. Father has three other children who reside with their mothers. Father stated he watched C.O. on August 6, 7 and 8 (Monday, Tuesday and Wednesday) from 6:30 a.m. until 5:30 p.m. Mother’s friend watched the child on Thursday, August 9, and mother cared for the child on Friday, August 10. On Wednesday, August 8, father dropped the child on his head while bathing the child. Father informed mother of the injury and the child was not taken to the hospital for the bump to his head. Father, mother and the two children attended a Baptism party on Saturday, August 11 from 4:00 to 11:00 p.m. Father spent that night at mother’s apartment. Mother took father and C.O. to paternal grandmother’s home on Sunday, August 12. C.O. stayed with father until the next day. When mother returned to get the child, father told mother that C.O.’s arm appeared injured. Father indicated he was unaware of any other incidents that could have caused injury to the child and he had no idea how the child’s right arm was injured. Father denied he handled the child in an abusive manner and did not observe anyone drop the child or play roughly with him.
A children’s social worker (CSW) found A.R. was healthy and she appeared bonded to mother and maternal grandmother. The Department of Children and Family Services (DCFS) detained A.R. and placed her in foster care finding the failure to protect C.O. demonstrated that his sibling, A.R., also was at risk of harm. C.O. remained hospitalized.
On August 16, 2007, DCFS filed a dependency petition alleging C.O. and A.R. were dependent children within the meaning of Welfare and Institutions Code section 300. At a detention hearing conducted that same day, mother appeared and was appointed counsel. Father received notice of the hearing and indicated he would be present. At the hearing, the juvenile court noted father had been present in the courtroom earlier in the day but he left the courthouse before the case was called. The juvenile court did not appoint counsel for father but found he was C.O.’s presumed father.
Subsequent unspecified statutory references are to the Welfare and Institutions Code.
2. Proceedings in advance of the jurisdiction hearing.
Medical records filed with the juvenile court on September 6, 2007, included radiographic reports that showed C.O. had numerous fractures in various stages of healing including: (1) a subacute (nondisplaced) midshaft fracture of the right humerus; (2) a subacute midshaft fracture of the proximal right ulna; (3) an old healed midshaft fracture of the left humerus; (4) a distal metaphyseal fracture of the right femur; (5) a distal metaphyseal fracture of the left femur; (6) subacute healing fractures of the proximal tibia metaphyses bilaterally; (7) a suspected fracture of the distal metaphyses of the right tibia; (8) a suspected fracture of the distal metaphyses of the left tibia; (9) an acute left parietal skull fracture with a scalp hematoma; and, (10) healing fractures of the sixth and seventh left ribs
On August 22, 2007, the juvenile court ordered the children released to maternal grandmother.
The jurisdiction report included the statement of Dr. Daphne Wong who indicated C.O. may have a metabolic disease that might place him at higher risk for fractures. The doctor reported, “This is not a straightforward case. From the lab results we have thus far, it appears that [C.O.] does likely have a form of rickets which can make his bones more [susceptible to] fractures. The fractures or bone changes usually seen with rickets are the changes in the metaphyses of the long bones.” The doctor was unaware of any history of trauma that might account for the injuries. The doctor noted that, although C.O.’s bones might be fragile, a spontaneous midshaft fracture without any trauma would be unusual. In addition, C.O. had a skull fracture, which was not associated with rickets. Dr. Wong concluded that although C.O. apparently has a form of rickets, this did not explain his injuries. Dr. Wong also noted C.O. suffered no new fractures after he was detained.
DCFS reported father’s criminal history included a conviction of misdemeanor battery committed on a spouse and vandalism in April of 2000 (Pen. Code, §§ 243, subd. (e)(1), 594), and a conviction of lewd act upon a child under the age of 14 years in July of 2000 (Pen. Code, § 288, subd. (a)). As a result of the latter conviction, father was required to register as a sex offender. DCFS also reported that, on at least one occasion, father struck mother during a physical altercation.
Mother visited the children almost daily at the home of maternal grandmother.
On September 6, 2007, counsel was appointed to represent father who was in custody, apparently for violation of probation.
The police report was filed with the juvenile court on October 16, 2007. It reflected that mother told the police she stayed at home with C.O. for several weeks after his birth and that father lived with them during that time. When mother returned to work, father cared for C.O. during the day. In early August of 2007, mother and father argued and, as a result, father moved to the home of paternal grandmother. After August 6, 2007, father cared for C.O. at paternal grandmother’s home while mother worked. On August 8, 2007, mother noticed C.O. had a soft spot on the left side of his head. Father told mother the child slipped during a bath and hit his head on the sink. The child’s head was a little red but nothing else was wrong. On August 11, 2007, mother, father and the children attended a family party at which various family members held C.O. Mother noticed a scratch on the child’s nose. Father said he accidentally scratched the child with his fingernail. Father spent the night at mother’s apartment on August 11. On August 12, mother took father and C.O. to paternal grandmother’s home. On the morning of Monday, August 13, mother took A.R. to father’s home. Father told mother C.O.’s arm was injured. Mother saw the child was asleep and seemed fine. Mother went to work and left both children in father’s care. While mother was at work, she made an appointment for C.O. to see his pediatrician. When mother was in the process of taking C.O. home, his arm became tangled in the seat belt and he “screamed so loudly she knew immediately something was wrong” and took the child to the hospital.
Father told the police he did not know how C.O.’s arm was injured. Father said paternal grandmother pointed the injury out to him on Sunday, August 12. Paternal grandmother also noted the bump on the child’s head. Father stated that when C.O. cried, paternal grandmother would take the child to calm him. Father admitted paternal grandmother was not happy that father had moved to her home and paternal grandmother did not like mother. When the interviewing officer indicated he knew father had been abused by paternal grandmother as a child, father said he did not think paternal grandmother would hurt C.O. or take her anger out on C.O. Also, paternal grandmother was not around C.O. until early August when father moved into her home.
Paternal grandmother told the police she was not happy father had moved to her home but she did not want him on the streets. She stated A.R. played rough with C.O. and, on one occasion, struck him with a doll. Paternal grandmother considered taking the child to the hospital on Sunday, August 12, 2007, but decided not to interfere in mother’s business. Paternal grandmother denied abusing her children.
A progress report prepared for a hearing on October 16, 2007, indicated that, according to maternal grandmother, father visited C.O. for two hours on September 19 and October 13, 2007, and for 20 minutes on October 6, 2007. Although father no longer was in custody, the social worker had been unable to contact him. Mother visited the children on a daily basis and attended individual counseling and parenting classes.
Father appeared at the October 16, 2007 hearing. The juvenile court directed DCFS to provide mother and father family reunification services. The juvenile court also signed an order appointing an expert to examine the parents. (Evid. Code, § 730.)
On December 18, 2007, DCFS filed a last-minute information form with an attached radiographic report which indicated this is a typical case of child abuse. The form also noted Dr. Daniels informed the social worker on December 4, 2007, that C.O. does not have a bone disease.
Appointments for psychological evaluation of mother and father were set for November 20 and December 11, 2007, respectively.
3. The jurisdiction hearing.
On January 8, 14, 15, 16 and 17, 2008, the juvenile court conducted a contested jurisdiction hearing. The CSW testified DCFS was recommending no family reunification services for either parent based on the opinion of the medical professionals that C.O.’s injuries were the result of nonaccidental trauma. However, the CSW indicated that, if mother continued to participate in the case plan, she could reunify with the children. In recommending no family reunification services for mother, the social worker considered the possibility mother and father remained together as a couple. The social worker indicated father had never taken the initiative to contact DCFS but he communicated with the social worker when the social worker contacted him.
At the conclusion of the testimony of the social worker, the juvenile court indicated it had referred mother and father to parenting class, anger management counseling and individual counseling at the detention hearing on August 16, 2007. The juvenile court suggested that, when the parents present their case, they should be able to report those programs had been completed “because their six months will be over by the time we’re finished with this case.”
Daphne Wong, M.D., testified that extensive testing had revealed C.O. did not have rickets or bone disease. Further, even if the child had rickets, his injuries were not consistent with rickets. Dr. Wong testified that, in her opinion, C.O. was the victim of nonaccidental trauma. On cross examination, Dr. Wong admitted C.O. did not have retinal hemorrhaging, raccoon eyes or battle signs and these can be indications of abuse.
After hearing argument, the juvenile court noted DCFS had sustained its burden to produce competent professional evidence that C.O.’s injuries would not ordinarily be sustained except as the result of the unreasonable or neglectful acts or omissions of his parents, citing section 355.1. Because the parents had not discredited Dr. Wong, whose testimony the juvenile court had found to be credible, the issue became whether the parents knew or should have known someone was injuring the child. The juvenile court indicated it could make that finding based on mother’s admission she knew paternal grandmother did not want father to return to her home, did not want C.O. in her home and did not like mother. The juvenile court indicated it was unreasonable for the parents to allow the child to be handled by multiple individuals without being responsible for the child’s serious injuries. The juvenile court rejected the parents’ argument that the absence of retinal hemorrhaging and raccoon eyes suggested the child had not been abused, noting these are symptoms of shaken baby syndrome and the medical experts in this case were of the opinion the injuries occurred by twisting, turning or grabbing.
Section 355.1, subdivision (a) provides: “Where the court finds, based upon competent professional evidence, that an injury, injuries, or detrimental condition sustained by a minor is of a nature as would ordinarily not be sustained except as the result of the unreasonable or neglectful acts or omissions of either parent, the guardian, or other person who has the care or custody of the minor, that finding shall be prima facie evidence that the minor is a person described by subdivision (a), (b), or (d) of Section 300.”
The juvenile court dismissed the allegation under section 300, subdivision (a), indicating it was unwilling to say either parent was the perpetrator of the abuse. However, the juvenile court sustained the allegations under section 300, subdivisions (b), (e) and (j).
Jurisdiction under section 300, subdivision (a), arises where the “child has suffered, or there is a substantial risk that the child will suffer, serious physical harm inflicted nonaccidentally upon the child by the child’s parent or guardian. . . .”
The juvenile court noted DCFS had shown mother to have a loving, parental relationship with A.R. Further, A.R. had no history of abuse or illness. Therefore, it was likely that reunification with mother would be successful and the failure to provide mother reunification services would be detrimental to A.R. The juvenile court noted that, although DCFS had recommended no family reunification services for mother, DCFS “never bothers to say why. They don’t read what they’re required to do under the law, which is to tell me whether a parent can rehabilitate or not, but I will take [that] as a given [based on] the fact that there’s a healthy older child . . . .”
Where jurisdiction is based on section 300, subdivision (e), section 361.5, subdivision (c) prohibits the juvenile court from ordering reunification services 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. The social worker shall investigate the circumstances leading to the removal of the child and advise the court whether there are circumstances that indicate that reunification is likely to be successful or unsuccessful and whether failure to order reunification is likely to be detrimental to the child.” (§ 361.5, subd. (c).)
The juvenile court ordered family reunification services for mother and continued the matter to January 23, 2008, to address whether services would be provided to father. The juvenile court noted that, even if it denied father services, father nonetheless would be able “to get services on his own to petition this court for more contact with his child. It is not a termination of his parental rights by any means. [¶] . . . It just means we’re not paying for anything. That’s all it means.”
The juvenile court declared the children dependents and ordered them removed from the custody of their parents. The juvenile court ordered mother to participate in anger management class, parenting class and individual counseling. The juvenile court noted mother was “pretty close to being finished with both [classes].”
4. Father’s contested disposition hearing.
On January 18, 2007, DCFS submitted a report that indicated father failed to appear for scheduled appointments with the CSW on September 12 and December 27, 2007. Father also failed to appear for the psychological evaluation by the expert appointed under Evidence Code section 730. Father enrolled in a parenting class on November 29, 2007, and an anger management class on December 5, 2007. However, father had not visited the child recently and he had not contacted the CSW to arrange for visitation or to report a problem with visitation.
On January 23, 2007, the juvenile court conducted the contested hearing.
Glenda Suggs, the CSW assigned to this case, testified she has spoken to father on one occasion on December 26, 2007. Suggs made an appointment with father to talk about the case plan. Father did not indicate he was having difficulty visiting C.O. and Suggs is not aware of any visitation problems. Suggs suggested to maternal grandmother that visits take place at the DCFS office to allow Suggs to visit with the parents after the visit with the child. Maternal grandmother told father to call Suggs to arrange a visitation schedule but father failed to call.
Father testified he lived with mother and C.O. for the first three months of the child’s life. After father moved from mother’s home, father saw C.O. every other day and took the child to doctor’s appointments. Father is not currently visiting C.O. because, starting in mid-December of 2007, maternal grandmother made excuses as to why father could not visit. Before that time, father visited about twice a week at maternal grandmother’s home for an hour and sometimes 20 minutes. Father complained to CSWs Gains and Suggs that he was having trouble visiting C.O. Suggs told father to come in for an interview and they would discuss the visitation problem. Father has attended seven parenting classes and six anger management classes. Father did not enroll in classes sooner because it took some time to find free classes. Father enrolled in classes after speaking to mother.
The juvenile court denied father family reunification services, noting it was precluded from providing services unless it could find services are likely to prevent reabuse or that failure to provide services would be detrimental to the child because the child is closely and positively attached to the parent. (§ 361.5, subd. (c).) The juvenile court noted C.O. was four months of age when he was removed from mother’s care and “[h]e was battered and broken.” The juvenile court indicated it did not believe the evidence showed the child was closely and positively attached to father. Further, although the case had been continued numerous times for medical evaluations of C.O., father failed to start parenting class or anger management class until recently and he failed to visit regularly. The juvenile court noted father blamed DCFS and maternal grandmother for the failure to visit but it was father’s responsibility, based on the seriousness of the allegations, to ensure that the juvenile court knew father was “100 percent involved in making [him]self the kind of parent that this court would be able to find would be entitled to have his child back.” Addressing father directly, the juvenile court stated: “You didn’t do any of that. [¶] You sat out and you waited, and your waiting did you in. The baby was just a baby when you left. The relationship is with mom, not with you. You are a visitor. . . . [¶] He is nine months old now. You haven’t lived with him for five months and you haven’t seen him since Christmas. Whoever’s fault it is, it was your responsibility to do what you needed to do and you haven’t done it.”
The juvenile court then assured father that denial of family reunification services was “not the end of the story.” The juvenile court indicated father’s visitation would continue and told father to “do what you need to do on your own.” The juvenile court noted that, after father completed the programs he currently was attending, father’s attorney could file a petition for modification under section 388. At that time, the juvenile court would address the issue again. The juvenile court told father the order denying services only meant that “we are not paying for” the programs father attended.
The juvenile court directed DCFS to facilitate two visits per week for father and to determine whether paternal grandmother was interested in visitation. The juvenile court noted it was not relieving father’s attorney and again suggested the denial of family reunification services meant only that DCFS would not pay for the classes father was attending.
CONTENTIONS
Father contends the juvenile court applied section 361.5 in a disparate manner with markedly different consequences for each parent and the juvenile court abused its discretion in denying family reunification services despite its finding father was not a danger to C.O. and without informing father of the six month limit on family reunification services. Father further contends the juvenile court improperly proceeded to denial of family reunification services without the mandatory investigation and advisement from the social worker required by section 361.5, subdivision (c).
DISCUSSION
1. General principles.
“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 facilitate reunification of parent and child. . . . Nevertheless, as evidenced by section 361.5, subdivision (b), the Legislature recognizes that it may be fruitless to provide reunification services under certain circumstances. [Citation.]” (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478.) Subdivision (b) of section 361.5 allows the juvenile court to deny reunification services to a parent when the court finds, by clear and convincing evidence, the presence of one of 15 exceptions. “Once it is determined one of the situations outlined in subdivision (b) applies, the general rule favoring reunification is replaced by a legislative assumption that offering services would be an unwise use of governmental resources. [Citation.]” (In re Baby Boy H., supra, at p. 478.)
Where the juvenile court sustains a dependency petition under section 300, subdivision (e), it must not order services unless it finds, “based on competent testimony, those services are likely to prevent reabuse . . . .” (§ 361.5, subd. (c); Raymond C. v. Superior Court (1997) 55 Cal.App.4th 159, 163.)
We review an order denying reunification services under section 361.5, subdivision (b) for substantial evidence. (Amber K. v. Superior Court (2006) 146 Cal.App.4th 553, 560; Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96; In re Harmony B. (2005) 125 Cal.App.4th 831, 839.)
2. The juvenile court did not apply section 361.5 in a disparate manner and did not deny services based on financial considerations.
Father argues his circumstances and mother’s were “virtually identical” in that each acknowledged accidentally dropping the child while bathing him. Further, there was no evidence either parent caused injury to the child or that either parent knew who, how, where or when the child was injured. Father notes the child was not in the sole care and custody of either parent and, on Sunday, August 12, 2007, the child attended a family function at which a significant number of people handled the child. Also, paternal grandmother was alone with the child for extended periods of time, including the day she reported the child’s injury.
Notwithstanding these similarities, the juvenile court applied the law in distinctly different and inherently unequal ways with the result that mother received family reunification services but father did not. Father contends that in so doing, the juvenile court misapplied the law.
Father notes the juvenile court repeatedly advised father the denial of family reunification services meant only that DCFS would not pay for father’s programs and that father could file a petition under section 388 after father had completed the case plan at his own expense. Father argues the juvenile court’s stated financial concerns were not relevant or permissible considerations in the denial of family reunification services.
Father’s arguments are not persuasive. Contrary to father’s assertion, father and mother were not similarly situated. Father was a registered sex offender based on a conviction of committing a lewd act upon a child in 2000. Also, father was convicted of battery on a spouse earlier that same year. Additionally, on at least one occasion, father struck mother during an incident of domestic violence. Further, C.O. was in father’s care at the time he suffered the injuries that brought him to the attention of DCFS. Although father was aware of the injuries, he failed to seek medical attention for the child and he did not attempt to determine how the injuries might have been caused. These considerations rendered father’s situation distinctly different from mother’s situation.
Mother’s situation also differed from father’s in that denial of family reunification services to mother would have been detrimental to A.R. who was 3 years of age at the time she was removed from mother’s care. DCFS reported A.R. appeared bonded to mother and the child had no injuries or signs of abuse. Further, mother visited C.O. on a near daily basis. The CSW testified that, if mother continued to participate in the case plan, mother was likely to reunify with C.O. Father, on the other hand, rarely visited, he failed to contact the CSW to arrange visitation and there was no evidence that C.O. and father were bonded.
Finally, although the juvenile court made frequent references to the financial impact of its order denying family reunification services, nothing in the record suggests the juvenile court based the denial of services on the expense DCFS would incur in providing the services. Rather, the juvenile court made these remarks to reassure father that, notwithstanding the denial of family reunification services, father could maintain visitation with C.O. and could complete the programs at his own expense and thereafter petition for modification of the juvenile court’s order under section 388.
In sum, the record does not support father’s claim the juvenile court misapplied section 361.5.
3. The denial of family reunification services did not constitute an abuse of the juvenile court’s discretion.
Father contends that, as C.O.’s presumed father, he was entitled to family reunification services. Father notes section 361.5, subdivision (b), does not require the denial of family reunification services. Rather, services “need not be provided” where the juvenile court finds, by clear and convincing evidence, the child was brought within the jurisdiction of the juvenile court under section 300, subdivision (e) “because of the conduct of that parent.” (§ 361.5, subd. (b)(5).) Father argues the juvenile court could not have made the required finding in this case because it dismissed an allegation under section 300, subdivision (a), which requires a finding that C.O. “suffered, or there is a substantial risk that the child will suffer, serious physical harm inflicted nonaccidentally upon the child by the child’s parent.” (§ 300, subd. (a).) The juvenile court indicated, “I’m not willing to go that far” and stated, “I don’t honestly believe this father is a danger to this or any other child.”
Father further argues this is not a case where either parent knew or reasonably should have known the child had suffered physical abuse by a parent or by any person known by the parent. Although both parents acknowledged bumping the child’s head while bathing him, there was no evidence the child was otherwise injured and the child had no retinal hemorrhaging, raccoon eyes or battle signs which would indicate abuse. Father notes the police investigator could not establish how the child’s arm was injured and paternal grandmother was the only person who was alone with the child on the afternoon of the injury.
Also, the medical experts were able to conclude the injuries were consistent with trauma caused by “grabbing, twisting, pulling or dropping the child” only after extensive examination and testing determined the child did not have a medical or genetic condition. Father concludes the child’s injuries were not readily apparent absent expert medical analysis and it could not be determined who injured the child. The evidence did not establish that father knew or reasonably should have known the child had suffered severe physical abuse by a parent or by a person known to the parent.
The juvenile court’s failure to sustain the allegation under section 300, subdivision (a), does not preclude a finding under subdivision (e). Subdivision (a) requires a showing the parent inflicted physical harm to the child. Subdivision (e), on the other hand, requires a showing the parent knew or reasonably should have known the child was being abused. The juvenile court’s inability to find father was the actual perpetrator of the abuse is not inconsistent with a finding father knew or reasonably should have known someone was abusing the child.
Here, based on the extensive fractures the child suffered, the last of which occurred while C.O. was in father’s care, the juvenile court reasonably could find father knew or should have known someone was abusing the child. Although father had the child in his care all day on Monday, August 13, father did nothing after he became aware of the broken right arm. Rather, father merely reported the injury to mother who took the child to the hospital. Also, father allowed the child to have extensive contact with paternal grandmother, even though father had been abused by paternal grandmother when father was a child. Under these circumstances, the juvenile court properly could conclude father’s conduct was unreasonable and father knew or reasonably should have known the child was being abused. Section 300, subdivision (e) does not require actual knowledge on the part of the parent that the child is being abused or that the parent know the identity of the individual committing the abuse. (In re E.H. (2003) 108 Cal.App.4th 659, 670.)
Next, contrary to father’s argument, it did not take the medical experts months to determine the child had suffered serious injuries. Indeed, the child’s injuries were obvious to mother on August 13, 2007. Rather, it took months to eliminate the possibility the injuries had been caused by a genetic or medical condition, rather than physical abuse. In any event, section 300, subdivision (e) does not require the parent’s actual or constructive knowledge that the minor in fact suffered severe physical abuse within the statutory definition. (In re Joshua H. (1993) 13 Cal.App.4th 1718, 1729.)
Father further contends the juvenile court did not make a finding under section 300, subdivision (e), by clear and convincing evidence as required by the statute. It merely sustained the allegation. Father argues this reflects a finding only by a preponderance of the evidence. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 248; § 355, subd. (a).) However, absent some affirmative indication on the part of the juvenile court that it applied a preponderance of the evidence standard, we presume the juvenile court correctly applied the statute and utilized the more stringent clear and convincing standard.
Finally, father notes he appeared in this case for the first time on October 16, 2007. However, the juvenile court failed to advise father until January 17, 2008, at the conclusion of the jurisdictional hearing and six days before father’s disposition hearing, that failure to participate regularly in court-ordered treatment programs might result in the termination of family reunification services after six months. (§361.5, subd. (a)(3).) At that time the juvenile court stated, “I need to tell each of the parents . . ., regardless of what happens, that one of your children is under the age of three [years]. I’m only obligated to [offer] six months of services. If you do not get your children back within six months, I can [conduct a hearing on] a permanent plan which could include termination of your parental rights.”
As relevant to father’s assertion, section 361.5, subdivision (a)(3), provides: “In cases where the child was under the age of three years on the date of the initial removal from the physical custody of his or her parent or guardian . . ., the court shall inform the parent or guardian that the failure of the parent or guardian to participate regularly in any court-ordered treatment programs or to cooperate or avail himself or herself of services provided as part of the child welfare services case plan may result in a termination of efforts to reunify the family after six months. . . .”
Father argues this advisement neglected to inform father, as required by section 361.5, subdivision (a)(3), of his duties and responsibilities under the statute.
This claim fails because the juvenile court was not required to give the admonition found in section 361.5, subdivision (b)(3), earlier than the disposition hearing. The admonition is not relevant until family reunification services are ordered and this occurs at the disposition hearing. Further, because father was denied family reunification services, the admonition was not relevant to father’s situation.
In sum, father’s various attacks on the application of section 300, subdivision (e), and section 361.5, subdivision (b)(5), fail.
4. Denial of family reunification services without a mandated investigation and advisement from the social worker.
Father contends the juvenile court improperly denied family reunification services without first receiving from DCFS the statutorily mandated investigation and determination of the circumstances that indicate whether reunification is likely to be successful and whether failure to order reunification is likely to be detrimental to the child. (§ 361.5, subd. (c).) Father argues that because the juvenile court lacked the necessary evaluation by DCFS, remand is necessary. (In re Nemis M. (1996) 50 Cal.App.4th 1344, 1355; Dawnel D. v. Superior Court (1999) 74 Cal.App.4th 393, 400, disapproved in Tonya M. v. Superior Court (2007) 42 Cal.4th 836, 848.)
Father has forfeited the assertion DCFS failed to address whether services were likely to prevent reabuse or whether denial of services would be detrimental to C.O. by failing to raise the issue in the juvenile court or request a continuance to permit DCFS to address the issue. (In re S.B. (2004) 32 Cal.4th 1287, 1293; In re Richard K. (1994) 25 Cal.App.4th 580, 590.) Instead, father stood by silently after the juvenile court noted DCFS’s failure to address these issues with respect to mother and permitted the juvenile court to proceed based on the evidence presented.
Additionally, it was father’s burden to demonstrate that family reunification services were likely to prevent reabuse or that denial of services would be detrimental to C.O. (Raymond C. v. Superior Court, supra, 55 Cal.App.4th at pp. 163-164.) Father presented no evidence that suggested the provision of services might prevent reabuse. Father did not acknowledge a role in C.O.’s abuse, participate in individual counseling to prevent reabuse or attend the appointment with the expert the juvenile court appointed to assist the juvenile court to determine whether family reunification services might prevent reabuse.
The cases cited by father do not require a different result. In In re Nemis M., supra, 50 Cal.App.4th 1344, the juvenile court erroneously entered a parent’s default based on the failure to appear at a hearing. As a result, the parent was unable to cross-examine a witness with respect to hearsay statements contained in a social study and the parent did not call two witnesses. Unlike the parent in In re Nemis M., supra, 50 Cal.App.4th 1344, father had every opportunity to present evidence through his testimony or the cross-examination of the CSW.
Dawnel D. v. Superior Court, supra, 74 Cal.App.4th 393, the other case cited by father, found the juvenile court erroneously failed to address whether “there is a substantial probability that the child may be returned to his or her parent within six months” as required by section 366.21, subdivision (e). Here, the juvenile court did not fail to make a required finding. Thus, neither case cited by father applies here.
Father next contends the juvenile court improperly relied on father’s failure to enroll in services prior to the disposition hearing even though the juvenile court did not believe father was a danger to the child. Father asserts the juvenile court was concerned with father’s participation in services ordered at the detention hearing on August 16, 2007, which father did not attend. On January 14, 2008, the juvenile court noted it previously had ordered parenting classes and anger management for father and stated, essentially, the parents should complete these programs by the disposition hearing “because their six-months will be over by the time we’re finished [in] this case.”
At the end of father’s disposition hearing, the juvenile court stated, “You should almost be done with whatever services I would have offered regardless of the reasons you didn’t come to court. You didn’t get started, you didn’t do what I asked you to do, you didn’t see your child regularly.”
Father concludes the juvenile court punished father by denying family reunification services based on his failure to participate in services the juvenile court ordered when father was not present in court and was not represented by counsel.
The record does not support father’s assertion the juvenile court punished him for failing to participate sooner in family reunification services. In any event, the juvenile court was well within its discretion in relying on father’s failure to participate in the case plan as a factor in denying family reunification services. (Raymond C. v. Superior Court, supra, 55 Cal.App.4th at p. 164.) Father failed to meet or maintain contact with the CSW. At the time of the disposition hearing, father had not yet commenced individual counseling, he had only recently enrolled in parenting and anger management classes and he rarely visited C.O.
In sum, substantial evidence supports the juvenile court’s denial of family reunification services.
DISPOSITION
The order is affirmed.
We concur: KITCHING, J., ALDRICH, J.
Jurisdiction under section 300, subdivision (b), arises where the “child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child . . . .
Jurisdiction under section 300, subdivision (e), arises where 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. . . .”
Jurisdiction under section 300, subdivision (j), arises where the “child’s sibling has been abused or neglected, as defined in subdivision (a), (b), (d), (e), or (i), and there is a substantial risk that the child will be abused or neglected, as defined in those subdivisions.”