Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court Nos. 515445, 515446, 515447, 515448, 515449, 515450 of Stanislaus County. Linda A. McFadden, Judge.
Susan M. O’Brien, under appointment by the Court of Appeal, for Defendant and Appellant.
John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
CORNELL, J.
The Stanislaus County Community Services Agency (the Agency) filed a petition pursuant to Welfare and Institutions Code section 300, subdivisions (a) and (b), alleging that the six children of S.G. (mother) and R.A. (father) came within the jurisdiction of the juvenile court. The juvenile court found it had jurisdiction over the children pursuant to section 300, subdivision (b). At the dispositional hearing, the children were ordered removed from mother’s and father’s custody.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
Mother appeals, arguing there was insufficient evidence to support the removal of the children from her custody. We agree, in part, with mother’s argument. We conclude there was insufficient evidence in this record to conclude that there were no reasonable means to protect the three older children’s physical health without removing them from the parents’ custody because they were old enough to protect themselves or report any abuse to an appropriate adult. (§ 361, subd. (c)(1).) On the other hand, we conclude that because the three younger children were two years old or younger, the juvenile court could reasonably infer that there were no reasonable means to protect them. We will remand the matter to the juvenile court to allow it to receive evidence and make appropriate findings on the issue of whether the three older children should have been removed from mother’s custody.
FACTUAL AND PROCEDURAL SUMMARY
The Agency’s petition alleged Ce.A., Ci.A., G.A., R.A., Jr., E.A., and M.A. came within the jurisdiction of the juvenile court because two-year-old E.A. had suffered injuries that were consistent with abuse, including burns to her back and two unexplained arm fractures. Mother and father denied abusing E.A. or knowing how the injuries occurred. According to the petition, these facts demonstrated that there was a substantial risk the children would suffer nonaccidental injury and that the parents failed to protect the children from this risk of harm.
The detention report noted that mother told the investigating social worker that she noticed E.A. was walking abnormally and took her to a medical clinic. E.A. subsequently was transferred to the hospital. A bone scan revealed two fractures in E.A.’s arm -- one to the long bone in the left elbow and the other to the humerus in the right arm. According to the social worker, physicians reported the injuries indicated (were suspicious of) abuse. Neither parent could provide a satisfactory explanation for the injuries. The older children could not provide any explanation for E.A.’s injuries. Physicians eventually diagnosed the injuries to E.A.’s back as burns, probably a scalding burn. Most of the burns were second degree, with some areas of first-degree burns. The social worker recommended the children be detained pending the jurisdictional and dispositional hearings. The juvenile court ordered the children detained under the care and supervision of the Agency.
The jurisdictional report provided essentially the same information as contained in the detention report. The report noted that the origins of the injuries sustained by E.A. were unknown, but physicians consistently classified them as “suspicious of Non-Accidental Trauma” (physical abuse). Nor could the parents provide an explanation for how the injuries had occurred.
Attached to the report were the medical records referred to therein. From our review of the medical records, it is difficult to find a definitive diagnosis concluding the injuries to E.A.’s back were the results of burns, although this seems to be the assumption on which the doctors proceeded and treated E.A.
At the jurisdictional hearing, the section 300 subdivision (a) allegation was dismissed pursuant to the stipulation of the parties. The parties submitted the section 300, subdivision (b) allegation to the juvenile court on the Agency’s report. The trial court found it had jurisdiction over the children pursuant to section 300, subdivision (b), and a contested dispositional hearing was scheduled.
The dispositional report notes that in conversations with the medical staff treating E.A., it appears the injuries on E.A.’s back were diagnosed as scalding burns. The report notes that mother and father agreed to do whatever was required to regain custody of their children. The three older children all asked to be returned to their parents. All of the children were in good health, with the obvious exception of E.A., and within the normal range for development. In addition to the injuries previously described, E.A. was born with a congenital heart defect that had required several surgeries in the past and probably will require additional surgery in the future. This condition resulted in E.A. being a fragile child who was not developing at the same rate as the other children. She was found to be in good health, although underweight. Previous reports indicated that E.A. may suffer from “failure to thrive” syndrome.
In explaining the recommendation that the children not be returned to their parents’ custody, the dispositional report stated that because the parents denied injuring E.A., and they could not explain how she was injured, it was not safe to return the children to the home. The report continued that until the cause of the injuries could be explained, and the parents received counseling for the cause of the injuries, all of the children were at risk.
The parents were reported to be actively participating in their case plan and visiting regularly with the children. The visits went well, although the following incidents apparently raised some concern. A phone call was received from E.A.’s godmother. The godmother stated that she often saw bruises on E.A.’s face, E.A. was always “desperately” hungry when visiting with her, and E.A. refused to go home with her mother, although E.A. responded well to her father and her siblings. Mother also became “defensive” when confronted about the bruising to E.A., although she explained that E.A. frequently fell and bruised easily because of her heart condition.
The following incidents occurred on different visits between mother and E.A. On one occasion E.A. appeared fearful and walked away from mother when mother tried to give her a hug. On another occasion, two-year-old E.A. was asked how she hurt her back; E.A. responded, “Mama.” On another occasion mother apparently did not give E.A. the attention the social worker felt she should have given to the child. On another visit mother appeared to give E.A. a shorter hug and kiss than the other children.
The following comment was contained in the report regarding providing family reunification services: “It is the recommendation of the undersigned that both parents receive family reunification services. However, the undersigned would recommend that through counseling the parents be required to disclose the manner in which [E.A.] was injured that is consistent with her medical presentation and from whom she received her injuries.” The case plan also required the parents to “disclose the manner in which [E.A.] was injured that is consistent with her medical presentation and from whom she received her injuries.”
At the contested dispositional hearing, the parents called Lupe Ruelas-French, who was the clinician providing services to mother and father. She testified that mother and father had been referred to her for a parenting program. Both had participated in all aspects, seemed to understand the material, and had not missed any sessions. The parenting program was not completed as mother and father had just started individual counseling. The parents seemed to understand parenting techniques. The clinician was concerned because the injuries were unexplained, although the topic had not been broached in individual sessions. The clinician would not have had the same concerns if the older children had been placed with mother and father.
Thirteen-year-old Ce.A. testified that he felt safe with his mother and father and wanted to return to their home. If someone was hurting him or his brothers and sisters, he would call for emergency services. Eleven-year-old Ci.A. testified that she was sad living away from her mother and father, and that if anything bad were to happen she would call the social worker. She felt safe with her parents. She would call emergency services if someone was hurting her or her siblings. Nine-year-old G.A. felt safe with her parents and stated she would tell her social worker if something bad happened to her.
The juvenile court ordered all of the children removed from the custody of mother and father and ordered reunification services for mother and father.
DISCUSSION
Mother’s appeal does not contest the finding by the juvenile court that the children came within the provisions of section 300, subdivision (b). Instead, she argues that the juvenile court erred at disposition by ordering each of her children removed from her home because there was not substantial evidence to support the order.
Once the juvenile court determines it has jurisdiction over a child, it must then determine the appropriate disposition. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 248.) If the child is found to be a dependent of the juvenile court, then the issue is whether the child should be removed from the custody of the parents. (Ibid.)
Removal of a child from the custody of a parent is permitted only if one of the six situations identified in section 361, subdivision (c) is found to exist by clear and convincing evidence. The juvenile court also is required to determine whether reasonable efforts were made to eliminate the need for removal of the child from the home. (§ 361, subd. (d).) Finally, as pertinent to this case, when a child is removed from the custody of a parent because there is a substantial danger to the physical health or safety of the child, the juvenile court must find that there are no reasonable means by which the minor could be protected without removal. (§ 361, subd. (c)(1); In re Henry V. (2004) 119 Cal.App.4th 522, 525.)
The requirements that the Agency make reasonable efforts to eliminate the need for removal of the child, and that there are no reasonable means to protect the minor without removing him or her from the custody of the parents, reflect the Legislature’s determination that removal should be the last option considered by the juvenile court, even where the juvenile court has found a child has been abused.
“Our society does recognize an ‘essential’ and ‘basic’ presumptive right to retain the care, custody, management, and companionship of one’s own child, free of intervention by the government. [Citations.] Maintenance of the familial bond between children and parents—even imperfect or separated parents—comports with our highest values and usually best serves the interests of parents, children, family, and community. Because we so abhor the involuntary separation of parent and child, the state may disturb an existing parent-child relationship only for strong reasons and subject to careful procedures.
“Of course, sexual or other serious physical abuse of a child by an adult constitutes a fundamental betrayal of the appropriate relationship between the generations. We recently observed in another context that child molestation is among those acts ‘so inherently harmful that the intent to commit the act and the intent to harm are one and the same.…’ [Citation.] When a parent abuses his or her own child, or permits such abuse to occur in the household, the parent also abandons and contravenes the parental role. Such misparenting is among the specific compelling circumstances which may justify state intervention, including an interruption of parental custody. [Citation.]
“Even when one so seriously violates parental responsibilities, however, the strong countervailing interests unique to the status of parent must still be considered. A mere finding of parental abuse does not sever the legal and familial bond between parent and child. The Juvenile Court Law restricts judicial power to remove a child from the care and society of even an abusive or abuse-tolerant parent. [Citations.] If separation is necessary, reunification must be encouraged, and all the alternatives to final termination of parental rights must be explored. [Citations.]” (In re Kieshia E. (1993) 6 Cal.4th 68, 76-77.)
Mother asserts there was a lack of evidence to support the conclusion that there were no reasonable means to protect her children without removing them from the home. The Agency’s argument, as we understand it, is that because of the serious injuries suffered by E.A., neither E.A. nor her siblings could be left safely in the home. In other words, there was nothing the Agency could do to protect the children without removing them from the home.
We review the sufficiency of the evidence under well-settled principles. The record is reviewed in the light most favorable to the order. (Kimberly R. v. Superior Court (2002) 96 Cal.App.4th 1067, 1078.) Our task is to determine if there was evidence that was reasonable, credible, and of solid value to support the challenged order. (Ibid.) We draw all reasonable inferences that support the order. (In re Jeannette S. (1979) 94 Cal.App.3d 52, 58.) We do not reweigh the evidence, evaluate witness credibility, or resolve evidentiary conflicts. (In re H.G. (2006) 146 Cal.App.4th 1, 13.)
There is no evidentiary dispute in this matter. The juvenile court was presented with evidence that E.A. was abused. She suffered burns and two broken bones, for which no explanation was provided. The only logical conclusion that can be drawn is that someone was abusing the child, and that the abuse occurred on more than one occasion.
The difficulty presented by this case is that there is no competent evidence from which an inference can be drawn about who was abusing E.A. Mother and father did not offer any explanation as to how the injuries occurred. There was little evidence as to who, if anyone, had access to two-year-old E.A. If another person had access to E.A., he or she may have caused E.A.’s injuries. Mother appears to be the primary caregiver to E.A. The inescapable conclusion is that she was responsible for E.A. when she was injured. It also is likely, although not certain, that mother either caused the injuries or knows who caused the injuries. Under these circumstances, it is understandable why the juvenile court was concerned about the parents’ inability or unwillingness to explain how E.A. was injured.
Nonetheless, the fact that mother and father may have been responsible for or withheld information about E.A.’s injuries does not relieve the juvenile court from complying with the applicable statutes. We have reviewed the entire record and cannot find any evidence that either the Agency or the juvenile court considered any alternative to removal of the children from the parents’ custody. Both the Agency and the juvenile court seemed to assume that since E.A. had been abused, all the children had to be removed from the parents’ custody.
This assumption is compelling when considering two-year-old E.A., her twin (R.A., Jr.), and the newborn (M.A.). Severe injuries were incurred by E.A. that could not be explained. From this evidence one could draw a reasonable inference that return of these children to their parents’ custody would place them at risk of harm. Because of the young age of these children, and their total dependence on their parents, it is likely that there are no services that could be provided to protect them outside of removal.
We are not, however, dealing only with the infants. The juvenile court also ordered the three older children removed from the custody of their parents. Thirteen-year-old Ce.A., 11-year-old Ci.A., and nine-year-old G.A. all testified at the dispositional hearing that they had not been abused by their parents, wanted to return home, and would call emergency services if anyone tried to hurt them. In addition to these facts, the record also established that, with the exception of E.A., none of the children showed any signs of abuse. The parents had no criminal history; nor were there any prior referrals to the Agency. There was no evidence of drug or alcohol abuse by either parent. Father was employed. There was adequate food, shelter, and clothing for all of the children. The parents were participating in every program to which the Agency referred them. In other words, none of the risk factors normally associated with “at risk” children were present, with the exception of the injuries to E.A.
The ages of the three older children, their growing self-sufficiency, the adequacy of the home, and the lack of any evidence of abuse strongly suggest that the Agency could provide services that would permit them to remain in the custody of their parents.
DISPOSITION
The dispositional orders are affirmed as to the three younger children, E.A., R.A., Jr., and M.A. The dispositional orders are reversed as to the three older children, Ce.A., Ci.A., and G.A., to permit the juvenile court and the Agency to consider whether there are services that could be provided to the parents that would permit these children to remain in mother’s and father’s custody.
WE CONCUR: WISEMAN, Acting P.J.KANE, J.