Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Kern County No. JD116624-00, Robert J. Anspach, Judge.
Patrick M. Keene, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Gomes, J., and Kane, J.
A.V. is the mother of former dependent child, E.V. A juvenile court found that when E.V. was less than a year old he suffered severe physical abuse by appellant, or by a person known by her, and appellant knew or reasonably should have known the person was physically abusing the child. (Welf & Inst. Code, § 300, subd. (e).) At a dispositional hearing, the court ordered the child removed from appellant’s custody, awarded custody of the child to his father, the former noncustodial parent, and terminated the dependency proceedings pursuant to section 361.2. The mother appealed and this court in turn appointed appellate counsel to represent her.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Appellate counsel has since submitted a letter advising that no brief would be forthcoming (In re Sade C. (1996) 13 Cal.4th 952). He explained there were no appealable issues regarding the juvenile court’s exercise of jurisdiction under section 300, subdivision (e) and the juvenile court’s order granting the father custody and terminating dependency jurisdiction was specifically authorized by section 361.2, subdivision (b)(1). At counsel’s request, we extended time for appellant to personally file a letter brief which she has since done.
Appellant contends: her trial attorney was ineffective for failing to disclose “all the relevant facts”; the social worker was prejudiced against her; and she should have received reunification services. We have reviewed the appellate record as summarized below with those contentions in mind. We conclude appellate counsel’s assessment is accurate. Further, appellant does not make an arguable claim that the juvenile court committed an error affecting the outcome of this case. (In re Sade C., supra, 13 Cal.4th at p. 994.) We will affirm.
FACTUAL AND PROCEDURAL HISTORY
On January 2, 2008, 10-month-old E.V. was hospitalized at Children’s Hospital of Central California (Children’s Hospital) and diagnosed with a skull fracture and a resulting subdural hematoma. Bone surveys also revealed a healing right tibial fracture and a left tibial fracture which reacted so as to suggest the fractures might be of different ages. The baby had some bruising on his body as well. Dr. Don Fields, a Children’s Hospital physician assigned to physical abuse cases, opined it was a clear case of physical abuse. By the end of January, the skull fracture had healed and could no longer be seen by CT Head Scan. Subsequent testing could not establish osteogenesis imperfecta or brittle bone disease as a cause for E.V.’s injuries.
Appellant stated from the outset that she did not know how her baby came to suffer his injuries and that he had been in her care for the two days immediately before he appeared to suffer what she described as a seizure and became limp. She also claimed no one could have had unsupervised access to E.V. She acknowledged that he had been crying significantly over the last few weeks but thought he must be teething. He had also been sick with a cold in the days leading up to the seizure and she had taken E.V. to a local hospital approximately four days earlier.
Appellant and E.V. lived with appellant’s 10- and 12-year-old daughter and son from a previous relationship and her current boyfriend. The children said they were unaware of anyone hurting E.V. and that their mother treated them well. The boyfriend also claimed to know nothing about how E.V. suffered his injuries. Over the New Year’s holiday, some relatives of the boyfriends had come to visit in appellant’s home as well.
Appellant later stated in the past she had seen her older son throw E.V. up in the air. She added the older child could have done something to E.V. while she was in the shower.
Based on this information, respondent Kern County Department of Human Services (department) initiated dependency proceedings as to E.V. under section 300, subdivision (a) [severe physical harm inflicted nonaccidentally by a parent] as well as section 300, subdivision (e). The department released appellant’s two older children to their father’s care without resorting to dependency proceedings.
E.V.’s biological father, G.C., had been told by appellant that he was not the child’s father and thus he had not been involved in the child’s life. However, once he was informed of E.V.’s injuries, G.C. requested paternity testing and to have the baby released to him if he was found to be the father. Once paternity test results showed a 99.99 percent likelihood that G.C. was the child’s father, G.C. requested placement.
Initially, the department’s reports to the court identified the child’s father by a different first name.
The court in March 2008 ordered weekly supervised visits between father and son as well as authorized the department to increase the visits’ length. There was no issue regarding the appropriateness of ultimately placing E.V. with his father, only that there should be “a break-in period” since E.V. did not know him. A few weeks later, the court granted unsupervised weekend visits. By that point, according to the department, E.V. did not have any ongoing health issues. E.V. was coming to know his father, was affectionate with him and unhappy when they parted company. Then, in mid May 2008, the court declared G.C. to be the child’s presumed father and placed the child in his father’s care. Appellant voiced no objection.
Meanwhile, both appellant and respondent required multiple continuances to secure expert witness testimony before the court could conduct a jurisdictional hearing. The court eventually conducted the jurisdictional hearing in August 2008. In the end, no experts were called. At that hearing there was no dispute regarding E.V.’s injuries. By that time, the department had submitted additional written evidence that E.V. would have had to have suffered his skull fracture immediately prior to being brought to the hospital although Dr. Fields could not say exactly when. Dr. Fields was also uncertain if the leg fractures happened at the same time as the skull fracture or they were each the result of a separate incident.
The focus of the jurisdictional hearing was on what degree of responsibility appellant bore for those injuries. Appellant waived her rights and testified. On the day E.V. had his seizure she did not watch him the entire day. The same was true for the day before that. Her boyfriend, his relatives, and her children also babysat E.V. Appellant did not believe any of them would hurt E.V. She also testified she never left E.V. alone with his brother or alone in general. Further she did not see anyone do anything to E.V. that day which would indicate he was injured or that would cause his injuries. She also denied doing anything that could have caused the injuries.
On the night that E.V. had his seizure, appellant had last seen him toddling around her home around 8:00. Between then and approximately 9:00, E.V. was not out of her sight although everyone in the house had contact with him. She put him to bed in his crib a little after nine at which point he was crying a little bit. She then left him alone. She did not hear any unusual noises coming from the bedroom. At around 9:30 p.m. he had the seizure. A few minutes later he was taken to a local hospital. Within a matter of hours she learned E.V. had a fractured skull and would be transported to Children’s Hospital.
After closing arguments, the court rejected the department’s allegation under section 300, subdivision (a) that appellant personally inflicted E.V.’s injuries. The court was unable to find who the perpetrator was. Nevertheless, the court found the department’s section 300, subdivision (e) allegation true with regards to the skull fracture. The court specifically found the injury to E.V.’s skull occurred within 48 hours prior to his admission to the hospital. It also noted appellant’s inability to provide an explanation for the injury.
With regard to disposition, the record reveals the department’s position had evolved. Initially, the department sought to deny appellant reunification services based on E.V.’s young age, the seriousness of his injuries, and appellant’s direct or indirect responsibility for them. (§ 361.5, subd. (b)(5).) Appellant’s trial counsel took the position that it nevertheless would be beneficial to E.V. for the court to order reunification services for appellant. He had at least three witnesses to present on that point. However, the department later proposed and the attorneys for E.V. and his father agreed that the court did not have to decide the issue of services if it believed there was no need for the court’s continued supervision over E.V. Over the course of two hearings, counsel debated whether the court could leave E.V. in his father’s care and terminate its jurisdiction, without reaching the reunification issue.
The court gave appellant the opportunity to challenge whether the court’s supervision over E.V. remained necessary. As appellant’s trial attorney acknowledged, all the parties agreed that E.V.’s placement with his father would not be detrimental to the child. Nonetheless, appellant’s trial attorney urged the court to maintain ongoing supervision in order to maintain and improve E.V.’s bond with appellant.
In the end, the court found it necessary to formally remove E.V. from appellant’s custody. The court thereafter awarded the father sole legal and physical custody and supervised monthly, eight-hour visits for appellant.
DISCUSSION
I.
Appellant apparently believes her trial attorney should have introduced evidence regarding: visits by a nurse under the First Five Program that E.V. received prior to his injuries; the good care E.V. received in his grandparents’ home thereafter and before he was placed with his father; a conversation she purportedly had with a doctor who performed an M.R.I. on E.V. shortly after the court awarded the father custody and who said he could see no evidence that E.V. ever had a skull fracture; conflicting medical reports regarding whether the abuse happened over a period of time; and her good character as well as her proven ability to previously care for all three of her children. Setting aside the lack of evidence to support any of appellant’s claims, we disagree with her assumption that such evidence was relevant to the legal issues before the trial court. In addition, appellant cannot establish any arguable prejudice.
She also questions why her attorney did not call certain individuals as witnesses on her behalf. However, she fails to explain what they would testify to and thus cannot show how such testimony would have been relevant and how its absence prejudiced her. (See In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252.)
The first and primary issue before the court was whether the evidence supported a finding by a preponderance of the evidence that E.V. came within the court’s jurisdiction (§ 300). The court so found under section 300, subdivision (e), namely that when E.V. was less than a year old he suffered severe physical abuse by appellant, or by a person known by her, and appellant knew or reasonably should have known the person was physically abusing the child.
As to the first element of the court’s section 300, subdivision (e) finding, i.e. did E.V. suffer severe physical abuse, purported medical evidence that there was no sign of a skull fracture at some later date was not relevant. According to a neurology consult, the fracture could no longer be seen as of late January 2008. Furthermore, in light of the court’s refusal to find that appellant personally inflicted the abuse, any absence of evidence regarding the care she previously gave E.V. and his siblings and her good character did not prejudice her. Likewise, given appellant’s own statements from the outset, the inescapable conclusion was she either knew or reasonably should have known the physical abuse was going on and who did it. The court furthermore had the benefit of the various doctors’ reports regarding whether the abuse happened over a period of time. Consequently, we are not persuaded there is an arguable issue regarding relevant evidence so far as the court’s jurisdictional finding is concerned.
This leaves appellant’s claim about the good care E.V. received in his grandparents’ home before he was placed in his father’s care. We fail to discern how such information would be relevant to any issue which the court decided. The grandparents did not have a legal claim to E.V.’s placement superior to that of E.V.’s father. Once the court determined G.C. was the child’s presumed father, G.C. as the child’s former non-custodial parent was legally entitled to placement (In re Zacharia D. (1993) 6 Cal.4th 435, 451) unless the court could find placement with the father would be detrimental to the child (§ 361.2, subd. (a)).
II.
To the extent appellant criticizes one of the social workers as “extremely prejudicial,” she fails to explain herself and we find no support for her claim in the record. She is clearly upset about the contact the social worker had with the father of her two older children. However, even she acknowledges her complaints in this regard are not relevant to E.V.’s case. We would hasten to point out, as mentioned above, the law entitles a child’s former non-custodial parent to placement when it becomes necessary to remove the child from his or her custodial parent’s care.
III.
Last, appellant claims she was entitled to reunification services in E.V.’s case. Notably, she does not cite any legal authority to support her claim. As discussed below, the law did authorize the court’s decision in E.V.’s case to dismiss the dependency proceedings without deciding the issue of reunification services.
Once a court makes the necessary finding to order a child’s removal from one parent’s custody (§ 361), the court’s first priority is to determine whether there is a former non-custodial parent who desires custody. (§ 361.2, subd. (a).) If so, and the court places the child with that parent, the court has broad discretionary authority to do one of several things. (§ 361.2, subd. (b); In re Sarah M. (1991) 233 Cal.App.3d 1486, 1495, overruled on other grounds in In re Chantal S. (1996) 13 Cal.4th 196, 205.) It may, as the court did here, order that the parent become legal and physical custodian of the child, provide reasonable visitation for the other parent and then terminate its jurisdiction over the child. (§ 361.2, subd. (b)(1).) It does not have to order reunification services for the other parent although that is an option which the court has under section 361.2, subd. (b)(3). Reunification services are not mandatory in this instance; the court’s consideration of reunification services is only mandated when the child is placed with someone other than a parent. (In re Erika W. (1994) 28 Cal.App.4th 470, 475-476.) This is consistent with dependency law’s focus upon reunifying the child with a parent when it is safe to do so (In re Adrianna P. (2008) 166 Cal.App.4th 44, 55), not necessarily the parent from whose custody the child must have been removed. Here, appellant fails to establish how the court abused its discretion by ruling as it did.
Finally, appellant overlooks the legal basis upon which the court nevertheless could have denied her services outright. As mentioned above, the department had asked the court to deny her services based on the clear and convincing evidence that E.V. came within the court’s jurisdiction under section 300, subdivision (e) because of the mother’s conduct. (§ 361.5, subd. (b)(5).) “Conduct” as it is used in section 361.5, subdivision (b)(5) refers to the parent in the household who knew or should have known of the abuse, whether or not that parent was the actual abuser. (In re Kenneth M. (2004) 123 Cal.App.4th 16, 21.)
DISPOSITION
The order granting the father custody of E.V. and terminating the court’s dependency jurisdiction is affirmed.