Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Kern County. Robert Anspach, Judge, Super. Ct. No. JD113087.
Randall A. Richmond, under appointment by the Court of Appeal, for Defendant and Appellant.
B. C. Barmann, Sr., County Counsel, and Judith M. Denny, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Gomes, Acting P.J.
Julio A. appeals from a dispositional order that denied him reunification services with respect to his son, Isreal A., under Welfare and Institutions Code section 361.5, subdivisions (b)(6) and (b)(14). Julio’s sole contention on appeal is that the juvenile court erred in denying reunification services under Welfare and Institutions Code section 361.5, subdivision (b)(6), because it failed to make the required express findings of severe physical harm on the record and there is insufficient evidence that severe physical harm was inflicted on Isreal within the meaning of that subdivision. As we shall explain, we agree there is insufficient evidence to support the denial of reunification services pursuant to section 361.5, subdivision (b)(6) (subdivision (b)(6)), and therefore will vacate that finding.
Although Julio was denied reunification services, they were ordered for Isreal’s mother, Misty M.
All further statutory references are to the Welfare and Institutions Code unless otherwise noted.
FACTUAL AND PROCEDURAL BACKGROUND
Two-year-old Isreal was removed from Misty’s custody in January 2007, when Misty continued to use an illegal controlled substance as well as alcohol despite having received a month of voluntary family maintenance services after Misty and her baby, Isreal’s half-sibling, tested positive for amphetamines at the baby’s birth. The Kern County Department of Human Services (Department) filed a petition that alleged Misty had a substance abuse problem which adversely affected her ability to care for and protect Isreal. (§ 300, subd. (b).)
The petition identified Julio as Isreal’s alleged father. Julio signed a statement of paternity, indicating he believed himself to be Isreal’s father. At the detention hearing, the court found Julio to be Isreal’s presumed father on an offer of proof from Julio’s attorney that although Julio claimed prior DNA testing had shown he was not Isreal’s biological father, he had taken Isreal in and raised him as his own. Julio, who was a non-custodial parent, was living with his girlfriend, Sofia S., and her five-year-old son. The social worker visited their home and found it clean and appropriate. The social worker noted Sofia had completed 48 weeks of a 52-week parenting program and was making excellent progress. Sofia was attending the program because she had been convicted of willful cruelty for leaving her son unattended in her care. The social worker recommended Isreal be placed with Julio and the petition be dismissed.
On March 2, 2007, the court found the petition’s allegations true, that Isreal was a person described by subdivision (b) of section 300, adjudged him a dependent of the court, awarded Julio sole physical custody and joint legal custody with Misty, and terminated the court’s jurisdiction.
On April 18, 2007, Julio called a social worker at the Department and told her he could no longer care for Isreal, who would be three the following month. Julio said he was having problems with Misty’s family and after Isreal’s last visit with Misty, Isreal told Julio he was not his real father and started calling him by his first name. Julio reported he had been at the park with Isreal the day before when a man came over and beat up Isreal. When Julio went running over to stop the man, he ran away yelling “‘to tell Misty she fucked up’.” The social worker told Julio it was extreme to give up the child and asked if there were problems in the home or with his girlfriend. Julio responded the problems were mostly with Misty’s family and he had been thinking about giving up Isreal for a couple weeks and wanted to give him up.
That same day, another social worker called Julio after being notified of his previous call, to see if he needed assistance with having Isreal in his care. Julio “briefly informed” the social worker that Isreal had been beaten up. He explained they were at a park when “some kids” beat Isreal up and ran off stating that “Misty fucked up.” Julio said Isreal was okay and denied that was why he didn’t want Isreal anymore -- he just did not think he was ready. Julio also denied that Sofia did not want Isreal in the home, explaining that she was really good with Isreal and Isreal would call her mom, even though Julio told him to call her Sofia. The social worker offered to pick up Isreal, but Julio said he would bring Isreal to the social worker. The social worker explained that the Department would most likely file allegations of abandonment if he gave Isreal up, and Julio said that was okay. A while later, the social worker called Julio and told him she had spoken with Misty, who was upset and crying. The social worker asked when the beating took place; Julio said yesterday morning. The social worker asked the ages of the boys, and Julio responded they were grown men, and it was a grown man who slapped Isreal in the face a couple times. Julio said that he started to run after the man, but stopped because Isreal was on his back on the ground. Julio did not know why a grown man would just walk up to Isreal and start hitting him.
Later that day, Julio brought Isreal into the Department. Isreal was excited to see the social worker and kept stating he wanted to stay with her. The social worker described Isreal’s face as being “really beaten up” and terrible looking: “He had all kinds of bruises all over his right side of his face, a huge scab covering the inside of his ear, his eye appeared to be a little yellowish as if he had a black eye. Isreal also had a scab on the back of his head and an abrasion on the left side of his forehead.” Julio did not know where the scabs came from, claiming he didn’t see them. The social worker asked again what happened. Julio explained that after they dropped Sofia’s son off at school the morning before, they took the “kids” to the park to play at about 7:30 a.m. Julio said he was sitting down while the kids played when a grown man went up to Isreal and started beating on him. Julio ran after the guy, but stopped because Isreal was laying on his back. Julio claimed that was what happened and Isreal “did not deserve this.” When the conversation ended, Isreal whined and said he did not want to go with Julio and that he hurt. After Julio left, the social worker asked Isreal who hurt him, and he responded his mom and dad. The social worker assumed he was referring to Sofia. Pictures were taken of Isreal’s injuries. During a telephone call with Misty, Isreal told her he hurt and Sofia had hurt him. The social worker told Misty the Department would conduct a forensic interview because of the extent of the bruises, as Isreal had markings on his buttocks, legs and his big toe, in addition to the ones on his face.
A second social worker saw Isreal that same day and described him as having “red and purple marks on his face including an approximately two-inch red bruise below his right cheek with a one-inch red bruise closer to his ear, an approximately one-inch red long fading purple bruise under his right eye, red bruising above his right eye, red bruising under his left eye, a red scab in his right ear, and a red scab on the top of his head. The child had a purplish one-inch bruise on his forehead. The child had a fading purple bruise approximately three inches around on his lower back, and brownish bruising on his buttocks.” During a forensic interview conducted that day, Isreal identified both Julio and Sofia as having caused some of his injuries.
The next day, Sofia spoke with a social worker. Sofia said she lived with Julio, her son, her three nephews and Isreal, and identified Julio as the father of the child with whom she was pregnant. When asked how Isreal got his bruises, Sofia said he fell a lot. She said he got the injury on his head when he fell and the bruises on his face when he fell off a bed. She didn’t know how he got the scratch on his face or how he got the other bruises. Sofia had seen Julio spank Isreal with a slipper and a belt. Sofia admitted hitting Isreal three or four days before once with a belt on his buttocks with his pants down, which caused a red mark, after he refused to stand by the wall and kicked her in the stomach as she was carrying him to his room. When asked about her willful cruelty conviction, Sofia explained she left her son asleep in the car and had to pay a fine and take a one year parenting class.
The Department filed a petition alleging: (1) Isreal had suffered or was at risk of suffering serious physical harm inflicted non-accidentally upon him by Julio, as shown by the injuries described by the second social worker and Isreal’s indications that his injuries were from Julio and Sofia (§ 300, subd. (a)); (2) Isreal had suffered or was at risk of suffering serious physical harm or illness as a result of Julio’s willful or negligent failure to (a) protect him from Sofia’s conduct, as shown by Isreal’s injuries and statements that they were from Julio and Sofia, and (b) Julio’s statement he was no longer willing or able to care for the child and brought him into the Department to give up custody (§ 300, subd. (b)); and (3) Isreal was left with no provision for support (§ 300, subd. (g)).
As a result of a mediation held before the jurisdictional hearing, Julio agreed to submit on the section 300, subdivision (b) and (g) allegations based on his unwillingness or inability to continue to care for Isreal as shown by his giving up custody of him, and agreed to waive reunification services, but stated he would contest the section 300, subdivisions (a) and (b) allegations based on Isreal’s physical injuries.
At the jurisdictional hearing, Julio testified he had taken care of Isreal since he was born. Julio was shown some of the pictures of Isreal that were taken after Julio brought him to the Department. Julio testified that the red marks on the right and left sides of Isreal’s face were caused when he fell on two separate occasions while running and hit his head on the corner of the bed and a dresser drawer. Julio claimed the mark on the right side of his cheek and the black eye were caused when Isreal was slapped in the face by a man while at the park. Julio explained he was at the park with Isreal and his girlfriend’s son, who were playing together, at noon or 12:30 p.m. Julio said he was sitting inside his truck while the kids played outside about five feet away when two men in their early 20s walked by Isreal; one of them slapped him and took off running, saying “Misty fucked up.” Julio got out of the truck and picked Isreal up off the ground. He did not make a police report because he didn’t think they would do anything. Julio did not know how Isreal got the scab on his right ear, but he said the mark on top of his head was a bump on his head, which he got when he fell on the concrete while he was playing.
On cross-examination, Julio testified that his girlfriend’s nephews were also there, playing with Isreal and his girlfriend’s son.
Misty testified that to her knowledge she had not done anything to anyone that would cause them to want to harm Isreal, she was not aware of any friends, acquaintances or enemies who lived near the park, and no one had ever threatened her son.
Julio admitted he caused the bruise on Isreal’s buttocks when he disciplined him by spanking him with a paddle or belt. He also testified Sofia spanked Isreal once with a belt, maybe two to three days before he brought Isreal to the Department. Julio admitted he had spanked Isreal in the past, which left marks on him. He believed the problem with Isreal’s toe was an ingrown toenail. Julio denied ever hitting Isreal in the face.
Julio testified he brought Isreal to the Department because he “couldn’t have him with me anymore,” as “I was just getting tired of everything that was going on.” Julio said he “kept getting phone calls” from Misty’s side of the family and after the incident in the park, he decided he needed to take Isreal back because he didn’t know how to protect him and felt Isreal might be at risk if he remained in his care. On cross-examination, Julio testified he had problems getting in contact with Misty, who he said only called twice after he got custody of Isreal and only asked about him once.
The court found the petition’s allegations true. The court asked the parties what the issues on disposition were. Julio’s attorney informed the court that since Julio was not requesting services, a denial of services under section 361.5, subdivision (b)(14) was appropriate, but argued there was an insufficient basis for denying services under subdivision (b)(6) because there was no showing of severe physical harm. The court issued the dispositional orders, which ordered reunification services for Misty but denied them for Julio “as there is clear and convincing evidence that the child comes within Section 361.5 (b)[(6)] and 361.5(b)(14) of the Code.”
DISCUSSION
Section 361.5, subdivision (a) directs the juvenile court to order child welfare services whenever a child is removed from his or her parent’s custody, unless one of the exceptions enumerated in subdivision (b) applies. Here, the juvenile court denied such services to Julio on two grounds: subdivisions (b)(6) and (14) of section 361.5. As applicable here, subdivision (b)(14) authorizes the denial of services when the child’s parent advises the court he is not interested in receiving family reunification services. Subdivision (b)(6) provides for the denial of services where the court finds, in pertinent part, by clear and convincing evidence “[t]hat 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, … and the court makes a factual finding that it would not benefit the child to pursue reunification services with the offending parent … [¶]…[¶] A finding of the infliction of severe physical harm, for the purposes of this subdivision, may be based on, but is not limited to, deliberate and serious injury inflicted to or on a child’s body … by an act or omission of the parent …, or of another individual … with the consent of the parent …; deliberate and torturous confinement of the child, … in a closed space; or any other torturous act or omission that would be reasonably understood to cause serious emotional damage.” If the court denies reunification services under subdivision (b)(6), it is required to read into the record the basis for a finding of the infliction of severe physical harm and specify the factual findings used to determine that the provision of reunification services to the offending parent would not benefit the child. (§ 361.5, subd. (i).)
Julio asserts on appeal that the juvenile court’s finding that subdivision (b)(6) applied to him must be reversed because (1) the court failed to make an explicit finding of harm within the scope of that subdivision and (2) there is insufficient evidence to support such a finding. Julio’s first contention fails because although section 361.5, subdivision (i) requires the court to make express findings on the record to support a denial of reunification services under subdivision (b)(6), this court has concluded that such findings may be implied when they are supported by substantial evidence. (In re S.G. (2003) 112 Cal.App.4th 1254, 1260.)
Julio does not challenge on appeal the court’s denial of services pursuant to section 361.5, subdivision (b)(14), and does not seek reunification services. He asserts, and the Department does not dispute, that a finding under subdivision (b)(6) could adversely impact his ability to receive unification services should another child of his become a dependent of the court. (See, e.g., § 361.5, subd. (b)(7) [authorizing denial of reunification services if the parent is not receiving services pursuant to subdivision (b)(6)].)
We agree with Julio, however, that there is insufficient evidence to support the subdivision (b)(6) finding. When the sufficiency of the evidence to support a finding or order is challenged on appeal, even where the standard of proof in the trial court is clear and convincing evidence, the reviewing court must determine if there is any substantial evidence to support the court’s conclusion. (In re Jasmine C. (1999) 70 Cal.App.4th 71, 75.) “In making this determination, we recognize that all conflicts are to be resolved in favor of the prevailing party and that issues of fact and credibility are questions for the trier of fact.” (Ibid.)
Julio argues there was insufficient evidence to show that he inflicted or failed to protect Isreal from “severe physical harm” within the meaning of subdivision (b)(6). To the extent Julio is contending there is insufficient evidence that he either personally inflicted Isreal’s injuries or consented to their infliction by Sofia, we disagree. Julio points to his testimony regarding the causes of Isreal’s injuries, which he asserts was uncontradicted and shows that with the exception of the bruises on his bottom, the injuries were accidental or caused by the man in the park. The juvenile court, however, obviously found Julio was not credible when it found true the jurisdictional allegations that Isreal had suffered or was at risk of suffering serious physical harm inflicted non-accidentally by Julio and which resulted from Julio’s failure to protect Isreal from Sofia’s conduct. Substantial evidence supports these findings, as Isreal told the social worker and stated in the forensic interview that Julio and Sofia inflicted his injuries.
We also reject Julio’s contention that the Department should have sought to establish jurisdiction under section 300, subdivision (e), which provides for jurisdiction where a child under the age of five has suffered severe physical abuse, if it believed Isreal was suffering or at substantial risk of suffering, severe physical harm. As the Department points out, reunification services may be denied under subdivision (b)(6) as long as the child has been adjudicated a dependent pursuant to any subdivision of section 300 as a result of severe sexual abuse or the infliction of severe physical harm. Thus, that the Department did not seek to establish jurisdiction under section 300, subdivision (e) has no bearing on whether Isreal suffered severe physical harm within the meaning of subdivision (b)(6).
The issue remains, however, whether there is sufficient evidence to support the court’s implied finding that Isreal’s injuries constituted “severe physical harm.” As stated above, subdivision (b)(6) provides that “[a] finding of the infliction of severe physical harm … may be based on, but is not limited to” (1) deliberate and serious injury inflicted on a child’s body, (2) deliberate and torturous confinement of the child in a closed space, or (3) “any other torturous act or omission that would be reasonably understood to cause serious emotional damage.” Here, the evidence shows that Isreal had bruises on his face, including what appeared to be a healing black eye and bruises on his check, scabs on the top of his head and on his ear, and bruises on his back and buttocks, as well as a black toenail. Other than Julio’s and Sofia’s admissions that they spanked Isreal on the buttocks with a paddle, belt or slipper within three or four days of his being brought into the Department, no evidence was presented as to how the other bruises or scabs were inflicted, when they might have been inflicted, or their severity. Without such evidence, it is impossible to tell whether Isreal’s bruises constituted a “serious” injury. In this context, the word “serious” means “[g]rave in character, quality, or manner.” (American Heritage Dict. (2d college ed. 1976) p. 1120.) While certainly the infliction of bruises on a child is a grave or serious matter, there is simply no evidence on this record that Isreal’s bruises and scabs were themselves grave or serious. There is also no evidence that the other forms of severe physical harm specified in subdivision (b)(6) were present in this case, such as being confined in a closed space or being subjected to torturous acts or omissions.
Without some evidence of how old the bruises were, whether they were inflicted at one time or over the course of days or weeks, how they were inflicted, or their potential effect, e.g. that Isreal was in danger of suffering a concussion or other brain injury, we cannot say that the bruises and scabs themselves constituted severe physical harm. Although there was evidence that the bruises on Isreal’s buttocks were caused by being spanked with a belt or slipper, there is no evidence that these bruises were serious injuries or constituted severe physical harm.
While, as the Department points out, subdivision (b)(6) specifically provides that the definition of “severe physical harm” is not limited to the acts listed in that subdivision, we do not believe that bruises alone, without some evidence of how they were inflicted or their severity, can support a finding of severe physical harm. In that sense, this case is much different than the ones the parties cite. For example, in In re Joshua H. (1993) 13 Cal.App.4th 1718 (Joshua H.), the court found there was sufficient evidence to support a finding of jurisdiction under section 300, subdivision (e), which requires evidence of “severe physical abuse,” where a nine-month-old baby sustained the following injuries at the hands of his mother’s boyfriend: (1) head-butting the baby on the left side of the skull, leaving marks and bruises on the baby’s forehead and left side of his head which were so severe the mother did not take him to the day-care center for four days for fear someone would see them and which were still apparent eight days later, (2) the following day, slapping the baby nine or ten times on the left side of his face, causing a black eye and leaving bruising that was visible 10 days later, and (3) on another occasion, repeatedly striking the baby in the chest and abdomen with a closed fist, causing eight fractured ribs. (Id. at pp. 1728-1729.) From these facts, the court concluded there was sufficient evidence to support a finding of severe physical abuse as defined in section 300, subdivision (e), as they showed the mother’s boyfriend had committed more than one act of physical abuse, each of which caused either deep bruising or bone fractures. (Id. at p. 1729.)
Section 300, subdivision (e), defines “severe physical abuse,” in pertinent part, as “… 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;…”
The Department argues that, apart from the eight broken ribs, the bruising the baby in Joshua H. experienced was similar to Isreal’s bruises, and points out that in Joshua H., despite the absence of explicit medical testimony that the bruises were deep, the requisite severity could be inferred from the fact the injuries were still apparent during the baby’s medical exam a few days later. The difference between Joshua H. and this case, however, is that in Joshua H., there was evidence as to when the injuries were inflicted and when they were observed, while here there is no evidence as to when Isreal’s injuries on his face and head were inflicted. Accordingly, there is no evidence from which the severity of the bruises can be inferred.
In the other cited case, in which the court denied reunification services pursuant to subdivision (b)(6), a five-year-old child had multiple bruises on her thighs, legs, ankles, buttocks, back, arms, chin, forehead and abdomen as a result of being struck repeatedly by her mother’s live-in boyfriend with both a belt and an electrical cord taped into a looped instrument. (In re S.G., supra, 112 Cal.App.4th at p. 1256.) An examining physician, who opined the child was a victim of aggressive attacks, was concerned because the attacks involved the child’s head, which had the potential to leave her with brain damage. (Ibid.) In contrast here, although Isreal had multiple bruises on his face and two scabs, there was no evidence of how the bruises or scabs could have been inflicted (other than the bruises on his buttocks caused by being spanked with a belt), or whether Isreal could have sustained more serious injury as a result of the beating.
The Department asserts the fact that the abuse was more serious in these cases does not excuse Julio’s conduct here, citing In re Pablo S. (2002) 98 Cal.App.4th 292, 302, in which the court rejected the parents’ argument that their failure to take their son to a doctor after he broke his leg did not constitute severe physical abuse within the meaning of subdivision (b)(6) because the abuse in other published cases was more severe. While we agree that the fact abuse in published cases is more severe than the abuse here does not necessarily mean that subdivision (b)(6) does not apply to this case, there still must be sufficient evidence of severe physical harm for that subdivision to apply. While such evidence was present in the Pablo S. case, it is lacking here.
By our decision, we do not mean to suggest that bruising can never constitute severe physical harm within the meaning of subdivision (b)(6), neither do we intend to minimize the injuries Isreal sustained or imply he did not suffer. We simply conclude that descriptions and pictures of his bruises and scabs, without more, is insufficient evidence to infer that he sustained severe physical harm within the meaning of subdivision (b)(6). Accordingly, we will order that finding reversed and vacated.
DISPOSITION
The dispositional finding that family reunification services not be provided to Julio pursuant to section 361.5, subdivision (b)(14) is affirmed. The dispositional finding that family reunification services are not to be provided to Julio pursuant to section 361.5, subdivision (b)(6) is reversed and vacated. In all other respects, the jurisdictional and dispositional orders are affirmed.
WE CONCUR: Dawson, J., Hill, J.