Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. JD224189 & JD224190
SCOTLAND, P. J.
Shelly H. (appellant) is the mother of K.C., a girl born on December 31, 1999, and J.C., a boy born on April 19, 2002. She appeals from juvenile court orders sustaining dependency petitions (Welf. & Inst. Code, § 300, subds. (a), (b) and (j)), denying reunification services to appellant, awarding sole legal and physical custody of the minors to their father in Utah, Donald C. (father), granting appellant visitation four times a year, and terminating jurisdiction. (Further section references are to the Welfare and Institutions Code.)
Appellant contends the reasons for terminating jurisdiction are not supported by substantial evidence, and she claims the juvenile court abused its discretion by making findings under section 361.5, denying her reunification services, and delegating discretion to father and therapists to make arrangements for appellant’s four annual visits with the children.
FACTUAL AND PROCEDURAL BACKGROUND
Prior Section 300 Proceedings
In April 2006, the Sacramento County Department of Health and Human Services (DHHS) filed petitions alleging the minors were within section 300, subdivisions (b), (d), and (j), in that appellant’s live-in boyfriend had molested his son, placing the minors at risk. The minors were ordered detained.
In July 2006, DHHS submitted to the court an addendum to a report that included an interview with father, who explained that his name is on the minors’ birth certificates and he had lived with appellant until the minors were ages three and one. His last contact with the minors was in November 2003 or in 2004. Since that time, he had been unable to reach appellant or the minors, but had received some “rather rude” e-mails from appellant’s boyfriend. Father wanted the minors returned to his care and custody, and the social worker recommended that father’s home be investigated for placement.
In September 2006, DHHS submitted an addendum stating that father’s home had been evaluated and approved for placement, that the minors met father’s wife during visits in July and August 2006, and that father said they bonded very well with her. DHHS recommended that the minors be placed with father in Utah and that appellant be granted reunification services.
The jurisdictional hearing was held in November and December 2006. The amended petitions were dismissed, and the minors were returned to appellant’s custody.
Current Proceedings
Three months later, in March 2007, an interpreter who assisted the family during an unrelated court hearing observed bruising and an apparent knot on K.C.’s head. The interpreter, who knew K.C. from previous hearings, believed her appearance was not normal. Staff at a daycare center shared that concern. A social worker went to the family home and detained the minors.
Two other children that appellant had with her boyfriend were also detained. Dependency petitions as to those children were adjudicated concurrently with the present petitions. They are not parties to this appeal.
In March 2007, DHHS filed petitions alleging that examinations of the minors at a medical center revealed that J.C. had circular bruises on both upper arms and bruises to his left sacral area and the right side of his buttocks. K.C. had peticheal bruising behind her right ear, circular bruises to both arms, circular bruises to her buttocks, an abrasion to her lower left rib line, bruising covering the backs of her thighs, some patterning and blue bruises within, and a blue bruise on her left foot with swelling of her feet and ankles. She also had abrasions to her forehead and right lower abdomen. These injuries raised concern regarding inflicted trauma and would not ordinarily occur except as a result of unreasonable or neglectful acts or omissions by appellant.
The petitions misspell “patterning” as “pattering.” This appears to refer to contact with an object that leaves a pattern on the skin.
Detention Hearing
In April 2007, the minors were ordered detained. The court again directed that father’s home be investigated as a placement for the minors.
Relative Placement Hearing
At a hearing in April 2007, the minors were placed with father in Utah under the supervision of DHHS. (§ 361.2, subd. (a).) The court found that father was “a nonoffending parent who did not have custody of the children who is otherwise appropriate for placement,” and “the only reason they weren’t returned to him last time is because the petition . . . was dismissed and the children were returned to the mother.”
Report for the Jurisdictional and Dispositional Hearings
In an interview for the report, appellant stated she “knew” K.C. had “a little bump on her forehead” that K.C. received “going down the slide.” Appellant had “no idea” how K.C. had sustained the other injuries. Admitting she had “swat[ted]” K.C. five times with a sandal or “flip-flop,” appellant speculated that the bruise on K.C.’s ankle was caused by shoes that were too small and that the bruises on K.C.’s left arm, bottom, and legs were caused by “wrestling around with her brother.” Appellant could not account for J.C.’s injuries.
Father was also interviewed and stated the following.
He opined that appellant had been negligent with the minors. He had ended his relationship with her “‘because she was very abusive . . . physically and emotionally’” to him and the minors. For example, she hit him, slapped him, threw things at him, and controlled him. Father said appellant “disappeared” with the minors and prevented him from seeing them for three years.
According to father, appellant’s first son had died from sudden infant death syndrome, but “there are a lot of rumors about her shaking him.” He also stated appellant had “‘a lot of depression,’” she went to counseling before she met him in 1999, and she “‘also has a lot of anger issues and blowing out tempers’ because of ‘her past’ and the death of her first son.’” Father asked appellant to attend therapy but she refused.
After placement with father, K.C. revealed that appellant’s boyfriend had inflicted some of the bruising. She also said that appellant had “‘hit her eyes and butt and that it hurted [sic].’” And she revealed that appellant and the boyfriend had hit the minors “‘a lot’” and hit J.C. “‘on the butt and body.’” When father’s wife pulled a blanket to cover J.C. in bed, he defended himself as though he expected that she would hit him.
In an interview, K.C. stated that appellant had hit her eyes “with a hammer” and had hurt her legs. K.C. said that appellant and her boyfriend had hurt her feelings, and that the boyfriend had hit K.C. with a knife.
Jurisdictional Hearing
Father testified that when the minors arrived at his home, K.C. had difficulty rising from a sitting position and could not stand upright due to pain. She complained that her back hurt badly every day because appellant had kicked her in the back. K.C. said her feet hurt because appellant had hit her with sandals. K.C. was also very skinny. She said her food had been taken away as punishment, and she always had to hide food so she could eat it later. Shortly after K.C. arrived, father discovered she was hiding food under her pillow. She told him that on one occasion, appellant’s boyfriend had kicked her hard. She also said that appellant had placed her fingers in K.C.’s vagina and had made it bleed.
Father testified that J.C. also complained about a lack of food while he was living with appellant. J.C. was always afraid there would not be enough food. Like his sister, he resorted to hiding food in his bed.
Father further testified that J.C. told him both appellant and her boyfriend had touched J.C.’s penis. Father observed both of the minors acting in a sexualized manner.
K.C. testified that appellant and her boyfriend had hit K.C. on the head, arms, and buttocks with a shoe, causing bumps and bruises on her head and arms; that the boyfriend had touched K.C.’s “private”; that appellant had not given K.C. enough to eat; that appellant had kicked K.C. and caused bruises on her legs; and that appellant and the boyfriend had punished K.C. by forcing her to stand until her feet turned blue.
The juvenile court allowed into evidence 24 photographs of the minors’ injuries taken at the medical center.
DHHS filed a first amended petition for each minor. The court found by a preponderance of evidence that each allegation of each petition was true.
Dispositional Hearing
At the dispositional hearing in September 2007, the court awarded sole legal and physical custody to father. (§ 361.2, subd. (b)(1).) In the alternative, it denied reunification services to appellant pursuant to section 361.5, subdivision (b)(6). The court granted appellant four annual visits, ordered that the minors have no contact with appellant’s boyfriend, and terminated juvenile court jurisdiction over the minors.
DISCUSSION
I
Appellant contends the juvenile court’s alternative ruling denying her reunification services under section 361.5, subdivision (b)(6) was beyond the court’s discretion because it had already awarded father sole custody pursuant to “Section 361.2, Subdivision (b)(3) [sic].”
DHHS makes no effort to defend the court’s ruling. Instead, DHHS suggests we “assume without deciding that the alternative finding under [section] 361.5 is error, and find that the error was either moot or harmless, in which case [we] can simply order the finding stricken.”
“‘[S]ection 361.2 deals specifically with the removal of a child from a custodial parent when there also exists a noncustodial parent.’” (R.S. v. Superior Court (2007) 154 Cal.App.4th 1262, 1270.) “In examining section 361.2, subdivisions (a) and (b), it is clear that the Legislature envisioned a two-step process: under subdivision (a), the court examines whether it would be detrimental to temporarily place a child with the nonoffending noncustodial parent; under subdivision (b), the court decides whether that placement should be permanent and whether the court’s jurisdiction should be terminated.” (In re Austin P. (2004) 118 Cal.App.4th 1124, 1131.)
Section 361.2, subdivision (b) states: “If the court places the child with [the nonoffending noncustodial] parent it may do any of the following: [¶] (1) Order that the parent become legal and physical custodian of the child. The court may also provide reasonable visitation by the noncustodial parent. The court shall then terminate its jurisdiction over the child. The custody order shall continue unless modified by a subsequent order of the superior court. The order of the juvenile court shall be filed in any domestic relation proceeding between the parents. [¶] . . . [¶] (3) Order that the parent assume custody subject to the supervision of the juvenile court. In that case the court may order that reunification services be provided to the parent or guardian from whom the child is being removed, or the court may order that services be provided solely to the parent who is assuming physical custody in order to allow that parent to retain later custody without court supervision, or that services be provided to both parents, in which case the court shall determine, at review hearings held pursuant to Section 366, which parent, if either, shall have custody of the child.”
Here, the juvenile court awarded custody to father pursuant to section 361.2, subdivision (b)(1), not subdivision (b)(3). Only subdivision (b)(1) allowed termination of court jurisdiction over the children. Subdivision (b)(3), in contrast, applies where the noncustodial parent assumes custody “subject to the supervision of the juvenile court,” which did not happen here.
Reunification services for the parent from whom a child has been removed in accordance with section 361.2 are authorized only by subdivision (b)(3). (R.S. v. Superior Court, supra, 154 Cal.App.4th at p. 1271; see id., fn. 4, at p. 1269.)
Because section 361.2, subdivision (b)(1) did not authorize reunification services for appellant, it was not necessary for the juvenile court to deny her services pursuant to section 361.5, subdivision (b)(6). As explained in R.S.: “Because father was a noncustodial parent, the juvenile court was bound to apply the provisions of section 361.2, not section 361.5.” (R.S. v. Superior Court, supra, 154 Cal.App.4th at p. 1271.) The court recognized that it was not necessary to apply section 361.5, “in that it is terminating dependency after changing the custody of the children.”
The superfluous ruling under section 361.5 does not undermine the proper order under section 361.2. (Civ. Code, § 3537.) But appellant contends the ruling may have prejudiced her chances of receiving reunification services for the two children she shares with her boyfriend. (Citing § 361.5, subd. (b)(7) [services may be denied if the juvenile court has previously denied services under section 361.5, subdivision (b)(6)].) Although the record does not support the claim of prejudice, we shall strike the superfluous ruling. Thus, we need not address appellant’s contention that the court purportedly erred in applying section 361.5, subdivision (b)(6).
II
Appellant next contends the juvenile court “did not have sufficient evidence to find that terminating jurisdiction under section 361.2, subdivision (b)(1) would not place the children at risk.” We disagree.
When the sufficiency of the evidence to support a finding or order is challenged on appeal, we must determine whether there is any substantial evidence--evidence that is reasonable, credible and of solid value--to support the conclusion of the trier of fact. (In re Angelia P. (1981) 28 Cal.3d 908, 924; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) In making this determination, we resolve all conflicts in favor of the judgment; issues of fact and credibility are questions for the trier of fact. (In re Jason L., supra, 222 Cal.App.3d at p. 1214; In re Steve W. (1990) 217 Cal.App.3d 10, 16.) Thus, we do not reweigh the evidence when assessing the sufficiency of the evidence. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
Here, the juvenile court found the minors “do not require ongoing juvenile court intervention in that their father has most definitely taken the placement of the children in his home seriously. He is doing an outstanding job of providing for the care of both J[.C.] and K[.C.], and they would be adequately provided for by him if the Court were to terminate dependent child status.”
Appellant does not attempt to show there is no substantial evidence to support the juvenile court’s finding. Rather, she simply highlights evidence that, if it had been credited by the court, might have led to a different decision. However, when appellant’s arguments “only tend to establish a factual context which, had it been credited by the trial court, might have led to a different decision,” such arguments are facially meritless in light of the standard of review in this court. (In re Charmice G. (1998) 66 Cal.App.4th 659, 664; italics added; see Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762; In re Jason L., supra, 222 Cal.App.3d at p. 1214.)
III
Appellant claims the juvenile court abused its discretion by refusing to grant her reunification services pursuant to section 361.2, subdivision (b)(3). (In re Nada R. (2001) 89 Cal.App.4th 1166, 1179 [denial of services reviewed for abuse of discretion].) She notes that the refusal was based on the language of the sustained petitions, i.e., appellant had inflicted “severe physical harm.” In appellant’s view, the refusal was an abuse of discretion not because the sustained petitions were inadequate to support the denial under section 361.2, but because the court also had before it “evidence that [appellant] should have been granted reunification services with the children.” We are not persuaded.
The sustained section 300, subdivision (a), allegation as to K.C. was that she had peticheal bruising behind her right ear, circular bruises to both arms, circular bruises to her buttocks, an abrasion to her lower left rib line, bruising covering the backs of her thighs, some patterning and blue bruises within, and a blue bruise on her left foot with swelling of her feet and ankles. She also had abrasions to her forehead and right lower abdomen. These injuries raised concern regarding inflicted trauma and would not ordinarily occur except as a result of unreasonable or neglectful acts or omissions by appellant.
Appellant relies on evidence that she mailed letters to the children every week; she participated in parenting classes and counseling; her visitations with the children had been problem-free; K.C.’s bond with appellant had been strong but was being broken; appellant did not use drugs or alcohol and had no criminal history or mental health problems; and the sustained petitions did not name her boyfriend as a perpetrator of abuse upon the minors. In appellant’s view, “[a]ll of these reasons provided more than an adequate basis to grant reunification services” to her. The argument lacks merit.
To show an abuse of discretion, appellant must do more than show the presence of facts that would have supported the provision of services if the court had exercised its discretion to do so. Decisions affirming a juvenile court’s decision to provide services where warranted by facts (In re Austin P., supra, 118 Cal.App.4th 1124) do not advance appellant’s argument. She must show denial of services to a parent found to have inflicted serious physical harm exceeded the limits of legal discretion. (In re Nada R., supra, 89 Cal.App.4th at p. 1179.) She fails to do so.
IV
Lastly, appellant contends the juvenile court abused its discretion when it delegated to father and the minors’ therapists the discretion to make arrangements for appellant’s four annual visits with the children. We disagree.
The juvenile court ordered: “[Appellant’s] visits shall be supervised, third party authorized, a minimum of quarterly, as arranged and directed by the father with the father also to determine where the visits are to take place. Additionally, the children’s therapists’ input is to be considered in the facilitation of visits.”
In appellant’s view, this order is “illusory” because the court ordered visitation while delegating to the therapists the responsibility and power to “determine when visitation would occur, without specifying criteria for making that determination.” (Citing In re Hunter S. (2006) 142 Cal.App.4th 1497, 1505.)
This argument overlooks the plain language of the order. The therapists are not granted any “responsibility” or “power” with respect to visitation; they are entitled to offer input, and to have it considered, but they are not entitled to have their input accepted rather than rejected. As the therapists presumably are professionals in their field, we perceive no need for the juvenile court to establish criteria for the formulation of their input. Unlike Hunter S., supra, 142 Cal.App.4th 1497, in which a child was allowed to veto visitation, the therapists were not given “the power to determine when visitation would occur.” The visitation order was not illusory.
In making visitation orders, a juvenile court can properly delegate “the ministerial tasks of overseeing the right as defined by the court. . . . Such matters as time, place and manner of visitation do not affect the defined right of a parent to see his or her child and thus do not infringe upon the judicial function.” (In re Jennifer G. (1990) 221 Cal.App.3d 752, 757.) “Only when a visitation order delegates . . . the absolute discretion to determine whether any visitation occurs does the order violate the statutory scheme and separation of powers doctrine.” (In re Moriah T. (1994) 23 Cal.App.4th 1367, 1374.)
Here, the order expressly delegated to father the matter of place of visitation and impliedly delegated to him the matters of time and manner of visitation. This does not infringe on the judicial function. (In re Jennifer G., supra, 221 Cal.App.3d at p. 756.) Because visits must occur “a minimum of quarterly,” they must commence within three months of the order. There was no error.
DISPOSITION
The judgment is modified by striking the juvenile court’s denial of reunification services pursuant to section 361.5. As modified, the judgment is affirmed.
We concur: BLEASE, J., BUTZ, J.