Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Fresno County. Jamileh Schwartzbart, Judge, Super. Ct. No. 02CEJ300221.
Gino de Solenni, under appointment by the Court of Appeal, for Defendant and Appellant.
Dennis A. Marshall, County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Gomes, J.
Five-month-old E.C. was injured as a result of non-accidental, physical trauma inflicted by her father, Jesus C. (father). Dependency jurisdiction was taken over E. and father’s four-year-old son, J.C. The juvenile court denied father reunification services pursuant to Welfare and Institutions Code section 361.5, subdivision (b)(5). Father contends there is insufficient evidence to support the juvenile court’s findings denying him services. As we shall explain, we will affirm.
The children’s mother, Angel H. (mother), who was a party to the proceedings below and granted reunification services, is not a party to this appeal. The children also have a two-year-old half-brother, who has a different father. He is not a subject of this appeal.
All statutory references are to the Welfare and Institutions Code unless otherwise stated.
FACTUAL AND PROCEDURAL BACKGROUND
On November 7, 2006, a social worker responded to a crises referral that E. was being examined at University Medical Center (UMC), where she was in an “altered state,” with breathing problems and a bump with abrasions on the back of her head. Mother initially told hospital personnel E. “‘rolled off a bed and onto a coffee table,’” but later stated E. fell out of father’s arms.
The social worker spoke with mother, who explained that when she returned home at about 3:30 that afternoon after picking up J. from school, father was holding E. Mother could tell something was wrong and asked what happened. Father told her he had tripped or fallen about 10 minutes before, and while he was falling, E. hit the wooden arm of their sofa. Mother called 911 after she was unable to calm E. down. While waiting for the ambulance, E. turned blue around her mouth. At the direction of the 911 operator, mother performed mouth-to-mouth resuscitation. Both E. and mother were transported to UMC.
The social worker spoke with a police officer, who said father told him that while he was walking around holding E., who was fussy, he tripped over a cable on the floor and dropped E. as he was falling. It did not appear to the officer that father was under the influence. Father told the social worker mother had left to pick up J., leaving him home alone with E. and her half-brother. When E. became fussy, father picked her up and, while walking around, tripped on a cable wire on the floor. As he fell, E. fell out of his arms and hit her head on the sofa’s wooden armrest.
Father later told another police officer that he tripped or slipped on something on the living room floor. Father was not sure what he tripped on, but he lost his balance and as he fell to the floor, he held out his left hand. The next thing he knew, E. had “‘flown’ out of his grip” and he saw her hit the couch and fall to the tile floor next to the front door. In a later statement, father told police he was not sure what he stumbled on – it may have been a cup, a toy or the carpet – but the next thing he knew, E. was on the tile floor by the front door. He was not certain what she hit. At first, father said he wasn’t certain whether the front door was open or closed, but later said he thought the front door was open, although he wasn’t sure whether E. hit the front door.
The parents told the social worker they lived together with the three children, and denied any domestic violence history. Mother admitted she was using methamphetamine, and had used some the night before E. was taken to UMC. Father said he was aware of mother’s drug use.
E., who had a subdural hematoma on the right side of her brain and a bruise on her head, was admitted to UMC for observation. The following day, she was in critical, but stable, condition. Later medical evaluations revealed that E. had posterior and right frontal subdural hematomas, and bilateral retinal hemorrhaging, which were consistent with shaken baby syndrome and non-accidental trauma, as well as a bulging fontanel with irritability. Mother did not believe father deliberately abused E., even after being told E.’s injuries were consistent with shaken baby syndrome and non-accidental trauma.
On November 14, 2006, respondent Fresno County Department of Children & Family Services (the Department) filed a petition under section 300, subdivisions (a), (b) and (e). The petition alleged: (1) E. had suffered serious physical harm inflicted non-accidentally by father, and J. was at substantial risk of suffering serious physical harm (§ 300, subd. (a)); (2) mother had a substance abuse problem that negatively affected her ability to provide her children with adequate care, protection and supervision (§ 300, subd. (b)); and (3) E. suffered severe physical harm inflicted by father (§ 300, subd. (e)).
On November 15, E. was transferred to Children’s Hospital of Central California (CHCC) for testing and treatment of possible sepsis or meningitis. After receiving treatment with antibiotics, E. was discharged from CHCC on November 25. In a December 5, 2006, letter, Dr. Donald W. Fields, chairman of the CHCC’s department of medicine, opined it was highly unlikely a simple drop from a standing position onto a couch’s arm would cause E.’s injuries and the injuries could have resulted in permanent disability or death had medical attention not been sought.
A contested jurisdictional hearing was held on the section 300, subdivisions (a) and (e) allegations. Dr. Melissa Aguirre, who cared for E. at UMC, testified E.’s injuries were caused by shaken baby syndrome, which is evident when an infant has suffered significant inter-cranial injury, usually subdural hematomas and retinal hemorrhages, but does not display external physical injuries. E. displayed these symptoms. In Dr. Aguirre’s opinion, E.’s injuries appeared to have been caused intentionally and if left untreated, could have resulted in death. Dr. Aguirre further testified that had E. fallen from father’s arms, hit her head on the edge of a sofa, and then tumbled and fell on a tile floor, that would not have exerted enough force to cause E.’s injuries, which only could have occurred had E. been violently shaken.
Mother submitted on the section 300, subdivision (b) allegation that she had a substance abuse problem which affected negatively her ability to provide care for her children. The court found the allegation true and that the children came within the jurisdiction of section 300, subdivision (b).
Father testified he had been carrying E. and tripped on something that caused him to fall as he was holding her. E. “went flying” out of his arms and hit the couch. Father denied shaking E. or throwing her against anything.
Dr. Fields testified that in his opinion, E.’s diagnosis was shaken baby syndrome due to her “brain bleed” and extensive retinal hemorrhaging without a reasonable explanation. Dr. Fields further testified that none of father’s explanations could account for E.’s injuries. Dr. Fields opined E.’s injuries would have caused permanent disfigurement, disability or death if left untreated.
At the conclusion of the jurisdictional hearing, the court found the section 300, subdivisions (a) and (e) allegations true.
A May 30, 2007, social study was prepared for the contested dispositional hearing. It was noted in the social study that J. previously had been the subject of dependency proceedings, which were initiated in September 2002, when J. was one month old, after his parents were arrested for selling narcotics. An earlier social study prepared for the detention hearing revealed that in the 2002 proceeding, mother was found to be under the influence of drugs while caring for J. and father was found to have failed to protect J., as he reasonably should have known of mother’s drug use and illegal drug activity. Court-ordered reunification services included (1) parenting classes, (2) substance abuse evaluation, testing and any recommended treatment, and (3) a mental health evaluation and any recommended treatment. Father received services, but he failed to comply with them and they were terminated in July 2003. Mother received family maintenance services after J. was placed with her in a residential substance abuse treatment program. Mother completed the court-ordered services and the case was terminated on March 1, 2005, as mother successfully reunified with J.
The social study further noted that father has three other children from another relationship who became dependents after they were removed from their mother’s care due to abandonment while father was incarcerated. Father was receiving reunification services as a non-offending parent. He started participating in services in September 2006, after being released from prison. Father had completed a domestic violence index and substance abuse evaluation, and was attending therapy. He was also drug testing for parole and the Department, and apparently testing clean, but had not completed all services. Although father was a non-offending parent in that case, he was not considered suitable for placement or care of the children due to his extensive criminal history for burglary, robbery, weapon charges, domestic violence and drug charges. By the time the social study was prepared, father was back in prison due to a relapse with narcotics and the Department was recommending termination of father’s services in that case.
Police reports also revealed father was attending parenting classes.
The social study reflected father had an extensive criminal history, which, according to Fresno County Sheriff’s records, began in 1991 and included at least one arrest for each of the following: receiving stolen property; stealing a vehicle; planting or cultivating marijuana/hashish; committing a felony while armed; robbery; contributing to the delinquency of a minor; making a terrorist threat to family; contempt of court child support; disorderly conduct drunk; trespass/occupy; resisting a police officer; possession, manufacture or sale of a dangerous weapon; and possession of burglary tools. When the Department requested father’s CLETS report, the request apparently was refused because there were “‘too many’ to list.”
Mother told the Department she had ended her relationship with father, and there had been prior domestic violence between them. Father denied causing E.’s injuries. In the social worker’s opinion, father appeared to have no insight into the severity of his substance abuse or anger management issues, although he was participating in services. Father told the Department he would like to reunify with his children. Father had supervised visits with the children before being taken back into custody. During these visits, father was appropriate with the children and interacted well by playing with them. The Department, however, requested that visits be suspended.
The Department initiated referrals for father in the current dependency case on November 14, 2006. On November 29, 2006, the Department mailed father a letter outlining the services to which he had been referred, which included attending a concurrent planning orientation, enrolling in drug testing, attending a parenting class, completing a substance abuse evaluation and domestic violence index, and scheduling a mental health evaluation. According to the social study, father attended the concurrent planning orientation in December 2006. He completed a mental health evaluation on October 11, 2006, which had been ordered in his other children’s dependency case. Father exhibited symptoms of sadness, worry, hopelessness and anger, and reported having difficulty adjusting to the new environment. Ongoing therapy was recommended. Father was referred to a therapist, but was unable to participate due to his incarceration. On October 31, 2006, father completed a domestic violence evaluation, which also had been ordered in the other dependency case. He reported losing control when under the influence of drugs and alcohol. It was recommended he attend an anger management course. A certificate was attached to the social study, which showed that on August 31, 2006, father satisfied 12 certification units in anger management through an adult school.
A family reunification services review panel evaluated whether reunification services should be offered to father and recommended that services be denied. The panel found father met the criteria for denial of services under section 361.5, subdivision (b)(5), as the juvenile court previously had found true the allegation under section 300, subdivision (e) that father severely physically abused E. The panel noted that father had been involved in domestic violence with mother, the incident with E. occurred after father had completed the 12-week anger management course at the adult school, father’s services in J.’s 2002 dependency case were terminated and he failed to reunify with J. The panel concluded that father had a history of violent behavior and failed to respond to services, and further services would not prevent reabuse. The panel further noted that father had not been able to build much of a relationship with his children, as he had been incarcerated for a good portion of their lives; therefore, it would be detrimental to the children to provide services to father.
The panel also recommended denial of services under section 361.5, subdivision (e)(1) due to father’s incarceration. The Department, however, ultimately withdrew this ground for denial.
At the contested dispositional hearing, a social worker testified the panel recommended denial of reunification services to father because of the severity of E.’s injuries, as well as his history with his other children. She testified when the panel met to consider whether to offer father reunification services, they looked at some of the services father was in, but since they didn’t know when he would be released from prison, they didn’t consider what services would be appropriate for him.
The social worker confirmed the Department was recommending denial of services under section 361.5, subdivision (b)(5). The panel considered that father had been through an anger management class at an adult school before injuring E., which indicated the course was not likely to prevent reabuse as father was not using the tools he supposedly learned in the class. The social worker also testified father had been provided reunification services in J.’s 2002 dependency case and was offered substance abuse treatment, domestic violence treatment, parenting classes and mental health services, yet he failed to reunify with J. Father never had acknowledged to the social worker that he intentionally caused E.’s injuries, and still was maintaining the injuries occurred accidentally. The social worker understood father’s recent incarceration was due to his relapse with narcotics. She did not have any reason to believe father had addressed his anger management or substance abuse issues.
The social worker testified father had come to her office since his most recent release from custody, but she had not yet met with him. Father currently was not enrolled in any services. The Department had not considered offering father a psychological evaluation to determine what services would be appropriate to remedy the issues in the case.
Father testified he had 13 visits with the children since the beginning of the dependency proceedings, which had gone “pretty good.” Father claimed he had a bond with J., who “always wants to play with me.” Father had been incarcerated for a year and a half of J.’s life. Father, who was on parole for a conviction for receiving stolen property, had recently been incarcerated for three and a half months for a parole violation due to substance abuse. When asked to describe his relationship with E., father said he was trying to bond with her because she’s still a little baby and he was just getting to know her. He said he wanted to be a father to the children. When he lived with them, he provided financial support for them and cared for them when mother was at work. Father felt there were services that would help him reunify with the children and he was willing to undertake any services the Department offered or the court ordered. Father confirmed that he and mother were no longer a couple. Father felt it would be detrimental to the children if they were not offered the opportunity to reunify with him because they wouldn’t have fatherly love or support, and it was important for them to know their father.
When asked whether he “felt” he needed any services, father responded “just substance abuse maybe,” because “I know I have a problem of substance abuse.” Father, however, could not think of any other services that might be helpful to him. Father testified the anger management class he participated in consisted of completing two pamphlets while in custody. There had been no classes, instruction, or group meetings.
The court found the children were dependents of the court and ordered their continued removal from their parents’ custody. Father continued to have supervised visitation. The court, however, denied father reunification services pursuant to section 361.5, subdivision (b)(5). The court found the Department sufficiently established by clear and convincing evidence the basis for denying services and there was no evidence presented under section 361.5, subdivision (c) to support a granting of services. Specifically, the court found there was no evidence of any weight that services were likely to prevent abuse or continued neglect of the children, or the failure to try reunification would be detrimental to them.
DISCUSSION
Father contends the juvenile court’s disposition order which denied reunification services as to both children should be reversed. Specifically, he argues the court should have ordered reunification services because there was insufficient evidence to support findings that services (1) were unlikely to be successful in reunifying him with E., and (2) would not be in J.’s best interest. We address each contention in turn.
Denial of Reunification Services as to E.
The juvenile court denied services as to E. pursuant to section 361.5, subdivision (b)(5). Under that subdivision, the juvenile court is not required to provide family reunification services to a parent if it finds, by clear and convincing evidence, that the child was adjudicated a dependent under section 300, subdivision (e) because of the parent’s conduct. A child may be adjudged a dependent under section 300, subdivision (e) when he or she “is under the age of five years and has suffered severe physical abuse by a parent ….”
Section 361.5, subdivision (b)(5) provides in pertinent part: “Reunification services need not be provided to a parent … described in this subdivision when the court finds, by clear and convincing evidence, … [¶] [t]hat the child was brought within the jurisdiction of the court under subdivision (e) of Section 300 because of the conduct of that parent ….”
Section 361.5, subdivision (c) sets out the procedural steps to be followed in a denial of services under subdivision (b)(5). The social worker must prepare a report advising the court of the appropriateness of reunification services. (§ 361.5, subd. (c), par. 1.) When a juvenile court makes a finding pursuant to section 361.5, subdivision (b)(5), the court cannot order reunification services unless it finds, based on competent testimony, that (1) those services are likely to prevent the reabuse or continued neglect of the child or (2) the failure to try reunification is likely to be detrimental to the child because the child is closely and positively attached to the parent. (§ 361.5, subd. (c), 3d par.; In re Heather A. (1996) 52 Cal.App.4th 183, 193 (Heather A.).) To assist the court with this determination, 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), 3d par.) Factors indicating that reunification services are unlikely to be successful include (1) the parent’s failure to respond to previous services, (2) the fact that the child was abused while the parent was under the influence of drugs or alcohol, (3) a past history of violent behavior, or (4) testimony by a competent professional that services are unlikely to change the parent’s behavior. (§ 361.5, subd. (c), 4th par.)
Father does not challenge the juvenile court’s jurisdictional findings, one of which established jurisdiction under section 300, subdivision (e), because E. had suffered severe physical injury due to father’s conduct. The existence of this finding was a proper basis for the court to refuse to extend reunification services to father pursuant to section 361.5, subdivision (b)(5). (See In re Rebekah R. (1994) 27 Cal.App.4th 1638, 1652 (Rebekah R.); see also Tyrone W. v. Superior Court (2007) 151 Cal.App.4th 839, 849.) Father does not contend otherwise. We also note that father is not claiming E. has a close and positive attachment such that it would be detrimental to her to deny father services. Indeed, E.’s extremely young age appears to preclude such a contention. (Rebekah R., supra, 27 Cal.App.4th at p. 1653.)
Thus, we focus on whether there is substantial evidence to support the juvenile court’s finding that court-ordered services for father were not likely to prevent reabuse of E. (See Rebekah R., supra, 27 Cal.App.4th at p. 1652.) In doing so, we consider the evidence in the light most favorable to the court’s determination, drawing all reasonable inferences and resolving all conflicts in its favor. (In re Angelique C. (2003) 113 Cal.App.4th 509, 519.) Issues of fact and credibility are in the juvenile court’s province. (Heather A., supra, 52 Cal.App.4th at p. 193.) Moreover, that there may have been other evidence that would have supported a decision in favor of services is immaterial. (Ibid.)
The Department asserts the appropriate standard of review of a juvenile court’s decision to not order services under section 361.5, subdivision (c) is abuse of discretion, citing to dicta in Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96. This court, however, applied the substantial evidence standard of review in reviewing such a decision in Rebekah R., supra, 27 Cal.App.4th at p. 1652. (See also Raymond C. v. Superior Court (1997) 55 Cal.App.4th 159, 164 (Raymond C.) [noting a finding that services are likely to prevent reabuse of the child “must be supported by substantial evidence”; court applied that standard to determine that juvenile court properly refused services under section 361.5, subdivisions (b)(5) and (c)].) Accordingly, we apply the substantial evidence standard of review here. We note, however, that even if the abuse of discretion standard applies, the court’s order was proper.
The burden of proving that reunification services would likely prevent reabuse is on father. (Raymond C., supra, 55 Cal.App.4th at p. 163.) Once it is established by clear and convincing evidence that a child falls within the provision of section 300, subdivision (e), the general rule favoring reunification services no longer applies. (Raymond C., supra, 55 Cal.App.4th at p. 164.) Instead, there is a legislative assumption that providing services would be an unwise expenditure of governmental resources. (Ibid.) While a social services department has a statutory duty to investigate and prepare a report for the juvenile court about the prognosis for a successful reunification, it is not required to prove the services will be unsuccessful. (Ibid.)
The evidence establishes a social worker investigated the circumstances leading to E.’s removal and advised the juvenile court whether reunification was likely to be successful or unsuccessful. The social study detailed E.’s injuries and that they were consistent with shaken baby syndrome and non-accidental trauma. The report noted E. was in father’s care and he had not provided a reasonable explanation as to how she sustained her injuries. Moreover, the social worker testified father continued to claim the injuries occurred accidentally. The social study noted that father previously had received reunification services, first in 2002, when dependency jurisdiction was taken over J., and later in 2006, when dependency jurisdiction was taken over his other children. Father, however, did not comply with services in J.’s prior case, and services were terminated, and although father had participated in some services in the later case, he had not completed them and the Department was recommending termination of services. In the current case, the Department notified father in writing of the reunification services being offered. While father already had begun some of the services before the current dependency proceedings began, instead of continuing with services, he violated parole due to his substance abuse and was incarcerated. The social study also noted father had a history of violent behavior, as shown by mother’s statement that there had been domestic violence between them, and the incident with E. occurred after father had completed a 12-week anger management course. Based upon all these factors, the panel concluded that “any further services provided to [father] would not prevent reabuse.”
Father contends the Department failed to assess the factors necessary to determine whether reunification services would be successful because the social worker, when asked whether the panel considered what services would be appropriate for father, testified the panel only considered the services father was in at the time since they didn’t know when he would be released from prison. That the Department may not have considered whether father could be given additional services, however, does not compel a conclusion the Department failed in its duty to advise whether reunification would be successful. While, as father points out, the Department has a statutory obligation to identify what services are available to a parent when services are being offered to that parent (§ 361.5, subd. (a); In re Monica C. (1995) 31 Cal.App.4th 296, 307-308), the Department does not necessarily have a similar obligation when the Department is recommending denial of services. (§ 361.5, subd. (a).) Moreover, even if the Department identified services that would have helped father prevent reabuse had he successfully completed them, father’s history of failing to complete services is a circumstance that indicates reunification was likely to be unsuccessful.
Father asserts there is no evidence to support the statement in the social study that he had a history of violent behavior. Although father acknowledges mother told Department staff there had been domestic violence between her and father in the past, he argues the statement was unsubstantiated and contradicted by mother’s prior denials that domestic violence occurred. That there was evidence to contradict her statement, however, does not invalidate her later admission. Had father wanted to challenge the statement as a basis for the Department’s conclusion that reunification services were not likely to be successful, he could have called mother as a witness at the disposition hearing. His failure to do so, or to otherwise challenge mother’s statement, means the statement constitutes evidence from which the court could conclude father had a history of domestic violence. While, as father points out, there was no evidence of prior physical abuse of the children, the Department did not use that prior abuse as a basis for determining father had a past history of violent behavior.
As the Department investigated father’s circumstances and prepared a report about the prognosis for successful reunification, the burden shifted to father to prove services would likely prevent reabuse. (Raymond C., supra, 55 Cal.App.4th at p. 163.) Father failed to meet this burden. Father continued to insist that E.’s injuries were the result of an accident instead of deliberate conduct on his part, thereby failing to accept responsibility for his actions. Although father testified he had a substance abuse problem, father did not have any insight into the problems that led to dependency, as shown by his failure to identify anger as a problem that he needed to address. From this, it reasonably could be concluded that reunification services were unlikely to prevent reabuse because the abuser failed to acknowledge his role in inflicting E.’s injuries; thus, any services to address anger management or other causes would be fruitless.
Father asserts his failure to admit his responsibility for E.’s injuries does not compel a conclusion concerning whether reunification services were likely to succeed, citing Rebekah R., in which we addressed whether the Department met its burden under section 361.5, subdivision (c) of advising the court whether reunification between a father and his daughter, who had been abused by her mother, was likely to be successful. Father points to the following language in the case: “the parents’ inability to provide a reasonable explanation for how [the minor] sustained her injuries, does not compel a conclusion one way or the other concerning the likely success of reunification services. At best, it goes to issues involving the father’s credibility with respect to the circumstances which led to [the minor’s removal].” (Rebekah R., supra, 27 Cal.App.4th at p. 1653.) From this, father reasons his failure to provide a reasonable explanation for E.’s injuries cannot be used to determine whether reunification would be successful.
Rebekah R., however, is distinguishable, as the juvenile court expressly found the father had not inflicted the minor’s injuries. (Rebekah R., supra, 27 Cal.App.4th at p. 1653, fn. 10.) Since the father’s culpability, and one of the causes of dependency, was based on his failure to recognize the mother’s responsibility for his daughter’s injuries, this court reasoned father’s shortcomings could not provide a viable ground for declining to offer services, as it would render meaningless “the provision in subdivision (c) which permits the court to extend services to a parent who is implicated in the abuse of a child.” (Id. at p. 1655.) In contrast here, E. became a dependent because father was the one who inflicted E.’s injuries. Even though medical testimony showed E.’s injuries could not have been inflicted as father claimed and instead resulted from shaken baby syndrome, father continued to deny deliberately shaking E. It is father’s continued insistence that E.’s injuries resulted from his accidentally dropping her, and not from his deliberate conduct, that makes it unlikely reunification services would be successful.
Father contends there is evidence that services were likely to prevent reabuse. He points out that he had been referred to some services, completed mental health and domestic violence evaluations, visited with the children, and testified he was willing to participate in services. In addressing the claim that he failed to learn from past services, he asserts the services he received in the 2002 case did not address the issues of this case, namely physical abuse, as those services were directed at substance abuse, and he could not be expected to learn anything from the anger management course he completed because it only involved completing pamphlets, not counseling or group meetings. Finally, he contends that since the court ordered reunification for mother, the ultimate disposition of the case would not have been delayed had he also been ordered services.
We do not reverse, however, simply because there is some evidence to support an appellant’s position. It is our task to determine whether there is substantial evidence to support the court’s finding that reunification services were not likely to prevent reabuse. That father had completed some aspects of the court-ordered services must be viewed in light of the evidence that he failed in two prior dependency proceedings to comply with services. These failures show that father has a poor prognosis for complying with services in the present case. The juvenile court saw father testify and was free to disbelieve his testimony that he would comply with services. Father’s failure to successfully complete prior court-ordered services is a factor indicating that reunification services were not likely to be successful in that one must participate in services in order to benefit from them.
In sum, the evidence provides substantial support for the juvenile court’s finding that services for father were not “likely to prevent reabuse or continued neglect of the child” within the meaning of section 361.5, subdivision (c). Accordingly, we conclude the court did not err in denying reunification services to father as to E. pursuant to section 361.5, subdivision (b)(5).
Denial of Reunification Services as to J.
The juvenile court denied reunification services as to both children pursuant to section 361.5, subdivision (b)(5). As the parties point out, subdivision (b)(5), which authorizes denial of reunification services if the child was brought within the court’s jurisdiction pursuant to section 300, subdivision (e), while applicable to E., is not applicable to J., since J. was not brought within the court’s jurisdiction pursuant to that subdivision.
The parties agree that, given that father was denied reunification services as to E. pursuant to section 361.5, subdivision (b)(5), father could have been denied services as to J. pursuant to section 361.5, subdivision (b)(7), which allows for denial of services when “the parent is not receiving reunification services for a sibling … of the child pursuant to paragraph (3), (5) or (6).” Accordingly, we can imply from the no-services order a finding that services were not justified under section 361.5, subdivision (b)(7). (Rebekah R., supra, 27 Cal.App.4th at p. 1652.)
Section 361.5, subdivision (c) includes a narrow exception to the general prohibition against ordering reunification services for a parent who falls under section 361.5, subdivision (b)(7). Under subdivision (c), even when the court finds that subdivision (b)(7) applies, it may still offer services to a parent if the “court finds, by clear and convincing evidence, that reunification is in the best interest of the child.” (§ 361.5, subd. (c), 2d par.; see In re Brooke C. (2005) 127 Cal.App.4th 377, 383-384; Marlene M. v. Superior Court (2000) 80 Cal.App.4th 1139, 1149-1150.)
Father contends that in denying services under section 361.5, subdivision (b)(7), the court must have implicitly considered the factors set out in section 361.5, subdivision (h) to conclude that reunification services would not benefit J. Section 361.5, subdivision (h) provides a list of factors a juvenile court should consider when “determining whether reunification services will benefit the child pursuant to paragraph (6) or (7) of subdivision (b).” As pertinent here, these factors include (1) the severity and circumstances of the physical harm to the sibling, (2) the severity of the emotional trauma to the child, (3) evidence of abuse of other children, (4) the likelihood the child may be safely returned to the parent within 12 months without supervision, and (5) the child’s wishes. Applying these factors, father asserts there is insufficient evidence to support a finding that reunification services would not benefit J.
In its entirety, section 361.5, subdivision (h) provides: “In determining whether reunification services will benefit the child pursuant to paragraph (6) or (7) of subdivision (b), the court shall consider any information it deems relevant, including the following factors: [¶] (1) The specific act or omission comprising the severe sexual abuse or the severe physical harm inflicted on the child or the child’s sibling or half sibling. [¶] (2) The circumstances under which the abuse or harm was inflicted on the child or the child’s sibling or half sibling. [¶] (3) The severity of the emotional trauma suffered by the child or the child’s sibling or half sibling. [¶] (4) Any history of abuse of other children by the offending parent or guardian. [¶] (5) The likelihood that the child may be safely returned to the care of the offending parent or guardian within 12 months with no continuing supervision. [¶] (6) Whether or not the child desires to be reunified with the offending parent or guardian.”
We question whether a finding that services will not benefit the child is required where, as here, services are denied under section 361.5, subdivision (b)(7) because services have been denied to the child’s sibling pursuant to section 361.5, subdivision (b)(5). As the Department points out, while section 361.5, subdivision (h) lists the factors a court “shall consider” when “determining whether reunification services will benefit the child” pursuant to section 361.5, subdivisions (b)(6) or (7), subdivision (b)(7) does not state that the court is required to determine whether reunification services will benefit the child before denying services under that subdivision. Instead, subdivision (b)(7) states only that services may be denied where the parent is not receiving services for a sibling pursuant to subdivisions (b)(3), (5) or (6). It is section 361.5, subdivision (b)(6) that requires the court to expressly find the pursuit of reunification services with the offending parent would not benefit the child before denying services under that subdivision, which also requires a finding that 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 to the child or the child’s sibling by a parent. Neither subdivision (b)(3) nor subdivision (b)(5) require a finding that reunification services will not benefit the child before denying services under those subdivisions. For that reason, it does not appear that the juvenile court was required to make such a finding here, and the only issue then is whether there is substantial evidence to support a finding that reunification is not in J.’s best interest.
We need not decide, however, whether the court was required to find that reunification would not benefit J. or otherwise consider the factors listed in section 361.5, subdivision (h), because even if it were required to do so, substantial evidence supports such a finding. The evidence establishes that E.’s injuries were serious and would have resulted in her death if left untreated. The evidence also supports a finding that father intentionally inflicted the injuries himself by shaking E. The evidence negates any reasonable likelihood that J. can be safely returned to father within the remaining statutory period for reunification. Father has taken parenting and anger management classes but, despite these services, continues to deny responsibility for E.’s injuries and shows no insight into the problems that led to them. Although father testified he was willing to participate in services, the court was not required to believe his testimony. Father’s poor compliance with reunification services in the past certainly supports a finding it was unlikely he would comply with services now.
The Department asserts the appropriate standard of review is abuse of discretion. While we apply the substantial evidence standard, we note that under either standard, the court did not err.
Father claims services would have benefitted J. because J. enjoyed visiting with father and father testified J. was bonded with him. Father’s relationship with J., however, may be viewed in light of the undisputed evidence that father failed to comply with reunification services in J.’s prior dependency case and had been incarcerated for at least a year and a half of J.’s young life. Even if father and J. shared a bond, there is no evidence the bond was a strong one and four-year-old J.’s need for stability and permanency certainly outweighs any bond between them.
In the end, we come back to the enormous hurdle faced by a parent seeking reunification with a child after causing near-fatal injuries to a sibling. The statutory scheme may contemplate a case where such a parent might still be offered reunification services for another child. This, however, is not such a case.
DISPOSITION
The juvenile court’s jurisdictional and dispositional orders are affirmed.
WE CONCUR: Vartabedian, Acting P.J., Cornell, J.