Opinion
NOT TO BE PUBLISHED
Humboldt County Super. Ct. No. JV110040
Haerle, Acting P.J.
I. INTRODUCTION
Three-month-old L.T. was admitted to the hospital with multiple serious injuries in various stages of healing. Subsequently, the juvenile court exercised jurisdiction over L.T., denied reunification services to both his parents and set a hearing pursuant to Welfare and Institutions Code section 366.26.
Undesignated statutory references are to the Welfare and Institutions Code.
B.S. (Father) and M.T. (Mother) filed separate petitions seeking review by extraordinary writ which we consider together in this opinion. Both parents contend there is insufficient evidence to support the order denying them reunification services. In addition, Mother contends that the juvenile court failed to comply with the Indian Child Welfare Act and also raises several cursory procedural objections to the disposition order. We reject all of parents’ contentions and deny both petitions on the merits.
II. STATEMENT OF FACTS
A. Background
On March 3, 2011, at around 4:00 a.m., Father and Mother took L.T. to Mad River Hospital in Arcata, and reported that the baby was having trouble breathing and seemed “unresponsive.” L.T. had multiple bruises on his face, head and torso which the parents could not explain. The attending physician could see that L.T. was in “obvious pain, ” and was also concerned that Father was not holding the baby properly. Even after the doctor corrected him, Father held L.T. in a way which caused the baby’s head to “flop down.” Additional tests were conducted and arrangements were made to transport L.T. to Children’s Hospital in Oakland. Meanwhile, hospital staff contacted the Arcata Police Department.
All date references in our statement of facts are to the 2011 calendar year unless otherwise noted.
At around 6:30 a.m., Arcata Police Detective Robert Martinez conducted separate interviews of the parents. Both reported that L.T. did not have any injuries when he went to sleep the night before and that nobody came into contact with him between the hours of 10:00 p.m. and approximately 4:00 a.m.
Mother reported hearing L.T. “fussing” at around 4:00 a.m. Mother expressly stated that L.T. was not crying, explaining that he is not a baby who cries. She stated that Father changed the baby and then went to make him a bottle. When he returned, L.T. was not breathing. In a panic, Father brought the baby to Mother. At that point, Mother noticed bruising on the baby’s head and lips. She gave him two quick raps on the back which started him breathing again. According to Mother, L.T. stopped breathing again while they were en route to the hospital. She reported that the baby had a similar incident a few days earlier. Although that incident had been “scary, ” and Mother suspected that L.T. had experienced a seizure, she did not seek medical treatment at that time.
When asked about the events of the previous night, Mother reported that she and Father went to a casino from about 6:00 to 8:00 p.m. They left the baby with Steven and his girlfriend, a homeless couple who came to their home to watch L.T. Mother reported that another woman named Jane babysat for L.T. four days earlier when she and Father ran errands and went to a casino.
Mother insisted that there were no bruises on the baby when she and Father returned from the casino on the evening of March 2. She speculated that L.T. may have hurt himself on the bars of the crib. She also admitted that Father or even she could have caused the bruises on the baby’s abdomen when they were trying to get him to breathe again.
Father reported that at around 4:00 that morning he was awakened by the baby’s loud screaming and crying. He said that Mother was “fucking passed out” at the time and that he went to the nursery, changed the baby’s diaper and then turned him on his stomach before going to make a bottle. Father reported that he did not see any bruises on L.T.’s body when he was changing the baby’s diaper. When Father returned with the bottle, L.T. was unresponsive and not breathing. Father took the baby to Mother who turned him over and gave him two raps on the back. Then the couple rushed L.T. to the hospital.
Father told the detective that he was sure that Steven and his girlfriend had not injured the baby because Father held L.T. both before they left and after they returned from the casino and he was fine. He said he did not see any bruises on L.T. until they arrived at the hospital. He speculated that the bruises on L.T.’s belly could have happened while he and Mother were frantically rushing him to the hospital. He recalled that he was really “rough” when he picked the child up by his belly. As for the bruises on L.T.’s head and eye, Father suggested that the baby may have scooted to the edge of the crib and injured himself on the metal bars while Father was in the kitchen making his bottle. At one point during the interview, Father asked “What would be the outcome if I just sat here and said I would take the blame? Just take the blame?” However, Father also said that if he found out who injured L.T. he would “beat the living fuck out of him and probably stab him.”
After completing his interviews of Mother and Father, Detective Martinez received updates from two doctors about L.T.’s injuries. L.T. had multiple rib factures at various stages of healing, with some appearing to be a couple of weeks old, and others that appeared to have been “snapped clean in half” within the last few days and had not yet begun to heal. There was also evidence of a liver trauma. The injuries were clearly the result of “inflicted trauma” and the baby’s condition was classified as unstable and critical.
In light of the signs of physical abuse, Detective Martinez took L.T. into protective custody, contacted the Humboldt County Department of Health and Human Services (the Department) and made arrangements to transport parents to the police station. When a Department social worker arrived at the hospital, she was advised that a preliminary examination revealed that L.T. had multiple rib fractures in different stages of healing; blood in his urine; a liver laceration; patterned bruising on his stomach and chest; bruising on the side of his head, upper lip and one eye; bleeding in one eye; and potential respiratory problems.
Meanwhile, at the police station Father exercised his right to an attorney and Mother agreed to answer more questions. During this second interview, Mother became fixated on Janette B. (aka Jane). She said the doctor had told her some of L.T.’s ribs had been broken days earlier, and she urged the officer to arrest Janette, claiming she was the only babysitter they used during that time period. Mother said she did not suspect that L.T’s ribs were hurt because he did not fuss at all.
Mother reported that, on a prior occasion, she had noticed that the bottom of L.T.’s tongue was so badly bruised that it was black. She said she reported this condition to L.T.’s doctor at his two-month check-up. The doctor could not think of an explanation other than that the baby was teething and bit his tongue. When the officer questioned whether a two-month-old baby could be teething, Mother suggested that L.T. might have a seizure disorder.
Mother also reiterated that the baby was not injured when she left him with Steven and his girlfriend; when they returned from the casino, the baby was “all smiles” and there was no sign of abuse. Mother admitted again that she or Father could have accidentally inflicted the fresh injuries, stating that “[Father] is buff, either one of us could have done it in that situation.”
Father and Mother were both arrested and taken to jail. Meanwhile, Detective Martinez went to the family home to execute a search warrant. When he entered the house, marijuana smoke billowed out the door. Steven and his girlfriend Sara were in the house. Emma L., the parents’ roommate, was also home. Martinez separately interviewed each of these individuals. Steven and Sara both reported that they babysat L.T. for most of the prior day and that he appeared to be fine. Sara reported that he was fussy but not abnormally so and that she did not notice any injuries on him. Steven said the baby cried a lot but that Sara comforted him and he seemed fine.
Emma stated that she had been renting a room from the parents for less than a month and that she did not have much to do with them. She reported hearing Father stomp through the house muttering obscenities while preparing bottles for the baby and that she once heard Father screaming and swearing at the baby because he soiled his diaper. Emma said she had been afraid for the baby because Father was out of control. She frequently heard Father complain that Mother did not help take care of L.T. According to Emma, Father was very rough when he handled the baby; he was very strong and did not appear to know his own strength. When he burped L.T., Father would hit the baby’s back so hard that Emma was afraid for him.
Subsequently, Martinez spoke to Emma’s boyfriend who stayed with her at the house. He also reported that Father screamed at the baby for soiling his diaper and that Father also yelled at mother.
On March 4, Martinez interviewed Janette B. at the police station. Janette stated that Mother and Father went to the casino every day and that they would employ random homeless people to babysit for them. Mother was always asking her to babysit and she estimated that she had watched L.T. approximately 15 times. Janette had seen bruises on the baby in the past and reported that Father was too rough with the child. She described trying to teach Father how to burp L.T., but reported that Father continued to hit the baby hard on the back. Janette said that Mother is lazy and neglectful and that Father is the primary caretaker. She said that even though she babysits for Mother and loans her money, Mother complains that Janette does not do anything for her.
Janette B. also reported that she saw Mother and Father on March 3 after they were released on bail, that Mother seemed upset about the situation, but that she was not mad at Janette and she did not accuse her of hurting the baby.
B. This Dependency Case
1. Petitions and Detention
On March 4, the Department filed a petition on behalf of L.T. pursuant to which it alleged two statutory grounds for exercising the jurisdiction of the juvenile court. First, under section 300, subdivision (a) (section 300(a)), the Department alleged “The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm inflicted nonaccidentally upon the child by the child’s parent or guardian.” Second, pursuant to section 300, subdivision (b) (section 300(b)), the Department alleged “The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness” because of the willful or negligent failure of a parent to protect him and because of the parent’s inability to provide proper care due to a mental illness, developmental disability or substance abuse. Both jurisdictional allegations were supported by facts relating to the incident culminating in the March 3 visit to the Mad River Hospital, and the resulting diagnosis of a “non accidental trauma.” Both allegations were also supported by the factual contention that “The child has suffered serious physical harm inflicted by his parents.”
The detention report reflects that the Department received a referral about L.T. early in the morning of March 3, that the examining doctor at Mad River reported that L.T.’s injuries were non-accidental and that he was going to be transported to Children’s Hospital in Oakland. Subsequent reports from the staff at Children’s indicated there were concerns of possible internal bleeding, and possible kidney and liver damage.
The Department reported that Mother has eight older children, including one child who is deceased. The Department has received 10 prior referrals for Mother dating back to April of 2006. This was the first referral involving L.T. Department records indicated that parents were offered Voluntary Family Maintenance Services from April through August 2010 on behalf of two children that are older than L.T., but that services were refused. According to staff at the Mad River Hospital, Mother reported that she is a recovered heroin addict.
Father is not the Father of these two older children, but he was in a relationship with Mother at that time.
L.T. was detained on March 7. Father was declared the presumed Father and the Department was ordered to make services available to the parents, including parent education, drug monitoring, substance abuse assessments and anger management and counseling. Parents were also afforded separate weekly visits with L.T., for one hour a visit. During the supervised visits, parents were not to have any physical contact with the baby.
On March 14, the Department filed an amended petition which alleged two additional jurisdictional grounds for the dependency. Pursuant to section 300, subdivision (e) (section 300(e)), the Department alleged that “The child is under the age of five and has suffered severe physical abuse by a parent, or by any person known by the parent, and the parent knew or reasonably should have known that the person was physically abusing the child.” Under section 300, subdivision (i) (section 300(i)), the Department alleged “The child has been subjected to an act of cruelty by the parent or guardian or a member of the child’s household, ” and “[t]he parent or guardian has failed to protect the child adequately from an act or acts of cruelty, and the parent or guardian knew or reasonably should have known that the child was in danger of being subjected to an act or acts of cruelty.”
On March 14, the parents denied allegations in the amended petition. On March 22, the court granted Father’s request to appoint a pediatric pathologist as a defense consultant and expert.
2. Jurisdiction
The Department prepared its jurisdiction report in late March. By that time, felony abuse charges had been filed against both parents. The Department reported that Father has a 2008 conviction for felony assault with a deadly weapon, not a firearm (Pen. Code, § 245, subd. (a)(1)).
Dr. Jim Crawford from Children’s Hospital reported that L.T. had a grade three liver laceration that appeared to be the result of a blunt trauma to his abdomen which was indicative of a hit or fall. Six of his ribs were recently fractured and three others showed signs they had been fractured in the past. The social worker consulted with Dr. Rachel Gilgoff about Dr. Crawford’s report. Dr. Gilgoff opined that L.T. had been violently assaulted.
The jurisdiction report describes a March 4 meeting attended by a Department social worker, a Public Health Nurse (PHN) who consulted with the Department on this case, and both parents. The meeting was held at the parents’ home and was videotaped by their friend. The parents expressed frustration with the police department and the court system, both of which they viewed as corrupt. They also suggested that L.T.’s medical records had been altered.
During the March 4 meeting, both parents claimed that L.T. bruises easily, that he has liver problems which make his bones brittle and that he had a difficult birth during which his ribs could have been fractured. When the PHN pointed out that there were no references to bruises or other physical injuries in L.T.’s medical records, Mother reported that she had consulted with L.T.’s pediatrician about the baby’s bruised tongue at his two-month check up. Father reported that he had noticed bruises on L.T.’s ear on three prior occasions.
During the meeting, parents expressed trust in their friends who watched L.T. for them. They also expressed their commitment to each other. Father said that they just celebrated their one-year anniversary and that he had proposed to Mother the previous day even though he does not believe in marriage. Mother said that this was the best relationship she had been in. Mother also disclosed that she has a “paranoid personality disorder” and advised that she has a “215 card” for medical marijuana. Father disclosed that he has outstanding warrants in San Francisco and Sacramento for possession of marijuana and transport for sale.
A report prepared by the PHN who attended the March 4 meeting at the parents’ home was attached to the Department’s jurisdiction report. Her overall impression was summarized as “[i]neffecive parenting” and “ineffective denial—as evidenced by impaired ability of parents to accept consequences of alleged behaviors.” The PHN also followed up with several of the doctors involved in the case. Dr. Crawford reported, among other things, that the liver and bone damage could not have been self inflicted; birth trauma does not include fractured ribs; a blood disorder (which L.T. did not have) would not explain the liver laceration; and there was no evidence of a liver disease. Crawford rejected Mother’s explanations for the traumatic injuries, stated that a reasonable caregiver would have noticed the signs of trauma and sought immediate medical attention and that these parents delayed seeking medical attention for L.T. According to the PHN report, Dr. Gilgoff made this statement: “Facial bruising to ear and face, bruising to chest and abdomen, liver lacerations and 6 new rib fractures are extremely concerning for violent physical assault. In addition this baby has healing rib factures indicating past trauma as well.” The PHN also spoke with L.T.’s pediatrician who stated that mother did not discuss bruising on the baby’s tongue with him and that he had not seen signs of physical trauma during his exams.
On March 14, the social worker spoke with parents at the courthouse after a pre-trial hearing. The parents stated that Janette B. babysat for them on the evening of March 1, and when they returned home, there was a room full of people who had been passing the baby around and may have treated him too roughly. The parents also opined that the baby’s injuries were the result of rough treatment by the hospital staff. On a separate occasion, the parents told a different social worker that the baby was injured during a seizure.
The social worker who observed visits between parents and L.T. reported that the baby became “tight and tense” when Mother was around, that when Mother approached him, L.T. flexed his back and became stiff, and that he appeared to have a negative reaction to her voice.
In its jurisdiction report, the Department stated that all of the information in this case “consistently points to the fact that [L.T.] was seriously injured while in the care of his Mother and Father.” The parents had offered inconsistent and changing explanations for the injuries, and it was not clear whether the injuries were inflicted by Mother, Father, or both, but it was clear that either one or both of them “treated [L.T.] so roughly that he sustained a liver laceration, bruising, eye injuries, and numerous broken ribs.” Furthermore, since some of the rib injuries were in the process of healing, the parents knew or should have known that the child was injured and yet neither obtained medical attention for him until March 3.
The jurisdiction hearing was continued several times. On July 21, the parties advised the court they reached a settlement pursuant to which (1) both parents submitted a waiver of rights; (2) the allegation that L.T. “had suffered serious physical harm inflicted by his parents” was stricken from three different places in the amended petition; and (3) the entire section 300(i) allegation that L.T. had suffered acts of cruelty was stricken from the amended petition. Accordingly, the court exercised jurisdiction over L.T. pursuant to section 300(a), section 300(b) and section 300(e), and then set the matter for disposition.
3. Disposition
In a disposition report that was signed on August 4, the Department recommended that L.T. be declared a dependent of the juvenile court and that neither parent be afforded reunification services.
L.T., who had been placed in a local foster home, had recovered from his injuries and was now considered a healthy baby with no medical concerns. Throughout the case, parents remained together as a couple. Both attended visits with L.T. However, L.T. continued to display “concerning behavior” during supervised visits with Mother. He cried, became stiff and pushed away from her. Furthermore, Mother sometimes behaved inappropriately and did not appear to be cognizant of the affect of her loud behavior on L.T.
The disposition report reflects that the Department offered the family a variety of services including supervised visitation and transportation to visits and other recommended services. The Department also referred Mother to Humboldt County Mental Health, referred both parents to parenting classes, and also made a referral for parents to Humboldt County Alcohol and Other Drug Programs and/or UIHS for evaluation and treatment.
The Department acknowledged that parents had both stated they were willing to do “anything” to reunite with L.T., but also noted that “it has been almost five months and they have not engaged in any of the recommended services despite the services and transportation to the services that have been available to them.” Furthermore, the Department opined that L.T. could not be safely returned to the home where he suffered severe physical abuse. Under the circumstances, there was no other alternative explanation for L.T.’s injuries other than that they were inflicted by one or both parents. Yet, neither parent would take responsibility for that abuse, both continued to make excuses, and neither had demonstrated an ability to engage in services. Citing these circumstances, as well as the life threatening nature of the baby’s injuries and his troubling physiological reaction to Mother, the Department recommended that the court order a bypass of services to both parents pursuant to section 361.5.
On September 7, a contested disposition hearing was held before the Honorable John T. Feeney. The court took judicial notice of the multiple attachments to the Department reports. The Department submitted the matter and counsel for the minor joined with the Department in recommending that services be bypassed for both parents. Father called two Department social workers as witnesses. Winnie Williams gave testimony which was consistent with the reports. Janet Wood testified that Father’s visitation with L.T. generally went well and that his interactions with L.T. were positive and appropriate, although he missed three scheduled visits and shortened some others.
After the case was submitted, counsel for each parent argued that parents had consistently denied they injured L.T., and there was insufficient evidence to support a finding that either of them actually knew or should have known that L.T. had been abused prior to the diagnosis on March 3. Counsel for the Department and the minor’s counsel took the position that all of the evidence pointed to one of the parents as the perpetrator and, in any event, the parents were L.T.’s sole caretakers and they knew or should have known he was being abused.
At the conclusion of the hearing, the juvenile court made an express finding by clear and convincing evidence that the section 300(e) jurisdictional allegation was true. Specifically, the court found that L.T. is well under the age of five; that L.T. suffered severe physical abuse by a parent or a person known to the parents; and that the parents knew or should have known that someone was physically abusing the child. In light of these findings, the court also found that the case fell within section 361.5, subdivision (b)(5) (section 361.5(b)(5)) and that reunification services “shall be bypassed....”
On September 8, 2011, the court filed a disposition order sustaining the section 300(e) allegation, finding that L.T. could not be safely returned to the home of his parents, and declaring him a dependent of the juvenile court. The disposition order also found that both parents made “minimal” progress toward alleviating or mitigating the causes which led the court to intervene and that the Department made reasonable efforts to prevent or eliminate the need for removal of the child from the home. The court ordered that no reunification services be provided to the parents and scheduled a section 366.26 hearing for January 5, 2012.
After Father and Mother filed the writ petitions that are the subject of this decision, this court ordered that the section 366.26 hearing was to be temporarily stayed.
III. DISCUSSION
A. Denial of Reunification Services
1. Issue Presented and Standard of Review
Both parents challenge the sufficiency of the evidence to support the order denying them reunification services pursuant to section 361.5(b)(5), which states in relevant part: “Reunification services need not be provided to a parent or guardian 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 or guardian.”
“We review the court’s decision to deny reunification services under the substantial evidence test to determine whether it is supported by evidence that is reasonable, credible, and of solid value. [Citation.] ‘We do not reweigh the evidence, nor do we consider matters of credibility.’ [Citation.]” (L.Z. v. Superior Court (2010) 188 Cal.App.4th 1285, 1292 (L.Z.).)
2. The Section 300(e) Finding
As noted above, for the section 361.5(b)(5) by-pass provision to apply, the juvenile court had to find that section 300(e) was established by clear and convincing evidence. Section 300(e) provides that a child is within the jurisdiction of the juvenile court and may be adjudged a dependent child if “[t]he child is under the age of five years and has suffered severe physical abuse by a parent, or by any person known by the parent, if the parent knew or reasonably should have known that the person was physically abusing the child.” Both Father and Mother challenge the sufficiency of the evidence to support the section 300(e) finding.
On this record, we have no trouble affirming the section 300(e) finding. Undisputed evidence establishes the following facts: In the first three months of his life, L.T. suffered at least three sets of injuries, rib fractures inflicted at some time in February, additional rib fractures a few days before the March 3 visit to Mad River and the serious trauma that finally forced these parents to seek emergency treatment. During the time period that these incidents occurred, the only people who cared for L.T. were his parents or babysitters selected by the parents.
There is also significant, though sometimes disputed, evidence that one or both of these parents inflicted L.T.’s injuries. When the parents were interviewed at the hospital on the morning of March 3, both admitted to Detective Martinez that they could have inflicted the noticeable injuries on their child. However, after doctors determined that some of L.T.’s injuries had been incurred several days before and that none of them were accidentally inflicted, parents began to manufacture explanations, none of which were supported by any evidence whatsoever. Indeed, all of the medical reports generated in this case are consistent with the conclusion that L.T.’s severe injuries were the result of intentional abuse.
Additional evidence points to the Father as the likely perpetrator of L.T.’s injuries. Several witnesses, including the doctor at Mad River, observed Father treat L.T. roughly and with almost complete indifference to the child’s comfort or safety. Other evidence shows that Father is very strong, does not know his own strength, does not manage his anger and that he has a documented history of violence in the form of a felony assault conviction. Although there is no direct evidence that Mother physically abused L.T., there is evidence that L.T. is afraid of her. There is also strong evidence that Mother ignored, attempted to hide, and repeatedly lied about the cause(s) of the baby’s significant injuries.
Furthermore, although both parents essentially admitted that the babysitters who cared for L.T. on the evening of March 2 did not injure him in any way, if that did happen, then these parents knew or should have known about those injuries when they returned from the casino at around 8:00 p.m. that night. It is simply not conceivable that such extensive injuries to a three-month-old baby could go unnoticed by a reasonably attentive parent. In this regard, Dr. Crawford expressly opined that a reasonable parent would have noticed L.T.’s serious injuries and that these parents delayed seeking medical attention.
3. Section 300(a) is Irrelevant to the Disposition Finding
Both parents contend that the juvenile court made at least an implicit finding at the disposition hearing that neither of them physically abused L.T. and that the section 300(e) finding that the court made is absolutely inconsistent with that implied finding. Mother makes no effort to support this claim. Father’s theory requires some explanation.
As reflected in our factual summary, the trial court exercised jurisdiction over L.T. pursuant to two distinct provisions, section 300(e), which we discuss above, and section 300(a) which provides that a child may be adjudged a dependent child if “[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm inflicted nonaccidentally upon the child by the child’s parent or guardian.”
At the disposition hearing, both parents argued that the evidence supporting these jurisdictional findings was not strong enough to meet the heightened clear and convincing standard required for the section 361.5(b)(5) by-pass provision to apply. Ultimately, the juvenile court declined to find that the section 300(a) jurisdictional fact was established by clear and convincing evidence. Instead, the court found that the alternative basis for exercising jurisdiction, section 300(e), was established by clear and convincing evidence and it used that finding to satisfy the requirements of the section 361.5(b)(5) by-pass provision.
Father interprets the juvenile court’s decision not to rely on section 300(a) as an affirmative finding that neither Father nor Mother physically abused L.T. He then uses this implied finding to argue that the only way that the section 300(e) finding can be affirmed against him is if there is clear and convincing evidence establishing two facts: (1) that a non-parent abused L.T., and (2) that Father knew or should have known that this non-parent abused the baby. According to Father, no such evidence exists.
The juvenile court did not explain why it elected not to rely on section 300(a) as the basis for by-passing services in this case. We suspect the court was concerned by the absence of direct evidence identifying a particular parent as the perpetrator or by the possibility, however remote, that one of the babysitters inflicted these injuries. In any event, this aspect of the court’s ruling is irrelevant because the court faced a fundamentally different inquiry under section 300(e) than it did under section 300(a).
“Section 300, subdivision (e), and subdivision (b)(5) of section 361.5... do not require identification of the perpetrator.” (L.Z., supra, 188 Cal.App.4th at p. 1292.) Together, these “provisions permit denial of reunification services to either parent on a showing that a parent or someone known by a parent physically abused a minor. [Citation.] Thus, ‘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; see also L.Z., supra, 188 Cal.App.4th at p. 1292.)
Thus the juvenile court was not required to specifically identify a parent or anyone else as the perpetrator of the child abuse in order to sustain the section 300(e) allegation or to make a by-pass finding under section 361.5(b)(5). Rather, the issue was whether there was clear and convincing evidence that the parent knew or should have known that L.T. was the victim of physical abuse, whether or not that abuse was inflicted by a parent. (L.Z., supra, 188 Cal.App.4th at p. 1292; see also In re Kenneth M, supra, 123 Cal.App.4th at p. 21.)
Indeed, section 300(e) better addresses this situation, where “there is no identifiable perpetrator, only a cast of suspects....” (In re E.H. (2003) 108 Cal.App.4th 659, 670.) Furthermore, contrary to a suggestion in Mother’s writ petition, a section 300(e) finding is properly supported by circumstantial evidence; otherwise a family could simply “stonewall the Department and its social workers concerning the origin of a child’s injuries and escape a jurisdictional finding under subdivision (e).” (In re E.H. at p. 670.)
Thus, we reject the claim by each of these parents that we must disregard the strong evidence that one or both of them abused L.T. This evidence was obviously directly relevant in assessing what these parents knew or should have known about the undisputed physical abuse suffered by their child. Also relevant was the undisputed evidence that the only people other than parents who had the opportunity to cause this abuse were the babysitters who were known to these parents. Arguably, the evidence suggesting that these parents are recklessly negligent caregivers might support a finding they did not comprehend the extent of the baby’s injuries. But that level of incompetence provides no excuse under section 361.5(b)(5), which measures not just what the parents knew, but what they should have known.
In short, the record contains clear and convincing evidence that both of these parents either knew or should have known that L.T. was physically abused by a parent or by a babysitter known to both parents. Therefore, the juvenile court’s finding that section 361.5(b)(5) applies is affirmed.
4. Father’s Positive Visits
Father contends that, even if section 361.5(b)(5) does apply to him, the court committed reversible error because, “[a]t a minimum, the father and child interact positively and it would be detrimental to the child to sever the Father/son relationship.” We question what Father means by “at a minimum” since the only evidence he can find in the record to support his theory is the fact that his very controlled visits with L.T. went well, and the baby did not display the same negative reaction that he had when in the presence of Mother.
In any event, “[w]hen the Bureau ‘proves by clear and convincing evidence that a dependent minor falls under subdivision (e) of section 300, the general rule favoring reunification services no longer applies; it is replaced by a legislative assumption that offering services would be an unwise use of governmental resources.’ [Citation.]” (L.Z. supra, 188 Cal.App.4th at p. 1292; see also Raymond C. v. Superior Court (1997) 55 Cal.App.4th 159, 164.) Accordingly, in a case like this, section 361.5, subdivision (c) (section 361.5(c)) precludes the juvenile court from ordering services to the parent unless it makes a finding based on competent evidence that reunification services “are likely to prevent reabuse or continued neglect of the child or that failure to try reunification will be detrimental to the child because the child is closely and positively attached to that parent.” (§ 361.5(c).)
In the juvenile court, Father did not argue he was entitled to services under section 361.5(c). Even if the issue has not been waived, there is simply no substantial evidence upon which the court could have afforded services to Father under this statute. Father has a felony conviction for assault, and pending drug and child abuse charges against him. He declined an offer of voluntary services in the past and also declined to pursue any of the referrals for voluntary services offered to him in this case. He consistently denied responsibility for L.T.’s injuries, and there is at least a preponderance of the evidence that he abused this child. Under these circumstances, evidence that Father’s visits with L.T. did not cause the child distress simply is not sufficient to establish that by-passing services would be detrimental to L.T.
B. Indian Child Welfare Act
Mother contends that the disposition order must be reversed because the Department failed to comply with the Indian Child Welfare Act, 25 United Sates Code section 1901, et. seq. (the ICWA). Although Mother’s extremely terse complaints are unsupported by sufficient analysis or any legal authority, we will address them for the sake of expediency.
1. Statutory Framework
“In 1978, Congress passed the ICWA, which is designed ‘to promote the stability and security of Indian tribes and families by establishing minimum standards for removal of Indian children from their families and placement of such children “in... homes which will reflect the unique values of Indian culture....” ’ [Citations.]” (In re D. T. (2003) 113 Cal.App.4th 1449, 1453-1454 (D.T.)
The “ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes by establishing minimum standards for, and permitting tribal participation in, dependency actions. [Citation.] For purposes of ICWA, an ‘Indian child’ is one who is either a ‘member of an Indian tribe’ or is ‘eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.’ [Citation.] The juvenile court and social services agencies have an affirmative duty to inquire at the outset of the proceedings whether a child who is subject to the proceedings is, or may be, an Indian child. [Citation.]” (In re K.M. (2009) 172 Cal.App.4th 115, 118-119.)
“Among the procedural safeguards included in the ICWA is a provision for notice, which states in part: ‘In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention.’ [Citation.] [¶] In addition, ICWA notice must include the following information, if known: the name of the child; the child’s birth date and birthplace; the name of the tribe in which the child is enrolled or may be eligible for enrollment; names of the child’s mother, father, grandparents and great grandparents or Indian custodians, including maiden, married and former names or aliases, as well as their birth dates, places of birth and death, tribal enrollment numbers, and current and former addresses; and a copy of the petition. [Citations.] [¶] ‘Determination of tribal membership or eligibility for membership is made exclusively by the tribe.’ [Citation.] The Indian status of a child need not be certain or conclusive to trigger the ICWA’s notice requirements. [Citation.]” (D. T., supra, 113 Cal.App.4th at pp. 1453-1454.)
2. Background - The Department’s Compliance Efforts
In the present case, both Mother and Father reported Indian or potential Indian ancestry in several tribes. However, Mother refused to provide the Department with the names of her parents or their ancestors. Nevertheless, the Department used other resources to compile a list of tribes in which L.T. might be eligible for membership and, on March 15, 2011, the Department mailed a Notice of Child Custody Proceeding for Indian Tribe to those tribes and also to the Bureau of Indian Affairs and the U.S. Secretary of the Interior (the ICWA notice).
The recipients of the ICWA notice and the responses the Department received were documented in the disposition report. That report also reflects that one tribe, the Citizen Potawatomi Nation, notified the Department that Mother was eligible for enrollment and that it intended to intervene in the case upon Mother’s enrollment. The Potawatomi Tribe also informed the Department social worker it would support the recommendation to terminate family reunification services and terminate parental rights. The Department provided Mother with the enrollment paperwork but she lost it. So the Department obtained another copy of the paperwork and on August 3, 2011, the social worker left a telephone message asking Mother to come to the office to complete the paperwork.
On August 5, 2011, the Potawatomi Tribe mailed an entry of appearance in the case which was received by the juvenile court on August 8. At a pretrial hearing on August 8, the disposition hearing was postponed so that an ICWA expert report could be completed and considered by the court prior to disposition.
On August 17 or 18, the Department sent the parties and the court an addendum report in order to update all concerned regarding a major development affecting the applicability of the ICWA to this case. The Department social worker had made contact with an individual who was on a list of names of maternal relatives provided by the Potawatomi Tribe. Through that contact, the social worker determined that the woman that the Tribe had identified as L.T.’s maternal grandmother had the same name but a different birth date than L.T.’s actual maternal grandmother. The social worker contacted the tribe, which then conducted a new search using the maternal grandmother’s maiden name and actual date of birth and determined that L.T. is not eligible for enrollment in the Potawatomi Tribe.
At an August 22 hearing, Mother’s counsel advised the court and parties that she had received the addendum report and discussed the matter with Mother, who had clarified that it was her Father who had potential Indian ancestry. Therefore, counsel requested that the disposition hearing be postponed so Mother would have time to gather information about her father’s potential Native American ancestry. Over the Department’s objection, the juvenile court granted Mother’s motion and the disposition hearing was continued until September 7, 2011.
On August 29, a copy of the Potawatomi Tribe’s motion to withdraw from this case for lack of standing was mailed to the court and to both Mother and Father. This motion was filed by the court on September 2. That same day, the court signed an order allowing the Potawatomi Tribe to withdraw from the case.
At the September 7 disposition hearing, the juvenile court made a finding that the ICWA does not apply in this case. The Potawatomi Tribe’s entry of appearance in this case as well as the order allowing the Tribe to withdraw as intervenor were both filed by the superior court on September 9, 2011.
3. Analysis
Mother contends that the Department’s ICWA notice was deficient in the following respects: (1) L.T.’s birth certificate was not attached; (2) the Department failed to include available information about her father. We separately consider these two arguments.
Section 224.2, subdivision (a)(5)(E) requires that the Department attach a copy of the child’s birth certificate to the notice “if available.” There is no evidence in this record that L.T.’s birth certificate was available when the Department sent the ICWA notice. There is, however, evidence that Mother consistently refused to provide the Department with information relevant to the ICWA search.
Furthermore, although it does not appear the issue was ever raised below, there is evidence from which the court could have found that the Department made reasonable efforts to comply with the ICWA by electing to forego a search for L.T.’s birth certificate in order to ensure that the ICWA notice was timely received by the potentially interested tribes. The ICWA requires that, with the exception of the detention hearing, no proceeding may be held “until at least 10 days after receipt of the notice by the parent, Indian custodian, the tribe, or the Bureau of Indian Affairs.” (§ 224.2 subd. (d).) In this case, the jurisdiction hearing was set for April 5, and Mother expressly refused to waive time so that the hearing could be postponed. Under these circumstances, the juvenile court could properly have found that the Department made reasonable efforts to comply with the ICWA by electing to forego a search for L.T.’s birth certificate in order to ensure that the notice was timely received by the affected parties.
In any event, when there is no dispute that notice was received, any error or defect in the ICWA notice itself is reviewed under the harmless error standard. (In re Cheyanne F. (2008) 164 Cal.App.4th 571, 576.) Here, the record shows that the notice contained detailed information about L.T.’s birth and the identify of his parents. Mother does not contend that L.T.’s birth certificate contains any additional information that could have affected the outcome of the ICWA determination. Therefore, if the Department erred by failing to include a copy of the birth certificate, that error was harmless.
Mother’s second complaint is that the ICWA notice was deficient because it did not contain information about her father. Mother asserts this information was “easily obtained given that the Department knew that Mother had other children living on a reservation in Montana with grandparents.” To support this contention, Mother refers us to a copy of a March 3 medical record from Mad River Hospital which reflects that Mother told the emergency room doctor that she has nine children, none of whom are in her custody. Although the notes concerning the whereabouts of these children are cryptic, they include this information: “11 yo – in Montana on reservation in custody of PGM/PGF 2 other sibs in Montana w/ paternal grandparent (different paternal GP than 11 y.o.)” This note reflects that a half-sibling of L.T. was living on a reservation with a paternal grandparent, not a maternal grandparent. Thus, we find no evidence to support Mother’s contention that the ICWA notice omitted available information about Mother’s family. Indeed, the only evidence before us is that Mother steadfastly refused to share such information with the Department.
Mother raises one additional issue with respect to the ICWA. She contends that the Department withheld information about the Potawatomi Tribe’s involvement in this case from both her and the juvenile court until after the disposition hearing was over. This ethically questionable argument fails on its face in light of the evidence in this record summarized above. Indeed, Mother appears to rely exclusively on the unremarkable and irrelevant fact that the Potawatomi Tribe’s entry of appearance in the case and the order allowing that Tribe to withdraw from the case were filed by the juvenile court a few days after the disposition hearing.
C. Mother’s Remaining Contentions
Mother contends that the disposition order must be reversed for three additional reasons: (1) the juvenile court failed to consider the impact of denying Mother reunification services on L.T.’s siblings; (2) the lower court failed to consider placing L.T. with his paternal grandmother; and (3) the appellate record does not contain copies of documents that were the subject of a request for judicial notice that the Department made in connection with the detention hearing. We reject these contentions for two reasons.
First, Mother did not raise any of these issues in the juvenile court. “An appellate court ordinarily will not consider challenges based on procedural defects or erroneous rulings where an objection could have been but was not made in the trial court. [Citations.] The purpose of the forfeiture rule is to encourage parties to bring errors to the attention of the juvenile court so that they may be corrected. [Citation.] Although forfeiture is not automatic, and the appellate court has discretion to excuse a party’s failure to properly raise an issue in a timely fashion [citation], in dependency proceedings, where the well-being of the child and stability of placement is of paramount importance, that discretion ‘should be exercised rarely and only in cases presenting an important legal issue.’ [Citation.]” (In re Wilford J. (2005) 131 Cal.App.4th 742, 754; see also In re Anthony P. (1995) 39 Cal.App.4th 635, 640-642 [failure to request sibling visitation as part of a permanent plan]; In re Daniel D. (1994) 24 Cal.App.4th 1823, 1831 [waiver by failure to request relative placement in lower court].) In the present case, all of the circumstances weigh in favor of applying the waiver rule here.
Second, Mother fails to support any of these complaints with a discussion of the relevant facts, meaningful analysis, or any legal authority. Under these circumstances, we are not required or inclined to discuss these issues at all. (See In re S.C. (2006) 138 Cal.App.4th 396, 408.) For the record, we note some obvious problems. First, we question how the order denying Mother reunification services could impact L.T.’s siblings at all in light of evidence in this record establishing that Mother does not have custody of any of those children. Second, Mother offers no reason to question the Department reports which show that the social worker properly considered whether a relative placement was feasible in this case. Third, Mother fails to explain the relevancy of a motion for judicial notice that was made in connection with a detention order that is not the subject of any dispute in her writ petition.
IV. DISPOSITION
The separate petitions for extraordinary relief filed by Father and Mother are both denied on the merits. Our decision is final as to this court immediately. (Cal. Rules of Court, rule 8.264(b)(3).) The temporary stay of the section 366.26 hearing is lifted and this case is remanded to the juvenile court so that a section 366.26 hearing can be held forthwith.
We concur: Lambden, J., Richman, J.