Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. CK75672. D. Zeke Zeidler, Judge.
Jesse F. Rodriguez, under appointment by the Court of Appeal, for Defendant and Appellant C.B.
Andre F. F. Toscano, under appointment by the Court of Appeal, for Defendant and Appellant S.A.
Office of the Los Angeles County Counsel, James M. Owens, Assistant County Counsel, Frank J. DaVanzo, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for Minors.
Doitodd, J.
Defendant and appellant C.B. (Mother) appeals from the juvenile court’s jurisdictional order sustaining a dependency petition pursuant to Welfare and Institutions Code section 300, subdivisions (a), (b), (e) and (j), and both Mother and defendant and appellant S.A. separately appeal from the disposition order removing the children M.B. and A.H. from Mother’s custody and declining to place M.B. with S.A. With modifications to the sustained dependency petition, we affirm. Substantial evidence supported both the juvenile court’s jurisdictional findings and disposition order. The juvenile court abused its discretion, however, in amending the petition at the adjudication hearing to conform to proof, as the amendment raised new issues that Mother had no opportunity to defend.
Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Events Preceding Detention.
On December 16, 2008, A.H. was five months old and M.B. was two years old when the Los Angeles County Department of Children and Family Services (Department) received a referral alleging physical abuse to A.H. by an unknown perpetrator. The allegations received by emergency response children’s social worker Evelyn Crawford (CSW Crawford) indicated that Mother and Father (A.H.’s biological parents) brought A.H. to Kaiser Permanente Hospital (Kaiser) on December 15, 2008. A.H. was suffering from a fractured right leg, a sprained right arm, marks under and on his neck, contusions on both eyelids and an abrasion on his right eye. A.H.’s treating physicians at Kaiser indicated in their reports that the injuries appeared to be the result of suspected child abuse or neglect.
In an interview with CSW Crawford at Kaiser, Mother stated that Father had called her at work at 10:00 a.m., stating that A.H. was crying and not moving his right arm. Mother made an appointment at Kaiser, and she and Father took him for the appointment at 2:30 p.m. after she got off work. Mother could not identify anything significant that happened the night before to have caused A.H.’s injuries, though she noted that M.B. was jealous of A.H. and often treats him like a toy. She had not seen any bruising on A.H.’s face when she had left for work at 7:00 a.m. that morning. She had previously taken A.H. to Kaiser when he was two months old because he was not gaining weight, and A.H.’s most recent doctor’s visit was on December 1, 2008 for his five-month checkup.
CSW Crawford also interviewed Father at home, who stated that everyone was asleep when he arrived home from work at 1:30 a.m. At approximately 10:00 a.m. A.H. began to cry. When Father went to change A.H.’s diaper and feed him, he noticed that A.H.’s eye was bruised and he was not moving his right arm. Father denied being angry with Mother or the children. When asked whether A.H. had been fussy or irritable recently, Father responded that A.H. is always fussy and cries often. Father also indicated that M.B. is not gentle with A.H. Both Mother and Father denied physically abusing A.H.
CSW Crawford contacted the Inglewood Police Department for assistance, and officers arrested both Mother and Father for suspected child abuse. The Department recommended that both children be detained.
On December 18, 2008, the Department filed a dependency petition pursuant to section 300, subdivisions (a), (b), (e), (g) and (j). In support of count a-1, the petition alleged A.H. was medically examined and found to be suffering from a detrimental condition which included “a right midshaft fracture of the child’s right tibia and swelling to the child’s right arm,” “ligature marks to the child’s neck consistent with strangulation” and “swelling to both of the child’s eyes and a contusion to the child’s right lower eyelid.” The petition further alleged that Mother and Father gave no explanation as to how the injuries were sustained, such injuries were consistent with child abuse and nonaccidental trauma and they “would not ordinarily occur except as the result of deliberate, unreasonable and neglectful acts” by Mother and Father. The petition finally alleged that such acts likewise placed A.H.’s sibling M.B. at risk.
The petition repeated the same factual allegations to support jurisdiction under section 300, subdivision (b) (count b-1), subdivision (e) (count e-1) and subdivision (j) (counts j-1 and j-2). Counts b-2 and j-3 further alleged that Mother’s and Father’s failure to seek timely medical treatment for A.H.’s injuries endangered his physical and emotional health and safety and also placed M.B. at risk. Counts b-3 and g-1 alleged that M.B.’s father, S.A., failed to provide M.B. with the necessities of life, thereby placing him at risk.
Having been released from custody, Mother was present in court at the December 18, 2008 detention hearing. Although she had earlier indicated that S.A., M.B.’s father, had not been involved with the family and his whereabouts were unknown, at the hearing she indicated that S.A. paid weekly child support and lived in the Los Angeles area. He had made only one attempt to see M.B. She believed she could reach S.A. through his family with whom she remained in contact. The juvenile court found that the Department made a prima facie showing that the children were persons as described in section 300 and detained them with a maternal aunt. It ordered that Mother and Father be permitted monitored visitation and gave the Department discretion to permit Mother to reside with the maternal aunt.
Father was arraigned one week later.
Investigation Following Detention.
The January 20, 2009 jurisdiction/disposition report confirmed that Father now admitted causing certain injuries to A.H. He stated that two days preceding the hospital visit he had pulled A.H.’s leg harder than usual while trying to wrap A.H., and one day before the visit he did the same thing to A.H.’s arm. He had lately been frustrated because of work. In a subsequent interview Mother denied suspecting Father of any abuse, stating she had never seen him commit any acts of aggression or violence and that he had always taken good care of both boys. She further stated she had not noticed any problem with A.H.’s leg prior to taking him to Kaiser, nor did his pediatrician notice anything at the December 1, 2008 visit. Mother indicated she did not know what would happen: “I’m just worried about my kids, I’m not even worried about us [Father and her] no more. My kids come first.” The report further stated that Mother had been visiting regularly and often.
The Department recommended that Mother and Father not receive reunification services and that S.A. receive reunification services once he appeared. With respect to Mother, the Department expressed concern about her failure to recognize or suspect A.H.’s abuse, given that one of A.H.’s doctors indicated that A.H. would cry out in pain when his leg was moved. The Department was also concerned that both the bruises on A.H.’s eyes and the ligature marks on his neck remained unexplained.
Attached to the report was a last minute information report for the court indicating that a bone scan had revealed A.H. was suffering from a broken arm and leg, as well as a skull fracture. The leg fracture was estimated to be seven to ten days old, while the arm fracture was a fresh break. CSW Crawford had also spoken with Karina Maher, M.D., A.H.’s and M.B.’s regular physician. Dr. Maher stated that while M.B. was developing normally, she had concerns about A.H. and had seen him on a more frequent basis because he was not gaining weight. Moreover, during a November 17, 2008 appointment, Dr. Maher observed that A.H. had a scratch above his right eyebrow and circular bruise on his knee, which Mother and Father attributed to M.B.’s rough play and his throwing a toy at A.H. CSW Crawford also summarized her further conversation with Father, in which he admitted that he disclosed to detectives he had caused the injuries to A.H.’s arm and leg. He denied causing or being aware of the injuries to A.H.’s eyes and neck. Father stated that he was disappointed in himself; he admitted being physically abused by his stepfather and said he had promised himself he would never be that type of father to his children.
Though the last minute information indicates that it was intended to be provided for the December 18, 2008 detention hearing, CSW Crawford documented a conversation she had at 6:30 p.m. on that date. It thus appears the juvenile court did not receive the information until the jurisdictional hearing.
An additional last minute information report attached to the jurisdiction/ disposition report summarized recent interviews with Richard Shearer, M.D., a physician who had treated A.H. at Kaiser, Father and S.A. Dr. Shearer stated that A.H. had also suffered from at least three fractured ribs two to three weeks before being seen at Kaiser in mid-December 2008. With respect to A.H.’s leg fracture, Dr. Shearer explained that it was a bowed, mid-tibial fracture, meaning that someone would have had to take the leg and bend it with a fair amount of force. For the injury to have occurred the way Father described, Dr. Shearer stated that he would have had to grab the lower part of A.H.’s leg and pick him up; the injury would not occur just by pulling on the leg. When asked whether A.H. had showed signs of pain or discomfort, Dr. Shearer stated: “‘You just touch it [the leg] and the kid would scream.’” He described A.H.’s arm injury as “‘consistent with someone smashing it’” and recalled that A.H. was not letting him touch the arm. Dr. Shearer observed bruising over A.H.’s right and left cheekbones and right upper eyelid, as well as discoloration which suggested that the bruises were older. He opined that the ligature marks on A.H.’s neck appeared to be the result of someone “‘tying something around something, like a piece of string.’” He added that whatever was tied was rough enough to cut skin, as he saw fresh blood and bruising around the marks. He believed that a good amount of pressure would have had to have been used for a two-year-old to cause those marks. Contrary to an earlier report, he did not believe that the bone scan revealed a skull fracture.
According to Father’s most recent recollection of the events leading to A.H.’s leg and arm injuries, Father stated that he pulled A.H.’s arm while trying to wrap him on Saturday, December 13, 2008 and then pulled his leg in the same manner the following day. He reiterated how he had discovered that A.H. was not moving his arm on Monday, December 15, 2008, but added that he noticed nothing wrong with A.H.’s leg. Nor did he notice any bruising on A.H.’s face or neck, though he commented that M.B. had previously given A.H. a bruised eye. He could not explain A.H.’s healed rib fractures.
The Department finally made contact with S.A., who was residing with his parents, his girlfriend and their two children, ages one and two weeks. S.A. indicated that he was paying Mother $337 per month in child support. He stated that he wanted full custody of M.B. if he was not otherwise safe.
At a January 20, 2009 hearing, the juvenile court determined that S.A. was M.B.’s biological father. It directed the Department to facilitate monitored visitation for S.A., with the Department having discretion to liberalize the visits. Information submitted by the Department on February 26, 2009, indicated that while S.A. had visited with M.B. twice and the visits went well, he had cancelled numerous scheduled visits for various reasons. The report, together with subsequent information, also indicated that Father had been convicted of violating Penal Code section 273, subdivision (a), following entry of a guilty plea and received a two-year sentence.
In information submitted prior to adjudication, the Department reported that Mother had enrolled in individual and group counseling and had been having consistent and positive visitation with M.B. and A.H. On the other hand, the Department also reported that S.A. had missed his last three scheduled visits with M.B.
Jurisdiction.
A contested adjudication hearing commenced on March 17, 2009. The juvenile court admitted into evidence all prior Department reports and attachments, including several last minute information reports. Dependency investigator Susan Cho (Cho) testified on behalf of the Department. In response to the juvenile court’s inquiry as to what information supported allegations that Mother knew or reasonably should have known of A.H.’s abuse, Cho pointed to Dr. Shearer’s statement that A.H. would scream when his leg was touched, as well as to evidence of A.H.’s prior, unexplained injuries.
Dr. Maher also testified that she saw A.H. a total of seven times between August 2008 and December 2008; she saw him more often than usual because he was not gaining weight. She did not observe any signs of abuse, nor did A.H. appear to be in any discomfort. Though A.H.’s rib fractures might have been the reason he was crying during his last visit on December 1, 2008, Dr. Maher noted that babies often cry during doctor’s visits for any number of reasons. She did not believe that A.H.’s lack of weight gain rose to the level of failure to thrive, but rather, opined that it was the result of social factors including inattentiveness to A.H.’s needs, emotional failure to attach (possibly due to A.H.’s frequent crying), distraction and lack of emotional preparedness to care for a baby. She also believed that perhaps the parents were not communicating with each other about feeding A.H. At the conclusion of her testimony, the juvenile court amended the petition to conform to proof by adding to counts a-1, b-1, e-1 and j-1 that “the child failed to adequately gain weight; such failure was not shown to have any physiological[] cause, and was most likely caused by social factors.”
On behalf of S.A., who was not present, counsel offered a stipulation that S.A. had missed visits due to a change on his work schedule.
Following closing argument, the juvenile court found true counts a-1, b-1, b-2, e-1, j-1, j-2 and j-3, and dismissed counts b-3 and g-1 regarding S.A.’s failure to provide support. The juvenile court expressly denied Mother’s and Father’s request to strike the new allegations regarding A.H.’s failure to gain weight, specifically noting that Dr. Maher’s demeanor during her testimony indicated that A.H. was on the borderline of failure to thrive.
Disposition.
The juvenile court proceeded immediately to disposition. Mother offered a letter showing that she was enrolled and participating in individual and group counseling three times per week. Following argument by counsel, the juvenile court declared M. B. and A.H. dependents of the court and ordered them suitably placed with their maternal aunt. The juvenile court denied reunification services to Father pursuant to section 361.5, subdivision (b)(1). It further ordered that Mother receive reunification services, including that she attend and complete a Department approved program of parent education and participate in individual counseling with a licensed therapist. She received monitored visitation with the Department having discretion to liberalize the visits. It also granted reunification services to S.A., including that he participate in parent education to understand how his absence and lack of consistency affected M.B. and that he receive unmonitored visitation.
Mother and S.A. appealed.
DISCUSSION
A parent may seek review of both the jurisdiction and disposition findings on an appeal from the disposition order. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 249.) Mother challenges the petition’s amendment to conform to proof regarding A.H.’s failure to gain weight on the grounds that she had inadequate notice of the allegation and, in any event, it was insufficient to support jurisdiction under section 300. She further contends that evidence of Father’s abuse of A.H. was insufficient to support jurisdiction under section 300. Finally, she contends substantial evidence did not support the disposition order removing the children from her custody. In a separate appeal, S.A. contends there was insufficient evidence to support the juvenile court’s refusal to place M.B. with him.
“When the sufficiency of the evidence to support a juvenile court’s finding or order is challenged on appeal, the reviewing court must determine if there is substantial evidence, contradicted or uncontradicted, that supports it. [Citations.]” (In re Albert T. (2006) 144 Cal.App.4th 207, 216; see also In re David M. (2005) 134 Cal.App.4th 822, 828 [jurisdiction findings are reviewed for substantial evidence]; In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654 [disposition order is reviewed for substantial evidence].)
Under the substantial evidence test, “[i]t is the trial court’s role to assess the credibility of the various witnesses, to weigh the evidence to resolve the conflicts in the evidence. We have no power to judge the effect or value of the evidence, to weigh the evidence, to consider the credibility of witnesses or to resolve conflicts in the evidence or the reasonable inferences which may be drawn from that evidence.” (In re Casey D. (1999) 70 Cal.App.4th 38, 52–53.) Rather, the appellate court must presume in favor of the order and consider the evidence in the light most favorable to the Department as the prevailing party. (In re Luke M. (2003) 107 Cal.App.4th 1412, 1427; In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)
We review the juvenile court’s decision to amend a dependency petition to conform to proof for an abuse of discretion. (See Trafton v. Youngblood (1968) 69 Cal.2d 17, 31; In re Man J. (1983) 149 Cal.App.3d 475, 481.)
I. Mother’s Appeal.
A. The Juvenile Court Abused Its Discretion by Amending the Dependency Petition to Include an Allegation That A.H.’s Failure to Gain Weight Supported Jurisdiction.
Mother first contends that the juvenile court abused its discretion by amending the section 300 petition to include allegations under subdivisions (a), (b), (e) and (j) concerning A.H.’s failure to gain weight. She argues that she was prejudiced by the amendment because it introduced substantially new and different factual issues into the case against which she had no opportunity to defend. While we agree that Mother had inadequate notice that she would be required to defend against allegations concerning A.H.’s weight gain, the amendment affords no basis for reversal of jurisdiction.
As explained in Trafton v. Youngblood, supra, 69 Cal.2d at page 31, amendments to conform to proof “have been allowed with great liberality ‘and no abuse of discretion is shown unless by permitting the amendment new and substantially different issues are introduced in the case or the rights of the adverse party prejudiced [citation].’ (Italics added.) [Citations.] [¶].... ‘[A]mendments of pleadings to conform to the proofs should not be allowed when they raise new issues not included in the original pleadings and upon which the adverse party had no opportunity to defend. [Citations.]’ [Citations.]” This principle applies in dependency cases. (E.g., In re Jessica C. (2001) 93 Cal.App.4th 1027, 1042 [“The basic rule from civil law, however, is that amendments to conform to proof are favored, and should not be denied unless the pleading as drafted prior to the proposed amendment would have misled the adversarial party to its prejudice”].)
Here, allegations relating to A.H.’s failure to gain weight were not included in the original petition. Nor was there any indication in the Department’s reports preceding the adjudication hearing that the Department intended to rely on A.H.’s failure to gain weight as a basis for jurisdiction. Rather, the Department reported Dr. Maher’s concern about A.H.’s weight in connection with how often Dr. Maher had seen A.H. and other physical injuries she had observed during those visits. The issue of A.H.’s failure to gain weight was not introduced into the case until the juvenile court questioned Dr. Maher about A.H.’s low weight and proposed the amendment following her testimony. Under these circumstances, Mother was neither prepared to nor had the opportunity to defend against the allegation that social factors—i.e., Father’s and her behavior toward and interaction with A.H.—were the cause of his low weight.
These circumstances are distinct from those in In re Jessica C., supra, 93 Cal.App.4th at page 1042, in which the appellate court found it was an abuse of discretion to deny an amendment to conform to proof where the petition had alleged that a father “penetrated” his daughter’s vagina and the evidence at trial showed that he “touched” her vagina with his penis. As the court observed: “The basic allegation was there, and any variance between ‘touching’ and ‘penetrating’ could not have misled him to his detriment. Both allegations are heinous, and entail the intimate violation of a child.” (Ibid.) Here, in contrast, the new allegation regarding social factors causing A.H.’s failure to gain weight involved significantly different conduct than the abuse which caused the explained and unexplained fractures, scratches and bruises A.H. suffered.
The Department’s only argument in support of the juvenile court’s action is that the added facts were not intended to support a separate basis for jurisdiction. But if this were the case, then there was no need to include the allegations in the petition. (See In re Tracy Z. (1987) 195 Cal.App.3d 107, 112 [“To sustain a jurisdictional finding, the juvenile court must find by a preponderance of the evidence that the minors come within at least one of the subdivisions of section 300”].) Moreover, we decline to create an exception to the rule that an amendment to conform to proof may not raise new and substantially different issues where that amendment, by itself, would be insufficient to support jurisdiction.
The impropriety of the amendment, however, did not affect the juvenile court’s assumption of jurisdiction. We therefore need not address Mother’s remaining arguments that the evidence supporting the allegation was insufficient to support jurisdiction and that she should be provided an opportunity to defend against the allegation. As aptly summarized in In re Alexis E. (2009) 171 Cal.App.4th 438, 451: “When a dependency petition alleges multiple grounds for its assertion that a minor comes within the dependency court’s jurisdiction, a reviewing court can affirm the juvenile court’s finding of jurisdiction over the minor if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence. In such a case, the reviewing court need not consider whether any or all of the other alleged statutory grounds for jurisdiction are supported by the evidence. [Citations.]” (See also In re Dirk S. (1993) 14 Cal.App.4th 1037, 1045 [“Section 300, subdivisions (a) through (j), establishes several bases for dependency jurisdiction, any one of which is sufficient to establish jurisdiction”]; In re Jonathan B. (1992) 5 Cal.App.4th 873, 875 [“The reviewing court may affirm a juvenile court judgment if the evidence supports the decision on any one of several grounds”].) As discussed below, because substantial evidence supported a finding of jurisdiction under section 300, subdivisions (a), (b), (e) and (j), striking the allegations regarding A.H.’s low weight has no impact on the juvenile court’s jurisdictional findings.
B. Substantial Evidence Supported the Juvenile Court’s Jurisdictional Findings.
The juvenile court sustained jurisdiction under section 300, subdivision (a), (b), (e) and (j), finding true allegations that A.H. sustained multiple physical injuries and that Mother and Father “gave no explanation regarding the manner in which the child sustained the child’s injuries. The child’s injuries are consistent with child abuse and nonaccidental trauma. Such injuries would not ordinarily occur except as the result of deliberate, unreasonable and neglectful acts by [Mother and Father] who had care, custody and control of the child.” The juvenile court also found true allegations that Mother and Father failed to provide A.H. with timely medical treatment for those injuries.
To support a finding of jurisdiction over a child under section 300, subdivision (a), the juvenile court must find that the child fits within the following description: “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.” Subdivision (a) further provides that “a court may find there is a substantial risk of serious future injury based on the manner in which a less serious injury was inflicted, a history of repeated inflictions of injuries on the child... or a combination of these and other actions by the parent or guardian which indicate the child is at risk of serious physical harm.” (§ 300, subd. (a).)
Correspondingly, section 300, subdivision (b) authorizes dependency jurisdiction when, “[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent... to adequately supervise or protect the child....” (§ 300, subd. (b).) A petition’s allegations under section 300, subdivision (b) must contain three elements: “‘(1) neglectful conduct by the parent in one of the specified forms [i.e., the parent’s failure or inability to adequately supervise or protect the child]; (2) causation; and (3) “serious physical harm or illness” to the minor, or a “substantial risk” of such harm or illness.’ [Citation.]” (In re Heather A. (1996) 52 Cal.App.4th 183, 194.) Thus, the petition must allege facts showing either actual serious harm or illness, or the substantial risk of future serious physical harm, from a parent’s failure to protect or supervise the child.
Further, section 300, subdivision (e) requires the juvenile court to assume jurisdiction where “[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. For the purposes of this subdivision, ‘severe physical abuse’ means any of the following: any single act of abuse which causes physical trauma of sufficient severity that, if left untreated, would cause permanent physical disfigurement, permanent physical disability, or death....” Again, courts have identified three elements which must be satisfied: “(1) there is a minor under the age of five; (2) who has suffered severe physical abuse as defined in section 300, subdivision (e); (3) by a parent or any person known to the parent if the parent knew or reasonably should have known that the person was physically abusing the minor.” (In re E. H. (2003) 108 Cal.App.4th 659, 668.)
Finally, a child may be adjudged a dependent of the juvenile court where “[t]he child’s sibling has been abused or neglected, as defined in subdivision (a), (b), (d), (e), or (i)....” (§ 300, subd. (j).) With respect to each subdivision, the Department bears the burden of proof by a preponderance of the evidence. (In re Chantal S. (1996) 13 Cal.4th 196, 210.)
Though Mother concedes that substantial evidence supported the juvenile court’s finding that A.H. in fact sustained the injuries alleged, she contends there was insufficient evidence to show that the injuries occurred as the result of any neglect or failure to protect on her part. Her primary argument focuses on the juvenile court’s sustaining jurisdiction under section 300, subdivision (e). She contends the evidence failed to establish the third requisite element under the statute—that she knew or reasonably should have known that Father had committed acts of abuse. She points to evidence that she had never witnessed any violent acts on the part of Father, her own statements that she did not observe any injuries to A.H. the morning he was taken to Kaiser and evidence that others observed Father took good care of both children.
But Mother ignores the contrary evidence that supported the juvenile court’s findings. As observed by the court in Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 631, in reviewing a judgment for substantial evidence, “the test is not the presence or absence of a substantial conflict in the evidence. Rather, it is simply whether there is substantial evidence in favor of the respondent.” The juvenile court indicated through its comments at the jurisdictional hearing that it relied significantly on Dr. Shearer’s statements, asking the rhetorical question “How could she [Mother] not see signs of injury if you have got a child that when you touch the child on the leg, the child screams out?” According to Dr. Shearer, when he saw A.H. on December 15, 2008, A.H. would scream when his leg was touched. Dr. Shearer further stated that A.H.’s leg fracture was less than one week old and was caused by someone “bowing,” or holding and bending the leg. He also opined that A.H.’s arm injury was consistent with someone “smashing” the arm. He observed additional injuries, stating that A.H. had three healed rib fractures which were approximately two to three weeks old, and discolored bruises over his eyes which indicated they were in the process of healing.
In light of this evidence, the juvenile court could reasonably infer that Mother knew or reasonably should have known of the abuse. (See In re E. H., supra, 108 Cal.App.4th at pp. 669–670 [where infant suffered severe physical abuse and had been cared for only by family members, the only reasonable conclusion to be drawn from the evidence was that the parent knew or should have known the infant was being harmed by someone in the house].) Contrary to Mother’s characterization of the evidence as showing only an isolated instance of abuse of which she could not have been aware, the Department offered evidence to show that A.H. had suffered repeated instances of abuse over a period of weeks—not a single day—and had sustained obvious, visible injuries as a result of that abuse. Moreover, A.H.’s most recent injuries were the result of extreme violence, including bowing his leg and smashing his arm, that caused A.H. to react negatively when either his leg or arm was touched. Under these circumstances, the juvenile court could conclude that Mother’s claimed ignorance of the abuse was not credible or, at a minimum, that she should have been aware of the abuse. (See, e.g., In re Sheila B. (1993) 19 Cal.App.4th 187, 200 [“‘Issues of fact and credibility are questions for the trial court’”].)
Mother additionally argues that jurisdiction was unwarranted under section 300, subdivisions (b) and (j) because there was no evidence that A.H. and M.B. continued to be at serious risk of harm. She relies on In re David M., supra, 134 Cal.App.4th at pages 831 to 832, where the court stated: “While past abuse or neglect can certainly be an indicator of future risk of harm, the record of past neglect in this case is not enough to declare a child a dependent of the juvenile court without something more current. ‘While evidence of past conduct may be probative of current conditions, the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm. [Citations.]’ (In re Rocco M. [(1991)] 1 Cal.App.4th [814], 824.) ‘[P]revious acts of neglect, standing alone, do not establish a substantial risk of harm; there must be some reason beyond mere speculation to believe they will reoccur. [Citations.]’ (In re Ricardo L. (2003) 109 Cal.App.4th 552, 565.)” (Fn. omitted.)
We note that the Department’s brief is devoid of any argument in support of the juvenile court’s jurisdictional finding as to Mother under section 300, subdivision (a). Nonetheless, we again adhere to the well-established principle that we may affirm a juvenile court judgment if the evidence supports the decision on any ground. (In re Jonathan B., supra, 5 Cal.App.4th at p. 875.) Having concluded that jurisdiction was appropriate under section 300, subdivision (e), we address jurisdiction under subdivisions (b) and (j) only because the issues are distinct from those Mother raised in connection with jurisdiction under subdivision (e), not because the discussion is necessary for disposition.
Courts routinely conclude that it is not speculative to find that a substantial risk of harm continues to exist where a parent has failed to protect a child on multiple occasions. (E.g., In re J.K. (2009) 174 Cal.App.4th 1426, 1440 [ruling that substantial evidence showed the mother’s conduct posed a future risk of harm, where the child suffered two recent incidents of abuse by the father and the mother persistently failed to protect the child from such abuse]; In re Carlos T. (2009) 174 Cal.App.4th 795, 806 [rejecting the mother’s argument that children were no longer at risk of sexual abuse because the father was incarcerated, reasoning that the juvenile court could conclude the mother would not protect the children in the future on the basis of evidence that she had avoided responsibility for failing to protect them in the past].)
Here, the evidence showed that A.H. had suffered multiple instances of abuse during the approximate two to three-week period before the Department intervened. Neither Mother nor Father offered any explanation for A.H.’s rib fractures, bruises around his eyes and the cut on his neck. Mother never explained why she had not noticed A.H.’s bruises or why she had not seen the fresh cut on his neck. Moreover, Father’s explanation for A.H.’s fractured leg and sprained arm was suspect, as Dr. Shearer opined that the amount of force needed to cause those injuries was far greater than would occur while pulling on an arm or a leg in the process of wrapping a baby. Father also inconsistently explained how he caused A.H.’s injuries; while he initially stated that he pulled A.H.’s leg too hard on a Saturday and then pulled on his arm the following Sunday, he later reversed the order in which he inflicted the injuries. He was likewise inconsistent in his recollection of observing bruising on A.H.’s face, initially stating that he saw a bruise over A.H.’s eye (thus confirming that the bruise was visible) but later denying that he saw any bruising.
As summarized by the court in In re Jasmon O. (1994) 8 Cal.4th 398, 424, a parent’s past behavior can be used for predictive purposes, as “‘a measure of a parent’s future potential is undoubtedly revealed in the parent’s past behavior with the child.’” There was substantial evidence showing that the origin of A.H.’s injuries was either unknown or inadequately explained and that Mother failed to notice visible injuries to A.H. On the basis of this evidence, the juvenile court could reasonably conclude that A.H. and M.B. remained at risk of suffering serious physical harm at the time of the jurisdiction hearing.
C. Substantial Evidence Supported the Juvenile Court’s Disposition Order.
Mother next contends that the disposition order which removed A.H. and M.B. from her custody was not supported by substantial evidence. Before the juvenile court may order a child physically removed from a custodial parent, it must find by clear and convincing evidence that the child would be at substantial risk of harm if returned home and there are no reasonable means by which the child can be protected without removal. (§ 361, subd. (c)(1).) “The juvenile court has broad discretion to determine what would best serve and protect the child’s interest and to fashion a dispositional order.” (In re Javier G. (2006) 137 Cal.App.4th 453, 462.) Although the juvenile court is required to observe the clear and convincing standard, on appeal the reviewing court evaluates only whether the juvenile court’s decision is supported by substantial evidence. (In re Mariah T. (2008) 159 Cal.App.4th 428, 440–441; In re Isayah C. (2004) 118 Cal.App.4th 684, 693–694.)
“A removal order is proper if it is based on proof of parental inability to provide proper care for the minor and proof of a potential detriment to the minor if he or she remains with the parent. [Citation.] The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child. [Citations.]” (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, disapproved on other grounds in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.)
We initially dispose of Mother’s argument that the juvenile court failed to make the requisite findings in support of the removal order. “Section 361, subdivision (c), requires the trial court to (1) determine if reasonable efforts had been made to prevent or eliminate the need for removing the minor from his or her home and (2) to state on the record the facts that led the court to order removal.... Failure to make the required findings under section 361 is error. [Citation.]” (In re Basilio T. (1992) 4 Cal.App.4th 155, 171, superseded by statute on other grounds as explained in In re Lucero L. (2000) 22 Cal.4th 1227, 1239–1240.) At the conclusion of the disposition hearing, the juvenile court expressly found that a substantial danger to the children’s physical and/or mental health continued to exist and that the Department had provided reasonable efforts to prevent removal. It further found that while Mother had begun to participate in counseling programs and those services would likely prevent continued abuse and neglect of the children, a letter from the counselor indicated that it was too early to report any significant progress on Mother’s part. Accordingly, the juvenile court properly determined on the record that the danger to the children had not yet been alleviated.
Substantial evidence supported the juvenile court’s determination. As the Department explained in its jurisdiction/disposition report, before the family arrived at Kaiser, Mother maintained that she had no knowledge of A.H. having sustained any injuries and was unaware that Father had shown any type of aggression or violence to the children. Despite Dr. Shearer’s report that A.H. “‘resists right lower leg being moved and cries out in pain,’” Mother professed no knowledge of A.H.’s leg fracture. Moreover, Mother denied observing any bruises on A.H.’s face or seeing the ligature mark on his neck, which Dr. Shearer opined was consistent with strangulation. The Department summarized: “It seems that either the mother does not fully grasp the seriousness of the injuries sustained by her son, who was only four months at the time, or she is minimizing the injuries, possibly to protect the father.” Though Mother had begun to participate in counseling services by the time of the disposition hearing, her counselor reported “it is too early to report any significant progress at this time.”
As observed by the court in In re Esmeralda B. (1992) 11 Cal.App.4th 1036, 1044, a parent’s level of denial is an appropriate factor to consider when determining the risk to the child if placed with that parent. Here, though Mother consistently expressed a desire to comply with court orders and to reunify with her children, she never accepted any responsibility for failing to recognize the signs of A.H.’s abuse. The juvenile court could consider her denial of responsibility as a factor relevant to determining whether she was likely to modify her behavior in the future without court supervision. (See ibid.) Indeed, the juvenile court was in the best position to weigh the significance of Mother’s refusal to accept responsibility for not recognizing A.H.’s abuse in considering whether there was a substantial risk to A.H. and M.B. if placed with Mother.
Mother’s reliance upon In re Steve W. (1990) 217 Cal.App.3d 10 is misplaced. In that case, the juvenile court ordered an infant removed from the physical custody of his mother because of the fatal beating of the infant’s five-year-old half brother committed by the infant’s father. (Id. at p. 12.) The Court of Appeal reversed. It found that the juvenile court’s concern the mother would enter a new relationship with another abusive person was insufficient to order removal in light of evidence that the mother was not present when the prior injuries to the half brother occurred, she immediately made inquiries concerning their nature, a doctor testified that a layperson would have found the injuries consistent with the explanation given by the father and the half brother (a bicycle accident and a fight at school), the mother assisted in the prosecution of the father for the murder, and she expressed a desire never to have anything to do with the father. (Id. at pp. 21–23.) In contrast, the evidence before the juvenile court in this matter was distinct. Mother had yet to explain why she had not recognized the visible signs of abuse on A.H. and she did not yet completely understand the seriousness of the problem that led to Department intervention. For this reason, the juvenile court ordered specific reunification services designed to address Mother’s issues. (See In re Joshua H. (1993) 13 Cal.App.4th 1718, 1732 [where a child is subject to jurisdiction under § 300, subd. (e) because of one parent’s physical abuse, the nonabusing parent may properly receive reunification services].) Substantial evidence supported the juvenile court’s disposition order.
II. Substantial Evidence Supported the Juvenile Court’s Disposition Order Declining to Place M.B. with S.A.
Separately, S.A. appeals from the disposition order, arguing that substantial evidence did not support the juvenile court’s disposition order placing M.B. with a maternal aunt instead of with him. He relies on section 361.2, subdivision (a), which provides: “When a court orders removal of a child pursuant to Section 361, the court shall first determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child. If that parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child.” He contends that there was no substantial evidence of detriment precluding the placement of M.B. with him.
His argument is flawed, however, because at the time of the disposition hearing he had been declared M.B.’s biological—not presumed—father. As explained in In re JerryP. (2002) 95 Cal.App.4th 793, 801, “[p]resumed father status ranks highest.” Importantly, “only a presumed, not a mere biological, father is a ‘parent’ entitled to receive reunification services under section 361.5,” and custody of the child under section 361.2. (In re Zacharia D. (1993) 6 Cal.4th 435, 451; In re Jerry P., supra, at p. 801; accord, In re Vincent M. (2008) 161 Cal.App.4th 943, 955 [“‘a biological father is not entitled to custody under section 361.2’”]; In re Andrew L. (2004) 122 Cal.App.4th 178, 191 [same].) “Biological fatherhood does not, in and of itself, qualify a man for presumed father status under [Family Code] section 7611. On the contrary, presumed father status is based on the familial relationship between the man and child, rather than any biological connection. [Citation.]” (In re J.L. (2008) 159 Cal.App.4th 1010, 1018.) Because S.A. was not M.B.’s presumed father, he was not a “parent” subject to the provisions of section 361.2.
Substantial evidence established that the juvenile court’s placing A.H. and M.B. together with their maternal aunt was in the children’s best interest. (See § 361.3, subd. (a); In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006 [juvenile court has broad discretion to craft a disposition in the child’s best interest].) S.A. and M.B. had yet to form a relationship with each other. While it was commendable that S.A. had been paying regular child support since M.B.’s birth, he had met M.B. only once or twice before Department intervention. After the Department began facilitating visitation, S.A. visited with M.B. twice and cancelled numerous scheduled visits, citing various reasons. During the two visits, S.A. and M.B. interacted well with each other. Under these circumstances, substantial evidence supported the juvenile court’s exercise of discretion to provide S.A. with reunification services including parenting education and participation in regular, consistent visitation with M.B. to enable S.A. “to understand how his absence and lack of consistency and visits affect a child.”
DISPOSITION
With the striking of the allegations in counts a-1, b-1, e-1 and j-1 of the sustained petition relating to A.H.’s low weight, the juvenile court’s jurisdiction and disposition orders are affirmed.
We concur: BOREN, P. J., CHAVEZ, J.