Opinion
NOT TO BE PUBLISHED
Super. Ct. No. JD223525
BUTZ, J.Appellants Danielle R. (father) and Rachel R. (mother) appeal from the juvenile court’s dispositional order finding that the minor, Nehemiah R., came within the provisions of Welfare and Institutions Code section 361.5, subdivisions (b)(5) and (6) (hereafter section 361.5(b)(5), section 361.5(b)(6)), and denying them reunification services. (§§ 358, 360, 395.) They contend there was insufficient evidence to support the court’s denial of reunification services. We shall affirm.
Undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL BACKGROUND
On December 20, 2005, Sacramento County Department of Health and Human Services (DHHS) filed a petition on behalf of then three-month-old Nehemiah, alleging the minor came within the provisions of section 300, subdivisions (a), (b) and (e). The petition alleged that, on December 7, 2005, Nehemiah had suffered second and third degree burns to his face after father used a blow-dryer to make the minor sleep. The petition further alleged that, on December 18, 2005, Nehemiah was admitted to Kaiser Hospital (the hospital) and found to be suffering from intracranial bleeding and brain injury from nonaccidental trauma.
The minor was detained and remained at the hospital in intensive care. He was not expected to survive.
A pediatrician, Dr. Kevin Coulter, reviewed the minor’s medical records and testified at the jurisdictional hearing. In his medical opinion, the minor had suffered inflicted head trauma, with forces abusive in nature. After the hearing, the juvenile court found the allegations in the petition true and sustained the petition under all three subdivisions of section 300, including subdivision (e) (severe physical abuse of a child under five years old).
A contested dispositional hearing was held on September 8, 2006. DHHS recommended neither parent be provided reunification services. Some of the minor’s medical records and several doctors’ reports were submitted to the juvenile court for consideration.
The minor has an extensive medical history. He was prematurely delivered by cesarean section in September 2005. He weighed just under 4 pounds 11 ounces at birth and was born with congenital hydrocephalus secondary to aquaductal stenosis. He was discharged from the hospital nine days later.
A CT scan was performed at the minor’s four-week follow-up appointment. The minor was doing well at that time. On November 22, 2005, however, the minor was seen by doctors because of fussiness and edema of his feet. The parents were complaining of colic and spitting. The minor was found to be anemic and was placed on progestimil. A genetics evaluation was also performed.
On November 28, 2005, the minor was examined again. His head size had increased dramatically and he was very irritable. He was admitted for surgery to have a ventriculoperitoneal shunt placed in his head for symptomatic hydrocephalus. The surgery went well.
On December 6, 2005, the minor was examined by a cardiologist who confirmed the minor had a heart murmur secondary to anemia. The cardiologist recommended a follow-up appointment in one to two months.
The following day, however, the minor was brought in for facial burns. The parents reported that they had seen a video about using white noise to calm an infant. Mother had reportedly used a blow-dryer in the past to that effect. While mother was sleeping, father stated he placed the blow-dryer next to the minor’s face because the minor was crying. He held the blow-dryer to the minor’s face for five minutes and then left the blow-dryer resting on the minor’s shoulder for about 30 minutes. Father claimed not to know the blow-dryer was blowing hot air or that it was burning the minor until he heard the minor crying. Father then discovered the minor had blisters on his face. Father woke mother, said it was an accident, and they took the minor to the hospital where it was determined the minor had sustained second and third degree burns to his face and chest. Child Protective Services investigated the referral but deemed the referral “[u]nfounded.”
The minor was seen on December 9, 2005, and the doctor noted that the burns to the face were healing. On December 12, 2005, the minor was seen for a follow-up appointment with pediatric neurosurgery. The surgical incisions appeared well healed and a CT scan showed the shunt in good position with a slight decrease in ventricular size. No intraventricular or subdural bleeding was present.
On December 18, 2005, the parents brought the minor into a clinic. The minor was minimally responsive, and appeared to be unstable and critically ill. He was immediately transferred to the hospital’s emergency department where he was fluid resuscitated and, eventually, stabilized. He was then admitted to the pediatric intensive care unit for ongoing care and treatment. His injuries were extremely severe.
The minor suffered intraventricular and subdural hemorrhaging, an acute interhemispheric hematoma, significant anemia secondary to bleeding in the brain, and extensive retinal and subretinal hemorrhaging in both eyes. He also sustained a fracture of the right proximal humerus (upper arm near the shoulder), two suspected rib fractures (which were not present when the minor was X-rayed on November 22), and his bones demonstrated diffuse trauma.
Within two weeks, a follow-up CT scan revealed the minor had lost 90 percent of his brain functions from the December 18, 2005 trauma, rendering his “prognosis for any meaningful recovery of neurological function extremely poor.” He has had a tracheostomy and requires a gastronomy tube and an enteral pump for fluid and nutritional feeding. It is unlikely the minor will “ever walk, talk, see, eat by mouth, interact with his environment in any meaningful way, or be able to carry on even the most basic of activities of daily living.” He requires 24-hour awake care and it is unlikely he will ever be moved to a lower care level.
Numerous doctors concluded the minor’s injuries were due to nonaccidental trauma and were consistent with Shaken Baby Syndrome. In fact, Kaiser Neurologist Dr. Kahn, stated that “‘only violent shaking’” would result in the minor’s injuries.
The shunt remained functional and numerous tests were performed. Doctors ruled out the possibility of a bleeding disorder, and a genetics doctor ruled out glycogen storage disease and concluded the only logical cause of the injuries was trauma. Doctors also stated that the December 18, 2005 injuries were from trauma inflicted minutes or hours, but not days, earlier.
The minor remained in the pediatric intensive care unit until January 30, 2006, when he was transferred to the hospital’s general pediatric unit. On March 16, 2006, the minor was transferred to a subacute facility.
On March 27, 2006, the minor was transferred to the hospital due to breathing problems. It was determined he had pneumonia. In mid-April 2006, the minor was returned to a subacute facility.
With respect to the December 18, 2005 trauma, the parents reported to doctors that the minor had eaten well that morning and had been happy and playful. Mother later told the social worker that the minor did not finish his bottle that morning. The parents also told the social worker and a detective that the minor had been fussy or crying that morning. Some friends visited for a short time that morning and the parents put the minor down to sleep. The minor was not crying at that time and the friends left thereafter. While the minor was sleeping, mother left the minor in father’s care to run some errands. She was gone for approximately 45 minutes. Father reported that while she was gone, the minor cried briefly. When mother returned, she found the minor to be pale, breathing strangely, and lethargic. She and father brought the minor to the clinic.
During the investigation, the parents had offered two possible causes of the minor’s injuries. Father vaguely suggested that perhaps he had bounced the minor too roughly in the “Baby Bjorn.” Dr. Kahn, however, concluded that such bouncing could not have caused the minor’s injuries. The parents also suggested that something may have happened at the day care center at father’s gym where he had left the minor for two hours the day before. As noted above, doctors agreed that the injuries were from trauma inflicted on December 18, 2005, and were not consistent with trauma occurring any earlier than that date.
At the time of the dispositional hearing, mother maintained, despite the doctors’ assessments, that the minor’s injuries were the result of something that had gone wrong during the shunt surgery. She also did not believe the hospital had performed all the tests they could have to rule out a genetic cause or bleeding disorder. She refused to accept that father had caused the injuries. She also, however, hinted that she knew something about the cause of minor’s injuries that she refused to share “for ‘personal reasons.’”
DHHS had approved Counselor Adell Gillman to provide services to the parents. Gillman testified that the parents had attended 11 therapy sessions during the months of January through April 2006. During those sessions, Gillman worked with the parents, as requested by the social worker, on dealing with the stress of having a very sick baby and facing the DHHS allegations. The social worker was not specific about the nature of the allegations. The parents, however, informed her that the petition alleged “shaken baby.” They also told her there were allegations about burns to the minor’s face but that case had been closed.
Gillman assisted the parents in dealing with the impact of the minor’s condition and the DHHS allegations upon the parents’ marriage. The parents were receptive and cooperative, and complied with their assignments.
Gillman was not informed until the day of her testimony that the court had found the minor had been intentionally injured while in his parents’ custody. Nor had she known that the burn incident had been realleged and found to be nonaccidental. She still, however, believed mother would be amenable to therapy, that she could work with mother to help her accept the court’s decision, and that the lives of both mother and the minor have changed.
According to Gillman, at the time of the therapy sessions, the parents still were not acknowledging that the minor had been abused. The parents did not testify at the dispositional hearing.
The juvenile court found the minor had suffered severe physical harm as a result of deliberate and serious injury inflicted upon him by father on two separate occasions--the burns from the blow-dryer and the severe injuries from having been shaken. The juvenile court found father was not entitled to reunification services under section 361.5(b)(6), as reunification services would not benefit the minor upon consideration of the harm inflicted, the circumstances, and the nonexistent likelihood the minor would be returned to father’s unsupervised care within 12 months.
The juvenile court also found neither father nor mother were entitled to reunification services under section 361.5(b)(5), as it did not find reunification services were likely to prevent reabuse or that the failure to try reunification services would be detrimental to the minor due to the minor’s close and positive bond with either parent.
The juvenile court ordered a permanent plan of out-of-home placement with a specific goal of a less restrictive foster care. The court further ordered both parents to receive regular supervised visitation.
DISCUSSION
I. Substantial Evidence Supported Denial of Reunification to Mother
The juvenile court denied mother reunification services upon the finding that section 361.5(b)(5) applied. Mother contends that section is inapplicable to her because there was no substantial evidence to support the juvenile court’s finding that the minor came within section 300, subdivision (e), because of her conduct. We disagree.
Section 361.5(b)(5) states: “Reunification services need not be provided to a parent . . . described in this subdivision when the court finds, by clear and convincing evidence, any of the following: [¶] . . . [¶] (5) That the child was brought within the jurisdiction of the court under subdivision (e) of Section 300 [severe physical abuse suffered by a child under the age of five] because of the conduct of that parent . . . .”
The phrase, “the conduct of that parent” in section 361.5(b)(5), is not limited to the parent who personally inflicted the abuse. As explained by the court in In re Joshua H. (1993) 13 Cal.App.4th 1718, 1721, “the Legislature intended subdivision (b)(5) of section 361.5 to apply to the parent who, knowing the actual abuser, knows or reasonably should have known that the other person was physically mistreating the child, as well as to the parent who personally abuses his or her child” (id. at p. 1732).
We review a juvenile court’s denial of reunification services for substantial evidence. (In re Brian M. (2000) 82 Cal.App.4th 1398, 1401.) Here, substantial evidence supports the juvenile court’s finding that mother knew or reasonably should have known father was physically mistreating Nehemiah.
Mother knew she had a medically fragile and fussy child. She also knew father had seriously injured the child when left alone to deal with the child’s fussiness. Only 11 days before father caused severe injury by shaking the minor, he inflicted second and third degree burns on the minor with a blow-dryer. Dr. Joan Kutschbach noted, in her statement to authorities, that it seemed “odd” that a baby who cannot move his head would be burned on both cheeks and under the fatty part of his chin and the doctor did not think the baby could have done it by himself. The fact that the investigator originally regarded the referral unfounded does not compel a finding that mother, who lived in the household, should not have known of the physical mistreatment.
Although mother claimed to believe father that he inflicted the burns accidentally, she also told the social worker she felt it was common sense not to put a blow-dryer to a baby’s face and did not know what he was thinking. A friend also reported that mother and father had not been getting along since the blow-dryer incident. Furthermore, the explanation for father’s use of the blow-dryer not only defies common sense, it is inconsistent with his stated purpose of using “white noise,” as there would be no reason to blow the air directly on the baby’s face, close enough to burn the baby, for the purpose of using noise.
Moreover, while mother continues to label the burn incident a “mistake,” there was evidence that mother, in fact, knew father had inflicted the December 18, 2005 trauma to the child but also considered it a “mistake,” as well. As the juvenile court noted, at the time of the dispositional hearing, mother continued to be unforthcoming about the cause of the minor’s injuries. She continued to openly blame the medical providers for Nehemiah’s injuries but hinted to the social worker that she knows something she is not disclosing “for ‘personal reasons that [she] do[es] not want to go into now.’” However, while the child was in the hospital being treated for the injuries he sustained from being shaken, mother was overheard having the following conversation with her stepmother: The stepmother said, “[I]t’s not your fault it was him (the father) who did it.” Mother stated, “He didn’t mean to hurt him it was a mistake.” The stepmother said, “How are they going to figure out what happened unless you tell them?” Mother replied, “We already told them we didn’t do it. I can’t tell them now.”
Mother denies this conversation took place. The stepmother claimed they were “probably talking about the burn incident.” However, because the medical professionals were trying to determine the cause of the current (shaking) injuries and appropriate treatment at this time, because of the comment that the medical professionals would not be able to figure out what happened unless mother told them, and because the parents never claimed father did not inflict the burn injuries, it was reasonable for the court to infer that this discussion was related to the shaking incident.
It is reasonable to infer from mother’s characterization of these two separate incidents of abuse as “mistakes,” that she was not unaware of the mistreatment, but rather minimizing father’s role in the child’s injuries. Thus, there was substantial evidence for the juvenile court to conclude mother knew, or reasonably should have known, father had physically mistreated Nehemiah and section 361.5(b)(5) applies to mother.
II. No Error in Denying Services to Mother
Mother further contends that, even if section 361.5(b)(5) applies to her, there was sufficient evidence to support court findings under 361.5, subdivision (c), that services would be likely to prevent reabuse or neglect and that failure to try reunification would be detrimental to the minor because of her close and positive bond. Thus, she argues, the juvenile court erred in not ordering services.
The issue, however, is not whether the juvenile court could have ordered services, but whether mother presented competent testimony that compelled such an order. We conclude she did not.
Once the juvenile court finds, as it did here, that the minor is as described by section 361.5, subdivision (b), the general rule favoring services no longer applies and is “replaced by a legislative assumption that offering services would be an unwise use of governmental resources.” (Raymond C. v. Superior Court (1997)55 Cal.App.4th 159, 164.) At that point, “the court shall not order reunification . . . unless it finds that, based on competent testimony, those 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, subd. (c), 3d par., italics added.) It is the parent’s burden to prove that services are warranted under section 361.5, subdivision (c). (Raymond C., at pp. 163-164.)
Mother argues the evidence established that services would be likely to prevent reabuse or neglect. To the contrary, by the time of disposition, approximately nine months after the baby was shaken and five months after the court’s jurisdictional findings of intentional injury by father, mother was still denying the minor had been abused at all. Mother continued to openly blame medical professionals for the minor’s severe injuries. As noted by the court, despite numerous doctors’ reports, the court’s findings, and seeing the extent of her child’s injuries, mother had not even begun to address the fact that the child had been the victim of abuse. In fact, mother’s evasiveness with the social worker and mother’s conversation with her stepmother indicate that mother knew something about the child’s injuries that she refused to disclose.
Mother relies on Counselor Gillman’s testimony in support of her argument. The juvenile court found, however, that the parents had not been honest with their counselor--which significantly diminishes the value of Gillman’s opinion. In any event, although Gillman testified that she believed mother would be amenable to therapy and she could work with mother to help her accept the court’s decision and that the lives of both mother and the minor have changed, Gillman never testified that such therapy was likely to prevent reabuse. Mother may indeed benefit personally from continued therapy, whether it be in dealing with her grief, the minor’s injuries, or the impact the injuries and findings of abuse have on her marriage. But there was no competent evidence presented to compel a finding that such therapy was likely to prevent reabuse.
Nor did mother meet her burden to establish that failure to try reunification will be detrimental to the child because the child is closely and positively attached to that parent. To this end, mother emphasizes that she has visited the minor regularly since his hospitalization and has acted appropriately and lovingly. She further notes that the minor was observed to attempt to suck on his own, “especially when mother was holding him” and that, on one visit, the social worker reported that the minor appeared to respond to mother’s touch and possibly her voice.
These facts do not overcome the presumption of denying services nor compel a finding that failure to try reunification would be detrimental to the minor because of the minor’s close and positive bond. As found by the juvenile court, while there was evidence to demonstrate that mother was bonded to the minor, “the evidence is not forthcoming on the other side.”
The minor was removed from the parents’ custody when he was only three months old and, unfortunately, he lacks cognitive abilities. While the parents have visited regularly, the minor has, since his removal, been cared for primarily by doctors and nursing staff. There was little to no evidence that Nehemiah was bonded to mother.
The social worker’s report did state that, “[a]t times[,] the minor will attempt to suck on his own, especially when his mother is holding him.” But the minor had also sucked for the nurse a few times. And as noted by the juvenile court, while the social worker observed during a supervised visit that the minor appeared to respond to mother’s touch and possibly her voice, the social worker’s report did not indicate whether it was a positive or negative response. In any event, an earlier report indicated that the minor also responded to the social worker’s touch and the nurse had reported that the minor likes to be touched.
In sum, mother failed to meet her burden to establish that services would be likely to prevent reabuse or that the failure to try reunification services would be detrimental to the minor due to a close bond with her. Thus, the juvenile court did not err in denying reunification services.
III. Father’s Contentions
In denying father reunification services, the juvenile court found both subdivisions (b)(5) and (b)(6) of section 361.5 applied. Father contends the juvenile court erred in denying him services under either provision--arguing several of the juvenile court’s findings are not supported by substantial evidence. We find no error.
Father contends there was insufficient evidence to support the juvenile court’s finding under section 361.5(b)(6) because the burn injuries he inflicted on Nehemiah were neglectful and it was not proven that he was the one who shook Nehemiah.
Section 361.5(b)(6) states that reunification services need not be provided to a parent when the juvenile court finds, by clear and convincing evidence, “[t]hat the child has been adjudicated a dependent pursuant to any subdivision of Section 300 as a result of . . . the infliction of severe physical harm to the child, . . ., as defined in this subdivision, and the court makes a factual finding that it would not benefit the child to pursue reunification services with the offending parent.” Again, we review a juvenile court’s denial of reunification services for substantial evidence. (In re Brian M., supra, 82 Cal.App.4th at p. 1401.)
Here, there is substantial evidence to support the juvenile court’s finding that father inflicted severe physical harm upon Nehemiah on December 18, 2005.
The minor suffered life-threatening injuries while in father’s exclusive care and father had no reasonable explanation for the minor’s injuries. Doctors confirmed that the minor had been injured on December 18, and not the day before, which refuted father’s suggestion that perhaps the minor was injured at the gym day care. Father’s other explanation, that perhaps he bounced the child too hard in the “Baby Bjorn,” was also rejected by doctors as inconsistent with the medical records. Indeed, all the medical opinions concluded the minor had suffered nonaccidental trauma, consistent with Shaken Baby Syndrome. Thus, there was substantial evidence to support the juvenile court’s finding that father inflicted the minor’s injuries.
Father further contends there was insufficient evidence for the juvenile court to deny reunification based on section 361.5, subdivision (c). We disagree.
As stated above, subdivision (c) of section 361.5 specifically prohibits the juvenile court from ordering reunification services for the conduct described in subdivision (b)(6) unless the court finds, by clear and convincing evidence, that reunification is in the minor’s best interest. Subdivision (h) of section 361.5, provides some relevant factors for the juvenile court to consider, inter alia, in determining whether reunification services will benefit the minor.
Here, in determining whether reunification services were in the best interest of the minor, the juvenile court specifically considered the factors under subdivision (h) of section 361.5. The court’s findings demonstrate that, because of father’s serious and deliberate abuse on two separate occasions, the extensive physical harm inflicted by father, father’s refusal to take responsibility for his actions, and the fact that there was no possibility the minor would be returned to his care without supervision within 12 months, the minor would not benefit from a grant of reunification services to father. There was no error.
We have concluded that the juvenile court’s denial of reunification services for father based on section 361.5(b)(6) is supported by substantial evidence. In light of that conclusion, we need not consider whether the juvenile court’s denial of services also was proper under section 361.5(b)(5), as subdivision (b) provides that denial of services may be predicated on “any” of numerous possible bases.
DISPOSITION
The judgment (dispositional order) is affirmed.
We concur: SIMS , Acting P.J., HULL , J.