Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court No. 09 CEJ 300003 of Fresno County. Martin Suits, Temporary Judge pursuant to Cal. Const., art. VI, § 21 and Mary Dolas, Commissioner.
Judge Suits presided at the disposition hearing; Commissioner Dolas presided at the jurisdiction hearing.
Neale B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant.
Kevin Briggs, County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
VARTABEDIAN, Acting P. J.
J.Y., mother of R., H., and A., appeals from the order finding jurisdiction for her three children pursuant to Welfare and Institutions Code section 300 and the subsequent order denying reunification services. Dependency proceedings were instituted after six-month-old A. was taken to the hospital for a fractured femur. It was discovered that A. had several other healing fractures that had occurred prior to the femur fracture. Mother appeals, claiming the evidence does not support the finding of jurisdiction and the court erred when it held that she was not entitled to reunification services. We affirm.
All future code references are to the Welfare and Institutions Code.
FACTS AND PROCEEDINGS
On December 28, 2008, mother took six-month-old A. to the hospital because his leg was “fat.” A. had a fracture of his right femur. Mother did not have a valid explanation as to how the injury occurred. Because of the injury and absence of an explanation for the injury, a social worker was called to the hospital.
Mother was calm and cooperative when interviewed. She reported that A. had been sick earlier in the day. She went in the other room to cook and left A. on the bed with her two other children, eight-year-old R. and three-year-old H. While in the room with the other children, A. did not cry or scream. When mother checked on A., she noticed his leg was swelling. She asked the other children if anything had happened, and they both denied that anything had occurred. Mother said neither she nor the father used drugs, smoked or drank. R. was interviewed by the sheriff, and R. said that he and H. were in the room jumping on the bed and they jumped on the baby.
The doctor who examined A. said the injury could have occurred by the children jumping on the baby, but the baby would likely have screamed loudly when this occurred.
A social worker interviewed father, R., and H., the next day. Father, who was not present at the time of the injury, did not have any explanation for A.’s injury. R. said he did not know how A. was hurt, and he denied that someone hit or jumped on A. H. provided no details.
On December 30, 2008, the social worker received a call from the hospital and was told that A. had additional fractures to his left ribs and left clavicle. These fractures were healing. The rib fractures were approximately one week old and the clavicle fracture was not birth related. The person from the hospital said the injuries were suspicious.
Neither parent had an explanation for the additional injuries. Father was not present in the home when the injuries occurred. Mother said A. had fallen off the bed one time. Father was arrested and jailed on an outstanding warrant. The three children were detained and placed into foster care.
Mother was tested for drug usage. The test result came back positive for marijuana on January 2, 2009, at a level that indicated regular usage.
A dependency petition was filed in January by the Department of Children and Family Services (the department) alleging that A., R., and H. were children coming within the jurisdiction of the juvenile court. The petition alleged that the children had suffered, or there was a substantial risk that they would suffer, serious physical harm inflicted nonaccidentally by their parent under section 300, subdivision (a). The petition also alleged that mother had a substance abuse problem that negatively affected her ability to provide regular care, supervision, and protection for her children under section 300, subdivision (b). A detention hearing was held on January 7, 2009, and the court found a prima facie case had been established.
The petition also contained allegations against father. He is not a party to this appeal.
An amended petition was filed on February 2, 2009, adding an allegation under section 300, subdivision (e) that A., a child under age five, had suffered severe physical abuse resulting in bone fractures.
A report was prepared for a contested jurisdiction hearing. Mother had participated in visitation with the children and the visits were appropriate. Mother demonstrated appropriate nurturing parenting skills during the visits. Mother had no prior criminal record and no history with the department.
An additional bone survey and reports were produced by hospital staff. A fracture to A.’s left humerus was noted, as well as a possible fracture to his right tibia that was less than a week old at the time A. was brought to the hospital. The doctor noted that these additional fractures were further evidence of child abuse. In response to questions from an investigator, the doctor concluded that rib fractures in a child this age are “highly specific for child abuse.” The doctor stated that the fractures “[m]ake[] it impossible for any reasonable person to consider that child abuse is not the most likely diagnosis in this case.”
The doctor gave his opinion on different scenarios that could have caused the injuries. While a person falling down when holding A. could have caused A.’s rib fractures, it was not likely that this is how these injuries occurred. Grabbing the arm of a falling child could cause the humerus fracture but probably not the clavicle fracture, and it was the doctor’s opinion that it was unlikely to cause either. Children bouncing on a bed and landing on the child could cause the spiral-type femur fracture, or maybe the clavicle fracture, but probably not the other fractures. The doctor opined that turning the child by the leg would not likely cause the femur fracture or any other fracture. Throwing the child against the wall or floor might cause the femur fracture but is not likely to cause the other fractures. The doctor concluded, “This child was undoubtedly exposed to at least two episodes of trauma (different ages of fractures). The amount of force required to produce the injuries would be sufficient to kill the child if head injury were involved. I have seen cases where children, with less obvious cases of child abuse, have come back to the hospital with fatal injuries due to repeated trauma. The environment in which these injuries happened is obviously dangerous, and unless it is corrected, is a potentially lethal environment.”
When R. was at the hospital, he said he was not on the bed with A. and he did not injure him. He said he was in the room with A. and H., and H. was on the bed with A. R. was interviewed and said he did not know or could not remember how A. was injured. H. would not speak to an interviewer.
At a later time, H. told her foster mother that mother had thrown A. to the floor and against the wall.
A contested jurisdiction hearing was held on June 3, 2009. The court considered the social worker’s report, as well as records from the sheriff’s department and all hospital records. Social worker Maria Ortiz testified that she was called to the hospital the day A. was brought in. Mother was cooperative at the hospital.
The court was concerned about the multiple injuries and that no explanation had been given to show that these were not the result of nonaccidental trauma. The court found the section 300, subdivisions (a), (b), and (e) allegations to be true and found the injuries were not accidental.
A report was prepared for the contested disposition hearing. Mother had been cooperative and willing to participate in all services. She demonstrated appropriate parenting skills during her visits, and the children appeared to have a parent-child bond. Mother had completed a parenting program and was completing an outpatient drug and alcohol program where she was making excellent progress. Mother tested positive several times for marijuana between January and the end of March but had tested negative for drugs since that time. Mother had not admitted that she caused the injuries to A., but had apologized for the injuries. Although there was not enough solid evidence to criminally prosecute mother, it was recommended that she not receive reunification services because reunification would not prevent reabuse.
H. and R. participated in a mental health assessment in February of 2009. H. was clingy, aggressive, did not sleep well or eat well, and threw tantrums. It appeared that her home did not have rules and structure in place. H. was sad and defiant for at least a day after visiting with her parents. R. was aggressive, argumentative, and appeared sad. He did not sleep well at night and was preoccupied most of the time. His bad behavior increased following visits with his parents.
The social worker testified at the August 5, 2009, disposition hearing in a manner similar to the information set forth in her report. The social worker was particularly concerned that mother had not acknowledged that she caused the injuries to A. The worker testified that she would have recommended services if mother had acknowledged that she was the one who injured A.
Mother testified that she has a strong bond and relationship with her children. She said she had learned how to ask for help when overwhelmed and how to take care of her children. She had not used drugs for six months. She admitted she did not take care of A. like she should have and she should not have left him on the bed. She again stated she did not hurt A.
The court stated that it did not agree with the emphasis by the social worker on the failure of mother to admit to causing the injuries. The court’s first concern was that A. had multiple fractures occurring on at least two occasions. The fracture of the femur was a twisting fracture and a very serious kind of break. In addition, the court found that the mental health assessments of H. and R. indicated serious mental health problems and a chaotic lifestyle. Combined, the court found “there is a terrible risk to all three of these children in terms of returning them to the mother.”
The court denied reunification services to mother. Reunification services were ordered for father.
DISCUSSION
I. Sufficiency of Evidence to Support Jurisdiction Findings
Allegations against mother were found true under section 300, subdivisions (a), (b), and (e). Mother claims that substantial evidence does not support the subdivisions (a) and (e) findings. Under section 300, subdivision (a), a child may be adjudged to be 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. For the purposes of this subdivision, 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 the child’s siblings, or a combination of these and other actions by the parent or guardian which indicate the child is at risk of serious physical harm.”
A child may be adjudged a dependent child of the court under section 300, subdivision (e) when “[t]he child is under the age of five years and has suffered severe physical abuse by a parent.... For 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;... or more than one act of physical abuse, each of which causes bleeding, deep bruising, significant external or internal swelling, bone fracture, or unconsciousness....”
Mother argues that under subdivision (a) there was insufficient evidence to support the conclusion that she inflicted the harm upon A. nonaccidentally or that she would do so to H. or R. In making this argument, mother relies on early determinations by police, a physician, and the social worker that the fracture to the right femur was inflicted accidentally. In addition, mother relies on the fact that a criminal prosecution was not pursued against her and there were no prior reports of abuse or neglect regarding her children. She asserts that she gave reasonable explanations for the injuries, including that she had fallen with the baby, the baby rolled off the bed, and H. and R. were jumping on the bed with the baby. Her argument challenging the jurisdiction finding under subdivision (e) is similar: she argues there was no physical abuse, just a tragic accident. She again claims the injuries were not the result of physical abuse.
“When the sufficiency of the evidence to support a finding or order is challenged on appeal, the reviewing court must determine if there is any substantial evidence, that is, evidence which is reasonable, credible, and of solid value to support the conclusion of the trier of fact. [Citation.] In making this determination, all conflicts are to be resolved in favor of the prevailing party, and issues of fact and credibility are questions for the trier of fact. [Citation.] In dependency proceedings, a trial court’s determination will not be disturbed unless it exceeds the bounds of reason. [Citation.]” (In re Ricardo L. (2003) 109 Cal.App.4th 552, 564.)
“‘The petitioner in a dependency proceeding must prove by a preponderance of the evidence that the child who is the subject of a petition comes under the juvenile court’s jurisdiction.’” (In re Brison C. (2000) 81 Cal.App.4th 1373, 1379.)
The reasons asserted by mother to support her argument ignore the substantial evidence review we are required to make. While there was evidence provided by the mother, in the form of her explanations, that each of A.’s fractures were the result of an accident, there was substantial evidence that the fractures were inflicted nonaccidentally. As stated by the one doctor, the series of fractures “[m]akes it impossible for any reasonable person to consider that child abuse is not the most likely diagnosis in this case.” In addition, one doctor said that A. would have screamed out when his femur was fractured, yet mother testified that A. did not cry out at all. After A. was taken to the hospital for the femur fracture but before the other fractures were discovered, mother said she could not recall any other trauma occurring to A. and said she was very careful with A. She did not report any falls, drops or other trauma to A. in the prior two to three months. H. told her foster mother that A. threw the baby on the floor and against a wall.
It was the trial court’s duty to determine the credibility of mother. It did so, rejecting her explanations of accidental trauma and relying on substantial evidence that supported its findings of jurisdiction under section 300, subdivisions (a), (b), and (e).
II. Denial of Reunification Services
Pursuant to section 361.5, subdivision (b), reunification services need not be provided to a parent when the court finds by clear and convincing evidence that certain subsections apply. Two subsections are applicable here. Section 361.5, subdivision (b)(5) provides that reunification services need not be provided when the court finds by clear and convincing evidence “[t]hat the child was brought within the jurisdiction of the court under subdivision (e) [child is under the age of five and has suffered severe physical abuse] of Section 300 because of the conduct of that parent.” Reunification services need not be provided under section 300, subdivision (b)(6) when “the child has been adjudicated a dependent pursuant to any subdivision of Section 300 as a result of severe sexual abuse or the infliction of severe physical harm to the child, a sibling, or a half sibling by a parent or guardian, 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 or guardian.”
Mother makes a multifaceted attack on the trial court’s order denying reunification services. First, mother argues section 361.5, subdivision (b)(5) does not apply because the court erred in adjudicating A. a dependent under section 300, subdivision (e). We have rejected this argument previously and need not repeat it here.
Next, mother argues that, even if subdivision (b)(5) applies, the juvenile court failed to make the requisite findings. Mother contends the court was required to find whether services were likely to prevent reabuse or whether her children were closely and positively attached to her such that the failure to offer services would be detrimental to them.
Section 361.5, subdivision (c) states that a court shall not order reunification services in any case when subdivision (b)(5) applies “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.” Mother has twisted the requirements of section 361.5, subdivision (c). The clear language of the section requires the court to make findings only if it is ordering reunification services. The court here, having found that section 361.5 subdivision (b)(5) applied, did not order reunification services. Thus the findings mandated when the court does order services were not required.
Mother’s next attack is on the court’s finding that reunification services should not be ordered under section 361.5, subdivision (b)(6). This section was applicable to R. and H. based on the severe physical harm to A., their sibling. First, mother claims the section cannot be utilized to deny her reunification services because she did not receive notice that the department would be proceeding under this subdivision.
The social worker’s report stated that reunification services should be denied under section 361.5, subdivision (b)(5). Section 361.5, subdivision (b)(5) applies to a finding made under section 300, subdivision (e). Section 300, subdivision (e) applies only to A. because it speaks in terms of severe physical abuse to a child under the age of five and does not mention siblings. Siblings of a child under the age of five who suffer severe physical abuse are covered by section 300, subdivision (a). The denial of reunification services to R. and H. cannot be based on section 361.5, subdivision (b)(5), but could properly be based on section 361.5, subdivision (b)(6)--severe physical abuse to a sibling.
Mother is correct that the report did not list section 361.5, subdivision (b)(6) as the basis of a denial of reunification services as to R. and H., but mother was aware the department was recommending the denial of reunification services to her regarding all three children. At the hearing, the department made clear the applicable code section for the denial is 361.5, subdivision (b)(5) as to A. and section 361.5, subdivision (b)(6) as to R. and H. In addition, when it denied reunification services, the court stated the denial as to A. was made under subdivision (b)(5), and as to R. and H. was made under subdivision (b)(6). Mother did not object to the court proceeding under this additional subdivision. Although mother claims she would have presented evidence on this issue, mother presented evidence that she was bonded to her children, was presently involved in services, and it was in her children’s best interests to give her reunification services. Thus, mother’s presentation of evidence was directed precisely at the issue of which she now claims she did not receive proper notice. “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. [Citation.] Dependency cases are not exempt from this forfeiture doctrine.” (In re Wilford J. (2005) 131 Cal.App.4th 742, 754.) Mother was aware at the hearing that the department recommended reunification services be denied as to all three children. At the hearing, the department stated it was proceeding under section 361.5 subdivision (b)(6) as to R. and H. Mother did not object. Any defect in notice could have been corrected, and mother does not now contend otherwise. Her failure to object forfeits the issue on appeal.
In her continued attack upon the denial of reunification services under section 361.5, subdivision (b)(6), mother claims the court failed to make the findings required by section 361.5, subdivision (i). This subdivision provides: “The court shall read into the record the basis for a finding of... the infliction of severe physical abuse under paragraph (6) of subdivision (b), and shall also specify the factual findings used to determine that the provision of reunification services to the offending parent or guardian would not benefit the child.”
We find the trial court made such findings. The court stated: “I do have real concerns about this case, real problems.
“Number one, there’s three fractures. Most probably they were at different times. We know that at least two of them were at different times. In addition, the third fracture, which was the femur, that’s a twisting fracture. A spiral fracture is a twisting. That means that somebody had to twist this leg in order to get that. I mean that is a serious, serious kind of a break.
“In addition, you have the mental health assessments of both children, older children, which indicates serious, serious mental health problems and a chaotic lifestyle if you read it sort of between the lines.
“With all of these things going, I really think there is terrible risk to all three of these children in terms of returning them to the mother.
“And based upon that, as I said, I take a lot less credence in the admission. I mean, they get hung up on that thing, I feel. I mean, look at the facts in this case. The injuries and the number of injuries at different times, all of the other factors really indicate other problems which should be taken into account and really are much more important, at least in my view, than somebody confessing.
“Based upon that, I am going to find no reunification services for the mother.”
This statement by the trial court clearly sets forth the basis for a finding of severe physical harm and states facts why the court determined that reunification services should not be provided to mother and would not benefit the children. The statement satisfied section 361.5, subdivision (i).
Mother also claims the court failed to make appropriate findings under section 361.5, subdivision (h). Subdivision (h) contains factors in determining whether reunification services will benefit the child under paragraph (6) of subdivision (b). Subdivision (h) lists six criteria for the court to consider in determining whether reunification services will benefit the child. The list is not exclusive. Although the court is required to consider these factors, it is not required to list each factor in its findings. It is required to make the findings contained in subdivision (i), which cover some of the criteria listed in (h), and we have already discussed the findings stated by the court in this regard. The court made the required findings.
Next, mother repeats her claim that this was a case about negligence and thus section 361.5, subdivision (6) simply does not apply. We need not repeat our analysis that the trial court properly found that mother inflicted severe physical trauma on A. and the infliction was done nonaccidentally.
Mother’s final argument is that she proved reunification services were in the children’s best interest and therefore it was error to deny her services. In particular, she argues that the evidence demonstrated she was ameliorating any preexisting problem, she demonstrated appropriate nurturing and parenting skills, she had good and positive interactions with her children, and the children were bonded to her.
“‘Once it is determined one of the situations outlined in [section 361.5] subdivision (b) applies, the general rule favoring reunification is replaced by a legislative assumption that offering services would be an unwise use of governmental resources.’” (Renee J. v. Superior Court (2001) 26 Cal.4th 735, 744.) “The burden is on the parent to change that assumption and show that reunification would serve the best interests of the child.” (In re William B. (2008) 163 Cal.App.4th 1220, 1227.) “A juvenile court has broad discretion when determining whether further reunification services would be in the best interests of the child under section 361.5, subdivision (c). [Citation.] An appellate court will reverse that determination only if the juvenile court abuses its discretion.” (Id. at p. 1229.)
We cannot say the trial court abused its discretion when it denied reunification services to mother. Although mother certainly displayed some of the attributes necessary to demonstrate that reunification services would be in the best interests of the children, the court appropriately relied on factors that went against providing reunification services. In particular, the court was very concerned about the serious injuries inflicted upon A., noting that the injuries occurred on at least two separate occasions. Also, the mental health assessments of H. and R. demonstrated serious mental health problems and a chaotic lifestyle. When combined, the court found the children were at a terrible risk if they were returned to mother. The trial court did not abuse its discretion when it refused to order reunification services to mother.
DISPOSITION
The judgment is affirmed.
WE CONCUR: GOMES, J., HILL, J.