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In re S.G.

California Court of Appeals, First District, Second Division
Jan 27, 2012
No. A131314 (Cal. Ct. App. Jan. 27, 2012)

Opinion


In re S.G., a Person Coming Under the Juvenile Court Law. CONTRA COSTA COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. L.D. et al., Defendants and Appellants. A131314 California Court of Appeals, First District, Second Division January 27, 2012

NOT TO BE PUBLISHED

Contra Costa County Super. Ct. No. J100001

Lambden, J.

Contra Costa County Children and Family Services (CFS) filed a petition pursuant to Welfare and Institutions Code section 300, alleging that S.G. had suffered and was at risk of suffering serious physical harm. The court detained S.G. from his parents, Thomas G. (father) and L.D. (mother), and subsequently found the allegations under section 300, subdivisions (a), (b) and (e) true as to both mother and father. At the disposition hearing, the court denied reunification services to father and granted them to mother. It found S.G. to be a dependent child and removed him from his parents’ custody. Mother, father, and S.G. separately appeal from the jurisdiction and/or disposition orders.

All further unspecified code sections refer to the Welfare and Institutions Code.

On appeal, mother claims substantial evidence did not support the findings of jurisdiction as to her. Father does not challenge the jurisdiction findings, but appeals the denial of reunification services to him. S.G. contends that the juvenile court should have denied reunification services to mother. We are not persuaded by any of the arguments and affirm both the jurisdiction and disposition orders.

BACKGROUND

Petitions and Reports by CFS

On December 22, 2009, when S.G. was only one-month old, mother and father took him to the hospital with life threatening injuries. He was airlifted to Children’s Hospital Oakland (Children’s Hospital) and placed on life support. On December 23, 2009, CFS received a report that S.G. was admitted to the hospital with multiple injuries. The report indicated that S.G.’s primary care physician had seen him during the day of December 22, 2009, and observed no injuries to S.G. at that time.

On January 4, 2010, CFS filed a petition to detain S.G. from his parents. The petition alleged that S.G. came within section 300 subdivisions (b) and (e), and that S.G. had suffered and was at risk of suffering serious physical harm. It stated that father had failed to get immediate medical treatment for S.G. on December 22, 2009, when he knew the child was severely injured. It further alleged that mother could not protect the child because she did not believe “there was any non accidental injury at the hands of the child’s father.”

The petition further alleged that as a result of father’s physically abusing S.G. on December 22, 2009, S.G. suffered the following life threatening injuries: bilateral comminuted skull fracture; bilateral brain contusion; subdural, subarachnoid, intraventricular and subgaleal hemorrhages; and small liver laceration/hematoma. On this same date, S.G. suffered the following fractures as a result of his father’s physical abuse: four posterior rib fractures, a right clavicle fracture, a right tibial spiral fracture, and a bucket-handle fracture of the left proximal tibia.

On January 5, 2010, CFS filed its detention/jurisdiction report. It recommended that S.G. be detained in an out-of-home placement. The progress notes written by Dr. James Crawford-Jakubiak (Crawford) on December 23, 2009, about S.G. stated that “ ‘the injuries are clearly consistent with inflicted trauma.’ ” Dr. Rachel Gilgoff from the Center of Child Protection at Children’s Hospital wrote that S.G. had “numerous traumatic injuries––at least 8 broken bones, liver injury, and devastating brain injury which are not consistent with a simple fall and are consistent with inflicted injury.”

Mother, according to the report, stated that she was with father and S.G. all day on December 22, 2009. After a day filled with activities, they returned home between 8:20 and 8:30 p.m. Mother said she fed S.G. and then gave him to father who was sitting in a chair. She went into the kitchen and was gone about 10 minutes. She said that father was not angry and the baby was not fussing. When mother returned, S.G. was in his basinet and father was in bed. Mother went to bed. After about 10 minutes, mother went to look at the baby and noticed that he was pale and his lips were dry. She put water on his lips. She looked at the baby again about 10 minutes later. He was paler and she rolled him to the side. She saw that his head was visibly swollen and soft to the touch. Mother and father decided to take him to the hospital. Mother claimed that father loved his son and would never hurt him. She told the social worker that she believed father’s statement that it was an accident.

Subsequently, the CFS worker interviewed father. He said that he fell forward while holding S.G. and that S.G.’s head hit the dresser. Father claimed that he then fell backwards onto the floor while he was still holding S.G. Father reported that S.G. did not cry and looked normal; consequently, father did not think anything was wrong.

On January 5, 2010, the court detained S.G. The court granted mother supervised visitation and issued a no contact order between the baby and father.

On January 11, 2010, CFS filed an amended petition to reflect that the doctors had discovered that S.G. had suffered a fractured humerus and eight additional rib fractures.

CFS filed an addendum report on February 4, 2010. It indicated that Dr. Crawford told mother that most babies with this many fractures would not be alive.

On March 2, 2010, CFS filed a second amended petition adding allegations under subdivision (a) of section 300 and modifying some of the language of the original petitions. Specifically, under section 300, subdivision (a), the petition alleged that “[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.” It further alleged that “[t]he infant child has suffered severe physical abuse, which would ordinarily not be sustained except as a result of the unreasonable or neglectful acts or omissions of either parent or parent’s child’s caregiver as enumerated as follows: [¶] (i) Bilateral comminuted skull fracture[;] [¶] (ii) Bilateral brain contusion[;] [¶] (iii) Subdural, subarachnoid, intraventricular, and subgaleal hemorrhages[;] [¶] (iv) Small liver laceration/hematoma[;] [¶] (v) Right 8th posterior rib fracture[;] [¶] (vi) Right 9th posterior rib fracture[;] [¶] (vii) Right 10th posterior rib fracture[;] [¶] (viii) Right 11th posterior rib fracture[;] [¶] (ix) Right clavicle fracture[;] [¶] (x) Right tibial spiral fracture[;] [¶] (xi) Bucket-handle fracture of the left proximal tibia[;] (xii) Right 7th rib fracture[;] [¶] (xiii) Left humeral shaft fracture (upper arm)[;] [¶] (xiv) Left 5th posterior rib fracture[;] [¶] (xv) Left 6th posterior rib fracture[;] [¶] (xvi) Left 7th posterior rib fracture[;] [¶] (xvii) Left 3rd anterior lateral rib fracture[;] [¶] (xviii) Left 4th anterior lateral rib fracture[;] [¶] (xix) Left 5th anterior lateral rib fracture[;] [¶] (xx) Left 6th anterior lateral rib fracture[.]”

Under section 300, subdivision (b), the petition alleged that S.G. “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 or legal guardian to supervise or protect the child adequately” and “by the willful or negligent failure of the parent or legal guardian to provide the child with adequate food, clothing, shelter, or medical treatment.” The petition further stated: “(b-1) On or about December 22, 2009, the child’s father failed to get immediate medical treatment when he knew the child was severely injured. [¶] (b-2) The child’s mother cannot protect the child because she does not believe there was any non-accidental injury at the hands of the child’s father. [¶] (b-3) The infant child has suffered severe physical abuse which would ordinarily not be sustained except as a result of the unreasonable or neglectful acts or omissions of either parent or parent’s child’s caregiver[.]” The 20 injuries alleged under section 300, subdivision (a), were listed again.

Under section 300, subdivision (e), the petition alleged that “[t]he child is under the age of five and has suffered severe physical abuse by a parent, or by any person known by the parent, and the parent knew or reasonably should have known that the person was physically abusing the child.” The petition stated that the child’s father abused him on December 22, 2009, and it again set forth the numerous injuries suffered by S.G.

Jurisdiction Hearing and Ruling

The jurisdiction hearing began on April 26, 2010. Dr. Crawford treated S.G. from December 22, 2009, until his discharge from the hospital in February 2010, and the parties stipulated to his qualifications as an expert in pediatric medicine and child abuse. He observed that part of S.G.’s skull had been shattered into little pieces and the injury was inconsistent with a crushing injury. He opined that his injuries were more likely due to several direct impacts. He believed S.G.’s head was struck or something struck him three different times. He stated that the baby’s brain injury progressed to the point that the brain atrophied. He testified that there was a significant probability that the brain injuries could cause blindness and damage to S.G.’s cognitive abilities and motor skills.

Dr. Crawford stated that S.G. had 16 fractured ribs, and additional fractures of the clavicle, right tibia, left femur, left humerus, three skull bones, and a laceration of the liver. With regard to S.G.’s anterior rib fractures, Dr. Crawford testified that they were caused by someone squeezing him and the person doing this was face to face with him. He concluded that the cause of the rib fractures was not someone falling on the child. He reported that the ribs at mid chest range were broken twice, which indicated that the force was extremely traumatic. He opined that the baby’s broken clavicle was not likely due to an adult person falling on the infant, but his torn liver could have been caused by a fall.

John G., the paternal grandfather (grandfather) also testified. He stated that he was living with mother, father, and S.G. on December 22, 2009. He disclosed that father had a drug problem four years ago, but completed treatment and no longer had a drug problem. He claimed that father was not violent. He asserted that on the night of December 22, 2010, he went to S.G.’s crib and said good night at 9:45 p.m.; he believed S.G. was not as responsive as he should have been. Later, he admitted to hearing mother crying, but believed she and father were having an argument.

Mother testified and stated that she left S.G. with father at 9:45 p.m. on December 22, 2009. She claimed that she never heard the baby cry after she left the room. She did not realize anything was wrong until 10:25 p.m. when she checked him and noticed he was pale and his lips were dry. She “freaked out” the second time she checked him. She said that she drove S.G. to the hospital because she believed that was faster than waiting for an ambulance.

Mother stated that she had been with father for over two years and had known him for eight years. When asked whether it was true that she planned to marry father in August, she said, “No.” She said that she did not know whether she intended to maintain her relationship with him.

Mother reported that father told her that he lost his balance and that was how the baby was injured. She stated that she believed that all the injuries to her baby were from one fall. She claimed that she did not hear her baby cry so she did not believe he was hit. She insisted that father had never been violent with their son. She said that she knew father to be a gentle person and loving towards S.G. When asked whether she could protect S.G. in the future, she said, “Yes.” She explained that she knew she could protect him “[b]ecause he is my son and I would protect him against anything.” She insisted that she could not know whether the injuries to S.G. were accidental because she was not in the room when they occurred.

Father did not testify on the basis that he did not want to incriminate himself. Detective Xavier Shabazz also testified. He interviewed mother on December 23, 2009. She disclosed that father had a criminal history and that she had once seen father become upset and hit a wall. She admitted to Shabazz that father could have harmed S.G.

At the conclusion of the jurisdiction hearing, the court found all of the allegations of the second amended petition true except for allegation (b-2) under section 300, subdivision (b), that mother “cannot protect the child because she does not believe there was any non-accidental injury at the hands of the father.”

Disposition Report, Hearing, and Ruling

CFS filed a disposition report on February 15, 2011. CFS recommended no reunification services for mother or father and requested that the court set a section 366.26 hearing. The report noted that father was facing criminal charges for child cruelty leading to possible injury or death and his alleged actions were the cause of extensive injury to S.G. Furthermore, father had failed to provide a credible explanation of the injuries to S.G. The social worker stressed that mother had not been able to acknowledge that father caused the injuries to S.G. The social worker wrote: “It is therefore, not considered safe to recommend a service plan on behalf of the mother as she is not able to acknowledge the father’s severe violence which could have resulted in this child’s death. She has not presented herself as believable or protective of the child, and has not been able to provide evidence that she has separated from the father when he is charged with causing injuries, that without immediate medical attention, would have been fatal.”

The report declared that S.G. was living with the maternal grandparents, and that they had been cooperative and conscientious in his care. The report noted that between 2002 and the beginning of 2004, father had three convictions for being under the influence of a controlled substance, one conviction for receiving stolen property, and one conviction for possession of a controlled substance.

The report indicated that father had supervised visits with S.G. twice per month for one hour. Father, according to the social worker, acted appropriately with S.G. Mother had unsupervised visits and was observed to be alert to her baby’s needs. Mother attended S.G.’s medical appointments. The mother, according to the social worker, was caring and supportive towards S.G.

The report stated that Dr. Crawford concluded that S.G. was “at risk for substantial developmental delays in vision, cognitive growth, as well as neurological and physical development.” The social worker opined that it was unsafe to return S.G. to his home due to the nature of his injuries and the parents’ failure to accept responsibility. Father claimed it was an accident and mother appeared to be protecting father. Mother first told Detective Shabazz that the injuries may have been caused by the car seat, and then she told a story that supported father’s explanation. Mother, according to the social worker, “has appeared to greatly minimize [father’s] violence with her son and his history of criminal activity. It is unlikely that the mother would be able to protect her son from the father if she is not able to account for the child’s injuries in a believable manner, or to fully come to terms with [father’s] violent behavior. [¶] Further, the fact that it took the parents at least 30 minutes to decide to drive him to the hospital instead of calling ‘911’ may indicate that they were arranging their story or preparing for an investigation into the matter. There is a clear lack of accountability and a serious lack of regard for the safety of their own son.”

Subsequently, CFS modified its position and recommended that mother receive reunification services. It continued to recommend that father not be provided a reunification service plan.

The disposition hearing began on December 16, 2010. Dr. Abbas Mahdavi, the pediatrician for S.G., testified that he saw S.G. for his last visit on December 17, 2009; he never saw any evidence of bruising or child abuse. Marti Paulson, the physical therapist for S.G., confirmed that mother attended every session with S.G.; Paulson perceived mother as being very attentive to S.G. Paulson opined that S.G. benefitted from interacting with mother and that mother should participate in his therapy. The pastor at mother’s church also testified that he had observed mother interacting “very joyfully and patiently” with S.G.

Mother testified that she was engaged to father at the time of S.G.’s injury. She maintained that she had called off the engagement. She said their relationship depended “on the outcome of the situation” and that she would not see him if she were not allowed to be with him for the safety of her child. She admitted that if father were allowed to be with S.G., she would still be with father. When asked whether she believed that her son’s injuries were caused by an accident, she responded, “I do not know.” She said she had participated in counseling from March to July 2010 and had completed a parenting class. She visited S.G. every day and took care of his needs during these visits. She also attended S.G.’s medical appointments and claimed that she was aware of the nature of his special needs. She confirmed that she was willing to participate in services.

Vicki Nolden, the social worker assigned to S.G.’s case, reported that mother had told her in April 2010 that she intended to marry father in August 2010. She originally did not recommend reunification services to mother because she minimized father’s conduct, including his criminal history. She changed the recommendation, not because mother’s attitude had changed, but because CFS advised her that the law required CFS to offer mother reunification services. She reported that S.G.’s maternal grandmother had implemented the medical and other services that S.G. received. She explained that CFS did not recommend services for father because his explanation of S.G.’s injuries was not credible and he lacked remorse for S.G.’s injury and suffering.

At the end of the hearing, the juvenile court adjudged S.G. a dependent child and removed him from his parents’ custody. The court stated that father’s explanation of what happened was not credible. The court denied him reunification services under section 361.5, subdivision (b)(5). The court offered reunification services to mother and found that she was not “complicit in the injuries to the child.”

Mother, father, and S.G. separately filed timely notices of appeal. Mother requested permission to file a responsive brief to the minor’s brief objecting to her receiving reunification services, and we granted that request.

DISCUSSION

I. Jurisdiction

The lower court found jurisdiction over S.G. under section 300, subdivisions (a), (b), and (e). Mother contends that substantial evidence did not support the court’s findings of jurisdiction.

Section 300 provides: “Any child who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court:

“At the jurisdictional hearing, the court determines whether the minor falls within any of the categories specified in section 300. [Citation.] ‘ “The petitioner in a dependency proceeding must prove by a preponderance of the evidence that the child... comes under the juvenile court’s jurisdiction.” ’ [Citation.] On appeal from an order making jurisdictional findings, we must uphold the court’s findings unless, after reviewing the entire record and resolving all conflicts in favor of the respondent and drawing all reasonable inferences in support of the judgment, we determine there is no substantial evidence to support the findings. [Citation.] Substantial evidence is evidence that is reasonable, credible, and of solid value. [Citation.]” (In re Veronica G. (2007) 157 Cal.App.4th 179, 185.)

Mother agrees that the record indisputably shows that S.G. suffered physical abuse that was not the result of an accident, but she maintains the evidence shows, and the court found, that she did not inflict the injury. Consequently, according to mother, the evidence did not support the court’s findings of jurisdiction under subdivisions (a), (b), or (e) of section 300.

With regard to the allegation under subdivision (a) of section 300, mother contends that the juvenile court should have conformed the petition to proof and sustained an allegation that father inflicted the nonaccidental injury. The petition alleged that “[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.” It further alleged that “[t]he infant child has suffered severe physical abuse which would ordinarily not be sustained except as a result of the unreasonable or neglectful acts or omissions of either parent or parent’s child’s caregiver....” The allegations correctly set forth the law and were amply supported by the evidence. There was and is a substantial risk that L.G. will suffer serious physical harm inflicted nonaccidentally upon him by father if he is in mother’s care because of mother’s unreasonable or neglectful acts of denying father’s capacity for hurting L.G.

The law is clear that mother did not have to be the person who inflicted the nonaccidental injury for the court to find the allegations true under section 300, subdivisions (a), (b), or (e). Thus, for example, section 300, subdivision (b) provides a basis for juvenile court jurisdiction if there is a substantial risk a child will suffer serious physical harm “as a result of the failure or inability of his or her parent... to adequately supervise or protect the child....” Similarly, under section 300, subdivision (a), a child comes within the jurisdiction of the dependency court if 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.” In fact, a child does not even have to be actually harmed. A child’s exposure to domestic violence regularly inflicted on one parent by another is sufficient to support jurisdiction under subdivision (a) of section 300. (In re Giovanni F. (2010) 184 Cal.App.4th 594, 598-599.)

Here, the petition, under each allegation, never states that mother inflicted the injury. The petition correctly states that one parent intentionally inflicted the injury and neither parent protected S.G.

Substantial evidence in the record supports the juvenile court’s findings that the allegations under section 300, subdivision (b)––other than (b-2)––were true, as to mother. The evidence in the record is overwhelming that S.G. suffered serious physical harm as a result of mother’s failure to protect him and/or there was substantial risk of serious physical harm in the future due to mother’s failure to protect S.G. The testimony of the doctors established that S.G. suffered devastating injuries that were not accidental, not due to a fall, and not due to any genetic or metabolic cause. The evidence also showed that S.G. was injured while at home in the care of mother and father.

After mother noticed the severe injury to S.G.’s skull, neither she nor father called an ambulance. Instead, they drove S.G. to the hospital. He then had to be airlifted to Children’s Hospital. This failure to call an ambulance supported a finding that L.G. was at risk because of his mother’s unreasonable and/or neglectful acts. Although mother claimed they drove him there because they believed it would be faster, the social worker believed that “the fact that it took the parents at least 30 minutes to decide to drive him to the hospital instead of calling ‘911’ may indicate that they were arranging their story or preparing for an investigation into the matter.”

Further evidence of mother’s unreasonable behavior was the evidence that mother had some knowledge of father’s propensity for violence. Mother had told Dr. Crawford that S.G. had been bruised twice before while in father’s care. Detective Shabazz interviewed mother on December 23, 2009, and she disclosed that father had a criminal history and that she had once seen father become upset and hit a wall.

The record also establishes that S.G. was at substantial risk of serious physical harm in the future due to mother’s failure to protect him. Mother was equivocal about not continuing to have a relationship with father. When asked whether it was true that she planned to marry father in August, she said, “No.” She said that she did not know whether she intended to maintain her relationship with him. Despite the fact that she had earlier told Detective Shabazz that father could have hurt S.G., in court she claimed that she knew father to be a gentle person and loving towards S.G. She insisted that she could not know whether the injuries to S.G. were accidental because she was not in the room when they occurred. The social worker stated that she believed S.G. was at risk because mother continued to believe father’s rendition of events and remained uncertain about living apart from father in the future.

Indeed, the court expressly found that S.G. might be injured again because of mother’s involvement with father. The court cautioned: “But what role father plays in mother’s future, again, be mindful of my remarks because there could be another accident in two years.” Mother’s continued relationship with father and her inability to recognize the danger he posed to S.G. supported the lower court’s finding of jurisdiction under section 300, subdivision (b).

Since jurisdiction was proper under section 300, subdivision (b), we need not address the court’s findings under subdivisions (a) and (e). “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.” (In re Alexis E. (2009) 171 Cal.App.4th 438, 451.)

II. The Disposition Order

A. Introduction

Following the disposition hearing, the juvenile court adjudged S.G. a dependent child and removed him from his parents’ custody. It denied father reunification services pursuant to section 361.5, subdivision (b), and offered reunification services to mother. Mother, father, and S.G. appeal from this order. Mother challenges the removal of S.G. from her custody. Father objects to the denial of reunification services to him, and S.G. contests the granting of reunification services to mother. We first consider mother’s challenge to the removal of S.G. from her custody, and then discuss the objections to the court’s findings regarding reunification services for father and mother.

B. The Removal of S.G. from Mother’s Custody

Mother argues that if we reverse the jurisdiction findings, we must reverse the disposition order removing S.G. from her custody. We are not reversing the finding of jurisdiction and we therefore reject mother’s argument that the disposition order should be reversed. To the extent mother is arguing that removal was inappropriate because she was not the parent who inflicted the injury, this argument is without merit. The parent’s level of denial is an appropriate factor to consider when determining the risk to the child if placed with that parent. (In re Esmeralda B. (1992) 11 Cal.App.4th 1036, 1044 [“denial is a factor often relevant to determining whether persons are likely to modify their behavior in the future without court supervision”].) The parent need not be dangerous and the child need not have been harmed before removal is appropriate. “The focus of the statute is on averting harm to the child.” (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136.) Accordingly, the court properly removed S.G. from mother’s custody.

C. Reunification Services

1. The Law and Standard of Review

The statutory framework for juvenile dependency cases generally requires the juvenile court to order reunification services to any parent removed from his or her custody. (§ 361.5, subd. (a).) However, section 361.5, subdivision (b) sets forth several exceptions. “Once it is determined one of the situations outlined in 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.” (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478.)

Reunification services “need not be provided to a parent... when the court finds, by clear and convincing evidence, ” “[t]hat the child was brought within the jurisdiction of the court under subdivision (e) of Section 300 because of the conduct of that parent....” (§ 361.5, subd. (b)(5).) Section 361.5, subdivision (b)(5), applies to any “parent in the household who knew or should have known of the abuse, whether or not that parent was the actual abuser.” (In re Kenneth M. (2004) 123 Cal.App.4th 16, 21.)

When the court finds jurisdiction based on section 300, subdivision (e) because of the conduct of the parent, the court shall not order reunification for the parent “unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child.” (§ 361.5, subd. (c).) “In addition, 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. The social worker shall investigate the circumstances leading to the removal of the child and advise the court whether there are circumstances that indicate that reunification is likely to be successful or unsuccessful and whether failure to order reunification is likely to be detrimental to the child.” (§ 361.5, subd. (c).)

Once the county child welfare agency “proves by clear and convincing evidence that a dependent minor falls under subdivision (e) of section 300, the general rule favoring reunification services no longer applies; it is replaced by a legislative assumption that offering services would be an unwise use of governmental resources. If the court then chooses to offer services, it must make a finding that they are likely to prevent reabuse of the child, and this finding must be supported by substantial evidence. While [the county child welfare agency] has the statutory duty to investigate and present the court with information about the prognosis for a successful reunification, it is not required to prove the services will be unsuccessful.” (Raymond C. v. Superior Court (1997) 55 Cal.App.4th 159, 163-164.)

In the present case, the court sustained the jurisdiction finding under section 300, subdivision (e) as to both mother and father. It offered services to mother, but denied services to father. Some courts have reviewed the lower court’s findings under an abuse of discretion (see, e.g., In re William B. (2008) 163 Cal.App.4th 1220, 1229), while other courts have applied the standard of substantial evidence (see, e.g., In re Harmony B. (2005) 125 Cal.App.4th 831, 839). Under either standard of review, we affirm the lower court’s denial of services to father. As we discuss further, we decline to address the merits of S.G.’s appeal of the granting of reunification services to mother.

2. Father’s Appeal

Father does not dispute the juvenile court’s jurisdiction findings under section 300, subdivisions (a), (b), and (e). Thus, he acknowledges that the lower court had discretion under section 361.5, subdivision (b)(5) to refuse to order reunification services for him. He maintains, however, that such services were in S.G.’s best interests and therefore the court should have ordered services for him. As already discussed, father had the burden of persuading the lower court to exercise its discretion under subdivision (c) of section 361.5 to grant services despite the fact his conduct caused S.G. to suffer severe physical abuse (§ 361.5, subd. (b)(5)). (Raymond C. v. Superior Court, supra, 55 Cal.App.4th at p. 164.)

In the present case, the evidence was that father caused devastating injury to the baby. Dr. Crawford testified at the jurisdiction hearing that the baby’s injuries were inconsistent with father’s story that he fell with S.G., and that the injuries showed that they were due to father’s striking and squeezing the baby. CFS did not recommend reunification services for father because of the seriousness of S.G.’s injuries, father’s failure to provide a believable explanation for the injuries, and father’s lack of remorse about S.G.’s injury and suffering. After hearing the evidence, the court agreed that father’s explanation of what happened was not credible. Given this evidence, granting reunification services to father would have been an abuse of discretion and not supported by the evidence in the record.

Father’s argument is that reunification services would be in S.G.’s best interests because mother is ambivalent about ending her relationship with him. He asserts that mother has a close bond with S.G. and, since she will always be a part of S.G.’s life and he will always be a part of mother’s life, it would be in everyone’s best interest for services to be offered to him. He also claims that CFS recommended no reunification services solely to punish him for not providing a plausible explanation for S.G.’s injury. He argues that punishment is not a proper reason for denying him services. Finally, he emphasizes that he submitted letters of recommendation and that he has not missed any of his visits with S.G.

Father has not presented any evidence to show that it was in S.G.’s best interest for father to receive reunification services. One of the goals of mother’s reunification services is for her to appreciate the danger father poses to S.G., and therefore it is anticipated that she will have less of a connection to father. Furthermore, CFS properly considered the fact that father showed no remorse and provided no credible explanation for S.G.’s injury; these factors were relevant to the question of whether he would abuse S.G. again.

We conclude that under either the abuse of discretion or substantial evidence standard the lower court properly refused reunification services to father.

3. S.G.’s Appeal

S.G. contends that the lower court should not have offered mother reunification services and should have set a section 366.26 hearing. CFS and mother disagree, and point to the evidence in the record supporting the lower court’s decision. CFS also argues that S.G.’s appeal is moot. We need not address the merits of S.G.’s claims, because we conclude that the issue of reunification services for mother is now moot.

S.G. was detained on January 5, 2010, the court found the allegations of the section 300 petition true in July 2010, and reunification services were ordered in February 2011. Thus, mother has already received reunification services. S.G. maintains that the record does not establish that she has received 18 months of services.

CFS claims that mother has received at least 18 months of service based on the date that S.G. was detained. The record, however, does not indicate when mother first received services.

After the briefs in this appeal were filed, counsel for S.G. submitted a letter, which attached a minute order dated November 22, 2011. This order states that the juvenile court returned S.G. to the custody of mother, under the supervision of CSF, in the home of mother’s parents. It further states that CSF “shall make appropriate child welfare services available to child & parent(s)/guardian(s) in order to help child remain/return home....” The court set the next status review hearing for May 10, 2012.

S.G. argues that this order supports his argument that his appeal is not moot. Specifically, he contends, “Because of this result, the issue of whether the mother should have been granted services in order to reunify with [S.G.] continues to be pertinent, and [S.G.’s] appeal therefore cannot be found moot.”

An appellate court’s jurisdiction extends only to actual controversies for which the court can grant effective relief. (In re Christina A. (2001) 91 Cal.App.4th 1153, 1158; In re Jessica K. (2000) 79 Cal.App.4th 1313, 1315-1316.) If subsequent acts or events have rendered the questions raised in the appeal moot, then the action no longer presents a justifiable controversy. An exception may be made when the question raised is an issue of continuing public importance, which is capable of repetition, yet evading review. (In re Christina A., at p. 1158.) This can sometimes occur in dependency cases where an appellate court may be unable to obtain the record and briefing by the parties in time to decide an important issue before it becomes moot in a particular case. (Ibid.) In a dependency case, we decide if the appeal is moot on a case-by-case basis. (In re Dani R. (2001) 89 Cal.App.4th 402, 404.)

It is unclear how many months of services mother has actually received but mother has obviously received reunification services and benefitted from them as the juvenile court has determined that it is safe for S.G. to be returned to her custody. In In re Pablo D. (1998) 67 Cal.App.4th 759, the court held that the minor’s appeal was moot when the minor was challenging the order of reunification services because the parent had already received reunification services. (Id. at p. 761.) The court explained, “Obviously, we cannot rescind services that have already been received by the parents. Because we are unable to fashion an effective remedy, the appeal is moot.” (Ibid.)

In the present case, not only has mother received services and continued to receive services but the court has determined it is in S.G.’s best interest to be returned to mother’s care under CFS’s supervision. If S.G.’s return to mother’s custody is not in his best interest, then S.G. should seek the appropriate relief from this order.

Here, there is no actual controversy about whether mother should receive reunification services; she has already received them and has apparently benefitted from them. This issue is also not one of continuing public interest and not an issue that cannot be reviewed by an appellate court. S.G. could have filed a writ petition to challenge the order providing services in an effort to have the matter decided by this court before the passage of time made the issue moot. We therefore decline to address the merits of S.G.’s challenge to the lower court’s grant of reunification services to mother.

DISPOSITION

The jurisdiction and disposition orders are affirmed.

We concur: Kline, P.J.Haerle, J.

“(a) 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. 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....

“(b) The 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 or guardian to adequately supervise or protect the child, or the willful or negligent failure of the child’s parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left, or by the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent or guardian to provide regular care for the child due to the parent’s or guardian’s mental illness, developmental disability, or substance abuse.... [¶]... [¶]

“(e) The 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....”


Summaries of

In re S.G.

California Court of Appeals, First District, Second Division
Jan 27, 2012
No. A131314 (Cal. Ct. App. Jan. 27, 2012)
Case details for

In re S.G.

Case Details

Full title:In re S.G., a Person Coming Under the Juvenile Court Law. CONTRA COSTA…

Court:California Court of Appeals, First District, Second Division

Date published: Jan 27, 2012

Citations

No. A131314 (Cal. Ct. App. Jan. 27, 2012)