Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for extraordinary writ Nos. J223775 & J223776. Wilfred J. Schneider, Jr., Judge.
Brian Huerter for Petitioner.
No appearance for Respondent.
Ruth E. Stringer, County Counsel, and Adam E. Ebright, Deputy County Counsel, for Real Party in Interest.
Burcham & Stern and Robin D. Edmond for Minors.
OPINION
RICHLI, Acting P. J.
Petitioner M.S. (Mother) filed a petition for extraordinary writ pursuant to California Rules of Court, rule 8.452, challenging the juvenile court’s order denying her reunification services as to her six-month-old daughter, C.S., and 20-month-old son, A.S., and setting a Welfare and Institutions Code section 366.26 hearing. Mother contends (1) her conduct did not provide a basis for jurisdiction under section 300, subdivision (e); (2) she should not have been denied reunification services under section 361.5, subdivision (b)(6), as her conduct did not fall under that required by the statute; and (3) the juvenile court erred when it denied her services under section 361.5, subdivision (b)(5) or (b)(6).
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
For the reasons explained below, we reject these contentions and deny the writ petition.
I
FACTUAL AND PROCEDURAL BACKGROUND
The family came to the attention of the San Bernardino County Children and Family Services (CFS) on October 1, 2008, when an immediate response referral was received from the Children’s Hospital of Orange County (CHOC). The referral stated that then two-month-old C.S. had been admitted due to subdural hemotoma and acute bleeding. She had bilateral retinal hemorrhages and seizures. A bone survey revealed that C.S. had suffered a fracture in her right leg, two fractures in her left leg, a possible injury to her left arm, and a possible spinal compression. X-rays revealed that C.S. had also sustained multiple bone fractures and had exhibited signs of a spinal injury, indicative of nonaccidental trauma. The pediatrician concluded C.S.’s injuries were caused by “inflicted trauma.”
Formerly the San Bernardino County Department of Children’s Services.
Mother and Father, J.S. (Father), claimed that three days earlier C.S. had slipped off Father’s lap and landed on the carpet. The following day, they took C.S. to the hospital because her left arm and left leg were twitching. Mother and Father indicated that they were unaware of C.S.’s fractures and denied having any knowledge as to how she had been injured. Mother stated that she was the primary caregiver and that nobody outside her husband and herself cared for her children.
On October 6, 2008, CFS filed section 300 petitions on behalf of the children pursuant to section 300, subdivisions (a) (serious physical harm), (b) (failure to protect), (e) (severe physical abuse), and (j) (abuse of sibling). The children were formally removed from the parents’ care and custody the following day.
In a jurisdictional/dispositional report, the social worker recommended that the court find the allegations in the petitions true and that services be denied to the parents. On October 15, 2008, the social worker interviewed Mother and Father (separately) about the circumstances surrounding C.S.’s injuries. Mother claimed that she had left C.S. with Father at home on September 28, 2008, and took A.S. to the store. When she came home, she noticed a bruise on C.S.’s face. Father explained that C.S. had fallen. Mother did not notice any other problems with C.S., until the next day when a nurse at her “WIC appointment” noticed a problem with C.S. Mother did not believe that Father would have hurt the children.
Father admitted that he had dropped C.S., but denied causing her injuries. He claimed that he had been sitting at a computer with C.S., when C.S. somehow fell on the ground. Father did not notice the bruise on C.S.’s face initially, but speculated that C.S. might have hit her face on the keyboard as she fell to the floor. He asserted that he did not know who had caused C.S.’s injuries, and did not believe Mother would have harmed the children.
Approximately two weeks later, on October 28, 2008, Mother reported that she had discovered that Father had caused C.S.’s injuries and that the injuries had occurred about two weeks before C.S. had been taken to CHOC. She believed that she should get the children back as she was not the one who had caused the injuries, and stated that she would do anything to regain custody, including separating from Father.
The following day, on October 29, 2008, Father admitted that he had accidentally caused C.S.’s injuries two weeks prior to the computer incident when he became frustrated with C.S.’s constant crying and had forcefully pushed C.S. by her face into her crib. He had also grabbed her and carried her by one arm. He had also thrown C.S. up in the air, but had dropped her when he lost his footing. He had demonstrated how he had shaken C.S. by grabbing a doll by both arms and forcefully shaking it back and forth. Father further admitted that he had a drinking problem and had sometimes pushed Mother. Father admitted that he had sustained two driving while under the influence charges in 1994 and 1999.
When Mother and Father were interviewed together, Mother had attempted to minimize the situation, including the domestic violence. She, however, admitted that she knew Father was drinking on the day she left C.S. in his care.
Mother, who was born in El Salvador and was in this country illegally, had another son, who she left with her parents in 2004, after she met Father and defected to the United States. Mother stated that her intent was to bring that son to the United States at a later date, but was never able to do so.
A psychological evaluation of Mother noted that maintaining stable living conditions would be a difficult task considering Mother’s lack of job experience and inability to speak English. However, the psychologist, Dr. Knipe-Laird, concluded that Mother could benefit from services.
Mother’s son, A.S., was described as very overweight, weighing about 64 pounds, twice the normal weight of a two-year-old child. He was affectionate, but at times hard to control, refused to listen, and threw temper tantrums. The social worker was concerned that, despite A.S.’s weight problem, Mother had considered it appropriate to bring candy for him to eat at visits. On October 7, 2008, C.S. was released from the hospital but required ongoing medical treatment. A medical evaluation on January 5, 2009, revealed that C.S. could be suffering from shaken baby syndrome. It concluded that C.S.’s responses were consistent with brain injury or mental retardation.
The contested jurisdictional hearing was held on February 9, 2009. Mother objected to the jurisdictional recommendations, but offered no affirmative evidence. The court found the allegations under section 300, subdivision (e), true as to C.S., and the allegations under section 300, subdivision (j), true as to A.S.
The contested dispositional hearing was held on February 17, 2009. Dr. Knipe-Laird concurred with her psychological evaluation of Mother and believed Mother could benefit from services. In addition, the doctor noted that Mother had admitted she was aware of previous incidents when Father had hurt C.S. but chose to do “nothing hoping that her fears... would turn out to be unfounded.” The doctor also testified that Mother needed to “grow up” and not be codependent in order to protect her children. The court noted Mother did not speak English, did not have a job, had not pursued her education in America, was not living independently, had no skills, and had left one child in El Salvador. The doctor understood the court’s concerns and explained that because of Mother’s culture and background, the doctor was not particularly concerned with the fact that Mother had abandoned her first son in El Salvador or that she had allowed A.S. to become obese at such a young age.
The social worker stated that when she spoke with the parents about C.S.’s injuries, she believed that Father was actually aware of the injuries and that Mother knew more about them than she was willing to admit. The social worker explained that she was recommending no services because Mother was aware of Father’s drinking problem when she had left C.S. in his care, because Mother did nothing to protect the children from Father, and because of the severity of C.S.’s injuries. The social worker expressed concern that Mother did not appear to grasp the implication of C.S. being mentally retarded or the consequences of A.S.’s weight problem. The social worker explained that despite A.S.’s weight problem, Mother had brought inappropriate food to visits and became upset when she learned that he had lost weight while in foster care. The social worker believed that Mother had ignored the problems going on with Father, which placed the children at risk, and opined that it would not be detrimental to the children if Mother did not receive services. Though Mother was appropriate during visits, A.S. did not appear sad following visits with Mother.
Mother testified that she had intended to bring her first son into the country once she became a legal citizen, but had been unable to do so. She was living with her sister and was seeking employment. She was receiving counseling services and taking parenting classes. However, Mother had not adequately addressed her domestic violence issues or met the goals of therapy or made progress with her domestic violence issues. She had exhibited signs of violence from Father in the past but did not think he could hurt the baby the way he did. She knew Father was drinking on the date C.S. was injured but did not believe he was drunk. She denied having knowledge that Father had a drinking problem.
Following arguments from counsel, the court found the children came under section 300, subdivision (e), denied services to the parents pursuant to section 361.5, subdivision (b)(5) and (b)(6), and set a section 366.26 hearing. The court noted that the doctor testified that there was no guarantee that Mother would benefit from services and did not believe Mother would. The court also noted that Mother had failed to protect baby C.S.; that she had allowed A.S. to become morbidly obese; and that Mother’s tone and demeanor appeared indifferent as to A.S.’s weight and the circumstances of C.S.
II
DISCUSSION
A. Jurisdiction Under Section 300, Subdivision (e)
Mother contends there was insufficient evidence to support a finding that C.S. came within section 300, subdivision (e), because CFS presented no evidence that she physically abused C.S. or that she knew, or reasonably should have known, C.S. was being physically abused by Father. We disagree.
We review the juvenile court’s jurisdictional findings under section 300, subdivision (e), under the substantial evidence standard of review. (In re E.H. (2003) 108 Cal.App.4th 659, 669.) Under this standard, we review the record to determine whether there is reasonable, credible, and solid evidence to support the juvenile court’s conclusions, resolve all conflicts in the evidence, and draw all reasonable inferences from the evidence in support of the juvenile court’s orders. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393.)
Section 300, subdivision (e), accords the juvenile court jurisdiction over a child if “[t]he child is under the age of five years and has suffered severe physical abuse by a parent, or by any person known by the parent, if the parent knew or reasonably should have known that the person was physically abusing the child. For the purposes of this subdivision, ‘severe physical abuse’ means any of the following: any single act of abuse which causes physical trauma of sufficient severity that, if left untreated, would cause permanent physical disfigurement, permanent physical disability, or death; any single act of sexual abuse which causes significant bleeding, deep bruising, or significant external or internal swelling; or more than one act of physical abuse, each of which causes bleeding, deep bruising, significant external or internal swelling, bone fracture, or unconsciousness; or the willful, prolonged failure to provide adequate food.” (§ 300, subd. (e).)
The statute “does not require the parent’s actual or constructive knowledge that the minor in fact suffered severe physical abuse within the statutory definition. Indeed, several of the listed injuries, such as bleeding (internal), internal swelling, and bone fracture, may not be visible; they may be discovered only after medical examination or testing.” (In re Joshua H. (1993) 13 Cal.App.4th 1718, 1729.)
In In re E.H., supra, 108 Cal.App.4th 659, the appellate court confirmed that a true finding under section 300, subdivision (e), does not require that the parent have actual knowledge that the child is being abused. Rather, the court stated that “the only requirement is that they reasonably should have known.” (In re E.H., at p. 670.) In that case, the appellate court agreed with the social services agency that “a ‘res ipsa loquitur’ type of argument” can support a jurisdictional finding under section 300, subdivision (e): “There was severe physical abuse of a child under five (E.’s broken bones) and the child was never out of her parents’ custody and remained with a family member at all times; therefore, [the parents] inflicted the abuse or reasonably should have known someone else was inflicting abuse on their child.... [This is] the only reasonable conclusion which may be drawn from the evidence....” (In re E.H., at pp. 669-670.)
Applying the same rationale here, the infant C.S. suffered severe physical abuse and by Mother’s own admissions was never out of her parents’ custody; therefore, the parents inflicted the abuse or reasonably should have known one of them was inflicting abuse on their child, bringing C.S. under section 300, subdivision (e). Mother’s attempt to distinguish In re E.H., supra, 108 Cal.App.4th 659 and In re Joshua H., supra, 13 Cal.App.4th 1718, on the basis that there was no evidence to suggest that she had knowledge or should have reasonably known Father would injure C.S. is unavailing. Those decisions clearly do not turn on the existence of visible injury, and Mother fails to address language directly contradicting her position on appeal, including that actual or constructive knowledge is not required.
Moreover, contrary to Mother’s assertions, the evidence before the juvenile court does not necessarily support the conclusion that Mother was ignorant of the abuse. The only evidence supporting this conclusion is Mother’s own account of the events, in which she claimed C.S. was being watched by Father while she went outside the house and did not believe Father was capable of such harm to the children. However, numerous circumstances evidenced in the record could have reasonably led the court to reject Mother’s account and conclude that she knew of their cause and did nothing to stop further abuse, instead attempting to cover it up by explaining Father had not demonstrated violence toward her or the children in the past. The evidence showed that Mother knew Father had engaged in domestic abuse, and would often push her, especially when he drank alcohol. She knew that Father was drinking alcohol when she left C.S. in his care, and she knew that Father had the propensity to become violent while he was drinking. While Mother went shopping, Father had abused C.S. by shaking her and allowing her to fall to the ground, causing C.S. to fracture her bones and likely causing brain damage. When Mother returned, she noticed that C.S.’s eye was injured but did not seek medical attention. Even though the baby had several bone fractures and a spinal injury, Mother did not notice any problems. Two weeks later, Mother left the baby in Father’s care again, even though she knew he had been drinking, and the baby suffered additional physical injury. The record discloses that Mother was essentially in denial of Father’s violent tendencies and that she had ignored the problems to the detriment of the child. She had consistently disregarded Father’s violent behavior, Father’s drinking problem, and the serious injuries inflicted on baby C.S. Mother here reasonably knew or should have known Father would cause harm to the baby, especially when drinking alcohol.
In sum, the only reasonable conclusion that may be drawn from the evidence is that Mother reasonably should have known C.S. was being abused by Father or that Father would abuse the child while she was outside the home. Accordingly, the juvenile court properly found that C.S. came within its jurisdiction under section 300, subdivision (e).
B. Denial of Services
Mother also contends that the court abused its discretion in denying her reunification services pursuant to section 361.5, subdivision (b)(5) and (b)(6). We conclude the court properly denied Mother reunification services under section 361.5, subdivision (b)(5), as we will discuss below. Because reunification services need not be provided to a parent when the court finds true any of the 14 exceptions contained in section 361.5, subdivision (b), we do not address her multiple arguments regarding the denial of services pursuant to section 361.5, subdivision (b)(6).
Ordinarily, “[f]amily reunification services play a ‘[critical] role’ in dependency proceedings.” (In re Alanna A. (2005) 135 Cal.App.4th 555, 563.) Unless a specific statutory exception applies, the court must provide services designed to reunify the family within the statutory time period. (§ 361.5, subd. (a); see In re Alanna A., supra, at pp. 563-564.) “Limited exceptions to this general rule—termed reunification bypass provisions—are listed in section 361.5, subdivision (b). [Citations.] Once it is determined that one of these bypass provisions applies, ‘“the general rule favoring reunification is replaced by a legislative assumption that offering [reunification] services would be an unwise use of governmental resources.”’ [Citations.]” (Mardardo F. v. Superior Court (2008) 164 Cal.App.4th 481, 485.) At the disposition hearing, before it may deny reunification services to a parent, the court must find by clear and convincing evidence that one or more of the subparts described in section 361.5, subdivision (b), apply. (Tyrone W. v. Superior Court (2007) 151 Cal.App.4th 839, 845-846.)
Section 361.5, subdivision (b)(5), specifically provides for the denial of reunification services when “the child was brought within the jurisdiction of the court under subdivision (e) of Section 300 because of the conduct of that parent or guardian.” Section 361.5, subdivision (c), offers further guidance in applying this exception, and states, in part: “In addition, the court shall not order reunification in any situation described in paragraph (5) of subdivision (b) 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.” Under section 361.5, the court must deny reunification services where a child has been adjudged a dependent child under section 300, subdivision (e), unless the court makes findings as required under section 361.5, subdivision (c). Based on these provisions, in any case involving a substantiated allegation under section 300, subdivision (e), the parent may be denied reunification services under section 361.5, subdivision (b)(5).
Here, the juvenile court found that C.S. came within section 300, subdivision (e). The allegation found true by the court specifically stated, “While in the care and custody of the child’s mother... the child... was physically abused. Said abuse consisted of bi-lateral retinal hemorrhages, a metaphyseal fracture of the distal right femur, a metaphyseal fracture on the left humerus, a fracture of the left femur, a metaphyseal injury to the distal left radius, and a compression of the T6 vertebrae.”
Subdivision (c) of section 361.5 prohibits a court from granting reunification services in a case where section 361.5, subdivision (b)(5), applies, unless it can find 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 was closely and positively attached to the offending parent. Mother claims there was insufficient evidence to support the court’s finding that the denial of services would not be detrimental to the children. We conclude Mother’s argument is meritless.
To begin, we review the court’s decision regarding the factors in section 361.5, subdivision (c), not for substantial evidence, but for abuse of discretion. Once it is determined one of the situations outlined in subdivision (b) applies, the general rule favoring reunification (see § 361.5, subd. (a)) 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.) As previously stated, subdivision (c) directs the court not to grant services in a situation described in subdivision (b)(5) unless it made specific findings that either reunification services were likely to prevent reabuse or continued neglect of the child or the denial of services would be detrimental to the child. In other words, subdivision (c) grants the court very limited discretion to nevertheless grant services. (See Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96, fn. 6.) Thus, we review the court’s decision under subdivision (c) to determine whether the court abused that discretion.
It was Mother’s burden to persuade the court to exercise its discretion under section 361.5, subdivision (c), and grant her services despite the fact her conduct caused C.S. to suffer severe physical abuse. (§ 361.5, subd. (b)(5); Raymond C. v. Superior Court, supra, 55 Cal.App.4th at p. 163; see also Mardardo F. v. Superior Court, supra, 164 Cal.App.4th at p. 492.) Although the CFS had the statutory duty to investigate and present evidence about the prognosis for reunification, it was not required to prove services would be unsuccessful. (Raymond C. v. Superior Court, at p. 164.) Rather, it was up to Mother to persuade the court that reunification services were likely to prevent C.S.’s reabuse or continued neglect or that the denial of services would be detrimental to C.S.
Instead, Mother focuses on the absence of certain factors she apparently claims the court was obligated to consider, the psychologist’s report and testimony. Mother criticizes the court’s findings and emphasizes her trial testimony and requests for more visitations. None of these arguments are persuasive. Mother essentially asks this court to reweigh the evidence. However, we may not reweigh or express an independent judgment on the evidence. (In re Laura F. (1983) 33 Cal.3d 826, 833.) Issues of fact and credibility are matters for the trial court alone. (Ibid.)
On the issue of factors stated in section 361.5, subdivision (c), we observe the following. The fourth paragraph of subdivision (c) sets forth a nonexclusive list of factors indicating that reunification services are unlikely to be successful. The list includes but is not limited to: “The failure of the parent to respond to previous services, the fact that the child was abused while the parent was under the influence of drugs or alcohol, a past history of violent behavior, or testimony by a competent professional that the parent’s behavior is unlikely to be changed....”
Mother argues it is significant that none of the first three factors—“the failure of the parent to respond to previous services, the fact that the child was abused while the parent was under the influence of drugs or alcohol, a past history of violent behavior”—was applicable to her case. The inapplicability of any of these factors does not compel a different result here. The absence of a negative does not make a positive. (In re Ethan N. (2004) 122 Cal.App.4th 55, 66.)
The same paragraph of section 361.5, subdivision (c), further states the court may consider the “fact that a parent or guardian is no longer living with an individual who severely abused the child... in deciding that reunification services are likely to be successful, provided the court shall consider any pattern of behavior on the part of the parent that has exposed the child to repeated abuse.” Relying on her own testimony that she no longer lived nor had contact with Father, Mother argues the juvenile court should have factored this evidence into its analysis. Setting aside whether the language of subdivision (c) in this regard is discretionary or mandatory, Mother fails to affirmatively establish that the court did not consider her testimony. Likewise, Mother focuses on Dr. Knipe-Laird’s testimony that Mother would benefit from services. Once again, Mother disregards the juvenile court’s exclusive authority to weigh the evidence before it and judge credibility. (In re Laura F., supra, 33 Cal.3d at p. 833.) Here, the juvenile court expressly found the doctor’s “demeanor appeared to be equivocal, and she in fact equivocated to this Court on these very issues [whether Mother could overcome her many challenges and benefit from services] and as to the child left behind. [¶] In fact, the doctor testified that there was no guarantee indeed that Mother would benefit from services. The Court does not believe Mother would. As to Mother, it does appear that she is remorseful over the circumstances that are confronting her here.... [¶] Mother’s tone and demeanor in large part appears indifferent to this Court as to [A.S.’s] weight and as to the circumstances that confront her as to [C.S.]”
Mother here cannot show that services were in the best interest of the children, who were both under the age of three when detained. In fact, C.S. has been residing in her foster home for more than half of her short life. C.S.’s young age makes it unlikely that any significant bond had been formed during the six weeks that she was in Mother’s custody. As for A.S., the court received testimony that he had exhibited more of an attachment to Father than to Mother. The record also discloses that Mother had no job skills, had relied on Father as her sole source of income, had recently left Father to reside with her sister, spoke no English, had been residing in this country illegally, had left a third child in El Salvador to be raised by her parents, and had failed to grasp A.S.’s weight problem or C.S.’s medical condition. On the other hand, the children’s need for stability and permanency is paramount. While in the care of the foster parent, A.S. had lost about 15 pounds and the foster parent had received training in massage therapy for C.S. and was providing for her medical needs. The dependency court has broad discretion in determining whether offering a parent reunification services would be in a child’s best interest. (In re Angelique C. (2003) 113 Cal.App.4th 509, 523.)
Having reviewed the record as summarized above, we conclude the juvenile court did not abuse its discretion under section 300, subdivision (c), in reaching its decision to deny Mother reunification services under section 361.5, subdivision (b)(5). The evidence before the court compelled neither a finding that reunification services for Mother were likely to prevent C.S.’s reabuse or continued neglect nor one that the denial of services for Mother would be detrimental to the children.
III
DISPOSITION
The petition is denied. The previously ordered stay is lifted.
We concur: GAUT, J., MILLER, J.