Opinion
A152287
11-06-2017
M.W. ET AL., Petitioners, v. THE SUPERIOR COURT OF HUMBOLDT COUNTY, Respondent; HUMBOLDT COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES ET AL., Real Parties in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Humboldt County Super. Ct. Nos. JV170031, JV170032)
By separate filings, M.W. (father) and L.S. (mother) petition this court for extraordinary writ review of a juvenile court order setting a selection-and-implementation hearing under Welfare and Institutions Code section 366.26 for their daughter, nine-month-old S.W. They claim that the juvenile court erred by bypassing their reunification services under section 361.5, subdivision (b)(5) (section 361.5(b)(5)), which applies when a child under five years old is brought under the court's jurisdiction under section 300, subdivision (e) (section 300(e)) because a parent inflicted severe physical abuse on the child. Mother also contends that the court's supposed error in this regard requires reversal of the order setting a section 366.26 hearing for her son and S.W.'s half brother, three-year-old J.M. We deny the petitions.
All further statutory references are to the Welfare and Institutions Code. --------
I.
FACTUAL AND PROCEDURAL
BACKGROUND
S.W. first came to the attention of the Humboldt County Department of Health and Human Services (Department) in late January of this year, the day after she was born, because mother used methamphetamine throughout the pregnancy and tested positive for the drug soon before giving birth. Mother appeared to be "bonding well" with the baby, however, and S.W. was released from the hospital and went home with her parents.
In mid-February, when S.W. was 17 days old, her parents brought her to an Arcata hospital in the middle of the night because father noticed something wrong with one of her legs. X-rays revealed that S.W.'s femur was broken. She also had a pinpoint bruise under her eye and popped blood vessels in both eyes. The ER doctor who treated S.W. expressed strong doubt that the broken femur was accidental.
S.W. was airlifted to UCSF Benioff Children's Hospital in San Francisco for further treatment, where it was discovered that she also had multiple rib fractures of varying ages, an injury under her tongue, and hemorrhages under some of her nails. Mother and father offered various explanations for how S.W. might have sustained these injuries, including an incident when the family was driving and father had to brake quickly.
A few days later, the Department filed a petition alleging that the juvenile court had jurisdiction over S.W. under section 300, subdivision (a) because she had suffered serious physical harm; under section 300, subdivision (b)(1) because mother and father had failed to protect her from serious physical harm; and under section 300(e) because she was under five years old and had suffered severe physical abuse that her parents either inflicted, knew about, or reasonably should have known about. The Department also filed a petition alleging jurisdiction over J.M. under section 300, subdivisions (b)(1) and (j) based on mother's history of substance abuse and the physical harm suffered by S.W. The court ordered both children detained, found father to be S.W.'s presumed father, and found another man to be J.M.'s presumed father.
S.W.'s petition was later amended to add allegations under section 300, subdivision (i) that she had been subjected to acts of cruelty that her parents had either failed to protect her from or inflicted themselves and under section 300, subdivision (j) that she was at risk based on mother's neglect of J.M. J.M.'s petition was amended to add an allegation under section 300, subdivision (b)(1) that mother had neglected him by failing to provide him with sufficient nutrition.
The March jurisdiction report for S.W. attached a police report containing the statement of her treating physician at UCSF. The doctor opined that her rib fractures had occurred about a week before the broken leg and were the result of "a crushing injury," which generally occurs in small children if they are squeezed with "a great deal of pressure." This kind of crushing might have also caused the hemorrhaging in S.W.'s eyes. The rib fractures could not have occurred without a caretaker's awareness because they would likely cause "inconsolable crying" in an infant, and it was the doctor's opinion that "absent any reasonable explanation, the injuries likely occurred at the hands of the baby's caretaker." The doctor also stated that he had seen injuries like the one under S.W.'s tongue "when someone forcefully shoves something in the baby's mouth."
In July, after a contested jurisdictional hearing, the juvenile court sustained both amended petitions. It found by clear and convincing evidence that S.W. was a child described by section 300, subdivisions (a), (b), and (j) and by a preponderance of the evidence that she was a child described by section 300, subdivisions (e) and (i). It found jurisdiction over J.W. under section 300, subdivisions (b) and (j) by clear and convincing evidence.
The disposition report for S.W. recommended that mother and father not be offered reunification services under, among other provisions, section 361.5(b)(5), based on the jurisdictional finding under section 300(e). The disposition report for J.M. recommended that mother not be offered services under, among other provisions, section 361.5, subdivision (b)(6), based on the jurisdictional findings premised on severe physical harm to S.W.
Mother and father opposed bypass of their reunification services, and a contested disposition hearing was held in late August. At the hearing, both parents argued that the juvenile court could not bypass services because the section 300(e) jurisdictional finding for S.W. was made by a preponderance of the evidence, not by clear and convincing evidence. In response, the Department argued that the fact that the standard of proof at the jurisdictional stage was different than that at the dispositional stage did not preclude bypass. The Department urged the court "to make the findings today by clear and convincing evidence and in an abundance of caution."
The juvenile court agreed that the Department had a different burden of proof at the jurisdictional stage than at the dispositional stage and that this did not preclude the court from bypassing reunification services based on the jurisdictional findings. It determined that it was required to make a finding by "clear and convincing evidence" and stated that "certainly, that standard is met here." Its written orders reflected findings "by clear and convincing evidence" that S.W. was brought within its jurisdiction under section 300(e) because of her parents' conduct and that J.M. had been adjudicated a dependent because of the infliction of severe physical harm on his half sister. The court set a section 366.26 hearing for both children for December 20, 2017.
II.
DISCUSSION
A. General Legal Standards.
Reunification services may be bypassed "when the [juvenile] court finds, by clear and convincing evidence," that "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." (§ 361.5(b)(5).) In turn, section 300(e) applies when "[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." Services cannot be ordered if section 361.5(b)(5) applies unless the court finds that "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 [the] parent." (§ 361.5, subd. (c)(3).)
Reunification services may also be bypassed when the juvenile court finds by clear and convincing evidence that "the child has been adjudicated a dependent pursuant to any subdivision of Section 300 as a result of . . . the infliction of severe physical harm to . . . a half sibling by a parent . . ., and the court makes a factual finding that it would not benefit the child to pursue reunification services with the offending parent or guardian." (§ 361.5, subd. (b)(6)(A).) "A finding of the infliction of severe physical harm . . . may be based on, but is not limited to, deliberate and serious injury inflicted to or on . . . the body of a . . . half sibling of the child by an act or omission of the parent or guardian . . . ." (§ 361.5, subd. (b)(6)(C).) Services cannot be ordered if section 361.5, subdivision (b)(6) applies "unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child." (§ 361.5, subd. (c)(2).)
We review an order denying reunification services for substantial evidence. (D.F. v. Superior Court (2015) 242 Cal.App.4th 664, 669.) In doing so, we view the evidence in the light most favorable to the Department, the prevailing party below, and "indulge all legitimate and reasonable inferences to uphold the [juvenile] court's order." (Patricia W. v. Superior Court (2016) 244 Cal.App.4th 397, 419.)
B. The Juvenile Court Properly Bypassed Reunification Services as to Both Children.
Mother and father argue that the juvenile court erred by denying them reunification services as to S.W. based on section 361.5(b)(5) because the jurisdictional finding under section 300(e) was made by only a preponderance of the evidence. We are not persuaded.
Mother and father exclusively rely on K.F. v. Superior Court (2014) 224 Cal.App.4th 1369 (K.F.), another case involving unexplained bone fractures in an infant. (Id. at p. 1374.) In that case, the juvenile court made a jurisdictional finding under section 300(e) by a preponderance of the evidence, emphasizing that "it could not reach this finding by clear and convincing evidence." (K.F., at p. 1380.) At the dispositional hearing the following month, the court denied reunification services to the parents under section 361.5(b)(5), stating that "it was finding 'by clear and convincing evidence' that [the child] had been adjudicated a dependent 'as a result of the infliction of severe physical harm, and that the court found earlier that harm was caused by the parents.' " (K.F., at pp. 1375, 1381, 1385.) In doing so, it expressly conditioned its ruling on the jurisdictional finding, stating that "the existence of the section 300(e) abuse finding was established by clear and convincing evidence." (Id., at p. 1385, italics added.)
The only finding section 361.5(b)(5) requires by its terms to be made by clear and convincing evidence is "that the child was brought within the jurisdiction of the court under subdivision (e) of Section 300." K.F. recognized this, but the decision rejected the contention that a finding under section 300(e) therefore "automatically triggers the section 361.5(b)(5) reunification bypass provision, even when the facts underlying the section 300(e) abuse finding were proven only by a preponderance of the evidence." (K.F., supra, 224 Cal.App.4th at pp. 1387-1388.) K.F. explained that it will always be apparent from the record whether a jurisdictional finding was made under section 300(e), and "[i]t serves no purpose to impose a clear and convincing evidence requirement on the existence of a finding that is obviously part of the record." (K.F., at p. 1388.) In addition, K.F. determined that the Legislature intended "to condition denial of reunification services on a heightened level of proof beyond the preponderance of the evidence standard applicable to jurisdictional findings." (Ibid.) K.F. held that therefore, a juvenile court "must find that the facts establishing the section 300(e) abuse finding were clearly and convincingly proven." (Ibid.)
K.F. is distinguishable from this case. It is true that the juvenile court here also made the section 300(e) jurisdictional finding by a preponderance of the evidence. Unlike in K.F., however, the issue whether the court could rest on that finding in bypassing reunification services was argued at the dispositional hearing, and the court agreed with the Department's suggestion that it make the necessary finding of severe physical abuse by a parent by clear and convincing evidence. Although the court did not state in so many words that it was finding by clear and convincing evidence that S.W. had suffered severe physical abuse by a parent, the only fair reading of the record is that it made that finding as required under K.F. Mother and father do not challenge the denial of services as to S.W. for any other reason, and they have therefore failed to demonstrate that the ruling was erroneous.
Mother's only claim about why she should not have been denied reunification services as to J.M. is that the juvenile court failed to make a finding of severe physical abuse to S.W. by clear and convincing evidence. Because we conclude that the court made the finding by clear and convincing evidence at the dispositional hearing, we also conclude that it properly bypassed mother's services as to J.M.
III.
DISPOSITION
The petitions for extraordinary writ relief are denied on the merits. (Cal. Rules of Court, rule 8.452(h)(1); see § 366.26, subd. (l).) Mother's request for a stay of the selection-and-implementation hearing under section 366.26 scheduled for December 20, 2017, is denied as moot. This decision shall be final immediately in the interests of justice. (Cal. Rules of Court, rules 8.452(i), 8.490(b)(2)(A).)
/s/_________
Humes, P.J. We concur: /s/_________
Dondero, J. /s/_________
Banke, J.