Opinion
E068773
04-24-2018
In re A.T., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. M.B., Defendant and Appellant.
Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel; Jamila Bayati, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. J270292) OPINION APPEAL from the Superior Court of San Bernardino County. Annemarie G. Pace, Judge. Affirmed. Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel; Jamila Bayati, Deputy County Counsel, for Plaintiff and Respondent.
FACTUAL AND PROCEDURAL HISTORY
A. DETENTION, JURSIDICTION / DISPOSITION
1. DETENTION
Minor, a female, was born in September 2016. Defendant and appellant M.B. (mother) and A.T. (father; collectively, parents) lived separately but father visited minor often. Parents were hoping to reconcile. Parents were both in their 20s when minor was born.
Father is minor's presumed father; he is not a party to this appeal.
On March 29, 2017, plaintiff and respondent San Bernardino County Children and Family Services (CFS) responded to a child welfare referral indicating that minor, then six months old, was the victim of physical abuse and neglect. Minor had a broken left humerus and left ulna; mother's story was inconsistent with minor's injuries. The investigating social worker learned that minor had a severe displaced fracture of the left humerus (long bone in the upper arm), and fractures to her left ulna and radius (two forearm bones). Minor needed surgery for the fractures. Mother claimed that minor was injured when lunging forward attempting to crawl, but minor's treating doctor, Dr. Natasha Lee, opined that mother's explanation did not match the injuries.
Earlier that day, mother dropped minor off at the home of maternal grandmother (MGM) prior to going to work; they had done this since December 2016. Mother claimed she left work early that day, around 2:30 p.m., and picked up minor. When she returned home with minor, it was around 4 p.m. She put minor down on the floor with a blanket and toys. Mother made minor a bottle and began to play with minor on the floor. Minor lunged forward from a sitting position and began to cry, but quickly calmed down. When minor cried again, mother believed minor was teething. Mother took minor to the store and bought Orajel. When they returned, mother placed minor in a walker. Mother noticed that minor was not using her left arm like usual. Mother put minor in the crib and her arm appeared limp. Mother called MGM, who summoned mother to MGM's home. When mother arrived at MGM's home minor was sleeping. When minor woke up, MGM and mother noted that minor's left arm was swollen. They took minor to the hospital. Mother stated that father visited minor about five times weekly, and last visited on March 28, 2017, for an hour at mother's home. MGM recalled that father told her when he visited minor on March 27, 2017, that minor fell off the couch.
After the social worker's inquiry, mother admitted that father had battered her in 2013. Father hit mother on the face and arms, and was arrested after neighbors contacted the police.
The attending physician reviewed minor's X-rays and opined that mother's story about minor lunging forward did not cause minor's fractures. Additionally, minor's injuries could not have been caused by her falling from a couch three days earlier, with her only presenting symptoms that day. Law enforcement was also investigating minor's injuries.
On March 30, 2017, a supervising social worker spoke with father by telephone. Mother told father that she was taking minor to the hospital, but the parents did not feel it was anything serious. In a telephone call with CFS on April 3, 2017, father stated that he believed mother's story indicating minor was injured due to lunging forward on the floor. Father visited minor on March 22, 2017, at mother's home, and did not notice anything unusual about minor. He admitted that he smoked marijuana but denied he was addicted to it. He also admitted that he engaged in domestic violence with mother in 2013. A criminal history inquiry indicated that father was charged with domestic violence and receiving stolen property in 2013. Mother had no criminal history.
On March 30, 2017, CFS detained minor at the hospital. On April 3, 2017, CFS learned the forensic pediatrician, Melissa Siccama, from Loma Linda University Children's Hospital, opined that minor's injuries were consistent with non-accidental trauma. The next day, April 4, 2017, CFS initiated a dependency by filing a Welfare and Institutions Code section 300 petition with allegations stated under subdivisions (a) serious physical harm; (b) failure to protect; and (e) severe physical abuse. Allegations ultimately not sustained were pled under subdivision (b), and indicated that father engaged in domestic violence and abused substances, placing minor at risk. Allegations that were ultimately sustained were pled under subdivisions (a) and (e) as follows: "On or about March 30, 2017, the child . . . was examined at Loma Linda University Medical Center and was found to have sustained multiple injuries including, but not limited to: a left displaced fractured humerus and left fractured ulna and radius. The explanation provided by the child's parents . . . for the child's injuries is not consistent with the injuries. Dr. . . . Melissa Siccama found the injuries to be consistent with non-accidental trauma. The injuries occurred while the child was in the care of parents."
All statutory references are to the Welfare and Institutions Code unless otherwise specified.
On April 4, 2017, minor was discharged from the hospital and placed with the maternal grandparents.
On April 5, 2017, at the detention hearing, parents were present in court with their respective appointed attorneys. The court found a prima facie case under section 300 and for detention out of the home, detained minor with the maternal grandparents, ordered at least two-hour supervised weekly visits, and set the jurisdiction/disposition hearing for April 26, 2016.
2. JURISDICTON / DISPOSITION
A jurisdiction/disposition report filed April 24, 2017, recommended that the court sustain minor's section 300 petition and apply family reunification bypass (FR bypass) to parents under section 361.5, subdivision (b)(5), relating to severe physical abuse of a child under age five, and maintain minor with the maternal grandparents. The report noted that not only did minor sustain three fractures of her left arm but a CT scan revealed that minor had blood on the left side of her brain caused by an acceleration or deceleration mechanism.
Parents had been in a relationship for about five years. Minor was their only child together. They separated because of father's infidelity, but reconciled after two months; they lived together. Parents maintained that minor's injuries were caused by an accident. Dr. Siccama opined that minor's three arm fractures were consistent with non-accidental trauma, not with parents' stories. In addition to crawling, lunging, and falling on a carpeted floor by minor as explanations for minor's injuries, parents also stated that father visited minor two days prior to the minor's hospitalization. At that time, mother stepped out to do laundry. When she returned, minor was crying. Father stated that minor fell off the couch when he was washing dishes. Minor, however, showed no signs of being injured. Father did not see minor the day she was taken to the hospital.
With regard to the 2013 domestic violence charges, mother admitted that she and father argued, and father hit her in the face and arms with a closed fist. She, however, denied that she and father were drinking alcohol. Father did admit that he had a "few beers" and was buzzed, but contended that he hit mother in the face with an open hand. Father was convicted of a domestic violence charge. Although mother had a restraining order against father, she had the order removed after they "talked things out." Father was sentenced to jail time, ordered to pay fines, and placed on probation for a term ending in February 2017. Father was also required to attend a domestic violence course and NA/AA meetings, and to not consume alcohol.
Mother described herself as a casual drinker; she denied that father had a drug or alcohol problem. Mother contended that father used marijuana only once. Father, however, stated that he drank alcohol about twice a month and smoked marijuana to relieve his stress. He last used marijuana three weeks prior, and estimated that he smoked it twice weekly.
MGM noted that minor was fine when mother picked her up from her home on the date when minor's injuries became evident. In the evening mother called MGM in a panic stating that minor was not moving her arm properly. When mother arrived with minor at MGM's home, mother and MGM noticed minor's arm was swollen; it must have been hurting minor because she was crying when she moved her arm or when the arm was touched. They immediately took minor to the hospital.
The social worker noted the inconsistencies with parents' stories about father's use of alcohol and marijuana, about the domestic violence between parents, and regarding minor's injuries. The social worker reported as follows:
"The inconsistencies in stories are concerning . . . . It is clear that the parents are not being fully forthcoming. With the addition of discovering blood in the child's brain, it further confirms that non-accidental trauma was inflicted upon [minor]. Given the severity of the child's injuries coupled with her young age and no reasonable explanation as to her injuries, it is recommended that the parents be offered NO-FR services pursuant [WIC 361.5b5]."
On April 19, 2017, parents attended a supervised visit with minor, and demonstrated fitting parenting skills during the two-hour visit. Minor also did not appear distressed or afraid of parents.
3. ONGOING INVESTIGATION/EVIDENCE
The juvenile court continued the jurisdiction/disposition hearing a few times at the request of parents' counsel (1) to allow doctors to assess whether minor had a bone disorder, which may explain minor's fractures; and (2) to permit bifurcated evidentiary hearings addressing jurisdiction and disposition issues because parents did not agree with CFS recommendations.
An addendum report filed on May 24, 2017, provided the results of a bone fragility studies indicating that minor had no predisposing conditions. Without a history of significant trauma to explain minor's injures, Dr. Siccama opined that "the injuries are diagnostic for child physical abuse."
Parents engaged in services before the court held the jurisdictional and dispositional hearings. Mother attended therapy with Catrina Johnson Green, a licensed professional clinical counselor. Mother also submitted to a psychological evaluation by Dr. John Kinsman.
In a report dated July7, 2017, Green stated that mother enrolled in individual therapy and domestic violence counseling, and attended parenting education training on April 25 and June 15, 2017. Green provided that mother successfully participated in eight individual therapy sessions, nine domestic violence counseling sessions, and four parenting education training sessions. Green opined that mother made "good progress" and set new limits and boundaries in her life. There was no indication that Green obtained discovery for the case. Green, however, stated that mother openly addressed why CFS became involved in mother's life, identified core conflicts, improved her self- awareness, and gained a new understanding regarding the influence of the past on her present behavior. Mother " 'found her voice' " and realized how she feels was important. Mother "has begun the work of becoming . . . the 'best mom possible.' "
In a report dated July 8, 2017, Dr. John Kinsman indicated that he was retained by mother's counsel to address whether mother could benefit from FR services, and whether services would likely prevent future abuses of minor. Mother's counsel provided Dr. Kinsman records indicating minor's date of birth, and the fact that minor was removed from parents "due to allegations the child may be at risk following the discovery of physical injuries to her that are inconsistent with explanations offered by her parents." Dr. Kinsman noted his professional opinions were based on the information he had at the time of the evaluation.
In the report, Dr. Kinsman indicated that on July 1, 2017, mother completed three testing measures, the Millon Clinical Mutiaxial Inventory-IV (MCMI-4), the Parenting Stress Index-4 (PSI-4), and a Personality Assessment Inventory. To render a psychological assessment of mother, Dr. Kinsman evidently used the results of those tests, along with defendant's self-report of her history, and Dr. Kinsman's observations of mother. Dr. Kinsman did not explain in his report the process he used when implementing the three testing measures. He also did not indicate what the tests were intended to be used for or confirm the tests were generally accepted as reliable in the scientific community, particularly regarding the question of whether FR services to a parent, in legal reunification timeframes for a baby, would likely prevent future abuse of the child.
Dr. Kinsman noted that mother was oriented as to time, person, place and the purpose of their meeting. Dr. Kinsman noted that mother was raised by her parents until her mother died when mother was six years old. In 2009, mother graduated from high school and almost completed a bachelor's degree. Mother worked at a bank. She denied substance abuse and criminal history. She consumed alcohol on rare occasions. She and father had been together for five years. Mother denied a history of treatment for mental or emotional issues until beginning counseling with Green.
Mother claimed that MGM helped her babysit minor. We assume that MGM is mother's stepmother.
In his report, Dr. Kinsman explained that the test data and results from a clinical interview suggested mother responded to inquiries defensively, and tried to portray herself as being free of shortcomings. The doctor saw no indication that mother suffered from psychosis, but she had sadness and distress related to losing custody of minor. She was described as adept at winning over the favor of others, but had few long-lasting relationships, which led to her self-doubt. When mother faced rejection, she may behave erratically. Dr. Kinsman felt that nothing in his evaluation "directly" indicated mother represented a threat to minor's safety, but her insecure preoccupation with her own psychological issues may limit her maternal effectiveness. Mother was experiencing signs and symptoms of "Major Depressive Disorder, Moderate, with Anxious Distress," and "Compulsive Personality Style."
Dr. Kinsman recommended that mother engage in individual therapy and couples therapy with father, and receive a psychiatric evaluation to determine whether medication might relieve mother's depression and anxiety.
The juvenile court held a jurisdictional hearing on July 12, and the dispositional hearing on July 17, 2016.
B. JURISDICTION HEARING
On July 12, 2017, at the contested jurisdictional hearing, the court accepted the reports by CFS into evidence. In argument, counsel for CFS and minor's counsel asked the court to follow CFS recommendations. Mother's counsel noted that mother objected to all jurisdiction allegations; mother claimed that she did not injure minor. Father's counsel objected to the sustaining of the domestic violence allegation, but father acknowledged something terrible happened to minor, and he took responsibility for not being more protective of minor.
The court sustained the section 300, subdivisions (a) and (e) allegations by clear and convincing evidence, but dismissed or found "not true" the other allegations. At the request of mother's counsel, the court authorized release of CFS reports to therapists or persons working with parents.
C. DISPOSITION HEARING
At the contested disposition hearing on July 17, 2017, the court admitted the reports filed by CFS into evidence, received testimony from mother; therapist, Catrina Johnson-Green; Dr. John Kinsman; and social worker, Stephanie Siringoringo. The court permitted argument before rendering a judgment.
1. TESTIMONY: CATRINA JOHNSON-GREEN
Therapist Catrina Johnson-Green testified she had a master's degree in counseling and had been a licensed counselor for six years. CFS referred clients to her. She was a certified facilitator of a batterer's and child abuse prevention program. Mother attended eight individual therapy sessions. Mother also attended domestic violence group counseling, monthly, which Green facilitated. Initially, mother was guarded. Mother then demonstrated progress by learning to be more diligent in safely parenting her child, and being more expressive with her own needs. Mother also demonstrated how to be a better mother and more emotionally connected to minor. Whether mother perpetrated abuse did not affect Green's assessment. She stated, "It's not my job to prove guilt or innocence." Mother initially presented as emotionally detached but learned new coping skills. Green recommended more therapy for mother.
The focus of domestic violence group therapy was to identify and hold the client more responsible for their choices and to not blame others. In group therapy, mother appeared emotionally detached. In her parenting program, they focused on alternatives to discipline, and how to build compassion. Mother was reportedly compliant in the parenting program. Green saw no reason to believe mother could not safely parent a child in six months. Mother, however, told Green that minor injured herself by falling off the couch, or something similar.
Green expressed it did not matter to her whether mother caused minor's injuries. Mother had consistently reported that the injuries were caused by an accident; Green was looking at mother's progress. Green focused on preventing mother's neglect of minor, but Green did not know what had happened to minor. Minor's return to mother was not Green's call, but she stated, "I don't see a danger to the child by mom."
If the court found that mother had perpetrated abuse on minor causing three breaks in minor's arm, that did not impact mother's progress in therapy. Green suggested that she did not see a correlation between a client continually lying about abusing a child, and the parent's progress in services. However, on cross-examination, Green stated, "If [mother is] lying, . . . she's still making progress toward changing the behavior. But, it would be hard if she's lying to me that's different." Thereafter, the following exchange took place between CFS counsel and Green:
"Q: In your opinion does accepting responsibility have any correlation to reaching therapeutic goals?
"A: Yes,
"Q: How is that?
"A: Accepting responsibility says that I need to do something different because I made some mistakes. Neglect is part of that.
"Q: And as well as physical abuse?
"A: . . . Yeah."
2. TESTIMONY: MOTHER
Mother testified that on Monday, March 27, minor fell off the couch when minor was with father, and mother was doing laundry, according to father. Minor did not have any apparent injury and mother cared for minor that day. Minor had no apparent injury on Tuesday either. Minor injured her arm on Wednesday, March 29, when attempting to crawl. "[Minor] was reaching for something[,] she had toys around her. . . . She kind of went over and launched herself." Mother was in the kitchen and minor was visible. Mother heard a thump and saw minor on her left side. Minor cried really loud but mother waited a few hours before taking minor to the hospital because mother did not notice minor was injured until she placed minor down for a nap; when mother moved minor's arm, minor cried.
In therapy, mother talked about minor being injured by falling on her side. Mother, however, acknowledged that doctors did not believe her story. She admitted she told her therapist minor fell off a couch, but she was not staying that was how minor hurt her arm.
Mother's counsel read the section 300 severe physical abuse allegation the court sustained, and asked mother, "You're not disputing that, correct?" Mother responded, "No." Mother asked the court to order continued services for her; she acknowledged she was responsible for CFS becoming involved in her life. Mother felt she had learned to be a better parent. She completed individual counseling and felt she had benefitted from it. In domestic violence classes, she learned she had to take responsibility for her actions.
Mother loved minor, and knew minor loved her; minor became excited when she saw mother. She was minor's primary caregiver prior to minor's removal. Mother felt she and minor had a bond.
When asked what she would do differently, she said she would pay more attention to minor; mother added, "she was not abused." Mother did not agree minor's three broken bones were caused by physical abuse, despite the court findings and opinions of doctors. Mother denied ever being frustrated with minor or ever shaking minor, but did not dispute that minor was injured while in her custody.
3. TESTIMONY: DR. JOHN KINSMAN
The court accepted a stipulation between the parties that Dr. Kinsman was qualified to testify as an expert on psychological evaluations. Dr. Kinsman was a psychologist who practiced for 25 years, and performed approximately 15 to 20 evaluations a month. He evaluated mother in July, using a clinical interview, a mental status examination, and three testing measures. Dr. Kinsman opined that mother would benefit from FR services, which would likely prevent reabuse of minor. His opinion was based on his impressions of mother during his interview of her, and her test results. His "sense" was that mother may have been experiencing depression.
Therapy would be intended to help mother develop better coping mechanisms. Dr. Kinsman opined mother's compulsive personality and anxiety would not prevent her from successful parenting. The MCMI-4 test measured clinical subtypes like depression or anxiety or psychosis. The PAI did something similar; one of mother's strengths was that she was intelligent. She demonstrated the capacity to learn and to modify her behavior.
Dr. Kinsman repeatedly questioned whether mother physically abused minor. He noted that law enforcement had not pursued charges against her, evidently lacking proof that mother abused minor. Dr. Kinsman also remarked that mother explained minor became injured by rolling over on a toy. It was not his "role" to ask questions concerning whether mother intentionally caused minor's injury, as "law enforcement does that." When counsel for CFS reflected on the evidence mother was alone with minor when minor was injured, and mother gave an implausible explanation for the injuries, Dr. Kinsman replied, "It's interesting that you use the word evidence because if evidence were the issue I think she would probably be wearing orange right now." "[I]f a child badly is injured, and there is evidence . . . there would probably be an investigation. And that doesn't seem to have resulted in any charges."
Dr. Kinsman felt that it did not matter whether mother came "clean" about what happened to minor; that would not mean she could not benefit from services. However, on cross-examination, he admitted that after six months of therapy, he would think mother should be able to provide an adequate understanding of what happened to minor.
Dr. Kinsman admitted he would feel a lot more comfortable if mother admitted that, as a young mother, she was unaware of how fragile babies were, and it would never happen again, "[h]owever I don't know that your hypothetical has any basis in fact for this case."
Dr. Kinsman relied on the results from testing he conducted. He admitted he did not use the Child Abuse Potential Inventory (CAPI) testing measure because he felt that it lacked reliability and validity. He also opted not to use the Minnesota Multi Phasic Personality Inventory (MMPI), and instead, used the "P-A-I" test because it did the "same kind of thing," was "a lot more user friendly," and asked less questions. The doctor's guess was that mother had some postpartum depression before minor was removed from her custody.
Dr. Kinsman opined that a parent could "potentially" benefit from counseling, permitting the safe return of a child even if the parent lied about how the child was injured. He felt that mother was not a child abuser because a child abuser has a significant personality disorder, antisocial personality, psychosis, severe substance abuse issues, or a lengthy history of violent interactions. Mother expressed grief and took responsibility for minor's injury because she "cried."
4. TESTIMONY: STEPHANIE SIRINGORINGO
Stephanie Siringoringo had been employed as a social services practitioner with CFS for four years. She did not recommend that parents receive FR services. Mother told a different story to Green than she told to Siringoringo. Mother told her that she saw minor crawl and fall. Minor had three fractures to her left arm and one was displaced. Mother's explanations for the injuries were inconsistent with the nature of minor's injuries, according to the medical evidence. This was concerning because minor was a small child with serious injuries. Siringoringo elaborated:
"Even more concerning is the fact that three medical professionals, I believe, stated that [parents'] account[s] of how [minor] sustained the injuries [are] not consistent with her injuries and the fact that Mother is not taking accountability . . . in actually informing us of what really happened . . . .
"I think later Dr. [Siccama] found hemorrhaging in the frontal lobe . . . . It would require a lot of acceleration or deceleration of the child. So I'm not sure if that is like some kind of shaking mechanism. . . . But . . . it was indicative of non-accidental trauma."
Father was reportedly not home when the incident occurred, and the social worker did not know if law enforcement completed their investigation, or forwarded the case to the district attorney's office.
5. COUNSELS' ARGUMENTS
Mother's counsel recognized it was mother's burden to demonstrate an exception to FR bypass applied. Counsel argued that mother demonstrated services were likely to prevent reabuse of minor, and minor was so closely attached to mother that FR bypass would be detrimental to minor. Mother's counsel cited statutory factors when she argued reunification services to mother would prevent minor's abuse. She stated, "the Welfare and Institutions Code talks about indication or factors the court should look to in its decision if reunification is likely to be successful or unsuccessful and whether failure or reunification is likely to be detrimental to the child." Counsel then cited to "section 361.5c" and the subsections. Mother's counsel then argued that competent professional testimony from two witnesses indicated that mother benefitted from services. Counsel stated, "we have two professionals who came into court today who indicated that my client is likely to benefit from reunification services. The services are likely to prevent reabuse and that mother has benefitted from the services. That she's benefitted and that she could certainly do so within the 6 month time frame allowed by the court." Counsel went on to state there is no dispute that minor was injured while in mother's care. However, she argued that mother could benefit from services, even though she made no admission of abuse. Mother's counsel stated, "No one is perfect."
Father's counsel acknowledged that the court could deny FR services without knowing the perpetrator of the abuse, but argued that CFS seemed to have conceded father was not present when the injuries occurred. Father's counsel also indicated that father had no reason to know that minor was being abused.
Minor's counsel asked the court to apply FR bypass under section 361.5, subdivision (b)(5), to both parents. Minor was not really crawling, and mother's claim that minor was injured due to falling on a toy, a total of maybe six inches to the floor, was "preposterous." Mother indicated that she did nothing wrong. Mother's father and stepmother helped raise mother, but mother told Dr. Kinsman she had no childhood. Mother did not convey this to CFS. Despite stating she had no childhood, mother entrusted minor in the care of maternal grandparents. Mother was supposed to be learning and growing, but her stories were getting "more grandiose."
Counsel for CFS noted that minor fell off the couch in father's care but was not injured. Mother gave varied accounts of what occurred when minor was injured. What was not disputed was that minor had three broken bones in one arm, one of them being a displaced fracture in the upper arm, requiring significant force for a break. Green testified that mother addressed the underlying issues at bar, however, parents did not convey how minor was injured, and child neglect is very different than physical abuse. Mother promoted the idea that minor injured herself by falling. Counsel for CFS argued that FR bypass was appropriate with mother.
6. THE JUVENILE COURT'S FINDINGS AND ORDERS
The juvenile court indicated it lacked evidence that father abused minor, or had any knowledge that she was being abused; the court ordered FR services for father. Concerning mother, the court noted that it was a "super close call." Mother had no criminal or CFS history, had not failed in previous services, did not abuse drugs or alcohol, and a therapist and psychologist testified in her favor. The court, however, applied FR bypass, stating:
"I have significant injuries to a 6 month old and three different broken bones in the arm as well as hemorrhaging in the brain. . . . Mother's story is just so extremely unbelievable. It really is disturbing to me. [I]t is the Mother's burden though it's preponderance of the evidence, it's too close in this case that I can't find that has been met when there is really no acknowledgment on the stand of anything other than Oh, I turned away.
". . . I need some more acknowledgment than I've heard this in this case so I am gonna deny services to the Mother under 361.5.B5."
The juvenile court invited mother to continue services on her own and to file a section 388 petition after her acceptance of some responsibility for minor's injuries.
The court found father to be the presumed father, removed minor from paternal custody, ordered minor placed with the maternal grandparents, and ordered FR services for father. The court denied FR services for mother because minor was a victim of severe physical abuse described under section 300, subdivision (e). The court also ordered supervised visits, and set the six-month review hearing for January 17, 2017.
D. NOTICES OF APPEAL
On July 17, 2017, mother filed her notice of appeal stating her objection to the court's denial of FR services for her and requested a review of the section 300 findings. On August 14, 2017, mother filed a second notice of appeal simply indicating mother's objection to the court applying FR bypass.
DISCUSSION
A. THE COURT PROPERLY APPLIED FR BYPASS UNDER SECTION 361.5, SUBDIVISION (B)(5)
Mother does not challenge the jurisdictional findings of the court in this appeal, including the section 300, subdivision (e), that minor "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." (§ 300, subd. (e).) Mother challenges only the juvenile court's order denying her reunification services. She contends there is not substantial evidence to support the application of section 361.5, subdivision (b)(5). For the reasons set forth post, we disagree.
1. STANDARD OF REVIEW
"We affirm an order denying reunification services if the order is supported by substantial evidence." (In re Harmony B. (2005) 125 Cal.App.4th 831, 839.) " 'In juvenile cases, as in other areas of the law, the power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the verdict, if possible.' " (Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 600 (Francisco G.).)
2. THE COURT PROPERLY DENIED SERVICES
Section 361.5, subdivision (b), "sets forth a number of circumstances in which reunification services may be bypassed altogether. These bypass provisions represent the Legislature's recognition that it may be fruitless to provide reunification services under certain circumstances." (Francisco G., supra, 91 Cal.App.4th at p. 597.) "Section 361.5, subdivision (b) symbolizes the Legislature's recognition of the fact that it may be fruitless to provide reunification services under certain circumstances." (Deborah S. v. Superior Court (1996) 43 Cal.App.4th 741, 750.)
"Family reunification services play a critical role in dependency proceedings." (Tyrone W. v. Superior Court (2007) 151 Cal.App.4th 839, 845.) Even when jurisdiction is amply justified, as it is here at the early stages of dependency, family reunification is the desired goal. Toward that end, parents are offered reunification services. "As a general rule, reunification services are offered to parents whose children are removed from their custody in an effort to eliminate the conditions leading to loss of custody and facilitate reunification of parent and child. This furthers the goal of preservation of family, whenever possible." (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478; see § 361.5, subd. (a); In re William B. (2008) 163 Cal.App.4th 1220, 1227.) However, when it is shown "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." (Raymond C. v. Superior Court (1997) 55 Cal.App.4th 159, 164.) Section 361.5, subdivision (b), "sets forth a number of circumstances in which reunification services may be bypassed altogether." (Francisco G., supra, 91 Cal.App.4th at p. 597.)
A juvenile court may deny reunification services under section 361.5, subdivision (b)(5), 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 or guardian." The parent need not have actual or constructive knowledge that the child in fact suffered severe physical abuse in order to fall within the statutory definition. (In re E.H. (2003) 108 Cal.App.4th 659, 669-670.) "Section 300, subdivision (e), and subdivision (b)(5) of section 361.5, . . . do not require identification of the perpetrator. [Citation.] Read together, those provisions permit denial of reunification services to either parent on a showing that a parent or someone known by a parent physically abused a minor. [Citation.] Thus, 'conduct' as it is used in section 361.5, subdivision (b)(5) refers to the 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.) Here, the juvenile court found that minor was brought within the court's jurisdiction under section 300, subdivision (e) (severe physical abuse). Mother does not dispute this finding.
Under section 361.5, subdivision (b)(5), the court is barred form ordering FR services, unless at least one of two exceptions to FR bypass applied. "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." (§ 361.5, subd. (c).) When a juvenile court bypasses FR services due to finding a child suffered "severe physical abuse," the focus of the proceedings turns to the child's need for permanence and stability, and not on family reunification. (In re A.M. (2013) 217 Cal.App.4th 1067, 1074-1075.) The legislative presumption is for services not to be provided to the parent. (Ibid.)
In this case, the juvenile court applied FR bypass to mother, and stated, "I have significant injuries to a 6 month old and three different broken bones in the arm as well as hemorrhaging in the brain. . . . Mother's story is just so extremely unbelievable. It really is disturbing to me. [I]t is the Mother's burden though it's preponderance of the evidence, it's too close in this case that I can't find that has been met when there is really no acknowledgment on the stand of anything other than Oh, I turned away. [¶] . . . [¶] . . . I need some more acknowledgment than I've heard this in this case so I am gonna deny services to the Mother under 361.5.B5." The court's finding is supported by substantial evidence. Here, all the parties agreed minor suffered major injuries while under mother's care. Mother, however, has never admitted to injuring minor. We agree with the juvenile court when it stated that mother's story was "extremely unbelievable." Without acknowledging and feeling remorse for the injuries only mother could have caused to minor, it is unlikely that FR services would "prevent reabuse or continued neglect."
On appeal, mother relies on the testimonies of Dr. Kinsman and Green, who were both retained by mother, to contend that the juvenile court's order denying FR services was in error. Mother summarized their testimony in her reply brief: "Green noted mother made good progress during their eight therapy sessions and began to address the issues which led to CFS' intervention. [Citation]. Green believed mother was on the way towards becoming a better parent for [minor]. [Citation.] Meanwhile, Dr. Kinsman diagnosed mother with 'major depressive order' and suggested a regimen of therapy and medication to resolve mother's problems. [Citation.] He noted mother was 'totally committed to regaining custody' of [minor] and raising her daughter properly. [Citation.] Most significantly, Dr. Kinsman did not believe mother was a child abuser. [Citation.] [¶] Both experts agreed [minor] would not be subject to re-abuse in mother's care—if mother received appropriate services to address her mental health issues."
Both Green and Dr. Kinsman were retained by mother and were not disinterested witnesses. (In re Jordan R. (2012) 205 Cal.App.4th 111, 124, 128-133 [acknowledging an inherent lack of value with expert testimony from interested witnesses].) A trier of fact may entirely reject the testimony of a witness, even if the witness is uncontradicted; that rule applies equally to expert witnesses. (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 632-633.)
Here, the testimonies of Green and Dr. Kinsman were contradicted by Siringoringo's testimony. The social worker recommended FR bypass, not solely due to the nature of minor's injuries and her youth, but because mother was not honest with her therapist and doctor, and promoted falsehoods about how minor was injured. Both Green and Dr. Kinsman acknowledged that mother never admitted causing the injuries to minor. Instead, mother insisted that minor caused the injuries to herself by falling. When a parent, who is responsible for severe physical abuse of his or her child engages in therapy, yet continually promotes falsehoods about the cause of the child's injury, that parent has failed to benefit from services and has demonstrated an inability or unwillingness to reform for safe return of the child. Here, mother participated in services, but has continued to resist making changes through passive resistance. (Karen S. v. Superior Court (1999) 69 Cal.App.4th 1006, 1009-1011 [holding passive resistance is resistance to treatment].) It is well established that continued denial of any abuse, either to oneself or the children, is an appropriate factor to consider when assessing a parent's progress in services and ability to protect his or her children. (In re Tracy Z. (1987) 195 Cal.App.3d 107, 113-114; Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 763-764; In re Jessica B. (1989) 207 Cal.App.3d 504 [father's "failure to admit fault indicates that he is neither cooperating nor availing himself of the services provided"].)
During their testimony, both Dr. Kinsman and Green appeared to discount mother's continued falsehoods when assessing Mother's ability to benefit from treatment. It appeared they believed mother—that minor was injured through mere negligence—despite the fact that the court found minor fell under subdivision (e) of section 300. Dr. Kinsman even stated mother "would probably be wearing orange right now" if she physically abused minor. The record, however, is unclear as to whether law enforcement completed their investigation of the abuse. Moreover, the comment revealed Dr. Kinsman's lack of awareness of the higher burden of guilty beyond a reasonable doubt versus the substantial evidence standard of review in juvenile courts.
Moreover, Dr. Kinsman failed to explain the process he used when implementing the three testing measures, and did not confirm the tests were generally accepted as reliable in the scientific community for any purpose, and especially in assessing whether services would likely prevent the reabuse of minor. In fact, Dr. Kinsman used the Personality Assessment Inventory (PAI) instead of the MMPI, although the latter is the gold standard to assess psychopathology and is generally accepted in the scientific community for that purpose. (People v. Stoll (1989) 49 Cal.3d 1136, 1163-1165.) Dr. Kinsman simply explained that the PAI and MMPI did the "same kind of thing" and the PAI had less questions and was more user friendly.
Dr. Kinsman also admitted that he did not use the CAPI when assessing the likelihood that mother would reabuse minor, as he questioned its reliability and validity. He minimized the value of the CAPI, yet failed to demonstrate the testing measures he chose to use were reliable and valid. His assessment revealed mother's insecure preoccupation with her psychological issues "may limit her maternal effectiveness" yet his testimony failed to reflect on evidence obtained with the PSI-4. The PSI-4 appeared to be the only test to consider mother's parenting capacity and the results of it were not favorable to mother.
Additionally, Dr. Kinsman testified he had the sense mother had been experiencing depression. Suffering from depression does not excuse mother's actions in causing severe injuries to minor. Moreover, Dr. Kinsman improperly correlated a "child abuser" only with individuals who had antisocial personalities, psychosis, severe substance abuse issues, or with a history of violent interactions. The law does not require any of those diagnoses for a section 361.5, subdivision (b)(5) to apply.
As for the therapist, Green was a certified facilitator of a batterers and child abuse prevention program. At the dispositional hearing, no one disputed that minor suffered severe physical abuse while in mother's care and custody; however, mother never attended such a program. Green believed mother's story that minor suffered three fractures due to an accident. Green acknowledged that the focus of the domestic violence group therapy was to identify and hold the client more responsible for their choices, and not blame others yet she had difficulty seeing the value of applying those principles to mother in the context of child abuse. During cross-examination, Dr. Kinsman and Green eventually conceded a parent's acceptance of responsibility for abusing a child is correlated to the parent's treatment progress. Dr. Kinsman's concession was obtained by use of a hypothetical wherein mother physically abused minor, since the doctor refused to accept that mother had done so—despite the court's finding by clear and convincing evidence.
Mother testified that failure to reunify with minor would be detrimental to minor because she was attached to mother. Minor was very young when detained, and although FR bypass was ordered for mother, father was ordered to receive FR services. Also, minor was placed with her maternal grandparents, who have been caring for minor previously while mother worked. There was no evidence presented to indicate any detriment to minor.
In addition to the evidence presented ante, Siringoringo testified. She had a master's degree in social work and had been employed as a social services practitioner with CFS for four years. She had also received on-the-job training with CFS. Siringoringo opined that FR bypass was appropriate for mother. Minor's arm was fractured in three different places and she had a brain bleed—the injuries were all indicative of physical abuse. Minor did not have brittle bone disease, which would have predisposed her to fractures. Minor was detained in March 2017; the disposition hearing was held in July of 2017. Mother continued to promote various versions of the falsehood that minor was injured while crawling on a carpeted floor. Doctors found that account implausible. The court agreed with the doctors and also found mother's stories about minor's injuries "extremely unbelievable."
After hearing the testimony of Dr. Kinsman, Green, Siringoringo and mother the court was able to assess their credibility and determine the weight to give their testimony. Both Dr. Kinsman and Green appeared to believe that mother did not cause the injuries sustained by minor. Mother continued to claim minor suffered her injuries by falling while crawling; mother never admitted causing the severe injuries to minor. Therefore, the court noted: "Mother's story is just so extremely unbelievable. It really is disturbing to me. [I]t is the Mother's burden though it's preponderance of the evidence, it's too close in this case that I can't find that has been met when there is really no acknowledgment on the stand of anything other than Oh, I turned away. [¶] . . . [¶] . . . I need some more acknowledgment than I've heard this in this case so I am gonna deny services to the Mother under 361.5.B5." We agree with the juvenile court that its finding is supported by substantial evidence. Without acknowledging and feeling remorse for the injuries only mother could have caused, it is unlikely that FR services would "prevent reabuse or continued neglect" of minor. Moreover, when a juvenile court bypasses FR services due to a finding that a child suffered "severe physical abuse," the focus of the proceedings turns to the child's need for permanence and stability, and not on family reunification. (In re A.M., supra, 217 Cal.App.4th at pp. 1074-1075.) The legislative presumption is for services not to be provided to the parent. (Ibid.)
Notwithstanding the above, mother argues that the juvenile court erred in denying her FR services. On appeal, however, "[w]e affirm an order denying reunification services if the order is supported by substantial evidence." (In re Harmony B., supra, 125 Cal.App.4th at p. 839.) As provided ante, " '[i]n juvenile cases, as in other areas of the law, the power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the verdict, if possible.' " (Francisco G., supra, 91 Cal.App.4th at p. 600.) Here, by resolving all conflicts in favor of CFS, we find that there is more than substantial evidence to support the juvenile court's finding.
DISPOSITION
The juvenile court's jurisdiction findings and dispositional order are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MILLER
Acting P. J. We concur: CODRINGTON
J. FIELDS
J.