Opinion
E073788
01-07-2020
W.R., Petitioner, v. THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Real Party in Interest.
Clark & Le and Joshua Moody for Petitioner. No appearance for Respondent. Michelle D. Blakemore, County Counsel, Michael A. Markel, Assistant County Counsel for Real Party 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.Nos. J281206 & J281207) OPINION ORIGINAL PROCEEDINGS; petition for extraordinary writ. Christopher B. Marshall, Judge. Petition denied. Clark & Le and Joshua Moody for Petitioner. No appearance for Respondent. Michelle D. Blakemore, County Counsel, Michael A. Markel, Assistant County Counsel for Real Party in Interest.
Petitioner W.R. (father) seeks extraordinary relief pursuant to California Rules of Court, rule 8.452, from a juvenile court's order denying reunification services and setting a hearing under Welfare and Institutions Code section 366.26 with respect to his two sons, D.R.1. (born January 2018) and D.R.2. (born December 2018). For the reasons set forth below, we deny father's writ petition.
All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
FACTUAL AND PROCEDURAL HISTORY
On May 28, 2019, a social worker with San Bernardino County Children and Family Services (CFS) responded to an immediate response referral alleging physical abuse by C.D. (mother) to D.R.2. At that time, D.R.2. was five months old. According to the reporting party, D.R.2. was taken to a hospital in Victor Valley due to respiratory problems. When a nurse examined D.R.2., "he had multiple bruises to his face, scratches all over his body, and had multiple cut marks on him." When the nurse asked mother about her findings, mother claimed that D.R.2. "had an allergic reaction on his face and the mother had placed hydrocodone on a cloth and wiped his face to calm the rash." Mother explained that because D.R.2. was born premature, he had respiratory problems and she had "to give him CPR often." Mother also reported that D.R.2. " 'is too much to handle and too much work.' "
When the social worker arrived at the Loma Linda University Medical Center, she saw D.R.2. and his nurse. The nurse informed the social worker that "[D.R.2.] had rib fractures, fluid in his stomach, and he was very tiny for his age." D.R.2. also had a swollen abdomen and "was covered in marks and bruises." She reported that D.R.2. had "bruises on the left side [of] his forehead about the size of a quarter, two bruises on his left cheek each the size of a nickel, a cut lip, pink and white marks on his chest that appear to be the size of adult finger nails, a scratch across his stomach, blood on his toes, and scabs under his feet." The pediatric emergency room doctor, Dr. Urdea, relayed his concern about D.R.2.'s health. "He mentioned [D.R.2.] was very low in weight and size, even if he was premature. He was concerned [D.R.2.] may be malnourished. It also appeared to [Dr. Urdea] that the rib fractures [were] not from the mother performing CPR." Dr. Urdea ordered more testing and admitted D.R.2. to the hospital's intensive care unit for children.
D.R.2. was first taken to Victor Valley Global Medical Center, and then airlifted to Loma Linda University Medical Center.
The next day, May 29, 2018, Dr. Daley stated that after multiple examinations, they discovered that D.R.2. had suffered rib fractures, and that both tibias and femurs were fractured. Moreover, there was a cranial fracture and D.R.2.'s ankle bones were broken. According to the doctor, some of the fractures appeared to be fresh and some were in the process of healing.
Later in the same day, the social worker spoke with Detectives Arias and Kelly with the "Crimes Against Children unit." Detective Arias stated that mother admitted causing the injuries to D.R.2. Mother told the detective that "she had no emotional connection with [D.R.2.] and did not want him." Mother claimed that the fractures were caused by pressing on D.R.2.'s chest, "as if doing CPR." Mother "also mentioned she would push on D.R.2.'s stomach to force him to defecate. The mother would grab [D.R.2.]'s legs and pull and push them." Mother also "described tying bandanas and bibs around [D.R.2.]'s neck tightly and letting them sit there even after being soaked." She then would force pacifiers into [D.R.2.]'s mouth when he cried. "She expressed she was constantly irritated by [D.R.2.]'s crying and no longer wanted him." She told the detective she contemplated suicide because of her distress. The detective informed the social worker that mother was currently three months pregnant.
According to the maternal grandmother (MGM), she went to mother's apartment to pick up mother and the children to attend a graduation. MGM noticed that D.R.2. was breathing oddly. Mother claimed that it was due to his respiratory problems. MGM, however, thought that D.R.2. needed medical attention; she drove them to the emergency room. Later, mother was arrested and D.R.2. was airlifted to Loma Linda.
On May 31, 2019, CFS filed section 300 petitions on behalf of the children. At the time the petition was filed, D.R.2. was five months old and D.R.1. was 16 months old. The petition filed on behalf of D.R.2. alleged that he came within the jurisdiction of the court under section 300, subdivisions (a), (e), and (g). The petition filed on behalf of D.R.1. alleged that he came under the jurisdiction of the court under section 300, subdivisions (a), (g), and (j). At the detention hearing on June 8, 2019, father objected for the record and the court made the necessary and appropriate findings and orders. The court set the jurisdiction/disposition hearing date for June 24, 2019.
On June 19, 2019, CFS filed a jurisdiction/disposition report. Regarding father, the social worker included allegations under section 300, subdivisions (a), (e), and (j), regarding D.R.1., and allegations under section 300, subdivisions (a), (e), and (g), regarding D.R.2. In sum, CFS alleged that while D.R.2. was in father's care and custody, he received nonaccidental injuries, as summarized ante. As a result of those injuries, the children were at substantial risk of harm.
The report included a forensic medical examination, which summarized the forensic pediatrician's determination that D.R.2.'s injuries were found "to be non-accidental trauma consistent with child abuse." D.R.2. suffered the following injuries: (1) "bruising to his face, back, chest, and lower extremities"' (2) "torn frenulum"; (3) "blisters on his toes and sole of his left foot"; (4) "scars to his jawline and neck"; (5) "an open sore on his neck which appeared to be a friction burn or strangulation"; (6) "collapsing areas of the lungs"; (7) "right tibia fracture"; (8) "left femur fracture"; (9) "lacerated spleen"; (10) "liver injury with elevated enzymes"; (11) "injury to his abdomen with swelling and free fluid"; (12) "multiple broken ribs in different stages of healing"; and (13) a "skull fracture."
At the June 24, 2019, hearing, father's counsel set the matter contested and requested a bifurcated trial. The juvenile court set a pretrial settlement conference on July 31; jurisdiction trial on August 12; and a disposition trial on August 19.
In the interim, mother admitted to physically abusing D.R.2. Father, however, claimed that he had no idea that D.R.2. was being abused. Father worked 10-hour shifts at Amazon, Saturday through Tuesday. Father indicated that he helped bathe and change the children. When mother needed him, he "handled the boys." Father denied seeing any indication that D.R.2. was being abused: "The undersigned asked the father if he saw any bruises or unusual swelling on [D.R.2.]'s legs. The father stated, 'His legs were never swollen and he used to have functional movement always. I didn't see any physical damage done to him other than his sore in his neck. . . . I never saw anything like oh my God, this would be a problem."
On July 30, 2019, the social worker filed an additional information report. In the report, the social worker noted: "Dr. Daly [the forensic pediatrician] stated that it was difficult to date the age of the fractures and bruises. However, if the fracture is in the process of healing, the fracture could be as old as seven to ten days. Due to the fractures being at various stages of healing, the injuries happened at different times and did not occur during a single incident. Dr. Daly stated that the open wounds on [D.R.2.]'s neck are 'not consistent with [D.R.2.] scratching himself and are concerning for gouge marks.' [D.R.2.] would have displayed trouble breathing due to his broken ribs and was covered in bruises throughout his body, his neck, feet, mouth, and other areas of his body. Dr. Daly stated, 'It would be odd if he (the father) did not notice any of that.' "
The report summarized the social worker's interview with father on July 26, 2019. Father stated that he was home the three days he was not at work. When he came home from work, mother, D.R.2. and father would be on the bed and watched RV. Father stated, " 'I looked at his ribs and his ribs are fine and I looked at his legs and they are moving.' " When asked about the bruising, father stated he believed that D.R.1. caused the bruising. Father also stated that he did not see the injury to D.R.2.'s mouth. When father was interviewed previously, he also stated that he had not seen any bruising and that his attorney told him to "cut all contact" with mother.
At the jurisdiction trial on September 25, 2019, father did not testify or present any evidence. Instead, father's counsel argued the merits of the allegations. Father's counsel stated: "Oh behalf of Father, we object to the E-5 allegation—or all the allegations. But, particularly the E-5 allegation is what I want to address. [¶] Looking at what is in evidence, we know who did this terrible crime, which is what it is. [¶] Mother's statements are clear. She did—she abused [D.R.2.] while the father was at work. She waited for him to leave. She never implicated him in any way. In the police report, Father is listed as a witness. In fact, he's cooperating with law enforcement. He has not had any contact with Mother since he has discovered what happened, which is indicative of somebody who did not do what he is being accused of doing as far as the E-5 is concerned." Counsel went on to emphasize that father worked hard, working 12 to 13 hours a day, and that the injuries to D.R.2. occurred while he was in mother's custody. "And she specifically waited until he would go to work."
After hearing argument from the parties, the juvenile court found the allegation, as amended, true, regarding D.R.2.:
"E-5: while in the care and custody of the father, [D.R.2.] received non-accidental injuries including, but not limited to, a fractured skull, fractured ribs, and fractured legs, inflicted by the mother and the father knew or reasonably should have known of the severe physical abuse, placing [D.R.2.] at substantial risk of abuse and/or neglect."
Regarding D.R.1.'s petition, the juvenile court amended the J-5 allegation to mirror D.R.2.'s E-5 allegation. The court then found the J-5 allegation true as to father. The court then continued the matter to 1:30 that afternoon for the contested disposition hearing.
At the afternoon hearing, the social worker testified. She recommended that father be denied reunification services because he knew or should have known that D.R.2.was being physically abused, and failed to intervene to protect his son. The social worker stated: "[W]ell, he's living in the home. So he's living with the mother and that is his child. And he was, also, taking care of [D.R.2.] So, obviously, those—he was looking at [D.R.2.] every day. . . . [¶] . . . [¶] Because, again, the father was in the home living with the mother and [D.R.2.] He saw [D.R.2.] every day. He played with [D.R.2.], interacted with [D.R.2.] He changed the diapers. He fed [D.R.2.] . . . [¶] . . . [¶] [H]e was there. So he should have known. You know, he was there. He was looking at [D.R.2.]."
A psychologist, Dr. Kristina Roberts, testified on behalf of father. She opined that father could benefit from services, and reunification services would prevent the reabuse or neglect of father's children. Dr. Roberts testified for two days.
After the parties rested, the juvenile court stated that it had read and considered the reports in this matter, and "listened carefully to Dr. Roberts'[s] testimony." The court then opined that father "knew or reasonably should have known that [D.R.2.] was being so severely physically abused." The court also found that "there has been a failure to establish on the part of the father by competent expert testimony that this reabuse could be prevented in the future, or that continued neglect of [D.R.2.] could be prevented in the future." The court then found no evidence of a bond between D.R.2. and father: "[W]ith respect to the point of being closely attached to the parent, Court does not have evidence of that." The court noted that D.R.2. was detained when he was only five months old and that it had "no evidence that the father is closely and positively attached to [D.R.2.]. He visits regularly. The visits go well. That does not establish a close and positive attachment, and it does not establish that there is a bond for this child. . . . And so in terms of a significant bond or significant information about an attachment, the Court has no credible evidence on that point."
As to Dr. Roberts's report and testimony, the court noted: "[S]he provides the opinion that services are likely to prevent reabuse or continued neglect. She appears to base those on two factors, and that is that she indicates that Father could learn to be protective, and that the cooperativeness of [father] is essential with respect to concluding that he would be able to benefit from services. As was pointed out by Minors' counsel and [county counsel], the Court finds that Father's pattern of behavior of ignoring the condition and injuries to [D.R.2.] over a period of months is not addressed with respect to the services that would be likely to prevent this, or that services would succeed. And the reason the Court says that is that Dr. Roberts concludes that from [father]'s profile he has the insight needed to engage in services and learn from them."
The court then went on to state that father "had the ability to learn before with all the months that went by when these injuries were occurring, severe, horrible injuries occurring to [D.R.2.]" Although father was present and lived with D.R.2.—interacting with him and changing his diaper—Dr. Roberts failed to provide any evidence on "insight as to how Father allowed this to happen and what should be done to prevent this reabuse from occurring." The court then noted that "even Dr. Roberts reported that [father] told her, 'I have no idea how this,' quote, 'could have happened.' End of quotes. 'And the boys,' referring to both [children], 'seemed fine.' So we have nothing that gives us insight with the father, with his thinking with what happened, what should have happened. That any amount of services would identify how services could prevent reabuse."
Based on the above, the juvenile court denied father reunification services as to D.R.2. under section 361.5, subdivision (b)(5), and to D.R.1. under section 361.5, subdivision (b)(7).
On October 22, 2019, father filed his notice of intent to file writ petition and petition for extraordinary writ.
Mother filed a notice of intent to file writ petition on October 22, 2019; on November 23, 2019, mother's counsel filed a letter indicating she had "reviewed the record on appeal and found no legal or factual issues upon which to base an extraordinary writ pursuant to California Rules of Court Rule 8.450(f)." Mother's appeal was dismissed by order on November 25, 2019.
DISCUSSION
In his writ, father contends that substantial evidence does not support the application of section 361.5, subdivision (b)(5).
A. JURISDICTIONAL FINDINGS UNDER SECTION 300, SUBDIVISION (E)
Although father does not explicitly challenge the court's section 300, subdivision (e), finding, he argues that he "is a non-offending parent" because the court found that "mother is the person responsible for inflicting these injuries on the infant minor." We hereby address father's argument that he is a "non-offending" parent.
"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.' " (In re Christopher C. (2010) 182 Cal.App.4th 73, 84.) "We do not reweigh the evidence, nor do we consider matters of credibility." (In re E.H. (2003) 108 Cal.App.4th 659, 669.)
A child can come under the jurisdiction of the juvenile court under subdivision (e), where: "[D.R.2.] 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 [D.R.2.]. For the purposes of this subdivision, 'severe physical abuse' means . . . more than one act of physical abuse, each of which causes bleeding, deep bruising, significant external or internal swelling, [or] bone fracture."
The parent need not have actual or constructive knowledge that D.R.2. in fact suffered severe physical abuse in order to fall within the statutory definition. (In re E.H., supra, 108 Cal.App.4th at pp. 669-670.) Here, father states that he "should receive reunification services because he is a non-offending parent." (Italics added.) However, "[s]ection 300, subdivision (e), and subdivision (b)(5) of section 361.5, . . . do not [even] require the 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, italics added.)
In this case, the medical evidence demonstrates that D.R.2 suffered severe physical abuse, as defined in the statute. Moreover, the record demonstrates severe physical abuse even by the more stringent "clear and convincing evidence" standard that section 361.5, subdivision (b)(5), requires to use section 300, subdivision (e), as a basis to deny reunification services. Here, as provided in detail ante, the nonaccidental injuries to D.R.2., who was only five months old when removed, were life-threatening and severe. Mother admitted to abusing D.R.2., and father was living with the two children and mother during this time. Father does not dispute this finding.
Nonetheless, father argues the record does not contain clear and convincing evidence that he knew or should have known that D.R.2. had sustained injuries since mother caused the injuries. This argument assumes the court believed that father never noticed the serious injuries that occurred to D.R.2. on different occasions. However, our review of the jurisdictional hearing shows that the court simply did not find father's argument that he never noticed that D.R.2. was injured, convincing. As the trier of fact, the trial court had authority to determine questions of credibility. (In re Cole Y. (2015) 233 Cal.App.4th 1444, 1452.) The court had good reason to doubt father's credibility. In this case, the juvenile court found that D.R.2. was brought within the court's jurisdiction under section 300, subdivision (e) (severe physical abuse), because of the conduct of mother. Father lived with mother and their two sons. Even though father worked long hours, father interacted with D.R.2. and spent time with him and helped change D.R.2.'s diapers. Despite the horrific injuries to D.R.2., father claims that he had no knowledge that D.R.2. was being abused. The court did not believe father. The court stated: "But let's start at the beginning here. The Court will find that there is certainly no question that there was severe physical harm here. No one has contended differently. By way of what [D.R.2.] was subjected to, he had multiple areas of broken bones. He had multiple bilateral rib fractures at various stages of healing. He had fractures of both legs femurs, bilateral tibial fractures of his legs. He had biparietal . . . skull fractures, He had multiple areas over his body from, essentially, head to toe of scars, bruising, lacerations and abrasions.
"[D.R.2.] also had damage in his mouth, to his frenulum . . .; his upper and lower lips were torn away from his gum line. The significance of this is how horrific these injuries were to [D.R.2.]. And secondly, that there was more than one act of physical abuse. This is something that occurred over time, given the different stages of healing that were noted on the matter—strike that. That were noted with respect to [D.R.2.].
"The Court then turns to Father's knowledge, and [father] reported that he would change [D.R.2.'s] diapers; that he would have [D.R.2.] on the bed with him when they were watching television when he was home. That he worked Saturday to Tuesday, but is otherwise available and caring for [D.R.2.] as necessary. The suffering of such severe physical abuse is under really res ipsa loquitur, . . . which means the thing really spoke for itself. The father reasonably should have known that these injuries were being inflicted over a period of time on [D.R.2.]."
Therefore, there is clear and convincing evidence, both direct and circumstantial, that mother abused D.R.2., and father should have known that someone, presumably the other parent, was abusing him. For these reasons, substantial evidence supported the juvenile court's finding of jurisdiction under subdivision (e), by clear and convincing evidence.
B. THE COURT PROPERLY APPLIED FAMILY REUNIFICATION BYPASS TO FATHER UNDER SECTION 361.5, SUBDIVISION (B)(5), AND (B)(7)
1. SECTION 361.5, SUBDIVISION (B)(5), AND SECTION 361 .5, SUBDIVISION (B)(7)
Father contends that the juvenile court erred when it denied him reunification services. We disagree.
"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.) "On review of the sufficiency of the evidence, we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order." (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) Section 361.5, subdivision (a), generally mandates that reunification services are to be provided whenever a child is removed from the parent's custody. However, subdivision (b), of section 361.5 sets forth the circumstances under which reunification services may be bypassed. "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.) "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 (20017) 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., supra, 63 Cal.App.4th 478; see § 361.5, subd. (a); In re William B. (2008) 163 Cal.App.4th 1220, 1227.)
Father argues that the juvenile court erred in denying him services under section 361.5, subdivision (c)(3), which provides: "[T]he 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." However, the existence of jurisdiction under section 300, subdivision (e), is enough by itself to defeat father's challenges to the disposition. This is because, once the court makes the section 300, subdivision (e), finding by clear and convincing evidence, "reunification services need not be provided." (§ 361.5, subd. (b)(5).) Section 361.5, subdivision (c)(3), is an additional hurdle for a parent to overcome at disposition and an additional restriction on the court, should the court be inclined to consider granting reunification services despite the bypass provisions of subdivision (b)(5). (See In re A.M. (2013) 217 Cal.App.4th 1067, 1076.) It is also a ground for the child protective agency to challenge in this court the granting of reunification services. (See In re Z.G. (2016) 5 Cal.App.5th 705; In re G.L. (2014) 222 Cal.App.4th 1153.) Section 361.5, subdivision (c)(3), is not a ground for challenging in this court the denial of reunification services under subdivision (b)(5). This is because, even if we were to find that the court abused its discretion in failing to find under section 361.5, subdivision (c)(3), either that reunification services are likely to prevent reabuse or detriment because the child is closely and positively attached to the parents, the plain language of subdivision (b)(5), still provides that "reunification services need not be provided." The court did not err when it denied reunification services under section 361.5, subdivision (b)(5).
Even if we were to consider section 361.5, subdivision (c)(3), the standard is not whether father would have benefitted from services, but whether services would likely prevent reabuse or that failure to try to reunify would be detrimental to the child. (§ 361.5, subd. (c).) In this case, there was no evidence affirmatively showing that services would likely prevent reabuse.
Here, father's expert witness, Dr. Roberts, submitted a report and testified at the hearing. As summarized in detail ante, Dr. Roberts opined that father would benefit from reunification services. The court, however, found that father failed to prove that services would likely prevent reabuse. The court stated: "Turning to Dr. Roberts's report. That she provides the opinion that services are likely to prevent reabuse or continued neglect. She appears to base those on two factors, and that is that she indicates that Father could learn to be protective, and that the cooperativeness of [father] is essential with respect to concluding that he would be able to benefit from services. As was pointed out by Minors' counsel and [county counsel], the Court finds that Father's pattern of behavior of ignoring the condition and injuries to [D.R.2.] over a period of months is not addressed with respect to the services that would be likely to prevent this, or that services would succeed. And the reason the Court says that is that Dr. Roberts concludes that from [father]'s profile he has the insight needed to engage in services and learn from them.
"Now, the difficulty with that argument is that [father] had the ability to learn before with all the months that went by when these injuries were occurring, severe, horrible injuries occurring to [D.R.2.] And the evidence is certainly clear that the father was present on an ongoing basis, did observe [D.R.2.], interacted with [D.R.2.], changed [D.R.2.]'s diaper, and observed [D.R.2.]. There is no evidence that the Court's been presented by Dr. Roberts that what insight as to how Father allowed this to happen and what should be done to prevent this reabuse from occurring. As [county counsel] outlines, the services that Dr. Roberts outlines provides everything for [father], that this will help [father]. His individual counseling will help [father] deal with frustration and circumstances of his not having [D.R.2.] with him, and his need for medication, but none of this is tied into how does this prevent reabuse or continued neglect of [D.R.2.]
"So the Court also notes that even Dr. Roberts reported [father] told her, 'I have no idea how this,' quote, 'could have happened.' End quotes. 'And the boys,' . . . 'seemed fine.' So we have nothing that gives us insight with the father, with his thinking with what happened, what should have happened. That any amount of service would identify how services could prevent reabuse.
"So the Court finds that Dr. Roberts'[s] report is compromised. Her credibility is compromised, and that the report and Dr. Roberts'[s] testimony . . . causes this Court to conclude that there isn't anything that's been outlined that is likely to prevent reabuse or general neglect.
"So the Court further notes that Dr. Roberts raises issues that may well impact on the ability to prevent reabuse, and by that I am referring to what Dr. Roberts testified as to what—and as to what is in her report; that [father's] profile indicates he has situational difficulty in psychological functioning; that [father] has active mental health symptoms of depression and anxiety; that the CAPI, . . . indicating the responses are not valid, and that is because the concerns about being evaluated negatively provided him being inconsistent in his responding, as well as the responses indicated confusion on the father's part.
"The Court notes that additionally that the CAPI was invalid; that the CAPI had a good purpose, and that is to identify attitudes—measure, rather, personality factors that are associated with various types of abuse. The test was not able to be valid. So the Court has not received, in competent expert testimony, that services to father would prevent reabuse." (Italics added.)
Moreover, not only did the court properly find that reunification services may not prevent reabuse, there was also insufficient evidence before the court that D.R.2. was closely and positively attached to father. Father points to evidence that he had been visiting with the children, playing with them, and was very attentive during the visits. However, because D.R.2. was detained at an early age, "there could be no legitimate claim [he] was closely and positively attached to [his] father." (In re Rebekah R. (1994) 27 Cal.App.4th 1638, 1653.) The failure to order reunification could therefore not have been detrimental to him under the second test of section 361.5, subdivision (c). (Rebekah R., at p. 1653.) The court, when discussing the issue of attachment, stated:
"Now, I will take it the next step because Father did have an expert who did testify with respect to what she considered to be the ability for the father to receive services to prevent reabuse or continued neglect of [D.R.2.], or that failure to try reunification would be detrimental to [D.R.2.] because [D.R.2.] is closely and positively attached to the parent. As to the last point, with respect to the point of being closely attached to the parent, Court does not have evidence of that. [D.R.2.] was born [in December of 2018]. [D.R.2.] was detained May 29th, 2019, and the Court notes that the Court has no real evidence here that father is—strike that.
"The Court has no evidence that the father is closely and positively attached to [D.R.2.]. He visits regularly. The visits go well. That does not establish a close and positive attachment, and it does not establish that here is a bond for [D.R.2.]. The fact of the matter is that we're now approaching a time period that is almost equal from May 29th to the present, September 30th, that this has not been with the father and has been detained with the father, and the father only had [D.R.2.] in his care, along with the mother, for almost six months. And so in terms of a significant bond or significant information about an attachment, the Court has no credible evidence on that point."
In sum, there was no competent evidence that reunification services were likely to prevent reabuse or that failure to try reunification would be detrimental to D.R.2. The juvenile court properly considered the evidence before the court and reasonably concluded that the evidence was unsatisfactory to support services for father given the multiplicity of incidents of abuse to D.R.2. as reflected by the number of fractures in different stages of healing. As such, there was substantial evidence to support the court's denial of reunification services under section 361.5, subdivision (b)(5) as to D.R.2. Hence, the court also properly denied reunification services under section 361.5, subdivision (b)(7) as to D.R.1.
Section 361.5, subdivision (b)(7) states that reunification services need not be provided when the court finds "[t]hat the parent is not receiving reunification services for a sibling or half sibling of the child pursuant to paragraph (3), (5), or (6)."
DISPOSITION
The writ petition is denied.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: RAMIREZ
P. J. RAPHAEL
J.