Filed 5/14/13 G.M. v. Super. Ct. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
G.M. et. al.,
Petitioners, E058010
v. (Super.Ct.No. J246536)
THE SUPERIOR COURT OF OPINION SAN BERNARDINO COUNTY,
Respondent;
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES,
Real Party in Interest.
ORIGINAL PROCEEDINGS; petitions for extraordinary writ. Gregory S. Tavill,
Judge. Petitions denied.
Gloria Gebbie, for Petitioner G.M.
Terrence F. Riley, for Petitioner N.C.
No appearance for Respondent.
1 Jean-Rene Basle, County Counsel, and Kristina M. Robb, Deputy County
Counsel, for Real Party in Interest.
Petitioners G.M. (father) and N.C. (mother) filed separate petitions for
extraordinary writ pursuant to California Rules of Court, rule 8.452, challenging the
juvenile court‟s order denying reunification services as to their son, E.M. (the child), and
setting a Welfare and Institutions Code1 section 366.26 hearing. Father and mother (the
parents) argue that there was insufficient evidence to support a finding that they abused
the child, and that the juvenile court erred in denying them reunification services under
section 361.5, subdivisions (b)(5). We deny the writ petitions.
FACTUAL AND PROCEDURAL BACKGROUND
On October 25, 2012, the San Bernardino County Children and Family Services
(CFS) filed a section 300 petition on behalf of the child, who was one month old at the
time. The petition alleged that the child came within the provisions of section 300,
subdivisions (a) (serious physical harm), (b) (failure to protect), and (e) (serious physical
abuse). Specifically, the petition alleged that the child sustained multiple fractures while
in the care and custody of the parents.2 The court detained the child and maintained him
with the paternal grandmother.
1 All further statutory references will be to the Welfare and Institutions Code, unless otherwise noted.
2 Father was mother‟s boyfriend.
2 Jurisdiction
The social worker filed a jurisdiction report on November 14, 2012, and
recommended that the court sustain the petition, and that no reunification services be
provided to the parents. The social worker reported that on October 16, 2012, the parents
brought the child to Pomona Valley Medical Center (the medical center) for a leg injury.
Medical personnel determined that the child had sustained a spiral fracture to his left
femur. The social worker interviewed the parents at the hospital, and they could not
provide an explanation for the injury. Mother had noticed that morning that the child
would not stop crying, and that he was moving his left leg less than his right. She denied
that he had fallen, and she stated that she and father were the only people who cared for
the child. Father denied having any knowledge of how the child sustained the injury. He
only stated that he had rolled onto the child in the early hours of October 15, 2012, but
did not think the child was injured, since the child just cried a little and went back to
sleep.
The social worker spoke with the emergency room doctor at the medical center,
and he said that the father‟s explanation of rolling onto the child was unlikely to have
caused the fracture to the femur. The doctor suspected abuse. X-rays taken at the
hospital were later reviewed by Dr. Mark Massi at the Children‟s Assessment Center.
Dr. Massi said the child‟s leg fracture would not have been caused by father rolling onto
the child on a soft mattress. Dr. Massi also reported that there was likely a second
fracture to the left humerus (arm), which appeared to be older than the leg fracture, since
it was in the healing stages. The medical center later confirmed the arm fracture.
3 The social worker reported that the child was then transferred to Loma Linda
University Children‟s Hospital (Loma Linda), where a full skeletal survey was done. In
addition to the femur fracture, there was a fracture to the right tibia bone just below the
knee, and there was suspicion of a left tibia (shin bone) fracture near the ankle.
On October 19, 2012, Dr. Massi performed a suspected child abuse and neglect
examination. He concluded that the child sustained a femur fracture and probable tibia
fracture, and that these fractures were “most likely inflicted and constitute[d] evidence of
physical abuse.”
On October 30, 2012, the parents told the social worker that they were surprised
that multiple fractures were found. They maintained that they did not know how their
son sustained the fractures. Mother said the only way he could possibly have sustained
them was by father accidentally rolling onto the child, or the child being injured during
diaper changes. Father reported that the child was possibly injured while being put in his
car seat. At both hospitals, the parents were told that the reasons they gave for the
injuries were not plausible causes for the fractures.
On October 31, 2012, November 1, 2012, and November 2, 2012, the social
worker asked the parents separately and together about the child‟s injuries. They
maintained that they had no idea how the child sustained multiple fractures. Mother said
that she and father lived with her parents (the maternal grandparents). Mother stated that
she was the primary caregiver, as she cared for the child everyday and only left him alone
with the maternal grandparents on Monday nights so she could attend college classes.
Father reported that he worked full-time, and that mother was always with the child.
4 Father cared for the child when he returned from work. Both parents stated that they did
not abuse their son, and they did not believe that anyone else could have caused harm to
the child.
The social worker interviewed the maternal grandparents. They said they did not
know how the child sustained the injuries and offered the same explanations as the
parents did. The paternal grandparents were interviewed and also said they did not know
anything.
The social worker further reported that on November 2, 2012, Dr. Massi called to
inform her that a second bone survey was performed on the child at Loma Linda the day
before. This bone survey showed that the child had a fracture of the right tibia, an
oblique (not spiral) fracture of the femur, an oblique fracture of the left humerus, and a
left posterior sixth rib fracture. According to medical personnel at both Loma Linda and
the medical center, the injuries that the child sustained were nonaccidental and were
suspected to be child abuse. The parents were informed of the results of the second bone
survey, and asked again if they knew how their son sustained the injuries. They said they
did not know, and that they would never do anything to intentionally harm their son.
The social worker spoke with Dr. Massi again on November 8, 2012, and he
confirmed that the child had four fractures, including the left and right tibia, an oblique
left femur, and a rib. Dr. Massi stated that the injuries were nonaccidental and were
consistent with child abuse, and that they were caused by an excessive amount of force.
The social worker explained to the parents that they were responsible for the
child‟s injuries, either by them personally injuring him or by failing to protect him. They
5 both stated that if they caused harm to the child, it was accidental and not out of malice.
They said they were willing to do whatever was necessary to reunify with the child. The
social worker opined that the parents could not benefit from services if neither of them
could acknowledge or take responsibility for the child‟s injuries.
At the jurisdiction hearing on November 15, 2012, the parents set the matter
contested, and the hearing was continued to January 3, 2013.
Subsequently, two psychological evaluations were submitted to the court. The
first concerned an evaluation of father by Dr. John Kinsman. Father responded
defensively throughout the evaluation, but he showed no signs of psychological or
cognitive impairment. Dr. Kinsman opined that father was “likely to manifest
narcissistic-like tendencies,” and that he could become preoccupied with his own needs at
the expense of others. Dr. Kinsman concluded that father could benefit from “services
designed to improve his functional level, interpersonal effectiveness, and parenting
ability.” The second report was submitted by Dr. Robert Suiter regarding mother.
Mother was 19 years old, worked part-time, and was going to college. Dr. Suiter stated
that there was no indication of psychopathology or any significant personality traits.
Mother stated that her pregnancy was planned, and that she and father were happy to
have a child. Dr. Suiter concluded that the results of his testing were not consistent with
an individual who would be predisposed to abusing her child. Rather, the results were
consistent with an individual who was emotionally healthy, satisfied with herself and her
situation, and unlikely to become unduly angry or hostile.
6 A contested jurisdictional hearing was held on January 31, 2013. Dr. Kinsman
testified that after conducting father‟s evaluation, his conclusion was that father “could
probably benefit from reunification services.” However, Dr. Kinsman said he could not
give a definitive answer on whether the provision of services would be likely to prevent
reoffense.
Father also testified at the hearing and said that whenever he was with the child at
home, mother was in the house. When asked about rolling over the child in bed, father
said that that was just a possibility; however, he did not know for a fact that he had rolled
over the child. Father denied ever telling the social worker that the child could have
gotten hurt in a car seat. He said there were two other possibilities as to when the child
could have been injured, including when he would sit with the child and bounce him up
and down, and when he would change the child‟s diaper. However, father testified that
he never bounced the child too roughly, and that he never inadvertently bent the child‟s
leg back while changing his diaper. Father further testified that he never asked mother or
the maternal grandparents whether they hurt the child. Father testified that he was aware
that the medical personnel at Loma Linda and the medical center indicated that the
child‟s fractures were sustained by physical abuse. Nonetheless, he believed that the
fractures were all accidental. He believed they were accidental because “none of us did
anything on purpose to harm that child.”
Mother also testified at the hearing and confirmed that she was the primary
caregiver. She testified that on October 15, 2012, father changed the child‟s diaper at
around noon and noticed that the child‟s leg was not moving. She was present and said
7 she did not know why it would not be moving. Mother also noticed that the child began
crying in a high-pitched scream around noon, and that he sounded like he was in pain.
They continued to observe the child and took him to the hospital the next day. Mother
testified that on the morning father noticed the leg injury, she and father were taking care
of the child, and that the day before that, she and her mother took care of the child.
However, mother never left the child alone with anyone during that time. Mother
testified that she did not physically harm the child, and she did not believe that anyone
physically abused the child. She had no explanation for how the child sustained the
injuries. She thought that it was possible that the doctors at the medical center and Loma
Linda may have caused some of the fractures.
Dr. Suiter testified about his psychological evaluation of mother. He opined that,
if the court found that mother abused the child, reunification services would be likely to
prevent reabuse. He explained that services would teach her to improve her parenting
skills which would, in turn, reduce her frustration and angry responses with children.
Then, when the court asked whether he believed mother could benefit from services
without ever having acknowledged that the child was abused, Dr. Suiter said she could
receive some benefit, but he could not say that she would never reoffend. He explained
that the benefit of services would be in reducing the risk.
After hearing all the testimonies and considering the evidence, the court noted that
both parents essentially gave “the exact same answer that nobody harmed the child on
purpose.” The court said it was waiting to hear their explanation of how they harmed the
child on accident, but that explanation never came. The court concluded the following:
8 “. . . [T]here really is not a lot of controversy in the evidence. It‟s clear to the
Court that the child was abused by the parents on the morning of October the 15th. [¶]
And I say, „by the parents,‟ because it‟s clear to the Court that they were both present.
And while it‟s in a sense problematic that neither one of them is willing to tell the truth
about what transpired, it really leads to the one conclusion that they both did it, and they
both participated, and they were both present. That‟s the only conclusion that I can come
to based on the evidence. [¶] And . . . the medical evidence is clear, about the broken
femur, in that that has to be the product of abuse. [¶] And I‟m trying to reconcile why,
like I said, both parents are saying the same thing and sticking together united. And the
only thing I can conclude is they were either doing it together or the other one was
present, or maybe it was—and I think this is likely, that there maybe was more than one
incident because of the multiple breaks.” The court found father to be the presumed
father of the child. It then found that the child came within section 300, subdivisions (a),
(b), and (e), and adjudged him a dependent of the court. The court denied reunification
services since the child had been brought within the jurisdiction of the court under section
300, subdivision (e). The court set a section 366.26 hearing for June 5, 2013.
ANALYSIS
I. The Court Properly Found That the Child Came Within Section 300, Subdivision (e)
Father argues that there was no substantial evidence to support the court‟s finding
that he abused the child. Mother begins her argument by asserting that “[i]t is not
disputed that the court correctly determined that [the child] fell within the provision of”
section 300, subdivision (e). However, we note that she ends her argument by stating that
9 there was insufficient evidence to prove that she injured the child. We conclude that the
court properly found that the child came within section 300, subdivision (e).
A. Standard of Review
Section 300, subdivision (e), provides that the court has jurisdiction where “[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.” To establish jurisdiction under this
subdivision, CFS must show that: “(1) there is a minor under the age of five; (2) who has
suffered severe physical abuse as defined in section 300, subdivision (e); (3) by a parent
or any person known to the parent if the parent knew or reasonably should have known
that the person was physically abusing the minor. [Citation.]” (In re E.H. (2003) 108
Cal.App.4th 659, 668 (E.H.).)
In evaluating whether a child comes under section 300, subdivision (e), “we use
the substantial evidence standard of review, where we determine whether evidence that is
of reasonable, credible and solid value supports the dependency court‟s findings. We do
not reweigh the evidence, nor do we consider matters of credibility. [Citation.]” (E.H.,
supra, 108 Cal.App.4th at p. 669.)
B. The Court Made a Proper Finding Under Section 300, Subdivision (e)
Father asserts that the court “relied heavily if not completely on the denial of
culpability by the parents to sustain the allegation” under section 300, subdivision (e), as
to both of them. He contends that such denial was insufficient evidence to prove that he
injured the child.
10 The case of E.H., supra, 108 Cal.App.4th 659 is instructive. In that case, the
minor lived with her mother and her mother‟s family. (Id. at p. 662.) The minor was
hospitalized with multiple rib fractures, fractures of the wrist, femur, feet, hands, and hip.
The fractures were at different stages of healing. (Id. at p. 661.) Neither the mother nor
the father, who did not live with them, had any explanation for how the minor was
injured. (Id. at p. 662.) Only the parents and mother‟s family took care of the minor.
(Id. at p. 665.) Medical personnel concluded that the minor‟s injuries were the result of
child abuse. (Id. at p. 663.) The lower court dismissed an allegation made under section
300, subdivision (e) because there was no identified perpetrator. (Id. at p. 667.)
However, the appellate court reversed, noting that the Department essentially employed a
“res ipsa loquitur” type of argument to support a jurisdictional finding under section 300,
subdivision (e). (Id. at p. 669.) The appellate court noted that there was severe physical
abuse (the minor‟s broken bones) and that the minor was never out of her parents‟
custody. (Id. at pp. 669-670.) The court found that “[t]he only reasonable conclusion to
be drawn from the facts of the instant case was that someone in the home was causing
[the minor‟s] injuries, and that [the parents] reasonably should have known (since they
lived there) the identity of the perpetrator.” (Id. at p. 670.) The court specifically stated
that “where there is no identifiable perpetrator, only a cast of suspects, jurisdiction under
subdivision (e) is not automatically ruled out. A finding may be supported by
circumstantial evidence as it is here. Otherwise, a family could stonewall the Department
and its social workers concerning the origin of a child‟s injuries and escape a
jurisdictional finding under subdivision (e).” (Ibid., italics added.)
11 In the instant case, father argues that the court relied on the denial of culpability by
the parents to sustain the allegation under section 300, subdivision (e), and that this was
insufficient evidence to prove that he injured the child. However, the court did not rely
on their denial, but rather properly found that the child came within its jurisdiction by the
circumstantial evidence in this case. Mother testified that she and father were the only
ones caring for the child on the day father noticed the child‟s leg injury, and that she and
her mother took care of the child the day before that. Mother said she never left the child
alone with anyone during that time. She was the primary caretaker of the child, yet
neither she nor father could explain how the child sustained his injuries. The doctors
opined that the child‟s injuries were nonaccidental and were the result of abuse. Based
on the evidence before it, the only reasonable conclusion that the court could come to was
that mother, father, or both of them caused the child‟s injuries, or, they reasonably should
have known who caused the child‟s injuries. (E.H., supra, 108 Cal.App.4th at p. 670.)
Therefore, the court properly found that the child came within section 300,
subdivision (e).
II. The Court Properly Denied Reunification Services
The parents argue that the court erred in denying reunification services under
section 361.5, subdivision (b)(5). Father contends that the court was concerned “with
only one factor”—the identification of the perpetrator. They both argue that the court
only considered the fact that they denied hurting the child, without considering the
evidence, such as the psychological evaluations, showing they would benefit from
reunification services. We conclude that the court properly denied services.
12 A. Standard of Review
“We affirm an order denying reunification services if the order is supported by
substantial evidence. [Citation.]” (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. [Citations.]” (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)
“We do not reweigh the evidence, nor do we consider matters of credibility.” (E.H.,
B. There Was Sufficient Evidence to Deny Services
“In enacting subdivision (b) of section 361.5, the Legislature has recognized that
under some circumstances it may be futile to offer a parent reunification services.
[Citation.]” (In re Kenneth M. (2004) 123 Cal.App.4th 16, 20 (Kenneth M.).) Section
361.5, subdivision (b) provides: “Reunification services need not be provided to a parent
or guardian described in this subdivision when the court finds, by clear and convincing
evidence, any of the following: [¶] . . . [¶] (5) 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.” Section 300, subdivision (e), and section 361.5, subdivision
(b)(5), do not require identification of the perpetrator. (Kenneth M., at p. 21.) “Read
together, those provisions permit denial of reunification services to either parent on a
showing that a parent or someone known by the parent physically abused a minor.”
[Citation.] Thus, „conduct‟ as it is used in section 361.5, subdivision (b)(5) refers to the
13 parent in the household who knew or should have known of the abuse, whether or not
that parent was the actual abuser.” (Ibid.)
In order to deny reunification services to the parents under section 361.5,
subdivision (b)(5), the threshold issue is whether the child fell within section 300,
subdivision (e). As discussed ante, the child was never out of his parents‟ custody;
therefore, the court found that the parents inflicted the abuse or reasonably should have
known someone else was inflicting abuse on their child. (§ 300, subd. (e); see ante, § I.)
The parents argue that the court did not give appropriate consideration to the
evidence of the psychological evaluations indicating that they would benefit from
reunification services. However, once a child falls within section 300, subdivision (e),
“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 . . . .” (§ 361.5, subd. (c), italics added.) Thus, the question was
not whether the parents “would benefit from” or were “amenable to” reunification
services, as the parents posit. Rather, the question was whether services were likely to
prevent reabuse. The parents presented evidence from psychologists that they could
benefit from services. However, the court properly noted that it had to find that services
would be likely to prevent reabuse and concluded that such evidence was not before the
court. The court further found that services would not prevent reabuse, citing the “united
deception of the parents regarding what happened to [the] child.” The court had earlier
expressed its doubts that services would prevent reabuse if a person never acknowledged
how the child was hurt, or that he or she was responsible for the injuries. Given that both
14 parents continually denied the injuries were the result of child abuse, despite the medical
evidence to the contrary and their lack of a plausible explanation for the injuries, we
conclude that the court properly denied services under section 361.5, subdivision (b)(5).
Both parents rely on L.Z. v. Superior Court (2010) 188 Cal.App.4th 1285 (L.Z.),
and contend that the court denied services simply because they denied hurting the child
and/or no one admitted abusing the child. However, L.Z. is distinguishable. In that case,
a baby was living with her parents and her maternal grandmother when she sustained
terrible injuries. (Id. at p. 1288.) Both parents could not explain the injuries. (Id. at
pp. 1288-1289.) The trial court denied services, stating that either parent could have
caused the injuries, that neither of them acknowledged responsibility, and that until one
of them did, the court could not be sure abuse would not occur again. (Id. at p. 1291.)
However, the appellate court concluded that there was no evidence that the mother or
grandmother abused the child, and all the evidence pointed to the father. (Id. at p. 1292.)
Furthermore, the evidence did not show that the mother knew or should have known that
the baby had been abused. (Id. at p. 1293.) The appellate court noted that the lower court
was “focused on securing the perpetrator‟s admission of guilt rather than ascertaining the
legal measure of Mother‟s conduct required by section 300, subdivision (e).” (Id. at
p. 1293.) The appellate court held that “the court should not require one parent to admit
to physically abusing the baby in order for the other parent to be eligible for reunification
services.” (Id. at pp. 1293-1294.)
Unlike L.Z., supra, 188 Cal.App.4th 1285, the lower court here was not solely
focused on securing the perpetrator‟s admission. Furthermore, contrary to the parents‟
15 apparent contention, the court here did not deny both of them services simply because no
one would admit to abusing the child. The evidence showed that the child had been
abused, and the evidence pointed to the parents either causing the child‟s injuries or
knowing who caused the injuries, since the injuries occurred while the child was in their
custody. Although the court found it “problematic” that neither of them was willing to
tell the truth about what happened, the court concluded, based on the evidence before it,
that both parents were responsible.
Viewing the evidence in the light most favorable to the order, we conclude that the
court properly denied the parents reunification services under section 361.5,
subdivision (b)(5).
DISPOSITION
The writ petitions are denied.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST Acting P. J.
We concur:
McKINSTER J.
MILLER J.