Filed 3/16/16 M.J. v. Superior Court CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
M.J. et al., D069334
Petitioners, (San Diego County Super. Ct. No. CJ1234A-B) v.
THE SUPERIOR COURT OF SAN DIEGO COUNTY,
Respondent;
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY et al.,
Real Parties in Interest.
PROCEEDINGS in mandate after referral to a Welfare and Institutions Code
section 366.26 hearing.1 Laura J. Birkmeyer, Judge. Petitions denied.
Dependency Legal Group of San Diego and Amanda J. Gonzales for Petitioner
M.J.
1 All further statutory references are to the Welfare and Institutions Code unless otherwise indicated. Dependency Legal Group of San Diego and John P. McCurley for Petitioner J.J.
No appearance by Respondent.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, and Kristen M. Ojeil, Deputy County Counsel, for Real Party in Interest San
Diego County Health and Human Services Agency.
INTRODUCTION
M.J. (Mother) and J.J. (Father) seek review of juvenile court orders setting a
hearing under section 366.26 with respect to their minor sons, A.J. and Alexander J.
They contend the juvenile court abused its discretion in denying Mother's motion for a
new jurisdiction trial and her request to allow telephonic expert testimony at the
disposition hearing. They also argue there was no substantial evidence to support the
court's denial of reunification services for Alexander. We conclude the record discloses
no abuse of discretion with respect to the new trial motion or telephonic testimony
request and contains substantial evidence to support the denial of reunification services to
both parents. We deny the petitions.2
FACTUAL AND PROCEDURAL BACKGROUND
I. Detention
Alexander was born in April 2013. A.J. was born in April 2015. The San Diego
County Health and Human Services Agency (the Agency) received a referral that A.J.
2 The parents also sought a stay of the section 366.26 hearing, but failed to make the required "exceptional showing of good cause." (Cal. Rules of Court, rule 8.452(f).) We deny this request.
2 had been admitted to Naval Medical Center, San Diego (Balboa Hospital) in May 2015
with brain hemorrhages and other medical issues. Shortly thereafter, the Agency filed
juvenile dependency petitions on behalf of each child. For A.J., the Agency filed a
petition under section 300, subdivision (e), alleging he suffered "severe physical abuse"
and the injuries were "inflicted by his parent(s). . . ." The petition described A.J.'s
injuries, including the brain hemorrhages, eye hemorrhages consistent with abusive head
trauma, and fractures to the legs and ribs, at least some of which were healing.3 The
Agency filed Alexander's petition under section 300, subdivision (j), on the grounds his
sibling had suffered severe physical abuse and there was a substantial risk Alexander
would be abused or neglected. Alexander's petition stated A.J.'s injuries were "inflicted
by the child's parent. . . ."
The Agency's detention report summarized the information it received from the
hospital and Mother's statements to social workers Gabriela Perez-Ramirez and Damon
Colclough, who interviewed her separately on the day after A.J. was hospitalized. The
hospital documentation described A.J.'s injuries and the impressions of Dr. Sarah
Villarroel, the hospital's child abuse expert. Dr. Villarroel indicated the "injuries [were] a
result of inflicted injury" and Alexander did not inflict them.
Mother told Perez-Ramirez about the events leading to A.J.'s hospitalization.
At around 4:00 a.m., Father allowed her to sleep and offered to care for A.J. Father woke
her at around 6:30 a.m. to take over care of A.J. She tried to breastfeed A.J. at around
3 This description reflects the final versions of the petitions, following certain amendments not material to the issues on appeal.
3 7:30 a.m. and noticed he did not want to feed, looked a little sleepy, and was twitchy.
Mother called her mother, who advised her to see if the behavior continued. A.J. still did
not want to feed. Later, she saw the left side of A.J.'s face was drooping and she brought
him to the emergency room.
Colclough asked Mother about various issues, including a prior burn injury to
Alexander. There had been an Agency referral in December 2014, after Alexander
sustained second degree burns on 40 percent of his body; Father reported he was bathing
Alexander and the water must have become hot. At the time, a doctor found the injury
consistent with this explanation, but noted the injury was preventable. Mother recalled
the family shared a water heater and someone had turned it up. Mother again recounted
the day A.J. was hospitalized (with immaterial variations in detail) and noted Father did
not express any concerns about A.J. when she took over his care. Mother also had been
informed that A.J.'s injuries were from abusive head trauma, but according to Colclough,
she could not provide an explanation. She told him she did not believe Father was
capable of such an act. She also stated that only she and Father provided day-to-day care
for A.J.
Father declined to provide a statement, on advice of counsel. The detention report
also noted that during a home visit, Colclough observed a bong that smelled like
marijuana.
II. Jurisdiction
The Agency's jurisdiction and disposition report reflected the parents met with
another social worker, Leticia Abrego, in June 2015. Mother acknowledged doctors told
4 her A.J.'s injuries were due to a stroke or abuse, but she identified Alexander as the
cause. She explained the leg and foot fractures were from Alexander "pulling on [A.J.'s]
feet," noting he "would yank him a few times," and that the rib fractures were from him
"plopp[ing]" on A.J. during A.J.'s tummy time. She thought the brain bleeding could
have occurred because one time when she was changing A.J.'s diaper, Alexander "came
up to kiss him but instead he head butted him." She said the doctors did not believe these
explanations. She denied shaking A.J. or swinging him around, and similarly denied he
had fallen or had any accidents.
When Abrego spoke with Father, he provided similar reasons for A.J.'s injuries.
He explained Alexander was "strong, and . . . would yank the baby's leg," "manage[d] to
lay on [A.J.] one time when he was doing tummy time," and "sometimes will give [A.J.]
a kiss and will head butt him." Father also noted Mother's family had a history of
osteogenesis imperfecta (OI). He acknowledged the doctors dismissed these
explanations. When Abrego asked how else A.J. could have been injured, he stated: "I
probably would not believe the doctors. I don't believe a lot in medicine." He denied
shaking A.J., swinging him by the legs, or doing anything that could have caused the
injuries. The report also reflected Father used marijuana occasionally (but not currently)
and had rubbed it on Alexander after he was burned.
The jurisdiction and disposition report also contained a statement from Dr. Mary J.
Willis, who examined genetics issues. She did not find evidence of any genetic condition
that could have predisposed A.J. to his injuries or caused them. She believed it was
unlikely he had OI, but found obtaining additional evidence would be helpful and ordered
5 testing. She also found another condition, Marfan syndrome, unsupported by the injuries
and family history.
The Agency recommended reunification services not be offered, pursuant to
section 361.5, subdivision (b)(5) for A.J. and subdivision (b)(6) for Alexander. The
Agency cited the seriousness of A.J.'s injuries while he was under his parents' care and
their failure to provide a plausible explanation.
The juvenile court held a series of hearings during the summer of 2015, to address
evidentiary and trial-setting issues. At the initial hearing in June, the parents set the
matter for trial and waived time, citing the need to obtain necessary documents and
medical review. The court and parties addressed various other issues, including the
pending OI results. At a July settlement conference, the commissioner continued the
hearing because certain information remained outstanding and set trial dates for
September 1 and 2. At the continued hearing in August, the commissioner noted, among
other issues, that the doctor who performed Mother's psychological evaluation (Dr.
Walter O'Meara) was unavailable for trial, bifurcated disposition, and set disposition for
September 28 and 30.
The Agency provided addendum reports, which confirmed A.J. was negative for
OI and reflected another interview between Abrego and Mother. Abrego asked her if she
suspected Father could have hurt A.J., and she responded, "Me and my husband have not
hurt him." She also questioned the OI blood test (indicating a skin biopsy might be
needed), maintained Alexander could be at fault and identified additional potential causes,
including vitamin D deficiency in A.J., her fall down a flight of stairs while eight months
6 pregnant, her kidney infection (presumably also while pregnant), and a subdural
hematoma during birth.
The jurisdiction hearing commenced on September 1, as scheduled. Dr. Villarroel
testified A.J.'s injuries were intentionally inflicted, based on the injuries, lab tests,
consultation with other specialists, and the parents' inability to provide an adequate
explanation. Her opinion was that the injuries were due to severe physical abuse. She
noted the radiologist observed A.J.'s rib fractures occurred at a different time than the
head injury. She also explained Alexander could not have caused the injuries and
likewise ruled out the parents' other suggested explanations. On cross-examination, Dr.
Villarroel acknowledged she did not observe any bruises or lesions when A.J. was in the
hospital.
On September 3, the juvenile court issued its jurisdiction ruling. The court found
by clear and convincing evidence that the petition allegations were true as to each boy.
With respect to A.J., the court found he suffered severe physical abuse and the parents
were responsible. The court explained: "I do find in this case that the evidence was—the
abuse was caused by one or both of the parents or by a person known to the parents, and I
do so under these circumstances, based on my review of all of the evidence in this
case. . . . Parents repeatedly instructed that they were the two caregivers for this small
child. Although they now generally argue that there were relatives that came in the home
at various times to assist them, I know at no point in time did they claim that anyone else
abused the child, save the two-year-old." The court concluded, "the evidence points to
7 and supports a finding that the abuse that was suffered by the child was caused by the
parent or a person known to the parent."
The juvenile court cited In re E.H. (2003) 108 Cal.App.4th 659 (E.H.) and
observed that "while there is not a specific perpetrator that can be identified today, that is,
the Court cannot discern based on the facts in evidence before the Court today, whether it
was, indeed, specifically and on a particular date and time, mother or father, I do note that
[E.H.] holds that the Court may still make a [section] 300 [subdivision] (e) finding based
on circumstantial evidence, which this Court feels abounds in this case when the child is
in the custody of a parent and there's no claim anyone else abused the child."
With respect to Alexander, the juvenile court incorporated its comments as to
A.J.'s injuries and their causes. It found A.J. was Alexander's sibling, A.J. was abused or
neglected as defined in section 300, subdivision (e), and there was clear and convincing
evidence of a substantial risk that Alexander would be abused or neglected. The court
concluded that he was a person described in section 300, subdivision (j).
III. Mother's Motion for New Trial
On September 27, the day prior to the date set for disposition, Mother's counsel
served a section 388 motion asking the juvenile court to revisit its jurisdictional findings.
The motion contended that newly obtained opinions from Drs. Charles Hyman and David
Ayoub contradicted the evidence on which the court based jurisdiction. Following
discussions regarding the proper format for the request, the court permitted Mother's
counsel to restyle it. Mother's counsel suggested Section 385 might be appropriate. The
court stated: "I do think, with respect to a motion to reconsider to reopen, there must be
8 some presentation of why that information couldn't have been presented at the original
trial, the diligence, or lack thereof, that was engaged in by the attorney and the relevance
or the materiality of the issue, the underlying issue."
On diligence, Mother provided a declaration detailing her efforts to obtain an
expert and contended that any failure to seek a continuance did not reflect a lack of
diligence, as she did not know when experts would be available or what they would say.
The court denied the motion, identifying as a "very significant concern" that "there was
no continuance requested . . . . [¶] [S]he didn't seek the appropriate remedy at the
appropriate time, which would be to come before the court and indicate that she needed
more time to locate an expert." The court found Mother's counsel had multiple
opportunities to seek a continuance, but failed to do so, and concluded she did not
exercise reasonable diligence.
IV. Mother's Request for Telephonic Evidence
Mother identified Drs. Hyman and Ayoub as potential disposition
witnesses, but due to their possible unavailability, requested the juvenile court
permit telephonic testimony. County counsel and minors' counsel challenged the
relevance of this evidence, and minors' counsel also opposed telephonic testimony.
The court permitted Mother to submit offers of proof on these issues. The court
noted at the time: "I do think, particularly in light of the fact that the court would
have to make credibility findings with respect to these witnesses, . . . it would be
essential to have them, specifically, in the courtroom."
9 The court subsequently issued a written ruling and permitted the experts to
testify. However, it denied the request for telephonic testimony, citing Evidence
Code section 711 and explaining that "[a]ll parties have the right to confront the
witnesses and the court must make essential credibility findings, which cannot
occur with telephonic testimony." The court later elaborated on this ruling,
explaining: "[P]articularly in this circumstance, where the court has heard the live
testimony of the Agency's expert, and particularly because these doctors are—
apparently are going to be relying on numerous documents, and credibility is []
significant — [live testimony] is essential to the court's finding with respect to the
consideration of their evidence . . . ."
V. Disposition
In further addendum reports prior to disposition, Mother reiterated that she did not
cause the injuries or think Father could have done so, and stated A.J. was the "calmest
baby" she ever cared for. The Agency maintained its recommendation that services not
be provided. It viewed services as unlikely to be beneficial, given the parents continued
to believe A.J.'s injuries were caused by Alexander or other causes ruled out by the
doctors.
In November 2015, the court held the disposition hearing. Dr. O'Meara testified
Mother had no psychological disorders that would impede services, had the emotional
ability to benefit from services, and was not delusional, but rather "sincerely believe[d]"
Alexander caused A.J.'s injuries. Social worker Abrego testified services were not likely
to prevent reabuse. When asked for the basis for her opinion, she explained the parents
10 lacked insight into the injuries, still lived together (reflecting they "believe[d] neither one
of them did it"), and had not learned child abuse prevention. She also opined it would not
be in Alexander's best interests to provide services. She noted the parents continued to
blame him for A.J.'s injuries, had not taken any responsibility, and denied there was any
abuse in the home.
The juvenile court incorporated its jurisdictional findings, adopted the Agency's
recommendations, and denied reunification services for Alexander under section 361.5,
subdivision (b)(6). The court stated with respect to the parents: "[A]s I have previously
found on September 3rd, one, or the other, or both inflicted injuries on [A.J.]." The court
reiterated this finding multiple times, observing that "the clear and convincing evidence
points to one or both of them" and finding that "[b]oth parents . . . are responsible for the
injuries." The court found by clear and convincing evidence that Alexander had been
adjudicated a dependent under section 300, subdivision (j), due to the infliction of severe
physical harm to his sibling, A.J. The court further found that A.J.'s injuries were serious
and nonaccidental.
The court then found there was not clear and convincing evidence that it would
benefit Alexander or be in his best interests to pursue reunification with Father. The
court explained there must be a "truthful acknowledgment as to the cause and danger and
risk to their children." Although Father participated in services, he maintained something
besides force caused A.J.'s injuries. The court specifically expressed concern that the
parents continued to identify Alexander as the most likely cause of A.J.'s injuries. The
11 court also noted additional issues regarding Father's "continued lack of responsible
parenting," including his use of marijuana "like an ointment" on Alexander's burns.
The court similarly found no clear and convincing evidence that it was in
Alexander's best interests to reunify with Mother. The court acknowledged Dr.
O'Meara's testimony, but gave little weight to his conclusions regarding services, given
he did not address Mother's rigidity in her beliefs and his recommendations went beyond
his area of competence. In contrast, the court observed that Abrego was experienced and
qualified to render her opinions. As with Father, the court noted Mother's participation in
services, but found she needed to "acknowledge the true source of risk and danger to her
children." The court explained, once more: "[E]ither she, or the father, the two of them
acting in concert, on multiple occasions brought such force . . . upon [A.J.] that it caused
his bones to be broken, and his brain to bleed, and his retina to bleed. And . . . after all of
this time, Mother is still rigid and will not address that."
Mother and Father filed petitions for writ review.
DISCUSSION
I. Denial of New Trial Request
The parents contend the juvenile court erred in denying Mother's motion for a new
trial on jurisdiction. We review this ruling for abuse of discretion. (In re J.C. (2014) 226
Cal.App.4th 503, 525 (J.C.).) Applying this standard, we reject their argument.
Section 385 provides that "[a]ny order made by the court in the case of any person
subject to its jurisdiction may at any time be changed, modified, or set aside, as the judge
deems meet and proper, subject to such procedural requirements as are imposed by this
12 article." (§ 385.) The juvenile court determined, and the parties do not dispute, that the
requirements of section 388 applied to Mother's motion. (See In re Marilyn H. (1993)
5 Cal.4th 295, 305.) Section 388 provides for modification of an order based on
"grounds of change of circumstance or new evidence . . . ." (§ 388, subd. (a)(1).) The
term "new evidence" is "construed to include the three requirements of new evidence,
reasonable diligence, and materiality." (In re H.S. (2010) 188 Cal.App.4th 103, 108
(H.S.).)
The juvenile court determined Mother's counsel did not exercise reasonable
diligence, based on her failure to request a continuance despite multiple chances to do so.
It specifically observed she could have advised the court she needed more time to locate
an expert. The record supports these findings and we conclude the court did not abuse its
discretion in denying the new trial motion.4
The parents, however, maintain the ruling was in error. Mother contends she did
not move for a continuance because she did not have the information necessary to do so,
citing various authorities. (See § 352, subd. (a); Renee S. v. Superior Court (1999) 76
Cal.App.4th 187, 196 (Renee); People v. Howard (1992) 1 Cal.4th 1132, 1171 (Howard);
Scott v. Farrar (1983) 139 Cal.App.3d 462, 469 (Scott).) None support her position.
4 The court also noted that, with one potential exception, there was nothing to suggest the evidence was new. (See H.S., supra, 188 Cal.App.4th at p. 108 ["[A]ppellant's . . . motion relied on the new expert's opinion that is based on old evidence available at the time of trial . . . . The fact that the new expert interprets the evidence differently than did the medical doctors who testified at the jurisdiction hearing . . . does not make his expert opinion 'new evidence' . . . ."].) 13 Section 352 simply provides that "[c]ontinuances shall be granted only upon a
showing of good cause and only for that period of time shown to be necessary," and the
cited portion of Renee reiterates the time requirement. (Id., subd. (a); Renee, supra, 76
Cal.App.4th at p. 196.) Howard requires a party seeking a continuance to establish the
materiality and need for the evidence and that it can be obtained in a reasonable time,
among other things. (Howard, supra, 1 Cal.4th at p. 1171.) Mother cannot plausibly
claim she lacked sufficient information to meet these requirements. Based on the
opinions she obtained, one can reasonably infer she was seeking an expert to opine that
A.J.'s injuries did result, or could have resulted, from something other than nonaccidental
force. At minimum, she knew the general substance and potential importance of the
opinions she was seeking, if not the time they would be available. She could have
requested at least some additional time to conclude her search.
Scott likewise does not support Mother's position. Although Scott does provide
reasonable diligence does not require a request for continuance if the party is "unaware of
either the nature or materiality" of the testimony (Scott, supra, 139 Cal.App.3d at p. 469),
Mother was fully aware of the type of opinion she was seeking and its significance. In
addition, Scott focused on standards applicable to summary judgment, explaining that
"[t]he same degree of diligence in discovery that is required in preparation for trial is not
required of a party who opposes a summary judgment motion relatively early in the
litigation." (Id. at p. 468.) Even assuming Scott were applicable in the juvenile context
(and Mother cites no authority to suggest it is), the parties were at the trial stage here.
14 Mother also suggests that not seeking a continuance "was in line with adhering to
the strict timelines" of dependency cases, particularly given the prior continuances here.
This explanation is unpersuasive. If anything, the other continuances should have
suggested the juvenile court was amenable to such relief. Moreover, she does not explain
why those same timelines did not dissuade her from seeking a new jurisdictional trial.
Finally, Mother contends her decision was not a strategic one. However, the issue here is
diligence, not motive.
Turning to Father's arguments, he contends the expert testimony was material to
jurisdiction. However, materiality is not at issue here, either. The juvenile court denied
the motion on diligence grounds, and as discussed ante, this was not an abuse of
discretion. Father also argues due process "require[s] a remedy by which a defendant can
bring newly discovered evidence before a court to urge correction of an erroneous
judgment," quoting People v. Martinez (1984) 36 Cal.3d 816, 826. The parents did not
lack a remedy. Mother could have requested a continuance of the jurisdiction hearing,
but did not. The juvenile court then permitted Mother's counsel to move for a new trial
and attempt to establish her diligence, but she failed to make this showing. Father has not
demonstrated any lack of due process. (See In re Nada R. (2001) 89 Cal.App.4th 1166,
1176 (Nada R.) ["[T]he United States Constitution guarantees 'a meaningful opportunity
to present a complete defense.' (Citation.) [I]n dependency proceedings, a parent's right
to due process is limited by the need to balance the 'interest in regaining custody of the
minors against the state's desire to conclude dependency matters expeditiously
and . . . exercise broad control over the proceedings. . . .' (Citation.)"].)
15 Finally, both parents rely on People v. Watson (1956) 46 Cal.2d 818, 821
(Watson) to argue the ruling prejudiced them and it was probable the court would have
ruled differently on jurisdiction (i.e., that the error led to a miscarriage of justice).
However, Watson addressed the impact of certain contentions of error. (Id. at p. 839; see
In re Kristin H. (1996) 46 Cal.App.4th 1635, 1668 [referencing the "harmless error test
enunciated in (Watson)"].) Here, the juvenile court did not err, so we need not assess
whether the alleged error was prejudicial or led to a miscarriage of justice.
II. Denial of Telephonic Testimony Request
The parents contend the juvenile court erred by declining Mother's request for Drs.
Hyman and Ayoub to testify telephonically. A juvenile court's refusal to allow
telephonic testimony is reviewed for abuse of discretion. (Nada R., supra, 89
Cal.App.4th at p. 1176.) The record reflects no such abuse.
The juvenile court based its ruling on Evidence Code section 711 and the court's
need to make essential credibility findings. Evidence Code section 711 provides that
"[a]t the trial of an action, a witness can be heard only in the presence and subject to the
examination of all the parties to the action, if they choose to attend and examine." A
court may evaluate witness credibility by, among other methods, considering the
witness's "demeanor while testifying and the manner in which he [or she] testifies."
(Evid. Code, § 780, subd. (a).) The probative value of witness demeanor is well settled.
(See Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1358 ["Oral testimony of
witnesses given in the presence of the trier of fact is valued for its probative worth on the
issue of credibility, because such testimony affords the trier of fact an opportunity to
16 observe the demeanor of witnesses. (Citations.) A witness's demeanor is ' "part of the
evidence" ' and is 'of considerable legal consequence.' "]; Denny H. v. Superior Court
(2005) 131 Cal.App.4th 1501, 1513–1514 ["In a contested hearing, the precise words and
demeanor of a witness . . . bears on the credibility and weight the trier of fact accords the
witness's testimony."].)
Nada R. is instructive. There, the juvenile court expressed concerns about the
reliability of telephonic testimony and allowed the father's witnesses in Saudi Arabia to
testify, but not by telephone. (Nada R., supra, 89 Cal.App.4th at p. 1176.) The Court of
Appeal found the court did not abuse its discretion, because the father "was not prevented
from offering the testimony, but only restricted in the manner of its presentation." (Ibid.)
Similarly, the juvenile court here did not prevent the doctors from testifying, but simply
required them to do so in person (and for legitimate reasons). This ruling does not reflect
any abuse of the juvenile court's discretion.
The parents' arguments to the contrary are unpersuasive.
First, Mother suggests telephonic expert testimony can only be denied when "the
proposed expert is out of the country, the other parties do not have notice of the proposed
testimony, and a continuance would be required for the other parties to rebut the
evidence," citing Nada R., supra, 89 Cal.App.4th at page 1177. However, this portion of
Nada R. addressed the exclusion of an expert's testimony pursuant to Evidence Code
section 352 (under which a court can exclude evidence that is more time consuming than
it is probative), not telephonic testimony. The juvenile court did not exclude the doctors'
testimony, so both this portion of Nada R. and Evidence Code section 352 are inapposite.
17 Second, Mother contends cross-examination could occur by telephone. However,
the Evidence Code contemplates witnesses will be heard and examined "in the presence"
of the parties. (Evid. Code, § 711.) Although juvenile courts have the discretion to
permit testimony by telephone, including cross-examination, the court here reasonably
determined live testimony was necessary under the circumstances.
Third, Mother challenges the significance of witness demeanor. To start, she
contends a court also may consider the other factors in Evidence Code section 780, but
does not explain why use of those factors would diminish the importance of demeanor.
She next acknowledges Elkins's statement regarding the probative value of witness
demeanor, but implies demeanor is less relevant with respect to expert witnesses.
However, she cites no authority to support this argument. She also claims the juvenile
court "had the option of Skype testimony," but does not indicate whether she presented
this alternative to the court. We will not address a theory for the first time on appeal.
(See In re Dakota H. (2005) 132 Cal.App.4th 212, 222.)
Fourth, Mother contends the court's ruling was a "denial of [her] due process right
to a meaningful opportunity to present a complete defense and was not harmless beyond a
reasonable doubt," citing a criminal case, Chapman v. California (1967) 386 U.S. 18, 24.
Even assuming criminal due process concerns apply in dependency proceedings, we see
no due process issue here: the juvenile court balanced Mother's interest in having her
18 experts testify with the need here for in-person testimony. (See Nada R., supra, 89
Cal.App.4th at p. 1176.) In turn, there is no need to engage in harmless error analysis.5
Finally, both parents argue they were prejudiced by the court's ruling, contending
the evidence would have permitted them to establish entitlement to reunification services.
Father also contends the evidence could have prevented removal. But, again, the
evidence was not excluded; the witnesses simply had to testify in person, and did not do
so. In addition, the argument is entirely speculative. For one thing, the parents assume
the juvenile court would have credited Mother's experts over those of the Agency. More
importantly, they offer no authority to suggest a juvenile court could, or would, reach
dispositional findings contrary to its jurisdictional findings (much less that it could then
rely solely on the latter findings for its removal and services rulings).
III. Denial of Reunification Services
The parents contend substantial evidence does not support denial of services to
Alexander.6
A. Governing Law
"Unless a specific statutory exception applies, the juvenile court must provide
services designed to reunify the family within the statutory time period. [Citations.] The
5 Mother also notes the juvenile court denied her request during the disposition hearing to continue the matter so her experts could testify, but offers no argument that this ruling was erroneous. Although the Agency addresses the ruling, to the extent Mother intended to raise the issue, she has forfeited it. (See In re Sade C. (1996) 13 Cal.4th 952, 994 (Sade); People v. Stanley (1995) 10 Cal.4th 764, 793 (Stanley).)
6 The parents do not contest the denial of reunification services for A.J.
19 statutory exceptions to providing reunification services under section 361.5 have been
referred to as reunification 'bypass' provisions. [Citations.] There is no general bypass
provision; the court must find by clear and convincing evidence that one or more of the
subparts enumerated in section 361.5, subdivision (b) apply before it may deny
reunification services to a parent." (Tyrone W. v. Superior Court (2007) 151 Cal.App.4th
839, 845-846 (Tyrone).)
The juvenile court relied on section 361.5, subdivision (b)(6) to deny reunification
services for Alexander. A court may deny services under subdivision (b)(6) when the
"child has been adjudicated a dependent pursuant to any subdivision of Section 300 as a
result of . . . the infliction of severe physical harm to the child, [or] a sibling . . . by a
parent or guardian . . . and the court makes a factual finding that it would not benefit the
child to pursue reunification services with the offending parent or guardian." (Ibid.)
Infliction of severe physical harm includes, but is not limited to,"deliberate and serious
injury inflicted to or on a child's body or the body of a sibling . . . by an act or omission
of the parent or guardian, or of another individual . . . with the consent of the parent or
guardian. . . ." (Ibid.) In determining whether services will benefit the child, the court
must consider any information it deems relevant, including the specific act or omission
comprising the severe physical harm, the circumstances under which the harm was
inflicted, any history of abuse of other children, and the likelihood the child could be
safely returned to the parent's care without continuing supervision. (Id., subd. (i).)
When the juvenile court denies services under subdivision (b)(6), it must "read
into the record the basis for a finding of . . . the infliction of severe physical
20 harm . . . and . . . specify the factual findings used to determine that the provision of
reunification services to the offending parent or guardian would not benefit the child." (§
361.5, subd. (k).) In addition, the court cannot order services unless it finds "by clear and
convincing evidence, that reunification is in the best interest of the child." (Id.,
subd. (c).)
We review an order denying reunification services for substantial evidence.
(Tyrone, supra, 151 Cal.App.4th at pp. 854-855.)
B. Analysis
Substantial evidence supports the denial of reunification services for Alexander.
The parents offer no substantive challenge to most aspects of the juvenile court's ruling,
including its findings that Alexander was adjudicated a dependent under section 300,
subdivision (j), due to the infliction of severe physical harm to A.J., reunification services
would not benefit Alexander, and there was no clear and convincing evidence that
reunification services were in his best interests. (§ 361.5, subds. (b), (c), (k).) We could
view these issues as conceded. (See Sade, supra, 13 Cal.4th at p. 994; Stanley, supra, 10
Cal.4th at p. 793.) In any event, based on the evidence set forth ante, we conclude
substantial evidence supports these elements of the court's ruling.
The parents do contest the juvenile court's determination that their acts or
omissions caused A.J.'s injuries, but substantial evidence likewise supports it. The court
found at jurisdiction that A.J.'s injuries were "caused by one or both of the parents or by a
person known to the parents," noting specifically they were A.J.'s caregivers and "at no
point in time" claimed that anyone else abused him (besides Alexander). The parents do
21 not contend there is an absence of substantial evidence to support this finding and it
therefore has preclusive effect. (See E.H., supra, 108 Cal.App.4th at p. 669 [substantial
evidence review applies to jurisdictional findings]; Tyrone, supra, 151 Cal.App.4th at
p. 854 [discussing "preclusive effect" of the juvenile court's jurisdictional findings].) In
turn, the finding was sufficient to establish their acts or omissions caused A.J.'s injuries,
for purposes of section 361.5, subdivision (b)(6).
Tyrone is instructive. There, a minor's sibling died under suspicious
circumstances. (Tyrone, supra, 151 Cal.App.4th at p. 844.) The minor's petition
identified the sibling's injuries, including rib fractures, as "inflicted non-accidentally by
the child's parents." (Id. at p. 854.) The juvenile court made its jurisdictional findings by
clear and convincing evidence, the standard of proof under section 361.5, subdivision
(b)(6). (Tyrone, at p. 854.) The court then denied services under subdivision (b)(6), the
father filed a writ petition, and this court affirmed. (Tyrone, at pp. 845, 854.) The father
argued subdivision (b)(6) "require[d] the court to identify the parent" who harmed the
sibling and the evidence did not support a finding he did so. (Tyrone, at p. 848.) He did
not challenge the jurisdictional findings. (Id. at p. 854.) After noting their preclusive
effect, we explained the court had "identified 'the parents' as the persons responsible for
the deliberate acts that caused [the sibling's] rib fractures" and the record "clearly
show[ed]" the court did not base its findings on negligence. (Ibid.) We concluded this
"finding that the parents . . . inflicted non-accidental and severe physical abuse on their
infant daughter [was] sufficient to identify the offending parent within the meaning of
section 361.5, subdivision (b)(6)." (Ibid.) The situation here is analogous. A.J.'s petition
22 stated his injuries were "inflicted by his parent(s). . . ." The juvenile court made its
jurisdictional findings by clear and convincing evidence and specifically identified the
parents (Mother, Father, or both) as being responsible for A.J.'s injuries. And,
significantly, the parents do not challenge that jurisdictional finding.
Both parents attempt to distinguish Tyrone. Mother also contends the court
improperly denied her services because she failed to blame Father for A.J.'s injuries. We
address the arguments in turn.
First, Mother contends the evidence was insufficient to establish she "was
complicit in [A.J.'s] being abused." Father makes similar arguments, on his own behalf.
However, as discussed ante, the juvenile court's jurisdictional finding that both parents
were responsible for A.J.'s injuries was sufficient for purposes of section 361.5,
subdivision (b)(6). In addition, the court reiterated this finding multiple times at the
disposition hearing, leaving no doubt it found "both parents . . . responsible for the
injuries." Substantial evidence supports this finding, including, without limitation,
Mother's acknowledgment that only she and Father provided day-to-day care for A.J. and
the parents' inability to identify anyone else (besides Alexander) who could have caused
the injuries.
Second, Mother acknowledges Tyrone permits denial of reunification services
when the court identifies both parents as the perpetrators, but contends the juvenile court
here did not identify a specific perpetrator, citing Alexander's petition (which used the
word "parent," instead of "parents") and the court's purported inability to specify whether
the perpetrator was Mother, Father, or both. However, the use of "parent" in Alexander's
23 petition appears to be a clerical error; the boys' petitions were both based on A.J.'s
injuries, and A.J.'s petition does identify the "parent(s)." Further, Tyrone makes clear that
the specific perpetrator can be both parents, when they have both been found
responsible—as is the case here. (Tyrone, supra, 151 Cal.App.4th at p. 854.)7
Third, Mother suggests the juvenile court improperly applied a negligence
standard, as evidenced by its statement that the parents "knew or reasonably should have
known" that A.J. was being abused. Although the juvenile court did use this phrase once,
at the disposition hearing, we find it harmless in light of the court's clear and repeated
finding that the parents were responsible for the abuse to A.J. The record does not reflect
this finding was based in negligence. (See Tyrone, supra, 151 Cal.App.4th at p. 854.)
Fourth, Father argues that in the absence of a specific perpetrator, the juvenile
court was required to find by clear and convincing evidence that Father knew A.J. was
being abused, citing Tyrone, supra, 151 Cal.App.4th at page 843. He also notes the
evidence did not reflect A.J.'s injuries were obvious, such that knowledge could be
inferred. However, the cited portion of Tyrone actually provides that identification of a
perpetrator is necessary when the evidence does not show both parents knew the child
was being injured. (See ibid.) Here, the juvenile court did identify both parents as being
responsible for A.J.'s injuries, so we need not address the issue of knowledge.
7 Mother also contends circumstantial evidence is insufficient when denying reunification services, presumably referring to the juvenile court's jurisdictional findings. However, she cites no authority to support this point and also ignores the preclusive effect of the parents' failure to challenge those findings. (Stanley, supra, 10 Cal.4th at p. 793; Tyrone, supra, 151 Cal.App.4th at p. 843.)
24 Finally, Mother claims the juvenile court erred by purportedly basing its denial of
reunification services with Alexander on the fact that she "had not blamed Father" and
that a perpetrator "had not admitted guilt." We note the findings she cites relate primarily
to A.J. and do not reflect the court stated she had to "blame Father," but we will address
the premise of her argument. Relying on L.Z. v. Superior Court (2010) 188 Cal.App.4th
1285, she contends a court need not identify a perpetrator to rule on reunification
services. We agree, but L.Z. is distinguishable. There, the juvenile court
"[t]wice . . . remarked that services would not be provided unless and until the perpetrator
of the physical abuse came forward" and denied services when neither parent would
admit the abuse. (Id. at p. 1293.) Here, in contrast, the court focused on Mother's
attitude toward causation for permissible reasons. Specifically, the court was concerned
she remained in denial about the source of A.J.'s injuries and continued to give
explanations not supported by the medical evidence, issues relevant to whether
reunification services would be beneficial and in the boys' best interests.
25 DISPOSITION
The petitions are denied.
McCONNELL, P. J.
WE CONCUR:
NARES, J.
McDONALD, J.