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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                                     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.


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         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.)


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       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.


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       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.,

supra, 108 Cal.App.4th at p. 669.)

       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.




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