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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                    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

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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.




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                                 DISPOSITION

     The petitions are denied.



                                               McCONNELL, P. J.

WE CONCUR:


NARES, J.


McDONALD, J.




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