Filed 9/27/16 In re Bethany A. CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


In re BETHANY A., a Person Coming                                    B266553
Under the Juvenile Court Law.                                        (Los Angeles County
                                                                     Super. Ct. No. DK06855)

LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,

         Plaintiff and Respondent,

         v.

KAREN S. et al.

         Defendants and Appellants.



     APPEALS from orders of the Superior Court of Los Angeles County.
Annabelle G. Cortez, Judge. Affirmed.

      Maureen L. Keaney, under appointment by the Court of Appeal, for Defendant
and Appellant Karen S.

      Liana Serobian, under appointment by the Court of Appeal, for Defendant and
Appellant Ricardo A.

         Tarkian & Associates and Arezoo Pichvai for Plaintiff and Respondent.

                                        _________________________
        Appellants Karen S. (mother) and Ricardo A. (father) separately appeal from the
juvenile court’s termination of their parental rights to Bethany A. (Bethany, born May
2014). Mother also appeals from the denial of her Welfare and Institutions Code section
388 petition.1 Mother, who was 15 years old when Bethany was born, contends the
juvenile court erred by failing to appoint her a guardian ad litem (GAL). Father, who
turned 18 in October 2014, joins in her arguments. We find no error and affirm.
                  FACTUAL AND PROCEDURAL BACKGROUND
The Petition
        On August 13, 2014, the Los Angeles County Department of Children and Family
Services (Department) filed a petition on behalf of then two-month-old Bethany, under
section 300, subdivisions (a), (b) and (e). The petition alleged that Bethany had suffered
“non-accidental trauma,” including the following: a large, chronic subdural hematoma;
multiple fractures to her skull; multiple “old” rib fractures; multiple bruises to her eyes,
face, and ear; scratches to her neck; and bruises to her shoulder and back. Mother had no
explanation for the injuries. The injuries were not consistent with father’s explanation.
And the parents failed to obtain necessary medical care for Bethany’s injuries for nine
days.
Detention Report
        On August 7, 2014, mother took Bethany to the hospital because the baby had a
bump on the left side of her head. Bethany was diagnosed with hydrocephalus, a
condition in which water causes the brain to swell. She had a bruise and scab on her left
eye. Bethany was discharged the same day.
        On August 8, 2014, the Department’s social worker interviewed the parents, who
were living together with the paternal grandmother and other relatives. Mother denied
that Bethany fell and stated that she did not know how the baby was injured. Mother and
father stated that Bethany was always with mother and was never left alone with anyone
else. Both the paternal grandmother and paternal aunt denied seeing any injuries on

1
      All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.

                                              2
Bethany and thought the parents treated her well. The maternal grandmother and
maternal uncle also thought the parents treated Bethany well. However, on July 29,
2014, the maternal grandmother observed three small bruises on the left side of Bethany’s
forehead, after mother and father took Bethany to visit a relative. When the maternal
grandmother inquired about the bruises, mother denied that anything had happened to
Bethany.
       Later in the day on August 8, 2014, Bethany was transported by ambulance back
to the hospital after a radiologist evaluating Bethany’s x-rays observed that she had skull
fractures. The Department’s social worker spoke with hospital staff, who noted that
Bethany’s chart reflected that Bethany had multiple rib and skull fractures, bruising on
both eyes, and there were “concerns for strangulation.” The injuries were ruled as
nonaccidental. A medical student reported to the Department that Bethany needed an
MRI since there were concerns about brain trauma and neck injuries, and that Bethany
had “old bleeding in the skull.”
       Father was interviewed by the police on August 8, 2014, and reported that he had
laid Bethany on the outer edge of the couch and accidentally pushed her off when he
stretched out his arms. Mother asked father why he did not tell her this before.
Detention Hearing
       Mother and father appeared at the detention hearing, and the juvenile court
appointed separate counsel to represent them. The court found father to be the presumed
father of Bethany. The court ordered Bethany detained, and informed the parents that the
Department might seek the denial of family reunification services. The court granted the
parents monitored visits two or three times a week. Per the request of mother’s trial
counsel, the court also ordered that the parents were not to be interviewed regarding the
allegations in the petition.




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Jurisdiction and Disposition Report
       In October 2014, the Department submitted a 54-page jurisdiction and disposition
report. Bethany had been placed with the K. family on August 18, 2014.
       On September 15, 2014, father was arrested and placed in juvenile hall, after
stating to police that he had deliberately dropped Bethany onto the kitchen tile floor after
becoming frustrated when she would not stop crying. When the police asked mother if
father caused Bethany’s injuries, she stated, “He would never do [this].” Later, when the
police had father tell mother what he had done to Bethany, mother repeatedly stated,
“You did not do that.” Mother denied being in the kitchen at the time. Father stated, “I
did it. I’m telling them the truth. She [mother] was in the room, and I was in the
kitchen.” Father estimated that mother was approximately 35 to 50 feet away from him
and Bethany at the time. Mother cried and stated, “I didn’t know him like that.”
       On October 6, 2014, the Department received the maternal grandmother’s consent
to interview mother. During the interview on October 7, 2014, the Department’s
Dependency Investigator (DI) asked mother which person normally cared for Bethany,
and mother stated, “I cannot answer this question. My attorney told me not to answer any
questions regarding my daughter.” The DI asked mother how many times Bethany had
visited the doctor since her birth and if Bethany had any medical issues. Again, mother
stated, “I cannot answer.” Mother reported that she was currently enrolled in parenting
classes and individual therapy, but could not produce documentation per her attorney’s
orders. Mother answered other questions by the DI, for example, denying domestic
violence, drug abuse and gang involvement. When informed by the DI that the
Department would be recommending no reunification services, mother began to cry.
       On October 7, 2014, the Department also received the paternal grandmother’s
consent to interview father in juvenile hall. During the interview the following day,
father repeated that Bethany was always with him and mother.
       On October 9, 2014, Dr. Janet S. Arnold-Clark, a board-certified child-abuse
pediatrician, provided the Department with a written medical report, concluding that
Bethany “suffered multiple serious injuries that occurred at different points of time.”

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While the multiple bruises and abrasions on her face, neck and back were new, the
multiple rib fractures were at least two to four weeks old, and the large fluid collection
around her brain had accumulated slowly. Dr. Arnold-Clark opined that Bethany’s
injuries were not consistent with a fall and were “definitely from intentionally inflicted
trauma.” Bethany had 11 to 12 rib fractures from someone squeezing her ribs too hard,
causing them to snap. The bloody fluid on her brain was consistent with a “direct blow,
definitely inflicted.” The multiple bruises and scratches were “not consistent with a
single impact.” Bethany also had elevated liver enzymes, probably because she “was
either kicked or punched in the abdomen.”
       In subsequent interviews, the maternal and paternal relatives continued to deny
and disbelieve that mother or father could have intentionally hurt Bethany. The
Department recommended that no reunification services be provided pursuant to section
361.5, subdivision (b)(5). The jurisdiction and disposition hearings were continued.
Additional Information
       In a letter dated November 19, 2014, Dr. Thomas J. Grogan, an orthopedic
surgeon, stated: “To a non-perpetrator caregiver, the only evidence of injury would have
been when the swelling over the parietal skull fracture would have started. It appears that
is when Mother brought the child in for medical attention. The rib fractures themselves
would have hurt at the time of original injury, but appear to have all occurred at the same
time, and the child would have been quickly consolable and an unskilled caregiver who
was not there for the original injury would never know the rib fractures existed.”
       On December 1, 2014, mother’s trial counsel reported that mother had retained
Dr. Grogan as an expert.
       On December 9, 2014, mother completed a 12-week advanced parenting class.
Jurisdiction and Disposition Hearing
       Mother and father appeared at the jurisdiction and disposition hearing on
December 30, 2014. Dr. Grogan, testifying on behalf of mother, stated that Bethany’s
injuries could have been the result of nonaccidental trauma. He testified that an unskilled
parent could cause the rib fractures by picking her up too roughly. Dr. Grogan also

                                              5
testified that Bethany’s skull and head injuries could have been caused from the impact of
falling or being dropped.
       On February 6, 2015, the juvenile court sustained the petition and declared
Bethany a dependent child of the court under section 300, subdivisions (a), (b), and (e).
While the court found Dr. Grogan credible, his opinions conflicted with those of
Dr. Arnold-Clark and other medical records that were admitted into evidence. The court
credited Dr. Arnold-Clark’s opinion, given that she was a board-certified child-abuse
pediatrician. The court found that mother was Bethany’s primary custodial parent and
Bethany was always in her care, yet mother had no explanation for Bethany’s injuries.
Father’s explanations were inconsistent and “the more he was interviewed, the more he
admitted to harming Bethany. But even with his admissions, it still doesn’t account for
all the injuries that she suffered.” The court continued, “Given the multiple injuries that
Bethany suffered, given the fact that mother and father were the primary caretakers, and
specifically the mother, given the fact that this was a non-ambulatory infant, . . . the
Court finds that . . . parents knew or reasonably should have known about Bethany’s
injuries.”
       The juvenile court denied family reunification services for mother and father
under section 361.5, subdivisions (b)(5) and (6). The court granted mother monitored
visits two or three times a week, and once a week for father while in custody. The court
set the matter for a section 366.26 hearing on June 5, 2015.
De facto Parent Request
       On May 15, 2015, Bethany’s foster parents, Mr. and Mrs. K., applied for de facto
parent status for Bethany. They attached to the request a letter in which they stated that
Bethany had lived with them for almost 10 months and was healthy and thriving.
Bethany had “formed a strong attachment” to their family and was “flourishing” in their
care. Mr. and Mrs. K. stayed by Bethany’s side and comforted her while she stayed at
two different hospitals in October 2014.
       They also attached a declaration from Bethany’s infant educator, who stated that
Mr. and Mrs. K. had “played an instrumental role in Bethany’s progress. Throughout our

                                              6
sessions, the foster family and other children in the home have showered Bethany with an
abundance of love, affection, and attention.” The Infant Educator continued, “Bethany is
apparently placed in a loving home and she has thrived in the time that she has been
there.”
          Mr. and Mrs. K. also attached a declaration from Dr. Arnold-Clark, who had
become Bethany’s pediatrician. She reported that Mr. and Mrs. K. had been consistently
responsive caregivers, and that Bethany had thrived in their care. She continued, “In
cases of infant brain trauma, it is so important that the caregivers provide a loving,
consistent, interactive home environment to allow the brain to heal,” and that Mr. and
Mrs. K. were providing her with that type of environment.
          On May 19, 2015, Mr. and Mrs. K.’s adoptive home study was approved.
Section 366.26 Report
          The social worker recommended that Bethany remain in the home of Mr. and
Mrs. K. under a permanent plan of adoption. The K.’s did not want a formal post-
adoption agreement but indicated they were open to biological family members having
contact with Bethany.
          Mother continued to have monitored visits with Bethany twice a week for two
hours. Mrs. K. stated that although mother was immature due to her age, she had gained
confidence in interacting with and holding Bethany. Mrs. K. reported that Bethany
would allow mother to hold her, but would become fussy and want to return to Mrs. K.
Father had three visits with Bethany since being placed in custody; he acted appropriately
during the visits.
          Mother appeared at the section 366.26 hearing on June 5, 2015. The court
continued the matter to August 10, 2015, for a contested hearing.
Mother’s Section 388 Petitions2
          On August 3, 2015, mother filed a section 388 petition for modification of the
juvenile court’s order denying family reunification services. Her accompanying

2
          Father also filed a section 388 petition, which he does not discuss on appeal.

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declaration stated: “I have done everything requested of me to demonstrate my love,
commitment, and suitability as a parent for Bethany. I was only 15 years when this case
started, and it has not been easy for me, especially since I do not drive and have to rely on
public transportation or other people to drive me, but my commitment and love of my
daughter has caused me to do whatever I can to get her back.” She attached certificates
showing completion of parenting classes and art therapy, as well as positive letters from
high school teachers. The court set the petition for hearing on August 10, 2015.
       On August 10, 2015, mother filed a second section 388 petition requesting that the
jurisdictional and dispositional findings and orders be vacated and that she be appointed a
GAL. Mother stated: “My attorney was ineffective in representing me in pretrial
proceedings and at trial. I am only 16 years old. I did not understand the proceedings
and was unable to assist my attorney in preparing my case. No guardian ad litem was
appointed to assist me in understanding the proceedings and in assisting my attorney.
Since the trial, my teacher, Barbara [M.], has helped me in understanding the
proceedings.” The petition attached a declaration from Barbara M., who stated that she
was mother’s independent studies teacher and had been a teacher for 20 years at a school
for pregnant and parenting teenage girls. Ms. M. declared that after the section 366.26
hearing was scheduled, mother informed her that she “did not understand anything about
the proceedings,” and that she did not understand a letter from her attorney. The letter
indicated there were no issues to pursue by writ petition and that mother could petition
the appellate court on her own, but mother received the letter the day before the deadline
for filing a petition and her request for an extension was denied. Ms. M. was concerned
that mother “is too young to understand the workings of a system as complex as the
dependency system. And no one has been representing the best interests of this minor
child who also happens to be a mother.”
       At the hearing on August 10, 2015, the juvenile court addressed mother’s second
section 388 petition, noting that “at no point . . . did [mother] indicate to the Court that
[she] wasn’t understanding the proceedings.” Mother’s trial counsel then informed the
court that the second section 388 petition was filed by Barbara M. and that it was being

                                               8
withdrawn. Per the request of mother’s trial counsel, the court set a hearing on the first
section 388 petition. The matter was continued to August 17, 2015.
Combined Sections 388 and 366.26 Hearing
       Mother and father were both present at the combined hearing on August 17 and
August 18, 2015. The juvenile court first addressed mother’s first section 388 petition.
The court denied the petition, finding that mother did not meet her burden of
demonstrating changed circumstances and that granting the petition would not be in
Bethany’s best interest.
       The court then turned to the section 366.26 hearing. Mother testified that she
maintained regular visits with Bethany. The visits would take place at the foster family
agency office, a McDonald’s restaurant, or at a Carl’s Jr. restaurant. During the visits,
mother would play with Bethany, change her diaper, feed her, and read to her. Mother
would also take toys and extra clothes for Bethany. Bethany would smile and laugh
when she saw mother. At the end of the visits, Bethany would watch mother until she
could not see her anymore. Other relatives testified about positive interactions between
mother and father and Bethany.
       Following testimony and the arguments of counsel, on August 18, 2015, the
juvenile court found by clear and convincing evidence that Bethany was adoptable, that
no exception to termination of parental rights applied, and terminated the parental rights
of mother and father. The court designated Mr. and Mrs. K. as the prospective adoptive
parents and granted their request for de facto parent status.
       The appeals of mother and father ensued.
                                      DISCUSSION
       Code of Civil Procedure section 372, subdivision (a), previously required a trial
court to appoint a GAL when a party to a dependency proceeding was a minor. However,
effective January 1, 2009, the Legislature amended Code of Civil Procedure section 372
to allow a parent who is a minor to appear in a dependency proceeding without a GAL.
(Code Civ. Proc., § 372, subd. (c)(1).) The amended statute requires the court to appoint
a GAL if the minor parent is unable to understand the nature of the proceedings or to

                                              9
assist trial counsel in preparing the case. (Code Civ. Proc., § 372, subd. (c)(2).) Also
effective January 1, 2009, the Legislature enacted section 326.7, which states:
“Appointment of a guardian ad litem shall not be required for a minor who is a parent of
the child who is the subject of the dependency petition, unless the minor parent is unable
to understand the nature of the proceedings or to assist counsel in preparing the case.”
       An “error in the procedure used to appoint a guardian ad litem for a parent in a
dependency proceeding is trial error that is amenable to a harmless error analysis rather
than a structural defect requiring reversal of the juvenile court’s orders without regard to
prejudice.” (In re James F. (2008) 42 Cal.4th 901, 915.) Under the harmless error
analysis, we do not set aside a judgment unless a different result would have been
probable had the error not occurred. (In re A.C. (2008) 166 Cal.App.4th 146, 157.)
       Mother argues that the juvenile court had a “sua sponte duty” to appoint her a
GAL due to her young age. This is simply no longer the state of the law.
       Mother makes no showing that she did not understand the nature of the
proceedings or that she was unable to assist her trial counsel in the preparation of her
case. She instead argues that she was afforded no protection in the case as evidenced by
the fact that, despite an order from the juvenile court that mother and father not be
interviewed regarding the allegations in the petition, the DI “persisted” in attempts to
gain information from mother. But it was mother’s own trial counsel who requested the
order in the first place. Additionally, during the interview, mother showed that she did
understand the nature of the proceedings and was able to follow the instructions of her
counsel. When the DI asked mother who normally cared for Bethany, mother answered,
“I cannot answer this question. My attorney told me not to answer any questions
regarding my daughter.” Mother also did not answer questions regarding Bethany’s
doctor’s visits. She answered questions only about things that were not related to the
allegations in the petition.
       Mother’s attempt to show that the appointment of a GAL would have changed the
outcome of this case is unpersuasive. Mother points out that she consented to the filing
of a writ petition after the section 366.26 hearing was set. Her counsel filed a letter in

                                             10
this court indicating there were no meritorious issues and requested an extension for
mother to pursue the writ petition on her own. We granted a 15-day extension, then
mother wrote a letter asking for more time, which we denied. Mother asserts that her
counsel’s determination of no meritorious issues was “flawed.” Mother simply concludes
“[t]here is no doubt the appointment of a GAL would have made a difference.” A
conclusion is not evidence.
       The record shows that mother appeared for every hearing; her trial counsel
retained Dr. Grogan as an expert, and he testified on her behalf at the jurisdiction hearing;
the juvenile court received evidence that mother completed a 12-week advanced
parenting class and art therapy sessions; and the court granted mother a hearing on her
section 388 petition.
       Mother’s reliance on L.Z. v. Superior Court (2010) 188 Cal.App.4th 1285 does not
assist her. There, the reviewing court found there was no evidence that the mother
committed any act of physical abuse on her baby and that reunification services for her
should not have been bypassed. The only evidence of the cause of the baby’s injuries
pointed to the father. The mother and father had incidents of domestic violence, and the
mother expressed concern that the father had caused the baby’s injuries after she learned
of them. (Id. at p. 1289.) In the instant case, the juvenile court found that mother was
Bethany’s primary custodial parent, and that Bethany was always in her care, yet mother
had no explanation for Bethany’s injuries. While father provided explanations for
Bethany’s injuries, the court found that his explanations were inconsistent and “the more
he was interviewed, the more he admitted to harming Bethany. But even with his
admissions, it still doesn’t account for all the injuries that she suffered.”




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                                    DISPOSITION
      The orders terminating mother’s and father’s parental rights to Bethany and
denying mother’s section 388 petition are affirmed.
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.




                                         __________________________, J.
                                               ASHMANN-GERST


We concur:



_____________________________, P. J.
           BOREN



____________________________, J.
           HOFFSTADT




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