Filed 2/28/14 In re H.M. CA3
                                          NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     THIRD APPELLATE DISTRICT
                                                         (Butte)
                                                            ----




In re H.M., a Person Coming Under the                                                   C072703
Juvenile Court Law.
                                                                             (Super. Ct. No. J-36364)
BUTTE COUNTY DEPARTMENT OF
EMPLOYMENT AND SOCIAL SERVICES,

                   Plaintiff and Respondent,

         v.

HEATHER V.,

                   Defendant and Appellant.




         Mother Heather V. appeals the juvenile court’s order denying her reunification
services. She concedes her son H.M. (the minor) suffered severe physical abuse, but
contends there is not sufficient evidence that she either committed the abuse or that she
knew or should have known her child had been abused. We agree and shall reverse the
juvenile court’s order denying mother reunification services.


                                                             1
                 FACTUAL AND PROCEDURAL BACKGROUND

       The minor was born in April 2011. Mother consistently took him in for his well-
baby checkups and no musculoskeletal abnormalities or problems were noted. On
May 4, 2012, at his 12- to14-month examination, mother reported the minor cried when
he put pressure on his right wrist and did not seem to be using the wrist when crawling.
Despite this report, the medical provider did not note or suspect any problems, and
indicated examination of the minor’s extremities and musculoskeletal systems was
normal. There was no swelling or discoloration of the wrist and it could be manipulated.
On May 7, 2012, mother took the minor to the emergency room for X-rays, again
reporting he seemed to avoid use of his right arm when crawling. Mother reported that a
large dog had knocked the minor down. On examination, the doctor noted the “[o]verall
symptomatology seems somewhat minimal. He is able [to] use that elbow, but will not
bear weight on it during crawling. . . . There were no fractures evident on the x-ray;
however, given the child’s age it is possible that there may be some sort of occult
fracture.” The doctor diagnosed the minor with an acute elbow sprain and placed him in
an arm splint.

       One week later, on May 15, 2012, mother again brought the minor to the
emergency room. On May 11 or 12, the minor had fallen backwards and hit his head.
Mother also reported the minor had hit his head on a toy once or twice. Mother noticed a
bump on his head and called the doctor. The doctor advised her it was not necessary to
come to the hospital unless the minor was vomiting. The minor appeared fine; he
continued to play, crawl and acted normally.

       On May 15, 2012, mother’s boyfriend watched the minor while mother went to the
store. Earlier in the day, the minor had been active and playing. When she got home,
mother went to check on the minor and he was not responding normally. She picked him
up and he turned really pale and threw up. Mother immediately took him to the hospital.



                                             2
The only thing mother could think of that could have caused the minor’s injuries was the
fall a few days earlier; she was not aware of the minor being dropped or falling in any
other fashion.

       Due to the severity of his injuries, the minor was flown to Sacramento for further
treatment. Mother returned home to get additional clothes. She advised her boyfriend
that the minor was being flown to Sacramento and told him to leave the apartment and
take his belongings.

       The minor had a severe complex skull fracture with at least two impact sites.
There were also multiple subdural hematomas. The examining doctors suspected child
abuse, in part because the injuries were not consistent with the minor hitting his head on a
toy or being knocked over by a dog. Angela Rosas, M.D., a child abuse expert, consulted
on the case. She indicated the minor’s injuries were consistent with a high force head
injury. “The story of the pit bull happening [two] weeks ago is not consistent with the
severity of this head injury. The child also has a significant injury to the right arm. . . .
This is also a significant injury and unlikely caused by the family dog. There are also no
abrasions or bite wounds to indicate that there was injury from a dog.” Dr. Rosas also
told the social worker that the impact to the minor was the type that could happen from a
fall from a three-story building or severe auto accident, not from a simple fall in the
home. Subsequent reports indicated the minor had a right forearm fracture with obvious
healing callus, a right supracondylar humerus fracture, a left distal tibia-fibula fracture,
and signs of healing. The right forearm fracture and tibia-fibula fracture appeared older.
On May 19, Lehman Black, M.D., reported the minor’s arm fracture was “unexplained”
and “not fully investigated.” Dr. Black also noted the investigation by Child Protective
Services and law enforcement suggested mother’s boyfriend was the abuser.




                                               3
       Mother stayed in Sacramento from May 15 to May 21. She was allowed to sleep
in the minor’s hospital room, hold him, feed him, and change him. The minor was
released from the hospital on May 21, 2012, and placed in a foster home.

       The Butte County Department of Employment and Social Services (Department)
filed a Welfare and Institutions Code section 3001 petition alleging serious physical harm
based on the physical abuse (§ 300, subd. (a)), failure to protect as to both the physical
abuse and mother’s drug use (§ 300, subd. (b)), and severe physical abuse of a child
under the age of five years old (§ 300, subd. (e)). The juvenile court found the
allegations of the petition true and declared the minor a dependent.

       The minor lived with mother from birth to May 15, 2012. Mother admitted to the
social worker that she would test positive for marijuana and Vicodin if she were tested.
Mother also reported father had a substance abuse problem. Mother’s boyfriend had
essentially lived with mother for the preceding two or three months. He was also
prescribed methadone. The foster mother reported the minor appeared afraid of men.

       The minor healed well physically. He was developmentally on target and did not
exhibit any learning disabilities or behavioral problems. Mother participated in services,
including a parenting support group, drug treatment, and drug testing. Mother did not
test positive for marijuana, but did test positive for methamphetamine on June 7, 2012.
Mother failed to test on June 14 and admitted she had used methamphetamine on two
occasions. Between June 14 and August 30, 2012, mother had six negative tests and
failed to test on three occasions. Between August 30 and October 8, 2012, mother had
two negative tests and three failures to test. At the dispositional hearing in November
2012, mother provided a number of reasons for the missed tests, including repeated
hospitalizations. After the minor was injured, mother obtained a restraining order against


1 Undesignated statutory references are to the Welfare and Institutions Code.


                                              4
her boyfriend and her only contact with him was to assist law enforcement. As a
nonoffending parent, father was considered for placement, but based on his drug use and
lack of relationship with the minor, the minor was not placed with him. Father
participated in services and was developing a bond with minor. Both parents participated
in supervised visits three times per week. The visits went well and both parents had good
attendance.

       The minor showed a positive bond with both parents. He communicated well with
mother and reached for her at the beginning of visits. He was always happy to see
mother and exhibited no fear or anxiety going to her. The minor was affectionate with
mother and appeared to enjoy spending time with her.

       The social worker acknowledged visits were going well for both parents and that
mother was making progress in services. However, the social worker was concerned
about mother’s drug testing. She did not think mother could benefit from services until
she stopped using drugs.

       The Department recommended mother not be offered reunification services based
on the bypass provisions of section 361.5, subdivision (b)(5) and (6).2 Specifically, that
the minor was brought under the jurisdiction of the juvenile court based on mother’s
conduct (§ 361.5(b)(5)) or that mother herself inflicted severe physical abuse on the child
and reunification would not benefit the child (§ 361.5(b)(6)). The Department
recommended services be provided to father.

       The Department and father’s counsel argued the court should order reunification
services to father and deny them to mother. Counsel for mother and the minor both
argued the court should grant mother services. Minor’s counsel argued that the minor



2 We will refer to these subdivisions as section 361.5(b)(5) and section 361.5(b)(6),
respectively.

                                             5
was closely and positively attached to both parents and mother appeared to be benefitting
from services, although minor’s counsel was also concerned about mother’s missed drug
tests.

         The juvenile court denied mother reunification services, finding the bypass
provisions of sections 361.5(b)(5) and 361.5(b)(6) applied. Specifically, the court stated,
“Mother in this case knew or reasonably should have known that another person was
physically mistreating the child. This child had numerous fractures, fractures in different
stages of healing. And due to the severity of the injuries, the mother should have known
something was wrong with her child. [¶] The doctor who examined the child and had
been given the explanations that Mom stated were responsible for those injuries said that
her explanations were not consistent with the injuries, that the impacts they saw on the
skull could come from a fall from a three-story building or a severe auto accident, but not
from a simple fall in the home. And she, Dr. Rosas, noted that the fractures were at
opposite places on the skull. And so we not only had impact fractures to the skull, we
had them to the right arm, right humerus fracture, healing tibia, fibula on the left side, and
an ankle fracture. And due to the various stages of healing, they did not all happen at the
same time. [¶] With regards to [section] 361.5(b)(6), the Court should apply this when
the physical harm was inflicted by the parent or guardian whether by act or omission.
And this Court finds that there is sufficient evidence that the harm was inflicted by Mom
by her omission.” The juvenile court also found mother had not consistently drug tested
and found her reasons for not testing were not credible. The court ordered reunification
services for father.

                                        DISCUSSION

         As a general rule, reunification services are offered to parents whose children are
removed from their custody, in an effort to eliminate the conditions leading to loss of
custody and to facilitate reunification of parent and child. This furthers the goal of


                                               6
preservation of family, whenever possible. (Raymond C. v. Superior Court (1997)
55 Cal.App.4th 159, 163.) But recognizing that it may be fruitless to provide
reunification services, the Legislature has enacted statutory exceptions to providing
reunification services under section 361.5, also known as reunification “bypass”
provisions. (§ 361.5, subd. (b)(1)-(15); Tyrone W. v. Superior Court (2007)
151 Cal.App.4th 839, 845-846 (Tyrone W.).) We review the juvenile court’s order
denying reunification services under section 361.5, subdivision (b) for substantial
evidence. (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96.) Mother
contends the trial court erred in finding both bypass provisions of sections 361.5(b)(5)
and 361.5(b)(6) applied, as there was not substantial evidence to support these findings.

    I. There Is Not Substantial Evidence to Support the Denial of Reunification
                        Services Under Section 361.5(b)(6)

       Section 361.5(b)(6) provides, in pertinent part, that reunification services need not
be provided when a court finds by clear and convincing evidence that “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 . . . by a parent or guardian, as defined in
this subdivision, and the court makes a factual finding that it would not benefit the child
to pursue reunification services with the offending parent or guardian. [¶] . . . [¶] A
finding of the infliction of severe physical harm, for the purposes of this subdivision, may
be based on, but is not limited to, deliberate and serious injury inflicted to or on a child’s
body . . . by an act or omission of the parent or guardian, or of another individual . . . with
the consent of the parent or guardian . . . .” When services are denied under section
361.5(b)(6), subdivision (k) of this section (hereafter, section 361.5(k)) requires the court
to state on the record the basis for the finding of infliction of severe physical harm and
specify the factual findings used to determine that the provision of reunification services
to the offending parent would not benefit the child.



                                              7
       Mother does not challenge that the injuries inflicted on the minor constituted
deliberate and serious injury. The Department does not address the propriety of the
finding under section 361.5(b)(6) and appears to properly concede it does not apply.

       The juvenile court found that section 361.5(b)(6) applied by virtue of mother’s
omissions. In general, subdivision (b)(6) applies to the parent who inflicted the severe
physical harm on the minor (In re Kenneth M. (2004) 123 Cal.App.4th 16, 21, and
“requires identification of the perpetrator [of the abuse] and [section 361.5(k)] requires
certain factual findings not made by the juvenile court here.” (Kenneth M., at p. 21.)
However, the application of subdivision (b)(6) “is not limited to the parent or parents
whose act directly caused the child’s injury.” (Tyrone W., supra, 151 Cal.App.4th at
p. 851.) Infliction of severe physical harm may be based on “an act or omission” of the
parent or “of another individual . . . with the consent of the parent.” (§ 361.5(b)(6), 3d
par.) For example, where parents are aware of their child’s constant pain and
disfigurement resulting from an accidentally broken leg, their failure to seek medical
attention for two months constituted infliction of severe physical injury by omission.
(Pablo S. v. Superior Court (2002) 98 Cal.App.4th 292, 301; see Tyrone W., supra,
151 Cal.App.4th at p. 851.) Further, where a father observed the mother’s acts of
physical abuse of their child and took no action to protect him, and the child suffered
obvious physical injury, the father may be found to have inflicted harm by omission or
consent. (See Tyrone W., supra, at p. 851, citing Deborah S. v. Superior Court (1996)
43 Cal.App.4th 741, 744-745.) “[O]mission and consent both require actual knowledge,
if not of the physical harm itself, then of another’s abusive acts.” (Tyrone W., supra,
151 Cal.App.4th at p. 851.) Section 361.5(b)(6) does not apply to a negligent parent.
(Tyrone W., at p. 851.)

       Here, there is no evidence mother knew of the physical harm being inflicted on her
child, or knew of another’s abusive acts and failed to act. There is no evidence that


                                              8
mother failed to seek medical attention for the minor in the face of obvious physical
injury or symptoms of pain. In fact, the evidence is directly to the contrary. Mother
consistently took the minor in for his well-baby checkups and there were no concerns or
injuries noted. When mother saw noticeable signs of injury, either in the child not using
his right arm or being listless and vomiting, she immediately took him in for medical
treatment. The initial examinations of the minor did not reveal that his arm was broken.
There is no evidence mother knew about the abuse inflicted upon the minor and either
consented to it or failed to act to prevent it, thus allowing it to continue. Moreover, the
juvenile court did not make the requisite factual findings under section 361.5(k).
Accordingly, denial of reunification services cannot be predicated on section 361.5(b)(6).

    II. There Is Not Substantial Evidence to Support the Denial of Reunification
                        Services Under Section 361.5(b)(5)

       Section 361.5(b)(5) provides that reunification services may be denied to a parent
if the juvenile court finds by clear and convincing evidence 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.” It does not require identification of the perpetrator.
As used in subdivision (b)(5), “conduct” “refers to the parent in the household who knew
or should have known of the abuse, whether or not that parent was the actual abuser.” (In
re Kenneth M., supra, 123 Cal.App.4th at p. 21.)

       In finding mother knew or should have known of the abuse, the juvenile court
relied upon the number of injuries in various stages of healing and the severity of the
injuries and concluded she “should have known something was wrong with her child.”
There is no question the minor sustained numerous severe injuries, and it appears those
injuries occurred over time.

       As to the older injuries, there is no evidence in the record that there were any
obvious signs of those injuries or that mother should have been aware of those signs.


                                              9
There is no evidence that the child had any impaired ability as a result of those injuries.
There is no evidence the minor exhibited symptoms of pain or had any visible sign of
injury. Mother was consistent in taking her child in for well-baby checkups. At none of
those examinations did any medical professional note an injury or concern regarding the
minor’s musculoskeletal system. No examining doctor ever reported any concerns
regarding impaired development or abilities of the minor. There is simply no evidence
that mother should have been on notice that someone was abusing the minor nor was
there any evidence offered to show what mother should have known. (L.Z. v. Superior
Court (2010) 188 Cal.App.4th 1285, 1292-1293.)

       As to the broken right arm and the injuries sustained on May 15, the juvenile court
relied on the doctors’ expert opinions that mother’s explanations of the injuries were not
consistent with the injuries sustained, specifically, that the injuries to the skull could not
have been caused by a fall in the home or falling on a toy. But, mother never claimed the
minor’s head injuries were caused by a fall in the home or the minor hitting his head on a
toy. Rather, mother reported that the fall was the only thing she could think of that could
have caused a head injury. She was not aware of any other falls or bumps to the head.
Mother also made clear she was not home with the minor in the 45 minutes directly
preceding his vomiting and admission to the hospital. That is, she did not know the cause
of the head injury. Similarly, the history as relayed by Dr. Rosas, including the
explanation of injuries, is not the same as the actual explanations provided by mother.
Dr. Rosas found “[t]he story of the pit bull happening [two] weeks ago is not consistent
with the severity of this head injury. The child also has a significant injury to the right
arm. . . . This is also a significant injury and unlikely caused by the family dog. There
are also no abrasions or bite wounds to indicate that there was injury from a dog.” Again,
mother never reported that the child’s head injuries were as a result of the minor being
knocked down by a dog. Mother reported the minor’s arm was injured when he was



                                              10
knocked down by a dog. The doctors who initially examined the minor for his arm injury
did not find this explanation inconsistent with the injury or suspect abuse. In fact, it was
not clear, even with X-rays that the child had sustained a broken arm. Moreover, a small
child being knocked down by a large dog is not the sort of incident that would necessarily
result in abrasions or bite wounds. The lack of those types of injuries does not
demonstrate the explanation is inconsistent with the injury sustained.

       “Substantial evidence is evidence that is reasonable in nature, credible, and of
solid value. (People v. Johnson (1980) 26 Cal.3d 557, 576.) . . . [E]xpert medical
opinion evidence that is based upon a ‘ “guess, surmise or conjecture, rather than
relevant, probative facts, cannot constitute substantial evidence.” ’ (Lockheed Martin
Corp. v. Superior Court (2003) 29 Cal.4th 1096, 1110; see Place v. Workers’ Comp.
Appeals Bd. (1970) 3 Cal.3d 372, 378.)” (In re Anthony C. (2006) 138 Cal.App.4th 1493,
1504.) Nor are expert medical opinions based on inadequate or erroneous medical
history or examinations substantial evidence. (Place v. Workers’ Comp. Appeals Bd.,
supra, 3 Cal.3d at p. 378.) Here, the expert opinions that mother knew or should have
known the minor was being abused were not based on accurate medical histories. As
such, those opinions cannot be substantial evidence to support the denial of reunification
services under section 361.5(b)(5).

       The evidence does not support a finding that mother knew or should have known
the minor was abused. Nor does the evidence in this record raise the inference that
mother should have known of the existence of older injuries or that they were caused by
abuse. Mother immediately reported injuries to her child and acted on the medical advice
she was given. Once the severity of the minor’s head injuries became apparent, and that
they were not accidental, mother immediately kicked the boyfriend out of her house, got
a restraining order against him, and assisted law enforcement in their investigation. (See
L.Z. v. Superior Court, supra, 188 Cal.App.4th at p. 1293.)


                                             11
      We recognize that mother faces many challenges in successfully reuniting with the
minor, not the least of which is her substance abuse problems. On the record before us,
however, the evidence does not support the denial of services under either sections
361.5(b)(6) or 361.5(b)(5).

                                       DISPOSITION

      The order denying mother reunification services is reversed.




                                                      BUTZ                  , J.



We concur:



      BLEASE                  , Acting P. J.



      MURRAY                  , J.




                                               12
