Filed 3/25/14
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
K.F. et al., D064534
Petitioners, (San Diego County Super. Ct. No.
NJ14792)
v.
THE SUPERIOR COURT OF SAN
DIEGO COUNTY,
Respondent;
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
Real Party in Interest.
PROCEEDINGS in mandate after referral to a Welfare and Institutions Code
section 366.26 hearing. Harry M. Elias, Judge. Petitions granted in part and denied in
part; stay vacated.
Julie E. Braden for Petitioner K.F.
John P. McCurley, under appointment by the Court of Appeal, for Petitioner M.M.
No appearance for Respondent.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, and Paula J. Roach, Deputy County Counsel, for Real Party in Interest.
Jessica B. Smith, under appointment by the Court of Appeal, for Minor.
At age three months, S.F. was removed from the custody of her parents, K.F.
(Father) and M.M. (Mother) and declared a dependent of the court after her parents
brought her to the emergency room and she was found to have suffered two subdural
hematomas, numerous rib fractures, an elbow fracture, and bruising. After a
jurisdictional hearing, the juvenile court found that (1) the parents committed, knew
about, or reasonably should have known about severe abuse to a child under age five
(Welf. & Inst. Code,1 § 300, subd. (e) (hereafter § 300(e) abuse)), and (2) the parents
failed or were unable to protect the child from serious physical harm (§ 300(b) (hereafter,
§ 300(b) failure to protect)). The court stated its section 300(e) abuse finding was based
on a preponderance of the evidence, and its section 300(b) failure-to-protect finding was
based on clear and convincing evidence. The court thereafter decided to bypass
reunification services under (1) section 361.5(b)(5) based on its section 300(e) abuse
finding, and (2) section 361.5(b)(6) based on its section 300(b) failure-to-protect finding.
In the mandate proceedings before us, Father contends the record does not support
the section 300(e) abuse finding as to him. Both parents challenge the denial of
reunification services.
We conclude there is sufficient evidence to support the court's section 300(e)
abuse finding as to Father. However, we hold the court erred in denying reunification
services to the parents. Denial of reunification services requires findings based on clear
1 Subsequent unspecified statutory references are to the Welfare and Institutions
Code. For convenience, we omit the word "subdivision" when citing to this statute.
2
and convincing evidence. Because the court's section 300(e) abuse finding was based on
a preponderance of the evidence, this finding cannot support denial of services under
section 361.5(b)(5). Further, although the court's section 300(b) failure-to-protect finding
was made by clear and convincing evidence, the record shows that the infliction-of-harm
finding required to bypass reunification services under section 361.5(b)(6) was predicated
on the same facts as the section 300(e) abuse finding, which was established only by a
preponderance of the evidence. Accordingly, the denial of reunification services under
section 361.5(b)(6) is likewise unsupported.
We also reject the Health and Human Services Agency's argument that the mere
existence of a section 300(e) abuse finding satisfies the clear and convincing evidence
showing needed to trigger application of the section 361.5(b)(5) reunification services
bypass provision. Instead, we hold the facts underlying the section 300(e) abuse finding
must be established by clear and convincing evidence.
Father's petition is denied as to the challenge to the sufficiency of the evidence on
the section 300(e) abuse finding. Father's and Mother's petitions are granted as to the
challenge to the denial of reunification services.
FACTUAL AND PROCEDURAL BACKGROUND
I. Overview
S.F. was born in December 2012, when Mother and Father were 19 and 20 years
old, respectively. Mother lived with her parents and two siblings, and Father lived with
his grandmother. As we detail below, on numerous occasions Mother and Father cared
3
for S.F. together. S.F. was also cared for by Mother alone, by Mother's parents, and,
occasionally, by Father's grandmother.
On several occasions in December 2012 and January and February 2013, S.F. was
examined by a pediatrician. At a visit on January 21, 2013, the pediatrician observed that
she was "well appearing." At a visit on February 21, Mother was noted to be "feeling
sad" and was referred to mental health services. At this visit, the parents reported that
S.F. had been throwing up four times a day for two weeks, and the doctor diagnosed a
reflux condition and prescribed medication. The parents reported that S.F. stopped
vomiting about one or two weeks after starting the medication. About one month later,
on March 17, Mother took S.F. to the emergency room because she was eating less, had
not urinated for almost 24 hours, and had "red material" (apparently blood) in her diaper.
S.F. was tested for a urinary tract infection and was again prescribed medication for a
reflux condition.
Five days later, on the morning of March 22, the parents took S.F. to the
emergency room. Medical personnel noted that she was having "periods of apnea" and
she had an "[i]rritable cry" when moved. The parents reported that they stayed at Father's
house the night of March 20. S.F. slept more than usual and did not wake up at her usual
time on the morning of March 21. She initially would not eat but eventually drank two
ounces from her bottle. They noticed her chest was "moving strangely." Father believed
S.F. had a " 'mini seizure' "; she looked at Father but was not focusing; and Father "patted
her to resuscitate her." Father acknowledged that his resuscitation efforts bruised S.F.
4
The parents said that S.F. had another episode later in the afternoon, but seemed fine by
the evening. However, on the morning of March 22, S.F. was "fussy." When she
vomited blood, the parents drove her to the emergency room.
During their examinations, the doctors determined that S.F. had bruises on her
thigh, buttocks, and flank; numerous rib fractures; an elbow fracture; and two subdural
hematomas.2 A shunt was inserted to drain " 'the cerebrospinal fluid from [her] head to
her abdomen.' " She had 14 rib fractures, six on one side and eight on the other.
The San Diego County Health and Human Services Agency (Agency) detained
S.F. in protective custody and filed a petition alleging section 300(e) severe physical
abuse on a child under age five by a parent, or by a person known to the parent if the
parent knew or reasonably should have known about the abuse. The Agency placed S.F.
in the care of her paternal grandfather and his wife, and provided notice it intended to ask
the juvenile court to bypass reunification services and set a section 366.26 permanency
planning hearing.
The jurisdictional and dispositional hearings were held in July and August 2013.
After hearing the evidence, the court (1) found true by a preponderance of the evidence
the section 300(e) abuse count, and (2) amended the petition to add a section 300(b)
failure-to-protect count and found this count true by clear and convincing evidence. At
the disposition hearing, the court declared S.F. a dependent, denied reunification services
under section 361.5, and scheduled a permanency planning hearing.
2 S.F. was also initially diagnosed with a leg fracture and spinal compression
fractures, but these diagnoses were later called into question.
5
II. Evidence Presented at the Jurisdictional Hearing
Several medical experts (Drs. Thomas Grogan, Cynthia Kuelbs, and Mark Nunes)
testified at the jurisdictional hearing regarding the causes, timing, and detectability of
S.F.'s injuries. Additional witnesses included Father and his grandmother, Mother and
her parents, the Agency's social worker, and a psychologist called by Father.
A. Expert Testimony
According to the expert testimony, S.F. suffered more than one episode of
nonaccidental trauma resulting in the subdural hematomas, rib fractures, elbow fracture,
and bruising. Two separate events caused her subdural hematomas; the initial event
would have been "very severe and noticeable," and the second event caused a "second
bleed . . . that . . . layer[ed] on top" of the first bleed. The hematomas could have been
caused by an impact, shaking, or a fall "with some rotation to it." S.F.'s rib fractures
could have been caused by someone grabbing her and compressing her rib cage. Her
bruises were likely caused by some sort of rough handling.
As to the timing of her injuries, the experts stated it was difficult to determine with
precision when the subdural hematomas occurred. The doctors opined the head injury
causing the first subdural hematoma could have occurred around the time of the February
21 pediatrician visit when the parents reported vomiting and irritability. However, Dr.
Kuelbs could not determine how far in advance of the February 21 pediatrician visit the
trauma may have occurred. Further, Dr. Kuelbs acknowledged S.F.'s symptoms in
February could have been related solely to the reflux condition and unrelated to the head
6
injury, and it was not possible to say absolutely when the head injury occurred. Dr.
Kuelbs believed a second head injury resulted in the symptoms that occurred on March
21, the day before she was admitted to the hospital on March 22. Dr. Kuelbs also opined
that at the time of her admission on March 22, S.F. had "symptoms of a diffused brain
injury" but not a lot of blood in her head; her symptoms would not have been explained
solely by a re-bleed of the original hematoma; and this suggested that she suffered "an
injury to her brain and the bleeding was a marker to it." Dr. Grogan testified that S.F.'s
March 22 CT scan showed no evidence of soft tissue swelling; it takes about three to five
days for soft tissue swelling to dissipate; and thus it would be unlikely that S.F. suffered a
head injury within three days of March 22.
Dr. Grogan estimated that on March 22 S.F.'s rib fractures were 10 to 14 days old,
and her elbow fracture was three to five days old. Dr. Kuelbs generally agreed, but
explained it was not possible to determine exactly when the injuries occurred. Dr. Nunes
estimated the rib fractures occurred about seven to 21 days before March 22, and
emphasized the time calculations were "by no means a precise science." According to
Dr. Grogan, the rib fractures could have been caused at the same time or sequentially
within a short period of time. Dr. Kuelbs believed the rib fractures were inflicted at
different times because they were in different stages of healing.
As to detectability of S.F.'s injuries, Dr. Kuelbs testified it would be difficult for a
parent who did not cause or see the infliction of the head injury to know that a subdural
hematoma had occurred. The parent might see a change in the baby, such as irritability,
7
vomiting, and abnormal sleeping, but the parent and doctor might reasonably think the
baby had a viral illness or reflux disease. Similarly, Drs. Kuelbs and Nunes testified that
rib and elbow fractures might not be apparent to parents who did not cause or witness the
infliction of the injuries. Rib fractures are generally painful for a day or two, but unless
the baby screamed when picked up, a parent might think the baby is just fussy. Also, the
elbow fracture might not have caused symptoms because babies "at that age aren't doing
anything to put pressure" on the elbow area.
B. Testimony About S.F. While at Father's and Mother's Homes
The witnesses, including Father, Mother, Father's grandmother (Paternal Great-
grandmother), and Mother's parents (Maternal Grandmother and Maternal Grandfather),
testified consistently regarding the caretaking arrangements for S.F. Mother and S.F.
stayed at both Father's and Mother's homes for several days at a time, going back and
forth between the two residences.
When S.F. stayed at Father's home, Mother was always there. Father and Mother
slept in Father's bedroom, and S.F. slept in a playpen in Father's bedroom for the first two
months while Mother was breastfeeding. In early February, when S.F. was about two
months old, the parents moved S.F. into a separate bedroom (the nursery) that was a few
steps from Father's bedroom and equipped with a baby monitor. If S.F. needed her diaper
changed during the night, Father or Mother would change her in the nursery and then
bring her into Father's bedroom where they had the feeding supplies. S.F. was now
drinking only formula; Father was comfortable with feeding her; and he would
8
sometimes be the one who fed her the bottle. After she finished her bottle and fell asleep,
one of them would take her back to the nursery. Father occasionally bathed S.F. in
Mother's presence, and Mother was always present when Father played with her.
When Father was gone from home taking classes, Mother stayed at Father's home
with S.F. and Paternal Great-grandmother. Paternal Great-grandmother worked from
home; she was almost always there at the residence; and she saw S.F. constantly
throughout the day. Paternal Great-grandmother occasionally fed S.F. or changed her
diaper, and on one occasion took care of S.F. when the parents went to the store, and on
another occasion when they went to a movie. Paternal Great-grandmother testified that
the parents were the main caregivers, and Father was seldom alone with S.F. because
Father and Mother "seemed to want to do everything together" when taking care of S.F.
Father testified he would "swaddle" S.F., meaning "wrapping the baby in the tight
secure blanket so she feels comfortable to go to sleep." He explained he had learned the
technique from hospital personnel; he was "really good" at it; and S.F. had no sleeping
issues at his house. In contrast, Father and Mother testified that Mother was not as good
at swaddling, and because of this S.F. had more trouble falling asleep at Mother's home.
Father submitted a calendar depicting the dates that S.F. was at his home. He
calculated these dates based on iPhone photos he took of her while she was with him,
stating he took photos of her every day that she was in his home. Father's calendar shows
she was with him on a regular basis after her birth until she was removed on March 22,
although there were time gaps of several days when she was not with him. Among these
9
time gaps, Father claimed that S.F. was not with him for a 14-day period from February 8
through February 21.3 Mother testified that Father accurately charted the dates she and
S.F. were at Father's house based on the iPhone photos. Paternal Great-grandmother
concurred with Father that S.F. was not at their home for about 10 days to two weeks in
February.
When S.F. was at Mother's home, she slept with Mother in Mother's bedroom.
She was cared for primarily by Mother, with assistance from Maternal Grandmother and,
to a lesser extent, Maternal Grandfather. Maternal Grandparents took care of S.F. when
Mother went shopping about once a week; when she took a shower or a nap; and for a
couple of days (February 14 to 16) when Mother and Father went to Catalina. Sometimes
when S.F. cried at night, Maternal Grandmother would take S.F. from Mother's room so
Mother could rest.
All of the witnesses agreed that other persons who stayed or visited at Mother's or
Father's residences did not take care of S.F. Further, all of S.F.'s caretakers testified they
did not do anything that might have injured S.F.; they did not know she had been injured;
they never were concerned that someone was injuring her; and they did not know who
caused the injuries. The caretakers testified that S.F. never cried out in pain or cried
excessively, and no one ever saw anyone handle her roughly or inappropriately. Father
said that Mother told him and the pediatrician that she was happy being a mother but was
3 Father's calendar indicated that S.F. was at his home on the following dates:
December 21-23, 25-27; January 2-3, 5-7, 16-20, 26-28; February 4-7, 22-24, 26-28; and
March 4-8, 11-15, 20-22.
10
"suffering depression issues." However, Father never had any concerns about how
Mother interacted with S.F.; Mother "seemed to be happy"; and they were "all together as
a family." Mother testified she never saw S.F. acting like she was in pain on the
occasions when Father brought her from the nursery into his bedroom for feeding.
At the time of S.F.'s February 21 pediatrician appointment, Father was concerned
about S.F.'s "spit-up issues" and "heavy breathing," but the doctors told them nothing was
wrong. Mother testified that at the time of this appointment, S.F.'s "spitting up" had
increased "[a] little" and the reflux medication she was prescribed helped this condition.
Paternal Great-grandmother was also concerned about S.F.'s health because of the
spitting up and breathing problems and because her eyes looked like she did not "feel
good." After the February pediatrician appointment, Paternal Great-grandmother helped
the parents change S.F.'s health plan so she could have a new pediatrician, and they had
been expecting to have an appointment with a new doctor in April.
Father testified that on the afternoon of March 11 when Mother and S.F. arrived at
his house, Mother told him she had seen a bit of blood in S.F.'s diaper. Later that same
day, Father saw blood in her diaper. Father was a "little concerned" and the parents
decided to wait and observe S.F. because she did not appear to be in pain and was acting
normally. Father saw no more blood during the next three and one-half days that S.F.
stayed at his house.
Father provided additional details about what occurred in the hours before S.F.
was brought to the emergency room on March 22. Father testified the morning of March
11
21 when he picked S.F. up in the nursery and removed her diaper, she went into a
"breathing episode" and her eyes were "staring off." He placed her in a "burping
position" on his chest, and Mother (who had joined him in the room) said "do
something." Father placed "a very firm hand" on S.F.'s backside; patted her; and then
applied more force by hitting her instead of patting her. Father was in a panic, and he
used what he described as "excessive force" because S.F. was not responding normally.
After about 15 to 20 pats or hits, S.F. urinated and defecated on him, opened her eyes,
and cried.
Father testified that he was concerned because of this incident and her "spit-up"
issues. However, Father and Mother decided to observe S.F. but not take her to the
emergency room because she had been to the doctor numerous times, and Mother had
just taken her on March 17 to the emergency room where she was fully examined,
determined to be fine, and again diagnosed with the reflux condition. S.F. appeared
lethargic, did not want to eat, and took a nap. About one hour later she was playful and
normal. However, she only drank about two ounces from her bottle, and then vomited.
Thereafter she had another episode of heavy breathing with no eye contact, and Father
again applied force to her back. They then decided to give her the reflux medication she
had been prescribed; it appeared to work because she ate again and had no more episodes.
S.F. slept with Mother and Father that night. The next morning while Father was in the
bathroom, Mother called for him and he ran into his bedroom. Mother was holding S.F.;
there was blood and vomit coming from S.F.'s mouth; and S.F. was not making eye
12
contact. Father took her and again applied "a firm hand," but was unable to "snap her out
of it this time." The parents then took her to the emergency room.
Father acknowledged that he was negligent when he did not take S.F. to the
hospital on March 21, and that he caused the bruising on her back and buttocks area.
However, he claimed that he never squeezed her in the chest area excessively and his
handling of her was otherwise "gentle and appropriate." Paternal Great-grandmother,
who witnessed the second incident on March 21, agreed that Father used more pressure
than usual when S.F. appeared to stop breathing, but his conduct was not alarming.
C. Additional Testimony
Social worker Shari Medeiros opined that one parent inflicted the injuries to S.F.
and the other parent knew about the abuse and failed to protect her. Medeiros noted the
parents were the primary caretakers, and on March 21 the parents knew S.F. was not
breathing or was nonresponsive and yet they decided to wait and not take her to the
doctor. She opined that reunification services should not be provided because she did not
think services would prevent the abuse from recurring.
Psychologist Robert Kelin, called by Father, testified that psychological testing
raised no concerns that Father had a propensity towards violence. However, Dr. Kelin
was somewhat concerned that Father decided not to take S.F. to the emergency room
when she was symptomatic on March 21. When Dr. Kelin asked Father what he wanted
to see happen at the hearing, Father responded he would like S.F. back in his care;
however, "[u]nderstanding the circumstances of the injuries and all of the accusations, he
13
knew that was not going to happen"; and he wanted the investigation to continue. Given
the severity of S.F.'s injuries and lack of information about their cause, Dr. Kelin
concluded that "caution must be taken to protect" her, and recommended that Father
continue with supervised visitation and receive reunification services. He testified he did
not know whether Father abused S.F., but he opined Father was not "in denial about
[S.F.'s] problems" and Father was fully "capable of benefiting from services."
S.F.'s current caretaker (Paternal step-grandmother) testified that S.F. has incurred
no injuries since being placed in her care.
III. Trial Court's Rulings
A. Findings at Jurisdictional Hearing
At the conclusion of the jurisdictional hearing, the court concluded that the expert
testimony showed S.F.'s multiple rib fractures were likely the result of compression and
her subdural hematomas were likely caused by some form of shaking. The court assessed
the "swaddling" efforts made by the parents, done improperly, could have resulted in
both compression and shaking. The court stated it was more likely than not that the
injuries occurred during the caretaking by one or both of the parents, and it could not
determine which parent committed the abuse, although it suspected it may have been
Mother. Based on this conclusion, the court found true the section 300(e) abuse
allegation against both parents, but emphasized that its section 300(e) abuse finding was
based on a preponderance of the evidence, and it could not reach this finding by clear and
convincing evidence.
14
The court then amended the petition to add a section 300(b) failure-to-protect
count. The court found this second count true by clear and convincing evidence "based
on the same factual averments" as the section 300(e) abuse count.4
B. Denial of Reunification Services at Dispositional Hearing
At the conclusion of the dispositional hearing, the court denied reunification
services to the parents pursuant to section 361.5, and set a section 366.26 permanency
planning hearing. In support of the denial of reunification services, the court stated it was
finding "by clear and convincing evidence" that S.F. had been adjudicated a dependent
"as a result of the infliction of severe physical harm, and that the court found earlier that
harm was caused by the parents." Further, the court found there was no evidence
presented that it would be in S.F.'s best interests to provide reunification services.
IV. The Writ Petition
In the writ of mandate proceeding before us, Father challenges the section 300(e)
abuse finding as to him, and both parents challenge the denial of reunification services.
The parents do not challenge the section 300(b) failure-to-protect finding. We issued an
order to show cause, the Agency responded, and the parties waived oral argument.
4 We note that the written section 300(b) allegation added by the court actually
tracks the language of section 300(a), which concerns harm inflicted by a parent, not
failure to protect. However, when this discrepancy was pointed out by the Agency's
counsel, the court added failure-to-protect language to the written second count. It is
clear from the record that the allegation and true finding on the second count are based on
section 300(b) failure to protect.
15
DISCUSSION
I. True Finding for Section 300(e) Abuse as to Father
Father contends there is insufficient evidence to sustain the court's section 300(e)
abuse finding as to him. Mother does not challenge this finding.
When reviewing a challenge to the sufficiency of the evidence, we consider the
entire record, view the evidence in the light most favorable to the judgment, and indulge
in all reasonable inferences that support the judgment. (In re L.K. (2011) 199
Cal.App.4th 1438, 1446; In re Joshua H. (1993) 13 Cal.App.4th 1718, 1728.) " '[A]ll
conflicts are to be resolved in favor of the prevailing party, and issues of fact and
credibility are questions for the trier of fact.' " (In re E.B. (2010) 184 Cal.App.4th 568,
575.) If the circumstances reasonably support the trier of fact's findings, reversal is not
warranted merely because the circumstances might also be reasonably reconciled with a
contrary finding. (In re L.K., supra, 199 Cal.App.4th at p. 1446.)
Section 300(e) provides for dependency court jurisdiction when: "The child is
under the age of five years and has suffered severe physical abuse by a parent, or by any
person known by the parent, if the parent knew or reasonably should have known that the
person was physically abusing the child." The jurisdictional finding may be made by a
preponderance of the evidence. (§ 355(a); In re A.S. (2011) 202 Cal.App.4th 237, 244.)
A section 300(e) abuse finding may be based on circumstantial evidence showing
that the parents knew or reasonably should have known about the abuse, even when it
cannot be determined which caretaker inflicted the abuse. (See In re E.H. (2003) 108
16
Cal.App.4th 659, 670.) Drawing all reasonable inferences in favor of the court's ruling,
the circumstances support that Father either committed or was in a position to know
about the abuse.5
There is no dispute that S.F.'s injuries were not accidental. In determining who
was responsible, the court could consider that Mother and Father were S.F.'s primary
caretakers; they were new parents taking care of their first child; and the only other
caretakers (Maternal Grandparents and Paternal Great-grandmother) were older and had
raised children apparently with no abuse allegations. Further, the court could have
questioned Father's and Mother's credibility given their failure to seek medical assistance
on March 21 even though during two episodes on that date S.F. displayed highly
alarming symptoms related to her breathing and responsiveness. The court could
reasonably infer that if the parents had a clear conscience, the fact that S.F. had just been
to the emergency room on March 17 would have compelled them not to delay, but to
immediately seek medical help when dramatic symptoms emerged four days later. In
other words, if they were truly unaware that S.F. was being abused, the traumatic
episodes on March 21 would have increased their alarm, not caused them to merely wait
and observe.
5 When finding the section 300(e) abuse allegation true for both parents, the court
did not mention the component of the statute which allows jurisdiction to be taken when
the parent knew or should have known about the abuse. Nevertheless, counsel cited this
aspect of the statute during arguments before the court; we presume the court is aware of
the relevant law (People v. Mack (1986) 178 Cal.App.3d 1026, 1032); and on appeal we
imply findings that reasonably support the ruling (SFPP v. Burlington Northern & Santa
Fe Ry. Co. (2004) 121 Cal.App.4th 452, 462).
17
Also, the juvenile court was not required to accept the visitations calendared by
Father as conclusive evidence showing he could not have inflicted or learned about the
abuse. First, the trial court was entitled to conclude that Father's claim that he took
photographs of S.F. each time she was at his house did not establish a full and accurate
record of his contact with her. For example, the record shows Father accompanied
Mother to the February 21 pediatrician visit, and yet Father's calendar excludes this date.
Second, the experts' estimations of the dates of the injuries were not so precise as to
firmly rule out that Father was present when the abuse occurred. According to the
experts, the first subdural hematoma could have occurred around the time of the February
21 pediatrician visit when S.F. was vomiting. According to Father's chart, he was with
S.F. on February 4 through 7, and not with her from February 8 through 21. However,
Dr. Kuelbs acknowledged she could not definitely state that the February 21 symptoms
were the result of a head injury rather than reflux disease, nor could she pinpoint
precisely when any head injury occurred before the February 21 visit. Third, the experts'
estimates of the possible timeframes for the rib fractures contained dates that overlapped
with some of the visitation dates calendared by Father.6
Moreover, the record reflects that Mother and Father spent considerable time
together jointly caring for S.F. The record shows that Mother alternated between her
home and Father's home on a regular basis; that she frequently spent the night with
6 For example, Dr. Grogan's estimate that the rib fractures occurred 10 to 14 days
before March 22 overlapped with Father's calendared visits on March 8, 11 and 12. Dr.
Nunes's estimate that the rib fractures occurred seven to 21 days before March 22
overlapped with Father's calendared visits on March 4 through 8 and 11 through 15.
18
Father; and that both parents participated in feeding and diapering S.F. The court could
reasonably infer that the frequency of Father's contact with S.F. and Mother and his
hands-on participation in S.F.'s care gave him a substantial opportunity to either commit
the abuse or become aware that the abuse was occurring.
Further, contrary to Father's suggestion, the court's abuse finding is not defeated
by the experts' testimony that S.F.'s injuries were not likely observable unless the person
committed or witnessed the abuse. As stated, the record supports that Father was an
actual perpetrator or in a position to find out about the abuse, which establishes the
requisite knowledge of the abuse notwithstanding that S.F.'s symptoms might not
otherwise trigger abuse concerns.
In short, the court could reasonably conclude that it was more likely than not that
Father either inflicted, knew about, or should have known about the abuse because he
was S.F.'s primary caretaker along with Mother; Father and Mother spent a significant
amount of time jointly caring for S.F.; it was unlikely that S.F.'s other caretakers (her
grandparents and great-grandmother) inflicted the abuse; there was no definitive evidence
establishing that Father was not present when the abuse occurred; and Father evinced a
consciousness of guilt when he delayed bringing S.F. to the emergency room on March
21 in the face of alarming symptoms.7
7 With respect to the contrary conclusion reached by the dissent, we agree that when
an appellant challenges the sufficiency of the evidence, the reviewing court considers the
entire record. However, where substantial evidence, including reasonable inferences
drawn from the evidence, supports the trial court's factual finding, an affirmance is
appropriate. The fact that contrary evidence exists which could support a different
19
II. Denial of Reunification Services
The parents argue the court erred in denying reunification services. We agree. As
we shall explain, the court's section 300(e) abuse finding by a preponderance of the
evidence does not satisfy the clear and convincing evidence showing required for denial
of services under section 361.5(b)(5). Further, the court's section 300(b) failure-to-
protect finding by clear and convincing evidence cannot, on this record, reasonably
encompass a clear and convincing showing of infliction of severe physical harm required
for denial of services under section 361.5(b)(6) because the severe-physical-harm finding
was based on the same facts as the section 300(e) abuse finding.
A. Statutes Governing Bypass of Reunification Services
Section 361.5(b) provides that reunification services "need not be provided to a
parent or guardian . . . when the court finds, by clear and convincing evidence, any of the
following . . . ." (Italics added.) The statute then sets forth a list of circumstances that
qualify for denial of services. (§ 361.5(b)(1)-(16).) Here, the court cited subdivision
(b)(5) and (b)(6) of section 361.5 to deny services.
Section 361.5(b)(5) permits the denial of reunification services when 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." (Italics added.) Thus, section
finding is not the test. In our view, the dissent relies on evidence that supports a
conclusion the trier of fact could have reached, without regard to evidence that supports
the conclusion reached by the trial court here. As an appellate court, we cannot substitute
our judgment for that of the trier of fact when the latter is supported by substantial
evidence. (In re E.B., supra, 184 Cal.App.4th at p. 578.)
20
361.5(b)(5) concerns denial of reunification services in cases involving section 300(e)
abuse to a child under age five. (See In re Joshua H., supra, 13 Cal.App.4th at pp. 1731-
1732 [§ 361.5(b)(5) applies to § 300(e) finding for parent who committed, or knew or
reasonably should have known about, abuse].) Further, the statute provides that when
section 361.5(b)(5) applies, the court shall not order reunification services unless it finds
that the services "are likely to prevent reabuse or continued neglect of the child or that
failure to try reunification will be detrimental to the child because the child is closely and
positively attached to the parent." (§ 361.5(c).)
Section 361.5(b)(6) permits denial of services 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 . . . 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." (Italics added.) Thus, section
361.5(b)(6) concerns denial of reunification services in cases involving any section 300
finding, and can apply to a section 300(b) failure-to-protect finding if the case concerns
the infliction of severe physical harm by a parent. Section 361.5(b)(6) defines infliction
of severe physical harm as including, but 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 or animal with the consent of the parent or guardian . . . ." (Italics
added.) When the court denies services under section 361.5(b)(6), the court must "read
into the record the basis for a finding of . . . the infliction of severe physical harm . . . ."
21
(§ 361.5(k).) The statute also provides that when section 361.5(b)(6) applies, the court
shall not order reunification services unless it finds "by clear and convincing evidence,
that reunification is in the best interest of the child." (§ 361.5(c).)
B. Trial Court's Explanation of its Rulings Based on Sections 361.5(b)(5) and (b)(6)
When denying reunification services, the court relied on section 361.5(b)(5) based
on its section 300(e) abuse finding, and on section 361.5(b)(6) based on its section 300(b)
failure-to-protect finding.8 The court stated section 361.5(b)(5) applied because the
existence of the section 300(e) abuse finding was established by clear and convincing
evidence. Further, the court stated section 361.5(b)(6) applied because it found by clear
and convincing evidence that S.F. was adjudicated a dependent "pursuant to any
subdivision [of section] 300" and "she was found so as a result of the infliction of severe
physical harm, and that the court found earlier that harm was caused by the parents."9
C. Analysis
Although jurisdictional findings can be established by a preponderance of the
evidence, the denial of reunification services requires clear and convincing evidence.
(§ 361.5(b); In re Ethan C. (2012) 54 Cal.4th 610, 616-617, 626; Tyrone W. v. Superior
8 We note the court's minute order states it was denying reunification services under
section 361.5(b)(5), and erroneously omits the court's explicit reliance on section
361.5(b)(6) at the disposition hearing.
9 When making its ruling under section 361.5(b)(6), the court did not expressly cite
its section 300(b) failure-to-protect finding as the basis for this ruling. However, it is
apparent from the record that the section 300(b) failure-to-protect finding underlies the
section 361.5(b)(6) ruling since this is the only count that was found by clear and
convincing evidence at the jurisdictional hearing.
22
Court (2007) 151 Cal.App.4th 839, 846; Raymond C. v. Superior Court (1997) 55
Cal.App.4th 159, 164.)
Here, the court affirmatively stated that it could not make its section 300(e) abuse
finding by clear and convincing evidence and that the record supported the finding only
by a preponderance of the evidence. Because the court's section 300(e) abuse finding
was made only by a preponderance of the evidence, it cannot support the court's denial of
reunification services under section 361.5(b)(5).
Further, although the court found the section 300(b) failure-to-protect allegation
true by clear and convincing evidence, under the particular circumstances of this case the
finding cannot reasonably be construed as encompassing a showing of infliction of severe
physical harm by clear and convincing evidence that is required for denial of services
under section 361.5(b)(6). The failure-to-protect statute allows for a jurisdictional
finding when the "child has suffered, or there is a substantial risk that the child will
suffer, serious physical harm or illness, as a result of the failure or inability of his or her
parent . . . to adequately supervise or protect the child . . . ." (§ 300(b); see In re A.S.,
supra, 202 Cal.App.4th at p. 246 ["The evidence supports a reasonable inference that one
of the caretakers injured [child], and concomitantly, a reasonable inference that [child]
was at substantial risk of serious physical harm . . . in the parents' home as a result of
their failure or inability to adequately protect her."].) In contrast, section 361.5(b)(6)
allows for denial of reunification services upon a showing of "infliction of serious
physical harm . . . by a parent," which can be based on a finding of "deliberate and
23
serious injury . . . by an act or omission of the parent . . . , or of another
individual . . . with the consent of the parent . . . ." (Italics added.) It is apparent that the
infliction-of-harm language used in the reunification bypass provision is much more
narrowly tailored than the broad failure-to-protect language of section 300(b), which
reflects that a failure-to-protect finding does not necessarily equate with an infliction-of-
harm finding for purposes of denying reunification services.
Because failure to protect may not always constitute infliction of harm to trigger
the reunification bypass statute, it follows that a failure-to-protect finding based on clear
and convincing evidence does not automatically translate into an infliction-of-harm
finding by clear and convincing evidence. (See, e.g., Pablo S. v. Superior Court (2002)
98 Cal.App.4th 292, 301 [discussing facts supporting that failure to protect rose to the
level of infliction of serious injury by omission under section 361.5(b)(6)]; see also
Tyrone W. v. Superior Court, supra, 151 Cal.App.4th at pp. 851-852 [reunification
services may be denied under section 361.5(b)(6) if parent had actual knowledge of
abuse].) Reflective of the distinct nature of the infliction-of-harm requirement, section
361.5(k) requires the court to "read into the record the basis for a finding of . . . the
infliction of severe physical harm . . . ." when denying services under section 361.5(b)(6).
(See In re Rebekah R. (1994) 27 Cal.App.4th 1638, 1651 [court should set forth separate
finding supporting application of section 361.5(b)(6) notwithstanding jurisdictional
finding on same issue].)
24
When denying reunification services, the court apparently recognized the need to
explain why its finding of failure to protect constituted infliction of severe physical harm
within the meaning of section 361.5(b)(6). The court explained that its section 300(b)
failure-to-protect ruling was based on its finding that the "infliction of severe physical
harm . . . was caused by the parents." Thus, in this case, the court's section 361.5(b)(6)
finding that the parents' act, omission, or consent caused the harm is supported by the
same facts underlying the section 300(e) abuse finding—i.e., that each parent was
responsible for S.F.'s injuries because the parent either committed the abuse or was in a
position to know about the other parent's abuse. Consistent with this, the court stated at
the jurisdictional hearing that the section 300(b) failure-to-protect finding was based on
the "same basic factual averments" as the section 300(e) abuse finding.
Because the court expressly confined its section 300(e) abuse finding to a
preponderance of the evidence and the section 361.5(b)(6) infliction-of-harm finding was
derived from the same facts, we cannot reasonably construe the record as meeting the
clear and convincing requirement for denial of reunification services.
We reject the Agency's contention (which was adopted by the juvenile court) that
a section 300(e) abuse finding automatically triggers the section 361.5(b)(5) reunification
bypass provision, even when the facts underlying the section 300(e) abuse finding were
proven only by a preponderance of the evidence. The Agency contends, and the court
ruled, that the mere existence of the section 300(e) abuse finding satisfied the clear and
25
convincing standard for application of the section 361.5(b)(5) bypass statute. We find
this interpretation of the statute unpersuasive.
When interpreting a statute, we consider the statutory scheme as a whole, and
construe the language in a commonsense manner and with the goal of effectuating
legislative intent. (Watershed Enforcers v. Department of Water Resources (2010) 185
Cal.App.4th 969, 978-979.) The relevant language in section 361.5 states: "(b)
Reunification services need not be provided to a parent or guardian described in this
subdivision when the court finds, by clear and convincing evidence, any of the following:
[¶] . . . (5) That the child was brought within the jurisdiction of the court under
subdivision (e) of Section 300 because of the conduct of that parent or guardian." The
Agency argues that the clear and convincing evidence requirement applies only to the
fact that the court made a section 300(e) abuse finding, and not to the facts underlying the
finding. When viewing the statutory language in the context of the entire statutory
scheme and the expressed legislative intent, we do not find the Agency's interpretation
persuasive.
When a court has made a section 300(e) abuse finding at the jurisdictional phase,
the mere fact of its existence will be apparent at the dispositional phase simply because
the section 300(e) ruling is part of the record. It serves no purpose to impose a clear and
convincing evidence requirement on the existence of a finding that is obviously part of
the record. Further, the broad reference to a clear and convincing evidence standard in
the introductory sentence of section 361.5(b) reflects a legislative intent to condition
26
denial of reunification services on a heightened level of proof beyond the preponderance
of the evidence standard applicable to jurisdictional findings. To effectuate the
Legislature's expressed intent to require proof by clear and convincing evidence before
denying reunification services, we conclude the court must find that the facts establishing
the section 300(e) abuse finding were clearly and convincingly proven.
The Agency's citation to In re Troy Z. (1992) 3 Cal.4th 1170 does not support its
contention that a section 300(e) abuse finding automatically triggers application of the
section 361.5(b)(5) bypass provision. The Troy Z. court merely stated in general fashion
that a juvenile court is directed not to provide reunification services if jurisdiction is
based on section 300(e), and it did not mention or discuss whether the section 300(e)
finding must be based on clear and convincing evidence. (Troy Z., supra, at p. 1174.)10
Because the clear and convincing evidence requirement was not satisfied, the
court's decision to bypass reunification services cannot be sustained.
DISPOSITION
Father's petition is denied as to his challenge to the court's jurisdictional finding
under section 300(e). The petitions are granted as to the denial of reunification services.
The stay issued on January 9, 2014, is vacated. The juvenile court is directed to vacate its
order setting a section 366.26 hearing and to order the Agency to offer reunification
services to Mother and Father.
10 In Troy, the court held the parents' no contest plea to a section 300(e) allegation
barred an appellate challenge claiming their conduct did not fall within section 300(e).
(In re Troy Z., supra, 3 Cal.4th at pp. 1172, 1179-1180.)
27
HALLER, J.
I CONCUR:
HUFFMAN, Acting P. J.
28
MCINTYRE, J., concurring and dissenting.
I agree with the majority's conclusion the juvenile court erred in denying
reunification services under section Welfare and Institutions Code section 361.5,
subdivision (b)(5) and (6), and join in Part II of the opinion. (Undesignated statutory
references are to the Welfare & Institutions Code.) I respectfully dissent from the
majority's conclusion there is substantial evidence to support a jurisdiction finding under
section 300, subdivision (e) as to K.F.
Where the identity of perpetrator cannot be established, a jurisdictional finding
under section 300, subdivision (e) may be sustained where the child was constantly in the
custody of his or her parents. (L.Z. v. Superior Court (2010) 188 Cal.App.4th 1285, 1293
citing In re E.H. (2003) 108 Cal.App.4th 659 (E.H.).) The majority applies this holding
to a parent whose child was not constantly in his care and who had other caregivers
during the entire period in which her injuries were likely to have been inflicted. In view
of the entire record, I do not believe a trier of fact could reasonably conclude that K.F.
physically abused his daughter, or knew or reasonably should have known that a person
was physically abusing her. (§ 300, subd. (e).)
In E.H., the reviewing court concluded there was substantial circumstantial
evidence to show that the parents seriously physically abused their three-month-old baby
or reasonably should have known she was being physically abused by a member of their
household. The baby was never out of the parents' custody and remained with a family
member at all times. The baby slept on the floor near a bed occupied by a blind,
developmentally disabled adult who habitually rolled out of bed and dragged herself
around the apartment, the baby cried whenever she was handled and the parents did not
follow up on the baby's diagnosis of colic. (E.H., supra, 108 Cal.App.4th at pp. 669-
670.)
Here, the parents lived in separate households. S.F. was not in her father's custody
at all times. The record belies the majority's assertion K.F. was in a position to find out
about the abuse. He did not live with the maternal grandparents. There is no reason to
assume K.F. knew all the people who lived at the maternal grandparents' home, their
histories or behaviors, or any potential hazards at that home. (The majority omits
evidence showing that an uncle, who had a history of crime and violence, his girlfriend,
and two male cousins, also lived or stayed in the maternal grandparents' home.) On this
record, the juvenile court could not draw a reasonable inference that K.F. was responsible
for the abuse. (E.H., supra, 108 Cal.App.4th at pp. 669-670 [where a perpetrator cannot
be identified, the trier of fact can reasonably infer the parents were responsible for the
abuse when the child was constantly in the parents' custody during the time the injuries
were inflicted].) Further, there is no substantial evidence to show that a trier of fact could
conclude that K.F. severely physically abused his child or "reasonably should have
known that the person was physically abusing the child." (§ 300, subd. (e).)
In examining the record for substantial evidence, we do not limit our review to the
evidence favorable to the respondent. (People v. Johnson (1980) 26 Cal.3d 557, 576
(Johnson).) " 'It is not enough [to] simply . . . point to "some" evidence supporting the
2
finding," because not every piece of evidence " ' "remains substantial in the light of other
facts." ' " (Id. at p. 577.) According to the pediatric child abuse experts, it was medically
reasonable to believe that S.F.'s irritability, vomiting, and changes in behavior and sleep
patterns were caused by a viral illness or reflux. A parent who did not know about the
abuse would notice only that the baby was fussy. S.F.'s elbow fracture would not
necessarily have been apparent because a three-month-old would not put any pressure on
the injured area. S.F.'s rib fractures would not have been obvious, particularly to a first-
time parent.
The majority's view the juvenile court could consider the absence of "definitive
evidence establishing that Father was not present when the abuse occurred" shifts the
burden from the agency to prove its case to the parent to disprove it. (Maj. opn.,
Discussion, part 1, at p. 18.) Further, contrary to the majority's view, the record supports
K.F.'s argument his daughter was not in his care during the time some of her injuries
were inflicted.
According to the testimony of the medical experts, the first subdural hematoma
likely occurred in mid-February when the parents reported symptoms of vomiting and
irritability. The record indicates S.F. was not in K.F.'s care from February 8 to
February 21. S.F. was in her mother's care during this period, with help from the
maternal grandparents, except from February 14 to 16, when the parents went to Catalina,
leaving S.F. in the grandparents' care. S.F.'s elbow fracture was three to five days old on
3
March 22, indicating it was inflicted on or about March 17 to 19. The record shows that
K.F. did not have any contact with his daughter from March 16 to the evening of
March 20. S.F. was distressed on March 17, prompting her mother to take her to the
emergency room. The majority discredits K.F.'s timeline because it does not indicate he
was present at S.F.'s pediatric visit on February 21. However, a review of the entire
record shows that K.F.'s timeline was offered to show the days he cared for his daughter
at his home. He also testified he took S.F. to her pediatric visits on January 7 and 21, and
February 21.
The majority points out that K.F. cared for S.F. during the period of time in which
her rib fractures were likely inflicted. I do not believe it is reasonable to infer K.F. was
responsible for S.F.'s rib fractures when she was left alone with other caregivers during
that time. The record lacks other evidence that would tend to corroborate an inference of
abuse. K.F. was not an angry or violent person. He had no history of mental illness,
crime, substance abuse or child protective referrals. He supported M.M. during her
pregnancy, accompanied her to prenatal appointments, set up a nursery in his home and
was present when S.F. was born. Unlike M.M., K.F. did not suffer from depression.
Unlike M.M., who was awkward and uncomfortable with S.F., K.F. competently and
lovingly cared for his daughter. She slept soundly at K.F.'s home, waking up only for
regular feedings. By contrast, according to testimony from M.M. and the maternal
grandparents, S.F. cried all night at M.M.'s home.
4
I disagree with the majority's view the trier of fact could reasonably conclude that
K.F. "evinced a consciousness of guilt" when he delayed seeking medical care for S.F. on
March 21. The majority's view is based on isolated evidence and disregards S.F.'s history
of "good pediatric care" during the periods in which she likely sustained the majority of
her injuries. The record shows that K.F. did not avoid seeking medical care for his
daughter during that time. On March 21, he was advised by his grandmother, who was
present during S.F.'s second incident of 30 to 40 seconds duration, merely to watch S.F.
and take her to the doctor if she had another episode. According to his grandmother, S.F.
appeared to be her "normal, little . . . self" the rest of the day. The following morning,
when S.F. was in distress, K.F. immediately brought her to the hospital. Viewed in the
context of the record as a whole, there is no reasonable evidence to support a finding that
K.F. avoided seeking medical care for his child because he physically abused his
daughter or knew she was being physically abused. (People v. Johnson, supra, 26 Cal.3d
at p. 576 [not every inference is reasonable in light of the entire record].)
I would not infer a parent was responsible for severe physical abuse where the
identity of the perpetrator is unknown, the child was not constantly in the care of that
parent, and the child had other caregivers during the time the injuries were likely
inflicted. Accordingly, I would reverse the jurisdictional finding under section 300,
subdivision (e) as to the father. Although I concur with the majority's view the juvenile
court erred when it denied reunification services under section 361.5, subdivision (b)(5)
5
and (6), in the absence of a jurisdictional finding under section 300, subdivision (e), the
father would be statutorily entitled to reunification services. (§ 361.5, subd. (a).)
McINTYRE, J.
6