Filed 7/2/14 In re K.S. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re K.S., a Person Coming Under the
Juvenile Court Law.
E059401
SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES, (Super.Ct.No. J246643)
Plaintiff and Respondent,
v.
D.E. et. al.,
Defendants and Appellants.
___________________________________
In re Z.S., a Person Coming Under the E059947
Juvenile Court Law.
___________________________________ (Super.Ct.No. J250415)
SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES, OPINION
Plaintiff and Respondent,
v.
K.S.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Cheryl C. Kersey,
Judge. Affirmed.
1
The Law Offices of Johnson & Johnson and Carin L. Johnson for Defendant and
Appellant father, K.S.
Diana W. Prince, under appointment by the Court of Appeal, for Defendant and
Appellant mother, D.E.
Jean-Rene Basle, County Counsel, and Jeffrey L. Bryson, Deputy County
Counsel, for Plaintiff and Respondent.
In two separate appeals, which this court has consolidated, K.S. (father) appeals
the juvenile court’s orders terminating parental rights pursuant to Welfare and Institutions
Code1 section 366.26 over K.S., born June 2012 (In re K.S., case No. E059401
(E059401)), and denying family reunification services for Z.S., born May 2013 (In re
Z.S., case No. E059947 (hereafter, E059947)). In his appeal of the termination of
parental rights, father contends he received ineffective assistance of counsel (IAC) from
his retained attorney at a prior hearing for K.S. In his appeal regarding the denial of
family reunification services for Z.S., father contends there were insufficient findings to
support the bypass of services. To the extent applicable to her, D.E. (mother) joins in all
of father’s arguments. We ordered the three matters currently pending (E059401,
E059947, and E060130) to be considered together, and we stayed adoption proceedings
1All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
2
regarding K.S. pending further order.2 We now affirm the orders of the trial court, lift the
stay, and address the writ by separate order.
I. PROCEDURAL BACKGROUND AND FACTS3
A. Summary Taken From E058045 and E059401 (Involving K.S.)
On November 2, 2012, the San Bernardino County Children and Family Services
(CFS) filed a section 300 petition on behalf of K.S., who was four months old at the time.
The petition alleged that the child came within the provisions of section 300, subdivisions
(a) (serious physical harm), (b) (failure to protect), and (e) (serious physical abuse)
because, while in the care, custody, and control of mother and father (the parents), the
child sustained a spiral fracture to his arm, inflicted by nonaccidental means. The
petition also alleged that father failed to protect the child, in that he failed to consistently
provide a safe environment for him and failed to seek immediate medical attention for
him. (K.S. v. Superior Court (June 11, 2013, E058045) [nonpub.opn.] (hereafter,
E058045), pp. 2-3.)
The social worker filed a detention report and stated that on October 31, 2012,
while the child was being examined at his regularly scheduled doctor’s appointment, the
2 On December 12, 2013, we consolidated E059401 with E059947 for purposes
of briefing, oral argument and decision. We designated E059401 as the master file. That
same day, we ordered that the petition for writ of habeas corpus filed in E060130 be
considered with the appeal in E059401, and that further proceedings with respect to
adoption of K.S. be stayed pending resolution of the appeal. The petition for writ of
habeas corpus will be addressed by separate order.
3
On August 30, 2013, we incorporated the record in E058045 with the record in
E059401. To the extent possible, this section is taken from the facts our opinion in
E058045.
3
doctor found a spiral fracture to the child’s right arm. The doctor reported to a social
worker that the injury was inflicted on the child and was consistent with child abuse. The
parents could not explain how the child was injured. Father stated that it may have been
caused by the child trying to crawl; however, when asked whether the child was able to
crawl or walk, since he was only four months old, father said no. Father also reported
that mother’s sister said she saw the child fall on his arm and twist his arm behind his
back. When questioned further for an explanation of the child’s injury, father said that
sometimes mother would grab the child and put him in bed with them. Father reported
that the child had been staying with the maternal grandmother the past several days,
while he and mother were away. However, they returned on October 30, 2012, and the
child had been in their care since 4:00 p.m. that day. Father suggested that the injury
could have accidentally occurred at the maternal grandmother’s house.
Mother adamantly denied knowing how the child had suffered the spiral fracture.
She said that when she picked the child up from her mother’s home on October 30, 2012,
he seemed cranky, but she did not notice anything wrong with his arm. When questioned
further, mother stated that her sister said the child was lying in his playpen with his arm
twisted, moving around a lot. Mother also stated that perhaps the child’s arm was injured
when he was pulled out of his car seat. Mother denied any domestic violence in the
home, that she or father abused the child, or that her family could have injured the child.
She believed the injury could have resulted from the child rolling around.
The child was transported to Loma Linda University Medical Center (Loma
Linda) to be seen by a forensic medical examiner. Dr. Andrea Thorp reported that the
4
injury was consistent with child abuse and that the child would be admitted to the
hospital for a complete examination to check for other injuries.
The court held a detention hearing on November 5, 2012, at which time it removed
the child from the parents and detained him in foster care.
The social worker filed a jurisdiction report on November 20, 2012, and
recommended that the court sustain the petition and order reunification services for the
parents. The social worker reported that the child had sustained three nonaccidental
injuries over a period of approximately two to four weeks. The child had the spiral
fracture of his right arm, and indications of two older fractures to his ankle and one of his
ribs. Dr. Amy Young opined that the rib fracture appeared to be about two weeks older
than the arm fracture, but she was not able to determine a time frame for the ankle
fracture. The ankle fracture and rib fracture were never treated. The social worker
reported there was no indication the maternal grandmother harmed the child, since she
had no history of child abuse, substance abuse, or domestic violence.
The social worker concluded that because the child’s arm discomfort did not
appear until after he returned to the parents’ care, the spiral fracture occurred while in
their care and custody. However, both parents gave inconsistent and conflicting
explanations of how the child could have sustained his injuries. Father eventually
admitted that the child may have slipped out of his hands when he was playing Superman
and had to grab the child to prevent him from falling on the floor. The social worker
spoke with several people who had concerns that father had been abusive or controlling
with mother. The parents admitted they argued but denied any domestic abuse. The
5
social worker recommended services, since the parents had never received any previous
services and the matter was still being investigated by the police.
A jurisdiction/disposition hearing was held on November 26, 2012, and the matter
was set contested and continued.
In an addendum report filed on December 31, 2012, the social worker changed her
recommendation to “no reunification services” for the parents, based on the police
concluding their investigation and finding sufficient evidence to charge father with child
endangerment. Several witnesses stated they had seen him being abusive with his former
girlfriend. Other witnesses said they had seen him become so angry with mother that he
punched holes in the walls, with the child present. Father was also observed “rough-
housing” with the child, even when the child was just a few weeks old. Father’s ex-
girlfriend told the police that she feared him being alone with their children because he
had extreme anger issues. Father was arrested and arraigned, and he posted bail in
December 2012.4
The social worker reported that Dr. Young did a follow-up examination with the
child on December 14, 2012, and she stated that the healing fractures of the ribs were
4 On March 19, 2014, father requested that we take judicial notice of a “copy of
the minute order/plea agreement/sentencing sheet” in his criminal case. According to the
plea agreement, on October 25, 2013, father entered a plea bargain agreement wherein he
pled nolo contendere to negligent infliction of injury to a child pursuant to Penal Code
section 273a, subdivision (a). He was sentenced to probation with credit for time served
and ordered to complete a 52-week child abuse prevention program. Because our
resolution of the issues raised on appeal is not dependent on the resolution of the criminal
charges filed against father, we decline the request.
6
consistent with “front to back squeezing of the ribcage/chest” of the child and were
consistent with a finding of child abuse.5 Dr. Young further stated the rib fractures
occurred close to the time of the arm fracture. Dr. Young also noted that the arm fracture
was spiral in description, which implied a “twisting mechanism of injury.” She opined
that the fracture was an inflicted injury that was consistent with child abuse.
A copy of the police report was provided to the parties and the court. The police
interviewed father, who said he did not think his son had been abused. Rather, he
believed the injury was a “one time accident.” He suggested that the child possibly had
brittle bones; however, Dr. Young denied the child having such disease. Dr. Young told
the officers that fracture to the child’s arm was severe, causing a lot of pain. The injury
would have been very noticeable to anyone, since the child would not have moved his
arm and would have cried in pain if it was manipulated while dressing or bathing him.
Because these symptoms were not seen while the child was at the maternal
grandmother’s house, Dr. Young opined that the injury occurred after the child returned
home on October 30, 2012. When asked whether rolling over the child, dropping him six
inches, or dropping him four feet from overhead and catching him by one arm, could
cause the arm fracture, she said none of those actions would produce enough twisting
force needed to cause the arm injury. Dr. Young said the rib fractures were caused by
someone squeezing the child, but since she could not date the rib injuries, they could
have occurred any time in the weeks before the doctor’s appointment.
5 The number of rib fractures is unclear, since the initial report indicated there
was one, but later reports indicated more than one.
7
When confronted with evidence of the child’s past ankle fracture and rib
fracture(s), father said he did not “feel that the test results were very clear.” He denied
causing the child’s injuries. The interviewing officer asked if he would take a polygraph
examination, and father agreed. During the test, father was asked if he caused the injury
to the child’s arm, and father said no. The polygraph showed that father was not telling
the truth when he answered that question. When confronted with the polygraph results,
father admitted that he lied. He then said he accidentally dropped the child six to 12
inches and caught him by his arm. Father went over the events of the evening prior to the
doctor’s appointment and said the child seemed irritated. The child would not take his
bottle at first, but eventually did. Mother took a shower that evening, and during that
time, father played with the child and dropped him. The following morning when the
parents gave the child a bath, they noticed that it “bugged” him when they washed his
right arm. They decided to ask the doctor about it at his appointment. When asked about
the other injuries, father said he could not think of anything that would have caused them.
He said the child’s ankle was possibly injured when he (father) “flopped” on the couch
next to the child and hit the child’s ankle with his arm.
A contested jurisdiction/disposition hearing was held on February 5, 2013.
Mother testified that she had no explanation for the child’s injuries, except the arm
fracture. She said the arm fracture could have happened when father was playing with
the child. She had no idea who broke the child’s rib(s), but did not think father did it.
Mother also testified that when she picked up the child at 4:00 p.m. on October 30, 2012,
from her mother’s house, the child was fine. She said she first noticed that his arm
8
appeared to be injured when she was bathing him before the doctor’s appointment the
next morning. She agreed that the child’s arm was broken sometime between 4:00 p.m.
on October 30, 2012, and 8:00 a.m. on October 31, 2012. Father was called to testify but
invoked his Fifth Amendment right to refuse to answer questions, due to his criminal
charges. The social worker also testified and said it was not in the best interest of the
child to offer services to the parents. She opined that their failure to accept responsibility
was a good indicator that there would be a continued risk to the child if he was to be
returned to them.
After hearing oral argument and reviewing the reports and documents submitted,
the trial court found that the child came within section 300, subdivisions (a), (b), and (e),
and declared him a dependent of the court. The court found father to be the presumed
father of the child. The court stated that the parents only wanted to “sit back and claim
accidents, or [that they did not] know, or it [was] a disease without any evidence . . . .”
The court then denied reunification services to both parents pursuant to section 361.5,
subdivision (b)(5), noting that neither of them had admitted any abuse and that they were
covering for each other. The court also found that neither parent had shown that services
would prevent reabuse. The court set a section 366.26 hearing and authorized CFS to
place the child in a prospective concurrent planning home pending the hearing.
Father filed a writ petition, which we denied in an unpublished opinion. Mother’s
writ petition was dismissed based on a no-issue letter from her counsel. On March 11,
2013, Father substituted Valerie Ross to replace his counsel, David Booth. The first
addendum report prepared for the March 19, 2013, contested placement hearing
9
recommended that the child be placed in the concurrent plan home under a court-ordered
permanent plan of adoption. The maternal grandparents were ruled out for placement
because the social worker feared the child would be at risk of further injury or abuse due
to their willingness to believe the injuries were accidental and minimal, along with their
inability to articulate a clear plan of how they would protect the child if the parents
requested to take him without supervision. The court heard the testimony of the maternal
grandmother and considered the argument of counsel. In denying placement with either
set of grandparents, the trial court observed: “[T]he Court is not convinced that either of
those two sides of the family can provide a safe, secure, and stable environment for the
child; that they can exercise proper and effective care and control of the child; that they
can provide the home and necessities of life for the child; protect the child from the
parents, which is most important here, and to make sure, basically, that the child is safe.”
On July 26, 2013, both parents filed a joint section 388 petition. The changes
asserted included their completion of parenting and anger management classes, and
another doctor’s opinion that the child was not abused. The petition claimed the doctor’s
opinion was new evidence that supported setting aside the dispositional order. On
August 6, 2013, at the outset of the section 366.26 hearing, the trial court considered the
parents’ joint section 388 petition. CFS and the child’s counsel opposed the petition. As
to whether a prima facie case had been established, they pointed out that all of the
medical evidence had been available to the parties much earlier, at the time of the
jurisdiction/disposition hearing, and the parents failed to show that “reasonable diligence
10
was made with respect to getting the information at the time of the trial,” or to provide a
satisfactory explanation why they failed to produce it at that time.
The trial court denied the section 388 petition, concluding, “What you have
offered here is a potential different interpretation that could easily have been presented at
JD.” The court added that the new evidence “merely offers speculation, so the request
does not state new evidence or change of circumstances.”
The trial court then terminated parental rights over the parents’ objections;
however, neither parent testified or offered evidence.
B. Summary Taken From E059947 (Involving Z.S.)
On July 22, 2013, CFS filed a section 300 petition on behalf of Z.S., who was two
months old at the time. Father is the presumed father. The petition alleged the child
came within the provisions of section 300, subdivisions (b) and (j), because he was at risk
for abuse based on K.S.’s physical abuse and the previous no-family reunification order
for the parents. The child was placed in the same foster home as his brother, K.S. On
July 23, Z.S. was ordered temporarily detained. The first parental visit went well; the
child was healthy, happy, and developmentally on track, and the foster parents wanted to
be considered for adoption.
The jurisdiction/disposition report filed on August 9, 2013, recommended no
family reunification services be offered to either parent. Three grounds were alleged to
bypass services, namely, section 361.5, subdivision (b)(7) (parent was denied services as
to the child’s sibling), subdivision (b)(10) (parent failed to reunify with the child’s
sibling), and subdivision (b)(11) (parent’s parental rights over child’s sibling were
11
terminated). Father claimed that three professionals would corroborate his “accident”
theory regarding K.S.’s injuries. The parents were still living together.
On September 9, 2013, CFS filed with the court the same sheriff’s investigation
report that had been introduced as evidence in K.S.’s jurisdiction/disposition hearing.
The next day, Father filed his substitution of attorney, identifying Carin L. Johnson as his
trial counsel. At Ms. Johnson’s request, the contested jurisdiction hearing was continued
to October 8, 2013. On September 17, mother’s counsel was relieved based on a conflict
of interest, and David Levy was appointed as her counsel.
Prior to the hearing, father submitted a proposed trial brief and exhibits from
Dr. Charles J. Hyman and Dr. Thomas Grogan. Father hoped to disprove the section 300,
subdivision (e) allegation as to K.S. based on evidence that all of his injuries occurred at
the same time and at a location far from the parents and unknowing to the parents.
On October 7 and 8, 2013, the trial court conducted Z.S.’s jurisdiction/disposition
hearing. Father’s counsel, Ms. Johnson, informed the court that Dr. Grogan would testify
that “just because there is a spiral fracture does not mean, per se, abuse without
question.” Rather, the doctor would testify that, given the time of the spiral fracture, it
could have occurred accidentally by someone else. Ms. Johnson wanted to cross-
examine Dr. Young about the timing of the rib fractures and to discover her credentials in
bone science. Finally, Ms. Johnson offered that Dr. Hyman would testify that a four-
month-old child’s bones are different from another four-month-old child’s bones, such
that a generalized opinion that certain fractures resulted from abuse is not possible. The
doctor would also state that K.S. did not have any ankle fracture. Mother’s counsel
12
joined in Ms. Johnson’s request to offer the above testimony so that mother could
determine whether K.S.’s injuries were accidental or deliberate, and could weigh that
information in deciding whether she should stay with father.
Counsel for CFS and the child objected to the proposed medical testimony on the
grounds of collateral estoppel. Citing In re Joshua J. (1995) 39 Cal.App.4th 984, counsel
argued that the allegations involving K.S.’s injuries were adjudicated and found to be
true. They asserted that while father had a right to litigate the issue of current risk to
Z.S., he had no right to “backdoor” new evidence about K.S. into Z.S.’s case.
In response, Ms. Johnson asserted that father received incompetent representation
of counsel, because counsel (Mr. Booth) had failed to obtain a second medical opinion to
challenge Dr. Young’s opinion. Ms. Johnson expressed concern that the trial court did
not have all the evidence before it to make an informed decision. She noted that the
section 388 petition, which attempted to introduce a contradicting medical opinion, was
denied and she opined there would likely be a writ of habeas corpus.
The trial court denied father’s request to call medical experts because there was “a
final judgment on the merits of [K.S.’s] case . . . [and father is] collaterally estopped.”
CFS moved various reports into evidence and asked the court to “take judicial
notice of [K.S.’s] case.” Ms. Johnson objected, based on lack of notice. Two social
workers testified at the hearing. Both expressed concern that the child appeared to be at
risk because the parents were still cohabitating and neither had shown any responsibility
for what had happened to the child’s sibling. Although there were no “immediate, that-
day, safety issues,” the social worker returned the day of her initial visit with a detention
13
warrant. After removal, visitation between the child and the parents went well, and one
of the social workers opined there was a bond between them. Nonetheless, CFS was
concerned about the future risk of harm to Z.S., given the parents’ continued insistence
that K.S.’s injuries were accidental, not abuse.
Father and mother submitted their certificates of completion for parenting and
anger management classes, which they had obtained in April 2013. Mother testified. She
stated that she now believed father had caused K.S.’s injuries and she bore some
responsibility for failing to supervise his rough playing with the child. If she had Z.S. in
her care, she would not allow father to be alone with him. Mother acknowledged father’s
anger problems but maintained he had changed. Though mother was still living with
father, she testified that she would leave him and move in with her mother if necessary to
get her children back.
Father’s counsel argued that Z.S.’s case should be dismissed, or at the very least,
the child should be returned to the parents under a plan of family maintenance with court
supervision. Counsel pointed out the differences in how father was behaving towards
Z.S. when compared to his prior behavior with K.S. Mother’s counsel acknowledged that
mother was young, 20 years old, and she failed to stand up to father regarding his actions
towards K.S.; however, “[t]his is what . . . would be the benefit of counseling; that she
would get more of a backbone and be able to stand up a little stronger.” The court noted
that mother had changed in her view of father’s actions and assured counsel that it did not
want him to “try the old case.” Counsel analogized mother standing up for father to
situations where politicians’ wives stand up next to them. He explained that she, like
14
politicians’ wives, do so because “they had their dream.” However, if leaving father and
“abandoning her dream for the perfect white-picket fence with the house and family and
kids” is necessary to get her children back, she is willing to do it.
Counsel for the child and CFS argued there was a preponderance of evidence to
support the allegation that there is a substantial risk of physical harm to Z.S., who was
only a few months old and unable to protect himself. Counsel pointed out that K.S. was
“able to remain safely with his parents for about the same amount of time as [Z.S.] did
prior to his removal . . . .” Both counsel argued for no reunification of services pursuant
to section 361.5, subdivision (b)(7), (b)(10) and (b)(11).
The trial court denied father’s motion to dismiss pursuant to section 355.1. It then
sustained the allegations of the petition, noting the previous order terminating parental
rights as to a sibling. Recognizing that mother is really the only parent who has a chance
of reunifying with Z.S., the court ordered reunification services for her but denied them
as to father. The court observed, “Mother’s 20 years old. She is [sic] always appeared to
the Court as somewhat—I hate to use these words, but I’m going to—weak. Her mother
was here last time during the trial, and I think it was partly her upbringing. She has never
really stood up for herself, and I can’t teach her that. She is going to have to learn that on
her own. . . . [¶] The father has engaged in services pending this case . . . however, the
Court doesn’t see an opportunity or positive feeling or anything from the father that I
think that he can engage in reunification services and be successful.” The court urged
mother to separate from father and show that she can be protective of her children. A
section 366.21, subdivision (e) hearing was set.
15
Father’s counsel indicated father’s intent to pursue services on his own with a plan
of later filing a section 388 petition. Thus, counsel asked if CFS could informally
provide a list of services. Recognizing that it would be easier for father if CFS were to
offer services to him, the court stated: “I don’t think it would do any good at this point. I
think Mother needs to focus, and she needs to focus on one thing. I don’t want them
going to services together. I don’t want them visiting the child together. I don’t want
anything together because she needs to stand up and prove herself. It has to be on her.”
Separate, supervised visitation was ordered for both parents and Z.S. was placed in the
same concurrent planning home as his brother.
II. DISCUSSION
A. Ineffective Assistance of Counsel
Father contends that because he received IAC at the initial critical stages of K.S.’s
dependency, he suffered termination of his parental rights for K.S. and denial of
reunification services for Z.S. More specifically, he claims the trial court lacked
contradictory medical evidence in order to fully consider CFS’s claim that K.S.’s injuries
resulted from child abuse. He further faults his counsel for being unprepared and failing
to cross-examine the witnesses against him, including Dr. Young. He asserts that he was
“prejudiced by this because with a true finding, his name will appear on the child abuse
index and may and will affect him in the future if he were to have other children, as it did
when his second son was born.”
At the outset, CFS argues that we should not consider father’s IAC claim on the
grounds that he is unable to raise this issue in a direct appeal and his habeas corpus
16
petition was untimely. In any case, however, CFS offers sound reasoning why the claim
fails on its merits.
Section 317.5, subdivision (a), provides: “All parties who are represented by
counsel at dependency proceedings shall be entitled to competent counsel.” In order to
establish that counsel in a dependency proceeding was ineffective, “a parent ‘MUST
DEMONSTRATE BOTH THAT: (1) his appointed counsel failed to act in a manner
expected of reasonably competent attorneys acting as diligent advocates; and that (2) this
failure made a determinative difference in the outcome, rendering the proceedings
fundamentally unfair in that it is reasonably probable that but for such failure, a
determination more favorable for [the parent’s] interests would have resulted.’
[Citations.] In short, [the parent] has the burden of proving both that his attorney’s
representation was deficient and that this deficiency resulted in prejudice. [Citation.]”
(In re Dennis H. (2001) 88 Cal.App.4th 94, 98, original capitalization.)
“A court need not evaluate whether counsel’s performance was deficient before
examining prejudice suffered by defendant. [Citation.] Thus, a court may reject a claim
if the party fails to demonstrate that but for trial counsel’s failings, the result would have
been more favorable to the defendant. [Citation.]” (In re Nada R. (2001) 89 Cal.App.4th
1166, 1180.)
Here, we assume counsel’s performance was deficient and focus our analysis on
whether father has made a showing of prejudice. (In re Eileen A. (2000) 84 Cal.App.4th
1248, 1259-1260, overruled on other grounds in In re Zeth S. (2003) 31 Cal.4th 396, 413-
414.)
17
According to father, his counsel’s failure to cross-examine Dr. Young, to seek and
introduce “expert testimony on complicated issues of bone fragility and callous formation
(dating fractures),” and “to rule out other causes for the injuries,” resulted in prejudice.
In order to analyze father’s claim, we consider the evidence relied upon by the trial court
in making its findings, along with the expert evidence which father has submitted with
his writ petition.
Following a wellness checkup, K.S. was initially seen at Loma Linda by
Dr. Andrea Wagner Thorp. Dr. Thorp noted that the child suffered a “spiral fracture of
distal right humerus, nondisplaced,” and a “2mm of midline shift to the right at the level
of the septum pellucidum.” She did not exclude the child may also be suffering from a
cerebral edema. Dr. Thorp’s report also noted that “Grandmother was overheard by CPS
to be telling parents to ‘deny everything.’” A bone survey conducted on November 1,
2012, disclosed “[c]ortical irregularity . . . of the posterior left distal tibial metaphysis
with surrounding periosteal reaction,” and “[c]ortical irregularity . . . in the posterior
aspect of the left seventh rib.” The attending radiologist agreed with the findings. That
same day, Dr. Amy Young examined K.S. and noted that he suffered “(1) [a]cute spiral
fracture of the right humerus, (2) [p]robable fracture of the distal left tibial met[a]physis,
[and] (3) [i]rregularity of ribs on left—suspect fractures (healing).” She concluded the
child’s injures were consistent with child abuse. A bone survey conducted on
November 19, 2012, noted a healing spiral fracture of the right humerus and healing
fractures of the left posterior seventh and right posterior ninth and 10th ribs,
approximately three weeks in age. On December 28, 2012, Dr. Young informed CFS that
18
K.S.’s fracture to the right humerus was “an inflicted injury, consistent with child abuse.”
Regarding the rib fractures, Dr. Young opined they were consistent with “squeezing of
the rib cage” and child abuse. As for the metaphseal fracture of the distal left tibia, she
opined that it resulted from “yanking or pulling of an extremity.”
In contrast to Dr. Young’s opinion, Dr. Charles J. Hyman, a board certified
pediatrician and expert witness, reviewed K.S.’s medical records and spoke with father in
July 2013. He opined that K.S. “was not abused and had medical explanations for his
findings.” He stated there “is no fracture that cannot also be seen in accidental injuries.”
He claimed that “[n]either radiologists nor child abuse pediatricians (THEY) can
diagnose child abuse by interpreting plain x-rays. . . . THEY certainly cannot know
whether the forces were applied in an abusive or a non-abusive manner.” According to
Dr. Hyman, K.S. met the “clinical diagnostic criteria for bone fragility . . . a diagnosis
that supports the parents’ history.” However, the doctor did “not have the medical
records from Loma Linda University to see what was done to evaluate [K.S.’s] bone
strength.” Dr. Hyman spoke to father, who said that he was playing “Superman” with
K.S., and K.S. “slipped out of the father’s hand feet-first,” which caused father to catch
the child’s right arm, jerking K.S. towards father’s body, and the father compressed the
child against his waist to keep the child from hitting the ground.
Dr. Thomas J. Grogan reviewed K.S.’s medication records and opined that the
fractures he had received “could certainly have occurred with someone losing control of
the child, grasping the right arm when the child started to slip or fall, and grasping the
child around the child’s waist in an effort to control the child from slipping further.
19
Dr. Grogan stated that “[a]lthough it is impossible to rule out the intent behind these
injuries; these injuries all appear to have occurred at one time, and most importantly,
even if left untreated, would have gone onto pure, uneventful healing without deformity,
disfigurement or dysfunction.”
Dr. David E. Raymond provided expert evidence on the biomechanics of spiral
fractures. He explained that “[f]racture patterns are not necessarily diagnostic as to
whether an injury was caused by accidental or non-accidental trauma.” He “had found no
available pediatric tolerance data relative to torsional loading of a four-month-old child,”
and thus, he was unable to state the amount of torsion required to fracture K.S.’s
humerus. He concluded: “As to the scenario described by [father], torsional loading of
[K.S.]’s arm cannot be ruled out at the moment [father] grabbed his elbow. This,
theoretically, would have developed as a result of inertial loading from [K.S.]’s own
momentum in addition to any added force from [father’s] attempt to prevent [K.S.] from
striking the ground. However, a more thorough analysis would be required . . . to
determine whether the fracture is consistent or inconsistent with the given scenario.”
While father’s expert testimony raises questions regarding the cause of K.S.’s
injuries, the fact remains that father failed to be forthcoming about his actions when
initially confronted and throughout K.S.’s jurisdiction/disposition hearing. In addition to
father’s omission of the truth, along with Dr. Young’s report and opinion, the trial court
was presented with a sheriff’s department investigation of the incident. Both parents
denied knowing the cause of K.S.’s injuries. Father claimed that mother never left the
baby alone with him and that they all slept together. When specifically asked if he could
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have accidentally hurt the baby while playing with him, father said “no,” and that “[t]he
only thing he could think of that would have hurt [K.S. was] when he lay in bed with
them and if one of them had rolled over onto him.” A polygraph test indicated father was
not being truthful in answering questions about K.S.’s injuries. Thus, a deputy further
questioned father, who admitted playing rough with the baby and causing his injuries.
Father provided four different scenarios of how K.S. was injured. The maternal
grandmother told the officer that the parents “argued[d] all the time,” and said that father
was “rough with the baby.” She had once seen mother with a black eye, which she
suspected was inflicted by father; however, she had not seen father hit mother. The
maternal step-grandfather confirmed the grandmother’s observations.
The sheriff’s department interviewed father’s ex-girlfriend’s mother, who said that
father had hit his ex-girlfriend and had a short temper. The ex-girlfriend described father
as having a “horrible temper” and being physically abusive to her. She feared him being
alone with the children, getting frustrated and hurting them. She described his extreme
anger issues by recounting his reaction when she forgot to get him ranch dressing for a
meal. She explained that he “threw [her] head into the side of the driver door.” She
refused to let him drive with their children because when he got mad, he would
“intentionally drive into oncoming traffic.” Father’s criminal history included reports for
domestic battery and domestic disturbance. Dr. Young informed the detective that K.S.’s
injury to his arm would have been “very noticeable,” because he would not have moved
his arm and he would have cried in pain if the arm was manipulated while dressing or
bathing him. When the deputy interviewed mother, she cried and said she wanted to be
21
with father and her child. She described them as her family and explained that because
her biological father did not have a role in her life, it upset her. Family was the most
important thing to her and she wanted to marry father and have more children. She did
not believe her son was injured in father’s care. Upon counsel’s advice, mother declined
to take a polygraph test.
When the trial court decided to deny reunification services to father and mother
pursuant to section 361.5, subdivision (b)(5), it noted that neither of them had admitted
any abuse and that they were “covering for each other.” The court stated the parents
wanted to “just sit back and claim accidents, or [that they did not] know, or it [was] a
disease without any evidence . . . .” Thus, the court found that neither parent had shown
that services would prevent reabuse. While father’s experts’ opinions may have brought
into question the issue of intentional child abuse, they did not rule it out. Thus, we do not
find it reasonably probable that the trial court would have reached a different result.
Clearly, K.S. was injured at the hands of father. Even father’s experts agreed on this
point. Clear and convincing evidence supported the trial court’s decision to deny
services. (§ 361.5, subd. (b)(5).) Moreover, the trial court recognized that the crux of the
problem was the parents’ failure to recognize father’s abusive behavior, whether
accidental or intentional, as the source of K.S.’s injuries. In order to prevent future
abuse, the parents must acknowledge the action that caused the injuries to be improper,
whether accidental or intentional. At the time of the jurisdiction/disposition hearing, the
parents were unwilling to do so.
22
In short, father has failed to demonstrate a prima facie case of prejudicial
ineffective assistance.
B. Bypassing Reunification Services for Father in Z.S.’s Case
Father faults the trial court for bootstrapping its decision to deny reunification
services to him in Z.S.’s case to the findings in K.S.’s case. He asserts the findings of
child abuse with respect to K.S.’s case should not have been ruled as res judicata or
collateral estoppel in Z.S.’s case, because there was no showing that Z.S. was in danger
or at any risk, and there was no finding on the merits in K.S.’s case due to counsel’s IAC.
Finally, father claims that the court failed to make the requisite findings under section
361.5, subdivisions (b)(7), (b)(10), and (b)(11), to deny reunification services to him with
respect to Z.S.
When a child is removed from parental custody, the juvenile court is required to
order reunification services to assist the parents in reuniting with the child. (§ 361.5,
subd. (a).) However, if certain of the circumstances set forth in subdivision (b) of section
361.5 are established, “the general rule favoring reunification is replaced by a legislative
assumption that offering [reunification] services would be an unwise use of governmental
resources. [Citation.]” (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478.)
As relevant here, services may be denied if the court finds by clear and convincing
evidence “[t]hat the parent is not receiving reunification services for a sibling . . . .”;
“[t]hat the court ordered termination of reunification services for any siblings . . . of the
child because the parent . . . failed to reunify with the sibling . . . after the sibling . . . had
been removed from that parent . . . and that, according to the findings of the court, this
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parent . . . has not subsequently made a reasonable effort to treat the problems that led to
removal of the sibling . . . of that child from that parent . . . .”; or “[t]hat the parental
rights of a parent over any sibling . . . of the child had been permanently severed, and this
parent is the same parent described in subdivision (a), and that, according to the findings
of the court, this parent has not subsequently made a reasonable effort to treat the
problems that led to removal of the sibling . . . of that child from the parent.” (§ 361.5,
subds. (b)(7), (b)(10), & (b)(11), italics added.) Father contends the trial court failed to
make the necessary findings under section 361.5, subdivision (b), and merely
bootstrapped Z.S. case to that of K.S. We disagree.
“The ‘reasonable effort to treat’ standard ‘is not synonymous with “cure.”’
[Citation.] The statute provides a ‘parent who has worked toward correcting his or her
problems an opportunity to have that fact taken into consideration in subsequent
proceedings.’ [Citation.] To be reasonable, the parent’s efforts must be more than
‘lackadaisical or half-hearted.’ [Citation.]” (K.C. v. Superior Court (2010) 182
Cal.App.4th 1388, 1393.) Here, the problems that led to removal of Z.S.’s sibling were
father’s abusive handling of the sibling and the parents’ refusal to acknowledge it. While
the parents are to be commended for taking parenting and anger management classes, it
appears their motivation in doing so was not based on an acknowledgement and
acceptance that there was a problem.
Mother testified at the hearing; however, father did not. Mother admitted that she
now believed father’s actions towards K.S. had been reckless and she was willing to
move out of father’s home in order to get her child back. In contrast, father never offered
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the court an opportunity to evaluate whether or not he would benefit from services. The
fact that he expressed concern over Z.S.’s reaction to a specific formula or that his
supervised visitation went well are irrelevant to the issue of whether he understood the
gravity of his prior actions towards K.S. Instead of owning up to the cause of K.S.’s
injuries, father continued to suggest that K.S. had brittle bone disease or that his injuries
were accidental and thus failed to support a finding of child abuse. Father resisted taking
responsibility for his actions, and mother was reluctant to accept the fact that father’s
handling of K.S. was abusive. CFS intervened in Z.S.’s case because of father’s inability
to recognize or appreciate the risk to Z.S. posed by his physical treatment of K.S.
Overall, his efforts to address the issues which caused him to handle K.S. in an abusive
manner were, at best, minimal.
Thus, the court opined that it did not see “an opportunity or positive feeling or
anything from the father that . . . he can engage in reunification services and be
successful.” Furthermore, the court observed mother to be “weak” and in need of
breaking free from father in order to learn the skills necessary to stand up for herself and
her children. The court was adamant that the parents not attend services together and not
visit the child together. The court’s statements and observation establish its implied
findings supporting its decision to deny father services pursuant to 361.5, subdivisions
(b)(7), (b)(10), and (b)(11).
Based on the above, we reject father’s claim that the court merely bootstrapped
Z.S.’s case. Furthermore, as we have already noted, father has failed to demonstrate a
prima facie case of prejudicial IAC.
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III. DISPOSITION
The orders are affirmed. The stay of the juvenile court proceedings previously
imposed is hereby vacated.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
MCKINSTER
J.
RICHLI
J.
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In re K.S. CA4/2
Combined Opinion