In re K.S. CA4/2

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

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.

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 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.

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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.

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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.

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 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.)

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 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.

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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

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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.

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 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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