C.S. v. Superior Court CA4/2

Filed 5/30/23 C.S. v. Superior Court 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

C.S. et al.,

Petitioners, E080818

v. (Super.Ct.Nos. J290945, J090946,)
J290947 & J294367)
THE SUPERIOR COURT OF
SAN BERNARDINO COUNTY, OPINION

Respondent;

SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES,

Real Party in Interest.

ORIGINAL PROCEEDINGS; petition for extraordinary writ. Steven A. Mapes,

Judge. Petition denied.

Serobian Law, Inc., Liana Serobian for Petitioner C.S.

Moore & Associates, Dennis Moore for Petitioner N.C.

No appearance for Respondent.

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 Tom Bunton, County Counsel, David Guardado, Deputy County Counsel for Real

Party in Interest.

C.S. (Mother) petitions for extraordinary writ review of an order setting a hearing

under Welfare and Institutions Code section 366.26. (Welf. & Inst. Code, §§ 366.26,

subd. (l) [unlabeled statutory citations are to this code]; Cal. Rules of Court, rule 8.452.)

N.C. (Father) joins in Mother’s petition.

At the jurisdiction and disposition hearing, the juvenile court took jurisdiction over

the parents’ children under section 300, subdivisions (a), (b), (e), and (j). The court then

removed the children from the parents’ custody, denied the parents reunification services,

denied them visitation, and set the section 366.26 hearing. Mother challenges the

sufficiency of the evidence supporting the jurisdictional findings, the removal order, and

the visitation order. She also argues that the court violated section 361.3 by failing to

give preferential consideration to relatives’ requests for placement. We conclude that

Mother’s arguments lack merit, and we accordingly deny the petition. 1

BACKGROUND

I. Referral and Detention

The family came to the attention of San Bernardino County Children and Family

Services (CFS) in October 2021. CFS received a referral alleging physical abuse of the

1 Before Mother filed her writ petition, she requested a stay of the section 366.26
hearing, which is scheduled for June 12, 2023. We denied that request for a stay on
April 6, 2023. Mother’s petition again asks us to stay the section 366.26 hearing. We
deny the second request for a stay, as Mother has not made “an exceptional showing of
good cause.” (Cal. Rules of Court, rule 8.452(f).)

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parents’ three-week-old daughter, A.C. A.C. had been admitted to the hospital and had

parietal bone fractures on both sides of her skull, subdural hematomas on both sides of

her head, microhemorrhages in her brain, three “‘corner fractures’” on her right leg, and

subconjunctival hemorrhaging in her eye. According to Dr. Komal Aziz, who performed

A.C.’s forensic exam, corner fractures are caused by pulling or twisting. Subconjunctival

hemorrhaging usually is caused by applying pressure to the chest or squeezing the chest

of the child. Dr. Aziz opined that A.C.’s injuries were caused by blunt force trauma,

shaking, and/or falling from a significant height.

The social worker interviewed Mother and Father separately, and both parents said

that they did not know how A.C. was injured. They denied harming the child or dropping

her. The family lived with the maternal grandparents, but the parents had not left A.C.

alone with the maternal grandparents. The parents reported that five days ago, they

noticed a bump on the child’s head. The next day, Mother noticed redness in the child’s

eye and on the side of her face. The day after that, the parents took the child to her

pediatrician, who advised them to take A.C. to the emergency room as soon as possible.

The parents took A.C. to the emergency room the following evening, after Father got

home from work. Mother reported that she did not take the child earlier because Father

had to work and could not drive them, but she acknowledged that she had a driver’s

license and another car at home.

A deputy with the San Bernardino County Sheriff’s Department also interviewed

the parents. Mother denied harming A.C. and denied any knowledge of others harming

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the child. Father initially denied harming A.C. and denied knowing the cause of her

injuries. But after further questioning, he reported that he dropped the child. He said that

he lost his grip on her head when he was holding her, and her head hit a chair. The

deputy recorded father reenacting the scene with a doll and showed the video to Dr. Aziz.

According to the doctor, A.C.’s injuries were not consistent with Father’s explanation.

CFS asked the parents to bring their two other children, five-year-old A.A. and

one-year-old E.C., to the hospital for assessment. E.C.’s x-rays showed fractures to the

back of her ribs, which were indicative of pressure applied through squeezing. A.A. had

no injuries. The court issued a protective custody warrant to detain the children, and CFS

placed them with a relative on an emergency basis.

CFS filed petitions alleging that A.C. and E.C. were described by subdivisions (a),

(b), (e), and (j) of section 300 and that A.A. was described by subdivisions (a) and (j) of

section 300. The petitions alleged that A.C. and E.C. had suffered physical abuse while

in the parents’ care, the parents failed to protect the children from physical abuse, and the

parents failed to provide them with necessary medical treatment. As to A.A., the petition

alleged that he was at substantial risk of physical abuse.

In October 2021, the court detained the three children from the parents. The court

found that visitation with Father would be detrimental to the children and denied Father

visitation, but it ordered weekly two-hour visits for Mother.

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II. Jurisdiction and Disposition Report and Addenda

When CFS interviewed the parents for the jurisdiction and disposition report,

Father said that neither he nor anyone in his home caused A.C.’s injuries. Father claimed

that he never told the deputy that he lost hold of A.C.’s head and dropped her, and he

called that account “‘another lie of the investigation.’” He believed that the child’s

injuries were the result of a genetic condition that causes “‘weak bones.’” He said that

the same genetic condition caused the injuries to E.C. and that tests showed E.C. had the

condition. He explained that the parents did not take A.C. to the emergency room

immediately after they saw her pediatrician because the car was not safe and “‘needed

some arrangements,’” and a nurse told them it was fine to take the child the next day.

Mother likewise reported that no one in the home had physically abused the

children. She said that the parents had done their own investigation, and they believed

that the children suffered from osteogenesis imperfecta, a genetic disorder affecting the

bones. She explained that E.C. was born with a fracture, and Mother had a report

showing that the fracture occurred in the womb or at birth. Mother said that she would

provide documentation showing that the condition was genetic. She reported that A.C.’s

pediatrician did not tell the parents to take the child to the emergency room

immediately—the doctor said to go “‘when [they] have time or later on.’”

A.A. spoke with a forensic interviewer. The child disclosed that Father hits E.C.

with his hand, causing her to cry “‘a lot.’” Mother fights and gets angry with Father

when he hits E.C. A.A. disclosed that Father also hits A.A. with his hand.

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 CFS obtained Dr. Aziz’s forensic consultation notes for A.C. and E.C. The doctor

concluded that A.C.’s injuries were most consistent with abusive head trauma and

physical abuse. As for E.C., the doctor noted that the healing fractures on her ribs were

typically caused by squeezing or compression of the rib cage or direct blows. Given that

the parents did not provide any history to explain those findings, the doctor concluded

that E.C.’s injuries were highly suspicious for physical abuse. E.C.’s head CT scan also

showed a focal deformity that could represent a remote skull fracture. That was

consistent with Mother’s report that E.C. had a skull fracture around the age of one and

one-half to two months. Both parents denied a family history of fragile or easily broken

bones.

CFS also obtained the deputy’s written report of his interviews with the parents.

The interviews were audio and video recorded. During the first 40 minutes of the

interview, Father denied knowing how A.C. sustained her injuries. He eventually stated

that A.C. slipped from his hands as he was carrying her to her crib. She hit the left side

of her head on the crib, but he was able to maintain his grasp on her legs. Mother was

asleep in the same room when the incident occurred and awoke when the child began to

cry after hitting the crib. Father gave the child to Mother for feeding and did not tell

Mother what had happened.

CFS referred E.C. for genetic testing. According to the geneticist’s report, “[n]o

clinically relevant alterations [were] detected.” E.C.’s testing revealed a single variant of

“uncertain clinical significance” in a particular gene. Pathogenic variants in that gene

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were associated with a bone disorder called autosomal recessive osteopetrosis type 7.

Even if the variant identified in E.C.’s gene were reclassified to pathogenic in the future,

E.C. would be considered only a carrier of the condition. The geneticist determined that

the single variant of uncertain clinical significance was “not expected to explain [E.C.’s]

history of fractures.” If testing had identified an underlying genetic diagnosis for E.C.’s

history of fractures, then the lab would have conducted testing on A.C., given that the

children were “full sisters with a similar clinical history.” But because E.C.’s results did

not identify anything, A.C. did not undergo testing. Dr. Aziz reviewed E.C.’s genetic

testing results and reported that they did not change the doctor’s forensic opinion.

Mother’s visits with the children initially went well, and CFS reported no safety

concerns. CFS had moved the children from a maternal cousin’s home to a foster care

placement with nonrelatives, and the caregiver was supervising visits. At a recent visit,

A.A. did not want the caregiver to leave when she dropped him off; he asked the

caregiver how long she would be gone, where she was going, and when she would be

back. He hugged her tightly and stood close to her as she tried to leave. The social

worker had to distract A.A. so that the caregiver could slip out. The caregiver reported

that A.A. became emotional and anxious when visits approached. The child told her that

he felt bad about the visits because he did not want to go, and he was worried that the

parents would take him back to their house.

The caregiver was also concerned that Mother had been bringing family members

to visits, and the caregiver did not feel comfortable supervising that many people. The

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social worker advised Mother that she could have one family visit per month with up to

five family members present. Mother became argumentative with the social worker and

asserted that CFS was violating the children’s rights by imposing such a limitation. She

also argued that the limitation should not apply in this case, because she had never signed

a supervised visitation agreement prohibiting her from bringing relatives.

Several weeks later, the social worker agreed to supervise a family visit at the CFS

office, where Mother would be permitted to have a birthday party for E.C. The worker

agreed that Mother could invite a certain number of relatives. Mother arrived two hours

early for that visit and demanded that security allow her into the office to decorate for the

party. She was hostile with security and office staff until the social worker let her in,

right before the appointed time. Approximately 30 people arrived for the party, many

more guests than the social worker had approved. Mother set up speakers and was

playing loud music. E.C. appeared to be afraid of the large crowd and loud music, and

the child frequently ran to her caregiver. During the party, a maternal aunt spoke to A.A.

about the case and promised the child that he would be living with her soon. He told the

caregiver that he was upset he might have to leave her home and live with the maternal

aunt.

Both parents engaged in predisposition services consisting of a 12-week parenting

course, a 12-week anger management program, and eight therapy sessions. The social

worker noted that despite completing those services, the parents continued to deny

responsibility for the injuries to the children. The worker also noted the children had not

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suffered any further injuries since they had been in CFS’s care. According to the report

from Father’s therapist, he could not “accept responsibility for the injuries to his

daughters,” and Father maintained that a genetic disorder caused their injuries. Similarly,

Mother’s therapist reported that Mother denied any physical abuse and was seeking an

expert physician to explore possible genetic issues.

III. Detention of the Parents’ Newborn Child

Mother gave birth to another daughter, Ei.C., in August 2022. On the basis of the

injuries to Ei.C.’s siblings, CFS determined that Ei.C. was also at risk of physical abuse.

The social worker for Ei.C.’s case contacted Mother and told her that CFS would be

seeking a detention warrant for Ei.C. Mother said that she would cooperate, but she

insisted that CFS was wrong about the children being abused. She also insisted that the

social worker for the other children’s case had lied about the genetic testing.

The detention report for Ei.C. stated that according to “collaterals,” Mother told

family members that she would take the children to Mexico if the juvenile court failed to

return the children to her custody. When the social worker executed the detention

warrant, the maternal grandfather gave her genetic testing results for Mother, E.C., and

A.C. The social worker said that she would give the information to the appropriate

people, and the grandfather said that it had already been provided to the attorneys and a

previous social worker.2

2 The social worker did not attach the genetic testing results to Ei.C.’s detention
report. But maternal grandfather later filed a section 388 petition and attached genetic
testing results to that petition. Those results showed that A.C., E.C., and Mother had the
same variant in the gene identified by CFS’s testing. And consistent with CFS’s testing,

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 CFS filed a petition alleging that Ei.C. was described by section 300, subdivision

(j), because her siblings were physically abused while in the parents’ care. In September

2022, the court detained Ei.C. from the parents, ordered weekly two-hour visits for

Mother, and denied Father visitation. At the first scheduled visit with Ei.C., Mother

refused to sign the supervised visitation agreement, so the visit did not occur.

IV. Further Addenda to the Jurisdiction and Disposition Report

Around September 2022, the children’s caregiver reported more concerns with

visitation. A.A. became moody when visits were approaching. He often did not want to

attend them, and he cried when it was time to leave for visits. He said that he was

worried about being “‘sent back.’” In addition, A.A. almost never mentioned Father to

the caregiver. At a recent visit, Mother asked him to decorate a sign for Father’s

birthday, and the child’s demeanor changed—he shut down and was sulky for the

remainder of the visit. His caregiver also reported that A.A. had an extreme fear response

to any sort of violence, whether the violence was on television or merely “rough play”

with other children. For instance, A.A. had a panic attack when one of the caregiver’s

children pretended to be hurt, even after it became clear that the child was pretending.

He also had panic attacks when the possibility of getting in trouble arose, like when the

the results stated that the variant was of uncertain significance, meaning that it was “not
known to cause increased risk for a specific condition.” The record in this writ
proceeding does not contain the exhibits admitted at the contested jurisdictional and
dispositional hearing, but it does not appear that the testing results were admitted into
evidence.

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caregivers caught him in a lie or told him not to do something. The caregivers had never

raised their voices with him.

At a pretrial conference in September 2022, the children’s counsel asked that the

court find further visitation with Mother to be detrimental. The court permitted Mother

to testify regarding the recent visitation reports. Mother testified that she asked A.A.

what he wanted to do for Father’s birthday, and she gave him several options. The child

chose to decorate a sign, but it was not true that his demeanor changed after that. On

another occasion, A.A. asked to see his new sister, Ei.C. Mother showed him two

pictures on her phone in which Father was holding the baby. A.A. asked where Father

was at almost every visit. Mother told the child that Father was working. She had never

seen Father hit A.A. or the other children.

The court found that further visitation with Mother would be detrimental to the

children and suspended her visitation. The court observed that it had already found

visitation with Father to be detrimental, Father was the alleged perpetrator of abuse, and

he was not supposed to have contact with the children. Yet Mother was doing things

“with the kids to wrap him into” visits. The court concluded that Mother lacked

protective capacity and that A.A.’s behavior showed visits were detrimental.

V. Contested Jurisdiction and Disposition Hearing

The contested jurisdiction and disposition hearing took place over the course of

numerous days in October and November 2022 and February and March 2023. In the

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following subparts, we summarize the relevant witness testimony and the juvenile court’s

findings and orders.

A. Dr. Aziz’s Testimony

The doctor was completing a three-year fellowship as a child abuse pediatrician.

She started that fellowship roughly three months before she examined A.C. and E.C. She

was already a board-certified general pediatrician. The doctor opined that A.C.’s injuries

were caused by abusive head trauma and physical abuse, and there were multiple

mechanisms of injury. She also opined that E.C.’s injuries were caused by physical

abuse.

A.C.’s skull fractures had characteristics that were consistent with inflicted injury,

not accidental injury or injury from a short fall. The fractures were also indicative of at

least two impacts to the skull. The skull fractures did not show signs of healing, so they

were recent injuries. The bleeding around the child’s brain was significant and also

appeared to be a recent injury. In addition, A.C. had suffered injury to her brain tissue,

which could lead to long-term consequences like developmental delays and

neurocognitive deficits. A.C. had subconjunctival hemorrhaging in her left eye and

bruising on her left eyelid, which was consistent with blunt force impact to the eye. The

subconjunctival hemorrhaging could have been caused by squeezing the rib cage or blunt

force impact. The injuries to her eye and skull would have been caused by different

impacts. The types of fractures to A.C.’s leg are caused by a caregiver shaking a child so

violently that their legs flail around, or by the caregiver pulling or twisting the leg

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forcefully. Follow-up x-rays, which were done 10 days after the initial imaging, showed

an additional fracture on A.C.’s right leg. The doctor opined that the additional fracture

was not inflicted at the hospital because there was no history of trauma at the hospital that

would explain it. The fracture was subtle, and it sometimes required imaging from

different views to pick up such fractures.

Father did not tell Dr. Aziz that A.C. had slipped from his hands when the doctor

talked to the parents about the child’s history. She learned that information later from

law enforcement. That concerned the doctor, because a protective, nonoffending parent

typically does not hide information. Father’s explanation did not provide a plausible

cause of A.C.’s injuries. It would be highly unusual for a child her age to move so

suddenly that she would slip out of her parent’s hold. Also, Father described A.C. hitting

one side of her head on the crib, but that did not explain the injuries on the other side of

her head or a number of other injuries. To date, the parents had not provided a plausible

explanation for A.C.’s injuries.

E.C.’s posterior lateral rib fractures were between two and four weeks old when

the doctor examined the child. Dr. Aziz opined that those injuries were nonaccidental,

given that the parents reported no history to explain them. Rib fractures in a child were

highly specific for abuse when there was no well-documented reason for chest trauma. In

particular, posterior lateral rib fractures are in a protected area of the rib cage and would

be caused by adult-strength abusive force or something like a high-energy car collision.

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 The deformity on E.C.’s skull was a type of fracture that was a dent or indentation.

A traumatic birth could cause that type of fracture. As far as the history for the skull

fracture, Mother reported that she noticed the fracture when E.C. was one and one-half to

two months old, and the child’s doctor told Mother that it could have been caused by

birth. Dr. Aziz reviewed E.C.’s medical records concerning the skull injury. The treating

doctor’s notes stated: “‘I think this was probably related to birth issues, but, obviously, I

cannot be sure about that.’”

After reviewing E.C.’s medical records, Dr. Aziz opined that it was very unlikely

E.C.’s skull fracture was birth-related. There was no documentation of any trauma or

complications during labor or delivery, nor was there documentation of any indentation

in the child’s skull at birth. Dr. Aziz concluded that E.C.’s skull fracture was consistent

with physical abuse, because there was no history of birth trauma or another mechanism

to explain the injury. The doctor explained that if caregivers provide no history to

explain an injury, or they provide changing or inconsistent histories, then that commonly

is indicative of inflicted trauma.

When Dr. Aziz interviewed the parents, both of them denied any family history of

fractures (besides E.C.’s skull fracture), broken bones, bone problems, fragile bones, or

an underlying disease or diagnosis that might cause fractures with minor trauma. An

interpreter was not present when Dr. Aziz interviewed the parents. The doctor was aware

that Mother was bilingual and that Father spoke Spanish, so she called for a Spanish

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interpreter. But Mother told the doctor that she was comfortable speaking to the doctor in

English, and Mother said that she could interpret for Father.

Dr. Aziz reviewed the genetic testing conducted in this case, and she did not

believe that there was a genetic explanation for the children’s injuries. The variant found

in one gene was of uncertain significance, meaning that it was not linked to any known

genetic disease or condition.

B. Dr. Thomas Grogan’s Testimony

The parents offered the expert testimony of Dr. Thomas Grogan, an orthopedic

surgeon. Dr. Grogan opined that an impact with a flat surface, not shaking, caused the

fracture on the right side of A.C.’s skull. The fractures on her right leg were caused by

shaking or pulling on the limb. The hemorrhaging in her eye was caused by an increase

in pressure from crying or vomiting, not shaking. A.C.’s skull fracture was three to five

days old when the imaging was done, and her leg fractures were relatively new. The

force required to cause such fractures in a three-week-old baby was about the same as

needed to crush a soda can. E.C.’s rib fracture and skull fracture would have been caused

by about the same amount of force. Dr. Grogan opined that it was unusual for siblings to

have simultaneously suffered fractures with no history to explain them.

C. The Parents’ Testimony

Father testified that the children have a rare genetic mutation about which very

little was known, and further testing was required to learn the significance of the

mutation. Mother had ancestors who suffered sudden fractures with no apparent cause.

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Father had never hit any of his children. The injuries to the children were the result of

the genetic condition. Father could not point to anything in the normal handling of the

children that would have caused the injuries. The parents were married, and Father

intended to stay in a relationship with Mother.

Mother testified that she was unaware Father had told law enforcement that he

dropped A.C. She did not believe that Father had dropped the child, and she did not

know whether law enforcement was lying. She knew that Father did not cause the

injuries to the children, and she believed that all of the children were safe in his care. Her

daughters had bone dysplasia, so they could suffer bone fractures without application of a

great deal of force. Mother told Dr. Aziz and many people at the hospital that her family

had a history of bone problems. The birthing process in combination with the genetic

condition caused all of A.C.’s and E.C.’s bone fractures. Mother could not say what had

caused A.C.’s eye injury.

Mother said that she would not divorce Father because she wanted her family to

stay together. But if the court returned the children to her, then she would live separately

from him.

D. Social Worker’s Testimony

The social worker spoke to “‘collaterals’” who reported Mother’s statements about

fleeing to Mexico with the children. Those collaterals were the children’s caregivers and

family friends. One of the collaterals overheard the parents arranging to remove the

children from the country in the event that the parents were not permitted to reunify with

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them. The social worker told Mother that she could not give A.A. a cell phone, but

Mother nevertheless tried to give him a phone with the location tracking enabled. The

worker was concerned that it would be unsafe for Mother to know where the children

were placed. The worker asked A.A. how he felt about visits, and the child said that

visits “made his stomach feel funny,” made him worry, and made him feel sad.

Mother had emailed the social worker numerous times, and the emails generally

were inappropriate. In almost every email, Mother called the worker a liar, accused her

of being biased, and accused her of hating Mother.

E. The Court’s Findings and Orders

The juvenile court took jurisdiction over all four children. As to Ei.C., the court

found true that her siblings were physically abused while in the parents’ care, placing her

at substantial risk of similar abuse. (§ 300, subd. (j).) As to A.A., the court found true

that (1) he was at substantial risk of serious physical harm inflicted nonaccidentally by a

parent (§ 300, subd. (a)), and (2) his siblings were physically abused while in the parents’

care, placing him at substantial risk of similar abuse (§ 300, subd. (j)). And with respect

to A.C. and E.C., the court found true that (1) they suffered serious physical harm

inflicted nonaccidentally by a parent (§ 300, subd. (a)), (2) the parents failed to protect

them from abuse and failed to provide A.C. with necessary medical treatment (§ 300,

subd. (b)), (3) the children were under five years old and suffered severe physical abuse

by a parent (§ 300, subd. (e)), and (4) a sibling was physically abused while in the

parents’ care, placing each child at substantial risk of similar abuse (§ 300, subd. (j)).

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 In explaining its jurisdictional findings, the court observed that there was a lack of

evidence that the children’s injuries were related to a genetic condition; the genetic

testing showed only a variant of uncertain significance. There also was no evidence of

any injuries since CFS had removed the children from the parents’ custody. The court

gave great weight to Dr. Aziz’s testimony. The parents’ own expert testified that A.C.’s

skull injury was three to five days old, so the child did not sustain that injury during the

birthing process, as Mother claimed. And according to the court, A.A.’s statements and

his response to visits with Mother were also “telling” evidence. The court further relied

on Father’s statements to law enforcement describing how A.C. had slipped from his

hands, which the court characterized as a “confession.” The court did not credit the

parents’ claim that the pediatrician told them that they could delay in taking A.C. to the

emergency room. The court instead concluded that the parents knew that the injuries

would heal with time and the evidence thus would “dissipate.”

With respect to disposition, the court declared the children dependents and

removed them from the parents’ custody. The court also denied the parents reunification

services under section 361.5, subdivision (b)(5), (6), and (7), and it denied the parents

visitation, finding that visitation would be harmful to the children’s safety and/or

emotional well-being. The court set a section 366.26 hearing to select a permanent plan

for the children.

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 DISCUSSION

I. Sufficiency of the Evidence Supporting the Jurisdictional Findings

Mother argues that the record does not contain substantial evidence to support the

court’s jurisdictional findings. The argument lacks merit.

A challenge to the sufficiency of the evidence supporting a jurisdictional finding

requires us to determine if substantial evidence, contradicted or not, supports it. (In re

I.J. (2013) 56 Cal.4th 766, 773.) We draw all reasonable inferences from the evidence to

support the finding and review the record in the light most favorable to the court’s

determination. (Ibid.) We do not reweigh the evidence or exercise independent

judgment but merely determine whether the evidence is sufficient to support the finding.

(Ibid.) Moreover, issues of credibility are the province of the juvenile court. (Ibid.)

Mother argues that the court’s findings of physical abuse were not supported

because the evidence shows both accidental and genetic causes of the children’s injuries.

She relies on Father’s statements to law enforcement describing how A.C. slipped from

his hands, the parents’ repeated insistence that Mother had a family history of bone

disorders, and the genetic testing showing a variant in one gene. She also asserts that the

evidence shows A.C. and E.C. sustained new fractures while in the hospital.

But Mother ignores the ample evidence supporting the court’s findings of physical

abuse. A.A. disclosed during his forensic interview that Father hit A.A. and E.C.

According to A.A.’s caregiver, the child had an extreme fear response to any sort of

violence. Moreover, Dr. Aziz concluded that A.C. and E.C. were physically abused.

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A.C.’s multiple injuries were caused by blunt force trauma, shaking, or pulling on the

limb, and the injuries to different parts of her body indicated multiple mechanisms. The

doctor determined that the child’s injuries were not consistent with Father’s description

of how he dropped the child. His description of A.C.’s head hitting the crib did not

explain why she had fractures on both sides of her head, nor did it explain the bruising on

her eye or the hemorrhaging in her eye. And the court was not required to credit Father’s

claims in general. He did not report the dropping incident when Dr. Aziz interviewed the

parents, he said that he did not know how A.C. was injured when CFS initially

interviewed him, and he initially said the same thing to law enforcement. He offered the

explanation for her injuries only after further questioning by the deputy. And he later

attempted to recant his statements, describing them as a “‘lie of the investigation.’” The

court could reasonably conclude from Father’s belated, inconsistent, and changing

explanation that he had harmed A.C. in a nonaccidental manner.

As to E.C., substantial evidence contradicted Mother’s claim that E.C. suffered her

skull fracture during the birthing process. Dr. Aziz testified that there was no indication

in the child’s medical records of trauma or complications during birth, nor was there any

indication that the child had the indentation in her skull at birth. The doctor who

examined E.C. several months after birth stated only that the injury was probably related

to birth, but the doctor could not be sure. And besides the claimed genetic condition, the

parents offered no explanation for E.C.’s rib fractures, which were much more recent

than the skull fracture.

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 As for the claimed genetic condition, the court reasonably concluded that the

evidence did not support that explanation. The genetic testing showed a variant of

uncertain clinical significance in one gene. The variant was not linked to any known

genetic disease or condition. Both the geneticist and Dr. Aziz determined that the variant

did not explain the children’s history of fractures. The parents did not offer any medical

evidence to support their claims that the children nevertheless suffered from a genetic

bone disorder. They did not even mention that possibility when Dr. Aziz asked them

about a family history of bone problems or fragile bones.

The record similarly does not support Mother’s claim that the children suffered

new fractures at the hospital. She asserts that E.C.’s rib fractures were new and could

have been caused by handling at the hospital. But according to Dr. Aziz, the rib fractures

were two to three weeks old when she examined E.C. Dr. Grogan, Mother’s expert, did

not say how old the rib fractures were. Dr. Aziz testified that follow-up imaging showed

an additional leg fracture on A.C. 10 days after the initial imaging, but the doctor

explained that multiple images were sometimes required to discover subtle fractures like

that one. Thus, contrary to Mother’s argument, it was not “evident” that handling by

hospital staff caused fractures to the children.

In sum, Mother’s challenge to the jurisdictional findings lacks merit. She fails to

address the ample evidence supporting the court’s findings and contradicting her claims.

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II. Sufficiency of the Evidence Supporting the Removal Order

Mother argues that the record does not contain substantial evidence to support the

dispositional order removing the children from her custody. More specifically, she

contends that the evidence does not support the finding that there no were reasonable

means to protect the children short of removal. We disagree.

To order a child removed from their parents’ physical custody, the juvenile court

must find by clear and convincing evidence that (1) there “would be a substantial danger

to the physical health, safety, protection, or physical or emotional well-being” of the child

in the parents’ home, and (2) “there are no reasonable means by which the [child’s]

physical health can be protected without” removal. (§ 361, subd. (c)(1).) A jurisdictional

finding under subdivision (e) of section 300 constitutes prima facie evidence that a child

cannot safely remain in the custody of a parent with whom the child resided at the time of

injury. (§ 361, subd. (c)(1).)

Section 361 requires the court to consider two options as reasonable means to

protect the child: (1) removing an offending parent from the home, and (2) allowing a

nonoffending parent to retain physical custody, so long as that parent presents a plan

showing that they can protect the child from future harm. (§ 361, subd. (c)(1)(A)-(B).)

We review the court’s removal order for substantial evidence (In re R.T. (2017) 3

Cal.5th 622, 633), taking into account the level of confidence that the “clear and

convincing” standard demands (Conservatorship of O.B. (2020) 9 Cal.5th 989, 995). The

question before us “is whether the record as a whole contains substantial evidence from

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which a reasonable fact finder could have found it highly probable that the fact was true.”

(Id. at pp. 995-996.) We “view the record in the light most favorable to the prevailing

party below and give due deference to how the trier of fact may have evaluated the

credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable

inferences from the evidence.” (Id. at. p. 996.)

The record contains substantial evidence supporting the removal order in this case.

First, the court took jurisdiction over A.C. and E.C. under section 300, subdivision (e)

(child under age five who has suffered severe physical abuse by a parent). Given that we

have rejected Mother’s challenge to that jurisdictional finding, the finding constitutes

prima facie evidence that the children could not safely remain in Mother’s custody.

Second, regardless of that prima facie showing, more than enough evidence

supports the court’s finding that there were no reasonable means to protect the children

short of removal. Mother relies on the statutory directive that the court must consider

removing an offending parent from the home and argues that the court should have

placed the children with her on the condition that Father live elsewhere.

But the record supports a reasonable inference that allowing Mother to retain

custody and live separately from Father would not have sufficiently protected the

children. Mother was also an offending parent and demonstrated a lack of protective

capacity. She consistently denied that Father had abused the children. She said that she

knew he did not hurt them, and she believed that they were safe in his care. She also

suggested that law enforcement was lying about Father’s admission that he had dropped

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E.C., despite the video evidence of the interview. While she stated that she was willing

to live separately from Father, both parents said that they intended to remain in a

relationship. Mother in particular said that she wanted the family to stay together. And

there was evidence that Mother was planning to flee the country with the children. All of

that evidence gave rise to a reasonable inference that placement with Mother was not a

reasonable means to protect the children.

Moreover, placement in Mother’s custody under CFS’s supervision would have

required Mother to cooperate fully with the agency, and Mother did not fully cooperate

with CFS. She was hostile with the social worker, accusing the worker of lying and bias.

She refused to abide by visitation rules for bringing family members and invited roughly

30 people to one visit in particular. In connection with that same visit, she arrived two

hours early and was hostile with security and office staff, who would not let her enter

early. And she refused to sign a supervised visitation agreement with respect to Ei.C., so

she was never allowed to visit that child.

Mother also makes a conclusory argument that because she engaged in

predisposition services and visits, reunification was in the children’s best interests. She

does not otherwise challenge the court’s order denying her reunification services.

The court here bypassed reunification services under three different provisions.

(§ 361.5, subd. (b)(5)-(7).) Under two of those provisions, bypass was mandatory unless

the court made a countervailing factual finding, by clear and convincing evidence, that

reunification was in the children’s best interests. (§ 361.5, subds. (b)(6), (7), (c)(2); In re

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A.E. (2019) 38 Cal.App.5th 1124, 1141.) Under the third provision, bypass was

mandatory unless the court made a countervailing factual finding that (1) reunification

services were likely to prevent reabuse or (2) failure to try reunification would be

detrimental to the children because they were closely and positively attached to Mother.

(§ 361.5, subds. (b)(5), (c)(3).)

The parents bear the burden of proving those countervailing factual findings. (In

re Raul V. (2022) 82 Cal.App.5th 290, 300.) When a parent argues that the juvenile court

erred by failing to make the countervailing factual finding, we ask “‘whether the evidence

compels a finding in favor of the appellant as a matter of law,’ that is, whether the

evidence supporting [the parent’s] position ‘was (1) “uncontradicted and unimpeached”

and (2) “of such a character and weight as to leave no room for a judicial determination

that it was insufficient to support a finding.”’” (Id. at p. 301.)

We are not persuaded by Mother’s conclusory statement that it was in the

children’s best interests to reunify with her. She does not address the court’s application

of the bypass provisions or show how the evidence compelled a finding in her favor as a

matter of law. We have no duty to develop those arguments for her. (Cahill v. San

Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.) Mother thus forfeited the

argument.

For all of these reasons, we conclude that substantial evidence supports the court’s

removal order.

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III. Visitation Order

Mother argues that the record does not contain substantial evidence to support the

court’s finding that visitation would be detrimental to the children. The argument is

unavailing.

Once the court bypasses reunification services, the court has discretion to permit

visitation. (§ 361.5, subd. (f); In re J.N. (2006) 138 Cal.App.4th 450, 458, 460.) The

court may look to the best interests of the child in exercising its discretion to permit or

deny visitation. (In re J.N., supra, at p. 459.) But if the court finds that visitation would

be detrimental to the child after bypassing reunification services, then the court must

deny visitation. (§ 361.5, subd. (f); In re J.N., at p. 458.) We review the court’s

detriment finding for substantial evidence. (In re Daniel C.H. (1990) 220 Cal.App.3d

814, 838.)

The court bypassed reunification services and thus had discretion to deny Mother

visitation even in the absence of a detriment finding. (In re J.N., supra, 138 Cal.App.4th

at p. 460.) Assuming that there is not substantial evidence to support the detriment

finding, Mother does not explain how the court nevertheless abused its discretion by

denying visitation. Her challenge to the visitation order fails for that reason.

In any event, substantial evidence supports the court’s detriment finding. The

children’s caregiver reported that visits were adversely impacting A.A. He became

anxious, emotional, and moody when visits approached. The child told the caregiver that

he felt bad about visits and did not want to go, and he was worried that the parents would

26
take him home. Similarly, A.A. told the social worker that he worried and felt sad about

visits. The evidence thus showed that visits were detrimental to A.A.’s emotional well-

being.

Moreover, Mother’s conduct demonstrated that she was not sufficiently protective

of the children’s safety and emotional well-being at visits. She refused to agree to the

terms of supervised visitation with Ei.C., so CFS did not permit her to visit that child.

She did not abide by the terms of visitation with the other children when she invited

roughly 30 people to a visit. During that visit, a maternal aunt upset A.A. by promising

that he would be living with her soon. At the same visit, E.C. appeared to be afraid of the

large crowd and loud music that Mother was playing. And at other visits, Mother asked

A.A. to decorate a sign for Father’s birthday and showed him pictures of Ei.C. with

Father. A.A. “shut down” after Mother asked him to decorate the sign for Father.

Mother did not appear to recognize how her attempts to involve Father, the perpetrator of

abuse, affected A.A. That was consistent with her continued refusal to acknowledge that

Father had harmed the children. Mother also tried to give A.A. a cell phone with the

location tracking enabled. The court could reasonably infer from that attempt that

visitation was detrimental to the children’s safety, in view of the evidence that Mother

was contemplating fleeing with the children.

For these reasons, we reject Mother’s challenge to the visitation order.

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IV. Preferential Consideration of Relatives’ Requests for Placement

Mother lastly argues that the court and CFS erred by failing to give preferential

consideration to relatives’ requests for placement. The argument lacks merit.

When the juvenile court removes children from their parents’ custody under

section 361, the court must give “preferential consideration . . . to a request by a relative”

for placement of the children. (§ 361.3, subd. (a).) “‘Preferential consideration’ means

that the relative seeking placement shall be the first placement to be considered and

investigated.” (§ 361.3, subd. (c)(1).) Thus, section 361.3 does not establish a preference

in favor of placement with relatives. It merely requires that the court and child welfare

agency consider their requests first.

Mother fails to carry her burden of showing that the court and CFS prejudicially

erred here. (Red Mountain, LLC. v. Fallbrook Public Utility Dist. (2006) 143

Cal.App.4th 333, 347 [“an appellant has the burden to show not only that the trial court

erred but also that the error was prejudicial”].) She does not identify which relatives are

at issue, much less show that the agency and the court failed to consider those relatives

for placement before considering placement with nonrelatives. Likewise, she does not

explain how she was prejudiced by the claimed failure to consider the unidentified

relatives first. That is, she does not show that in the absence of the claimed error, a more

favorable result was reasonably probable. (People v. Watson (1956) 46 Cal.2d 818, 836.)

For instance, the court and CFS must consider a host of factors in determining whether

placement with a relative is appropriate. (§ 361.3, subd. (a)(1)-(8).) Mother does not

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address those factors and argue that in the absence of error, the factors would have

weighed in favor of placement with the unidentified relatives. As already explained, we

are not bound to develop Mother’s arguments for her. She therefore fails to establish

prejudicial error with respect to relatives’ requests for placement.

DISPOSITION

The writ petition is denied, and the request for a stay is denied.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ
J.

We concur:

McKINSTER
Acting P. J.
MILLER
J.

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