Filed 6/27/13 G.V. v. Super. Ct. CA4/3

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

G.V.,
Petitioner,

v.
THE SUPERIOR COURT OF ORANGE COUNTY, Respondent;

ORANGE COUNTY SO CIAL SERVICES AGENCY et al.,

Real Parties in Interest. G048140 (Super. Ct. No. DP022677)

O P I N I O N

Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, Deborah C. Servi no, Judge. Petition denied. Frank Ospino, Public Defender, Michael Hill, Assistant Public Defender, Scott Kawamoto and Dennis M. Nolan, Deputy Public Defe nders, for Petitioner. No appearance for Respondent.2 Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel fo r Real Party in Interest Or ange County Social Services Agency.
Law Office of Harold LaFlamme and Linda O’Neil for the minor.

* * *

Petitioner G.V. (father) is the father of G.V. (child). 1 He challenges the sufficiency of the evidence to support the order denyin g him reunification services pursuant to Welfare and Institutions Code se ction 361.5, subdivisions (b)(5) and (b)(6). (All further statutory references are to th is code.) We find the challenged order is supported by substantial evidence.

FACTS AND PROCEDUR AL BACKGROUND

Because father challenges the sufficiency of the evidence, we review the facts in the light most favorable to the findings and conclusions of the juvenile court. ( In
re Tania S. (1992) 5 Cal.App.4th 728, 733.) The operative facts not taken from in-court testimony, are drawn from the jurisdiction/disposition reports prepared by Real Party in Interest Orange County Social Services Agency (SSA), which were admitted into evidence at the disposition hearing.

1. Initial Remova l and Detention The basic facts surrounding the initial removal and detention of the child are not disputed. At 1:30 a.m. on June 13, 2012, M.C. (mother) brought the then three-

1 M.C. also filed a notice of intent to f ile a writ petition, which she later withdrew.3 month-old child to the emergency room. Mother stated the child was favoring his left leg
and would not extend it. Initial X-rays revealed the child had a new fracture of the left
tibia. The child also had a si milar injury to the right tibia but it was healing. And the child also had one new rib fracture and multiple rib fractures estimated to be four to six weeks old. The doctors and radiologist stated these kinds of injuries are primarily found
in child abuse cases and coul d see no other explanation.
Mother and father both denied kn owing how the child sustained these injuries and provided no expl anation. Both denied pulling the child’s leg forcefully and denied seeing anyone pull his leg. Mother admitted suffering from postpar tum depression and stated she was taking prescribed medications. She denied fee lings or thoughts of harming herself or the child, and she denied domestic violence in the home. Father acknowledged mother’s postpartum depression but de nied domestic violence.
The child was detained due to allegations of ph ysical abuse and general neglect. A petition alleging serious physical harm, failure to protect, severe physical abuse and cruelty was filed based upon the facts described above. Subsequently the juvenile court ordered the child detained.

2. Jurisdiction/Disposition Reports Further X-rays provided more details about the child’s injuries. There were
seven old rib fractures and tw o new ones. Dr. Daphne Wong , Medical Director of the Suspected Child Abuse and Negl ect Team at Children’s Hospital, Orange County stated
the new fractures occurred less than seven da ys ago and the old fractures were two to
three weeks old. She concluded the trauma did not appear to be accidental. The rib fractures would have been caused by someone s queezing the child’s ri bs very hard. The leg fracture would be the result of some one pulling and twisting the child’s leg.4 The child had been se en by Dr. James Kay at Mission Hospital about a
month earlier. At that time the child had a fever and a bruise on his abdomen but it was explained that it was most likely fro m the child’s car safety seat. Mother told investigators she dro pped the child off at the babysitter’s before heading to work on June 12. When she picked him up the child and the leg seemed fine. He was kicking and smiling. About midnight, mother noticed the child’s left leg was bent up really far. When she tr ied putting it down, he would put it right back. The child did not cry, but he did fuss about her trying to put his le g down. Mother and father both said nothing unusual had happened earlier in the evening.
Mother stated father did not take car e of the child much . The child cries
with father because th e child does not know him and gets scared. Mother had never seen father hold the child in a rough way. She di d not think father would hurt the child. She
also said she never felt she woul d harm the child or herself. Sh e stated that if she lost her temper with the child, she has placed him in the crib and walk ed away to take a breather. Upon reviewing the time frames with mother, Sheriff’s Depu ty Robert Pequeno opined the injury to the child had occurred between 8:30 p.m. and 10:00 p.m., “possibly” while in the care of his parents. The babysitter told police she babysa t the child for a week beginning on June 4, 2012. The first day she noticed if she held the ch ild by his rib area under his arms, “he would cry” “and sc ream.” This continued for the entire week. She
remembered the child was moving both legs and was fi ne on June 12. Father told Dr. Wong he was not concerned about how anyone takes care of the child. He was not sure how long mother had been taking medications or how long she had been depressed. Father denied mother had any symptoms of depression since he had known her. He had not noticed any change in her behavior or mood swings.
Two months later father told the soci al worker he and mother had had an argument where mother threw a s hoe hitting father in the face. When police arrived they5 saw father had a small, red lump under his left eye. The parents filed restraining orders against one another, precluding su bsequent visits together. Subsequently, father advised the soci al worker he had concerns about how the child was hurt. He alleged mother had a “nervous breakdown” once while attempting to breastfeed the child, stating to grandmother, “take the baby before I hurt him.” Father also reported mother’s depre ssion was so bad her physician increased the dosage of her antidepressant. According to father, mother always said the baby cries “too much” and
she can’t “handle moth erhood.” This confirmed mothe r’s previous st atement to the social worker her antidepressant had been incr eased due to “baby blue s” after the child’s
birth. Mother admitted sometimes motherho od was “overwhelming” due to her being a
first time mother and father deciding not to help her, but sh e felt she did her best to care for the child. She said she was doing “everyth ing” for the child and in the beginning she felt this was the reason the child would cry so much with father because he never helped
out so the child did not know him. Father believed mother may have hurt the child the day sh e took him to the emergency room. He and mother had a big argum ent that day. She was really angry with him and was being violent. Father stated the child cried a lot but he assumed it was because he was “colicky” and sick. Father said he did not notic e any injuries.

3. Jurisdiction Hearing At a contested jurisdiction hearing the court accepted into evidence several jurisdiction/disposition reports prepared by SSA, and mother submitted on those reports. The parties also presen ted live testimony.

a. Dr. James Kay Dr. Kay testified he had been a pe diatrician since 2007, and he was a mandated reporter. Dr. Kay examined the child on 10 dates from March 3, 2012 to June6 5, 2012, for well-child exams and various ailm ents. Dr. Kay did not see anything that led him to believe the child was being physically ab used or that father should have known of any abuse. Dr. Kay testified leg fractures would be more difficult to diagnose if both legs were broken, and admitted he had never diagnosed an infa nt with rib fractures. He would look for rib fractures if he already susp ected child abuse. He did not recall either parent stating the child screamed when held under the arms. He did not look at the child’s legs in a detailed manner on June 5.

b. Father Father testified he would spend six to 10 hours holding the child on Sundays, and would typically hold the child anywhere fro m 10 to 20 hours during the entire week. He saw nothing to indicate the child was being hurt or abused prior to the emergency room vi sit June 13. Father denied ever being rough with the child or ever seeing anything indicating the child had fractures. He rememb ered mother saying she heard a popping or clicking sound when she picked up the child in early June, but did not recall ever hearing that the babysitter reported the child cried ev ery time he was held around his ribs. Father acknowledged mother had stated the child needed to be taken from
her so she would not hurt him. Father di d not recall telling SSA mother complained about the child crying too much with her or that she felt overwhel med by motherhood. Father thought mother was doing a great job with the child. He did not have any concerns about her parenting or her depression, since she addr essed the issues promptly. He did recall mother being emotional and sa d during her pregnancy but not after the
child’s birth. Father denied having ever been vi olent with anybody but acknowledged mother had put her hands on hi m and pushed him three to six times between June 12 and7 August 15. He also denied mother had ever been physically aggressive with him, other than pushing.

c. Dr. Daphne Wong Dr. Wong testified she is certified in general and child abuse pediatrics.
She examined the child and his medical records. Dr. Wong testified Dr. Kay may have fa iled to detect the child’s fractures in early June, because he was focu sing on other parts of the ch ild’s body and those injuries were healing. The leg injuries would have begun “healing in a short amount of time, and once they start healing there may not be that much pain associated unless you’re really manipulating that limb.” With respect to the child’s rib fractures, “if they are healing, generally, unless you’re really pressing or sq ueezing on the child, you may not see that – you may not see any outside bruising.” “And the swelling and thi ngs like that may or may not have even been there at the beginning.” If the doctor did not mani pulate the limb, it would be possible to miss a broken bone diagnosis. “[W]hen the fractur e happened it would be painful so the child would cry, would be irritabl e, and probably for the next few days with manipulation would show some sign of pain.” For the firs t few days after the fracture there would have been some pain. Once the bone starts h ealing, it becomes more likely that someone might miss it. Dr. Wong estimated the earliest possi ble date for the child’s rib fractures was three to four weeks prior to his hosp ital admission. Over that time he would frequently have been fussy. Dr. Wong said neither parent had an explanation for the child’s injuries.
Father told her the child had been fussy for about a month and a half. Mother said the child had been fussy since birth. Moth er initially reported the child had been experiencing pain for three days, but then stat ed she had just noticed it that evening.8 According to Dr. Wong, de pending on the number of fractures, if a child is held around the rib cage, the child may have been fretful. If held from the back and bottom, the child “probably won’t have that much fussiness.” Dr. Wong indicated that
she would be “worried about a rib fracture” if there was a poppi ng or clicking sound when picking up a child around the torso.

d. Jurisdiction Ruling The juvenile court found true by a preponderance of the evidence the allegations of serious physical harm, failur e to protect and severe physical abuse and scheduled a disposition hearing.

4. Disposition Hearing A contested disposition hear ing was conducted over po rtions of nine days. The court read, considered a nd accepted into ev idence without obje ction, the eight jurisdiction/disposition reports and suppleme ntal reports prepar ed by SSA and SSA submitted on those reports. A number of witnesses including mother and father
testified. 2

a. Senior Social Worker Laquita Hudson Ms. Hudson recommended ag ainst providing reunification services because it had not been shown “that either parent has recognized or admitted to the abuse of this child . . . .” “[W]e have . . . an infant that has severe injuries and there is no explanation

2 Although several other witnesses testifie d the trial court speci fically found they were not credible. Moreover, th eir testimony is not relevant.9 of these injuries, so . . . it would lead one to think how c ould they possibly benefit from
further services if . . . there is no understand ing of how this child was actually injured.”

b. Mother Mother testified past domestic viol ence could have harmed the child. Mother was aware the child had broken bones, but did not know what had happened to him. She offered several possible explan ations, including her belief father was responsible for some of the injuries, becau se of what had happ ened with domestic
violence.

c. Father Father testified mother had been aggr essive with him on the day the child was detained, and in a few incidents after the child had been ta ken away. Although “open” to the possibility the ch ild’s injuries were non-accide ntal, father believed the child had been injured accidentally, as described by mother. Befo re the child’s broken bones were revealed, mother had not disclosed the in cidents in which she la ter claimed the child may have been injured. Father completed an anger management program. Looking back at what he learned in the program, he saw several red flags in mother’s behavior, during her pregnancy, and after the child had been taken away. In hinds ight, he would have asked to
care for the child when mother was frustrated. Withdraw ing and helping mother less was a “big mistake.”

d. Disposition Ruling At the conclusion of the disposition hear ing, the juvenile court declared the child to be a dependent, rem oved the child from parental custody, denied reunification services to both parents pursuant to section 3 61.5, subdivisions (b)(5) and (b)(6), and set10 a permanency hearing under s ection 366.26. The juvenile court detailed the factual and legal basis for these ru lings on the record.

DISCUSSION

Father challenges only the juvenile court’s order denying him reunification
services. He contends there is not substa ntial evidence to suppor t the application of either section 361.5, subdivis ion (b)(5) or section 361.5, subdi vision (b)(6). We disagree.

1. General Law and Standard of Review
When a child is removed from the custod y of his parents, the juvenile court must generally order the social worker to provide reunification services to the parents. (§ 361.5, subd. (a); In re William B. (2008) 163 Cal.App.4th 1220, 1227.) However, when it is shown “by clear and convincing evid ence that a dependent minor falls under subdivision (e) of section 3 00, the general rule favoring reunification services no longer applies; it is replaced by a legislative assu mption that offering se rvices would be an unwise use of governmental resources.” ( Raymond C. v. Superior Court (1997) 55 Cal.App.4th 159, 164.) Reunification services may be denied when the juvenile court finds by clear and convincing evidence one or more of the specifically enumerated exceptions applies. (§ 361.5, subd. (b).) “We review the court’s decision to deny reunification services under the
substantial evidence test to determine whether it is supp orted by evidence that is reasonable, credible, and of solid value. [Citation.] ‘We do not reweigh the evidence,
nor do we consider matters of credibility.’ [Citation.]” ( L.Z. v. Superior Court (2010) 188 Cal.App.4th 1285, 1291-1292 ( L.Z. ).) “Under this standard of review we examine the whole record in a light most favorable to the findings and conclusions of the juvenile court . . . . [Citation.] We mu st resolve all conflicts in s upport of the determination and11 indulge all legitimate inferen ces to uphold the court’s orde r. Additionally, we may not
substitute our deductions for those of the trier of fact. [Citations.]” ( In re Albert T

. (2006) 144 Cal.App.4th 207, 216.) “When applying the substantial evid ence test, however, we bear in mind the heightened [clear and convincing] burden of proof. [Citation.]” ( In re Alvin R. (2003) 108 Cal.App.4th 962, 971.) The evid ence must be so cl ear as to leave no substantial doubt, and must be sufficiently strong to command the unhesitating assent of every reasonable mind. ( Ibid .)

2. Section 361.5, subdivision (b)(5) Reunification services may be denied when the juvenile court finds “the child was brought within the ju risdiction of the court under su bdivision (e) of Section 300
because of the conduct of that parent . . . .” (§ 361.5 s ubd. (b)(5).) “‘[C]onduct’ as it is used in section 361.5, subdiv ision (b)(5) refers to the pare nt in the household who knew
or should have known of the ab use, whether or not that parent was the actual abuser.” ( In
re Kenneth M. (2004) 123 Cal.App.4th 16, 21

. ) The identity of the ac tual abuser need not be shown. ( Ibid .) In this case, the juvenile court was well aware section 361.5, subdivision (b)(5) applies to a parent who knew or should have known of the abuse, irrespective of whether the identity of the abus er was shown. As the juve nile court stated, “This is precisely the type of area where the court does not specifically have to say which parent did it. The conduct of the parent, either th ey personally inflicted it on the child or they knew or reasonably should have known.” He re, the juvenile cour t expressly found by clear and convincing evidence, “Parent . . . should have known this child had been injured, and that’s only for the legs. There were also old and new injuries to the ribs that parents knew or should have known about.”12 In opposition to these express finding s, father first contends there is no credible evidence to suggest fath er physically abused the child . But the trial court did not rely on father being the perpetrator, only th at he should have kn own of the injuries.
Father next contends substantial ev idence does not support the finding he
either knew or should have known of the child abuse. With respect to the first prong,
there is abundant evidence in the record from which the juve nile court could legitimately infer father had actual knowledge of the abuse. Based upon the nature and extent of the injuries inflicted, and the differing stages of healing observed, ther e can be no doubt the abuse occurred over a period of weeks if not months. Furthermore, there is no doubt father was regularly in close proximity to, and often even in physical contact with, the child throughout the period of abuse, and par ticularly during the crucial period of time between 8:30 p.m. and 10:00 p.m. on June 12, 2012. This ev idence alone is sufficient to support the finding of the trier of f act with respect to actual knowledge. With respect to the seco nd prong, there is overw helming evidence in the record from which the juvenile court could legitimately conclude father should have known of the abuse. Everything we have just described above concerning actual knowledge prong applies a fortiori under this prong as well. On this point father argues if a medical professional such as Dr. Kay coul d reasonably be expect ed to miss a child’s broken bones, then a lay pare nt such as father should not be expected to reasonably recognize the child injuries. We are not persuaded. The fact Dr. Kay observed nothing on or before J une 5 which caused him to believe either parent was abusing the child, or that father should have known the child was being physically abused, does not undermine the juvenile court’s conclusion father
should have known of the abus e by June 13. As Dr. Kay hims elf testified, and Dr. Wong as well, there are good reasons why Dr. Kay might not have noticed anything was amiss on June 5, and none of those reasons conflicts with the finding father should have known. These include the fact the injuries were he aling and the pain had subsided and Dr. Kay13 was focusing on other things. Furthermore, even if nothing else there can be no doubt
father should have known of the in juries inflicted on June 12, 2012.
Father’s reliance on L.Z. , supra , 188 Cal.App.4th 1285 to support this argument is misplaced. In L.Z. , the court found insufficient evidence the mother knew or
should have known of the ch ild’s injuries, a fractured ar m and nine broken ribs. ( Id . at pp. 1292-1293.) But the facts of that case are distinguishable. There the parties stipulated that a doctor’s testimony would prove a parent would not necessarily know if another person ha d injured a baby’s ribs, and in fact even a pediatrician would likely diagnose it only afte r looking at an X-ray. The baby would only be crying and fussy. In addition, ther e was no evidence the mother should have known about the arm injury. She had taken th e baby to the doctor for a regular visit and had been told nothing was wr ong with her. Later, when th e mother was concerned about the baby not using her arm fo r a week, she took the baby ba ck to the doctor who could see nothing wrong until an X-ray was taken. In our case, there was no such stipula tion. To the contrary Drs. Kay and Wong explained why the injuries might have been missed by Dr. Kay, most notably due to lack of pain. But the pain would have been evident immedi ately upon injury. Moreover, in L.Z. , supra , 188 Cal.App.4th 1285, the moth er told the doctor about her
concerns. There is no ev idence Dr. Kay was given any such information. And here, a substantial amount of ev idence shows fath er should have known of the injuries. He knew of mother’s violence, having be en a victim of it himself. He acknowledged mother saying she heard a popping sound when she picked the child up. And the babysitter reported the child scr eaming in pain every day for a week when
held around his ribs. Father was aware of mother’s depr ession, both during her pregnancy and after the birth of the child, a nd the need for an increase of her antidepressant. She had broken down while feeding the ch ild and told the grandmother to take him before mother14 hurt him. Mother told him she could not handle motherhood . He admitted he did not help with the child enough, despite knowing of mother’s violence and depression. Under these circumstances, and even bearing in mind the heightened clear and convincing burden of proof applicable in juve nile court, the evidence is so clear as to leave no substantial doubt, and it is suffici ently strong to co mmand the unhesitating assent of every reasonable mind. Thus, ther e is substantial evid ence to support the finding father knew or should have known of the abuse.

3. Section 361.5, subdivision (b)(6) Having found substantial evidence supp orts the juvenile court’s denial of reunification services under section 361.5, su bdivision (b)(5), we need not discuss the alternative grounds for denial unde r section 361.5, subdivision (b)(6).

DISPOSITION

The petition for writ of mandate is denied.

THOMPSON, J.

WE CONCUR:

O’LEARY, P. J.

MOORE, J.