In re B.S. CA1/4 ( 2016 )

Filed 2/3/16 In re B.S. CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIRST APPELLATE DISTRICT
DIVISION FOUR
In re B.S., a Person Coming Under the
Juvenile Court Law.
W.S.,
Petitioner,
v.
A146782
THE SUPERIOR COURT OF ALAMEDA
COUNTY, (Alameda County
Respondent; Super. Ct. No. OJ15024974)
ALAMEDA COUNTY SOCIAL
SERVICES AGENCY,
Real Party in Interest.
I.
INTRODUCTION
Petitioner W.S. (Father) files this petition for extraordinary writ seeking review of
the court order setting a hearing under Welfare and Institutions Code section 366.261 to
consider termination of parental rights and a permanent plan for four-year-old B.S.
Father contends the court erred in denying him reunification services under section 361.5,
subdivisions (b)(5) and (b)(6) because there was no clear and convincing evidence of
1
All further statutory references are to the Welfare and Institutions Code unless
otherwise identified.
1
severe physical abuse by Father and the court did not properly consider whether
reunification was in B.S.’s best interest. We deny the writ petition on the merits.
II.
FACTUAL AND PROCEDURAL BACKGROUND
On June 1, 2015, B.S., then three years old, was taken into protective custody by
the Oakland Police Department and taken to Oakland Children’s Hospital (the hospital).
When conducting a home health and safety check on B.S., the police found him home
alone in an apartment that had broken glass, open medication bottles, and open toxic
cleaning supplies. He had bruises on his forehead, a large abrasion on his cheek, burn
marks on his face and back, and a burn or bite mark on his lower lip. He was suffering
from internal bleeding and a laceration to his liver. The doctor identified the injuries as
“non-accidental.”
Mother admitted she had “socked” B.S. in the stomach the previous day and he
had trouble breathing, leading her to administer CPR. She did not take him to the
hospital.
B.S.’s parents had shared custody, but on May 29, 2015, Mother was given
temporary custody because of allegations of abuse by Father. Prior to that date, in early
May, B.S. had been seen at the hospital with “patterned marks” that looked like car
cigarette lighter burns.
On June 3, 2015, the Alameda County Social Services Agency (the Agency) filed
a dependency petition under section 300, subdivisions (a), (b), (e), and (g). The petition
alleged B.S. had suffered serious physical harm, was living in unsafe conditions, and
there was no provision for support. In support of jurisdiction, the petition alleged:
(1) B.S. had internal bleeding and a liver laceration; (2) the hospital doctors believed the
injuries were not accidental; (3) Mother admitted punching B.S. in the stomach;
(4) Mother had been arrested for child abuse; (5) a video recording showed mother
walking into her apartment with B.S. crying and walking out “moments later” with B.S.
looking unconscious; and (6) B.S. had patterned marks on his back that looked like car
cigarette lighter burns.
2
At the detention hearing, the juvenile court found that the Agency made a prima
facie case that B.S. was subject to the court’s jurisdiction, and ordered the child be
removed from the physical custody of both Mother and Father.
The Agency filed a jurisdiction and disposition report recommending no services
be provided to either parent. The report documented alleged physical abuse by Father.
In May 2015, a hospital doctor found “patterned marks” that looked like burns from a car
cigarette lighter on B.S.’s back. The burns were sustained “over time” when B.S. was in
Father’s care. B.S. also had a loop mark on his right thigh consistent with being hit with
a belt or cord. He also had “numerous linear hyper-pigmented marks” on his chest and
abdomen. One treating physician noted: “These injuries are branding injuries and are
torture.” San Joaquin County Child Protective Services was conducting an investigation
into physical abuse by Father, and the San Joaquin County court issued a restraining
order preventing contact between Father and B.S.
Father denied causing any injuries to B.S. Father stated he was the primary care
provider for B.S. since birth. According to Father, Mother had only visited B.S. four
times in the child’s life. Mother, in fact, had custody of B.S. from his birth until
approximately June 2013.
The report found there was clear and convincing evidence that no reunification
services should be provided to Mother or Father because both parents inflicted severe
physical harm on B.S. B.S. would not benefit from reunification services because “[h]is
treatment by both parents amounts to torture.”
Prior to the jurisdiction and disposition hearing, the Agency filed an amended
juvenile dependency petition. The amended petition contained the original allegations
under section 300, subdivisions (a), (b), (e), and (g) and added an additional allegation of
cruelty under subdivision (i). It alleged torture and cruelty by Mother based on the “non-
accidental traumas” to B.S. and a video that showed Mother carrying B.S. into the
apartment while he was crying and coming out two minutes later holding B.S., who
appeared to be unconscious, with his head back and arms out.
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The amended petition alleged torture and cruelty by Father because of the car
cigarette lighter burns that happened while B.S. was in Father’s care. Further, B.S. stated
that Father hit him because he is a “bad boy.” He said Father “hit me in my stomach”
and “whupped me with a belt.” When the clinical social worker asked B.S. how many
times Father hit him, he responded: “He always hit me.”
The court held a contested jurisdiction hearing on October 16 and 28, 2015. The
social worker testified about the scars on B.S.’s back: four or five round areas of skin
discoloration and thin slashes that are “heal scars.”
Father testified that he had hit B.S. with a belt on one occasion but had not used
other physical punishment. He stated he did not cause the circular marks on B.S.’s back
and he never burned him. Father stated that he wanted to reunify with his son because he
loved him and he deserved another try. He was the primary caretaker for B.S. from June
2013 to May 2015. He said that only his girlfriend and his girlfriend’s mother helped
care for B.S. He testified that there was no possibility that his girlfriend’s mother’s
family could have injured B.S.
Father testified that he supervised B.S.’s baths regularly and watched him bathe in
April and May 2015. He said he would have noticed circular marks on B.S.’s back.
He explained that when he dropped B.S. off at Mother’s apartment for a visit in
May 2015, she called him a few hours later and asked about the marks on B.S.’s back.
When confronted with the hospital doctor’s diagnosis that these circular marks on the
child’s back were at least two weeks old, Father stated it was “impossible.”
Father’s mother, M.W., testified she is a mandated reporter because of her job
running a disabled group home. She testified that she would see B.S. two to three times
per month. In mid-April 2015, she saw B.S. without a shirt and he had no marks or burns
on his back. She stated she had seen Father hit B.S. with a belt and she told him not to do
it and to use a “time out” instead. She testified that she had regular interaction with her
grandson and even babysat him overnight and that Father’s siblings also cared for B.S.
The Agency argued the medical evidence demonstrated the circular marks and
lacerations on B.S.’s body happened while he was in Father’s care. One of the medical
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reports characterized the injuries as a “branding” and “torture.” Father provided
inconsistent testimony about who cared for B.S., and his testimony was contradicted by
his mother, M.W. The Agency argued neither parent should receive reunification
services and that under section 300, subdivision (e), the burden shifted to them to
demonstrate they were entitled to services and they had not met that burden.
B.S.’s counsel similarly argued that Father knew or should have known about
B.S.’s injuries based on his role as the primary caretaker and his admissions that he
supervised B.S.’s baths regularly. The evidence demonstrated B.S. was severely
physically abused while in his Father’s care. Counsel argued the court need not
determine if Father burned B.S. because the injuries occurred while in Father’s care and
he should have known and protected B.S. Counsel argued that reunification services
were not in B.S’s best interest. B.S.’s statements about his father were that he hit him
and hurt him and thought he was a bad boy.
Father’s counsel argued he did not abuse B.S. and the Agency had not
demonstrated the circular marks and lacerations were severe physical abuse.
After hearing argument from all parties, the court stated: “I don’t even know how
to start other than poor B[.S.]. I’m at a los[s] regarding how a four-year-old child could
suffer this much . . . by the people that claim to love him.” The court noted that Father
admitted that within hours of dropping B.S. off with Mother, she called to ask him about
the marks on B.S.’s body. While in Father’s care, B.S. suffered from abuse, “maybe even
torture.” B.S. told his doctors that his father “always hit me” and “[t]hey always hurt
me.” The court found it was “hard to believe” that a father who claims to be active in
caring for his child and supervising his bathing would not have, at least, observed the
marks on the child’s body.
This child has been “abused, assaulted, tortured in two separate households by
both of his parents or his parents’ families. And this has to be the wors[t] thing that I can
imagine for a child.”
The court found Father’s testimony not credible. He testified that only his
girlfriend and her mother cared for B.S., but Father’s mother, M.W., testified that she had
5
regular interaction with her grandson and even babysat for him overnight and that
Father’s siblings also cared for B.S.
The court found true all the allegations in the petition. It found the section 300,
subdivision (e) and (i) allegations by clear and convincing evidence. The court ordered
no reunification services for Mother or Father. “There is clear and convincing evidence
that reunification services should be denied to the mother and father as follows: Pursuant
to section 361.5[, subdivision] (b)(5) as well as 361.5[, subdivision] (b)(6), that the
mother and father inflicted severe physical harm or severe sexual abuse on the child[.]”
The court stated the factual basis for the finding was contained in Agency reports, police
report, and medical records which document the severe injuries. B.S. would not benefit
from reunification services because his treatment by both parents amounted to severe
physical abuse as well as cruelty. The court stated the factual basis for this finding was
the Agency’s report.
The court set a section 366.26 hearing for February 19, 2016.
III.
DISCUSSION
Father raises two arguments on appeal. First, he argues the court’s findings of the
allegations under section 300, subdivisions (e) and (i) were not supported by substantial
evidence. Second, he contends the court did not properly consider whether reunification
was in B.S.’s best interest under section 361.5, subdivision (b)(6). Although Father only
contests the court’s finding under section 361.5, subdivision (b)(6), we address the
court’s primary finding under section 361.5, subdivision (b)(5) as well as its finding
under subdivision (b)(6).
In reviewing an order denying reunification services, we determine if substantial
evidence supports it. (In re Gabriel K. (2012) 203 Cal. App. 4th 188, 196.) “[W]e resolve
all conflicts in the evidence in favor of the juvenile court’s finding. [Citation.]” (Ibid.)
“A juvenile court has broad discretion when determining whether . . . reunification
services would be in the best interests of the child under section 361.5, subdivision (c).
[Citation.] An appellate court will reverse that determination only if the juvenile court
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abuses its discretion. [Citation.]” (In re William B. (2008) 163 Cal. App. 4th 1220, 1229.)
The substantial evidence standard applies even if the standard of proof in the trial court is
clear and convincing evidence. (In re Jasmine C. (1999) 70 Cal. App. 4th 71, 75.)
A. Substantial Evidence Supports the Juvenile Court’s Findings B.S.
Suffered Severe Physical Injury and Cruelty While in Father’s Custody
The juvenile court must provide family reunification services unless a specific
statutory exception applies. (§ 361.5; Tyrone W. v. Superior Court (2007) 151
Cal. App. 4th 839, 845 (Tyrone W.).) As discussed below, the juvenile court found two
exceptions applied in this case.
1. Severe Physical Abuse under Section 361.5, subdivision (b)(5)
Section 361.5, subdivision (b)(5) authorizes the court to deny reunification
services to a parent when the child has been brought within the jurisdiction of the court
under section 300, subdivision (e). (§ 361.5, subd. (b)(5).) Section 300, subdivision (e)
provides a child may be judged a dependent of the court if a child “under the age of five
years and has suffered severe physical abuse[2] by a parent, or by any person known by
the parent, if the parent knew or reasonably should have known that the person was
physically abusing the child.” (§ 300, subd. (e).) Pursuant to section 361.5,
subdivision (c), if a juvenile court finds the subdivision (b)(5) circumstances to be
supported by clear and convincing evidence, the juvenile court is prohibited from
granting reunification services “unless it finds that, based on competent testimony, those
services are likely to prevent reabuse or continued neglect of the child or that failure to
try reunification will be detrimental to the child because the child is closely and
positively attached to that parent.” (§ 361.5, subd. (c); In re A.M. (2013) 217
Cal. App. 4th 1067.)
2
For the purposes of this subdivision, “severe physical abuse” includes “any
single act of abuse . . . or more than one act of physical abuse, each of which causes
bleeding, deep bruising, significant external or internal swelling, bone fracture, or
unconsciousness; or the willful, prolonged failure to provide adequate food.” (§ 300,
subd. (e).)
7
B.S.’s injuries were severe.3 The severity of an injury may be judged by the fact it
is still apparent after a significant period of time. (In re Joshua H. (1993) 13 Cal. App. 4th
1718, 1729 [“the requisite severity may be inferred from the fact that the injuries were
still apparent during the infant’s . . . medical examination, at least eight days later”
(original italics)].) B.S.’s branding injuries were visible when he was examined after
being taken to the hospital both in May 2015 and June 2015. The injuries remained
visible when the social worker saw B.S.’s back nearly four months later. Given the
treating physician’s assessment the injuries were likely a “branding” with a car cigarette
lighter and constituted “torture,” there is no question that B.S. suffered severe physical
abuse. In addition to the burn marks, B.S. had “numerous linear hyper-pigmented marks”
on his chest and abdomen and a loop mark on his right thigh, all of which were consistent
with being beaten with a belt or cord.
Father also objects to the court’s finding of cruelty by clear and convincing
evidence although he does not directly address the finding in his petition. Section 300,
subdivision (i) provides for jurisdiction where a child “has been subjected to an act or
acts of cruelty by the parent or guardian or a member of his or her household, or the
parent or guardian has failed to adequately protect the child from an act or acts of cruelty
when the parent or guardian knew or reasonably should have known that the child was in
danger of being subjected to an act or acts of cruelty. (§ 300, subd. (i).) Section 300,
subdivision (i) applies in two situations: “The first is where the parent, guardian, or
member of the household has directly subjected the child to an act or acts of cruelty. The
second is where the parent or guardian has failed to protect the child from acts of cruelty
by others.” (In re D.C. (2011) 195 Cal. App. 4th 1010, 1015.)
Acts of cruelty “are intentional acts that directly and needlessly inflict extreme
pain or distress. They might be described, as one source suggests, as acts that produce a
3
For purposes of this opinion, we only address the injuries that occurred while
B.S. was in Father’s custody. B.S.’s injuries in June 2015 caused by Mother constituted
severe physical abuse as well.
8
shock of conscience.” (In re D.C., supra, 195 Cal.App.4th at p. 1017, citing Seiser &
Kumli, Cal. Juvenile Courts Practice and Procedure (2011), § 2.84[10], p. 2–226.)
The juvenile court’s finding of cruelty is supported by substantial evidence. There
can be no dispute that repeatedly using a car cigarette lighter to burn a three-year-old
child is an act of cruelty. (See In re Benjamin D. (1991) 227 Cal. App. 3d 1464, 1466–
1467.) In In re Benjamin D., the father had repeatedly pinched the child on the abdomen,
which “entailed real physical pain on a child not yet three years old, especially in the
light of the other evidence pointing to [the father’s] cavalier indifference toward the
infliction of physical pain on [the child]. Such facts establish [the child] was, indeed,
subject to an act or acts of cruelty by [the father]. [Citation.]” (Id. at p. 1472.) Here, the
medical reports described the burns on B.S.’s back as “branding” and the result of torture.
Even if Father did not personally inflict these injuries, his failure to protect B.S. from the
cruelty by others is no less indifference to B.S.’s wellbeing than the child in In re
Benjamin D. Accordingly, the court properly found section 300, subdivision (i) applied.
Rather than focusing on the evidence of severe injury and cruelty, Father argues
there was no substantial evidence that he caused B.S.’s injuries or that he should have
known how the injuries occurred. As B.S.’s primary caretaker, the evidence of abuse
was unmistakable. The medical evidence demonstrated that prior to May 2015, while
B.S. was in Father’s care, he suffered burns on his back and was hit with something
leaving strap marks on his thigh.
Father denied causing the burns or strap marks and denied he ever saw them on
B.S’s body. Father, however, testified that he supervised B.S.’s baths throughout his life,
including in April and May 2015. Based on the medical evidence of the burns occurring
over time, it is not possible that if Father supervised B.S.’s baths, he would be unaware of
the injuries.
Father further admitted that within hours after leaving B.S. in Mother’s care, she
called him to ask about the circular marks on B.S.’s back. This provided additional
evidence that the injuries occurred while B.S. was in Father’s care.
9
Finally, B.S. stated he was abused by Father. He said Father “always hit” him,
“whupped” him with a belt, and hurt him. The fact he did not specifically state Father
caused the burns does not undermine the court’s findings of severe physical abuse.
“Section 300, subdivision (e), and subdivision (b)(5) of section 361.5, however, do not
require identification of the perpetrator. [Citation.] Read together, those provisions
permit denial of reunification services to either parent on a showing that a parent or
someone known by a parent physically abused a minor. [Citation.] Thus, ‘conduct’ as it
is used in section 361.5, subdivision (b)(5) refers to the parent in the household who
knew or should have known of the abuse, whether or not that parent was the actual
abuser. . . .” (L.Z. v. Superior Court (2010) 188 Cal. App. 4th 1285, 1292, quoting In re
Kenneth M. (2004) 123 Cal. App. 4th 16, 21.)
The court’s finding of severe physical abuse by clear and convincing evidence
prohibited it from providing reunification services unless it found the services would
prevent reabuse, or that failure to provide services would be detrimental to the child.
(§ 361.5, subd. (c).) Father provided no evidence that reunification services would
prevent him from once again inflicting or ignoring abuse to B.S. Father was unwilling to
acknowledge the source of B.S’s injuries and testified it was “impossible” the branding
marks occurred while the child was in his care. “In those circumstances, there is no
reason to believe further services will prevent h[im] from inflicting or ignoring the
infliction of similar injuries in the future. For the same reason, there is no evidentiary
basis for finding by clear and convincing evidence that reunification with [Father] would
be in the best interests of [B.S.]. [Citation.]” (In re A.M., supra, 217 Cal.App.4th at
p. 1078.)
Father also presented no evidence that the failure to provide services would be
detrimental to B.S. To the contrary, B.S. stated that his father “hit me in my stomach”
and “whupped” him with a belt because he was a “bad boy.” When asked how often his
father hit him, he responded “[h]e always hit me.” As the juvenile court observed, B.S.
was forced to suffer at the hands of the people who claimed to love him, and thus there
was no evidence it would be detrimental to B.S. to bypass services.
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2. Severe Physical Harm under Section 361.5, subdivision (b)(6)
Section 361.5, subdivision (b)(6) provides where a child has been declared a
dependent as the result of “the infliction of severe physical harm to the child”4 and “the
court makes a factual finding that it would not benefit the child to pursue reunification
services with the offending parent or guardian,” no services need be provided. (§ 361.5,
subd. (b)(6).)
The court’s finding of severe physical abuse by clear and convincing evidence
supports the finding of physical harm under section 361.5, subdivision (b)(6). Further,
like section 361.5, subdivision (b)(5), “[s]ection 361.5, subdivision (b)(6) is not limited to
the parent or parents whose act directly caused the child’s injury. [Citation.]”
(Tyrone W., supra, 151 Cal.App.4th at p. 851, citing Amber K. v. Superior Court (2006)
146 Cal. App. 4th 553, 562.) Even if Father did not inflict the car cigarette lighter burns
on B.S.’s back, his failure to recognize the injuries and seek medical help constitutes the
infliction of serious injury by omission. (Pablo S. v. Superior Court (2002) 98
Cal. App. 4th 292, 301 (Pablo S.) [“In light of Pablo’s constant pain and the disfigurement
that resulted from the broken leg, the parents’ failure to provide medical attention
constituted the infliction of serious injury by omission” under § 361.5, subd. (b)(6).].)
“[T]he court could reasonably conclude that it was more likely than not that [Father]
either inflicted, knew about, or should have known about, the abuse because he was
[B.S.]’s primary caretaker[.]” (K.F. v. Superior Court (2014) 224 Cal. App. 4th 1369,
1383.)
Given the impossibility that B.S. could have somehow gotten several car cigarette
lighter burns on his back by accident, if Father did not cause the injuries, he should have
recognized them as signs of abuse. Father’s claims he had no knowledge of the injuries
and denial that “anyone in the minor’s life could have or would have inflicted such
injuries” were not credible. (See Pablo S., supra, 98 Cal.App.4th at p. 301 [“[F]or either
4
“A finding of the infliction of severe physical harm, for the purposes of this
subdivision, may be based on, but is not limited to, deliberate and serious injury inflicted
to or on a child’s body[.]” (§ 361.5, subd. (b)(6).)
11
parent to suggest they did not know Pablo needed medical help is simply not credible”].)
Under these circumstances, the court properly concluded that Father should be denied
reunification services. “[T]here are no services that will prevent reabuse by a parent who
refuses to acknowledge the abuse in the first place.” (In re A.M., supra, 217 Cal.App.4th
at p. 1077.)
B. Reunification Is Not in B.S.’s Best Interest
Father argues the court did not properly consider whether reunification would be
in B.S.’s best interest. As outlined above, under section 361.5, subdivision (b)(6), the
court shall not order reunification services unless it finds by clear and convincing
evidence that reunification is in the best interest of the child. (§ 361.5, subd. (b)(6).)
“In determining whether reunification services will benefit the child, the court is
required to consider any information it deems relevant, including the following factors:
(1) the specific act or omission comprising the severe physical harm inflicted on the child
or the child’s sibling; (2) the circumstances under which the abuse or harm was inflicted
on the child or the child’s sibling; (3) the severity of the emotional trauma suffered by the
child or the child’s sibling; (4) any history of abuse of other children by the offending
parent or guardian; (5) the likelihood that the child may be safely returned to the care of
the offending parent or guardian within 12 months with no continuing supervision;
(6) whether or not the child desires to be reunified with the offending parent or guardian.
[Citation.]” (Tyrone W., supra, 151 Cal.App.4th at pp. 847-848; § 361.5, subd. (i).)
While the court did not explicitly itemize the section 361.5, subdivision (i) factors
on the record, the court can consider any information it deems relevant. We do not
require a listing of the court’s finding on every factor listed in subdivision (i). (In re S.G.
(2003) 112 Cal. App. 4th 1254, 1259–1261.) Findings may be implied rather than explicit,
and a reviewing court “will infer a necessary finding provided the implicit finding is
supported by substantial evidence. [Citations.]” (Id. at p. 1260.)
“The gravity of the problem that led to the dependency . . . is relevant to the
question of best interest. [Citation.]” (In re Ethan N. (2004) 122 Cal. App. 4th 55, 66.)
Here, the court considered the specific acts of abuse and the circumstances under which
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the abuse was inflicted. (§361.5, subd. (i)(1), (2).) The court noted that B.S. was
“abused, assaulted, tortured in two separate households” by Mother and Father or
Father’s relatives. The court considered the severity of the emotional trauma suffered by
B.S., finding that this was the worst thing it could imagine for a child. (§ 361.5, subd.
(i)(3).) The court found B.S. would not benefit from reunification services because his
treatment by both parents amounted to severe physical abuse as well as cruelty. The
court relied on the agency reports which included the police reports and medical records
to support its conclusion.
Given the severe abuse suffered by B.S. at the hands of both his parents, the
juvenile court did not abuse its discretion in finding that reunification was not in the
child’s best interest. Further as respondent contends, even if the court erred in ordering
the bypass of services under section 361.5, subdivision (b)(6), it properly found severe
abuse by clear and convincing evidence and denied reunification services under section
361.5, subdivision (b)(5).
IV.
DISPOSITION
The petition for writ of mandate is denied on the merits. (§ 366.26, subd. (l)(1)(c);
Cal. Rules of Court, rule 8.452.) The request for a stay is denied. Our decision is final as
to this court immediately. (Cal. Rules of Court, rule 8.490(b)(2)(A).)
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_________________________
RUVOLO, P. J.
We concur:
_________________________
REARDON, J.
_________________________
STREETER, J.
A146782, In re B.S.
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