In re D.J. CA2/4 ( 2014 )

Filed 9/2/14 In re D.J. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re D.J., a Person Coming Under the B251615
Juvenile Court Law. (Los Angeles County
Super. Ct. No. CK96620)
ORDER MODIFYING OPINION
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND [NO CHANGE IN JUDGMENT]
FAMILY SERVICES,
Appellant,
v.
BRITTANY K. et al.,
Respondents.
THE COURT:
It is ordered that the opinion filed August 13, 2014 be modified as follows:
1. On the caption page delete: Deputy County Counsel for Respondent and
replace with Deputy County Counsel for Appellant.
2. On page 17, the fifteenth line from the top, delete the word “competent” so that
the sentence reads: Because no evidence (let alone competent testimony) was presented
to support a finding by the juvenile court that providing father with reunification services
would be likely to prevent re-abuse, or that the failure to attempt reunification with father
would be detrimental to the child, the juvenile court erred in ordering reunification
services for father. (See In re A.M. supra, 217 Cal.App.4th at pp.1077-1078.)
There is no change in judgment.
_____________________ ______________________ _____________________
MINK, J. MOSK, ACTING P.J. KRIEGLER, J.

Retired judge of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
2
Filed 8/13/14 In re D.J. CA2/5 (unmodified version)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re D.J., a Person Coming Under the B251615
Juvenile Court Law. (Los Angeles County
Super. Ct. No. CK96620)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Appellant,
v.
BRITTANY K. et al.,
Respondents.
APPEAL from orders of the Superior Court of Los Angeles County, Robert
Draper, Judge. Reversed.
Roni Keller, under appointment by the Court of Appeal, for Respondent
Brittany K.
Kimberly A. Knill, under appointment by the Court of Appeal, for Respondent
Derick J.
John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel and
Sarah Vesecky, Deputy County Counsel for Respondent.
INTRODUCTION
Brittany K. (“mother”) is the mother of D.J., born in July of 2012. Derick J.
(“father”) is the minor’s father. D.J. came to the attention of the juvenile court after he
was hospitalized with severe injuries in various stages of healing. The injuries included
traumatic brain injuries, several fractured ribs, detached retinas on both eyes, and a
bruised liver and pancreas. When D.J. was admitted into the hospital on November 12,
2012, it was not known whether he would survive. He did survive, but he is severely
disabled, with a very short projected life span, and never will ever be able to live an
independent life.
The juvenile court sustained a Welfare & Institutions1 Code section 300 petition
pursuant to subdivisions (a), (b) and (e), alleging injuries consistent with inflicted trauma
that would ordinarily not be sustained except as the result of deliberate, unreasonable,
neglectful acts of the minor’s parents, and further alleging that the parents knew or
reasonably should have known that the minor was being physically abused and failed to
take action to protect him. The parents have not appealed from these findings. The court
also dismissed a count pled pursuant to subdivision (b) of section 300, alleging that the
parents failed to obtain timely medical treatment for the child’s injuries. At the
disposition hearing, the court, over the objections of the Department of Children and
Family Services (“DCFS”) ordered the DCFS to provide the parents with reunification
services.
The DCFS appeals from the juvenile court’s jurisdictional finding dismissing
Count b-2, and the court’s order granting the parents reunification services. We reverse
the orders of the trial court (a) dismissing the allegations against parents brought under
subdivision (b) of section 300; and (b) ordering reunification services for the parents.
1
All code references in this opinion are to the Welfare & Institutions Code unless
otherwise indicated.
2
PROCEDURAL AND FACTUAL SUMMARY
This family first came to the attention of the DCFS after the minor, then almost
four months old, was admitted to the emergency room (“ER”) of a hospital, where he was
found to be suffering from severe injuries, including extensive hemorrhage of the
subarachnoid and subdural part of his brain and multiple rib fractures in different stages
of healing. Upon admission, the child was placed in the Pediatric Intensive Care Unit
and placed on a ventilator. Because the infant had severe swelling of the brain, a right-
side ventriculostomy was performed to drain fluids. The treating physician suspected
non-accidental trauma. The parents denied any past or present trauma to the minor.
On November 14, 2012, the DCFS received a referral alleging that the minor was
the victim of child abuse by an unknown perpetrator. A Children’s Social Worker
(“CSW”) responded to the hospital. The attending doctor informed the CSW that it
would be a few days before they would know if the minor would survive. Medical
records documented that the minor was initially brought to the ER for shortness of breath.
An examination then determined that the minor had several healing rib fractures that
were suspicious for non-accidental trauma. The minor also presented with an altered
level of consciousness, traumatic brain injury, acute respiratory failure, traumatic cerebral
edema, and subdural hematoma. An opthalmology consult was ordered and it was
determined that the minor also had multiple acute hermorrhages in both eyes consistent
with non-accidental trauma.
The CSW spoke with mother on November 14, 2012. Mother reported that the
minor had symptoms of a cold for a week. Mother said that father had been sick so she
thought minor had caught his cold. Mother told the CSW she worked and went to school
on November 13, 2012, and that at about 9:15 a.m. she received a call from the office at
her school informing her that minor was sick. Father said the minor was not feeling well
and that he wanted her to meet him so they could take the minor to the doctor. Mother
said then when she saw minor he did not seem like himself. He would at times slump
over while in his stroller. Mother said that when she would push the stroller over cracks
in the sidewalk, the infant cried. While they were on the way to the doctor, mother told
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father that she thought they should take the minor to the ER because it was closer,
however, father wanted to take him to Dr. Haman, his pediatrician, because she was
familiar with the minor. When they arrived at the doctor’s office the minor still seemed
lethargic, but when Dr. Haman moved the minor’s legs around, he opened his eyes and
began to appear normal. She examined the minor and diagnosed him with an ear
infection and the flu, and prescribed amoxicillin, a cough medication and pedialyte.
Mother watched the minor all night and noticed that he was not breathing right. Mother
told father at approximately 1:00 a.m. that she believed they should take the minor to the
ER; however, she could not find anyone to drive them to the hospital. Father told mother
she was panicking, that everything would be fine, and that they would take the baby to
the ER later if his condition did not improve. At approximately 4:00 a.m. the infant was
still having difficulty breathing so the parents took the infant on the train to the ER.
After medical staff informed mother of the infant’s injuries, she said she did not
do anything to him and denied knowing that he was hurt. Mother also denied that father
harmed the infant, stating they loved him too much. Mother said that she and father
sometimes permitted people they stayed with to watch the infant and that they suspected
these people harmed him.
The CSW also interviewed father. He said he watched the infant while mother
attended school. However, he stated that he started school the prior week and so they had
been permitting other people to watch the infant. Father said a maternal uncle watched
the infant for approximately 10 minutes while he went to a store around the corner from
their residence. He also said that Brittany M. and W.J., both of whom lived at the house
at which the parents were staying, sometimes watched the infant. Father confirmed
mother’s statement about their taking the infant to the doctor and later to the ER.
The CSW spoke with Detectives Sundquist, Gaepa and Tanaka of the Los Angeles
Police Department Juvenile Division. The detectives reported that there were some
discrepancies in the parents’ statements. Mother stated that when she first saw the infant
on November 11, 2012, he appeared lethargic, stiff, and with his eyes rolling back, which
4
was consistent with his condition when he was examined by the ER doctor. However,
father said the infant was fine and only had cold symptoms.
Belinda R., a “paternal extended non-relative,” informed the CSW that both
mother and father had tempers and that father once fell on the infant while he and mother
were fighting. On another occasion, she heard that the infant had been dropped. On
another occasion, mother and father were fighting while she was in her room, and she sat
and talked with them about their conduct for approximately two hours.
On November 15, 2012, the CSW spoke with the hospital social worker, who
stated that in addition to other injuries the infant had a bruised liver and pancreas.
Though the infant’s assessment had not yet been completed, the preliminary assessment
was Shaken Baby Syndrome. The next day a CT scan was performed on the infant and it
revealed that the child’s lungs were bruised and he was bleeding from the spine. The
bleeding of the spine was acute. Some of the fractures were as old as four weeks. It was
reported by the attending physician, Dr. Murray, that the infant would never be able to do
anything on his own, including eating, and would be blind.
On November 18, 2012, it was reported to the parents that the infant had serious
brain damage.
Father blamed Brittany M. and W.J. for the child abuse. He said that it must have
occurred on November 9, 2012, when he went to the market and they agreed to watch the
infant until he returned. He was gone for 20 minutes. He said he suspected they abused
the child because they had a strained relationship with mother. He denied physically
abusing the infant or witnessing mother doing so.
The Department notes in its assessment of the case that although the parents
strongly believed that the infant was abused by Brittany M. and W.J., the infant was
found to have several injuries in separate stages of healing, which indicated that the
infant’s injuries pre-dated November 9, 2012, and occurred before they moved into the
house with Belinda R. and her family.
Based on the severity of the infant’s multiple injuries and the parent’s failure to
provide the DCFS with a reasonable explanation as to how they occurred and the
5
conclusion by the medical staff that the infant’s injuries were the result of deliberate/non-
accidental trauma, the DCFS recommended that the court sustain a section 300 petition,
declare the child a dependent of the court and deny the parents reunification services.
The recommendation that the juvenile court not offer the parents reunification
services was based on mother’s admission, during the course of the Los Angeles Police
Department’s investigation, that she (a) previously witnessed father move the infant back
and forth and side to side when he was two weeks old, that she heard a popping sound
and asked father if he was hitting or shaking the infant; (b) previously witnessed the child
become stiff with his eyes rolled back but she did not disclose these symptoms to the
pediatrician during her examination of the infant; and (c) reported to the detectives that
the infant did not cry, while others said the infant “cried more than he slept.” Additional
evidence supported the recommendation, including (d) reports by non-related “family”
members that the parents fought, that the infant was primarily in father’s care, and that
father became easily frustrated with the child and would forcefully bounce him up and
down stomping and pacing with the infant; (e) a treating doctor at the hospital reported
that the infant suffered from a bleed to the brain, left frontal lobe subdural hematoma,
from front to back, which injury would require force and, combined with the rib
fractures, was consistent with Shaken Baby Syndrome; (f) Dr. Murray, a child abuse
expert, reviewed the findings and found the case to be suspicious for non-accidental
trauma; (g) Dr. Rosales, the hospital ophthalmologist, stated that the infant had bilateral
hemorrhages all the way to the “equator,” the worst she had seen in her 30 years as a
doctor, which she concluded were the result of the infant being shaken.
Dr. Murray reported on November 16, 2012 that if the infant survived, he would
likely be totally dependent on others, unable to see, talk, walk, or eat on his own. She
stated that the infant could live into his teens or early twenties, but he would have to be
fed via a feeding tube. Even as a teenager he would have to have his diapers changed,
and his tracheal tube cleaned.
Both parents denied during their interviews with the police that there were any
incidents in which the infant could have been accidentally injured.
6
At the conclusion of the interview, the parents were informed that the infant would
be taken into protective custody. Mother cried and father became visibly upset. The
detectives subsequently heard loud noises as if someone was banging against a wall. A
detective went to investigate and observed father punching walls and yelling. The
detective advised father that if he did not calm down he would be escorted out of the
hospital. Father responded, “Fuck this! I’m leaving anyway!” The police noted mother’s
earlier report of father’s demeanor, which stated father “was clearly out of control and
angry. [Mother] stated to us earlier that she had never seen him los[]e hi[s] temper.”
M.W. said mother was very protective of the infant and she did not believe she
would hurt the baby. However, she said that father would become frustrated with the
infant, and demonstrated that father would hold the infant while he was crying and
bounce the infant up and down forcefully in his arms while pacing rapidly through the
house stating, “Come on D[.] J[.]! Come on!” She also said that mother was afraid of
father and she had witnessed them fighting. She also could hear them fighting and heard
banging noises from their room, and on one occasion she saw him trying to snatch the
baby from mother’s arms.
Belinda R. also stated that father lost his temper all the time. She knew that
something was wrong with the baby because he cried all the time, sometimes all night
long.
Belinda R. said she went to the hospital when she learned the infant was there.
She talked to father, who accused M.W. and W.J. of harming the infant and then stated:
“If I get arrest[ed] for this. If the guys in jail think I did this. You know what they will
do to me in jail.”
Mother said she suspected W.J., Brittany M., and father of hurting the infant.
Mother said to the detectives that approximately two weeks after the infant’s birth, she
woke up and saw father shaking the baby. Mother described the force of the shaking as a
four to five on a scale of ten. Mother observed the baby’s head move back and forth
approximately three times and also heard a “popping sound.” Mother said she said to
father, “Are you shaking my baby?” and “Did you hit my baby?” Mother said father
7
responded no, and said he was only bouncing him up and down and trying to get him to
fall back asleep.
Mother said that D.J. did not look good when she left for school on November 12,
2012. When she met father to take the baby to the doctor, she knew something was
wrong because he was stiff and at one point his eyes rolled back. Mother said that on
approximately three occasions that night, the infant’s arms and legs would become stiff.
When a detective told mother that he felt she was minimizing the father’s shaking of the
infant, mother admitted that in her sleep she kept hearing “popping” sounds, which
eventually wakened her.
Dr. Haman, the pediatrician, stated that prior to her examination of the infant on
November 13, 2012, the parents had informed her that they had brought the infant in to
see the doctor because he was congested, was scratching his right ear, and was coughing.
They did not inform her that the child had experienced stiffness, a blank stare, eyes
rolling back and had been nonresponsive. If they had, she would have immediately
called 911.
On May 2, 2013, a supplemental report was filed with the juvenile court which
indicated that D.J. was residing with Tanya G, who was meeting his needs. The report
indicated that the infant had “[one-]sided vision loss.” [Tanya G.] thought the infant
might be able to track shadows, bright lights and colors. The infant was receiving all his
feedings through a G-tube.
Tanya G. was closely monitoring the parents’ visits, which were scheduled for
three times a week for three hours in duration. No problems were reported, though the
parents were visiting less frequently than they had been. The CSW witnessed the infant
stop crying on one occasion after mother picked him up, rocked him, and kissed him.
The infant would cry when the parents left. The parents visits with the infant decreased
to the point that Tanya G. informed mother that the infant needed longer visits, and that
he benefited from physical and emotional contact with her.
The parents indicated they had completed a 10-week parenting program, but they
had not forwarded their Certificates of Completion to the Department. They also said
8
they had enrolled in another parenting class. Mother was attending a program presented
by COACH for Kids and Cedar Sinai Medical Center addressing child management. On
March 11, 2013, the court ordered the Department to ensure that the parents received
proper medical training with respect to the infant’s needs. The record does not reflect
whether they received that training. It does indicate that father reported that he and
mother had identified a medical training course, and they would enroll in it when they
were ready.
The jurisdictional hearing took place on May 8, 2013. Except for one sentence
contained in the police report, and no other objections being raised, the court admitted
into evidence all of the reports and other documentary evidence offered by the
Department. The court also admitted into evidence mother’s certificate from a therapy
clinic, and parents’ certificates for attending a parenting class. No witnesses were called,
and the court immediately proceeded to closing arguments.
After argument was concluded, the juvenile court made its jurisdictional findings.
The court struck Count b-2, the count alleging that the parents failed to obtain timely
medical care for the child, and sustained the remainder of the petition as pled.
The allegation sustained by the juvenile court under section 300, subdivision (a)
was as follows: “On 11/14/12, 3 month old D[.]J[.] was hospitalized as a result of a
detrimental and endangering condition and diagnosed with acute and chronic subdural
hemorrhages with extra-axial hemorrhages over the cerebral hemispheres, and extensive
bilateral retinal hemorrhages resulting in altered level of consciousness, traumatic brain
injury, acute respiratory failure, traumatic cerebral edema and subdural hematoma. The
child was also found to have fractures to the child’s left posterior seventh and eighth ribs
and fractures of the lateral fourth, fifth and sixth ribs with adjacent pleural thickening.
The child was found to have bruising to the child’s lungs, and bleeding to the child’s
spine. The child’s injuries are in different stages of healing. The child also suffered
seizures. [DJ’s] mother, Brittany R. K[.] and father, Derick [J.], gave no explanation of
the manner in which their child sustained his injuries. The child’s injuries are consistent
with inflicted trauma. The child’s injuries are of such a nature that would ordinarily not
9
be sustained except as the result of deliberate unreasonable neglectful acts of the mother
and father who had care, custody and control of the child. The deliberate unreasonable
neglectful acts of the parents endangers the child’s physical health and safety and places
the child at risk of physical harm, damage, danger, and death.” Substantially identical
allegations were sustained under section 300, subdivisions (b) and (e), the latter with the
additional allegation that the parents knew or reasonably should have known that the
child was being physically abused and failed to take action to protect the child.
While it was making the jurisdictional findings, the court indicated that it intended
to provide both parents with reunification services. The court stated that it believed that
it was in the infant’s best interests for the parents to receive reunification services. It said
that the parents had “reacted heroically in visiting the child.” After minor’s counsel
requested to be heard, the court stated it would deal with this issue during the disposition
phase of the hearing.
At the disposition hearing, the DCFS recommended that the court deny both
parents reunification services, but also stated that if the court had another view, it could
accept that there might be a reason to treat mother differently than father because there
were statements in the report to suggest that she was a good mother. Minor’s counsel
asked the court to deny father reunification services, but to offer them to mother. The
parents’ counsel submitted on the court’s tentative to offer services.
Over the DCFS’s objection, the court found by clear and convincing evidence that
offering both parents reunification services was in the child’s best interests and would
likely prevent re-abuse or neglect of the child “in part because parents both are visiting
the child on a daily basis and showing th[at] kind of dedication and commitment.” The
court further stated that it did not think it was a logical argument “to say that because
something bad has happened and we have a sustained petition, we shouldn’t provide them
services to help them along their way.”
The DCFS then requested a continuance of the disposition hearing so that it could
make recommendations as to what the case plan should include. The court agreed and
10
continued the disposition hearing for the DCFS to meet with the parents to address a case
plan.
The case was calendared for a further disposition hearing on July 25, 2013 to
address the proposed case plan. When the case was called the DCFS was represented by
a different Deputy County Counsel, its prior attorney being out on medical leave. The
DCFS asked that the matter be continued for a contested hearing. Mother’s counsel
objected and stated that the issue of reunification services had already been heard by the
court, and that the present hearing was solely to address a proposed case plan to be filed
by the DCFS. Father’s counsel joined.
After hearing further argument, the court stated, “I am finding best interest of the
child and finding there are services available to prevent reoccurrence of the event.” The
court also found that there was bonding between the child and the parents.
The juvenile court ordered the DCFS to provide the parents with reunification
services, to include (a) dyadic parenting for a special needs child; (b) individual
counseling to address case issues, including domestic violence and anger management;
(c) conjoint counseling; (d) participation in the child’s medical appointments; and (e)
medical training to meet the child’s needs.
DISCUSSION
1. Mother’s Motion to Dismiss the Appeal
Mother asserts that the DCFS’s challenge to the juvenile court’s jurisdictional
findings and dispositional orders was untimely, and consequently maintains that the
appeal should be dismissed. Specifically, she contends that the court made the findings
and orders at issue in this appeal on May 8, 2013, but that the DCFS did not file its notice
of appeal until September 4, 2013, after a subsequent hearing was held to permit the
DCFS to file a case plan outlining the family reunification services to be provided by the
DCFS pursuant to the court’s earlier disposition order. The question is thus, did the
juvenile court order reunification services on May 8, 2013, or rather, did it simply make a
finding that this was an appropriate case in which to do so and put the matter over for
11
further hearing? We turn to the transcript of the May 8, 2013 hearing to answer this
question.
At that hearing, the juvenile court made its intent to order reunification services
known, and after argument, found this was “an appropriate case to order [DCFS] to
provide family reunification services to both mother and father.” However, the DCFS
had failed to file its case plan with the court. Consequently, the court continued the
hearing in order to permit the DCFS to prepare a case plan, including reunification
services for the parents. The court did not order services and complete the disposition
hearing until July 29, 2013. Therefore, because the juvenile court did not order DCFS to
provide the parents with reunification services or complete the disposition hearing until
July 29, 2013, DCFS’s notice of appeal was timely filed on September 4, 2013.
Respondents’ motion to dismiss the appeal is therefore denied.
2. Was there Substantial Evidence to Support the Juvenile Court’s Dismissal of
Count b-2 of the section 300, subdivision (b) Petition?
The DCFS contends the juvenile court erred in dismissing Count b-2 of the
petition alleging the parents’ failure to provide medical treatment. Section 300,
subdivision (b), provides in part: “Any child who comes within any of the following
descriptions is within the jurisdiction of the juvenile court which may adjudge that person
to be a dependent child of the court: . . . (b)(1). The child has suffered, or there is a
substantial risk that the child will suffer, serious physical harm or illness, . . . as a result
of the negligent failure of the parent, to provide medical treatment.”
In the present case, in Count b-2 of the section 300 petition, the DCFS alleged that
the infant suffered various serious physical injuries and that “[t]he child’s mother,
Brittany R. K[.] and father, Derick J[.], failed to obtain timely necessary medical
treatment for the child’s injuries. The parents’ severe medical neglect of the child
endangers the child’s physical health and safety and places the child at risk of physical
harm, damage, danger and death.”
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In determining the operative facts, the record on appeal is reviewed in the light
most favorable to the decision of the trial court. All reasonable inferences to support the
findings of the juvenile court must be made and the record reviewed in the light most
favorable to the order of the juvenile court. (In re Bernadette C. (1982) 127 Cal. App. 3d
618, 624.) The appellate court is to review the entire record to determine if there is
substantial evidence to support the findings of the lower court. As long as there is
substantial evidence, the reviewing court must affirm. (Bowers v. Bernards (1984) 150
Cal. App. 3d 870, 872-873; Rupf v. Yan (2000) 85 Cal. App. 4th 411, 429-430.) With the
aforesaid guidance in mind, we summarize the evidence presented supporting the trial
court’s decision to dismiss Count b-2 of the petition, the alleged violation of section 300,
subdivision (b), based on the parents’ medical neglect.
The parents clearly failed to obtain timely and necessary medical attention for the
infant’s very serious and disabling injuries. Although the parents took the infant to the
pediatrician the day before he was hospitalized with life threatening injuries which have
left him severely disabled, they failed to disclose key information and symptoms to the
pediatrician, only reporting that the baby was suffering from an upper respiratory
infection, thus, rendering her unable to effectively diagnose and treat the child.
Mother and father reported to the doctor when they brought the baby in for
diagnosis and treatment that the baby was sneezing and was congested. They failed to
disclose, however, that (a) the baby cried inconsolably when touched; (b) when the
parents met to take the baby to the doctor, he did not “look right,” was completely limp,
was not moving, and looked “blank;” (c) was stiff; (d) his eyes rolled back; and (e) he
was unresponsive. They did not inform the physician that (a) father had accidentally
fallen with the baby; (b) father sometimes burped the baby too hard; (c) the baby suffered
a bloody nose after he was slammed against father’s knee; and (d) on one occasion
mother awoke to find father shaking the then two-week old baby, that she observed the
baby’s head moving back and forth and she had heard “popping” sounds while she was
“asleep.” They also chose to take the baby to the doctor’s office rather than to an
13
emergency room despite the fact that his eyes were open, he was not blinking, and his
legs became stiff.
The doctor confirmed that the parents failed to inform her of the child’s most
significant and alarming symptoms, and that had they done so, she would have
immediately called 911 and ensured that the child was taken to the ER. The failure of the
parents to provide this information constituted, at a minimum, extreme neglect, and
delayed his receipt of medical attention he desperately needed. Though the parents
finally brought the child to the hospital the following morning, this does not excuse their
prior conduct.
Based on the evidence summarized above, we hold that the trial court’s decision to
dismiss Count b-2 of the section 300 petition was not supported by substantial evidence.
3. Did the Juvenile Court Abuse its Discretion in Ordering Reunification Services
for Both Parents?
The DCFS contends the juvenile court abused its discretion in ordering
reunification services for the parents. It maintains there was no competent testimony that
services were likely to prevent reabuse; no clear and convincing evidence that
reunification services were in D.J.’s best interests; and insufficient evidence that failure
to reunify would be detrimental the child.
While offering reunification services is the norm, “[s]ection 361.5, subdivision (b)
symbolizes the Legislature’s recognition that it may be fruitless to provide reunification
services under certain circumstances.” (Deborah S. v. Superior Court (1996) 43
Cal. App. 4th 741, 750, citing In re Rebecca H. (1991) 227 Cal. App. 3d 825, 837.) Once
the court determines that one of the situations set forth in section 361.5, subdivision (b) is
applicable, “the general rule favoring reunification is replaced by a legislative assumption
that offering reunification services would be an unwise use of governmental resources.”
(In re Baby Boy H. (1998) 63 Cal. App. 4th 470, 478.) Although these circumstances are
narrow in scope and subject to an enhanced burden of proof, “they demonstrate a
14
legislative determination that in certain situations, attempts to facilitate reunification do
not serve and protect the child’s interest.” (Id. at p. 474.)
Section 361.5, subdivisions (b)(5) and (c),2 provide that reunification services
should not be provided when the court finds, by clear and convincing evidence, that the
child was brought within the jurisdiction of the court under subdivision (e) of section 300
because of the conduct of that parent or guardian. (§ 361.5, subds. (b)(5), (c).) Indeed,
when section 361.5, subdivision (b) applies, a juvenile court is prohibited from providing
family reunification services “unless it finds, based on competent testimony, that those
services are likely to prevent reabuse . . . or that failure to try reunification would 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, 1074-1075, 1077-
1078.)
Section 361.5, subdivisions (b)(6) and (c) provide, in pertinent part, that
reunification services shall not be provided when the child has been adjudicated a
dependent pursuant to any subdivision of section 300 as a result of severe physical harm
to the child, unless the court finds, by clear and convincing evidence, that reunification is
in the best interest of the child. (§ 361.5, subds. (b)(6), (c), emphasis added.) “Severe
physical harm” includes, but is not limited to, “deliberate and serious injury inflicted to
or on a child’s body by an act or omission of the parent or of another individual with the
consent of the parent. . . .” (§361.5, subd. (b)(6).)
A finding under section 361.5, subdivision (c), that reunification would be in the
child’s best interest is reviewed for substantial evidence. (In re William B. (2008) 163
2
Section 361.5, subd. (c) states: “. . . The court shall not order reunification for a
parent or guardian described in paragraph (3), (4), (6), (7), (8), (9), (10), (11), (12), (13),
(14), (15), or (16) of subdivision (b) unless the court finds, by clear and convincing
evidence, that reunification is in the best interests of the child. [¶] In addition, the court
shall not order reunification in any situation described in paragraph (5) of subdivision (b)
unless it finds that, based on competent testimony, those services are likely to prevent re-
abuse 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.” (Emphasis added.)
15
Cal. App. 4th 1220, 1229.) The Court of Appeal in In re William B., supra, also noted that
“[a] juvenile court has broad discretion when determining whether further reunification
services would be in the best interests of the child under section 361.5, subdivision (c).
[Citation.] An appellate court will only reverse that determination if the juvenile court
abuses its discretion. [Citation.]” (Ibid.)
The reviewing court should interfere only “‘if [it] find[s] that under all of the
evidence, viewed most favorably in support of the trial court’s action, no judge could
reasonably have made the order that [he or she] did.’ [Citations.]” (In re Jasmine D.
(2000) 78 Cal. App. 4th 1339, 1351.) “‘The appropriate test for abuse of discretion is
whether the trial court exceeded the bounds of reason. When two or more inferences can
reasonably be deducted from the facts, the reviewing court has no authority to substitute
its decision for that of the trial court.’” [Citation.] (In re Stephanie M. (1994) 7 Cal. 4th
295, 318-319.)
In the present case, it is undisputed that the physical injuries suffered by the child
were substantial and severe. We will discuss the reunification issue as to mother and
father separately.
a. Reunification Services for Mother.
Based on the legal standard set forth above, the evidence presented to the trial
court upon which it apparently relied in making its decision to offer mother reunification
services was as follows: Mother and child appeared to have bonded to some extent. D.J.
apparently recognizes mother and cries when she leaves him in the care of another
person. Mother has visited the minor (both in and out of the hospital) on a regular basis.
It was the opinion among those who knew mother that she would never do anything to
harm the child. She was very protective of the child and was determined that he not end
up being institutionalized. She had taken steps to become a better mother including
completing a parenting class, and during her monitored visits performed tasks associated
with the child’s ongoing medical care. At the time of the abuse, the minor was herself a
non-emancipated minor.
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However, we hold none of this evidence, individually or collectively, was
sufficient to support a finding that (a) reunification services were likely to prevent re-
abuse; (b) the failure to try reunification would be detrimental to the child due to his close
and positive attachment to mother; or (c) reunification was in the best interests of the
child. (§ 361.5. subd. (c).) Furthermore, none of the aforesaid evidence introduced by
mother was in the form of testimony, let alone competent testimony, as is required by
section 361.5, subd. (c).)
b. Reunification Services for Father.
Unlike mother, in the case of father, there was no evidence that D.J. was bonded
with father, or that he was a supportive parent to the child. Rather, the evidence
suggested that father had a low threshold for frustration, was intolerant of the child’s
crying and responded inappropriately to it by vigorously bouncing the baby up and down,
and had significant difficulties controlling his anger. Father presented no evidence that
the failure to provide him with reunification services would in any way be detrimental to
the child. Because no competent evidence (let alone competent testimony) was presented
to support a finding by the juvenile court that providing father with reunification services
would be likely to prevent re-abuse, or that the failure to attempt reunification with father
would be detrimental to the child, the juvenile court erred in ordering reunification
services for father. (See In re A.M. supra, 217 Cal.App.4th at pp.1077-1078.)
17
DISPOSITION
The dismissal of the b-2 count of the petition is reversed. The juvenile court’s
orders of reunification services for mother and father are also reversed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MINK, J.
We concur:
MOSK, ACTING P.J.
KRIEGLER, J.

Retired judge of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
18