In re A.J. CA3 ( 2021 )

Filed 3/25/21 In re A.J. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
In re A.J., a Person Coming Under the Juvenile Court C090530
Law.
SACRAMENTO COUNTY DEPARTMENT OF (Super. Ct. No. JD238820)
CHILD, FAMILY AND ADULT SERVICES,
Plaintiff and Respondent,
v.
J.J.,
Defendant and Appellant.
J.J., father of minor A.J., appeals from the juvenile court’s orders adjudging the
minor a dependent, removing him from parental custody, and denying father reunification
services. (Welf. & Inst. Code, §§ 361, 361.5, & 395.)1 Father contends the juvenile
1 Undesignated statutory references are to the Welfare and Institutions Code.
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court erred in denying him reunification services under section 361.5, subdivision (b)(6).
We shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On February 8, 2018, A.J., then age five months, was brought to the hospital by
ambulance due to seizing and vomiting. Once there, he was examined and found to have
a right subdural hemorrhage (bleeding in the brain). A.L. (mother) and J.J. provided
explanations that were not consistent with the injuries A.J. had sustained. The emergency
room doctor indicated A.J.’s injuries were suspicious because the bleeding could not have
been caused by a seizure. A.J. was transferred to a pediatric specialty center at another
hospital. There, Dr. Julia Magana examined a CT scan and consulted with a neurology
specialist. The neurologist observed that the collection of blood between the skull and
brain was large. Dr. Magana believed that some of the blood looked older and some
newer, suggesting the possibility of prior trauma. Dr. Magana found no skull fracture or
swelling, and she determined that brain bleeding was not caused by the seizures.
Dr. Magana met with the parents. Father claimed that he laid A.J. in a pack-n-play
and went to the bathroom, and when he returned A.J. was rolled over and crying
differently. A.J.’s body went limp and his breathing became irregular. Father did not
call 911 but instead called mother to explain the situation and took A.J. by car to
mother’s place of employment, which was five minutes away. It was later determined
that father called mother at her place of work between 8:00 and 8:15 p.m. The mother
clocked out of work at 8:41 p.m., and 911 was called at 8:52 p.m. Upon father meeting
mother there in the parking lot, A.J. began to foam at the mouth and shake like he was
having a seizure. It was at that time that mother and father decided to call 911. Mother
reported that while in the ambulance with A.J., he continued to shake and threw up
multiple times. Mother informed Dr. Magana that when she first saw A.J., he was
unresponsive and looked dead. Dr. Magana concluded that with no other medical reason
for the head trauma, the injury was most likely abusive head trauma caused by shaking.
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On February 9, 2018, mother and father met with an investigating social worker
from the Sacramento County Department of Child, Family and Adult Services
(Department), formerly the Department of Health and Human Services. The parents
provided the same account that they had given to Dr. Magana the prior day, adding that
nothing was unusual leading up to father finding A.J. in distress and that it was not
possible for A.J. to have fallen or bumped his head. The social worker also met with the
paternal grandmother. The paternal grandmother informed the social worker that father
was “intellectually compromised,” but she could not comment on father’s abilities as a
father because she had not seen him since the child was born. Also interviewed, the
maternal grandmother stated that mother and father had been together for about two years
and seemed very happy and caring with A.J.
On February 13, 2018, Dr. Magana reported that an MRI confirmed A.J. suffered a
subdural hematoma, and that an eye exam further revealed severe amounts of blood in
multiple layers behind A.J.’s eyes. Dr. Magana stated that this indicated that the child’s
injuries were abusive head trauma. The potential long-term effects of A.J.’s injuries
included developmental delays, a possible seizure disorder, and most likely a loss of
vision or vision problems. Dr. Magana stated that she had found no medical reason for
A.J.’s injuries, maintaining that the parents were not disclosing any potential cause of the
trauma. Father asserted the injuries were not a result of abuse and denied shaking the
infant. The medical team determined that the parents’ failure to contact 911 when the
child was limp and unresponsive for an hour was not a normal response and was
concerning. The medical team conducted extensive studies of the infant and determined
that there were no medical explanations as to how the injuries were sustained, besides
inflicted head trauma.
On February 15, 2018, the Department filed a section 300 petition on behalf of
five-month-old A.J., alleging that the minor had suffered severe abuse and was a minor
described by section 300, subdivisions (a), (b), and (e). The juvenile court found prima
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facie evidence supported the Department’s petition. Father was found to be the presumed
father. Upon A.J.’s release from the hospital, he was placed in a confidential foster
home. A criminal case against father concerning A.J.’s injuries commenced.
On July 29, 2018, pending the contested jurisdiction and disposition hearings,
father was arrested for domestic violence, wherein the mother sustained a scratch to her
finger after father “smashed” her hand during a dispute due to father “going out and
drinking almost every night and going to a strip club.”
On November 13, 2018, the Department filed an amended section 300 petition,
correcting the date of the alleged incident and removing mother’s name from the
subdivisions (a), (b), and (e) allegations. At a continued jurisdictional hearing, the court
sustained the amended section 300, subdivisions (a), (b), and (e) allegations. Mother had
ended her relationship with father and moved into a new apartment with her aunt in
November 2018. The dispositional hearing was continued to allow time for the
Department to complete an assessment of mother’s home. Mother began an extended
visit with A.J.
On December 18, 2018, at a dispositional hearing, the court ordered A.J. placed
with mother under a family maintenance plan. No family reunification services were
ordered for father, and the court ordered father shall not reside in the home with mother
and A.J.
Father was authorized two, 1-hour supervised visits per week. Father canceled
some visits, commonly citing his work schedule as the cause, but when he did attend
visits, his interactions with A.J. were described as typically being 100 percent positive
and relaxed. Father and A.J. laughed and played throughout their visits together, with
father engaging A.J.’s imagination and curiosity. Father was responsive to A.J.’s cues.
On March 14, 2019, the Department filed a section 387 supplemental petition due
to mother’s failure to comply with court orders. It was alleged that mother had failed to
engage in court-ordered services, was not making A.J. available to the Department, had
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been unable to keep the Department aware of A.J.’s whereabouts, and failed to keep the
Department apprised of A.J.’s medical condition. As a result, A.J. was again detained.
The Department subsequently recommended that family reunification services for
mother be provided. As for father, the Department recommended that services be
bypassed pursuant to section 361.5, subdivision (b)(5) and (6). As to the applicability of
section 361.5, subdivision (c), the Department argued that there was no clear and
convincing evidence showing that A.J. would benefit if family reunification services
were provided to father due to the severity of the injuries and because father was unable
or unwilling to provide an explanation for A.J.’s injuries.
On August 23, 2019, at a contested jurisdictional and dispositional hearing on the
Department’s section 387 petition, father was present. Father objected to the out-of-
home placement and Departmental recommendation to not place A.J. in his care.
However, father’s main issue at trial was his request for reunification services. Father
argued that it would not be in A.J.’s best interest to deny him family reunification
services. Counsel for father informed the court that father had voluntarily completed a
parenting class, attended A.J.’s medical appointments, participated in positive visits with
A.J., and very much loved his son and desired to reunify with him. Counsel reminded the
court that father had attended every hearing and that granting family reunification
services for father in conjunction with mother’s services would not delay any type of
permanency for A.J. Counsel for father stated that although section 300 allegations
against father concerning very serious injuries to A.J. had been sustained, father had
maintained that he never neglected or physically abused A.J. Counsel for A.J. reminded
the court that although his client had suffered very grievous injuries and allegations that
father caused the injuries had been sustained, services remained discretionary. Counsel
for A.J. believed that if acknowledgment of the injuries could be ameliorated through
services and if father could parent A.J. appropriately, then A.J. would want to reunify.
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The court found the supplemental section 387 allegations true and deemed A.J.’s
removal from parental care to be necessary and appropriate. The court found the extent
of progress made by mother minimal and the extent of progress made by father fair. The
court granted mother family reunification services and scheduled a six-month review
hearing. As for father, the court ordered services bypassed pursuant to section 361.5,
subdivision (b)(6), and under section 361.5, subdivision (c) found no clear and
convincing evidence that father should receive family reunification services.
Accordingly, the court ordered family reunification services shall not be offered to father.
However, regular supervised visitation for father was ordered to continue and moved to
the weekends in order to accommodate father’s work schedule. The court noted, “At this
point I cannot find by clear and convincing evidence that the father should receive
services. It does appear that [father] is doing well and is visiting with the child. And as
time goes on, [counsel for father], you can file a [section] 388 [petition] for him.” The
court then informed father that he believed that father caused A.J.’s injuries. The court
expressed concern that because father did not admit that he caused the injuries, it was
difficult to believe that abuse would not happen again.
DISCUSSION
Father contends that the juvenile court abused its discretion in declining to grant
him reunification services because it was in the child’s best interest to do so. We
disagree.
When a child is removed from the parent’s home, reunification services may be
offered to the parent “ ‘in an effort to eliminate the conditions leading to loss of custody
and facilitate reunification of parent and child. This furthers the goal of preservation of
family, whenever possible. [Citation.]’ [Citations.] Section 361.5, subdivision (b) sets
forth certain exceptions—also called reunification bypass provisions—to this ‘general
mandate of providing reunification services.’ [Citations.]” (In re Allison J. (2010)
190 Cal.App.4th 1106, 1112.) “When the court determines a bypass provision applies,
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the general rule favoring reunification is replaced with a legislative presumption that
reunification services would be ‘ “an unwise use of governmental resources.” ’ ” (Ibid.)
Section 361.5, subdivision (b)(6)(A) provides for the denial of reunification
services to a parent who has inflicted severe physical harm upon the child. Subdivision
(c) provides, in pertinent part, that “[t]he court shall not order reunification for a parent or
guardian described in paragraph . . . (6) . . . of subdivision (b) unless the court finds, by
clear and convincing evidence, that reunification is in the best interest of the child.”
Parents bear “the burden of proving, through competent testimony, the factual predicates
to an order for reunification services . . . .” (In re A.E. (2019) 38 Cal.App.5th 1124,
1148.) To determine whether reunification is in the child’s best interest, “[t]he juvenile
court should consider ‘a parent’s current efforts and fitness as well as the parent’s
history’; ‘[t]he gravity of the problem that led to the dependency’; the strength of the
bonds between the child and the parent and between the child and the caretaker; and ‘the
child’s need for stability and continuity.’ ” (In re William B. (2008) 163 Cal.App.4th
1220, 1228.) A best interest finding requires a likelihood reunification services will
succeed; in other words, “some ‘reasonable basis to conclude’ that reunification is
possible . . . .” (Id. at pp. 1228-1229.) The juvenile court has broad discretion when
determining whether reunification services would be in the minor’s best interests. (Id. at
p. 1228.) We reverse that determination only for abuse of discretion. (Id. at pp. 1228-
1229; In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006.)
We find no abuse of discretion. Here, the trial court found by clear and
convincing evidence that section 361.5, subdivision (b)(6) applied given the severe
physical harm inflicted on A.J. by father in February 2018. The court found that father
was solely responsible for A.J.’s severe head trauma and sustained the amended petition
alleging section 300, subdivisions (a), (b), and (e). The court concluded it could not find
by clear and convincing evidence that it was in the child’s best interest to override the
exception. The court considered father’s fitness and history, his efforts during visits with
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A.J., the gravity of the injury that led to the dependency, and father’s failure to admit his
abusive conduct that caused the injury.
The appellate court’s reasoning in In re A.E., supra, 38 Cal.App.5th 1124 is
instructive. There, the lower court sustained section 300, subdivisions (a) and (e)
allegations, after A.E. sustained a subdural hematoma, among other head injuries. (In re
A.E., at p. 1128.) The lower court also found that by clear and convincing evidence, it
was in the child’s siblings’ best interest to grant reunification services to both parents,
though section 361.5, subdivision (b)(6) bypass applied. (In re A.E., at p. 1140.) The
lower court based the finding on the parents being actively engaged in their services,
though the court stated the challenge for the parents would be “ ‘understanding and
acceptance of responsibility for what happened.’ ” (Id. at p. 1140.) The Court of Appeal
reversed, concluding the trial court abused its discretion in granting reunification services
because the parents both continued to deny that they had ever abused the children or had
even physically disciplined them, despite engaging in services. (Id. at pp. 1141-1142,
1144.) The court reasoned that the mother’s explanation of the child sustaining the head
injuries as a result of falling was contradicted by the medical expert, who had concluded
that the injuries could not have been sustained by such a fall. (Id. at p. 1142.) Despite
the mother identifying appropriate disciplinary techniques and attending classes, the court
found that neither of these showed that services would likely lead to better parenting
skills or were unlikely to prevent further abuse. (Id. at pp. 1143-1144.)
Here, as in In re A.E., father continues to deny responsibility for A.J.’s injuries
even though he was caring for the child alone when the injuries occurred and the medical
experts found no possible medical explanation for A.J.’s injuries other than abusive head
trauma caused by shaking. On this record, the trial court did not abuse its discretion in
finding no clear and convincing evidence that it was in the child’s best interest to
override the exception.
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In sum, the juvenile court considered the appropriate factors and did not abuse its
discretion in finding father failed to meet his burden of showing that reunification
services are in the best interests of the minor.
DISPOSITION
The judgment and orders of the juvenile court are affirmed.
/s/
BLEASE, Acting P. J.
We concur:
/s/
HULL, J.
/s/
MAURO, J.
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