Filed 5/10/22 In re A.G. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
| In re A.G., Jr., a Person Coming Under the Juvenile Court Law.
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SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent;
v.
A.G., Sr.,
Defendant and Appellant.
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E077686
(Super.Ct.No. J289003)
OPINION
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APPEAL from the Superior Court of San Bernardino County. Erin K. Alexander, Judge. Affirmed.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.
Tom Bunton, County Counsel, and Dawn M. Martin, Deputy County Counsel, for Plaintiff and Respondent.
When A.G., Jr. (A. or child) was three months old, he was found to have a broken wrist. When he was five months old, he was found to have broken ribs. As a result, he was declared a dependent and removed from his parents’ custody. At the 18-month review hearing, the juvenile court found a substantial risk of detriment if he were returned to the parents.
The father, A.G., Sr. (father), appeals. He contends that there was insufficient evidence to support the finding of a substantial risk of detriment. We will hold that the evidence, taken in combination, that (1) a parent recklessly used excessive force on the child twice, each time causing broken bones, (2) the father had previously used excessive force on another child, causing a broken bone, (3) the father had not completed therapy, and (4) the parents falsely denied that they had recklessly used excessive force on A. was sufficient to support the juvenile court’s finding.
The father also contends that, if the juvenile court erred by finding a substantial risk of detriment, then it also erred by requiring visitation to be monitored. Our holding that there was sufficient evidence of a substantial risk of detriment is dispositive of this contention.
Finally, the father contends that the juvenile court erroneously believed that the jurisdictional finding of severe physical abuse necessarily established that a parent had intentionally injured the child. We will hold that the record does not show that the juvenile court believed any such thing.
Accordingly, we will affirm.
I
FACTUAL AND PROCEDURAL BACKGROUND
As of 2019, the mother and the father lived together with their two children. An., the father’s daughter from a previous relationship, was nine. E., the mother’s daughter from a previous relationship, was three. The father cared for the children while the mother worked.
In July 2019, their son A. was born. He had a heart defect that necessitated multiple operations. Because of his medical condition, his siblings were not allowed to touch him.
In September 2019, A. was admitted to a hospital for failure to thrive (possibly due to his heart defect). Nineteen days later, an x-ray revealed a broken wrist. The wrist injury appeared to have occurred three to four weeks earlier — i.e., before A. was hospitalized. According to the reporting party, “no one is [supposed] to have a wrist fracture at that age.” The parents denied knowing how the wrist injury occurred. They claimed that it must have happened in the hospital.
In December 2019, A. was admitted to a hospital again because he was coughing and vomiting blood. Seven days later, an x-ray revealed fractured ribs.[1] The injury appeared to be at least 10 to 14 days old; hence, it occurred before A. was hospitalized.
“Rib fractures are uncommon injuries in infants/children and have a high degree of specificity for non-accidental/inflicted trauma and are generally due to a significant compression of the chest . . . . n infants, significant force is required to fracture ribs.” A. had no underlying medical condition that would predispose him to broken bones.
Again, the parents denied knowing how the injury occurred and claimed that it must have happened in the hospital. The father claimed that an x-ray done when the child was admitted had been negative.
All three children were detained and a dependency petition as to E. and A. was filed.[2] E. was placed with the mother’s parents. A. remained in the hospital.
An.’s mother told a social worker that the father was “very violent.” He repeatedly hit her and An. When An. was two and a half, An. was found to have a broken arm; later, the mother learned that the father had been “jerking her . . . around by the arms that day.”
In February 2020, A. was discharged from the hospital and placed in a foster home for medically fragile children.
In January 2021, at the jurisdictional/dispositional hearing, CFS called a radiologist with expertise in pediatric trauma. He testified that both the wrist fracture and the rib fractures occurred before A. was hospitalized.
The wrist fracture was most likely “nonaccidental trauma.” It was probably due to “grabbing the hand and bending it forward,” although it could also have been caused by blunt force trauma. It could not have been caused by inserting an IV.
The rib fractures were “specific for nonaccidental trauma . . . .” They were due to “squeezing.”
The parents called an orthopedic surgeon. In his opinion, the wrist injury occurred shortly after A.’s admission to the hospital, most likely during the insertion of an IV. The rib fractures were probably due to “mishandling” rather than abuse. In his opinion, “someone applied too much force trying to lift this child up or pull on the child . . . .” However, he could not say whether the mishandling was intentional.
The juvenile court found that it had jurisdiction based on serious physical harm, failure to protect, severe physical abuse, and (as to E. only) abuse of a sibling. (Welf. & Inst. Code, § 300, subds. (a), (b), (e)), (j).)[3] It formally removed A. from the parents’ custody. It ordered reunification services for both parents.
In September 2021, at the 18-month review hearing, the juvenile court terminated reunification services but ordered discretionary services for another six months under a permanent plan of return home.
The father (but not the mother) filed a notice of appeal. Even though he is not E.’s father, he argues that we should consider his contentions as to both A. and E. Because we are affirming as to A., we need not decide whether we have jurisdiction as to E.
II
THE FINDING OF DETRIMENT
The father contends that the juvenile court erred by finding a substantial risk of detriment if A. were returned to his custody.
A. [i]Additional Factual Background.
The only evidence admitted at the 18-month review hearing was the social worker’s report for that hearing. Ordinarily, we would consider only that evidence. (In re L.A.-O. (2021) 73 Cal.App.5th 197, 207-208.) As we will discuss, however, the juvenile court also said it was relying on “the information in the reports regarding injury to a prior half-sibling by the father . . . .” The parents did not object to this. Accordingly, we also consider this information. This body of evidence showed the following.
The dependency had been filed “due to physical abuse on A[.] He had a fractured wrist and several broken ribs. The forensic team concurred that A[.]’s injuries were not accidental and they were concerned about returning the child to the parents’ care as the parents had no explanation of how the child was hurt. The parents at that time placed blame on the hospital for the injuries.”
When A.’s sibling An. was two and a half, An. was found to have a broken arm; earlier that same day, the father had been “jerking her . . . around by the arms . . . .”
A. was in foster care. He was “attached to the caregiver.”
The parents had supervised visitation, once or twice a week for two or three hours at a time. Visits reportedly went well.
The mother had completed her reunification services plan. She had gone on to participate in services that were not required, including additional parenting classes and anger management classes. The social worker had asked the mother’s therapist for a “progress report.” The therapist had refused to provide any information other than “the dates of service and [the mother]’s level of participation.”
The father had completed the parenting and anger management elements of his reunification services plan. He, too, had gone on to participate in services that were not required, including additional parenting classes. However, he had not completed the individual therapy element. After attending two sessions, he quit. Later, he started seeing another therapist; he had attended four more sessions so far. His current therapist reported that he was “doing well and is showing improvements. The client is on track to have his child under his care as he gains coping skills and implements what he is learning and discussing in therapy.”
In August 2021, at a meeting with a social worker, the parents “seem[ed] to be acknowledging that the injuries could have happened in their care.” They claimed that A. “would throw himself back when being held” and said “maybe they held him too tight.” The mother added that “maybe how she had to handle him giving him baths could have created the injuries.” They denied hurting him on purpose. However, the father also said, “We take full responsibility for what happened to A[.]” In the social worker’s opinion, “It appears from these meetings that the parents have each grown in their understanding about what happened to their child. They are no longer placing blame elsewhere but taking some responsibility for what happened to their son.”
B. Additional Procedural Background.
At the 18-month review hearing, in September 2021, the father’s counsel asked the juvenile court to return the child to the father’s custody, because he “has completed his services” and “has taken responsibility . . . for what took place as with regards to the allegations.”
The mother’s counsel likewise asked the juvenile court to return the child to the mother’s custody, “for some of the same reasons [f]ather’s counsel pointed out.”
Minor’s counsel opposed return, arguing that the father had not completed therapy and that the parents’ admission that they “may” have injured A. accidentally did not match his injuries.
The juvenile court found “that custody by the parents . . . continues to be detrimental to A[.] . . . and that return of A[.] . . . at this time would create substantial risk of detriment to A[.’s] . . . safety, protection, or physical/emotional well-being.”
It explained that there were “sustained [section 300, subdivision] (e) allegations against both parents that were made by clear-and-convincing evidence. Those true findings include a number of broken bones in different stages of healing, that . . . have not appropriately been accounted for. [¶] I’ll note that the true findings specifically indicate that those are nonaccidental injuries and I can see that the parents are operating on good faith in their case plans but what I can’t see is whether there has been an acceptance of responsibility for those issues and I also have concerns regarding whether it’s been dealt with the information in the reports regarding injury to a prior half-sibling by the father and both parent[s’] counseling, mother as far as protective capacity and [f]ather as part of resolution of those issues, so I don’t find that it’s appropriate to return at this time.”
C. Discussion.
At an 18-month review hearing, “the court shall order the return of the child to the physical custody of his or her parent . . . unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent . . . would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child.” (§ 366.22, subd. (a)(1).) We will use “detriment” as shorthand for “a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child.”
“In evaluating detriment, the juvenile court must consider the extent to which the parent participated in reunification services. [Citations.] The court must also consider the efforts or progress the parent has made toward eliminating the conditions that led to the child’s out-of-home placement. [Citations.]” (In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1400.)
A finding of “detriment . . . is reviewed for substantial evidence. [Citation.]” (In re D.N. (2020) 56 Cal.App.5th 741, 764.)
Here, there was ample evidence that one parent or the other broke A.’s wrist and several of his ribs. Earlier, the father had jerked An.’s arm so hard that it, too, broke. Thus, the father was the obvious suspect in the injuries to A. Even assuming they were inflicted by the mother, however, the father was still living with the mother, so return to his custody would necessarily also be return to her custody.
The father plays down this evidence. He says “there were only two incidents” in which A.’s bones were broken. Two is two too many. Likewise, he claims there was no evidence that An.’s arm was broken or that her injury “was the result of . . . any intentional act on father’s part . . . . Children injure themselves all the time.” Actually, An.’s mother reported that An. had a “fracture” near the elbow. It was so bad that An. could not use the arm. She also reported that, earlier that day, the father had been “jerking [An.] around by her arms . . . .”
At the same time, there was also substantial evidence that the parents had not eliminated the risk of physical injury to A. The father, for his part, had not completed therapy; he had quit and only recently resumed. His therapist reported that he was “on track to have his child under his care . . . .” Being “on track” necessarily implies that he had not yet arrived at the destination. It was reasonably inferable that he had not made sufficient progress toward eliminating the risk.
CFS argues that the father’s failure to complete therapy shows detriment all by itself. It cites section 366.22, subdivision (a)(1), which says, “The failure of the parent or legal guardian to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental.” Because the father had quit therapy, the juvenile court could reasonably find that he had not “participated regularly.” However, we need not decide whether this was sufficient evidence of detriment, standing alone, as there was other evidence as well.
Namely, the parents refused to accept their full culpability. Through almost all of the dependency, the parents insisted that they did not cause the injuries at all. Just one month before the 18-month review hearing, however, they conceded that “maybe” the injuries occurred “in their care.” They hypothesized ways this could have happened accidentally. At the time, however, a forensic team had decided that the injuries were “not accidental.” Moreover, the true finding on the “serious physical harm” allegation (§ 300, subd. (a)) necessarily meant that the harm was inflicted “nonaccidentally.” (Ibid.) The father also never explained An.’s broken arm nor admitted responsibility for it.
In sum, then, the father blandly claimed that “[w]e take full responsibility for what happened to A[.],” yet at the same time he was actually refusing to admit that it was anything other than accidental. While the social worker viewed this as “grow[th]” and “taking some responsibility,” the trial court was not bound by that opinion. It could reasonably view the parents’ 11th-hour admissions as incomplete and insincere. Denial is evidence of a continuing risk. (See In re L.O. (2021) 67 Cal.App.5th 227, 240 [“Father’s failure even to acknowledge his past violent behavior, let alone express remorse or show any insight regarding it, exposes L. to a risk that he will once again attack Mother in L.’s presence.”]; In re A.F. (2016) 3 Cal.App.5th 283, 293 [“In light of mother’s failure to recognize the risks to which she was exposing the minor, there was no reason to believe the conditions would not persist should the minor remain in her home.”].)
We recognize that “n evaluating detriment, the juvenile court must consider the extent to which the parent participated in reunification services. [Citations.]” ([i]In re Yvonne W., supra, 165 Cal.App.4th at p. 1400.) However, as discussed, the father had not completed the therapy element of his plan. In any event, “compliance with the requirements of a reunification plan does not mandate the return of a minor to parental custody. [Citation.]” (Ingrid E. v. Superior Court (1999) 75 Cal.App.4th 751, 760; accord, In re Joseph B. (1996) 42 Cal.App.4th 890, 901.) “The court must also consider the parents’ progress and their capacity to meet the objectives of the plan; otherwise the reasons for removing the children out-of-home will not have been ameliorated.” (In re Dustin R. (1997) 54 Cal.App.4th 1131, 1143.) Here, the juvenile court could reason that no amount of services could ameliorate a risk that the parents refused to admit existed.
The father cites L.Z. v. Superior Court (2010) 188 Cal.App.4th 1285 (L.Z.). There, allegations of failure to protect and severe physical abuse were found true. (Id. at pp. 1287-1288.) The lower court refused to order reunification services because neither parent had admitted being the perpetrator. (Id. at p. 1291.) The appellate court held that this was error.
Preliminarily, it said, “There is . . . no evidence that Mother . . . committed an act of physical abuse. The only evidence of the cause of [the baby]’s injuries points to Father.” (L.Z., supra, 188 Cal.App.4th at p. 1292.) Moreover, there was insufficient evidence that the mother “knew or reasonably should have known her baby was injured by abuse.” (Id. at pp. 1292-1293.) In other words, there was insufficient evidence to support the severe physical abuse allegation against her.
The court therefore concluded that it was unfair to allow the father to prevent the mother from receiving reunification services by refusing to admit that he was the perpetrator. (L.Z., supra, 188 Cal.App.4th at pp. 1293-1294.) “[T]he statutes do not permit the court to deny a parent reunification services simply because it cannot determine who inflicted the abuse unless it is proven that the parent knew or should have known they had an abused baby.” (Id. at p. 1294, italics added.)
L.Z. is distinguishable because here, the severe physical abuse allegation was found true as to both parents. A severe physical abuse finding means that “[t]he child . . . has suffered severe physical abuse 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).) The finding here therefore means that either the father physically abused A. or else he knew or should have known that the mother had physically abused A. Under these circumstances, the juvenile court could reasonably infer a substantial risk of harm from both parents’ denial.
The father also quotes Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738 to the effect that “it is an outrageous injustice to use the fact parents deny they have committed a horrible act as proof that they did it.” (Id. at pp. 1752-1753.) Here, however, CFS had already proven that “they did it” at the jurisdictional hearing. At the 18-month review hearing, the issue was whether “they” might “do it” again. A false (or minimizing) denial tended to show they would.
We therefore conclude that there was sufficient evidence of detriment if A. was returned to the father’s custody.
In a subsidiary argument, the father asserts that the juvenile court erroneously reasoned that the true finding on the severe physical abuse allegation established that a parent had intentionally harmed a child.
We agree that “[s]evere physical abuse” does not necessarily require the intent to inflict harm. (See In re R.T. (2017) 3 Cal.5th 622, 629-630 [§ 300, subd. (e) “require[s] that a parent have acted intentionally or willfully . . . .”], italics added.)
We fail to find, however, any place where the juvenile court said anything different. It cited the severe physical abuse finding, but only as establishing “a number of broken bones in different stages of healing, that . . . have not appropriately been accounted for” — “multiple broken bones to [a] young infant without an explanation.” The petition had alleged that “[t]he injuries are consistent with inflicted trauma.” Thus, as the juvenile court correctly observed, “the true findings specifically indicate that those are nonaccidental injuries . . . .” It said nothing about whether they were inflicted intentionally.
III
DISPOSITION
The order appealed from is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
RAPHAEL
J.
MENETREZ
J.
[1] It is not clear which ribs were broken or how many.
The reporting party said the third, fourth, fifth, and sixth ribs on the right were broken. Medical records, however, said “the third, fourth, fifth, and probably sixth ribs” were broken. (Italics added.) An expert later testified that there “could be” a fracture of the third rib, but there were “definitely” fractures of the fourth, fifth, and sixth ribs.
[2] A separate dependency petition was filed as to the father’s daughter An. At the jurisdictional/dispositional hearing in that case, the juvenile court placed An. in the custody of her mother and terminated jurisdiction.
[3] All further statutory citations are to the Welfare and Institutions Code.
