Filed 5/17/18 In re Trinity O. CA5






NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT


In re TRINITY O. et al., Persons Coming Under the Juvenile Court Law.

STANISLAUS COUNTY COMMUNITY SERVICE AGENCY,

Plaintiff and Respondent,

v.

TODD O.,

Defendant and Appellant.

F076247

(Super. Ct. Nos. 517859, 517860, 517861)


OPINION

APPEAL from orders of the Superior Court of Stanislaus County. Ann Q. Ameral, Judge.
Thomas W. Casa, under appointment by the Court of Appeal, for Defendant and Appellant.
John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.
-ooOoo-
Appellant Todd O. (father) appeals from dispositional orders denying him reunification services in dependency proceedings concerning his now 12-year-old daughter, Trinity O., five-year-old daughter, N.O., and four-year-old son, Jacob H. The juvenile court relied on Welfare and Institutions Code section 361.5, subdivision (b)(6) and (11), which respectively permit the denial of reunification services to a parent who inflicts severe physical harm to a child or whose parental rights to a sibling of the child were terminated. Father contends the court erred in denying him reunification services because the statute does not apply and, alternatively, providing him reunification services served the children’s best interests. We conclude the juvenile court properly denied father reunification services under subdivision (b)(6) of section 361.5 and affirm.
FACTS AND PROCEEDINGS
On February 8, 2017, father’s neighbor contacted the Stanislaus County Community Services Agency (agency) because then three-year-old Jacob had a welt on his face and two welts on the side of his body. Father was working in Nevada from Sunday through Thursday and left the children—Jacob, 11-year-old Trinity, and four-year-old N.O.—with his neighbor and her adult son. Jacob told the neighbor father hit him but it was an accident.
The neighbor told Stevee Lopez, the emergency response social worker, Jacob had a handprint on his left cheek when father dropped him off at her home. When she asked Jacob about it, he said “daddy punched me.” The following evening, her son bathed Jacob and noticed marks and bruising on his chest and hip area. When Jacob was asked about these bruises, he stated, “daddy mad, daddy hit me.” The neighbor did not contact authorities immediately because she was afraid father would kill her and her family based on prior death threats.
Jacob showed Lopez his injuries and said father hit him with a wooden spoon. He said “daddy punches me and kicks me when mad” and then demonstrated with his fist how father punched him in the cheek. He showed her his knee, stating “see daddy kicked me and I bleeded.” He also said, “daddy says dead, me dead.”
N.O. told Lopez, “daddy punched Jacob in the face” and “hits me too.” “Daddy says we’re dead, going to be dead, when he’s mad.” She said father was always angry and hits Jacob and Trinity. She did not feel safe with father and repeated multiple times “daddy says dead, we’re dead.”
Trinity saw father hit Jacob with a wooden spoon the night before he left for Nevada, and she said it was not the first time father hit them. He punched N.O. in the eye sometime between Thanksgiving and Christmas of 2016, resulting in a black eye. Trinity attempted to tell a school counselor about the abuse but was too afraid. In late December 2016, father hit and choked Trinity because she put on face wash and it made him mad. He also slapped her on the face. He threatened to kill the children, stating “I will kill you, all of you, if you ever tell anyone what’s going on. I wish you all were never born. I should just kill you all. I could just kill you and not have to deal with you anymore.” His most recent threat was a week or two before, and Trinity believed he would carry out his threat.
Trinity told Lopez father choked her when she was four years old and leaned her over a filled bathtub while telling her he was going to drown her. She was placed in foster care in Nevada but then was returned to father’s custody. She said he was always abusive to her and her siblings but she was too afraid to say anything. She did not have contact with her biological mother, Tiffany, because when she was two, Tiffany’s boyfriend molested her. Trinity was visibly shaking and emotional while speaking of father and became nauseated and threw up at the thought of returning to him.
Lopez took the children into protective custody. While driving with them in the county car, the children disclosed father sped and drove erratically when he was angry and tried to scare them. When presented with a meal for dinner, they asked if they had to eat outside, explaining father made them eat outside even in the rain because he said they ate like dogs and should have to be outside like dogs.
According to the Washoe County Department of Social Services (WCDSS), father and the mothers of his children had an extensive child welfare history in Nevada. In April 2007, his daughter, T.M., was born with a positive toxicology for methamphetamine and removed from her mother, Michelle M. The WCDSS did not have access to the full record in that case because it was archived but was able to provide some basic information. Father was informed in April 2008 that he was T.M.’s father, which was confirmed by genetic testing. Father reunified with T.M. in June 2008 but the WCDSS removed her from him two months later in August 2008. The WCDSS prepared case plans for father and Michelle but they did not comply. In October 2010, father voluntarily relinquished his parental rights rather than proceed to a termination hearing.
WCDSS documents also reflect that from 2008 to 2012, it conducted numerous investigations and substantiated allegations of neglect as well as physical abuse and threat-of-harm allegations as to father. In October 2009, WCDSS removed then three-year-old Trinity from Tiffany after investigating a report of child sexual abuse and finding Tiffany under the influence of a controlled substance. Tiffany was arrested and father was in an inpatient treatment facility. Trinity was removed again in November 2012 along with three-month-old N.O. after WCDSS discovered father was allowing Karen, N.O.’s mother, unsupervised contact with N.O. Karen was a longtime intravenous drug user and N.O. had been born with a positive toxicology. Father had agreed as part of a voluntary services agreement not to leave the children alone with Karen. Jacob was removed in November 2013 after Karen tested positive for heroin, methamphetamine, and cocaine while giving birth to him. Father regained custody of the children and relocated to California in 2015.
Lopez spoke to father on February 9, 2017, and questioned him about Jacob’s injuries. Father denied leaving any marks on Jacob but thought he saw scratches on Jacob’s face close to his chin, which he attributed to N.O. or Jacob jumping on a blow up mattress. He explained N.O.’s black eye was possibly the result of horseplay or his elbow accidentally hitting her. He said he loved his children and they had been “through hell and back in CPS in Nevada.” He said he disciplined the children by spanking them on the butt with his hand but denied leaving marks. He also denied threatening them but acknowledged making comments such as “don’t be stupid” or “don’t be dumb.” He admitted occasional marijuana use but denied any other drug use.
The following day, during an interview by a police officer, father admitted slapping Jacob once in the face because Jacob urinated in the bed and it woke him up. He was tearful and appeared remorseful. He thought he had hit Jacob in the shoulder until he saw a picture of his facial bruising and realized he hit him in the face. He also disclosed that Jacob broke his femur while they were living in Nevada but that it had been investigated. The officer advised Lopez to take the children to the doctor for X-rays.
The agency filed an original dependency petition alleging the children came within the juvenile court’s jurisdiction under section 300, subdivisions (b)(1) (failure to protect), (c) (serious emotional damage), and (g) (no provision for support).
Father appeared at the initial hearing and the juvenile court deemed him the children’s presumed father. Neither Tiffany nor Karen appeared and the court found the agency exercised due diligence in attempting to locate them. The court ordered the children detained and ordered the agency to have them assessed immediately for counseling. Following the hearing, a social worker gave father referrals for substance abuse treatment, individual and family counseling, anger management, and parenting instruction. A week later, a mental health clinician diagnosed the children with posttraumatic stress disorder (PTSD) and referred them for ongoing counseling services.
On February 23, 2017, N.O. and Jacob underwent skeletal surveys to check for skeletal trauma. None was found.
The juvenile court scheduled a jurisdictional/dispositional hearing, which it conducted as a contested hearing in July 2017. Meanwhile, the agency amended the petition in April by adding counts under section 300, subdivision (j) (abuse of sibling) based in part on father’s inability to reunify with T.M. and his failure to protect the children from their mothers. The agency filed a second amended petition in May, adding counts under section 300, subdivision (a) (serious physical harm), alleging father injured Jacob nonaccidentally in February 2017, resulting in three separate areas of bruising or marking on his body: a round/oval, pinkish red mark measuring approximately two inches on his left cheek; a linear bruise approximately three to four inches on his left torso, and a bruise approximately an inch in length on his lower left hip. The agency also alleged under section 300, subdivision (i) (cruelty) that father hit, punched, and kicked the children, threatened to kill them, choked Trinity when she was four years old, leaned her over a bathtub filled with water and told her he was going to drown her, punched N.O., resulting in a black eye, and forced the children to eat outside.
Tiffany contacted the agency and asked to participate in the proceedings. She was living in Texas and had a year of sobriety. She believed she was capable of resuming custody of Trinity. In June 2017, she appeared telephonically before the juvenile court and was appointed counsel.
Also in June 2017, social worker Andrea Collier visited the children in foster care. The foster mother said the children were doing much better. Trinity was seeing her counselor once a week and did not want to return to father’s custody. She wanted to live with her maternal uncle or remain in her foster care placement.
In a series of reports filed for the contested hearing, the agency updated the juvenile court on father’s progress in the initial voluntary services. Father entered Nirvana Drug & Alcohol Treatment Institute (Nirvana) for outpatient substance abuse treatment in March 2017 and transitioned into outpatient services with onsite housing where he remained. He was employed locally, had a sponsor, and was working the 12-step program. He completed an anger management assessment with clinician Maryann Cose who also counseled him in parenting and individual counseling. By June, he had completed eight of ten required parenting classes. Cose observed father to be anxious and easily agitated when discussing his past child welfare history. She shared the agency’s concern about his poor judgment and physical abuse of the children. She was also concerned he denied abusing the children and blamed others for their injuries. She recommended he complete anger management and parenting programs and participate in individual and family counseling.
The agency also expressed its reticence about recommending reunification services for father. He received substance abuse counseling and mental health treatment in Nevada. He also completed two anger management programs but was prone to extreme agitation and unpredictable anger in the children’s presence. The agency could not identify any services for father that he had not already received.
The agency believed father physically and emotionally traumatized the children as evidenced by their PTSD diagnoses and reports by their foster parents that they experienced night terrors. They also had behavioral and emotional problems and physically fought and argued excessively. Consequently, they were placed in three different foster homes in the first two months of their removal. The agency also believed father remained under stress and would continue to abuse the children. Further, though visits seemed to go well, father had difficulty regulating his emotions and became easily irritated with the children.
The agency recommended the juvenile court sustain the second amended petition and order reunification services for Tiffany but deny Karen reunification services because her whereabouts were unknown. (§ 361.5, subd. (b)(1).) The agency also recommended the court deny father reunification services under section 361.5, subdivision (b)(6) and (11). As evidence of severe physical abuse to support a finding under subdivision (b)(6), the agency pointed to father’s admission he slapped Jacob in the face and the oval/circular shape of his facial bruise was consistent with being hit with a wooden spoon. In addition, the agency stated the linear bruises on Jacob’s body were consistent with the handle of a wooden spoon. The agency also opined services would not benefit the children given father’s propensity for violence and the children’s statements he physically abused them and threatened to kill them. As evidence to support a finding under subdivision (b)(11) of section 361.5, the agency cited the termination of father’s parental rights as to T.M. and his failure to treat the problems that led to her removal.
At the contested hearing in July 2017, father testified he slapped Jacob twice the morning he urinated in the bed. The first time was accidental when father was slapping the mattress. The second time he slapped him in the face deliberately. He was angry because Jacob lied to him. He denied hitting Jacob intentionally any other time but said he may have “play slapped” him on the face or spanked him lightly on the butt, not intending to hurt him or make him cry. He never left marks on him but conceded it was not appropriate to slap a three-year-old child even playfully. Father denied hitting Jacob with a wooden spoon and said the marks on his hip and back were not there when he dropped him off with the neighbor. He also denied choking Trinity or giving N.O. a black eye but admitted playfully slapping them. Asked by the court to explain “playful slapping,” father said it was “roughhousing” but the children never sustained bruising as a result of it. He denied threatening to kill the children, forcing them to eat outside, or threatening his neighbor.
Father conceded his behavior toward Jacob was aggressive and acknowledged anger management was an issue during the children’s dependency action in 2012. Since completing anger management in that case, he had not exhibited any other aggressive acts, other than the one incident with Jacob. He did not believe he presently had a problem with anger control.
Tiffany testified she spent approximately a week and a half with father and the children in the winter of 2017. She saw him spank Jacob “pretty hard” on the butt because Jacob spilled juice on the floor in the kitchen but she did not see any marks on Jacob as a result. She also saw father pick N.O. up by the arm, lift her off the ground, and spank her very hard. N.O. and Jacob cried after father spanked them. She heard father call the children “stupid” and tell them he wondered why he even brought them back with him, that he could not handle them anymore and they were too much for him.
Valerie Castro testified she took over as the case managing social worker in mid-March 2017. To her knowledge the children had not been examined by a physician to assess their bruises. Nevertheless, she believed theirs was a case of serious physical abuse based on the photographs of Jacob’s bruises, father’s use of a wooden spoon to discipline Jacob, reports of physical abuse, and the siblings’ statements. She said the children never stated anyone other than father hit them.
The juvenile court sustained the second amended petition without modification. The court also found Karen’s whereabouts were unknown and adopted the agency’s recommendations with respect to reunification services. In applying section 361.5, subdivision (b)(6) to father, the court found his physical mistreatment of Jacob and death threats to the children were emotionally damaging and cruel. The court stated:
“It is very concerning to this Court that a parent would tell their young children that, ‘You’re dead, I wish you were dead, I wish you were never born,’ things to that effect. To me that is very emotionally damaging to children. [T]o tell a three-year-old, a four-year-old that ‘you’re dead, you’re dead,’ and kids actually believing those threats are extremely serious. I consider that emotional damage. I also consider it cruel. And when I look at the marks that were left on Jacob, I believe that that is cruel. [¶] … [¶]
“It is [also] very concerning to me that these children are suffering from post-traumatic stress disorder, but given what I believe has been happening in this household, it is not surprising to me that these children have all been severely damaged psychologically because of the fear that they have been living in for fear to tell anybody what has been going on in the household.”
The juvenile court found the children suffered severe physical harm under section 361.5, subdivision (b)(6) and it would not benefit them to pursue reunification services with father. It also found providing father reunification services would not be in the children’s best interest given father’s lack of remorse and denial about the extent and severity of the abuse they suffered.
DISCUSSION
Father does not challenge the juvenile court’s jurisdictional findings, including its findings he inflicted serious physical harm on the children and subjected them to acts of cruelty. Rather, he contends there was insufficient evidence he inflicted “severe physical harm” as defined under section 361.5, subdivision (b)(6) or failed to resolve the problem resulting in the termination of his parental rights as to T.M. as required by subdivision (b)(11). We conclude the juvenile court properly applied section 361.5, subdivision (b)(6) as a basis for denying father reunification services.
Section 361.5, subdivision (a) directs the juvenile court to order reunification services when it removes a child from parental custody unless the court finds any one of the enumerated exceptions in section 361.5, subdivision (b) applies.
Section 361.5, subdivision (b)(6) provides in part as follows:
“(b) Reunification services need not be provided to a parent … described in this subdivision when the court finds, by clear and convincing evidence, any of the following: [¶] … [¶]
“(6)(A) That the child has been adjudicated a dependent pursuant to any subdivision of Section 300 as a result of … the infliction of severe physical harm to the child … by a parent … as defined in this subdivision, and the court makes a factual finding that it would not benefit the child to pursue reunification services with the offending parent .… [¶] … [¶]
“(C) 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 … by an act or omission of the parent …, or of another individual or animal with the consent of the parent …; deliberate and torturous confinement of the child …; or any other torturous act or omission that would be reasonably understood to cause serious emotional damage.”
“A legislative purpose of this statutory provision is to allow the juvenile court discretion to not order reunification services if the court finds services for the parent would not benefit a child who has been adjudicated a dependent of the court as a result of the parent’s infliction of severe physical harm, as defined by the statute. [Citation.] Statutory provisions enacted before this time had mandated reunification services in all cases for children more than five years of age except for a few very narrow circumstances. Section 361.5, subdivision (b)(6) freed the dependency court to ‘exercise discretion based on consideration of the individual facts … [of] a case, under less restrictive guidelines.’” (Jose O. v. Superior Court (2008) 169 Cal.App.4th 703, 707.)
We review a juvenile court’s denial of reunification services for substantial evidence, bearing in mind that clear and convincing evidence requires a heightened burden of proof. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.) “In juvenile cases, as in other areas of the law, the power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the verdict, if possible. Where there is more than one inference which can reasonably be deduced from the facts, the appellate court is without power to substitute its deductions for those of the trier of fact.” (In re Katrina C. (1988) 201 Cal.App.3d 540, 547.)
Father contends Jacob’s facial bruising does not constitute “severe physical harm” as defined in the statute because the injury was not serious in nature and it was an isolated incident. He further contends there is no evidence his conduct could be “reasonably understood to cause serious emotional damage” to the children. We disagree.
Father deliberately hit Jacob in the face and about his body with a wooden spoon in a fit of rage, resulting in bruising. This abuse was not an isolated incident. All three children reported father punched them in the face, and hit and kicked them. Just several months earlier, he struck N.O. in the face, causing bruising around her eye. Rather than being “excessive, inappropriate discipline” as father would characterize his behavior, the evidence points to a pattern of ongoing physical abuse. The evidence also points to ongoing emotional abuse. The children were terrified of father. When he was angry, which apparently was often, he not only hit them but he told them he wished they were dead and that he should kill them. He also told them he would kill them if they ever disclosed how he treated them. The children believed he would carry out his threats, as did his neighbor who was an adult woman. The fact the children suffered from PTSD supports a reasonable inference father’s physical and emotional abuse was profound and emotionally damaging.
In our view, subjecting these young children to unpredictable rages of anger, physical abuse, and death wishes sufficiently supports a finding of “torturous act[s] … that would be reasonably understood to cause serious emotional damage.” (§ 361.5, subd. (b)(6).) Having concluded substantial evidence supports denial of reunification services under subdivision (b)(6) of section 361.5, we need not review the court’s finding subdivision (b)(11) applied as well.
Further, we reject father’s contention the juvenile court erred on the issue of best interest. When, as here, the court finds section 361.5, subdivision (b)(6) applies, the general rule favoring reunification no longer applies and the juvenile court is prohibited from ordering reunification services “unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child.” (§ 361.5, subd. (c)(2).) The parent has the burden of affirmatively demonstrating reunification with the child—and therefore offering reunification services to the parent—would serve the child’s best interest. (In re William B. (2008) 163 Cal.App.4th 1220, 1227.)
The juvenile court has broad discretion in determining whether the parent has met this burden and therefore whether to offer the parent reunification services under section 361.5, subdivision (c). (In re Angelique C. (2003) 113 Cal.App.4th 509, 523.) An appellate court may not disturb the court’s best interest determination absent a showing of an abuse of discretion. (Id. at pp. 523–524.)
Father cannot demonstrate the juvenile court abused its discretion by concluding reunification would not serve the children’s best interests. Although he participated in services and the two youngest children were reportedly attached to him, such evidence did not compel the court to find in his favor on best interest, given all the other evidence supporting the opposite conclusion. For example, father points to his efforts to keep the children together as an intact family unit as a reason services would inure to their best interests. However, Trinity did not want to return to his custody and became physically ill at the prospect. The plan for her was to reunify with her mother in another state. Further, the court acknowledged father had been the children’s primary provider and caretaker but did not believe it appropriate to attempt reunification given the likelihood he would continue to physically and emotionally abuse them. By the dispositional hearing, N.O. and Jacob had been removed multiple times in their short lives and the likelihood of it occurring again if reunified with father was high. On this record, there is simply no basis for concluding the juvenile court abused its discretion by declining to find reunification services would serve the children’s best interests. We find no error in the court’s ruling.
DISPOSITION
The orders denying father reunification services are affirmed.



PEÑA, Acting P.J.
WE CONCUR:



SMITH, J.



ELLISON,* J.