K.S. v. Superior Court
Filed 6/11/13 K.S. v. Superior Court 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
K.S.,
Petitioner,
v.
THE SUPERIOR COURT OF
SAN BERNARDINO COUNTY,
Respondent;
SAN BERNARDINO
COUNTY CHILDREN
AND FAMILY SERVICES,
Real
Party in Interest.
E058045
(Super.Ct.No.
J246643)
OPINION
ORIGINAL
PROCEEDINGS; petition for extraordinary
writ. Cheryl C. Kersey, Judge. Petition denied.
Law
Offices of Valerie Ross and Valerie Ross for Petitioner.
No
appearance for Respondent.
Jean-Rene
Basle, County Counsel, and Kristina M. Robb, Deputy County Counsel, for Real
Party in Interest.
Petitioner
K.S. (father) filed a petition for extraordinary writ pursuant to California
Rules of Court, rule 8.452, challenging the juvenile court’s order denying reunification services as
to his son, K.S. (the child), and setting a Welfare and Institutions Code
hearing. On May 21, 2013, this court
stayed the section 366.26 hearing, pending further order. We lift the stay.
Father
now argues that: (1) the petition failed
to plead essential facts to support allegations under section 300, subdivisions
(a), (b), and (e); (2) there was insufficient evidence to support jurisdiction
on the basis that father abused the child; (3) the juvenile court erred in
denying the child’s mother (mother)
361.5, subdivision (b)(5); and (4) the child should have been placed with the
maternal grandmother. We deny the
writ petition.
FACTUAL
AND PROCEDURAL BACKGROUND
On
November 2, 2012, the
Services (CFS) filed a section 300 petition on behalf of the child, who was
four months old at the time. The
petition alleged that the child came within the provisions of section 300,
subdivisions (a) (serious physical harm), (b) (failure to protect), and (e)
(serious physical abuse). Specifically,
the petition alleged that, while in the care, custody, and control of mother
and father (the parents), the child sustained significant
fracture to his arm, inflicted by nonaccidental means. The petition also alleged that father failed
to protect the child, in that he failed to consistently provide a safe
environment for him and failed to seek immediate medical attention for him.
Detention
The
social worker filed a detention report and stated that, on October 31, 2012,
the parents brought the child to his regularly scheduled doctor’s
appointment. While being examined, the
doctor found that the child had a spiral fracture to his right arm. The doctor reported to a social worker that
the injury was inflicted on the child and was consistent with child abuse. The parents could not explain how the child
was injured. However, they believed it
was probably an accident, and that the child had injured himself trying to walk
or roll around on the floor.
The
social worker interviewed father regarding the child’s arm fracture, and father
said he did not know how the child was injured.
Father stated that it may have been caused by the child trying to crawl;
however, when asked whether the child was able to crawl or walk, since he was
only four months old, father said no.
Father also reported that mother’s sister said she saw the child fall on
his arm and twist his arm behind his back.
When questioned further about how the child could have suffered the
fracture, father said that sometimes mother would grab the child and put him in
bed with them. However, he said they
never rolled over him. Father reported
that the child had been staying with the maternal grandmother the past several
days, while he and mother were away.
However, they returned on October 30, 2012, and the child had been in
their care since 4:00 p.m. on October 30, 2012.
Father suggested that the injury could have occurred at the maternal
grandmother’s house, but he did not think anyone would do anything to the child
on purpose.
The
social worker also interviewed mother regarding the child’s injury, and mother
adamantly denied knowing how the child had suffered the spiral fracture. She said that when she picked the child up
from her mother on October 30, 2012, he seemed cranky, but she did not notice
anything wrong with his arm. When
questioned further, mother stated that her sister said the child was lying in
his playpen with his arm twisted, “and that he was moving around a lot.†She also stated that perhaps the child’s arm
“was in the car seat wrong and someone buckled him wrong and pulled him out and
did it.†Mother denied any domestic
violence in the home and denied that she or father abused the child. She also denied that her family could have
injured the child and believed the child could have caused the injury to
himself by “rolling around.â€
The
child was transported to Loma Linda University Medical Center (Loma Linda) to
be seen by a forensic medical examiner.
The social worker spoke with Dr. Andrea Thorp at Loma Linda. Dr. Thorp reported that the injury was
consistent with child abuse and that the child would be admitted to the
hospital for a complete examination to see check for other injuries.
The
court held a detention hearing on November 5, 2012, at which time it removed
the child from the parents and detained him in foster care.
Jurisdiction
The
social worker filed a jurisdiction report on November 20, 2012, and recommended
that the court sustain the petition and order reunification services for the
parents. The social worker reported that
the child had sustained three nonaccidental injuries over a period of
approximately two to four weeks. The
child had the spiral fracture of his right arm, and indications of two older
fractures to his ankle and one of his ribs.
Dr. Amy Young opined that the rib fracture appeared to be about two
weeks older than the arm fracture, but she was not able to determine a time
frame for the ankle fracture. The ankle
fracture and rib fracture were never treated.
The social worker reported that there was no indication the maternal
grandmother harmed the child, since she had no history of child abuse,
substance abuse, or domestic violence.
The
social worker concluded that, because the child’s arm discomfort did not appear
until after he returned to the parents’ care, the spiral fracture occurred
while in their care and custody.
However, both parents gave inconsistent and conflicting explanations of
how the child could have sustained his injuries. Father eventually admitted that the child may
have slipped out of his hands when he was “playing [S]uperman†and had to grab
the child to prevent him from falling on the floor. The social worker spoke with several people
who had concerns that father had been abusive or controlling with mother. The parents admitted that they argued, but
denied any domestic abuse. The social
worker recommended services since the parents had never received any previous
services and the matter was still being investigated by the police.
A
jurisdiction/disposition hearing was held on November 26, 2012, and the matter
was set contested by the child and continued.
The
social worker filed an addendum to the jurisdiction/disposition report on
December 31, 2012, and changed his recommendation to no reunification services
for the parents. The social worker
reported that the police concluded its investigation and found sufficient
evidence to charge father with child endangerment. Several witnesses stated that they had seen
him be abusive with his former girlfriend.
Other witnesses said they had seen him become so angry with mother that
he punched holes in the walls, with the child present. Father was also observed “rough-housing†with
the child, even when the child was just a few weeks old. Father was arrested, arraigned, and posted
bail in December 2012.
The
social worker reported that Dr. Young did a follow-up examination with the
child on December 14, 2012, and she stated that the healing fractures of the
ribs were consistent with “front to back squeezing of the ribcage/chest†of the
child and were consistent with a finding of child abuse.
fractures occurred close to the time of the arm fracture. Dr. Young also noted that the arm fracture
was spiral in description, which implied a “twisting mechanism of injury.†She stated that the fracture was an inflicted
injury that was consistent with child
abuse.
A
copy of the police report was provided to the parties and the court. The police interviewed father, who said he
did not think his son had been abused.
Rather, he believed the injury was a “one time accident.†He suggested that the child possibly had
brittle bones. However, the police spoke
with Dr. Young and asked if the child had a disease that caused brittle bones
that might break easily, and she said he did not. Dr. Young told the police that the
child’s arm fracture was severe and caused him a lot of pain. The injury would have been very noticeable to
anyone since the child would not have moved his arm and would have cried in
pain if it was manipulated while dressing or bathing him. Because these symptoms were not seen while
the child was at the maternal grandmother’s house, Dr. Young opined that the
injury occurred after the child returned home on October 30, 2012. When asked whether rolling over the child,
dropping him six inches, or dropping him four feet from overhead and catching
him by one arm could cause the arm fracture, she said none of those actions
would produce enough twisting force needed to cause the arm injury. Dr. Young said the rib fractures were caused
by someone squeezing the child, but since she could not date the rib injuries,
they could have occurred any time in the weeks before the doctor’s appointment.
When confronted with
evidence of the child’s past ankle fracture and rib fracture(s), father said he
did not “feel that the test results were very clear.†He said he had nothing to do with causing the
child’s injuries. The interviewing
officer asked if he would take a polygraph examination, and father agreed. During the test, father was asked if he
caused the injury to the child’s arm, and father said no. The polygraph showed that father was not
telling the truth when he answered that question. When confronted with the polygraph results,
father admitted that he lied. He then
said he accidentally dropped the child six to 12 inches and caught him by his
arm. Father went over the events of the
evening prior to the doctor’s appointment and said the child seemed
irritated. The child would not take his
bottle at first, but eventually did.
Mother took a shower that evening, and during that time, father played
with the child and dropped him. The
following morning when the parents gave the child a bath, they noticed that it
“bugged†him when they washed his right arm.
They decided to ask the doctor about it at his appointment. When asked about the other injuries, father
said he could not think of anything that would have caused them. He said the child’s ankle was possibly
injured when he (father) “flopped†on the couch next to the child and hit the
child’s ankle with his arm.
The
child’s counsel subsequently withdrew his contest, but the matter was set
contested on behalf of the parents.
Father’s counsel and mother’s counsel also requested to bifurcate the
matter. The matter was continued.
A
contested jurisdiction/disposition hearing was held on February 5, 2013. Mother testified and said she had no
explanation for the child’s injuries, except the arm fracture. She said the arm fracture could have happened
when father was playing with the child.
She had no idea who broke the child’s rib(s), but did not think father
did it. Mother also testified that when
she picked up the child at 4:00 p.m. on October 30, 2012, from her mother’s
house, the child was fine. She said she
first noticed that his arm appeared to be injured when she was bathing him
before the doctor’s appointment the next morning. She agreed that the child’s arm was broken
sometime between 4:00 p.m. on October 30, 2012, and 8:00 a.m. on October 31,
2012. Father was called to testify, but
plead the Fifth Amendment, due to his criminal charges. The social worker also testified and said it
was not in the best interest of the child to offer the parents services. He opined that their failure to accept
responsibility was a good indicator that there would be a continued risk to the
child if he was to be returned to them.
After
hearing oral argument and reviewing the reports and documents submitted, the
court found that the child came within section 300, subdivisions (a), (b), and
(e), and declared him a dependent of the court.
The court found father to be the presumed father of the child. The court stated that the parents only wanted
to “sit back and claim accidents, or [that they did not] know, or it [was] a
disease without any evidence . . . .â€
The court then denied reunification services to both parents pursuant to
section 361.5, subdivision (b)(5), noting that neither of them had admitted any
abuse and that they were “covering for each other.†The court also found that neither parent had
shown that services would prevent reabuse.
The court set a section 366.26 hearing and authorized CFS to place the
child in a prospective concurrent planning home pending the hearing.
ANALYSIS
I. The Court Properly Denied Father
Reunification Services
Father
argues that the court erred in denying services to him pursuant to section
361.5, subdivision (b)(5), since it erroneously found that the child was
brought within the jurisdiction of the court under section 300, subdivision
(e). Within the context of this
argument, he contends that the section 300 petition failed to plead sufficient
facts to constitute the essential elements of section 300, subdivision (e). We note that he makes the same insufficient
pleading argument with regard to the factual allegations under section 300,
subdivisions (a) and (b). He further
contends that there was insufficient evidence to support the court’s finding
that the child came under section 300, subdivision (e). We conclude that the court properly denied
him services.
A. Father
Has Forfeited His Right to Challenge the Adequacy of the Petition By Failing to
Raise the Issue Below
Father
argues that the section 300 petition failed to plead factual allegations
sufficient to constitute the essential elements of section 300, subdivisions
(a), (b), or (e). CFS argues that father
forfeited his right to challenge the sufficiency of the petition by failing to object below.
We agree with CFS.
The sufficiency of a
petition cannot be challenged for the first time on appeal. (In re S.O. (2002) 103 Cal.App.4th
453, 459-460 (S.O.).) “In the initial ‘pleading’ stage, the role of
the petition is to provide ‘meaningful notice’ that must ‘adequately
communicate’ social worker concerns to the parent. [Citation.]â€
(In re Jessica C. (2001) 93 Cal.App.4th 1027, 1037 (
petitions, they must be given a certain amount of slack. If the parent believes that the petition does
not “adequately communicateâ€
[CFS]’s concerns or is otherwise misleading, the onus is on the parent to
challenge the petition at the pleading stage.’ [Citations.]†(S.O., at pp. 459-460.) Furthermore, “after a hearing on the merits
has been held on the petition, the focus must necessarily be on the substance
of the allegations found true by the juvenile
court, not idiosyncratic particulars of the social worker’s precise language.
Anything less would allow parents to hold linguistic deficiencies in the
petition as a kind of trump card by which they could attack a finding that a
child fell within one of the descriptions of section 300, even though that finding was supported by
substantial, indeed overwhelming evidence.†(Jessica C., at pp. 1037-1038.)
Here, father failed to
challenge the wording of the allegations at the trial court level and, thus,
has waived any defect in the pleadings.
Moreover, a hearing on the merits has been held on the petition. Thus, “the focus must necessarily be on the
substance of the allegations found true by the juvenile court, not idiosyncratic particulars of the social worker’s precise
language.†(Jessica C., supra, 93
Cal.App.4th at pp. 1037-1038.)
Consequently, father’s insufficiency of the pleadings claim is barred.
B. The
Court Properly Found That the Child Came Within Section 300, Subdivision (e)
Father
argues that there was no substantial evidence to support the court’s finding
that he abused the child. We conclude
that the court properly found that the child came within section 300,
subdivision (e).
1. Standard
of Review
Section
300, subdivision (e), provides that the court has jurisdiction where “[t]he child is under the age of five years
and 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.†To
establish jurisdiction under this subdivision, CFS must show that: “(1) there is a minor under the age of five;
(2) who has suffered severe physical abuse as defined in section 300,
subdivision (e); (3) by a parent or any person known to the parent if the
parent knew or reasonably should have known that the person was physically
abusing the minor. [Citation.]†(In re
E.H. (2003) 108 Cal.App.4th 659, 668 (E.H.).)
In
evaluating whether a child comes under section 300, subdivision (e), “we use
the substantial evidence standard of review, where we determine whether
evidence that is of reasonable, credible and solid value supports the
dependency court’s findings. We do not
reweigh the evidence, nor do we consider matters of credibility. [Citation.]â€
(E.H., supra, 108 Cal.App.4th
at p. 669.)
2. The
Evidence Was Sufficient
Father
asserts that evidence supporting the “concept†that he abused the child was
based on mere speculation and the assumption that “someone who has engaged on
one occasion in domestic violence with an ex girlfriend and someone who
wrestles a brother-n-law [sic] is a
child abuser.†He further claims that
the evidence merely showed that he played “Superman†with the child and lost
his grip on him, and that the child fell about four feet before he was able to
jerk him by the arm to prevent him from hitting the floor. We disagree.
The
case of E.H., supra, 108 Cal.App.4th 659 is instructive. In that case, the minor lived with her mother
and her mother’s family. (
fractures, fractures of the wrist, femur, feet, hands, and hip. The fractures were at different stages of
healing. (Id. at p. 661.) Neither
the mother nor the father, who did not live with them, had any explanation for
how the minor was injured. (
care of the minor. (Id. at p. 665.) Medical
personnel concluded that the minor’s injuries were the result of child
abuse. (Id. at p. 663.) The lower
court dismissed an allegation made under section 300, subdivision (e), because
there was no identified perpetrator. (
that the Department essentially employed a “res ipsa loquitur†type of argument
to support a jurisdictional finding under section 300, subdivision (e). (E.H.,
at p. 669.) The appellate court
noted that there was severe physical abuse (the minor’s broken bones) and that
the minor was never out of her parents’ custody. (Id.
at pp. 669-670.) The court found
that “[t]he only reasonable conclusion to be drawn from the facts of the
instant case was that someone in the home was causing [the minor’s] injuries,
and that [the parents] reasonably should have known (since they lived
there) the identity of the perpetrator.â€
(Id. at p. 670.) The court specifically stated that “where
there is no identifiable perpetrator, only a cast of suspects, jurisdiction
under subdivision (e) is not automatically ruled out. A finding may be supported by
here. Otherwise, a family could
stonewall the Department and its social workers concerning the origin of a
child’s injuries and escape a jurisdictional finding under subdivision
(e).†(Ibid., italics added.)
The
court here properly found that the child came within its jurisdiction by the
circumstantial evidence in this case.
Mother testified that when she picked up the child at 4:00 p.m. on
October 30, 2012, from her mother’s house, he was fine. She said she first noticed that his arm was
injured when she was bathing him the next morning. Dr. Young stated that the child’s arm
fracture was severe, and that the injury would have been very noticeable since
the child would not have moved his arm and would have cried out in pain while
dressing or bathing him. Because these
symptoms were not seen while the child was at the maternal grandmother’s house,
Dr. Young opined that the injury occurred after the child returned to the
parents’ custody and care. Mother agreed
that the child’s arm was broken sometime between 4:00 p.m. on October 30, 2012,
and 8:00 a.m. on October 31, 2012.
Father admitted that the child was in his and mother’s custody during
that time period. Furthermore, Dr. Thorp
and Dr. Young examined the child and opined that his arm fracture was
nonaccidental and caused by abuse.
Father initially told the police he did not cause the child’s injury and
offered many explanations for it.
However, the polygraph examination showed that he lied when asked if he
caused the injury to the child’s arm.
Father then said he accidentally dropped the child and caught him by his
arm. However, the evidence showed that
the arm fracture was caused by a “twisting mechanism of injury.†Dr. Young stated that none of father’s
explanations for the injury would have produced enough twisting force needed to
cause the arm injury. In addition, Dr.
Young found rib fractures, and stated that they were consistent with “front to
back squeezing of the ribcage/chest†and were consistent with a finding of
child abuse. We also note the evidence
that father had been abusive with his former girlfriend, that he had been so
angry with mother that he punched holes in the walls, and that he
“rough-housed†with the child, even when the child was only a few weeks old.
Based
on the evidence before it, the only reasonable conclusion that the court could
come to was that father caused the child’s injuries, or, he reasonably should
have known who caused the child’s injuries.
(E.H., supra, 108 Cal.App.4th at p. 670.) Therefore, the court properly found that the
child came within section 300, subdivision (e).
C. The Court Properly
Denied Reunification Services
“We
affirm an order denying reunification services if the order is supported by
substantial evidence. [Citation.]†(In re
Harmony B. (2005) 125 Cal.App.4th 831, 839.) “On review of the sufficiency of the
evidence, we presume in favor of the order, considering the evidence in the
light most favorable to the prevailing party, giving the prevailing party the
benefit of every reasonable inference and resolving all conflicts in support of
the order. [Citations.]†(In re
Autumn H. (1994) 27 Cal.App.4th 567, 576.)
“We do not reweigh the evidence, nor do we consider matters of
credibility.†(E.H., supra, 108
Cal.App.4th at p. 669.)
“In
enacting subdivision (b) of section 361.5, the Legislature has recognized that
under some circumstances it may be futile to offer a parent reunification
services. [Citation.]†(In re
Kenneth M. (2004) 123 Cal.App.4th 16, 20 (Kenneth M.).) Section 361.5,
subdivision (b), provides: “Reunification services need not be provided
to a parent or guardian described in this subdivision when the court finds, by
clear and convincing evidence, any of the following: [¶]
. . . [¶] (5) 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.â€
Section 300, subdivision (e), and section 361.5, subdivision (b)(5), do
not require identification of the perpetrator.
(Kenneth M., at
p. 21.) “Read together, those
provisions permit denial of reunification services to either parent on a
showing that a parent or someone known by a parent physically abused a
minor. [Citation.] Thus, ‘conduct’ as it is used in section
361.5, subdivision (b)(5) refers to the parent in the household who knew or
should have known of the abuse, whether or not that parent was the actual
abuser.†(Ibid.)
In
order to deny father reunification services under section 361.5, subdivision
(b)(5), the threshold issue was whether the child fell within section 300,
subdivision (e). As discussed above,
there was sufficient evidence to support the court’s finding that father
inflicted the abuse or reasonably should have known someone else was inflicting
abuse on the child. (§ 300, subd. (e);
see ante, § B.) Therefore, the court properly denied father
361.5, subdivision (b)(5).
II. Father Lacks Standing to Raise Certain
Issues
A. Father
Lacks Standing to Challenge the Court’s Order Denying Mother Services
Father
argues that the court erred in denying reunification services to mother, when
there was no evidence that she caused the injuries to the child or knew the
child was being abused. He further
asserts that the court failed to identify “what conduct of Mother brought her
within the bypass provision of subdivision (b)(5).†CFS argues that father lacks standing to
challenge the court’s denial of mother’s services. In response, father claims standing on the
ground that, “if this court reverses the order setting the .26 as to mother,
then such ruling inures to the benefit of father in that the termination of his
parental rights would also no longer be at issue.†However, all of the cases father cites in
support this claim are inapposite.
the proposition that one parent can claim that the court erred in denying the
other parent services when the other parent has not appealed.
may not urge errors that affect only another party who does not appeal. (In re Gary P. (1995) 40 Cal.App.4th
875, 877 (Gary P.).) A parent therefore lacks standing to raise issues on appeal
that do not affect his or her own interests.
(Id. at p. 876.)
Although
we are satisfied that father was not aggrieved by the court’s denial of
services to mother under section 361.5, subdivision (b)(5), we will briefly
address his contention on the merits.
Sections 300, subdivision (e), and 361.5, subdivision (b)(5), read
together, “permit denial of reunification services to either parent on a
showing that a parent or someone known by a parent physically abused a
minor. [Citation.] Thus, ‘conduct’ as it is used in section
361.5, subdivision (b)(5) refers to the parent in the household who knew or
should have known of the abuse, whether or not that parent was the actual
abuser.†(Kenneth M., supra, 123
Cal.App.4th at p. 21.) Here, Dr.
Young opined that the injury occurred after the child returned home from the
maternal grandmother’s house, and mother agreed that the child’s arm was broken
sometime between 4:00 p.m. on October 30, 2012, and 8:00 a.m. on October 31,
2012. The evidence showed that the
child’s injury was the result of abuse, and that he was never out of his
parents’ custody during the time period when the injury occurred. The only reasonable conclusion to be drawn
from the evidence was that mother knew or reasonably should have known of the
abuse. (See E.H., supra, 108 Cal.App.4th at p. 670; Kenneth M., at p. 21.)
Thus, the court properly denied her services.
B. Father
Lacks Standing to Raise the Issue of Placement with the Maternal Grandmother
Father
briefly claims that the child should have been placed with the maternal
grandmother since she testified that she would protect the child and obey all
rules and orders. Father lacks standing
to raise this issue since it does not concern his rights. (Gary
P., supra, 40 Cal.App.4th at
p. 876.) Furthermore, he has
asserted this claim without argument or citation to authority; therefore, no
discussion is required. (
408.)
DISPOSITION
The writ petition is denied.
NOT TO BE PUBLISHED IN
OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
McKINSTER
J.
RICHLI
J.
name="_ftn1" title=""> [1] All further statutory references will be to
the Welfare and Institutions Code, unless otherwise noted.
name="_ftn2" title=""> [2] Mother is not a party to this petition.
