Filed 4/6/17 In re Ar. L. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Ar.L. et al., Persons Coming Under the Juvenile Court Law.

STANISLAUS COUNTY COMMUNITY SERVICES AGENCY,

Plaintiff and Respondent,

v.

A.L.,

Defendant and Appellant.

F074219

(Stanislaus Super. Ct. Nos. 517123, 517124 & 517413)


OPINION

APPEAL from a judgment of the Superior Court of Stanislaus County. Ann Q. Ameral, Judge.
Matthew I. Thue, 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-
Alisha G. is the mother of Ar.L., Ad.L., and Michael G., who were four years, one year, and four months old, respectively, when the present dependency case began. Appellant Armando L. is the father of Ar.L., Ad.L, and Francisco L. B.L. is the father of Michael.
Detention Report
Circumstances of Michael’s Injury
On September 12, 2014, Stanislaus County Child and Family Services Agency (Agency) received a referral alleging that Alisha and Armando had brought four-month old Michael G. to the emergency room with a fractured femur. The parents did not provide “a consistent story, or a story that would explain the injury.” Alisha said she believed Michael’s one-year old sister injured him by “leaning on him.”
The attending physician said that an infant’s bones are “pliable and it takes a significant amount of force to fracture a femur.” A one-year old leaning on Michael would not break his femur. The physician said the injury was indicative of abuse.
Alisha’s Account
A social worker and sheriff’s deputy spoke with Alisha outside of Armando’s presence. Alisha said that two days ago, she put Michael on the sofa in her home with pillows around him. She left the room to get a diaper, while one-year-old Ad.L. was in the living room with Michael. Four-year-old Ar.L. was in her bedroom, and Armando was outside talking to a cousin. Alisha returned to the living room, heard Michael crying, and saw Ad.L. on the couch with him. She rocked him for five minutes to calm him. She then changed Michael’s diaper and he did not cry. But when she changed Michael’s diaper the next day, he cried. Alisha said she had an appointment with the pediatrician already scheduled for the following day so she would have him seen then. However, they were not seen by the pediatrician “due to Medi-Cal being canceled, and so [she] brought Michael to the emergency room.”
Armando’s Account
Armando was also interviewed. He said that three days prior, Michael had been lying on a couch surrounded by pillows. Both Ar.L. and Ad.L. were in the living room with Michael when Armando left to make a bottle. Armando did not know where Alisha was at the time. While making the bottle, Armando heard Michael cry. Armando saw Alisha run to Michael and change his diaper, which caused Michael to cry more. Over time, they noticed that Michael cried when his leg was touched.
The sheriff’s deputy on-scene said at the time that criminal charges could not be pursued because there was no clear explanation as to how the injury occurred. Ar.L., Ad.L. and Michael were placed into protective custody on September 12, 2014, at 11:30 p.m.
Drug Use
Alisha
Alisha initially denied ever using drugs. She then said that she had used marijuana, but only last year. Alisha was confronted with a child protective services (CPS) report indicating she had tested positive for methamphetamine use. She then admitted to “one use of methamphetamine while pregnant.” When Alisha was told the report showed she had tested positive on multiple occasions, she did not respond. Alisha claimed she would test clean if tested immediately, but then refused to test.
Armando
Armando admitted a history of substance abuse, saying “he would use any drug he could get his hands on, and drank alcohol daily.” Armando then clarified that he has used marijuana and methamphetamines. He drinks alcohol every other day. Armando was asked to submit to a urine test to rule out the possibility he would test positive for methamphetamine use. He refused, explaining that if he tested positive for marijuana use, he would be in violation of his parole and sent back to prison for 10 years.
Domestic Violence
Alisha
Alisha said that the last incident of domestic violence in their home was one and a half months prior. She then quickly said “they were just arguing.” Alisha said Armando had served two prior prison sentences for committing domestic violence against her.
Armando
Armando said he had received two separate prior prison sentences for committing domestic violence against Alisha.
Social Worker Notes
Armando told social workers he was no longer an active gang member and was being tormented by local gangsters, who would throw rocks at his car and insult him.
On September 15, 2014, a social worker spoke with a parole officer who said that Armando refused to change Michael’s diaper and “refused to hold a baby that was not his blood, not his kid.”
Petition
On September 16, 2014, the Agency filed a Welfare and Institutions Code section 300 petition with respect to Ar.L., Ad.L. and Michael. The petition alleged that Michael suffered “serious physical harm inflicted non-accidentally upon the child by the child’s parent or guardian ….”
Jurisdiction/Disposition Report
In the Jurisdiction/Disposition Report, the Agency recommended that the court bypass reunification services under Welfare and Institutions Code section 361.5, subdivisions (b)(5) and (b)(6).
The report recounted that Michael was conceived while Armando was serving a prison term for domestic violence against Alisha. The social worker observed “Michael appears to be the subject of some scorn by [Armando], who has made statements expressing his aversion to parenting a child that was ‘not his blood.’ ” However, Armando did tell the social worker he loved “ ‘all three’ ” of the children. Nonetheless, the social worker believed that if Michael was returned, he would face a “risky and dangerous environment” stemming from an “unresolved drug addiction” and a significant domestic violence history.
Armando’s criminal history reflected several arrests and convictions related to domestic violence.
Armando interacted well with one of the social workers, but other staff described him as adversarial, manipulative and inauthentic. At the detention hearing, Armando “attempted to extort money from [B.L.] to finance the transportation of the children to visits.”
Armando entered a residential treatment facility on October 7, 2014. Armando told staff there that he has suffered from bulimia for over 20 years. But Armando told Alisha of his purported bulimia during a visit “seemingly for the first time.” He used the claim to pressure staff to recommend that he receive outpatient care.
Ad.L. entered foster care at the age of 17 months. She could not walk and was nonverbal. By October, Ad.L. was walking, running and could say “a few words.” From September 25 to October 23, 2014, Ad.L. gained two pounds. Even with the weight gain, Ad.L. was in the 10th percentile for her weight.
Armando called the social worker requesting that Ar.L. call him nightly. The social worker told Armando that Ar.L. could call him if she wanted to and that his phone number would be passed on to the foster family. The social worker called the foster mother, who reported that Ar.L. misses her mother but wants nothing to do with her dad. Ar.L. spoke at great length about how Armando would hit her and Alisha. Ar.L. would also have a “hard time” after her visits with Armando. The social worker conveyed that Ar.L. is afraid and does not want to talk to him. The social worker then spoke with Alisha and said that Ar.L. misses her and may be willing to call home if she could speak only to her mother. Alisha said, “ ‘[W]ell all calls have to be on speaker phone so I guess that won[’]t[] happen.’ ”
The social worker conducted a home visit to the foster family. The social worker interviewed Ar.L. who said, “ ‘[M]y dad hurt me. He hit me all the time. He hit me here (pointed to all over her body) and said he hit [Ad.L.] too but he hit me more.’ ” Ar.L. went on, saying, “ ‘When my daddy hits my mommy my grandma comes over to keep up safe. She has a friend named David and they make my daddy stop hitting us. Sometime[s] I sleep in the bed with my grandma and David so my Daddy can’t hit me.’ ”
Visitation
Alisha and Armando visited the children separately. Armando attended every visit. During the visits, Ar.L. was “clearly afraid of her father and will verbalize this.” Ar.L. would shy away from Armando, and when he would try to hug her she would say, “ ‘I want mommy.’ ” At one visit, Ar.L. told Armando, “ ‘[Y]ou scare me.’ ” Armando would tell Ar.L., “ ‘I know I scare you but I won’t hurt you.’ ”
Armando never referred to Michael by name, instead calling him “ ‘fat boy.’ ” On one occasion, Armando called Ar.L. “ ‘fat girl.’ ”
Addendum Report
The Agency filed an Addendum Report on December 30, 2014. The Agency changed its recommendation as to Alisha, and now urged that the court grant her family reunification services. The report continued the prior recommendation of denying reunification services to Armando.
The Agency also indicated that it now believed Armando was the “perpetrator of the severe physical abuse of Michael.” The Addendum Report summarized some of Armando’s criminal history:
“A review of his [criminal records] reveals a domestic violence conviction on May 3, 2010. Less than two weeks later, while on probation, [Armando] is arrested for another domestic violence incident with [Alisha] on May 14, 2010, and then again on November 17, 2010. His probation is revoked on December 3, 2010, and it appears he is returned to prison. On September 1, 2012 [Armando] is again arrested for domestic violence, for which he was convicted and sentenced to another two years in prison. Interpersonal violence appears to be an enduring feature of [Armando’s] behavior, and he seems undeterred by the most dramatic intervention of imprisonment.” (Bold print omitted.)
The Addendum Report also observed that “[Ar.L.] demonstrates fear of [Armando].” The report also recounted Armando’s previously described statements suggesting he resents Michael.
The Addendum Report said that Armando’s “history of domestic violence, his willingness to be violent toward children, and his resentment toward the victim, are dominate [sic] factors that support the Agency’s conclusion that [Armando] is the most likely perpetrator of the severe physical abuse of Michael [G.]”
Jurisdiction/Disposition Hearing
The Jurisdiction/Disposition hearing was held on January 5, 2015. The court noted that a “brief conference” had been held wherein the Agency indicated it wanted to modify its recommendations. The Agency acknowledged that there was insufficient evidence “to sustain the (e) allegations” and therefore insufficient evidence to deny services to Armando under section 361.5, subdivision (b)(6). But counsel for the Agency went on to argue that there was sufficient evidence to “sustain the allegations as to the (a)’s and the (b)’s[ ] and to deny services [to Armando] based on 361.5(b)(6)[ ], and that remains our recommendation.”
The court then struck the allegations in the petition made under section 300, subdivision (e). The court found by a preponderance of the evidence that the three children are persons described by section 300, subdivisions (a) and (b). The court also stated:
“And the Court finds that Michael was the subject of serious injury in that he suffered or is at substantial risk of suffering serious physical harm inflicted non-accidently by his parent or guardian. There has been no direct proof as to who caused the injury, but it certainly appears to me that there’s sufficient evidence that [Armando] was actually the culprit.
“The evidence indicates that the children could not have caused this type of injury, and, given [Armando’s] adverse feelings toward Michael and saying he didn’t want to care for a child that is not his blood, it appears that he’s the most likely culprit, although I don’t have clear and convincing evidence of that.
“But while Michael was in the care of [Armando] and [Alisha], he suffered severe abuse, and that is very concerning. And based upon the type of the injury, it appears that it was not accidental and there was a volitional act which caused the non-accidental injury. And especially concerning is the type of injury to such a very small child of such tender age.”
Shortly thereafter, the court observed that Armando “has an extensive history of domestic violence. [Ar.L.] has reported that he has physically abused both her and her sister.”
The court adjudged all three children to be dependents of the court, and that Armando be permitted at least one visit per month.
The court determined that Armando’s progress was “fair” and denied him reunification services under section 361.5, subdivision (b)(6). The court explained,
“… Michael was subjected to severe physical harm, and that based upon the type of physical harm perpetrated upon Michael, even though he is not [Armando’s] blood child, he was living in the home and … being provided ostensibly with care by [Armando], and the Court finds that providing reunification services to [Armando] for his two children would not be in the children’s best interest.
“The children themselves have, or at least [Ar.L.] has reported the father physically abusing her and her sister. Both those children are extremely young. And the Court has not received clear and convincing evidence that reunification would be in the best interest of the children.”
Counsel for the Agency said she wanted to make sure the court was finding by clear and convincing evidence that section 361.5, subdivision (b)(6) applied.
The court then said,
“And the Court will find that the child that was subjected to severe physical harm was Michael [G.], and he is a dependent pursuant to the Court’s adjudication of him as a dependent of the court as a result of severe physical harm to that child, and that child is a half-sibling of … [Armando’s] children. And … that the physical abuse was inflicted by a parent or guardian. And, again, that reunification services are not in either of the girls’ best interests.”


Armando appealed the court’s ruling, and his counsel filed a brief pursuant to In re Phoenix H. (2009) 47 Cal.4th 835. We gave Armando the opportunity to file a letter brief raising any arguable issues of reversible error. No such letter brief was filed, and we dismissed the appeal on July 17, 2015.
On April 29, 2015, June 15, 2015, and July 22, 2015, Armando filed section 388 petitions seeking reunification services. The dependency court denied the petitions and Armando appealed. We affirmed these denials in nonpublished opinions filed on January 14, 2016, and April 8, 2016.
Six-Month Review Report and Hearing
A status review report filed June 11, 2015, recommended termination of Alisha’s services and scheduling a section 366.26 hearing.
Alisha continued to have a relationship with Armando despite the social worker’s warnings that it was not a healthy relationship. Alisha said she “ ‘knows’ ” Armando and that he would not hurt Michael. Alisha implied she believed her mother had something to do with Michael’s injury. She said she did not make this claim earlier in the investigation because she did not want to get her mother in trouble.
Alisha also reported that she was pregnant with Armando’s child. She also saw him at “a meeting” and was “sexually intimate” with him. The two were also caught at Sierra Vista having intimate physical contact in a bathroom.
She told another social worker that she was deathly afraid of Armando yet continued to have contact with him. She would sit across from him in the lobby ahead of visits with the children, and admitted she “ran into” Armando at church.
The social worker concluded that Alisha was “placing her need for a relationship above the safety and wellbeing of her children.” After nearly 10 months of services, Alisha should have been further along in the process of being able to identify unsafe relationships.


On April 18, 2015, Alisha “engaged in inappropriate contact with another peer from Redwoods while at an outing in the park.” Alisha acknowledged she had exhibited poor decision-making but said she “felt attacked by programs.” She also said she needed someone to help her make better decisions, and that she “needed a new relationship.” Her counselor said she did not appear to take responsibility for her conduct.
In her domestic violence classes, Alisha usually did not volunteer comments showing she connected the material to her own experiences. However, once prompted, Alisha would have some insights and appeared to understand the material.
The review hearing was ultimately held on August 3, 2015. The court stated its understanding that the Agency had changed its recommendation to continue family reunification services for Alisha because the 12-month review was only three months away.
At the review hearing, the Agency indicated it would exercise its discretion to increase Armando’s visits if he “explained to us how Michael was injured in a way that conformed to the proof that was presented at court. We have not yet heard that. [¶] One can sit in program and participate, but it’s the progress that we have always thought was most important in this arena.”
The children’s caretakers, who had been previously granted de facto parent status, described some of the prior visits. The de facto father conveyed that during one visit with Armando and Alisha, “Michael stayed in his car seat the whole time and got no attention.” During another visit, Ad.L. vomited within the first 15 minutes. Alisha said, “I can’t do this. Take her out of here. I want to finish this visit.”
The court continued Alisha’s reunification services.


12-Month Review Report and Hearing
The 12-month review report recommended terminating Alisha’s reunification services and scheduling a section 366.26 hearing.
Alisha told her counselor that she should have taken Michael to the hospital sooner, and that her failure to protect him was a result of “not being clean and sober.” However, she continued to deny knowing who had injured Michael. She also denied having contact with Armando. But in June 2015, Alisha had said she hoped to keep the baby she was pregnant with and to raise him with Armando. The caregivers reported that they gave photographs of Michael and Ar.L. to Alisha on May 11, 2015, yet they appeared on Armando’s Facebook page within two days. Alisha also “continue[d] to say that she would allow contact with [Armando] for her children in the future despite his very violent past.”
The court continued the 12-month review hearing to November 30, 2015, then to December 10, 2015.
Alisha gave birth to Francisco L. at the end of October 2015. The Agency detained him a few days later and filed a dependency petition on November 3, 2015. The petition was based largely on the abuse of Michael. (See § 300, subd. (j).)
The court again continued the 12-month review hearing to January 14, 2016, to coincide with the jurisdiction/disposition hearing in Francisco’s dependency case.
David Polinsky
David Polinsky testified that he works at Sierra Education and Counseling Services (Sierra). Armando attends classes for child abuse/neglect and for domestic violence at Sierra. Armando was not referred to the classes by the court, but instead attended voluntarily. Armando attended 25 or 26 parenting classes and over 52 domestic violence classes. In Polinsky’s opinion, Armando “has done excellently” in the classes, though there is an element of frustration in a lot of what he says.
Armando did acknowledge in class that he had been a perpetrator of domestic violence. However, Armando did not say he caused Michael’s injury, nor did he say he had physically abused Ad.L. or Ar.L. He said that he and Alisha had “been partying for a day or two, and when they finally took the child … to the hospital, it was discovered that Michael had a broken leg, and it had been broken for a day and a half.” Armando said he regretted prioritizing drugs over his family.
Juana Aguilar-Jimenez
Juana Aguilar-Jimenez (Aguilar-Jimenez) testified that she works at Sierra Vista Child and Family Services (Sierra Vista) in its Adult and Community Department. Aguilar-Jimenez worked with Alisha with respect to parenting services, individual counseling, domestic violence victim counseling and a clinical assessment. However, Alisha had not made an appointment with Aguilar-Jimenez since December 2015.
Alisha told Aguilar-Jimenez that her relationship with Armando involved verbal abuse, physical abuse, and emotional abuse. The abuse included cursing, insults, and being slapped, kicked and pushed.
Alisha theorized that Michael was injured by Alisha’s mother or by his sister sitting on him. Alisha also acknowledged that it was possible Armando injured Michael.
Alisha G.
Alisha testified she had been in a relationship “off and on” with Armando for seven years. Alisha once told Armando she wished she was not pregnant because she was “under the influence.” Armando became angry and tried to stab Alisha. Armando went to prison as a result.
Alisha gave birth to Ar.L. Sometime after Armando was released from prison, Alisha resumed her romantic relationship with him. She did so because she hoped he had changed. Alisha was regularly using methamphetamine at the time. At some point, Armando choked Alisha while she was holding Ar.L. and was again sent to prison.
Alisha conceived Michael while Armando was in prison. She believed she was in a relationship with Armando while he was in prison so she considered what she had done to be “cheating.”
Alisha admitted that Armando would not “attend to” Michael as much as the girls. She also conceded that Ar.L. was afraid of Armando. But she denied that Armando was physically abusive to Ar.L. or Ad.L. Later, Alisha admitted that Armando did hit Ar.L. in the face, but she claimed they were “play fighting” together.
Alisha was asked about the photograph of Michael that appeared on Armando’s Facebook page. She claimed that she had provided the photograph to Armando’s sister, not to Armando. Alisha also denied seeing Armando outside of an Arco gas station any time after May 11, 2015.
Jose S.
Jose S. was the children’s foster parent and had been deemed their de facto parent by the court earlier in the proceedings.
Jose S. testified that he saw Alisha and Armando talking at a bus stop in May 2015.
Outside of the courtroom one day, Armando told Jose that he had named Francisco after an uncle or brother who died.
Argument and Decision
Armando’s counsel requested services as to Francisco. He urged the court to consider the fact that Armando had voluntarily attended classes.
In discussing its ruling, the court said,
“You know, I certainly don’t know who physically harmed Michael. Yes, I made a finding previously that it was [Armando] but I don’t know. Obviously the person who physically did the harm to this poor little boy knows but I don’t know, and I’ll have to be perfectly honest. There’s been times when I’ve been reading everything and hearing the testimony that sometimes I almost wonder if it was [Alisha] that caused the harm to this young child.”
The court found Alisha’s testimony not credible.
The court sustained the dependency petition as to Francisco; found by a preponderance of the evidence that he was a child described by section 300, subdivisions (b) and (j); and adjudged him a dependent of the court. The court denied services to Armando with respect to Francisco, pursuant to subdivisions (b)(6) and (b)(7) of section 361.5.
The court scheduled a section 366.26 hearing as to all children for May 26, 2016.
Alisha and Armando each filed a notice of intent to file a writ. However, Armando never filed an actual writ petition and his action was dismissed by this court on March 7, 2016. Alisha did file a writ petition, which this court denied in a nonpublished opinion dated April 26, 2016.
Section 366.26 Report and Hearing
The section 366.26 report recommended termination of parental rights as to all four children. The caretakers, who were also the de facto parents, wished to adopted the children.
The Agency presented no evidence at the section 366.26 hearing. Alisha’s counsel presented an offer of proof, stating that if Alisha was called to testify, she would say:
“Since the last visit indicated in the report, which is in April, she has continued to regularly visit the children …. Since that time, she has not missed any of the visits. She would testify that she has a strong bond with [Ar.L. and Ad.L.] as they have lived with her for a significant amount of time before they were removed, and she would be objecting to the termination of parental rights. She would also, if the Court were inclined to terminate her parental rights, she would ask for a final visit.”
Armando’s counsel offered eight exhibits and the following offer of proof:
“If my client were called to testify, he would testify that the items that have been received by the Court are photographs of him, photographs of his children, and items the children have given to him during visits that evidence their affection. He would testify that he parented the children before they were taken into custody, with the exception of Francisco; that he provided love, affection, and the care for the daily needs of the children. He would further testify that since they have been removed, he has maintained his relationship with the younger children, with the older children, and built a relationship with Francisco. He has faithfully attended every visit he was allowed to attend, and he worked very hard, even though he didn’t ever have reunification services, to do everything he could to try to get the children back. And he would ask the Court not to terminate his parental rights but to order a plan of guardianship.”
Alisha’s counsel also requested a plan of guardianship.
The court terminated Armando’s parental rights. Armando now appeals.
DISCUSSION
I. Armando was Found “Unfit” by Clear and Convincing Evidence
“Before a State may sever completely and irrevocably the rights of parents in their natural child, due process requires that the State supports its allegations by at least clear and convincing evidence.” (Santosky v. Kramer (1982) 455 U.S. 745, 747–748 (Santosky).)
Armando presents a due process challenge to the termination of his parental rights. He claims that “all of the findings of fault made against Armando were ultimately based exclusively on the original jurisdictional findings suggesting that he was responsible for a nonaccidental injury to Michael’s leg – findings that were made using the preponderance of evidence burden of proof.”
Armando cites several cases in arguing that dependency proceedings sometimes reach the section 366.26 hearing without clear and convincing evidence of parental unfitness, and that terminating parental rights in such a situation is error. We need not address those cases because the Agency agrees that “a parent’s parental rights may not be terminated unless there has been a finding that the parent is “ ‘unfit,’ ” and that finding must be made by clear and convincing evidence.” Instead, the Agency contends that this is not such a case because Armando’s parental unfitness was found by clear and convincing evidence. We agree.
Armando’s reading of the record is misguided. The court expressly found, “based upon clear and convincing evidence pursuant to 361(c) of the Welfare and Institutions Code[,] that placing the children with any of the parents at this particular time would create a substantial risk of detriment to the children’s physical health, safety, protection or emotional well-being if they were to be returned to the care of a parent ….” (Italics added.) Thereafter, the court repeatedly found that returning the children to Armando (or Alisha) would create a substantial risk of detriment to the children’s safety, protection or physical or emotional well-being.
Armando’s argument seems to actually be focused on the fact that the court did not find clear and convincing evidence that he personally broke Michael’s femur. It is true the court did not make such a finding. But due process does not require clear and convincing evidence Armando broke Michael’s femur. Instead, due process requires clear and convincing evidence of parental unfitness, in whatever form that may take. Of course, in many circumstances that standard can be met with clear and convincing evidence a parent has personally injured the child. But it can be met in other ways as well. Here, there was evidence that four-month-old Michael was severely injured when neither Armando nor Alisha was watching him. There was also evidence that Michael was not taken to the hospital until days later because Armando and Alisha were under the influence of drugs. There was also evidence Armando had hit the other children, and that Ar.L. was afraid of him. Armando’s history of domestic violence was also well documented. We conclude there was clear and convincing evidence on the issue of parental fitness, even if Armando did not personally injure Michael.
In sum, the court found that there was clear and convincing evidence that the children would be in substantial danger if returned home to Armando and Alisha. (§ 361, subd. (c)(1).) We conclude that finding was supported by substantial evidence. Because the court made an appropriate finding under section 361, subdivision (c), we conclude Armando’s due process rights under cases like Santosky were not violated. The failure to find clear and convincing evidence that Armando personally broke his son’s femur does not alter that conclusion.
DISPOSITION
The order terminating parental rights is affirmed.



POOCHIGIAN, J.
WE CONCUR:


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LEVY, Acting P.J.


______________________
MEEHAN, J.