Filed 4/17/18 In re Joshua J. CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR


In re Joshua J., A Person Coming Under the Juvenile Court Law.

SAN MATEO COUNTY HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
J.J.,
Defendant and Appellant.



A151191

(San Mateo County
Super. Ct. No. 16JD0481)



MEMORANDUM OPINION
In this dependency appeal, J.J. (mother) challenges dispositional orders made pursuant to subdivision (b)(6) of section 361.5, denying her the chance to reunify with her infant son, Joshua (born June 2016). Specifically, mother asserts that the juvenile court failed to state the factual basis for its bypass finding and that there was insufficient evidence to support the juvenile court’s determination that it would not benefit Joshua to pursue reunification services with her. Mother additionally challenges the juvenile court’s failure to consider placing Joshua with the maternal grandparents at disposition. Concluding that ample evidence supports the juvenile court’s bypass order, we affirm.
I. BACKGROUND
At the conclusion of a contested hearing on April 27, 2017, the juvenile court found the allegations set forth in a second amended petition true “in all particulars” and, on that basis, concluded that Joshua J.—the minor who is the subject of these proceedings—was a minor described by subdivisions (a), (b), (e), and (i) of section 300. The allegations included the following: “Since Joshua was three days old until he was detained, his mother . . . has been intentionally obstructing the infant’s airway, resulting in low oxygen levels, seizure-like symptoms, and Cyanosis (a bluish discoloration of the skin due to low oxygen saturation). Joshua has been admitted at least 18 times to at least twelve different hospitals. Yet physicians cannot medically explain the mother’s claims that Joshua suffers from apnea, jaundice, and seizures—despite extensive medical evaluations.” The sustained petition further provides: “In hospital settings, Joshua’s episodes have occurred solely when he was alone with his mother and have increased when doctors indicate Joshua is about to be released. Given concerns of child abuse, physicians moved Joshua to a room with video cameras. Those videos captured at least two instances where the mother removed Joshua from his crib, walked out of the camera’s view, and alarms for low oxygen went off—the mother returned the child to his crib before staff responded. In one instance, the mother told staff she hadn’t picked up the baby, which was directly contradicted by video evidence. Thus, in his Child Maltreatment Report, Dr. Chris Stewart stated he believed, to a reasonable degree of medical certainty, ‘Joshua’s mother obstructed Joshua’s airway in some manner to cause the significant events.’ ” Nevertheless, mother maintained that she had never hurt Joshua.
In addition, according to the petition, “both parents have repeatedly failed to call emergency first responders for assistance when Joshua has episodes at home.” For instance, on one occasion, the minor’s father reported he arrived home “to find Joshua limp, cold, and with a purple and black complexion. The father allegedly performed CPR and Joshua recovered after 15 minutes without breathing or crying.” However, it was not until the minor had another episode later that same day—when Joshua was in his mother’s care—that the parents took him to the hospital. Noting that mother claimed she had been diagnosed as “ ‘moderately mentally retarded,’ ” the petition further alleged that Joshua was at substantial risk of serious physical harm due to mother’s “inability to provide regular care for the child due to her mental illness or developmental disability.” Finally, according to the petition as sustained, “mother’s frequent and repeated intentional suffocation of her infant son Joshua constitute[s] acts of cruelty.” Under these circumstances, the San Mateo County Human Services Agency (Agency) initially recommended that neither parent be offered reunification services with respect to this young minor and that the child instead be referred for permanency planning.
Dr. Stewart, the author of the Child Maltreatment Report referenced above and an expert in child abuse pediatrics, was the only witness at the contested jurisdictional hearing on April 26, 2017. He testified that a child can start to have negative effects from deprivation of oxygen after 30 seconds to one minute and that the brain is of “most concern” under these circumstances as it is sensitive to decreasing oxygen levels. Moreover, brain damage from an infant’s lack of oxygen may not be apparent until later in life. Dr. Stewart additionally indicated that the fact that no further incidents were reported after the minor was removed from mother’s care “very strongly” supported his conclusion that Joshua had been subjected to abuse. Finally, Dr. Stewart was informed that the maternal grandparents had recently reported that, when the minor was approximately two months old, they had observed Joshua have a seizure episode outside of mother’s presence. Noting that he could imagine “a number of possibilities” why this report was made, he concluded that it did not change his ultimate finding of abuse.
In addition to Dr. Stewart’s testimony, excerpts from the video surveillance of mother’s interactions with Joshua in the hospital were played in court. The matter was then continued to the next day. Throughout the bulk of these proceedings, the minor’s father had stated that he did not believe mother was harming Joshua and that the baby, instead, had a medical condition. However, at the continued hearing on April 27, father indicated that—after viewing the video excerpts showing mother’s treatment of Joshua the previous day—he now believed her to be culpable. The parties agreed to submit on the evidence already presented, and the court sustained the second amended petition as described above, which also memorialized father’s change of heart.
The matter then proceeded to disposition, with the Agency now recommending that father, but not mother, be provided with reunification services. Father’s attorney indicated that her client had made “the difficult decision” and was prepared to do “whatever [was] necessary to protect his son.” Without further comment from any party, the juvenile court adopted revised recommendations declaring Joshua to be a dependent child, removing him from the custody of both parents, and providing reunification services to father. The court issued a restraining order precluding mother from having any contact with the minor and additionally ordered no contact between father and mother; no contact between father and any maternal relatives; no contact between the minor and the maternal grandparents; unannounced visits by the Agency to father’s home to ensure that mother was not present; and immediate notification of the Agency and law enforcement by father if mother violated the no-contact order.
Mother’s timely notice of appeal now brings the matter before this court.
II. DISCUSSION
A. Reunification Bypass Under Subdivision (b)(6)
As a general rule, when a child is removed from parental custody under the dependency laws, the juvenile court is required to provide reunification services to “the child and the child’s mother and statutorily presumed father . . . .” (§ 361.5, subd. (a).) However, subdivision (b) of section 361.5 exempts from reunification services “ ‘those parents who are unlikely to benefit’ ” from such services or for whom reunification efforts are likely to be “fruitless.” (In re Joshua M. (1998) 66 Cal.App.4th 458, 474; In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478.) The 17 different paragraphs set forth in subdivision (b) of section 361.5—which authorize denial of reunification services under various specific circumstances—are sometimes referred to as “bypass” provisions. (Melissa R. v. Superior Court (2012) 207 Cal.App.4th 816, 821.)
In the present case, the juvenile court denied reunification services to mother based on two such bypass provisions, subdivisions (b)(5) and (b)(6) of section 361.5. On appeal, mother challenges the juvenile court’s bypass decision made pursuant to subdivision (b)(6), which states, in relevant part, that reunification services need not be provided if the court finds by clear and convincing evidence 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 . . . , and the court makes a factual finding that it would not benefit the child to pursue reunification services with the offending parent . . . .” Specifically, mother claims that the juvenile court did not state the factual basis for its finding of severe physical harm as required by the bypass statute and that the record supports the conclusion that Joshua would benefit from the provision of reunification services to her. We review an order denying reunification services under subdivision (b) of section 361.5 for substantial evidence, keeping in mind the higher standard of proof required in the court below when reunification bypass is ordered. (See § 361.5, subd. (b) [requiring bypass findings to be established by clear and convincing evidence]; Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96; see also In re A.E. (2014) 228 Cal.App.4th 820, 826; In re Alvin R. (2003) 108 Cal.App.4th 962, 971.) And, despite mother’s arguments to the contrary, we have no difficulty concluding that substantial evidence supports subdivision (b)(6) bypass in this case.
Preliminarily, it is true that subdivision (k) of section 361.5 provides that the juvenile court “shall read into the record the basis for a finding of . . . the infliction of severe physical harm under paragraph (6) of subdivision (b), and shall also specify the factual findings used to determine that the provision of reunification services to the offending parent or guardian would not benefit the child.” In this case, the form dispositional orders included the statement that the factual basis for the findings supporting (b)(6) bypass “is stated on the record.” However, as mentioned above, the court adopted those orders without comment. Mother posits that she was harmed by the juvenile court’s failure to “read into the record” the basis for its finding of serious physical harm because, for purposes of subdivision (b)(6) bypass, any injuries inflicted on the child must be “deliberate and serious” and it is not clear on this record that mother—who reported suffering from moderate mental retardation—understood the nexus between her behaviors and harm to the child.
It is apparent, however, that the juvenile court rejected this argument, as it sustained language in the petition that acknowledged mother’s report of developmental delay but nevertheless found that she “ha[d] been intentionally obstructing the infant’s airway.” (Italics added.) . The court further found that “mother’s frequent and repeated intentional suffocation of her infant son Joshua clearly constitutes severe physical abuse” for purposes of subdivision (e) of section 300. (Italics added.) Moreover, mother’s consistent denial that she had harmed Joshua in any way, as well as her lying to hospital staff regarding removing Joshua from his crib prior to a recorded desaturation episode, evidence an understanding of the situation and consciousness of guilt. Under such circumstances, it seems extremely unlikely that, had the juvenile court stated for the record the basis for its finding of severe physical harm, a different result would have obtained. (See In re Celine R. (2003) 31 Cal.4th 45, 59-60 [in juvenile dependency action reversal for error appropriate only if it is reasonably probable the result would have been more favorable to the appealing party absent the error]; In re Alayah J. (2017) 9 Cal.App.5th 469, 481 [same].)
Mother also contends that the juvenile court erred in determining that Joshua would not benefit from the provision of reunification services to her because father was provided services; the maternal grandparents were likely to play a continuing role in the minor’s life; services taking into account her developmental delay could have taught her to appropriately parent Joshua; and the court’s orders otherwise had the effect of destroying Joshua’s family. All of these facts may or may not be true. For instance, at the dispositional hearing, the court ordered no contact between the minor and the maternal grandparents and it is therefore unclear what, if any, future role they will play in the minor’s life. Regardless, given the seriousness of the repeated injuries inflicted by mother on the minor, Joshua’s lack of any meaningful relationship with her due to his young age, and the short timeframes available for reunification when a dependent child is under the age of three at removal, the record amply supports the juvenile court’s conclusion that the provision of reunification services to mother in this instance would not benefit Joshua. (§361.5, subd. (a)(1)(B) [reunification services generally limited to six months for children under three at time of initial removal].) In sum, the juvenile court’s bypass determination was well supported by the record in this case and we will not here disturb it.
B. Placement with Maternal Grandparents
Mother also claims on appeal that the juvenile court erred by failing to consider placement of the minor with the maternal grandparents at disposition. Section 361.3 mandates that preference in the placement of a child removed from parental custody be given to qualified family members. (See In re R.T. (2015) 232 Cal.App.4th 1284, 1291, 1295-1296.) Moreover, it is clear in this case that mother requested that Joshua be placed with the maternal grandparents at soon as he was detained. The Agency indicated in November 2016 that it was considering the home, but that additional assessment was needed. A formal referral for relative assessment with respect to the grandparents was thereafter generated in early January 2017. There is nothing further in the record regarding the results of this process, and mother now argues on appeal that the juvenile court should have ensured that the Agency properly investigated the home. Mother, however, neglects to mention that she did not raise this issue at the dispositional hearing. Nor did any other party or the maternal grandparents, themselves. We therefore deem the matter forfeited. (See In re T.G. (2015) 242 Cal.App.4th 976, 984 [collecting cases].) As such, we need not address the Agency’s speculative argument that—had they been formally considered—the maternal grandparents would not have qualified for placement based on the record before us.
III. DISPOSITION
The judgment is affirmed.


 




_________________________
REARDON, J.


We concur:


_________________________
STREETER, ACTING P. J.


_________________________
SCHULMAN, J.*





















*Judge of the Superior Court of California, County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

A151191 In re Joshua J.