Filed 5/29/18 In re H.S. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 H.S., A Person Coming Under the Juvenile Court Law.

CONTRA COSTA COUNTY BUREAU OF CHILDREN & FAMILY SERVICES,
Plaintiff and Respondent,
v.
A.P.,
Defendant and Appellant.
A151238

(Contra Costa County
Super. Ct. No. J16-00689)



Appellant A.P. (Mother) is the 20-year-old mother of two daughters, R.M. (age two) and H.S. (age four). This appeal concerns only H.S., who was detained by child welfare authorities after her half-sister R.M. was brought to the hospital with 11 broken bones in different stages of healing. Ultimately, the juvenile court sustained R.M.’s petition under Welfare and Institutions Code section 300, subdivision (e) (severe physical abuse) and H.S.’s petition under section 300, subdivision (j) (abuse of sibling). At the disposition hearing, the juvenile court placed H.S. with her noncustodial father, K.S., and denied Mother reunification services under section 361.2, subdivision (b)(2) and (b)(3). It also reduced Mother’s supervised visits from once a week for one hour to four times a month for one hour each.
On appeal, Mother contends the juvenile court abused its discretion in denying her reunification services. Mother requests the orders denying her services and reducing her visits be reversed and that she be given the opportunity to participate in reunification services. We find no abuse of discretion in the court’s rulings and affirm the orders.
I. BACKGROUND
We have encountered this family before and issued an opinion in May 2017 outlining its history, relating primarily to R.M., that led to the dependency of both children and the setting of a hearing under section 366.26 for R.M. (A.P. v. Superior Court (May 25, 2017, A150892) [nonpub. opn.].) The parties are familiar with the facts, so we will here simply supplement the factual background from our earlier opinion with those facts relating specifically to H.S.
R.M. (born February 2016) is Mother’s daughter with her boyfriend, G.M. Mother has another child, H.S. (born April 2014), from a different relationship. H.S.’s father is K.S. None of the three parents has a criminal history.
A. Detention
On July 7, 2016, Mother and G.M. were living in Antioch. They took R.M. to the emergency room at 4:50 a.m., after G.M. heard a “pop” while changing her diaper and noticed a bump on R.M.’s left thigh. Further investigation, described in our prior opinion, showed R.M. had sustained multiple bone fractures in various stages of healing, suggesting she had been abused repeatedly over time. (A.P. v. Superior Court, supra, A150892.)
The children were placed into a foster home the next day. While giving H.S. a bath, the foster mother observed bruises on her neck and upper chest. The foster mother reported to the social worker that H.S. had bruising on her buttocks and there appeared to be a rash around her vagina. Mother said she did not believe the marks on H.S.’s bottom were bruises, but rather old scars from diaper rash.
On July 9, 2016, H.S. was given a visual sexual assault exam to investigate possible sexual abuse based on the foster mother’s report. A physician’s assistant screened H.S., found bruising in the peri-rectal area and labia majora, and recommended that H.S. be given a full SART (Sexual Assault Response Team) examination. The next day, K.S. consented on H.S.’s behalf, and a SART exam was conducted.
Based on these facts, the Contra Costa County Bureau of Children and Family Services (Bureau) filed petitions alleging that then two-year-old H.S. and four-month-old R.M. were at risk of harm, including allegations with respect to H.S. under section 300, subdivisions (d) (sexual abuse), (e) (severe physical abuse), (i) (child cruelty), and (j) (abuse of sibling).
H.S.’s father, K.S., reported to the Bureau that he had cared for H.S. by himself for about eight months in 2015. He had not had any contact with H.S. since December 2015 when Mother came and picked H.S. up. Mother reportedly disappeared with H.S., stopped answering her phone, changed her phone number, and K.S. did not know how to locate H.S. Having been notified of H.S.’s whereabouts, he wanted to resume custody of her.
Mother reported that she and K.S. had domestic violence issues when they were together in 2014, and third parties confirmed her allegations. Mother also reported that K.S. drank alcohol and became angry and violent while intoxicated. K.S. denied engaging in physical altercations with Mother during their relationship but acknowledged having verbal arguments.
At the detention hearing, the court found a prima facie case for detaining the children. The court granted the Bureau discretion to release H.S. to K.S.’s custody, but it appears H.S. remained in foster care through the disposition hearing. Mother was allowed to have supervised visits once a week for one hour.
B. Contested Jurisdiction Hearing – November 15, 2016
At the contested jurisdiction hearing, Dr. Rachel Gilgoff, a pediatrician from Children’s Hospital in Oakland, who had expertise in child abuse and neglect and had conducted the forensic sexual abuse exam on H.S., was called as a witness by the Bureau. She testified the marks on H.S. were in fact discoloration of her skin from a previous rash, and not bruising. No medical evidence suggested the marks were from sexual abuse. Dr. Gilgoff opined, upon seeing the rash, the parents should have taken H.S. to the doctor to obtain medicinal creams.
The juvenile court amended and sustained the allegations under section 300, subdivision (e) (severe physical abuse) as to R.M. The court dismissed the allegations under section 300, subdivisions (i) (child cruelty) and (j) (abuse of sibling) as to R.M. because no evidence showed H.S. was abused. On H.S.’s petition, the court sustained the count under section 300, subdivision (j), finding true the supporting factual allegations, as amended. Based on Dr. Gilgoff’s testimony, the juvenile court found insufficient evidence to sustain the counts under section 300, subdivisions (d), (e) and (i) as to H.S. and dismissed them. K.S. was granted presumed father status and was also granted twice a week visits with H.S. for an hour each visit, which could be supervised. The court also authorized the Bureau to approve overnight visits with K.S. for two consecutive days.
C. Disposition Report
The disposition report told of Mother’s history of six referrals when she was a child for physical and emotional abuse. At an early age, Mother was diagnosed with multiple mental health problems, including post-traumatic stress disorder, anxiety, attention deficit hyperactive disorder, and oppositional defiant disorder. She was in seven different foster homes before being adopted at age seven into a home in San Francisco. Even with her adoptive mother she developed a contentious relationship.
Mother and K.S. met when she was a freshman in high school and he was a senior. When Mother became pregnant at age 15, her adoptive mother kicked her out of the house, and she was forced to live with K.S.’s family, from where, due to K.S.’s purported drinking and domestic violence, Mother eventually “ran away,” leaving H.S. behind with K.S. for some months.
Mother’s adoptive mother told the social worker that Mother “had a hard time with differentiating fantasy versus reality and . . . would tell elaborated stories that were not always true.” Both the adoptive mother and K.S. reported that Mother was “lazy” and would often neglect H.S.’s care by not changing her diaper or bathing her often enough, “keeping [H.S.] in the crib or high chair too long, not having a schedule or routine for [H.S.] and not interacting enough with [H.S.].”
In April of 2014, when H.S. was less than a month old, someone reported domestic violence between Mother and K.S. to San Francisco County Child Welfare Services and told the child welfare representatives that when people come over to visit, Mother “just hands the baby off.” In August of 2014, someone reported general neglect to four-month old H.S., stating that Mother was bathing H.S. only once a week, their room smelled of urine, H.S. often smelled of urine, and Mother would not change H.S.’s diaper right away. Neither of these reports met the criteria for initiating an investigation. There was one child welfare investigation on H.S.’s behalf in 2015 for general neglect, but the referral was deemed unfounded.
According to the disposition report, Mother struggled with anxiety but reported being very patient with her children, and she had an optimistic outlook on life—describing her childhood as “great,” despite having had a very difficult childhood. Mother wanted to get help going back to school so she could support her children financially. She also wanted to continue with her therapeutic services—Mother’s therapist had treated her since she was in the eighth grade. Mother stopped attending therapy in September 2016 because her adoptive mother stopped paying for the sessions.
K.S., who was three years older than Mother, was employed full-time, and he wanted to have full custody of H.S. He lived with his parents, siblings and maternal uncle. He planned to enroll H.S. in preschool. K.S. was willing to participate in services and was willing to promote H.S.’s sibling relationship with R.M. On the date scheduled for the disposition hearing, the court granted the Bureau authority to approve K.S. for consecutive overnight visits up to a maximum of 30 days.
D. Contested Disposition Hearing – February 3 & 28, March 3, 2017
The disposition hearing was continued to February and March 2017, with the hearing concluding on March 3, 2017. The Bureau recommended in its report that Mother not be granted reunification services, even though the social worker had no concerns about Mother during her visits with R.M. and H.S. The social worker admitted H.S. was excited to see Mother. It took some time for H.S. to adjust to the placement with K.S., but by March 2017, the social worker reported H.S. was “doing well.” H.S. had been given a mental health evaluation, was receiving speech therapy, and was referred for therapy and preschool.
Mother was just 19 years old when she testified at disposition, and denied knowing how R.M. sustained her injuries. Mother had completed a parenting class in September 2016. She was enrolled in school to complete her GED but stopped attending in order to keep up visits with her children. Mother was waiting for a referral to a new therapist. She was also seeking help with housing and investigating parenting courses available through a homeless prenatal program in San Francisco.
Mother testified K.S. had custody of H.S. from July to October 2015. Mother then had custody of H.S. from October 2015 until she was removed in July 2016. H.S. had suffered from a severe diaper rash since she was three months old, and it caused severe scarring to a layer of her skin. Mother used over-the-counter diaper rash creams, but did not follow up with further medical appointments. Mother testified the doctor instructed her to use diaper rash cream but never prescribed any medicated cream for the rash.
E. The Court’s Rulings
After hearing testimony and closing arguments, the court ordered the children removed from Mother’s custody. The court found Mother’s testimony was not credible. It noted H.S.’s previous child welfare referrals and pointed out that Mother did not seek out regular visits with doctors for her. The Bureau asked the court to place H.S. with her father in family maintenance under section 361.2, subdivision (b)(2), and the court complied. H.S. was placed in the physical custody of K.S. under supervision of the court, with services to be provided to K.S. only. The court required supervision of K.S.’s custody of H.S. due to reports of his prior alcohol abuse and domestic violence.
As discussed in our prior opinion, the juvenile court bypassed Mother for reunification services with R.M. under section 361.5, subdivision (b)(5) and (b)(6). (A.P. v. Superior Court, supra, A150892.) As for H.S., the court denied Mother reunification services under section 361.2, subdivision (b)(2) and (b)(3), which apply when a dependent child is placed with the previously noncustodial parent. Though H.S. was placed in K.S.’s custody, K.S. was ordered to participate in a domestic violence program, a parenting class, counseling, and random drug testing. The court ordered Mother could have supervised visits with H.S. for one hour, four times per month. The court then set a six-month review hearing for H.S. Mother appeals from the March 3, 2017 orders at disposition denying her reunification services with H.S. and reducing their visits.
II. DISCUSSION
A. The Parties’ Contentions
Mother asserts it was in H.S.’s best interest to grant Mother reunification services. According to Mother, H.S. had spent the majority of her life with Mother and was strongly bonded to her. Mother and K.S. would likely end up co-parenting H.S., and providing Mother with services would help to ensure H.S. would not be subjected to the child abuse and neglect that led to her detention. Mother further argues the juvenile court abused its discretion in reducing her visits with H.S. Mother consistently visited weekly, H.S. enjoyed visiting with Mother, and no concerns were noted by the Bureau.
The Bureau maintains the juvenile court did not abuse its discretion when it ordered the noncustodial parent, the presumed father, to assume custody subject to the supervision of the juvenile court. It asserts the court did not err in ordering services to be provided solely to K.S. in order to allow him to retain later custody without court supervision, as envisioned by section 361.2, subdivision (b)(3). The Bureau claims Mother forfeited the issue of visitation when she did not object to the order for her visitation at the disposition hearing.
B. Section 361.2 Governs This Appeal
Section 361.2, which governs situations such as H.S.’s, provides first priority for placement of a child is with a noncustodial parent. (In re V.F. (2007) 157 Cal.App.4th 962, 969; In re Adrianna P. (2008) 166 Cal.App.4th 44, 55.) “If that parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child.” (§ 361.2, subd. (a).) The finding of detriment must be by clear and convincing evidence. (In re Isayah C. (2004) 118 Cal.App.4th 684, 697; In re Luke M. (2003) 107 Cal.App.4th 1412, 1426.)
Subdivision (b) of section 361.2 provides: “If the court places the child with that parent it may do any of the following: [¶] (1) Order that the parent become legal and physical custodian of the child. The court may also provide reasonable visitation by the noncustodial parent. The court shall then terminate its jurisdiction over the child. The custody order shall continue unless modified by a subsequent order of the superior court. The order of the juvenile court shall be filed in any domestic relation proceeding between the parents. [¶] (2) Order that the parent assume custody subject to the jurisdiction of the juvenile court and require that a home visit be conducted within three months. In determining whether to take the action described in this paragraph, the court shall consider any concerns that have been raised by the child’s current caregiver regarding the parent. After the social worker conducts the home visit and files his or her report with the court, the court may then take the action described in paragraph (1), (3), or this paragraph. However, nothing in this paragraph shall be interpreted to imply that the court is required to take the action described in this paragraph as a prerequisite to the court taking the action described in either paragraph (1) or (3). [¶] (3) Order that the parent assume custody subject to the supervision of the juvenile court. In that case the court may order that reunification services be provided to the parent or guardian from whom the child is being removed, or the court may order that services be provided solely to the parent who is assuming physical custody in order to allow that parent to retain later custody without court supervision, or that services be provided to both parents, in which case the court shall determine, at review hearings held pursuant to Section 366, which parent, if either, shall have custody of the child.”
In H.S.’s case, the court purportedly chose option (2) above, but the choice of reunification services suggests it also operated under option (3). As indicated in paragraph (3), the court had discretion to order or not to order reunification services for the parent from whom the child was being removed. Therefore, as Mother agrees, the standard of review on appeal is abuse of discretion. (See In re K.B. (2015) 239 Cal.App.4th 972, 981; In re Nada R. (2001) 89 Cal.App.4th 1166, 1179.)
C. The Court Did Not Abuse Its Discretion In Denying Mother Reunification Services
Abuse of discretion is a very deferential standard of review. An abuse of discretion occurs only where the trial court exceeds the bounds of reason by making an arbitrary, capricious or patently absurd determination. (In re Stephanie M. (1994) 7 Cal.4th 295, 318–319.)
Mother argues she and H.S. are well-bonded and it is in H.S.’s best interest to maintain that bond. She also emphasizes it was G.M., not she, who was suspected of actively abusing R.M. She predicts she and K.S. will co-parent H.S. and therefore her relationship with H.S. should be reinforced through provision of reunification services to Mother.
Under section 361.2, unlike section 361.5, the court is granted open-ended discretion to order or not to order reunification services at disposition when a noncustodial parent is available to take custody. (In re Karla C. (2010) 186 Cal.App.4th 1236, 1244–1245; In re Erika W. (1994) 28 Cal.App.4th 470, 475-478.) Under section 361.5, when the child is in foster care, reunification services must be provided unless the parent falls into one of 17 specific categories to whom reunification services may be bypassed. (§ 361.5, subds. (b)(1)–(b)(17).) When a noncustodial parent is available to assume custody, the law is otherwise. (In re Gabriel L. (2009) 172 Cal.App.4th 644, 651.) The public policy then turns to supporting the previously noncustodial parent in becoming the custodial parent. Supporting the child’s bond with a previously custodial parent from whom the child is being removed becomes secondary if the child is placed with the other parent. Whether services will be provided to nurture that bond depends in part on how likely it is that the offending custodial parent will reunify with the child. (See Erika W., at pp. 476–477.) The juvenile court has broad discretion in crafting a disposition to suit a child’s best interest. (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006.)
To determine whether reunification is in the child’s best interest, the court considers the previously custodial parent’s current efforts, fitness, and history; the seriousness of the problem that led to the dependency; the strength of the parent-child and caretaker-child bonds; and the child’s need for stability and continuity. (In re Allison J. (2010) 190 Cal.App.4th 1106, 1116.) These factors are not exhaustive. In a case like H.S.’s, the strength of the noncustodial parent’s bond with the child may be crucial in future custody decisions and should be nurtured through the provision of services. (See § 361.2, subd. (b)(3) [authorizing court to “order that services be provided solely to the parent who is assuming physical custody in order to allow that parent to retain later custody without court supervision”].) “The concept of a child’s best interest ‘is an elusive guideline that belies rigid definition. Its purpose is to maximize a child’s opportunity to develop into a stable, well-adjusted adult.’ ” (In re Ethan N. (2004) 122 Cal.App.4th 55, 66.) When the child is placed with the previously noncustodial parent, the previously custodial parent no longer has the same strong and unrivaled claim to reunification services. Now two parents living in separate households are in the picture, and the court’s ultimate role is to determine which, if either, should be granted permanent custody.
In this case, the judge indicated she was impressed with K.S. because he was regularly employed with a good job and lived with other people for support, including H.S.’s paternal grandmother. With K.S. identified as the parent most likely able to offer H.S. a safe home, it was important to help H.S. overcome any discomfort she might feel about living with her father. In a young child like H.S. (then age three), while she may have had a bond with Mother, the bond may not have been as enduring as in an older child. Therefore, reducing the emphasis on reuniting Mother and H.S. would not be expected to cause H.S. great anguish. H.S., in fact, would probably be unaware of any change in Mother’s reunification efforts aside from visitation.
Moreover, it appears Mother overstates the superior strength of her bond with H.S. Mother had custody of H.S. for perhaps eight or nine months in the year before the disposition hearing. But K.S. also had custody of H.S. for at least four months, and by other accounts as many as eight to eleven months. Thus, Mother was not the only caregiver H.S. had known. It is not surprising Mother had a good relationship with H.S., but the question for the juvenile court was whether continuing to nurture that relationship would be in H.S.’s best interest and to what extent that objective should be prioritized. The county clearly had an interest in promoting and reinforcing K.S.’s relationship with H.S., as he was expected to be the custodial parent going forward. The trial court could have concluded the K.S.–H.S. bond could best be nurtured by allowing the Mother-H.S. bond to recede for a time, or at least to go untended by the government. We cannot say its decision was an abuse of discretion.
D. The Court Did Not Abuse Its Discretion By Modifying Mother’s Visitation Schedule
Mother also contends the juvenile court abused its discretion by reducing her visitation with H.S. from one hour per week to one hour four times a month. She points out she had a consistent record of positive visits with her daughters. The Bureau correctly asserts, however, that she forfeited this issue by failing to raise it in the juvenile court. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338.)
In any event, the modified visitation order amounts to allowing 48 visits per year instead of 52 visits. Imposing this de minimis reduction was not an abuse of discretion. (In re K.B., supra, 239 Cal.App.4th at p. 981 [abuse of discretion standard applies]; In re Nada R., supra, 89 Cal.App.4th at p. 1179 [same].)
III. DISPOSITION
The juvenile court’s orders of March 3, 2017 are affirmed. 





_________________________
Streeter, Acting P.J.


We concur:


_________________________
Reardon, J.


_________________________
Smith, J.*