In re J.V.

Filed 12/2/08 In re J.V. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Fresno County. Jamileh Schwartzbart, Temporary Judge.^*

Hana B. Balfour, under appointment by the Court of Appeal, for Defendant and Appellant.

Janelle E. Kelley, Interim County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.

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J.V., Sr. (father) appeals from an order made November 19, 2007, denying him family reunification services. Father contends that there is insufficient evidence to support the dependency courts findings under Welfare and Institutions Code section 361.5, subdivision (b)(6)^[1]and that the court abused its discretion by not finding in his favor under section 361.5, subdivision (c). He also argues that the court abused its discretion when it denied him visitation rights. We disagree and affirm.

FACTS AND PROCEDURAL BACKGROUND

A dependency petition filed May 8, 2007, pursuant to section 300, subdivisions (a) and (b), alleged that J.V., Jr. (the child), born in January of 2006, had suffered serious physical harmvisible bruises throughout his bodyinflicted non-accidentally by his father, and that father had a substance abuse (marijuana) problem that impaired his ability to supervise and provide for the child. Father had been granted sole custody of the child in March of 2006, by the family law court, after the childs mother (mother) was arrested for domestic violence. Mother had weekend visitation with the child.

On May 4, 2007, mother reported to police that the child had bruises all over his body. Officer Marissa Cisneros responded and, according to her report, witnessed various bruises on the childs face, buttocks, legs, arms, and shoulders. Some of the bruises were purple, others were brown, others yellowish-brown. The officer placed a 300 hold on the child and he was transported to the hospital to check for skull and rib fractures. None were found.

Officer Cisneros and a social worker spoke to father about the childs injuries but were dissatisfied with his explanation. He said that he had spanked the child in the bathtub, and explained that the other bruises were, or must have been, caused by the child falling against his highchair. He also said he did not know how the bruising occurred. Mother reported that she had seen bruising on the child before but never so much bruising as was present on May 4th.

Mother also reported that father used marijuana every day. Father at first denied this but later acknowledged that he did use marijuana regularly and had been using it since he was 12 years old. At the detention hearing, father was ordered to test regularly for controlled substances. In a disposition report dated June 18, 2007, it was reported that fathers tests on May 8, 18, 23, and June 12, 2007, had all been positive for marijuana and the test dated June 12, 2007, had also been positive for opiates.

At the jurisdictional hearing on May 30, 2007, father entered a no contest plea to both the subdivisions (a) and (b) allegations of section 300.

On June 6, 2007, the Fresno County Department of Children and Family Services (the Department) filed a JV‑180 form requesting that the dependency court order no contact between father and the child, based on the recommendation of the therapist Jessica McGowan, who had done a mental health assessment on the child along with his parents. In her report, Ms. McGowan noted that the child present[ed] high anxiety toward bio[logical] father [and] exhibit[ed] hypervigilant symptoms toward bio[logical] father as evidenced by frozen watchfulness, flat affect and startled responses. On June 13, the court made an interim order for no contact between father and the child.

The disposition report dated June 14, 2007, recommended that father be denied reunification services pursuant to section 361.5, subdivision (b)(6). The report concluded that the childs bruises constituted severe physical harm and that father abused substances when he committed the acts. The childs therapist, Ms. McGowan, recommended no contact between the child and father because father did not have empathy for the child and he did not take responsibility for the childs injuries.

A contested disposition hearing was held September 10 and 14, October 3, and November 19, 2007. At the hearing, father submitted a certificate of completion of substance abuse treatment and drug test results, and he provided proof that he was enrolled in a parenting class. Father testified that he was participating in drug testing with his last positive test on July 17, 2007, drug treatment and parenting classes, and that he would soon start anger management classes.

Father testified that he physically didnt cause injury to the child. He did admit that he spanked the child and made a big mistake in doing so, but claimed that the other injuries occurred at various times when the child was being cared for by the mother of fathers other child (who lived with father and J.V., Jr.).

Father testified that he had a substance abuse problem but that he did not have a drug addiction. And although he used marijuana when he had custody of the child, it wasnt a problem because the child was not present when he used it. Later, father testified that he had learned he could never use alcohol or marijuana again.

Father testified the he and the child participated in an assessment with the family therapist (Ms. McGowan), which lasted 30 minutes. During that time, the child cried when father briefly left the room. Father testified that the child ran to him at the beginning of the assessment and grabbed his leg.

Ms. McGowan testified that she was a licensed marriage and family therapist who had participated in the assessment on May 31, 2007, between father and the child. At the assessment, McGowan gave father some tasks to complete, which he did within approximately five minutes. Though she had set aside four hours for the assessment, father did each task very quickly. She then observed father and the child interact in an unstructured setting for 15 to 20 minutes.

McGowan was asked about an e-mail that was introduced, in which McGowan wrote to the social worker (1) that father isnt an appropriate candidate for [any] type of visit. [The childs] distress could easily go unnoticed due to the nature of the relationship, and (2) that father was adamant that the abuse was caused by his other son, who was two and a half years old. McGowan testified that she believed the child had a flat affect and startle responses to father and that father lacked empathy for the child because he was unable to soothe the child when the child approached him. McGowan believed contact with father would be detrimental to the child and that father was not appropriate in the way he related to the child. For instance, father spoke to the child saying, You miss me. I know you love me. Give me a kiss. Here, give me a kiss right here on the cheek. Although the child, after pausing to stare at father, gave him a kiss, McGowan thought it was a red flag, stating, generally at that age children engage in that activity without being told and typically parents dont tell their children to do things such as give me a kiss. Tell me you miss me. McGowan thought father was not really talking to the child at that point but was doing it to impress her.

Rande Wood testified that she was a licensed marriage and family therapist and that she performed a mental health assessment on father on July 3, 2007, for an hour, and a month later for another hour. Wood testified that father told her he spanked the child but that the other bruises were caused when a friend was caring for the child. Wood recommended that father have visitation with the child and that he receive reunification services, because father [took] responsibility, understanding he made a terrible mistake, in his words, that he is horribly remorseful and he has requested any type of help to be a better father to his son. Wood was not aware that father entered a no contest plea to the allegation that he had caused the bruises. She had never seen the child and so, of course, had never seen father and the child interact.

Wood thought that father should have an additional assessment outside of infant mental health and wrote a letter recommending a second opinion regarding McGowans assessment. Wood worked with McGowan often and, according to Wood, it was unusual for the two to disagree. Wood believed McGowan had a conflict of interest because she also treated the child and the mother. McGowan had earlier testified that she was not treating the child with his mother at the time of the assessment.

On November 19, 2007, the dependency court found, by clear and convincing evidence, that section 361.5, subdivision (b)(6) (subdivision (b)(6)) applied and denied father reunification services. In making its ruling that the child came within the provisions of subdivision (b)(6), the court cited the age of the child, the numerous bruises received by the child, and the fact that father denied causing most of the injuries and he had no reasonable explanation as to how the child sustained the injuries. The court found fathers three or four different explanations for how the injuries occurred not credible and found that therapist McGowans testimony was credible. The court was highly skeptical that the child could be returned to father within 12 months considering the pretty staunch denials on [fathers] part in combination with an admitted anger management problem and a lengthy substance abuse problem.

The court further found that no reunification services were to be offered, pursuant to section 361.5, subdivision (c), because father had not established that reunification would be in the childs bests interests. The court noted that it found therapist McGowans testimony compelling. The court also noted therapist Woods lack of contact with the child, that she had never seen father with the child, and that she based her recommendation on the information she received from father.

Father was denied visitation pending additional information from [the childs] new therapist.

DISCUSSION

1. Denial of reunification services pursuant to section 361.5, subdivision (b)(6)

As a general rule, reunification services are offered to parents whose children are removed from their custody, in an effort to eliminate the conditions leading to loss of custody and to facilitate reunification of parent and child. This furthers the goal of preservation of family, whenever possible. (Raymond C. v. Superior Court (1997) 55 Cal.App.4th 159, 163.) But recognizing that it may be fruitless to provide reunification services, the Legislature has enacted provisions for fast-track permanency planning under certain circumstances. (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478.) One such circumstance is where the child has suffered the infliction of severe physical harm. Section 361.5 provides:

(b) Reunification services need not be provided to a parent when the court finds, by clear and convincing evidence, any of the following: []  [] (6) That the child has been adjudicated a dependent 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 .

Our review of the dependency courts findings is limited to considering whether substantial evidence supports the findings. (In re Jasmine C. (1999) 70 Cal.App.4th 71, 75 [findings under  361.5, subd. (b)].) As a reviewing court, we must determine if there is any substantial evidencethat is, evidence which is reasonable, credible and of solid valueto support the conclusion of the trier of fact. (Ibid.) When considering a claim of insufficient evidence on appeal, we do not reweigh the evidence, but rather determine whether, after resolving all conflicts favorably to the prevailing party, and according the prevailing party the benefit of all reasonable inferences, there is substantial evidence to support the judgment. (Scott v. Pacific Gas & Electric Co. (1995) 11 Cal.4th 454, 465, disapproved on other grounds in Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 352, fn. 17.)

Father first argues he did not inflict severe physical harm on the child as required by subdivision (b)(6). In support, he argues that all he did was spank the child and that the childs injuries were never described as anything other than bruises. We disagree with fathers minimization of the childs injuries. A review of the record shows substantial evidence to support the finding that the injuries constituted severe physical harm.

The dependency petition, to which father entered a no contest plea, stated that the child had visible bruises throughout his body which were observed on his legs, arms, face, shoulders and buttocks. The police officers report contained in the jurisdiction report described the officers first observation of the child before he was detained. The report stated that the officer entered the residence and immediately noticed a small, young boy with a large bruise on his face. Upon closer look, the officer described the bruise as a large bluish purple bruise on the right side of [his] face near the temple. She also noticed a brownish yellow bruise appearing to be in two straight lines between the cheek bone and temple; several small bruises [on both arms] all appearing to be brownish in color; numerous bruises approximately five on the right leg and a scratch on the right calf and several more smaller fading on the left; a purplish bluish bruise right below where his diaper lining sits; a large hand print type bruise brownish yellowish color on the minors buttocks; a large dark brownish yellow bruise on his left shoulder; and a half inch scratch on his belly.

Father relies on Deborah S. v. Superior Court (1996) 43 Cal.App.4th 741 to support his assertion that subdivision (b)(6) does not apply to the type of injuries inflicted here. In Deborah S., a child suffered from numerous bruises, lacerations, swellings, an old fracture, a new fracture, scars, missing front teeth, broken blood vessels, and a gash under the chin. (Deborah S., at pp. 744-745.)

Father also relies on Pablo S. v. Superior Court (2002) 98 Cal.App.4th 292, which involved a child who fell and broke his femur. (Id. at p. 294.) His parents failed to obtain any medical attention for him for two months. The childs leg healed in a rotated position, causing him constant pain and rendering him unable to walk. (Ibid.)

But the fact that the injuries listed in Deborah S. and Pablo S. may have been more serious than the injuries here does not dictate a finding that the injuries here did not constitute severe physical harm. The last paragraph of subdivision (b)(6) states:

A finding of the infliction of severe physical harm, for the purposes of this subdivision, may be based on, but is not limited to, deliberate and serious injury inflicted to or on a childs body by an act or omission of the parent .

Nowhere in subdivision (b)(6), or in any other source of which we are aware, is it stated that physical harm is severe only when it is life threatening or when it results in permanent injury. It is, we believe, the indication in this case that father abused the child on a continuing basisbruises of different colors, chronic bruising reported by mother, the childs hypervigilance with his fatherthat supports the proposition that deliberate and serious injury was inflicted on the childs body.

Father also contends that there was insufficient evidence to support the dependency courts finding, pursuant to section 361.5, subdivisions (b)(6) and (h), that reunification services would not benefit the child. Section 361.5, subdivision (h) states:

In determining whether reunification services will benefit the child pursuant to paragraph (6) or (7) of subdivision (b), the court shall consider any information it deems relevant, including the following factors: [] (1) The specific act or omission comprising the severe physical harm inflicted on the child . [] (2) The circumstances under which the harm was inflicted on the child . [] (3) The severity of the emotional trauma suffered by the child . [] (4) Any history of abuse of other children by the offending parent . [] (5) The likelihood that the child may be safely returned to the care of the offending parent within 12 months with no continuing supervision. [] (6) Whether or not the child desires to be reunified with the offending parent .

We are convinced that the dependency courts finding that the child would not benefit from pursuing reunification services is supported by substantial evidence. The court specifically stated that it considered the six factors set forth in section 361.5, subdivision (h) in making its determination. The court found fathers explanation of how the injuries occurred difficult to accept, because father gave three or four different explanations of what occurred. The court stated that, although it did not know the specific act that caused the injuries, the court did not accept fathers version of the events. The court found witness McGowans testimony credible on the severity of the emotional trauma suffered by the child, specifically the childs reaction to father during the assessment. The court noted that there was no testimony of any history of abuse of other children by father. The court stated that it was highly skeptical about the likelihood that the child could be returned within 12 months without continuing supervision in light of pretty staunch denials on [fathers] part in combination with an admitted anger management problem and a lengthy substance abuse problem. And finally, the court noted that although the child was too young to verbalize whether he desired to be reunited with father, his reactions to father, as described by McGowan, do not militate in favor of finding that factor to be helpful to [father].

The childs injuries and fathers denial of what occurred and his tendency to blame others for the injuries the child sustained, his lengthy substance abuse and anger management issues, and his lack of empathy for the child demonstrate that reunification services would not benefit the child. The only factor which favors father is his lack of any prior history of abuse of other children. Based on the facts of this case, set out in detail ante, substantial evidence supports the dependency courts findings that reunification services would not benefit the child.

In sum, there is substantial evidence to support the courts denial of reunification services under section 361.5, subdivision (b)(6).

2. Denial of reunification services notwithstanding section 361.5, subdivision (c)

Father next contends that, even if the requirements of section 361.5, subdivision (b)(6) were met, the dependency court abused its discretion in failing to order reunification services anyway under section 361.5, subdivision (c). It is true that a parent subject to subdivision (b)(6) might still obtain reunification services if the parent proves that those services would be in the childs best interests. Section 361.5, subdivision (c) reads, in relevant part: The court shall not order reunification for a parent described in paragraph (6) of subdivision (b) unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child. It is the parents burden of demonstrating that reunification services would be in the childs best interests. (See In re Ethan N. (2004) 122 Cal.App.4th 55, 65 (Ethan N.).)

In Ethan N., this court listed various factors to be considered in evaluating whether reunification services are nevertheless in the best interest of the child after it is determined that reunification is no longer the objective. Factors include a parents history, current efforts and fitness, the gravity of the problem that led to the dependency, the strength of bonds between both parents and caretakers, and, of paramount concern, the childs need for stability and continuity. (Ethan N., supra, 122 Cal.App.4th at pp. 6668.)

Father argues there was substantial evidence that ordering reunification services for him would have been in the childs best interests. Father argues that he was participating in or had already completed all the services offered to him and that his therapist thought he should have reunification services. He also argues that he admitted he spanked the child, that he was remorseful, and that there was a bond between him and the child, as evidenced by the fact that the child ran to him during the assessment and cried when he tried to leave.

Aside from the fact that father had participated in and completed some of the reunification services offered him, father has not demonstrated that it would in the childs best interest to offer him reunification services. Father repeatedly cast blame on others for the childs injuries and minimized his own role, claiming he gave the child nothing more than a spanking. And although therapist Wood thought father should be given reunification services, she had not seen the child nor observed father and child together. Wood also took fathers word that he was not responsible for the childs injuries, other than the spanking, and she was not aware that father had admitted the allegation that he had caused the injuries.

As stated by the dependency court at the dispositional hearing, fathers denial of causing most of the injuries and his lack of credibility based on the content of his testimony his admitted anger and frustration issues and admitted substance abuse issues were critical to the courts determination that providing reunification services would not be in the childs best interests. And, as stated by the court, although father was making every effort to benefit from the services, the critical problems are his denial of the abuse and either his unwillingness to take responsibility or his inability to take responsibility.

Father has failed to establish that the trial court abused its discretion when it denied him reunification services pursuant to section 361.5, subdivision (c).

3. Denial of visitation

When a parent is denied reunification services, the determination of whether to permit visitation lies in the dependency courts discretion. ( 361.5, subd. (f).) The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court. [Citations.] (In re Stephanie M. (1994) 7 Cal.4th 295, 318319.) The abuse of discretion standard warrants that we apply a very high degree of deference to the decision of the juvenile court. (See In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.)

Father argues that there was insufficient evidence to support the finding that visits with the child would be detrimental. But the determination of whether a parent will be allowed visitation when the court does not order reunification services pursuant to section 361.5, subdivision (b)(6) is controlled by subdivision (f), which states, in relevant part, that [t]he court may continue to permit the parent to visit the child unless it finds that visitation would be detrimental to the child. (Italics added.) Thus, where the parent is not receiving reunification services, a visitation order is not required even in the absence of evidence of detriment.

This distinction is based on the idea that visitation is an essential part of a reunification plan.

In order to maintain ties between the parent or guardian and any siblings and the child, and to provide information relevant to deciding if, and when, to return a child to the custody of his or her parent or guardian, or to encourage or suspend sibling interaction, any order placing a child in foster care, and ordering reunification services, shall provide as follows: [] (1)(A) Subject to subparagraph (B), for visitation between the parent or guardian and the child. Visitation shall be as frequent as possible, consistent with the well-being of the child. ( 362.1, subd. (a)(1)(A).)

Therefore, when reunification services are being provided, it is error to deny visitation with the parent to whom the services apply unless there is sufficient evidence that visitation would be detrimental to the child. (In re Jonathan M. (1997) 53 Cal.App.4th 1234, 1237, disapproved on other grounds in In re Zeth S. (2003) 31 Cal.4th 396, 413-414.)

But visitation is not integral to the overall plan when the parent is not participating in the reunification efforts. This reality is reflected in the permissive language of section 361.5, subdivision (f). In any event, even if the dependency court was required to order visitation in the absence of a finding of detriment, the facts upon which the court relied are sufficient to establish that visitation would be detrimental to the child.

The dependency court found detriment to the child based on witness McGowans testimony. McGowan testified that she absolutely did not support contact between father and the child because such contact evoked fear, distress, high anxiety and hypervigilance toward [the childs] environment as well as toward [father]. McGowan opined that fathers contact with the child would negate any progress that had been made to date. The court denied visitation pending additional information from [the childs] new therapist.

In sum, father has not established that the dependency court abused its discretion in denying him visitation with the child at this point.

DISPOSITION

The dependency courts orders are affirmed.

__________________________

DAWSON, J.

WE CONCUR:

________________________________

GOMES, Acting P.J.

________________________________

HILL, J.

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^*Pursuant to California Constitution, article VI, section 21.

^[1]All further statutory references are to the Welfare and Institutions Code unless otherwise stated.