Francisco M. et al. v. Super.
Filed 1/23/13 Francisco M. et al. v. Super. Ct. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
SECOND APPELLATE
DISTRICT
DIVISION SIX
FRANCISCO
M. and SUSANA G.,
Petitioners,
v.
THE
SUPERIOR COURT
OF SANTA BARBARA
COUNTY,
Respondent;
SANTA
BARBARA COUNTY
CHILD WELFARE SERVICES,
Real Party in Interest.
2d Civil No. B244169
(Super. Ct.
Nos. J1396000)
(Santa Barbara
County)
Francisco M. (presumed
father) and Susana G. (mother) seek extraordinary relief from a September 19, 2012
order denying reunification services
and setting a permanency planning hearing for their son F.G. after the juvenile
court found that F.G. suffered severe physical
abuse while in their care. (Welf.
& Inst. Code, §§ 300, subd. (e) 361.5, subd. (b)(5).)
writ.
History
Eleven-month-old F.G.
was detained on May
3, 2012, after Oxnard Police responded to a
call that he was being physically abused at home. F.G. had cuts on the back of his head,
bruises on the face, cheeks and jaw line, bite marks, "claw marks" to
the ear, and a burn on the right side of his knee. Father was arrested for being under the
influence of methamphetamine. The
detention report noted that the family was living in a room with a bare
mattress on the floor, open beer cans, and holes in the wall.
On May 8, 2012,
Ventura
County Human Services Agency filed a dependency petition for failure to
protect (§ 300, subd. (b)) and severe physical abuse (§ 300, subd. (e)). The petition stated that the parents had a
history of substance abuse and domestic violence that included a February 8,
2012 incident in which father punched mother unconscious while she was holding
F.G. After the incident, mother refused
to follow the safety plan, moved to Lompoc,
and F.G. was injured again.
Jurisdiction
Hearing
Mother waived trial and
father submitted on the jurisdiction report which included police reports,
medical records, photos, and incident reports documenting F.G.'s severe
physical abuse. The Ventura County Superior Court found F.G. to be a child
described by section 300, subdivisions
(b) and (e) and transferred the case to
Barbara County for disposition.
(§375; Cal. Rules of Court., rule 5.610.)
Disposition Hearing
After the transfer,
(CWS) submitted a disposition report recommending reunification services. The report, however, did not investigate
"the circumstances leading to the removal of the child and advise the
court whether there are circumstances that indicate that reunification is
likely to be successful or unsuccessful and whether failure to order
reunification is likely to be detrimental to the child." (§361.5, subd. (c); see Cont.Ed.Bar, (2012)
Cal. Juvenile Dependency Practice §5.55, p. 375.)
In an August 22, 2012
addendum report, CWS recommended that
mother and father not be provided services (§ 361.5, subd. (b)(5)) and the
trial court calendar a section 366.26 hearing.
The addendum report stated:
"Due to the severity of the physical abuse upon the child, the
parents' continued denial of the physical abuse despite the Juvenile Court's
involvement, the parents' history of substance abuse, the parents' history of
domestic violence and initial denial of domestic violence between each other, and
the father's inconsistent visitation with the child, it is believed that Family
Reunification services are not likely to prevent reabuse or continued neglect
of the child."
The report noted that
mother was living with father and wanted to continue the relationship. F.G.'s prognosis was guarded and he
"remains at risk for abuse, neglect, victimization, exploitation, or of
developing more severe symptoms without intervention." F.G. had gross motor coordination problems
and "appeared apathetic, inattentive, unspontaneous, detached," and
unable to maintain eye contact.
At a September 19, 2012
contested hearing, a visitation case aide testified that F.G. was not bonded or
attached to his parents and had a blank expression at visits. Evidence was received that father had
missed supervised visits and drug tests, and never said that he would attend
domestic violence counseling. The case
worker testified that mother and father were in denial about physically abusing
F.G. and have not "owned up to the domestic violence. . . ."
Citing section
361.5, subdivision (b)(5), the trial court denied services on the ground that
F.G. had suffered severe physical abuse and it was unlikely that reunification
services would prevent F.G.'s reabuse.
Discussion
Our review begins and
ends with a determination whether there is any substantial evidence,
contradicted or uncontradicted, that supports the trial court's order. (In re Joshua H. (1993) 13 Cal.App.4th 1718, 1728.) We do not reweigh the evidence or consider matters
of credibility. (In re E.H. (2003)
108 Cal.App.4th 659, 669.)
Section 300, subdivision
(e) provides in pertinent part that a child comes within the jurisdiction of
the juvenile court where: "The
child is under the age of five years and has suffered severe physical abuse by
a parent, or by any other person known by the parent, if the parent knew or
reasonably should have known that the person was physically abusing the
child. For the purposes of this subdivision,
'severe physical abuse' means any of the following: any single act of abuse
which causes physical trauma of sufficient severity that, if left untreated,
would cause permanent physical disfigurement, permanent physical
disability, or death; . . . or more than one act of physical abuse, each of
which causes bleeding, deep bruising, significant external or internal
swelling, bone fracture, or unconsciousness . . . ." (Emphasis added.)
Section 361.5,
subdivision (b)(5) provides that reunification services need not be provided
when the court finds by clear and convincing evidence "[t]hat the child
was brought within the jurisdiction of the court under subdivision (e) of
Section 300 because of the conduct of that parent or guardian." The parent need not have actual or
constructive knowledge that the child in fact suffered severe physical abuse in
order to fall within the statutory definition.
(In re E. H., supra,
108 Cal.App.4th at pp. 669-670: Cont.Ed.Bar , supra, Cal. Juvenile Dependency Practice, § 3.12, p. 173.)
The Petition
Father argues that the
petition do not meet the legal definition of severe physical abuse. Father waived the issue by not challenging
the petition at the detention or jurisdiction hearing. He is precluded from challenging the legal
sufficiency of the petition for the first time on appeal. (In re S.O. (2002) 103 Cal.App.4th
453, 460.)
Evidence of Severe
Physical Abuse
Father asserts that the
physical abuse was not severe enough to potentially cause permanent
disfigurement or disability within the meaning of section 300, subdivision
(e). Even if bruises and scratches are
not tantamount to broken bones or life threatening injuries, a third degree burn
suffices.
In May 2012, mother told
the police that she was "'in a rush'" and poured boiling water into
F.G.'s bottle. Mother wedged the bottle
between F.G.'s knees and the car seat.
The bottle was so hot that caused third degree burns on the right side
of his knee even though F.G. had jeans and a blanket on. Mother stated that F.G. "cried during
the ride from Lompoc
to Santa Barbara and she just assumed he didn’t want to be in the car seat.
" When they arrived in Santa
Barbara for a medical
appointment, the burns were treated.
Father argues that the
medical evaluation, conducted months later, reflects minor bruises, lumps, and
scratches but no traumatic injuries or
bone fractures or dislocations. A
May 3, 2012
emergency room report states that F.G. had a "small approximately 1 x 1 cm
old burn scar on the right thigh. . . ."
The fact that the third degree burn was treated months earlier and left
a scar supports the finding of severe physical abuse. A third degree burn is defined as the
"total destruction of the skin and underlying tissue." (Johnson v.
Havener (6th Cir. 1976) 534 F.2d
1232, 1233; Webster's Collegiate Dictionary (10th ed. 1999) p. 1226.) It is common knowledge that a serious burn,
even when treated, can result in permanent scarring, i.e., a "permanent
physical disfigurement" as defined by section 300, subdivision (e).
Mother waived trial at
the jurisdiction hearing. Father
submitted on the jurisdiction report and presented no evidence contesting the
severe physical abuse allegation. It was
tantamount to a plea of "no contest" and "admits all matters
essential to the court's jurisdiction over the minor. Accordingly, by their knowing and voluntary
acquiescence to the allegations of the petition, parents waived their right to
challenge on appeal the legal applicability of section 330(e) to their
conduct." [Citations.]" (In
re Troy Z. (1992) 3 Cal.4th 1170, 1181.)
On the merits, the evidence shows, by mother's own admission, that F.G.
suffered severe physical abuse (i.e., a third degree burn) while in her care.
Bypass of Services
Father
argues that the order denying services must be reversed because the trial court
did not find by clear and convincing evidence that F.G. suffered severe
physical abuse "because of the conduct of that parent." (§361.5,
subd. (b)(5).) The trial court
stated: "I don't have to pick
between the parents to say which particular injury or cause of injury; it's
enough that they caused it or should have known it was being caused." This is a correct statement of the law. " '[C]onduct' as it is used in section
361.5, subdivision (b)(5) refers to the parent in the household who knew or
should have known of the abuse, whether or not that parent was the actual
abuser.' [Citation.]" (In re L.Z. (2010) 188
Cal.App.4th 1285, 1292.) There is no
question that R.G. suffered severe physical abuse.
Due Process
Mother argues that she
was denied due process because she was
led to believe she would receive services after the case was transferred to
Santa Barbara County. The first
disposition report filed by CWS was deficient because it failed to "advise
the court whether there are circumstances that indicate that reunification is
likely to be successful or unsuccessful and whether failure to order reunification
is likely to be detrimental to the child."
(§ 361.5, subd. (c).) Where
"the department shows by clear and convincing evidence that the child
falls under §300(e), the assumption is that services will be denied; to grant
them, the court must find that [services] are likely to prevent reabuse and
this finding must be supported by
substantial evidence. [Citation.]" (Cont.Ed.Bar, supra, Cal. Juvenile Dependency Practic, §5.55, p. 376; see Raymond C. v. Superior Court (1997) 55 Cal.App.4th 159, 163-164.)
Mother was represented
by counsel and knowingly and voluntarily waived trial at the jurisdiction
hearing. There was no representation
that mother would receive services nor has mother cited any authority that she
has a due process right to services.
"Other courts have considered - and rejected - due process
challenges to section 361.5, subdivision (b). [Citations.]" (In re Allison J. (2010) 190
Cal.App.4th 1106, 1113; see In re Joshua M. (1998) 66 Cal.App.4th 458,
473 [section 361.5, subdivision (b) is "constitutional on its face'"
and comports with substantive due process].)
Mother and father intend
to continue a relationship plagued by domestic violence and substance
abuse. It is uncontroverted that F.G.
suffered severe physical abuse while in their care and has been exposed to
repeated physical abuse. The trial court
did not err in denying services and setting the matter for a section 366.26
permanent placement hearing.
The petitions for
extraordinary relief are denied.
NOT TO BE PUBLISHED.
YEGAN,
J.
We concur:
GILBERT, P.J.
PERREN, J.
Arthur
A. Garcia, Judge
Superior
Court County of Santa Barbara
______________________________
Madeleine Nantze, for
Petitioner.
Richard Martinez, for
Petitioner.
name="_ftn1" title="">[1] All statutory references
are to the Welfare and Institutions Code.
