Filed 9/10/26 In re L.W. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re L.W. et al., Persons Coming Under
the Juvenile Court Law.
SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES, E087430
Plaintiff and Respondent, (Super. Ct. Nos. J304395-J304399)
v. OPINION
K.D. et al.,
Defendants and Appellants.
APPEAL from the Superior Court of San Bernardino County. Annemarie G. Pace,
Judge.
Megan Turkat Schirn, under appointment by the Court of Appeal, for Defendant
and Appellant, L.W.
Jack A. Love, under appointment by the Court of Appeal, for Defendant and
Appellant, K.D.
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Laura Feingold, County Counsel, and Landon Villavoso, Deputy County Counsel,
for Plaintiff and Respondent.
I.
INTRODUCTION
Defendants and appellants, K.D. (Mother) and L.W. (Father) appeal the juvenile
court’s dispositional order denying them reunification services with their five minor
dependent children under Welfare and Institutions Code section 361.5, subdivisions
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(b)(5) and (6). We affirm.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Mother and Father have five children: L.W., M.W., N.W., J.W., and A.W. They
came to the attention of plaintiff and respondent, the San Bernardino Children and Family
Services (CFS) when Father brought then-two-month-old A.W. to the hospital, with
apparent pain in his right arm, which he could not move. Hospital staff determined
A.W.’s right arm was fractured, and he had several healed fractures in his left and right
wrists and knee. The right arm fracture was consistent for abuse because it could only
have been caused by being pulled hard. CFS thus began investigating the family.
CFS interviewed the parents and the paternal grandmother, all of whom denied
any abuse of A.W. When then-five-year-old M.W. was interviewed, however, she
reported that Father disciplined her by spanking her with a sandal. She also reported that
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All further statutory references are to the Welfare and Institutions Code.
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although Father did not physically discipline A.W. or J.W. (then one year old), he did
physically discipline L.W. (then nine years old) and N.W. (then three years old).
Given A.W.’s multiple fractures in different stages of healing, CFS obtained a
removal warrant for the children. CFS then filed a petition on their behalf, alleging A.W.
suffered serious, nonaccidental bodily harm while in the parents’ care, which placed the
children at a substantial risk of serious harm. After a detention hearing, the juvenile court
ordered the children removed from the parents’ care and custody, and set the matter for a
combined jurisdiction/disposition hearing.
During CFS’s subsequent investigation, a social worker spoke with a physician
who examined A.W. The physician found a fracture on the child’s upper right arm and on
the lower left arm near the wrist, both of which were suspicious for abuse. The left arm
fracture was the result of a hard pull and had occurred about two to three weeks before
the right arm fracture.
The Children’s Assessment Center performed a suspected abuse examination on
A.W. The examiners concluded that A.W. suffered a fracture on his right arm with no
evidence of healing and a fracture on his left arm with evidence of healing, both of which
were caused by a forceful grab or bend of the arm. The different stages of healing
indicated multiple episodes of trauma or abuse. A.W. also had a scar on his shoulder
appeared to have been caused by a nonaccidental use of fingernails.
San Bernardino Police also interviewed Mother. She reported that she knew
Father used a belt as a form of discipline on L.W., M.W., and N.W. When Father was
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hitting one of the children with the belt, Mother would remove the other children from
the room. Mother claimed she never saw Father hit the children with the belt, but knew
that he did from the marks left on their backs. Mother had tried to stop Father from using
the belt, but he refused.
When CFS interviewed N.W., she said that Father broke A.W.’s “hand,” but did
not want to give any further details. She also said Father hit her and M.W. with a belt,
which was consistent with scars found on N.W.’s legs/thighs.
M.W. likewise told CFS that Father hit her with a belt, which was consistent with
scars on her thigh. She also said that Father told her that he had broken A.W.’s arm, but
refused to provide further details because she and her siblings “don’t get in trouble” with
their Father.
CFS then filed first amended petitions on behalf of the children. The amended
petition on A.W.’s behalf added allegations under section 300, subdivisions (e) (serious
physical abuse) and (j) (neglect of sibling). The petition alleged that A.W. suffered
serious bodily harm (the arm fractures), which was inflicted non-accidentally while in the
parents’ care. The petition also alleged that Father physically abused N.W. and M.W.,
causing them injuries and scarring on their legs and thighs.
The amended petitions on J.W. and L.W.’s behalf added an allegation under
section 300, subdivision (j), concerning the serious physical abuse of A.W. CFS later
filed second amended petitions on J.W. and L.W.’s behalf, which alleged they were at a
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substantial risk of serious harm based on Father’s excessive physical abuse of N.W. and
M.W. (hitting them with a belt).
The amended petitions on N.W. and M.W.’s behalf added the same (j) allegation,
and also added allegations under section 300, subdivisions (a) and (b)(1). Those
allegations stated that Father physically abused N.W. and M.W. with a belt, which
resulted in scarring to their legs and thighs, and Mother knew (or should have known) of
Father’s abuse yet failed to protect them.
After a combined jurisdiction/disposition hearing, the juvenile court made the
following findings on the petitions: (1) as to A.W.’s petition, the court found (a), (b), (e),
and (j) allegations true; (2) as to J.W.’s petition, the court found (b) allegations true; (3) as
to L.W.’s petition, the court found (j) allegations true; (4) as to N.W.’s petition, the court
found (a) and (b) allegations true; and (5) as to M.W.’s petition, the court found (b) and
(j) allegations true.
The parents requested family reunification services, but CFS argued that juvenile
court should bypass services for them under section 361.5, subdivisions (b)(5) and (6).
The court agreed and denied the parents services. The parents timely appealed.
III.
DISCUSSION
The parents contend the juvenile court erroneously denied them reunification
services. We disagree.
1. Applicable Law and Standard of Review
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“Reunification services must be provided to the mother and statutorily presumed
father of children who have been removed from their parents’ custody, unless a statutory
exception applies. [Citations.] The statutory exceptions are contained in subdivision (b)
of section 361.5, which provides that ‘[r]eunification services need not be provided’ if the
court finds ‘by clear and convincing evidence’ that any of 17 enumerated bypass
provisions apply.” (In re A.E. (2019) 38 Cal.App.5th 1124, 1141.)
Section 361.5, subdivision (b)(5), applies if the “child was brought within the
jurisdiction of the court under subdivision (e) of [s]ection 300” because of the parents’
conduct. If subdivision (b)(5) of section 361.5 applies, then the court “shall not order
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reunification” unless the court “finds that, based on competent evidence[ ], those services
are likely to prevent reabuse or continued neglect of the child or that failure to try
reunification will be detrimental to the child because the child is closely and positively
attached to that parent.” (§ 361.5, subd. (c)(3).) “Once the juvenile court determines that
the bypass provision of subdivision (b)(5) of section 361.5 applies, the burden shifts to
the parent to show that services are likely to prevent reabuse.” (In re Raul V. (2022) 82
Cal.App.5th 290, 300 (Raul V.).)
Subdivision (b)(6) of section 361.5 applies if (1) the child was adjudicated a
dependent “as a result of . . . the infliction of severe physical harm to the child, a sibling,
or a half sibling by a parent,” and (2) “it would not benefit the child to pursue
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CFS incorrectly cites and relies on an old version of the statute, which provided
that the juvenile court’s findings had to be based on “competent testimony.”
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reunification services with the offending parent.” (§ 361.5, subd. (b)(6)(A).) If the
statute applies, the juvenile court may not order reunification services “unless the court
finds, by clear and convincing evidence, that reunification is in the best interest of the
child.” (§ 361.5, subd. (c)(2).)
We review the juvenile court’s order bypassing reunification services for
substantial evidence. (Amber K. v. Superior Court (2006) 146 Cal.App.4th 553, 561.) In
doing so, we account for the elevated “clear and convincing” evidence standard.
(Conservatorship of O.B. (2020) 9 Cal.5th 989, 995.)
2. A.W.
The juvenile court properly bypassed services with A.W. under section 361.5,
subdivision (b)(5). Jurisdiction is proper under section 300, subdivision (e) when a child
under five years old has suffered severe physical abuse by a parent, or someone known
by a parent. (In re A.T. (2026) 120 Cal.App.5th 1284, 1287.) The juvenile court found,
by clear and convincing evidence, that jurisdiction over A.W. was proper under section
300, subdivision (e). Because neither parent challenges that finding on appeal, they also
do not “challenge the juvenile court’s finding by clear and convincing evidence that
subdivision (b)(5) of section 361.5 applies.” (Raul V., supra, 82 Cal.App.5th at p. 300.)
As a result, the juvenile court had to bypass reunification services to the parents
unless the court made the necessary countervailing findings under subdivision (c)(3) of
section 361.5—that services would be likely to prevent reabuse, or that failure to order
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services would be detrimental to A.W. The parents had the burden of making either
showing. (Raul V., supra, 82 Cal.App.5th at p. 892.)
When, as here, a parent argues the juvenile court erroneously found that the parent
has not met its burden under section 361.5, subdivision (c)(3), the parent then has the
burden on appeal of showing that the evidence “compels a finding in [their] favor as a
matter of law.” (Raul V., supra, 82 Cal.App.5th at p. 301.) In other words, the parents
must show that the evidence supporting their position “‘was (1) “uncontradicted and
unimpeached” and (2) “of such a character and weight as to leave no room for a judicial
determination that it was insufficient to support a finding”’” (ibid.) that they had met their
burden of showing that services would be likely to prevent reabuse, or that failure to
order services would be detrimental to A.W.
As to services likely preventing reabuse, the parents cannot meet their burden
because, as the juvenile court noted, “neither parent has acknowledged responsibility for
[A.W.’s] injuries, either for themselves or the other parent.” (See Raul V., supra, 82
Cal.App.5th at p. 301 [mother’s failure to take responsibility for child’s injuries showed
further services were not likely to prevent future abuse]; In re A.E., supra, 38 Cal.App.5th
at p. 1142 [“Although there was evidence that both Mother and Father were actively
engaged in services, there was no prospect of any substantive progress in addressing the
issues that led to the children’s removal, because both Mother and Father continued to
deny that they had ever abused the children.”]; In re A.M. (2013) 217 Cal.App.4th 1067,
1077 [“there are no services that will prevent reabuse by a parent who refuses to
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acknowledge the abuse in the first place”].) The fact that the parents did not take full
responsibility for A.W.’s injuries, which the juvenile court reasonably found were
inflicted by Father, supported a reasonable inference that reunification services would not
be likely to prevent reabuse. (Raul V., supra, at p. 301.) That, without more, shows that
the record does not compel a contrary finding in the parents’ favor.
The juvenile court did not make a finding as to whether denying reunification
services would be detrimental to A.W. because he is “closely and positively attached” to
his parents. In any event, we may reverse only if the record compels a finding in the
parents’ favor as a matter of law. (Raul V., supra, 82 Cal.App.5th at p. 301.) It does not.
As Mother acknowledges, there is little evidence in the record about the children’s
relationship with her. There is likewise little evidence in the record about the children’s
relationship with Father. More to the point, neither of them points to any evidence in the
record about their relationship with A.W., presumably because he was only two months
old when CFS became involved. On this silent record as to the parents’ relationship with
A.W., the parents fail to show, as they must, that the record compels a finding that
denying reunification services with A.W. would be detrimental to him because he is
“closely and positively attached” to them. (See In re Raul V., supra, 82 Cal.App.5th at p.
301.)
As a result, the juvenile court properly denied the parents reunification services
with A.W.
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3. The Other Children
The juvenile court also properly denied the parents reunification services with
L.W., N.W., M.W., and J.W. under section 361.5, subdivision (b)(6).
As explained above, the juvenile court properly found that jurisdiction over A.W.
was proper under section 300, subdivision (e) given that the court properly found Father
nonaccidentally caused A.W. to suffer two arm fractures. A.W. was thus adjudicated a
dependent “as a result of . . . the infliction of severe physical harm to the child, a sibling,
or a half sibling by a parent.” (§ 361.5, subd. (b)(6); § 361.5, subd. (b)(6)(C) [severe
physical harm includes “deliberate and serious injury”].) The juvenile court thus properly
bypassed services for the parents if the court properly found, by clear and convincing
evidence, that “it would not benefit the child[ren] to pursue reunification services” with
the parents (§ 361.5, subd. (b)(6)(A)). If the court did so, then it had to deny
reunification services unless it found, by clear and convincing evidence, that reunification
is in the children’s best interests (§ 361.5, subd. (c)(2).) The parents bear the burden of
making this showing. (In re T.R. (2023) 87 Cal.App.5th 1140, 1148.)
The juvenile stated that, “[w]ith respect to (b)(6),” it was “not to order
[reunification] services unless there’s clear and convincing evidence that reunification is
in the best interest of the children.” The court thus found that bypassing was appropriate
under section 361.5, subdivision (b)(6), unless the exception in section 361.5, subdivision
(c)(2) applied (“that reunification is in the best interest of the child”). The court found
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that was not “the case here.” We review this finding for an abuse of discretion. (See In
re Baby Boy H. (1998) 63 Cal.App.4th 470, 474.)
Because the juvenile court found that the parents failed to meet their burden of
proving the 361.5, subdivision (c)(2) exception to bypass, they have to show on appeal
that the evidence compels a contrary finding in their favor as a matter of law. On this
record, they cannot do so.
The court reasoned that “the physical abuse of a number of the children and the
severity [of] the injuries to a child who was under four months old at the time of the
injuries,” and the fact that some of the children suffered scarring because of Father’s
abuse showed that reunification services were not in the children’s best interests. We find
no abuse of discretion in that reasonable finding, particularly given that the parents
refused to accept responsibility for A.W.’s serious injuries, which suggested that
reunification services were unlikely to prevent any reabuse of any of the children. Nor
can we say that the record compels us to find otherwise as a matter of law. As a result,
we conclude the juvenile court properly denied the parents reunification services with
L.W., N.W., M.W., and J.W.
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IV.
DISPOSITION
The juvenile court’s jurisdictional and dispositional findings and orders are
affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
MILLER
Acting P. J.
RAPHAEL
J.
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