C.S. v. Superior Court CA4/2 ( 2023 )

Filed 5/30/23 C.S. v. Superior Court CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
C.S. et al.,
Petitioners, E080818
v. (Super.Ct.Nos. J290945, J090946,)
J290947 & J294367)
THE SUPERIOR COURT OF
SAN BERNARDINO COUNTY, OPINION
Respondent;
SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES,
Real Party in Interest.
ORIGINAL PROCEEDINGS; petition for extraordinary writ. Steven A. Mapes,
Judge. Petition denied.
Serobian Law, Inc., Liana Serobian for Petitioner C.S.
Moore & Associates, Dennis Moore for Petitioner N.C.
No appearance for Respondent.
1
Tom Bunton, County Counsel, David Guardado, Deputy County Counsel for Real
Party in Interest.
C.S. (Mother) petitions for extraordinary writ review of an order setting a hearing
under Welfare and Institutions Code section 366.26. (Welf. & Inst. Code, §§ 366.26,
subd. (l) [unlabeled statutory citations are to this code]; Cal. Rules of Court, rule 8.452.)
N.C. (Father) joins in Mother’s petition.
At the jurisdiction and disposition hearing, the juvenile court took jurisdiction over
the parents’ children under section 300, subdivisions (a), (b), (e), and (j). The court then
removed the children from the parents’ custody, denied the parents reunification services,
denied them visitation, and set the section 366.26 hearing. Mother challenges the
sufficiency of the evidence supporting the jurisdictional findings, the removal order, and
the visitation order. She also argues that the court violated section 361.3 by failing to
give preferential consideration to relatives’ requests for placement. We conclude that
Mother’s arguments lack merit, and we accordingly deny the petition. 1
BACKGROUND
I. Referral and Detention
The family came to the attention of San Bernardino County Children and Family
Services (CFS) in October 2021. CFS received a referral alleging physical abuse of the
1 Before Mother filed her writ petition, she requested a stay of the section 366.26
hearing, which is scheduled for June 12, 2023. We denied that request for a stay on
April 6, 2023. Mother’s petition again asks us to stay the section 366.26 hearing. We
deny the second request for a stay, as Mother has not made “an exceptional showing of
good cause.” (Cal. Rules of Court, rule 8.452(f).)
2
parents’ three-week-old daughter, A.C. A.C. had been admitted to the hospital and had
parietal bone fractures on both sides of her skull, subdural hematomas on both sides of
her head, microhemorrhages in her brain, three “‘corner fractures’” on her right leg, and
subconjunctival hemorrhaging in her eye. According to Dr. Komal Aziz, who performed
A.C.’s forensic exam, corner fractures are caused by pulling or twisting. Subconjunctival
hemorrhaging usually is caused by applying pressure to the chest or squeezing the chest
of the child. Dr. Aziz opined that A.C.’s injuries were caused by blunt force trauma,
shaking, and/or falling from a significant height.
The social worker interviewed Mother and Father separately, and both parents said
that they did not know how A.C. was injured. They denied harming the child or dropping
her. The family lived with the maternal grandparents, but the parents had not left A.C.
alone with the maternal grandparents. The parents reported that five days ago, they
noticed a bump on the child’s head. The next day, Mother noticed redness in the child’s
eye and on the side of her face. The day after that, the parents took the child to her
pediatrician, who advised them to take A.C. to the emergency room as soon as possible.
The parents took A.C. to the emergency room the following evening, after Father got
home from work. Mother reported that she did not take the child earlier because Father
had to work and could not drive them, but she acknowledged that she had a driver’s
license and another car at home.
A deputy with the San Bernardino County Sheriff’s Department also interviewed
the parents. Mother denied harming A.C. and denied any knowledge of others harming
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the child. Father initially denied harming A.C. and denied knowing the cause of her
injuries. But after further questioning, he reported that he dropped the child. He said that
he lost his grip on her head when he was holding her, and her head hit a chair. The
deputy recorded father reenacting the scene with a doll and showed the video to Dr. Aziz.
According to the doctor, A.C.’s injuries were not consistent with Father’s explanation.
CFS asked the parents to bring their two other children, five-year-old A.A. and
one-year-old E.C., to the hospital for assessment. E.C.’s x-rays showed fractures to the
back of her ribs, which were indicative of pressure applied through squeezing. A.A. had
no injuries. The court issued a protective custody warrant to detain the children, and CFS
placed them with a relative on an emergency basis.
CFS filed petitions alleging that A.C. and E.C. were described by subdivisions (a),
(b), (e), and (j) of section 300 and that A.A. was described by subdivisions (a) and (j) of
section 300. The petitions alleged that A.C. and E.C. had suffered physical abuse while
in the parents’ care, the parents failed to protect the children from physical abuse, and the
parents failed to provide them with necessary medical treatment. As to A.A., the petition
alleged that he was at substantial risk of physical abuse.
In October 2021, the court detained the three children from the parents. The court
found that visitation with Father would be detrimental to the children and denied Father
visitation, but it ordered weekly two-hour visits for Mother.
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II. Jurisdiction and Disposition Report and Addenda
When CFS interviewed the parents for the jurisdiction and disposition report,
Father said that neither he nor anyone in his home caused A.C.’s injuries. Father claimed
that he never told the deputy that he lost hold of A.C.’s head and dropped her, and he
called that account “‘another lie of the investigation.’” He believed that the child’s
injuries were the result of a genetic condition that causes “‘weak bones.’” He said that
the same genetic condition caused the injuries to E.C. and that tests showed E.C. had the
condition. He explained that the parents did not take A.C. to the emergency room
immediately after they saw her pediatrician because the car was not safe and “‘needed
some arrangements,’” and a nurse told them it was fine to take the child the next day.
Mother likewise reported that no one in the home had physically abused the
children. She said that the parents had done their own investigation, and they believed
that the children suffered from osteogenesis imperfecta, a genetic disorder affecting the
bones. She explained that E.C. was born with a fracture, and Mother had a report
showing that the fracture occurred in the womb or at birth. Mother said that she would
provide documentation showing that the condition was genetic. She reported that A.C.’s
pediatrician did not tell the parents to take the child to the emergency room
immediately—the doctor said to go “‘when [they] have time or later on.’”
A.A. spoke with a forensic interviewer. The child disclosed that Father hits E.C.
with his hand, causing her to cry “‘a lot.’” Mother fights and gets angry with Father
when he hits E.C. A.A. disclosed that Father also hits A.A. with his hand.
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CFS obtained Dr. Aziz’s forensic consultation notes for A.C. and E.C. The doctor
concluded that A.C.’s injuries were most consistent with abusive head trauma and
physical abuse. As for E.C., the doctor noted that the healing fractures on her ribs were
typically caused by squeezing or compression of the rib cage or direct blows. Given that
the parents did not provide any history to explain those findings, the doctor concluded
that E.C.’s injuries were highly suspicious for physical abuse. E.C.’s head CT scan also
showed a focal deformity that could represent a remote skull fracture. That was
consistent with Mother’s report that E.C. had a skull fracture around the age of one and
one-half to two months. Both parents denied a family history of fragile or easily broken
bones.
CFS also obtained the deputy’s written report of his interviews with the parents.
The interviews were audio and video recorded. During the first 40 minutes of the
interview, Father denied knowing how A.C. sustained her injuries. He eventually stated
that A.C. slipped from his hands as he was carrying her to her crib. She hit the left side
of her head on the crib, but he was able to maintain his grasp on her legs. Mother was
asleep in the same room when the incident occurred and awoke when the child began to
cry after hitting the crib. Father gave the child to Mother for feeding and did not tell
Mother what had happened.
CFS referred E.C. for genetic testing. According to the geneticist’s report, “[n]o
clinically relevant alterations [were] detected.” E.C.’s testing revealed a single variant of
“uncertain clinical significance” in a particular gene. Pathogenic variants in that gene
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were associated with a bone disorder called autosomal recessive osteopetrosis type 7.
Even if the variant identified in E.C.’s gene were reclassified to pathogenic in the future,
E.C. would be considered only a carrier of the condition. The geneticist determined that
the single variant of uncertain clinical significance was “not expected to explain [E.C.’s]
history of fractures.” If testing had identified an underlying genetic diagnosis for E.C.’s
history of fractures, then the lab would have conducted testing on A.C., given that the
children were “full sisters with a similar clinical history.” But because E.C.’s results did
not identify anything, A.C. did not undergo testing. Dr. Aziz reviewed E.C.’s genetic
testing results and reported that they did not change the doctor’s forensic opinion.
Mother’s visits with the children initially went well, and CFS reported no safety
concerns. CFS had moved the children from a maternal cousin’s home to a foster care
placement with nonrelatives, and the caregiver was supervising visits. At a recent visit,
A.A. did not want the caregiver to leave when she dropped him off; he asked the
caregiver how long she would be gone, where she was going, and when she would be
back. He hugged her tightly and stood close to her as she tried to leave. The social
worker had to distract A.A. so that the caregiver could slip out. The caregiver reported
that A.A. became emotional and anxious when visits approached. The child told her that
he felt bad about the visits because he did not want to go, and he was worried that the
parents would take him back to their house.
The caregiver was also concerned that Mother had been bringing family members
to visits, and the caregiver did not feel comfortable supervising that many people. The
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social worker advised Mother that she could have one family visit per month with up to
five family members present. Mother became argumentative with the social worker and
asserted that CFS was violating the children’s rights by imposing such a limitation. She
also argued that the limitation should not apply in this case, because she had never signed
a supervised visitation agreement prohibiting her from bringing relatives.
Several weeks later, the social worker agreed to supervise a family visit at the CFS
office, where Mother would be permitted to have a birthday party for E.C. The worker
agreed that Mother could invite a certain number of relatives. Mother arrived two hours
early for that visit and demanded that security allow her into the office to decorate for the
party. She was hostile with security and office staff until the social worker let her in,
right before the appointed time. Approximately 30 people arrived for the party, many
more guests than the social worker had approved. Mother set up speakers and was
playing loud music. E.C. appeared to be afraid of the large crowd and loud music, and
the child frequently ran to her caregiver. During the party, a maternal aunt spoke to A.A.
about the case and promised the child that he would be living with her soon. He told the
caregiver that he was upset he might have to leave her home and live with the maternal
aunt.
Both parents engaged in predisposition services consisting of a 12-week parenting
course, a 12-week anger management program, and eight therapy sessions. The social
worker noted that despite completing those services, the parents continued to deny
responsibility for the injuries to the children. The worker also noted the children had not
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suffered any further injuries since they had been in CFS’s care. According to the report
from Father’s therapist, he could not “accept responsibility for the injuries to his
daughters,” and Father maintained that a genetic disorder caused their injuries. Similarly,
Mother’s therapist reported that Mother denied any physical abuse and was seeking an
expert physician to explore possible genetic issues.
III. Detention of the Parents’ Newborn Child
Mother gave birth to another daughter, Ei.C., in August 2022. On the basis of the
injuries to Ei.C.’s siblings, CFS determined that Ei.C. was also at risk of physical abuse.
The social worker for Ei.C.’s case contacted Mother and told her that CFS would be
seeking a detention warrant for Ei.C. Mother said that she would cooperate, but she
insisted that CFS was wrong about the children being abused. She also insisted that the
social worker for the other children’s case had lied about the genetic testing.
The detention report for Ei.C. stated that according to “collaterals,” Mother told
family members that she would take the children to Mexico if the juvenile court failed to
return the children to her custody. When the social worker executed the detention
warrant, the maternal grandfather gave her genetic testing results for Mother, E.C., and
A.C. The social worker said that she would give the information to the appropriate
people, and the grandfather said that it had already been provided to the attorneys and a
previous social worker.2
2 The social worker did not attach the genetic testing results to Ei.C.’s detention
report. But maternal grandfather later filed a section 388 petition and attached genetic
testing results to that petition. Those results showed that A.C., E.C., and Mother had the
same variant in the gene identified by CFS’s testing. And consistent with CFS’s testing,
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CFS filed a petition alleging that Ei.C. was described by section 300, subdivision
(j), because her siblings were physically abused while in the parents’ care. In September
2022, the court detained Ei.C. from the parents, ordered weekly two-hour visits for
Mother, and denied Father visitation. At the first scheduled visit with Ei.C., Mother
refused to sign the supervised visitation agreement, so the visit did not occur.
IV. Further Addenda to the Jurisdiction and Disposition Report
Around September 2022, the children’s caregiver reported more concerns with
visitation. A.A. became moody when visits were approaching. He often did not want to
attend them, and he cried when it was time to leave for visits. He said that he was
worried about being “‘sent back.’” In addition, A.A. almost never mentioned Father to
the caregiver. At a recent visit, Mother asked him to decorate a sign for Father’s
birthday, and the child’s demeanor changed—he shut down and was sulky for the
remainder of the visit. His caregiver also reported that A.A. had an extreme fear response
to any sort of violence, whether the violence was on television or merely “rough play”
with other children. For instance, A.A. had a panic attack when one of the caregiver’s
children pretended to be hurt, even after it became clear that the child was pretending.
He also had panic attacks when the possibility of getting in trouble arose, like when the
the results stated that the variant was of uncertain significance, meaning that it was “not
known to cause increased risk for a specific condition.” The record in this writ
proceeding does not contain the exhibits admitted at the contested jurisdictional and
dispositional hearing, but it does not appear that the testing results were admitted into
evidence.
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caregivers caught him in a lie or told him not to do something. The caregivers had never
raised their voices with him.
At a pretrial conference in September 2022, the children’s counsel asked that the
court find further visitation with Mother to be detrimental. The court permitted Mother
to testify regarding the recent visitation reports. Mother testified that she asked A.A.
what he wanted to do for Father’s birthday, and she gave him several options. The child
chose to decorate a sign, but it was not true that his demeanor changed after that. On
another occasion, A.A. asked to see his new sister, Ei.C. Mother showed him two
pictures on her phone in which Father was holding the baby. A.A. asked where Father
was at almost every visit. Mother told the child that Father was working. She had never
seen Father hit A.A. or the other children.
The court found that further visitation with Mother would be detrimental to the
children and suspended her visitation. The court observed that it had already found
visitation with Father to be detrimental, Father was the alleged perpetrator of abuse, and
he was not supposed to have contact with the children. Yet Mother was doing things
“with the kids to wrap him into” visits. The court concluded that Mother lacked
protective capacity and that A.A.’s behavior showed visits were detrimental.
V. Contested Jurisdiction and Disposition Hearing
The contested jurisdiction and disposition hearing took place over the course of
numerous days in October and November 2022 and February and March 2023. In the
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following subparts, we summarize the relevant witness testimony and the juvenile court’s
findings and orders.
A. Dr. Aziz’s Testimony
The doctor was completing a three-year fellowship as a child abuse pediatrician.
She started that fellowship roughly three months before she examined A.C. and E.C. She
was already a board-certified general pediatrician. The doctor opined that A.C.’s injuries
were caused by abusive head trauma and physical abuse, and there were multiple
mechanisms of injury. She also opined that E.C.’s injuries were caused by physical
abuse.
A.C.’s skull fractures had characteristics that were consistent with inflicted injury,
not accidental injury or injury from a short fall. The fractures were also indicative of at
least two impacts to the skull. The skull fractures did not show signs of healing, so they
were recent injuries. The bleeding around the child’s brain was significant and also
appeared to be a recent injury. In addition, A.C. had suffered injury to her brain tissue,
which could lead to long-term consequences like developmental delays and
neurocognitive deficits. A.C. had subconjunctival hemorrhaging in her left eye and
bruising on her left eyelid, which was consistent with blunt force impact to the eye. The
subconjunctival hemorrhaging could have been caused by squeezing the rib cage or blunt
force impact. The injuries to her eye and skull would have been caused by different
impacts. The types of fractures to A.C.’s leg are caused by a caregiver shaking a child so
violently that their legs flail around, or by the caregiver pulling or twisting the leg
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forcefully. Follow-up x-rays, which were done 10 days after the initial imaging, showed
an additional fracture on A.C.’s right leg. The doctor opined that the additional fracture
was not inflicted at the hospital because there was no history of trauma at the hospital that
would explain it. The fracture was subtle, and it sometimes required imaging from
different views to pick up such fractures.
Father did not tell Dr. Aziz that A.C. had slipped from his hands when the doctor
talked to the parents about the child’s history. She learned that information later from
law enforcement. That concerned the doctor, because a protective, nonoffending parent
typically does not hide information. Father’s explanation did not provide a plausible
cause of A.C.’s injuries. It would be highly unusual for a child her age to move so
suddenly that she would slip out of her parent’s hold. Also, Father described A.C. hitting
one side of her head on the crib, but that did not explain the injuries on the other side of
her head or a number of other injuries. To date, the parents had not provided a plausible
explanation for A.C.’s injuries.
E.C.’s posterior lateral rib fractures were between two and four weeks old when
the doctor examined the child. Dr. Aziz opined that those injuries were nonaccidental,
given that the parents reported no history to explain them. Rib fractures in a child were
highly specific for abuse when there was no well-documented reason for chest trauma. In
particular, posterior lateral rib fractures are in a protected area of the rib cage and would
be caused by adult-strength abusive force or something like a high-energy car collision.
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The deformity on E.C.’s skull was a type of fracture that was a dent or indentation.
A traumatic birth could cause that type of fracture. As far as the history for the skull
fracture, Mother reported that she noticed the fracture when E.C. was one and one-half to
two months old, and the child’s doctor told Mother that it could have been caused by
birth. Dr. Aziz reviewed E.C.’s medical records concerning the skull injury. The treating
doctor’s notes stated: “‘I think this was probably related to birth issues, but, obviously, I
cannot be sure about that.’”
After reviewing E.C.’s medical records, Dr. Aziz opined that it was very unlikely
E.C.’s skull fracture was birth-related. There was no documentation of any trauma or
complications during labor or delivery, nor was there documentation of any indentation
in the child’s skull at birth. Dr. Aziz concluded that E.C.’s skull fracture was consistent
with physical abuse, because there was no history of birth trauma or another mechanism
to explain the injury. The doctor explained that if caregivers provide no history to
explain an injury, or they provide changing or inconsistent histories, then that commonly
is indicative of inflicted trauma.
When Dr. Aziz interviewed the parents, both of them denied any family history of
fractures (besides E.C.’s skull fracture), broken bones, bone problems, fragile bones, or
an underlying disease or diagnosis that might cause fractures with minor trauma. An
interpreter was not present when Dr. Aziz interviewed the parents. The doctor was aware
that Mother was bilingual and that Father spoke Spanish, so she called for a Spanish
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interpreter. But Mother told the doctor that she was comfortable speaking to the doctor in
English, and Mother said that she could interpret for Father.
Dr. Aziz reviewed the genetic testing conducted in this case, and she did not
believe that there was a genetic explanation for the children’s injuries. The variant found
in one gene was of uncertain significance, meaning that it was not linked to any known
genetic disease or condition.
B. Dr. Thomas Grogan’s Testimony
The parents offered the expert testimony of Dr. Thomas Grogan, an orthopedic
surgeon. Dr. Grogan opined that an impact with a flat surface, not shaking, caused the
fracture on the right side of A.C.’s skull. The fractures on her right leg were caused by
shaking or pulling on the limb. The hemorrhaging in her eye was caused by an increase
in pressure from crying or vomiting, not shaking. A.C.’s skull fracture was three to five
days old when the imaging was done, and her leg fractures were relatively new. The
force required to cause such fractures in a three-week-old baby was about the same as
needed to crush a soda can. E.C.’s rib fracture and skull fracture would have been caused
by about the same amount of force. Dr. Grogan opined that it was unusual for siblings to
have simultaneously suffered fractures with no history to explain them.
C. The Parents’ Testimony
Father testified that the children have a rare genetic mutation about which very
little was known, and further testing was required to learn the significance of the
mutation. Mother had ancestors who suffered sudden fractures with no apparent cause.
15
Father had never hit any of his children. The injuries to the children were the result of
the genetic condition. Father could not point to anything in the normal handling of the
children that would have caused the injuries. The parents were married, and Father
intended to stay in a relationship with Mother.
Mother testified that she was unaware Father had told law enforcement that he
dropped A.C. She did not believe that Father had dropped the child, and she did not
know whether law enforcement was lying. She knew that Father did not cause the
injuries to the children, and she believed that all of the children were safe in his care. Her
daughters had bone dysplasia, so they could suffer bone fractures without application of a
great deal of force. Mother told Dr. Aziz and many people at the hospital that her family
had a history of bone problems. The birthing process in combination with the genetic
condition caused all of A.C.’s and E.C.’s bone fractures. Mother could not say what had
caused A.C.’s eye injury.
Mother said that she would not divorce Father because she wanted her family to
stay together. But if the court returned the children to her, then she would live separately
from him.
D. Social Worker’s Testimony
The social worker spoke to “‘collaterals’” who reported Mother’s statements about
fleeing to Mexico with the children. Those collaterals were the children’s caregivers and
family friends. One of the collaterals overheard the parents arranging to remove the
children from the country in the event that the parents were not permitted to reunify with
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them. The social worker told Mother that she could not give A.A. a cell phone, but
Mother nevertheless tried to give him a phone with the location tracking enabled. The
worker was concerned that it would be unsafe for Mother to know where the children
were placed. The worker asked A.A. how he felt about visits, and the child said that
visits “made his stomach feel funny,” made him worry, and made him feel sad.
Mother had emailed the social worker numerous times, and the emails generally
were inappropriate. In almost every email, Mother called the worker a liar, accused her
of being biased, and accused her of hating Mother.
E. The Court’s Findings and Orders
The juvenile court took jurisdiction over all four children. As to Ei.C., the court
found true that her siblings were physically abused while in the parents’ care, placing her
at substantial risk of similar abuse. (§ 300, subd. (j).) As to A.A., the court found true
that (1) he was at substantial risk of serious physical harm inflicted nonaccidentally by a
parent (§ 300, subd. (a)), and (2) his siblings were physically abused while in the parents’
care, placing him at substantial risk of similar abuse (§ 300, subd. (j)). And with respect
to A.C. and E.C., the court found true that (1) they suffered serious physical harm
inflicted nonaccidentally by a parent (§ 300, subd. (a)), (2) the parents failed to protect
them from abuse and failed to provide A.C. with necessary medical treatment (§ 300,
subd. (b)), (3) the children were under five years old and suffered severe physical abuse
by a parent (§ 300, subd. (e)), and (4) a sibling was physically abused while in the
parents’ care, placing each child at substantial risk of similar abuse (§ 300, subd. (j)).
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In explaining its jurisdictional findings, the court observed that there was a lack of
evidence that the children’s injuries were related to a genetic condition; the genetic
testing showed only a variant of uncertain significance. There also was no evidence of
any injuries since CFS had removed the children from the parents’ custody. The court
gave great weight to Dr. Aziz’s testimony. The parents’ own expert testified that A.C.’s
skull injury was three to five days old, so the child did not sustain that injury during the
birthing process, as Mother claimed. And according to the court, A.A.’s statements and
his response to visits with Mother were also “telling” evidence. The court further relied
on Father’s statements to law enforcement describing how A.C. had slipped from his
hands, which the court characterized as a “confession.” The court did not credit the
parents’ claim that the pediatrician told them that they could delay in taking A.C. to the
emergency room. The court instead concluded that the parents knew that the injuries
would heal with time and the evidence thus would “dissipate.”
With respect to disposition, the court declared the children dependents and
removed them from the parents’ custody. The court also denied the parents reunification
services under section 361.5, subdivision (b)(5), (6), and (7), and it denied the parents
visitation, finding that visitation would be harmful to the children’s safety and/or
emotional well-being. The court set a section 366.26 hearing to select a permanent plan
for the children.
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DISCUSSION
I. Sufficiency of the Evidence Supporting the Jurisdictional Findings
Mother argues that the record does not contain substantial evidence to support the
court’s jurisdictional findings. The argument lacks merit.
A challenge to the sufficiency of the evidence supporting a jurisdictional finding
requires us to determine if substantial evidence, contradicted or not, supports it. (In re
I.J. (2013) 56 Cal.4th 766, 773.) We draw all reasonable inferences from the evidence to
support the finding and review the record in the light most favorable to the court’s
determination. (Ibid.) We do not reweigh the evidence or exercise independent
judgment but merely determine whether the evidence is sufficient to support the finding.
(Ibid.) Moreover, issues of credibility are the province of the juvenile court. (Ibid.)
Mother argues that the court’s findings of physical abuse were not supported
because the evidence shows both accidental and genetic causes of the children’s injuries.
She relies on Father’s statements to law enforcement describing how A.C. slipped from
his hands, the parents’ repeated insistence that Mother had a family history of bone
disorders, and the genetic testing showing a variant in one gene. She also asserts that the
evidence shows A.C. and E.C. sustained new fractures while in the hospital.
But Mother ignores the ample evidence supporting the court’s findings of physical
abuse. A.A. disclosed during his forensic interview that Father hit A.A. and E.C.
According to A.A.’s caregiver, the child had an extreme fear response to any sort of
violence. Moreover, Dr. Aziz concluded that A.C. and E.C. were physically abused.
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A.C.’s multiple injuries were caused by blunt force trauma, shaking, or pulling on the
limb, and the injuries to different parts of her body indicated multiple mechanisms. The
doctor determined that the child’s injuries were not consistent with Father’s description
of how he dropped the child. His description of A.C.’s head hitting the crib did not
explain why she had fractures on both sides of her head, nor did it explain the bruising on
her eye or the hemorrhaging in her eye. And the court was not required to credit Father’s
claims in general. He did not report the dropping incident when Dr. Aziz interviewed the
parents, he said that he did not know how A.C. was injured when CFS initially
interviewed him, and he initially said the same thing to law enforcement. He offered the
explanation for her injuries only after further questioning by the deputy. And he later
attempted to recant his statements, describing them as a “‘lie of the investigation.’” The
court could reasonably conclude from Father’s belated, inconsistent, and changing
explanation that he had harmed A.C. in a nonaccidental manner.
As to E.C., substantial evidence contradicted Mother’s claim that E.C. suffered her
skull fracture during the birthing process. Dr. Aziz testified that there was no indication
in the child’s medical records of trauma or complications during birth, nor was there any
indication that the child had the indentation in her skull at birth. The doctor who
examined E.C. several months after birth stated only that the injury was probably related
to birth, but the doctor could not be sure. And besides the claimed genetic condition, the
parents offered no explanation for E.C.’s rib fractures, which were much more recent
than the skull fracture.
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As for the claimed genetic condition, the court reasonably concluded that the
evidence did not support that explanation. The genetic testing showed a variant of
uncertain clinical significance in one gene. The variant was not linked to any known
genetic disease or condition. Both the geneticist and Dr. Aziz determined that the variant
did not explain the children’s history of fractures. The parents did not offer any medical
evidence to support their claims that the children nevertheless suffered from a genetic
bone disorder. They did not even mention that possibility when Dr. Aziz asked them
about a family history of bone problems or fragile bones.
The record similarly does not support Mother’s claim that the children suffered
new fractures at the hospital. She asserts that E.C.’s rib fractures were new and could
have been caused by handling at the hospital. But according to Dr. Aziz, the rib fractures
were two to three weeks old when she examined E.C. Dr. Grogan, Mother’s expert, did
not say how old the rib fractures were. Dr. Aziz testified that follow-up imaging showed
an additional leg fracture on A.C. 10 days after the initial imaging, but the doctor
explained that multiple images were sometimes required to discover subtle fractures like
that one. Thus, contrary to Mother’s argument, it was not “evident” that handling by
hospital staff caused fractures to the children.
In sum, Mother’s challenge to the jurisdictional findings lacks merit. She fails to
address the ample evidence supporting the court’s findings and contradicting her claims.
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II. Sufficiency of the Evidence Supporting the Removal Order
Mother argues that the record does not contain substantial evidence to support the
dispositional order removing the children from her custody. More specifically, she
contends that the evidence does not support the finding that there no were reasonable
means to protect the children short of removal. We disagree.
To order a child removed from their parents’ physical custody, the juvenile court
must find by clear and convincing evidence that (1) there “would be a substantial danger
to the physical health, safety, protection, or physical or emotional well-being” of the child
in the parents’ home, and (2) “there are no reasonable means by which the [child’s]
physical health can be protected without” removal. (§ 361, subd. (c)(1).) A jurisdictional
finding under subdivision (e) of section 300 constitutes prima facie evidence that a child
cannot safely remain in the custody of a parent with whom the child resided at the time of
injury. (§ 361, subd. (c)(1).)
Section 361 requires the court to consider two options as reasonable means to
protect the child: (1) removing an offending parent from the home, and (2) allowing a
nonoffending parent to retain physical custody, so long as that parent presents a plan
showing that they can protect the child from future harm. (§ 361, subd. (c)(1)(A)-(B).)
We review the court’s removal order for substantial evidence (In re R.T. (2017) 3
Cal.5th 622, 633), taking into account the level of confidence that the “clear and
convincing” standard demands (Conservatorship of O.B. (2020) 9 Cal.5th 989, 995). The
question before us “is whether the record as a whole contains substantial evidence from
22
which a reasonable fact finder could have found it highly probable that the fact was true.”
(Id. at pp. 995-996.) We “view the record in the light most favorable to the prevailing
party below and give due deference to how the trier of fact may have evaluated the
credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable
inferences from the evidence.” (Id. at. p. 996.)
The record contains substantial evidence supporting the removal order in this case.
First, the court took jurisdiction over A.C. and E.C. under section 300, subdivision (e)
(child under age five who has suffered severe physical abuse by a parent). Given that we
have rejected Mother’s challenge to that jurisdictional finding, the finding constitutes
prima facie evidence that the children could not safely remain in Mother’s custody.
Second, regardless of that prima facie showing, more than enough evidence
supports the court’s finding that there were no reasonable means to protect the children
short of removal. Mother relies on the statutory directive that the court must consider
removing an offending parent from the home and argues that the court should have
placed the children with her on the condition that Father live elsewhere.
But the record supports a reasonable inference that allowing Mother to retain
custody and live separately from Father would not have sufficiently protected the
children. Mother was also an offending parent and demonstrated a lack of protective
capacity. She consistently denied that Father had abused the children. She said that she
knew he did not hurt them, and she believed that they were safe in his care. She also
suggested that law enforcement was lying about Father’s admission that he had dropped
23
E.C., despite the video evidence of the interview. While she stated that she was willing
to live separately from Father, both parents said that they intended to remain in a
relationship. Mother in particular said that she wanted the family to stay together. And
there was evidence that Mother was planning to flee the country with the children. All of
that evidence gave rise to a reasonable inference that placement with Mother was not a
reasonable means to protect the children.
Moreover, placement in Mother’s custody under CFS’s supervision would have
required Mother to cooperate fully with the agency, and Mother did not fully cooperate
with CFS. She was hostile with the social worker, accusing the worker of lying and bias.
She refused to abide by visitation rules for bringing family members and invited roughly
30 people to one visit in particular. In connection with that same visit, she arrived two
hours early and was hostile with security and office staff, who would not let her enter
early. And she refused to sign a supervised visitation agreement with respect to Ei.C., so
she was never allowed to visit that child.
Mother also makes a conclusory argument that because she engaged in
predisposition services and visits, reunification was in the children’s best interests. She
does not otherwise challenge the court’s order denying her reunification services.
The court here bypassed reunification services under three different provisions.
(§ 361.5, subd. (b)(5)-(7).) Under two of those provisions, bypass was mandatory unless
the court made a countervailing factual finding, by clear and convincing evidence, that
reunification was in the children’s best interests. (§ 361.5, subds. (b)(6), (7), (c)(2); In re
24
A.E. (2019) 38 Cal.App.5th 1124, 1141.) Under the third provision, bypass was
mandatory unless the court made a countervailing factual finding that (1) reunification
services were likely to prevent reabuse or (2) failure to try reunification would be
detrimental to the children because they were closely and positively attached to Mother.
(§ 361.5, subds. (b)(5), (c)(3).)
The parents bear the burden of proving those countervailing factual findings. (In
re Raul V. (2022) 82 Cal.App.5th 290, 300.) When a parent argues that the juvenile court
erred by failing to make the countervailing factual finding, we ask “‘whether the evidence
compels a finding in favor of the appellant as a matter of law,’ that is, whether the
evidence supporting [the parent’s] 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.”’” (Id. at p. 301.)
We are not persuaded by Mother’s conclusory statement that it was in the
children’s best interests to reunify with her. She does not address the court’s application
of the bypass provisions or show how the evidence compelled a finding in her favor as a
matter of law. We have no duty to develop those arguments for her. (Cahill v. San
Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.) Mother thus forfeited the
argument.
For all of these reasons, we conclude that substantial evidence supports the court’s
removal order.
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III. Visitation Order
Mother argues that the record does not contain substantial evidence to support the
court’s finding that visitation would be detrimental to the children. The argument is
unavailing.
Once the court bypasses reunification services, the court has discretion to permit
visitation. (§ 361.5, subd. (f); In re J.N. (2006) 138 Cal.App.4th 450, 458, 460.) The
court may look to the best interests of the child in exercising its discretion to permit or
deny visitation. (In re J.N., supra, at p. 459.) But if the court finds that visitation would
be detrimental to the child after bypassing reunification services, then the court must
deny visitation. (§ 361.5, subd. (f); In re J.N., at p. 458.) We review the court’s
detriment finding for substantial evidence. (In re Daniel C.H. (1990) 220 Cal.App.3d
814, 838.)
The court bypassed reunification services and thus had discretion to deny Mother
visitation even in the absence of a detriment finding. (In re J.N., supra, 138 Cal.App.4th
at p. 460.) Assuming that there is not substantial evidence to support the detriment
finding, Mother does not explain how the court nevertheless abused its discretion by
denying visitation. Her challenge to the visitation order fails for that reason.
In any event, substantial evidence supports the court’s detriment finding. The
children’s caregiver reported that visits were adversely impacting A.A. He became
anxious, emotional, and moody when visits approached. The child told the caregiver that
he felt bad about visits and did not want to go, and he was worried that the parents would
26
take him home. Similarly, A.A. told the social worker that he worried and felt sad about
visits. The evidence thus showed that visits were detrimental to A.A.’s emotional well-
being.
Moreover, Mother’s conduct demonstrated that she was not sufficiently protective
of the children’s safety and emotional well-being at visits. She refused to agree to the
terms of supervised visitation with Ei.C., so CFS did not permit her to visit that child.
She did not abide by the terms of visitation with the other children when she invited
roughly 30 people to a visit. During that visit, a maternal aunt upset A.A. by promising
that he would be living with her soon. At the same visit, E.C. appeared to be afraid of the
large crowd and loud music that Mother was playing. And at other visits, Mother asked
A.A. to decorate a sign for Father’s birthday and showed him pictures of Ei.C. with
Father. A.A. “shut down” after Mother asked him to decorate the sign for Father.
Mother did not appear to recognize how her attempts to involve Father, the perpetrator of
abuse, affected A.A. That was consistent with her continued refusal to acknowledge that
Father had harmed the children. Mother also tried to give A.A. a cell phone with the
location tracking enabled. The court could reasonably infer from that attempt that
visitation was detrimental to the children’s safety, in view of the evidence that Mother
was contemplating fleeing with the children.
For these reasons, we reject Mother’s challenge to the visitation order.
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IV. Preferential Consideration of Relatives’ Requests for Placement
Mother lastly argues that the court and CFS erred by failing to give preferential
consideration to relatives’ requests for placement. The argument lacks merit.
When the juvenile court removes children from their parents’ custody under
section 361, the court must give “preferential consideration . . . to a request by a relative”
for placement of the children. (§ 361.3, subd. (a).) “‘Preferential consideration’ means
that the relative seeking placement shall be the first placement to be considered and
investigated.” (§ 361.3, subd. (c)(1).) Thus, section 361.3 does not establish a preference
in favor of placement with relatives. It merely requires that the court and child welfare
agency consider their requests first.
Mother fails to carry her burden of showing that the court and CFS prejudicially
erred here. (Red Mountain, LLC. v. Fallbrook Public Utility Dist. (2006) 143
Cal.App.4th 333, 347 [“an appellant has the burden to show not only that the trial court
erred but also that the error was prejudicial”].) She does not identify which relatives are
at issue, much less show that the agency and the court failed to consider those relatives
for placement before considering placement with nonrelatives. Likewise, she does not
explain how she was prejudiced by the claimed failure to consider the unidentified
relatives first. That is, she does not show that in the absence of the claimed error, a more
favorable result was reasonably probable. (People v. Watson (1956) 46 Cal.2d 818, 836.)
For instance, the court and CFS must consider a host of factors in determining whether
placement with a relative is appropriate. (§ 361.3, subd. (a)(1)-(8).) Mother does not
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address those factors and argue that in the absence of error, the factors would have
weighed in favor of placement with the unidentified relatives. As already explained, we
are not bound to develop Mother’s arguments for her. She therefore fails to establish
prejudicial error with respect to relatives’ requests for placement.
DISPOSITION
The writ petition is denied, and the request for a stay is denied.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ
J.
We concur:
McKINSTER
Acting P. J.
MILLER
J.
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