Opinion
C081504
11-14-2017
In re I.B., a Person Coming Under the Juvenile Court Law. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. H.B., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JD235936)
Mother of minor I.B. appeals from the disposition orders. (Welf. & Inst. Code § 395.) She contends insufficient evidence supports the jurisdictional finding (§ 300, subd. (e)) as well as the denial of reunification services (§ 361.5, subd. (b)(5)). She adds that she received ineffective assistance of counsel due to her trial counsel's failure to seek a new dispositional hearing.
Undesignated statutory references are to the Welfare and Institutions Code. --------
Disagreeing, we shall affirm the orders of the juvenile court.
FACTUAL AND PROCEDURAL BACKGROUND
The minor, born in September 2014 and an infant at the time of disposition, is the child of mother and Z.P. (father). From birth, the minor lived with mother in Sacramento, together with the maternal great-uncle (uncle) and his fiancée, to whom the record refers as the maternal great-aunt (aunt). Father lived in Oakland with his girlfriend F.A. (and apparently also with F.A.'s husband or ex-husband in the same duplex). Father visited the minor approximately 10 hours per week, at the home of local family members.
Mother came to the attention of the Sacramento County Department of Health and Human Services (Department) when Child Protective Services (CPS) received a referral in October 2014, claiming unsafe home conditions. Mother denied the allegations and said she believed father had called CPS in order to influence an ongoing custody dispute over the newborn minor. Mother said father had made comments regarding self-harm and that she did not know what type of environment he provided for the minor. She also claimed father was possibly a substance abuser.
The minor was subsequently hospitalized a number of times. After the fourth hospitalization, the Department filed a petition and the minor was removed.
Hospitalizations
On January 26, 2015, mother told the social worker that the minor had been hospitalized at UC Davis Medical Center (UCD) since January 22 with "an unknown infection." She reported this was the minor's second hospitalization after returning from a visit with father. The UCD social worker confirmed the minor was admitted to UCD on January 22, 2015, with a bacterial gastrointestinal infection common to dogs. Mother had four dogs in her home; the (paternal aunt's) home where father visited with the minor had only one small dog, which was kept away from the minor. Nevertheless, mother stated someone should "look at the father" when asked about the source of the infection.
On February 23, 2015, CPS learned that mother had taken the minor to UCD's pediatric intensive care unit with dangerously low blood-glucose levels. The social worker interviewed mother at UCD on February 24; she was emotional, denied being the cause of the minor's illness, and again claimed the minor was getting sick after visiting with father. Mother then referenced an apparently previously unknown series of hospital stays in December 2014, explaining father visited with the minor in Sacramento in December and the minor developed a fever the day after the visit. According to mother, the minor stayed in the hospital for a week in December with a bacterial infection common to dogs (before being hospitalized again in late January for the same type of infection). Mother added that after his next visit with father, later in December, the minor came home with a bloody belly button.
About the January hospital stay, mother told the social worker that father had visited with the minor on January 22, 2015, for approximately three hours, after which the minor again developed an infection and was hospitalized. Mother was upset and alleged that father was allowing the minor to be around dogs. When the social worker pointed out that mother had multiple dogs, mother denied her dogs ever had access to or contact with the minor.
About the current (February) hospitalization, mother reported father visited with the minor for four hours on February 22, 2015. Almost immediately after she retrieved the minor, he became soaked in sweat from head to toe and was clammy and cold. His eyes "were not in sync and were shaking." Doctors later told mother the minor had likely ingested diabetic medication. Mother stated she did not "do it" and was concerned she would be blamed because uncle kept diabetic medication in the home, although mother noted he kept his medication in his backpack at all times.
The social worker spoke with the minor's treating physician during the February hospitalization (Dr. Kim) and a UCD social worker (Leslie Scott). Ruling out other medical issues, Dr. Kim stated it appeared the minor had been exposed to a diabetic medication. Onset of symptoms would be two to 18 hours after exposure. Dr. Kim also confirmed the minor tested positive after his January 2015 hospitalization for a rare bacterial infection normally only found in dogs.
Scott stated mother had initially reported the uncle was taking a certain diabetic medication, but in fact he was prescribed a different medication for diabetes, Sulfonylurea, which was the same medication UCD suspected the minor had ingested. Mother reported to medical staff that father was diabetic and father's girlfriend was a veterinarian. (Father was not diabetic and the record contains no evidence that the minor ever visited with father in Oakland or was exposed to any veterinary medications.)
On March 4, 2015, social workers met with mother at her home. Mother admitted that she did not believe father was diabetic, but said she had a "gut feeling" F.A. (the girlfriend) was responsible for the minor's illnesses. Mother showed the social workers all of uncle's and aunt's medication in the medicine cabinet.
On March 26, 2015, during visitation with father, the minor became nonresponsive and was taken by ambulance to the hospital. The treating doctor opined the minor had been intentionally given something harmful to ingest. Subsequent toxicology results were positive for amitriptyline and nortriptyline, a pair of anti-depressant drugs known as tricyclics, which could test as positive for both even if exposure were only to one.
UCD child abuse and neglect expert Dr. Kevin Coulter reported that toxicologists believed the first medication ingested (February 2015) was Sulfonylurea because the minor responded to the antidote given for exposure to such medication. The second was the tricyclic. The fact that the minor had ingested these two medications raised suspicions of child abuse given that the minor was too young to take pills.
Dependency Initiated
After the third (February 2015) hospitalization in as many months, the Department put the parents on an informal safety plan, the terms of which are not clearly reflected in this record but involved an oral promise to have various other extended family members monitor the parents' respective contact with their young infant. It was "[j]ust a basic safety plan that mom and dad were going to be supervised by other parties" and was not in writing. No compliance checks were done and verification--if any--appears to have been accomplished only by limited self-reporting. There was some indication that the Department representatives doubted the parents were complying with the safety plan, particularly whether mother was permitted to prepare the minor's bottles unsupervised.
After the fourth (March 2015) hospitalization, the Department placed the minor in protective custody It filed a petition on April 16, 2015, alleging the minor, then seven months old, came within the jurisdiction of the juvenile court under section 300, subdivisions (b) (failure to protect) and (e) (severe physical abuse). The petition alleged both parents failed to adequately supervise and protect the minor as evidenced by his hospitalizations for apparent life-threatening events following his ingestion of various prescription drugs, with both parents unable or unwilling to provide an explanation as to what happened. The next day, the juvenile court found the minor came within the provisions of section 300 and detained him, ordering visitation and reunification services for both parents.
The jurisdiction/disposition report prepared for the June 9, 2015 hearing stated mother denied responsibility for the minor's hospitalizations. She admitted uncle took diabetic medication, but stated he kept it secured. Mother pointed out that father's girlfriend was a veterinarian and had medications available to her, but acknowledged that she and father lived in Oakland and father had never taken the minor to Oakland. Father also denied responsibility for the minor's ingestion of medication.
Emergency response social worker Sandra Gomez reported that the minor's January 2015 hospitalization lab tests had revealed he was positive for Campylobacter, an infection only seen in dogs and only spread by feces. Gomez noted that, during her 2014 visit to mother's house, mother had four dogs inside the home. Although there was also a dog at the (local) home where father visited with the minor, it was kept away from him. Regarding the minor's February 2015 hospitalization, Gomez stated mother "completely blamed [father]." However, the onset of symptoms could have occurred between two and 18 hours after ingestion; ingestion could therefore have occurred while the minor was in the care of either mother or father (as father's visits lasted only several hours). Gomez noted that mother was the only parent with access to diabetes medication.
Gomez reported she conducted an unannounced visit to mother's home in March 2015 and asked to see uncle's medication. Mother accessed the medication from an unlocked medicine cabinet in uncle's bedroom. Gomez noted this was contrary to uncle's prior assertion that he carried his medication with him at all times. Gomez reported mother was extremely emotional and had "a difficult time pulling it together." When the minor was hospitalized, hospital staff inquired if something was wrong with mother. On one occasion, mother was asked to leave the room because she was disruptive.
F.A. reported that after the family court issued a visitation order allowing father independent parenting time, the minor "seemed sick" within two or three visits. F.A. said that she began to question whether mother "was making [the minor] sick" and stated mother would "call [father] frantically as though she was seeking attention." F.A. added that she and father were "both very concerned for [the minor's] safety" and, while she had no doubt that mother loved the minor, she believed mother was not "right in the head."
Both parents admitted the section 300, subdivision (b)(1) allegation but denied any personal responsibility for giving medications to the minor. The Department's report noted the easy access to Sulfonylurea in mother's home, despite her assertions to the contrary. The Department argued, "At this juncture, there is insufficient evidence to determine who is liable for poisoning the [minor] with a substance which could have potentially resulted in the [minor's] death. Where there is information to suggest the mother is emotionally unstable and may have been motivated to create the incidents in question based on her acrimonious parting with the father, simultaneously, the father, in addition to people known by the father, had contact with the [minor] independent of the mother, on the dates of the [minor's] medically concerning events."
Contested Jurisdiction/Disposition Hearing
The contested jurisdiction/disposition hearing began on October 5 and ended on November 16, 2015. The court heard testimony from numerous witnesses, who to a large extent testified in a manner consistent with the information previously summarized from the reports. We explain additional relevant testimony below.
Father called Dr. James Crawford-Jakubiak as an expert witness in pediatrics specializing in child abuse and neglect. Crawford-Jakubiak opined that the team of physicians who treated the minor for his February 2015 hospitalization was correct that the minor ingested Sulfonylurea, a life-threatening event. Regarding the minor's March 2015 hospitalization, Crawford-Jakubiak testified the minor tested positive for tricyclics and exhibited symptoms consistent with those test results. He agreed this ingestion too could have caused the minor's death if not for medical treatment, and agreed that the most likely cause of the minor's ingestion of those drugs was their intentional administration.
Crawford-Jakubiak discussed the disorder known as Munchausen's or factitious disorder by proxy in which a person, "for a variety of reasons, may either exaggerate symptoms, may cause symptoms, may give some substance such as a drug to create symptoms whereby medical care is provided for a child, interventions are provided to a child, all for some secondary gain of the person who's doing it." He stated the secondary gain may be to make the perpetrator look good or someone else look bad. It was his belief that someone had caused the minor's February and March illnesses. He did not opine as to whom, although he noted that mother had reported access to tricyclics in the past.
The Department called UCD's Dr. Owen as an expert in toxicology and emergency medicine. With regard to the February 22, 2015 hospitalization, Owen testified that she had been consulted during treatment; the minor had been critically ill with symptoms consistent with ingestion of Sulfonylurea. Owen noted it had been "very difficult" to obtain a list of medications from mother, and that she had told Owen that uncle was diabetic and taking metformin (rather than Sulfonylurea).
Regarding the minor's March 2015 hospitalization, Owen testified the minor's toxicology screen came back positive for tricyclics, antidepressants normally found in pill form and toxic to children. She opined that symptoms from ingestion would normally appear within one to six hours.
Mother called Dr. Mohammed Al-Bayati, a pathologist and toxicologist. Al-Bayati opined that the minor was given many antibiotic treatments in December 2014, which caused him to have a carnitine deficiency and exhibit the symptoms he exhibited during his February hospitalization. Al-Bayati conceded the minor was not prescribed the specific antibiotics cited in his report as leading to carnitine deficiencies, nor did the child receive any carnitine treatments. Regarding the minor's March 2015 hospitalization and medical records, Al-Bayati opined that the toxicology reports showing the minor was positive for tricyclics were invalid because there were no quantities identified. He added that mother was taking Flexeril during that same time period, which could have caused a false positive for tricyclics.
Dr. Owen testified in rebuttal that it was highly unlikely that antibiotics given to the minor prior to his hospitalization led to a carnitine deficiency, and noted his lab results did not show carnitine deficiency. Owen also disagreed that any other drug could result in a false positive for tricyclics, given the type of screening test performed at UCD. Crawford-Jakubiak (father's expert) had also testified about carnitine deficiencies and opined that the minor showed no deficiency, and if indeed he were deficient, his symptoms would not resolve unless he were given carnitine over a period of months or even years.
Mother called Dr. Jayson Wilkenfield as an expert in clinical and forensic psychology. Wilkenfield conducted psychological evaluations and tests on both parents. He affirmed the statement in his report that he "didn't observe any evidence of any significant acute psychological distress or any obvious signs of pervasive personality pathology that led [him] to any definitive supportable conclusions that would identify [mother] as the perpetrator of life-threatening events to which her child was subjected to in February or March." He testified that he had included "factitious disorder imposed on another" (Munchausen's) in his revised report as a "rule-out impression," meaning he suspected the diagnosis might be accurate but "more investigation was necessary, either psychological or by the Department or by law enforcement."
Wilkenfield "didn't see any reason why [father], what the motivation could possibly have been for his engaging in acts that would have resulted in a threat to the [minor's] life for the sake of him being awarded custody of the [minor], whereas it seemed very important to me for [mother] to retain custody of the [minor]. And it seemed like it was important for her to limit [father's] opportunity and that of his new significant other to spend time with the [minor]. . . . And the fact that it seemed more likely to me, given the fact that that there was sulfonylurea located in the mother's home where it would have been a stretch for -- in my opinion, based on the facts that I got from the two assessments, for [father] to get his hands on that drug. And the fact that the mother was making accusations about [father], who was at that time thought to have been exposed to a strain of bacteria that is seen very uncommonly in humans, but considerably more likely to canines when she had four dogs living in the home she was living in; and she was pointing to [father] having exposed the child to an unknown dog when he was visiting friends." He continued that "it was more likely, based on all of those things, that this child appeared to be -- appears to have been given some drugs or exposed to some circumstances that resulted in his becoming ill to the point of nearly dying. And I did not see any motivation for or any evidence of circumstances that would have been compelling for me to think that [father] was responsible for any of those acts." Wilkenfield opined that, while there was some criteria for a diagnosis of Munchausen's as to mother, there was not enough information to say with certainty that it applied without further information.
Mother testified in a manner consistent with what she had told the social worker regarding the minor's February hospitalization. The minor had been fine in the morning, but was ill when she picked him up from father and soon became nonresponsive. She testified uncle kept all of his medications in a backpack he took with him everywhere. She denied giving the minor diabetes medication. She testified about an informal supervision arrangement she agreed to after the February hospitalization wherein she moved out to her mother's house and her sister moved into her house to care for the minor. She testified that she was not alone with the minor per the informal safety agreement, but that she saw him for most of the day, every day, generally with her sister. Her testimony suggested that she was not monitored for compliance with any safety agreement. Her sister did not testify.
Mother testified that on the day of the minor's March 2015 hospitalization, father picked up the minor at 9:00 a.m. Between two and three hours later, father called and told her something was wrong with the minor. After the minor was hospitalized, mother learned he had tested positive for tricyclics. She had taken antidepressants until around 2010, but no one at the hospital asked her if she was taking them. She denied purposefully giving the minor the medications, saying "it didn't happen with me." She added that "[i]t had to have happened" during father's visit.
Mother denied that Gomez had found unsecured diabetes medications in her house, claiming the medications Gomez had found in the unlocked cabinet belonged to aunt. She called uncle as a witness; he testified he always kept his medications with him or locked in his bedroom. Mother also called aunt, who testified that during the relevant time period she kept her medications in an unlocked medicine cabinet in the bathroom.
Father testified he began a relationship with F.A. in early 2015, several weeks before mother informed him she was pregnant with the minor. Mother was tearful and angry, and they broke up a month before the minor was born. Father brought F.A. to one of mother's OB-GYN appointments, which angered mother. Father obtained a court order which allowed for visits three days a week in Sacramento, three to four hours per visit. He always fed the minor formula prepared by mother.
On February 22, 2015, father picked up the minor at 11:30 a.m. and fed him formula twice, as instructed by mother. At approximately 3:30 p.m., when mother picked up the minor, she felt his belly and said, "Hmmm." Father did not think his stomach hurt. He was not informed about the minor's hospitalization until the minor was released from UCD. Father added that he had been to mother's home before February 2015 and had observed that uncle did not always have his medications with him.
Regarding the minor's March 2015 hospitalization, father testified he picked up the minor that morning at 9:00 a.m. Mother told him to keep an eye out for fever because the minor was teething. Approximately an hour and a half later, he noticed the minor sounded "phlegmy"; he and mother discussed that it was probably allergies. Father noticed the minor was "looking past" him even though the minor's eyes were directed at him and the minor was "a little wobbly." He then noticed the minor's eyes were "all over the place." He brought the minor to mother's home and called 911. He later learned the minor had ingested antidepressants. He confirmed that the minor had never been to his home in Oakland, and F.A. had never been with the minor by herself. He denied giving the minor any of the medications.
As relevant here, social worker Gomez testified she discussed a safety plan with both mother and father after the minor's February hospitalization. It was "[j]ust a basic safety plan that mom and dad were going to be supervised by other parties" and was not in writing. She testified that there were no restrictions on the minor's food preparation, just the requirement that mother had to be supervised (by a family member) when in contact with the minor himself. Social worker Lia Solorio testified that Gomez had doubted the parents were complying with the safety plan, particularly whether mother was permitted to prepare the minor's bottles unsupervised.
After hearing the testimony and argument, the juvenile court took the matter under submission. The court issued a written ruling as to jurisdiction on December 8, sustaining both allegations and finding them true by a preponderance of the evidence in a written ruling. In ruling on jurisdiction after the (combined) hearing, the court specifically credited the testimony of Doctors Owen and Crawford-Jakubiak, finding them more credible than Al-Bayati, and accordingly found that the minor had ingested a diabetic medication in February and an anti-depressant in March.
As relevant here, the court also found that "all agree that someone had to administer the medication" to the minor and observed that "[m]ost have argued that mother is the most likely person to have given the medication to [the minor]. She had ready access to diabetic medications that were taken by the uncle with whom she shared a home. The father would only have had access to the medication through his [fiancée] who testified that she did not treat animals with diabetic conditions, nor did she have any such medication in her possession. In addition, it appears that the mother may have had access to anti-depressant medication as she had been prescribed such medication a few years back, although there was no evidence of the medication actually being in the mother's home." The court added that "there was little if any evidence regarding what the maternal aunt was doing to ensure the protection of the child."
With the agreement of all parties, the juvenile court scheduled "argument on the disposition" in December. Argument was heard on December 18; no further evidence was presented.
Dispositional Order and Findings
On January 5, 2016, the juvenile court issued its order finding section 361, subdivision (b)(5) true as to mother and denying her reunification services (§ 361.5, subd. (c)-(e)). The court attached and read a written order. The order made clear the court understood that it was required to make the required findings by clear and convincing evidence, and was able to do so only as to mother. In doing so, the court noted that mother was the custodial parent and had access to diabetic medication and experience with anti-depressants.
Mother filed a timely notice of appeal of the January 5, 2016 orders sustaining the petition and denying her reunification services.
DISCUSSION
I
Sufficient Evidence to Support Jurisdictional Findings
Mother first contends there was insufficient evidence to support the juvenile court's finding that the minor came within the jurisdiction of section 300, subdivision (e) due to mother's actions. We find the evidence sufficient.
Section 300 provides for jurisdiction if: "(e) The child is under the age of five and has suffered severe physical abuse by a parent, or by any person known by the parent, if the parent knew or reasonably should have known that the person was physically abusing the child." (§ 300, subd. (e); In re Joshua H. (1993) 13 Cal.App.4th 1718, 1726-1727.) The appropriate agency must establish the following elements in order to justify a subdivision (e) jurisdictional finding: (1) there is a minor under the age of five; (2) who has suffered severe physical abuse as defined in section 300, subdivision (e); (3) by a parent or any person known to the parent if the parent knew or reasonably should have known that the person was physically abusing the minor. (In re Joshua H., at p. 1727.) The Agency must prove by a preponderance of the evidence that the child is a person described by section 300. (§ 355, subd. (a); In re A.S. (2011) 202 Cal.App.4th 237, 244.)
"[W]e use the substantial evidence standard of review, where we determine whether evidence that is of reasonable, credible and solid value supports the dependency court's findings. We do not reweigh the evidence, nor do we consider matters of credibility." (In re E.H. (2003) 108 Cal.App.4th 659, 669; accord In re A.S., supra, 202 Cal.App.4th at p. 244.)
Here, mother does not challenge the juvenile court's finding that the minor suffered severe physical abuse as defined in subdivision (e) resulting in his hospitalization in February and March 2015. She challenges only the "court's finding that it was more likely than not she either inflicted, knew about, or should have known about the abuse." She assumes throughout her argument that the Department's safety plan had "removed her from the role of I.B.'s primary caretaker"; however, as we have described ante, that is not what the trial court gleaned from the evidence presented. Nor are we able to see support for that assumption in the record.
Although mother herself testified broadly that she was with her sister during the time she was with the minor and preparing his food, hers was the only testimony establishing that fact. Other testimony suggested mother was not monitored for compliance and was not even instructed to be supervised when she prepared the minor's bottles. The juvenile court was not required to credit mother's testimony over the other evidence establishing that mother had primary custody of and access to the baby during the time that the harmful medication was given to him.
Although mother asserts that "the court found that it could not determine which of the parents had caused I.B.'s hospitalizations, but concluded jurisdiction could be taken pursuant to the 'res ipsa loquitur' doctrine" (footnote omitted), the juvenile court did not actually make this finding. Rather, as we have explained, the court noted that "[m]ost have argued that mother is the most likely person to have given the medication to [the minor]" and that "there was little if any evidence regarding what the maternal aunt was doing to ensure the protection of the child." Although the court did not directly find the mother responsible, it did not need to--it was clear that mother knew or should have known the minor was being abused. At minimum, she knew because the doctors and social workers were telling her that someone was intentionally poisoning her child, if for no other reason.
The minor was hospitalized at least four times in four months, beginning in December when he was only three months old. He ingested two different but each potentially lethal medications in February and March. He was either with mother in mother's home or with father for limited visitation within the timeframe that the medicine was necessarily administered and during which symptoms of the poisoning would manifest. Tellingly, he was with father at the time or immediately before the onset of symptoms began, but was with mother during the window of administration.
Dr. Owen testified the onset of symptoms from ingestion of Sulfonylurea would have occurred within two to 16 hours. Testimony at the hearing established that the day of the February ingestion incident, father picked up the minor at 11:30 a.m. and mother retrieved him at 3:30 p.m., immediately acting as though something were wrong with his stomach. He fell ill shortly thereafter, well within the applicable window had he been administered the medication before going with father.
Symptoms from ingestion of tricyclics would have been manifested within one to six hours. Testimony at the hearing established that father picked up the minor the day of the March ingestion incident at 9:00 a.m. and delivered him, already very ill, to mother several hours later. Again, this onset of symptoms is well within the window to which the experts testified. Although the testimony regarding Munchausen's was not conclusive, multiple experts testified that it could not be ruled out and that mother was the only parent likely to meet the criteria of that particular disease.
The only reasonable conclusion to be drawn from the evidence was that mother--and if not mother then father or someone else close to the family--was poisoning the minor, and mother knew or reasonably should have known it was happening, not only because she was seeing it but also because the doctors were telling her about it. Thus there was sufficient evidence to support the juvenile court's jurisdictional findings.
II
Sufficient Evidence to Support Denial of Reunification Services
Mother next contends there was insufficient evidence to support the juvenile court's order denying her reunification services pursuant to section 361.5, subdivision (b)(5). She argues the court's finding by clear and convincing evidence is not supported, because it was made considering the same evidence as was the court's decision to take jurisdiction by a preponderance of the evidence.
The juvenile court may deny reunification services if it finds by clear and convincing evidence "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." (§ 361.5, subd. (b)(5).) The court shall not order reunification services in that circumstance "unless it finds that, based on competent testimony, those services are likely to prevent reabuse or continued neglect of the child . . . ." (§ 361.5, subd. (c).)
Section 300, subdivision (e) and section 361.5, subdivision (b)(5) do not require identification of the perpetrator. (In re E.H., supra, 108 Cal.App.4th at p. 670.) Read together, those provisions permit denial of reunification services to either parent on a showing that a parent or someone known by a parent physically abused a minor. (Ibid.) " '[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." (In re Kenneth M. (2004) 123 Cal.App.4th 16, 21.)
We review an order denying reunification services under section 361.5, subdivision (b) for substantial evidence. (In re Albert T. (2006) 144 Cal.App.4th 207, 216.) We examine the record in the light most favorable to the juvenile court's findings and conclusions, defer to the juvenile court on issues of credibility, resolve all conflicts in the evidence in support of the juvenile court's findings, and draw all legitimate inferences to uphold the juvenile court's order. (Ibid.)
Relying primarily on K.F. v. Superior Court (2014) 224 Cal.App.4th 1369 (K.F.), mother claims that, because the "court could not determine" which parent caused the minor's injuries under the preponderance of evidence standard for purposes of section 300, subdivision (e) jurisdiction, it could not have found services should be denied under the higher clear and convincing evidence standard for purposes of section 361.5, subdivision (b)(5) without the introduction of additional evidence after the jurisdiction hearing.
First and foremost, as we have already discussed, the juvenile court never articulated that it was unable to determine who the perpetrator was. It simply was not required to do so, and did not do so explicitly. However, it made more than clear--and the record supports this inference and implication--that mother was most likely the responsible party.
Second, K.F. is distinguishable from this case. In K.F., supra, 224 Cal.App.4th 1369, the juvenile court sustained a subdivision (e) abuse allegation based on a preponderance of the evidence, emphasizing it "could not reach this finding by clear and convincing evidence." It then sustained a section 300, subdivision (b) failure-to-protect allegation based on clear and convincing evidence. (K.F., at pp. 1373, 1380.) At the dispositional hearing, the court bypassed reunification services to both parents under section 361.5, subdivision (b)(5) based on its subdivision (e) finding, and under section 361.5, subdivision (b)(6) based on its section 300, subdivision (b) finding. (K.F., at pp. 1373, 1381.) The appellate court held the juvenile court erred in denying reunification services to both parents because the section 361.5, subdivision (b)(5) and (b)(6) findings were both predicated on the court's section 300, subdivision (e) finding, which was established by a preponderance of the evidence and therefore could not support the clear and convincing standard required for denial of services. (K.F., at pp. 1373, 1380, 1384.)
In K.F., the juvenile court declared during the jurisdictional phase that it could not have sustained its section 300, subdivision (e) finding by clear and convincing evidence. (K.F., supra, 224 Cal.App.4th at p. 1380.) The juvenile court here made no such declaration. Although it is true that the court here found subdivision (e) jurisdiction by a preponderance of the evidence, this is all the law requires. (§ 355, subd. (a); In re A.S., supra, 202 Cal.App.4th pp. 243-244.) Further, unlike the court in K.F., here the juvenile court did not simply rely on its subdivision (e) jurisdictional findings to bypass mother. As we have set forth ante, the court issued a written order after disposition that made clear the court understood it was required to make the required findings by clear and convincing evidence, and was able to do so only as to mother. In doing so, the court noted that mother was the custodial parent and had access to diabetic medication and experience with anti-depressants. Also, mother presented no "competent testimony" that any "services are likely to prevent reabuse or continued neglect of the child" as required to avoid bypass. (§ 361.5, subd. (c).)
The June 9, 2015 jurisdiction/disposition report contained facts consistent with the court's findings and conclusions, noting that there was evidence mother was "emotionally unstable and may have been motivated to create the incidents in question based on her acrimonious parting with the father" and mother was "the party with documented access to substances which would result in" the minor's hospitalizations. As the report concluded, both parents knew or reasonably should have known who inflicted harm on the minor, and "the fact that no one is choosing to take accountability suggests the prognosis for reunification is poor." Given the lack of accountability by either parent, "[r]eunification services would be ineffective in preventing the reabuse or continued neglect of the child," thereby preventing a provider "from addressing the necessary issues to ensure the parents benefit from services." Thus the juvenile court's jurisdictional finding by a preponderance of evidence did not preclude a subsequent finding that denial of reunification services was supported by clear and convincing evidence.
III
Ineffective Assistance of Counsel
Finally, mother contends her attorney was ineffective for failing to seek a new jurisdiction and disposition hearing after the Department filed addendum reports revealing information calling into question the credibility of the statements and testimony of father and F.A., and thus the bases for the court's findings and orders. She claims she was prejudiced by her attorney's ineffective assistance because it was reasonably probable that, had the new information been considered by the court, neither the subdivision (e) jurisdictional finding nor the basis for bypassing her for services could have been sustained.
A. Background
According to the fourth addendum to the jurisdiction/disposition report, filed January 22, 2016, father had reportedly not completed any approved services and failed to remain in contact with the Department, but remained consistent with visitation. He had not completed any services since April 2015.
On February 8, 2016, the Department filed another addendum report to provide an update regarding father's new residence, services for father, "new concerns reported to the Department by [F.A.]," and the Department's assessment of possible placement with father. According to the report, father reported to the social worker that he had moved out of his prior residence and into a home with his friend K.L. to facilitate care of the minor. Father had tested positive for marijuana on February 1. Despite father's representation that he had signed up for parenting education classes and counseling services through EarthCircle, staff from EarthCircle reported father had not been enrolled in any services and noted his referral was no longer pending.
The social worker also reported father's counselor "indicated she did not feel qualified to handle the father's suicidal ideations and requested the father be referred to mental health services through [CPS]" or another more qualified counselor. Father denied ever having any suicidal ideations or attempting suicide, and denied ever being prescribed or taking psychotropic or antidepressant medications.
The report stated the social worker confirmed with F.A. that father "moved in with his 'new girlfriend,' [K.L.] in October of 2015." F.A. reported father "had lied to many individuals" about his dating relationship with K.L., and stated K.L. "has a past history of using methamphetamine and currently uses marijuana." F.A. also stated father had substance abuse issues, including marijuana and alcohol. She further reported that father had been physically abusive with her on a monthly basis by hitting her, choking her, and throwing her around. She said he had at least three known suicidal ideations and two suicide attempts spanning March to September 2015. She was concerned for the minor's safety if he were placed with father.
F.A. provided the social worker with two suicide notes written by father, as well as Facebook messages between F.A. and father in which father apologized for having been angry, abusive, and violent toward her. F.A. also provided photographs purporting to depict her injuries inflicted by father, as well as damage to their home inflicted by father. F.A.'s husband corroborated her allegations to a limited extent.
The Department requested a continuance to complete investigation and follow-up with father regarding the new information, and to contact Dr. Wilkenfield to determine if the new information would result in a different assessment as to recommended mental health services for father. Alternatively, the Department concluded placement of the minor with father would be detrimental to the minor, given father's prior statements that adoption of the minor would be his preference, father's apparent lack of truthfulness in his psychological examination by Dr. Wilkenfield, and the testimony and additional reports by F.A. and her husband regarding their concerns about father's ability to care for the minor. The Department also noted their reports that father had not been living in their home since October 2015 and was instead living with his girlfriend K.L. and the paternal grandmother, contrary to his representations otherwise.
On February 22, 2016, the Department filed another addendum to provide an update on the investigation of the concerns set forth in the prior addendum. Father had been interviewed again and denied suicidal ideations, confirmed his new relationship with K.L., and "explained" the domestic violence allegations by claiming he and F.A. were involved in consensual sadism.
B. Analysis
A claim of ineffective assistance of counsel may be reviewed on direct appeal when there is no satisfactory explanation for trial counsel's act or failure to act. (In re N.M. (2008) 161 Cal.App.4th 253, 270.) To prevail on such a claim, mother must demonstrate: "(1) counsel's representation fell below an objective standard of reasonableness; and (2) the deficiency resulted in demonstrable prejudice." (In re Kristen B. (2008) 163 Cal.App.4th 1535, 1540.) We must affirm the judgment unless the record "affirmatively establishes counsel had no rational tactical purpose for the challenged act or omission . . . ." (Id. at p. 1541.) In addition, we may reject mother's claim if she cannot show it is reasonably probable the result would have been more favorable to her but for trial counsel's alleged failings. (In re N.M., at p. 270.) Thus, if mother fails to demonstrate prejudice, we need not examine whether her counsel's performance was deficient. (Ibid.)
Here, mother has not demonstrated that, had her attorney sought a new hearing, the result would have been more favorable to her. There is little doubt the information contained in the fifth and sixth addendum reports is troubling with respect to the information and testimony previously provided by both father and F.A. As the Department noted, the new information provided significant evidence that the minor would be at risk of abuse or neglect if placed with father. However, there was nothing in the addendum reports that called into question the information and testimony provided by father and F.A. regarding mother. Most importantly, the new information about father and F.A. and their apparently dysfunctional relationship did not dispute or otherwise contradict evidence regarding mother that was corroborated by other evidence. This included the testimony and reports of Drs. Owen and Crawford-Jakubiak and the social workers' testimony and reports, which was independent evidence supporting the court's finding that there was clear and convincing evidence mother was knew or should have known of the minor's abuse.
Thus mother's claim of ineffective assistance fails due to her inability to demonstrate prejudice.
DISPOSITION
The juvenile court's orders are affirmed.
/s/_________
Duarte, J. We concur: /s/_________
Nicholson, Acting P. J. /s/_________
Robie, J.