In re L.W. CA4/2

Opinion

Filed 9/10/26 In re L.W. CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

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.

1 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 1 (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 1 All further statutory references are to the Welfare and Institutions Code.

2 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 3 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 4 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 5 “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 2 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 2 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.”

6 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 7 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 8 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.

9 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 10 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.

11 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.