California Court of Appeal Aug 16, 2024 No. E082888Unpublished
Filed 8/16/24 In re B.P. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 B.P., a Person Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, E082888
Plaintiff and Respondent, (Super.Ct.No. DPRI2300259)
v. OPINION
P.P.,
Defendant and Respondent;
B.P.,
Appellant.
APPEAL from the Superior Court of Riverside County. Dorothy McLaughlin,
Judge. Reversed.
Maryann M. Goode, under appointment by the Court of Appeal, for Appellant.
1
Minh C. Tran, County Counsel and Larisa R-McKenna, Deputy County Counsel
for Plaintiff and Respondent.
Janelle B. Price, under appointment by the Court of Appeal, for Defendant and
Respondent.
Appellant B.P. (male, born May 2023; Minor) appeals from the juvenile court’s
orders granting reunification services to defendant and respondent P.P. (Father). For the
reasons set forth post, we reverse the juvenile court’s order as to Father and remand the
child is under five years of age and has suffered severe physical abuse by a parent . . . .
For the purposes of this subdivision, ‘severe physical harm’ means any of the following:
9
any single act of abuse that causes physical trauma of sufficient severity that, if left
untreated, would cause permanent physical disfigurement, permanent physical disability,
or death; . . . or more than one act of physical abuse, each of which causes bleeding, deep
bruising, significant external or internal swelling, bone fracture, or unconsciousness.”
Here, the facts establishing the section 300, subdivision (e), abuse finding are
clearly and convincingly proven, uncontradicted, and unimpeached, and leave no room
for a judicial determination that they were insufficient to support such a finding. Father
himself admits to hurting Minor, beginning his interview on July 26, 2023, with the
words, “I guess it’s time, it’s been too long and time to man up and tell you guys what the
hell happened.” Father says he knew he hurt Minor by aggressively putting Minor in his
car seat and in his crib. He was not, as claimed in his brief, “struggling with whether [he]
could have hurt [Minor] by handling [Minor] roughly.” As a matter of fact, detectives
specifically asked him if he believed he hurt Minor and he said “Yes.” Father admitted
placing Minor in the car seat “aggressively” and “out of frustration,” and after so doing,
witnessed Minor hunch over, make a grunting noise, and begin to cry. Father stated that
he knew what he did and “ ‘pretty much squished him.’ ” Father admitted that he was
pretty sure he broke something inside of Minor though he did not think it was Minor’s
ribs. He admitted doing this on about five occasions. Father also demonstrated how he
forcefully put Minor in his crib and pressed down on his chest. Additionally, Father
admitted that when attempting to put Minor’s socks on, he used all his body weight to
press down on Minor’s leg and heard a crack. He repeated the same process on two or
three occasions, despite the fact that he heard the crack on the first occasion. Detectives
10
confirmed that even though Father knew he hurt Minor, he did not take Minor to the
doctor because it did not come to his mind and he was scared and frustrated. Detectives
also confirmed that on five separate occasions, he did something to cause fractured ribs
and never thought to take Minor to the doctor. There was not, as Father claims,
“conflicting evidence which left the court with no known perpetrator and injuries that
occurred at an undetermined time.” These facts are uncontradicted and unimpeached,
and accordingly, leave no room for judicial determination that they were insufficient to
support a finding that section 300, subdivision (e), was clearly and convincingly proven.
As such, the evidence compels a finding in favor of Minor as a matter of law.
E. COUNTERVAILING FACTUAL FINDINGS
Once it is determined that a bypass provision applies, section 361.5 “subdivision
(c), provides that denial of reunification services is mandatory, not discretionary, with
respect to nearly all of the bypass provisions, unless the court makes certain
countervailing factual findings.” (In re A.E., supra, 38 Cal.App.5th at p. 1141.)
The lower court may have rushed rather quickly past the clear and convincing
question because it was “inclined to order that reunification services would be in
[Minor]’s best interest.” While this is the proper countervailing factual finding for
section 361.5, subdivision (b)(6)(A), it is not the correct finding for subdivision (b)(5).
The proper countervailing factual finding for subdivision (b)(5) is specified in section
361.5, subdivision (c)(3): “the court shall not order reunification in any situation
described in paragraph (5) of subdivision (b) unless it finds that, based on competent
evidence, those services are likely to prevent reabuse or continued neglect of the child or
11
that failure to try reunification will be detrimental to the child because the child is closely
and positively attached to that parent. The social worker shall investigate the
circumstances leading to the removal of the child and advise the court whether there are
circumstances that indicate that reunification is likely to be successful or unsuccessful
and whether failure to order reunification is likely to be detrimental to the child.”
Minor correctly points out that the lower court performed no analysis of section
361.5, subdivision (c)(3), and thus, the record is silent as to this issue. Despite the fact
that he is a brand new parent with a brand new baby, Father’s admission that he injured
his two-month-old baby because he was frustrated with both work and Mother
demonstrates that this is not merely an ignorance problem. It is not the case that Father
was unaware of his own strength, uninformed about his baby’s injuries, or ignorant of the
newfound responsibilities of parenthood. Because the abuse was caused by his
frustration with work, it may be the case that reunification services are unlikely to be
successful unless they can somehow find Father new employment. However, we are
persuaded by Minor that the burden falls on the juvenile court, not the appellate court, to
review and consider the factual evidence to determine if, based on competent evidence,
reunification services are likely to prevent reabuse or continued neglect.
12
DISPOSITION
The order of the juvenile court granting reunification services to respondent P.P. is
reversed and the case is remanded for further proceedings consistent with this opinion.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER Acting P. J.
We concur:
RAPHAEL J.
MENETREZ J.
13
AI Brief
AI-generated · verify before citing
Holding. The juvenile court erred by failing to properly apply the bypass provisions of Welfare and Institutions Code section 361.5, subdivision (b)(5), and by failing to make the required countervailing factual findings under subdivision (c)(3) to justify ordering reunification services.
Issues
Whether the juvenile court erred in its application of the bypass provisions under Welfare and Institutions Code section 361.5, subdivisions (b)(5) and (b)(6)(A).
Whether the evidence compelled a finding that the section 300, subdivision (e) abuse allegations were proven by clear and convincing evidence.
Whether the juvenile court failed to make the necessary countervailing factual findings required by section 361.5, subdivision (c)(3) to order reunification services after a bypass provision was triggered.
Disposition. reversed and remanded
Quotations verified verbatim against the opinion
“The order of the juvenile court granting reunification services to respondent P.P. is reversed and the case is remanded for further proceedings consistent with this opinion.”
“The proper countervailing factual finding for subdivision (b)(5) is specified in section 361.5, subdivision (c)(3)”
“the evidence compels a finding in favor of Minor as a matter of law.”