In re N.M. CA4/2

Filed 1/4/22 In re N.M. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 N.M. et al., Persons Coming Under the Juvenile Court Law.

SAN BERNARDINO COUNTY

CHILDREN AND FAMILY SERVICES, E076870

Plaintiff and Respondent, (Super.Ct.Nos. J286376 &

J286377)

v.

OPINION

J.M.,

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Annemarie G.

Pace, Judge. Affirmed

Christopher R. Booth, under appointment by the Court of Appeal, for Defendant

and Appellant.

Michelle D. Blakemore, County Counsel, Joseph R. Barrell, Deputy County

Counsel for Plaintiff and Respondent.

1 J.M. (Father) and C.M. (Mother; collectively, Parents)1 are the parents of twins

E.M. (male) and N.M. (female), born in May 2020 (collectively, the children). When the

children were approximately three months old, they were removed from Parents care.

Father appeals from the juvenile court’s order (1) removing the children from Father’s

custody; (2) denying reunification services to Father; and (3) requiring visitation between

the children and Father to be supervised. For the reasons set forth post, we affirm the

trial court’s findings and orders.

FACTUAL AND PROCEDURAL HISTORY

A. THE INITIAL INVESTIGATION

On August 22, 2020, San Bernardino County Children and Family Services (CFS)

received an immediate response referral alleging severe and general neglect of three-

month-old E.M. The child had been taken to Loma Linda University Medical Center

(Loma Linda) where the staff discovered that he had a displaced fracture of his right

humerus.

When Mother was interviewed by the social worker the next day, Mother stated

that she was watching E.M. with her friend, G.F. (Friend) when she noticed that E.M.

was not as active as usual, and not moving his arm normally. Mother immediately

contacted the nurse advice line; the nurse advised Mother to take E.M. to the emergency

room. Neither Mother nor Friend had an explanation for E.M.’s injury. Mother had been

keeping her distance due to health issues.

Mother is not a party to this appeal.

2 Father also noticed that E.M. was not moving his arm but also did not have an

explanation even though he was home with the children because he was unemployed.

The social worker examined N.M., and found her to be in good health. The social

worker requested that N.M. have a skeletal survey and forensic exam.

Mother later contacted the social worker and told the social worker that on the

morning of August 22, 2020, she had E.M. in a “mobi wrap carrier,” and this may have

been how he sustained the fracture. Mother also stated that Father may have caused the

injury when he tried to stop E.M. from slipping through Father’s legs. Mother did not

explain why she did not provide this information during the initial interview.

A nurse reported that E.M.’s injury was highly suspicious of abuse because E.M.

was nonambulatory and unlikely to sustain an injury of that nature. The hospital was

conducting a nonaccidental trauma work-up.

On August 23, 2020, CFS issued a detention warrant. The children were detained

in the relative home of maternal aunt, Mrs. L. (Aunt) the same day.

B. SECTION 300 PETITION AND DETENTION HEARING

On August 25, 2020, CFS filed Welfare and Institutions Code2 section 300

petitions on behalf of both children. As to E.M., the petition alleged that he was at risk of

suffering or had suffered serious physical harm inflicted nonaccidentally pursuant to

section 300, subdivision (a), and that Parents failed to protect him pursuant to section

2 All further statutory references are to the Welfare and Institutions Code unless specified otherwise.

3 300, subdivision (b). As to N.M., the petition alleged substantial risk of abuse or neglect

pursuant to section 300, subdivision (j), as a result of the injury to her twin, E.M.

On August 26, 2020, at the detention hearing, Parents appeared telephonically and

denied the allegations. Father was assisted by a Spanish language interpreter. The court

read and considered the detention report dated August 26, 2020, and found that there was

a prima facie basis to detain the children from Parents. The court ordered

predispositional services and visitation one time a week for two hours for Parents. The

court then set a jurisdiction/disposition hearing on September 16, 2020. The children

remained with Aunt.

C. JURISDICTION AND DISPOSITION REPORTS

On September 12, 2020, CFS filed a jurisdiction/disposition report. In the report,

CFS requested a continuance for medical and law enforcement reports necessary to

complete its investigation. Parental interviews were conducted and provided in the

report.

On September 4, 2020, the social worker interviewed Father. Father stated that

he, Mother, and Friend all resided in the home and shared childcare duties. During the

interview, Father was tearful and claimed that the injury was unintentional. He said that

he was taking care of E.M. because E.M. was fussy and Mother was not feeling well.

Father stated that he was rocking E.M. on his knees when E.M. jerked and almost fell out

of Father’s hands. Father grabbed E.M. under his arm and turned him to face in his

direction. Father stated that he may have grabbed E.M. “hard” and hurt his arm. Father

stated that E.M. did not usually cry a lot but he had been crying a lot earlier in the

4 morning. Father stated that a couple of hours after the incident, Mother woke up and

began to care for the children. Two hours later, Mother showed Father E.M.’s “wobbly”

arm and took him to the hospital. Father did not observe any sign of injury and E.M. was

not crying. Father had not informed Mother that he almost dropped E.M. that morning.

When Mother left, Father and Aunt stayed to watch N.M.

Father told the social worker that when he was interviewed by law enforcement,

he admitted to things he had not done. The officers told Father that if he admitted to

breaking E.M.’s arm, the children could go home to Mother. He told the officers that he

put pressure when folding E.M.’s arm, and could have caused the injury.

Father denied intentionally harming E.M. and said that it was unlikely Friend

would harm the child either. Father initially claimed that Friend had moved to Los

Angeles because they no longer needed assistance with caring for the children. Father,

however, later revealed that Friend had moved in with Aunt. The social worker told Aunt

that the arrangement with Friend was inappropriate; Friend was asked to leave the

residence.

On September 8, 2020, the social worker interviewed Mother. She was tearful,

and at times, inconsolable. She regretted not being able to provide an explanation of the

injury at the time of removal. Mother stated that she, father, Friend, and Aunt were at the

home on August 21 through August 22, 2020. Around 5 p.m. on August 22, Friend noted

that E.M.’s arm was “floppy” and that he could not keep the arm lifted. Mother called

the nurse advice line and took the child to the emergency room. Mother did not “consult”

with Father about the injury. She told him that she was taking E.M. to the hospital. Law

5 enforcement interviewed Parents. After the interviews, Mother learned that Father

admitted he had hurt E.M. Mother was not aware of Father’s admission at the time of the

initial interview. Mother told the social worker as soon as she found out. Mother was

shocked and in disbelief. She did not think that Father would have intentionally hurt

E.M.

The social worker concluded that the children were still at risk in Parents’ care

because Father admitted to causing the injury, and then recanted; thereby, not taking

responsibility for his actions. Mother lacked protective capacity. After Mother learned

about Father’s confession, she bailed him out of jail believing the injury was an accident.

Moreover, Parents were not forthcoming and failed to provide information to CFS.

At the jurisdiction and disposition hearing on September 16, 2020, the juvenile

court granted CFS’s request for a continuance for receipt of the police and medical

reports. The matter was set for a further hearing on October 27, 2020.

On October 26, 2020, CFS filed an addendum report for the

jurisdiction/disposition hearing. The report recommended that the allegations be found

true, that reunification services be provided to Mother, and that no reunification services

be provided to Father under section 361.5, subdivision (b)(6). The addendum report

summarized the law enforcement and medical records. The requested medical and law

enforcement documents were also provided.

During an interview with the social worker on October 9, 2020, Father denied he

injured E.M. and claimed he was “ ‘psychologically pressured’ ” by law enforcement to

admit that Father hurt E.M. Father claimed much of the interview was misunderstood

6 due to the language barrier. Deputy Maldonado translated the interview. Father claimed

that he did not know much about the legal system and just “ ‘wanted everything to be

over.’ ” When asked if he was recanting his confession to law enforcement, Father

answered: “ ‘well if you guys are such good investigators shouldn’t you know.’ ” Father

asked about an interview of Friend, although he had previously expressed no concern

about her and had moved in with her earlier in the case. Father claimed to be trying to

“ ‘figure out how this happened.’ ”

Mother told the social worker that she was enrolled in parenting classes and

attended two therapy sessions. She stated that she and Father were living separately. She

did not know if the injury was intentional or accidental, but she also did not believe that

Father would intentionally hurt E.M. Nonetheless, Mother assured the social worker her

priority was the children.

The social worker reported that Parents were engaged in services. The social

worker, however, recommended that services not be provided to Father because of the

severity of E.M.’s injury and Father’s failure to take responsibility. The social worker

recommended that services be provided to Mother. Although Mother questioned whether

the injury was nonaccidental, she had moved out of the home and was engaged in

services.

1. LAW ENFORCEMENT DOCUMENTS

The law enforcement documents included numerous police reports from the San

Bernardino County Sheriff’s Department. On August 23, 2020, law enforcement

conducted several interviews regarding the events on August 21 and 22, 2020.

7 The nurse assigned to care for E.M. at Loma Linda stated that “the mechanism to

cause the injury was from pressure and bending,” not from swaddling or a fall. She

opined that the injury likely occurred between August 21 and 22, 2020.

Aunt stated that she stayed at the home to help Mother care for the children

because Mother had Covid-19 symptoms, and Father had shingles. When Aunt arrived at

the home on August 21, 2020, at approximately 5 p.m., E.M. appeared to be in “normal

condition.” On the 22nd, Aunt and Friend both woke up around noon. At approximately

4:30 p.m., Aunt stated that Friend noticed E.M.’s right arm was weak and limp. Friend

told Mother; Mother called the pediatrician. Mother took E.M. to urgent care. Personnel

at urgent care told Mother to take the child to Loma Linda. Aunt did not see anyone

mishandle, drop, or strike the child. She did know how he got injured.

In Mother’s interview, she confirmed that Father and Friend resided in the home,

and Aunt came to assist them on August 21, 2020. E.M. appeared to be in good health on

the night of August 21, and through all of the feedings and diaper changes that night.

Mother stated that on August 22 she and Father took care of the children while Aunt and

Friend slept. Mother took E.M. out of his crib from 10 to 10:30 a.m. thereafter, she took

a nap until Aunt and Friend got up between noon and 1:00 p.m. Several hours later,

Father fed E.M. and Friend fed N.M. Mother stated that Father usually “gives up”

feeding the children, which happened on August 22. Therefore, Friend finished feeding

N.M. When she was laying him down, she noticed that the child’s arm was limp. Friend

told Mother about the arm. Mother called a nurse who advised her to take E.M. to Loma

Linda. At Loma Linda, she found out that E.M. had a broken arm. At that time, E.M. did

8 not appear to be in distress. While at the hospital, Father told Mother that he grabbed

E.M. by the arm to prevent him from falling during one of the feedings. Mother was not

present when this occurred.

Father stated that he fed E.M. between noon and 1:00 p.m. by himself in the living

room. Mother was in the bedroom with N.M.; Aunt and Friend were asleep in another

bedroom. While Father was feeding E.M., the child began to fall from Father’s lap.

Father grabbed E.M. by the arm to keep him from slipping. E.M. did not cry or appear to

be in pain. At about 5 p.m., Friend noticed that E.M.’s arm was limp. Mother eventually

took the child to the hospital. Father was willing and presented himself at Sheriff’s

headquarters to take a polygraph test but was unable to because he had shingles.

Friend confirmed that she lived in the home with Parents and assisted them with

the care of the children. She did not notice anything out of the ordinary when caring for

the children on August 19, 20 and 21. On the 22nd, Friend woke up at 8 a.m. She went

back to sleep and woke up at noon. Friend saw Father playing with N.M. and Mother

playing with E.M. Friend then fed N.M. and Father fed E.M. Because Father had a hard

time feeding E.M., she finished the feeding. She played with E.M. for 10 to 15 minutes

then he became fussy. She noticed that his arm was “wobbly and elastic.” She also

noticed that when she moved E.M.’s arm, it “rolled down.” E.M. was asleep and did not

cry. Later, when he became fussy again, Mother and Friend could not find any injuries

on E.M. Mother, however, called the doctor’s office. Friend did not hear E.M. cry but

she heard Father tell Mother that he grabbed E.M.’s arm as he slipped. Father was not

sure if that caused the injury.

9 In Father’s second interview with law enforcement, Father stated that he did not

notice any injuries to E.M. August 21 through August 22. At about 12 p.m., E.M. woke

up and Mother brought him to Father. She then went back to bed. Father described the

child as “restless and fussy.” Father put E.M. on his thigh with the child’s legs between

his thighs. E.M. began to fall so Father lifted him up to chest level with Father’s hands

underneath the child’s armpits. E.M. continued to cry and Father became frustrated.

Father grabbed and pried on E.M.’s arm and pulled the arm down toward his own thigh.

Father said that when he laid E.M. down on Father’s lap, E.M. was crying loudly. After

about nine minutes of crying, Mother came into the room to help sooth E.M. Father did

not tell Mother about what happened because he was scared. He admitted being

frustrated and did not think he could hurt E.M.

Father was placed under arrest for willful cruelty to a child under Penal Code

section 273a, subdivision (a).

2. MEDICAL RECORDS

On August 23, 2020, E.M.’s medical evaluation was suspicious of physical abuse

but more information was needed. E.M. had a “minimally displaced fracture of the right

mid humerus diaphysis.” No other fractures were noted. The CT findings were normal

and no intracranial hemorrhage was found. The preliminary findings were “highly

suspicious for inflicted injury” because E.M. was a “very young, non-mobile infant with

an unexplained fracture of his mid right humeral shaft” and no history of trauma was

provided to explain the injury.

10 N.M.’s medical report did not reveal any “cutaneous injuries” and the skeletal

survey, head CT, and trauma labs were all normal. However, “the absence [of] injuries

does not preclude the possibility of prior physical abuse.”

D. JURISDICTION AND DISPOSITION HEARINGS

The October 27, 2020, jurisdictional and disposition hearing was continued to

November 20, 2020. Thereafter, the hearing was continued again to December 15, 2020.

Because Father was not prepared to proceed on December 15, the hearing was continued

to January 26, 2021.

On January 26, 2021, an additional information to the court was filed. The report

stated that Mother completed eight individual therapy sessions. Her therapist indicated

Mother identified that she “mishandled the situation at first and what she needs to do

moving forward to keep her children safe.” The therapist’s report was attached and

included a positive prognosis. The additional information to the court also included

mother’s completion documents for parenting and parent management. Moreover,

Mother told the social worker that she did not intend to return to Father because he is the

suspected perpetrator in this case. Mother’s visits were increased to overnight, once a

week. CFS requested authority to return the children to Mother by packet.

Father completed 12 parenting classes and eight individual counseling sessions.

Father, however, denied E.M.’s arm was broken while in Father’s care. Father accepted

that it was a mistake not to inform Mother. He, however, denied that he caused the injury

because E.M. was not upset. The Child Abuse Prevention and Treatment Services reports

11 indicated a positive prognosis for Father, but also indicated that Father had not taken

responsibility for the injury and recanted his previous statements.

The children continued to do well in the care of Aunt. CFS continued to

recommend reunification services for Mother and no reunification services for Father.

At the January 26, 2021, jurisdiction and disposition hearing, the juvenile court

found (1) the amended section 300, subdivision (j)(1), allegation on N.M.’s petition to be

true; (2) the amended section 300, subdivision (a)(1), and (b)(3), allegations true on

E.M.’s petition; and (3) dismissed the section 300, subdivision (b)(2), allegation on

E.M.’s petition. The court then set the matter for a contested disposition hearing on

February 9, 20201. The court authorized CFS to expand Mother’s visitation beyond one

overnight a week.

At the contested disposition hearing on February 9, 2021, the court continued the

hearing to March 10, 2021.

On March 9, 2021, CFS filed an addendum report. The social worker

recommended the children be returned to Mother’s custody with in-home court-ordered

supervision. CFS continued to recommend that Father receive no reunification services.

Dr. Velasquez’s report and CV were attached to the addendum; she was stipulated

to be an expert witness at the hearing. Her report dated February 24, 2021, included a

clinical interview and the administration of psychological testing. She was provided with

the jurisdiction and disposition report from September 16, 2020, and law enforcement

report from August 27, 2020. Father reported to Dr. Velasquez that he did not think he

hurt E.M., but was uncertain now. Father accepted that his son was hurt but that it was an

12 “indiscretion, a mistake,” and he would never hurt his children. Father presented himself

in an overly positive light, which the doctor deemed appropriate given the child custody

issues. Dr. Velasquez concluded that Father would benefit from family reunification

services; Father had completed parenting classes and this along with his emotional

functioning would ensure his children would not be at risk of future harm. Dr. Velasquez

stated that Father had the “psychological resources” to learn from his past behaviors. She

did not have concern for the safety of the children and believed that Father would benefit

from family reunification services.

The social worker interviewed Father about the psychological evaluation. Father

expressed that he believed he was entitled to an opportunity to reunify because he had

been compliant with all of CFS’s requests. Father stated that he was remorseful and what

occurred was “an accident and never intentional.” Father said he is “big and strong” and

may have caused the break “accidentally.” He maintained that he was coerced into

admitting that he hurt his son so the children could then be returned to Mother.

The social worker interviewed Parents about their relationship. Father said that

marriage is forever and that he would like to reconcile with Mother but he had hardly

talked with her. Mother stated that in her religion, marriage is forever and that no one in

her family had ever been divorced. She, however, stated that “ ‘There is a first time for

everything.’ ” On February 25, 2021, Mother provided an email exchange with her

property manager, which showed that she no longer shared a lease with Father. On

March 5, 2021, the social worker made an unannounced visit to the home. Mother was

13 not present but the home appeared appropriate. Later that day, Mother informed the

social worker that she was filing for divorce.

At the hearing, the juvenile court accepted the March 9, 2021, addendum report,

Dr. Velasquez’s report and CV, and considered all previous reports entered into evidence

at the jurisdiction hearing. Dr. Velasquez was then called to testify.

1. TESTIMONY OF DR. VELAZQUEZ

On direct examination, Dr. Velazquez testified that Father does not have a

diagnosable mental disorder. She stated that he tended to show himself in a positive

light, which was acceptable given the circumstances. She reenacted what Father claimed

he did the day E.M.’s arm was broken. She described father as “distraught” during his

reenactment. She testified that Father said, “I never ever wanted to hurt my children or

my son . . . his arm was broken . . . I was taking care of him, so it had to be my fault. I

feel so responsible for this. I need to learn what I can do different.” Dr. Velazquez

testified that, in her opinion, Father had the psychological, emotional, and intellectual

capacity to learn from this incident. She stated that Father had no history of violence and

opined that a lack of past violence indicates that there will not be future violence. Dr.

Velasquez opined that Father would benefit from family reunification services. She

recommended parenting classes, family therapy with Mother, and individual therapy.

The children’s counsel cross-examined Dr. Velazquez. When asked about the

discrepancy between the statements Father made to her and the statements he made to

law enforcement, Dr. Velazquez responded that when Father spoke to law enforcement,

he was scared of what they would think and of what Mother would think. Therefore,

14 Father told them what he thought they wanted to hear. When Father spoke with her,

however, he told her what he remembered, without being scared.

On cross-examination by county counsel, Dr. Velazquez attempted to explain what

Father had stated to her. She said it was difficult to convey what Father had stated in

English because they spoke Spanish in the interview. Dr. Velasquez stated that Father

was “frustrated,” and “it’s not that he felt frustrated at [E.M.], but [Father] was frustrated

he couldn’t comfort [E.M.] and have him stop—to keep him from being fussy.” She

went on and stated: “So [Father] was trying to do everything he knew how to comfort his

child; everything he knew how to do it. He even said to me, ‘I was a new father. I did

not really know how to comfort him as a mother does.’ His wife. ‘And I was trying

everything I could to try to help because my wife hadn’t slept. And I was trying to get—

make sure that she was okay and I was trying to comfort him.’ So that’s what he said.”

County counsel then asked—“So after reading all the reports and knowing that the

forensic doctors find that this injury—this broken arm to this three-month old is highly

suspicious for inflicted trauma, it’s still your opinion that you have absolutely no

concerns for the safety of his children?” Dr. Velasquez responded, “I do not.”

On redirect and recross by Mother’s counsel, Dr. Velazquez opined that Father did

not have the intent to abuse E.M., and did not take out his frustration or anger on him.

During closing argument, Father’s counsel argued that Father did not intend to

cause harm to E.M., and “he’s still somebody that owns up to it, that wants to get better

that has taken responsibility for it.” Counsel cited to Dr. Velazquez’s opinion that Father

15 could benefit from services and claimed that the children would benefit greatly having

him in their life.

Mother’s counsel focused on the discrepancies in Father’s stories about what had

occurred. Counsel argued that the evidence showed Father “intentionally broke the

child’s arm” and that the “(b)(6) bypass is appropriate.”

County counsel joined with the children’s counsel and stated that Father was

telling people “what he wants to be true” and “has a problem with being consistently

honest about facts.” His statements to the police were very specific and different from

what he told Dr. Velazquez. Counsel also found the explanation given to Dr. Velazquez

to be illogical—that as the child fell, Father let go of the child’s torso with one hand and

grabbed the child’s hand/arm. As for the doctor’s opinion, county counsel noted that it is

only one of the factors relevant to a section 361.5, subdivision (b)(6) bypass. Counsel

further argued that Father was “backtracking” in taking responsibility and that he has not

made progress despite getting predispositional services.

The juvenile court found Father to be the children’s presumed father and that

ICWA did not apply. As for the factors under section 361.5, subdivision (b)(6), the

juvenile court stated: “I am not [going] to offer services to [Father] unless there is clear

and convincing evidence that reunification is in the best interest of the children. And I’m

to take into account some specific factors to include a specific act or omission comprising

the severe physical harm, the circumstances under which it was inflicted, the severity of

emotional trauma suffered by the child, the history of abuse of other children, likelihood

that the children may be returned within 12 months with no supervision, and the child’s

16 desire to be reunified. The court noted that the children are obviously “too young to

express any opinion and I have no history of abuse of any other children. [¶] Because of

the age of the child, the severity of emotional trauma is also really unknowable if there is

any.”

As to the other three factors, the juvenile court found that the case was not “about

intent. . . . [¶] Specific intent in this case is not what we’re looking for. I don’t believe

that [Father] intended to hurt the child. But he did an intentional act which hurt the

child.” The court went on and noted that it believed that Father’s “description to the

police [was] the more accurate statement of how this happened. It wasn’t just an

accident; it was an intentional act that he did to this child who was three months old at the

time, which resulted in the fracture. [¶] I believe [Father’s] statement that he was

frustrated and I think that’s something that we can all understand how having two twins,

a three month old, and crying and getting little sleep would lead to frustration.” The

court then went on and noted that Father “backslid” from that admission, probably

because of the pending criminal case. However, the court stated that if the incident was

an accident, Father should have been forthcoming. Therefore, the court believed “that the

statement to the police is far more credible and explains the injury which is in line with

what the medical forensic doctors believe.”

The court concluded that there was not a substantial likelihood that the children

would be returned to Father in 12 months without continuing supervision. The court

found the factors under section 361.5, subdivision (b)(6), bypass had been proven “and

also based on the fact that the children are going to be in the care of the mother, services

17 would be discretionary at this point even if [the court] did not bypass [Father].” The

court then ordered visits at two times a month, supervised, for Father, and set a semi-

annual review hearing on September 10, 2021.

On April 9, 2021, Father filed a notice of appeal from the findings and orders

made at the contested disposition hearing on March 10, 2021.

DISCUSSION

A. THE COURT’S ORDER REMOVING THE CHILDREN FROM

FATHER IS SUPPORTED BY SUBSTANTIAL EVIDENCE

Father contends that “the juvenile court erroneously removed the children from

Father’s custody at disposition.”

“A dependent child shall not be taken from the physical custody of his or her

parents . . . with whom the child resides at the time the petition was initiated, unless the

juvenile court finds clear and convincing evidence . . . . [¶] (1) [That] [t]here is or would

be a substantial danger to the physical health, safety, protection, or physical or emotional

well-being of the minor if the minor were returned home, and there are no reasonable

means by which the minor’s physical health can be protected without removing the minor

from the minor’s parent’s . . . custody.” (§ 361, subd. (c).)

“Because we so abhor the involuntary separation of parent and child, the state may

disturb an existing parent-child relationship only for strong reasons and subject to careful

procedures.” (In re Kiesha E. (1993) 6 Cal.4th 68, 76.) California law therefore

“requires that there be no lesser alternative before a child may be removed from the home

of his or her parent.” (In re Jasmine G. (2000) 82 Cal.App.4th 282, 284; § 361, subd.

18 (c)(1).) But, “ ‘ “[t]he parent need not be dangerous and the minor need not have been

actually harmed before removal is appropriate. The focus of the statute is on averting

harm to the child.” [Citation.] The court may consider a parent’s past conduct as well as

present circumstances.’ ” (In re John M. (2012) 212 Cal.App.4th 1117, 1125.)

We review a juvenile court’s dispositional order removing a child from parental

custody for substantial evidence, “ ‘bearing in mind the heightened burden of proof.’ ”

(In re Hailey T. (2012) 212 Cal.App.4th 139, 146.) “Clear and convincing evidence

requires a high probability, such that the evidence is so clear as to leave no substantial

doubt.” (In re Isayah C. (2004) 118 Cal.App.4th 684, 695.) Still, the appellant bears the

burden of showing “ ‘there is no evidence of a sufficiently substantial nature’ ” to support

the dispositional removal order. (In re D.C. (2015) 243 Cal.App.4th 41, 55, superseded

by statute on other grounds as stated in In re A.M. (2020) 47 Cal.App.5th 303, 322.)

In this case, it is undisputed that Father did not challenge the jurisdictional finding

of the juvenile court that while E.M. was in Father’s care, E.M. suffered a displaced

humerus fracture to his right arm, consistent with inflicted nonaccidental trauma, which

placed both E.M. and N.M. at risk. The injury was caused by an intentional act done out

of frustration. The juvenile court concluded that Father intended to commit the act that

caused the broken arm.

With the facts mentioned above in mind, we find that substantial evidence shows

that removing the children from Father’s custody was necessary to protect the children’s

physical, developmental, and emotional well-being, and there were no other reasonable

19 means by which the children’s well-being could be protected without removing them

from Father’s custody. (§ 361, subd. (c)(2).)

Here, when interviewed by law enforcement shortly after the injury to E.M.

occurred, Father described prying and pulling on E.M.’s arm to the officers. E.M. cried

for approximately nine minutes afterwards. Father informed law enforcement that he did

not tell Mother because he was scared. Father eventually told Mother. She informed the

social worker that Father told Mother that he may have injured E.M. when Father had the

child’s torso between his legs. The juvenile court found this version of events credible.

The evidence in this case showed that Father was not forthcoming and provided

multiple versions of the events, often contradictory, that caused E.M.’s broken arm.

Although he initially admitted prying and pulling E.M.’s arm, on September 4, 2020,

Father told the social worker that the injury was an accident and “adamantly denied he

intentionally harmed [E.M.].” Again, Father stated that he may have grabbed E.M. hard,

but he did not cry a lot. Father went on to explain that although in the law enforcement

interview he admitted breaking E.M.’s arm, he did not do it. Father stated that he may

have said he “put pressure when folding the child’s arm.” About a month later, Father

claimed that he was “psychologically pressured” by the detectives and there was a

language barrier even though an officer who spoke Spanish was present during the

interview. Then, in his therapy report from December 1, 2020, the therapist noted that

Father told her he did not hurt E.M., he did not know how the child broke his arm, and

the child was not upset when Father put the child in his crib. Father also told the social

worker in an interview on February 12, 2021, and Dr. Velasquez during his evaluation,

20 that the child’s injury was an accident, not intentional. Father never took full

responsibility for his actions.

Moreover, Father’s participation in predispositional services did not ameliorate the

risk to the children. Before, during, and after completion of his services, Father changed

his version of events on several occasions. Father has not fully engaged in voluntary

services. Moreover, he continues to minimize what occurred and has failed to take

responsibility for his actions, even while participating in services.

Based on the above, we find substantial evidence supports the dependency court’s

finding that there was a substantial risk to the children and no reasonable means to

protect them under section 361., subdivision (c)(1), without the removal from Father’s

custody.

Notwithstanding, in support of his claim that the juvenile court erred in removing

the children, Father relies on In re Steve W. (1990) 217 Cal.App.3d 10. Steve W.

involved an order removing an infant from the mother’s care after the father had been

convicted of killing an older child. (Id. at pp. 12-15.) The mother testified she had no

intent of resuming her relationship with the father. (Id. at p. 15.) The appellate court

found the juvenile court’s removal order had been improperly based on “speculation” that

the mother “would enter a new relationship with yet another abusive type of person.” (Id.

at pp. 16, 22.) In Steve W., however, the mother, though aware of the older child’s

injuries, had received an explanation for the injuries that a doctor testified would have

been believable to an untrained person. (Id. at p. 21.) Moreover, the infant in Steve W.

had not been abused himself, and the mother was not guilty of harming the infant.

21 Unlike the mother in Steve W., here, Father caused the injury to E.M. The risk to

the children was not speculative. After father caused serious physical injury to E.M. out

of frustration, he did not call the doctor or alert Mother. He did not take the child to the

hospital. He was not forthcoming with the investigators, his wife, or Dr. Velasquez about

the events that led to E.M.’s injury. Therefore, we find Father’s reliance on Steve W. to

be unpersuasive.

B. THE JUVENILE COURT PROPERLY DENIED REUNIFICATION

SERVICES TO FATHER

Father contends that “the juvenile court erred when it denied Father reunification

services pursuant to section 361.5, subdivisions (b)(6) and (c).”

Under section 361.5, subdivision (a), “whenever a child is removed from a

parent’s or guardian’s custody, the juvenile court shall order the social worker to provide

child welfare services to the child and the child’s mother and statutorily presumed father

or guardians.” (§361.1, subd. (a).) For purposes of section 361.5, child welfare services

may include both reunification and maintenance services. (In re Pedro Z., Jr. (2010) 190

Cal.App.4th 12, 19 (Pedro Z.).) Under section 361.5, subdivision (b), the juvenile court

may deny reunification services in certain enumerated circumstances to those who would

otherwise be entitled to receive them.

However, when a child is not removed from his or her custodial parent in the

dependency proceeding, “no ‘reunification’ services are called for.” (In re A.L. (2010)

188 Cal.App.4th 138, 145.) Instead, the court, in its discretion, may order services aimed

22 “to eliminate those conditions that led to the court’s finding that the child is a person

described by Section 300.” (§ 362, subd. (d).)

In this case, the children were removed from Father and maintained with Mother

with family maintenance services. Prior to the dependency, both parents were custodial

parents. The children, therefore, are not in out-of-home care. They remain in the home

of Mother, who was previously a custodial parent. Therefore, Father is not entitled to

reunification services under section 361.5.

Under section 362, the juvenile court could choose to order services for the non-

custodial parent. These services are commonly referred to in dependency as

“enhancement services” (In re Destiny D. (2017) 15 Cal.App.5th 197, 212); they are not

the same as reunification services. Enhancement services are a form of discretionary

“ ‘child welfare services offered to the parent not retaining custody, designed to enhance

the child’s relationship with that parent.’ ” (Id. at p. 212.) Unlike reunification services,

enhancement services are “ “ ‘not designed to reunify the child with that parent, but

instead to enhance the child’s relationship with that parent by requiring that parent to

address the issues that brought the child before the court.’ ” ’ (Id. at pp. 212-213.)

Unlike reunification services, enhancement services are not subject to strict timelines,

periodic review, or mandatory extensions. (Compare § 362 with §§ 361.5 & 366.21,

subd. (g)(1).) And unlike reunification services, which are mandatory and must be

reasonable, enhancement services are wholly discretionary. (In re Destiny D., at p. 213.)

We therefore affirm an order on enhancement services unless the appellant demonstrates

the order “was arbitrary, capricious or patently absurd.” (Ibid.) Here, we find that the

23 court’s denial was not arbitrary, capricious or patently absurd based on the facts

described in detail ante regarding Father’s involvement in injuring E.M. Therefore, we

discern no abuse of discretion.

C. THE JUVENILE COURT PROPERLY ORDERED THAT VISITATION

BE MONITORED

Father contends that the juvenile court erred in “unjustifiably, restrict[ing] Father

and his children to supervised visitation.” We disagree and affirm the court’s visitation

order.

We review a juvenile court’s visitation orders for abuse of discretion. (In re Julie

M. (1999) 69 Cal.App.4th 41, 48-51.) A juvenile court is given wide discretion in

determining the appropriate terms and conditions of visitation between dependent

children and their parents. (In re Megan B. (1991) 235 Cal.App.3d 942, 953.) Visitation

orders should include frequency and duration, and the court cannot delegate whether

visits will occur to the social services agency, child, or therapist. (In re Jennifer G.

(1990) 221 Cal.App.3d 752, 757; In re Danielle W. (1989) 207 Cal.App.3d 1227, 1237;

In re Julie M., supra, 69 Cal.App.4th at pp. 48-49; In re Donnovan J. (1997) 58

Cal.App.4th 1474, 1477-1478.)

Under the abuse of discretion standard of review, we discern that the court’s

visitation orders did not exceed the bounds of reason. Here, the supervision of visitation

between Father and the children is more than justified given the severity of the injury to

E.M., and the lack of progress Father has made, as provided in detail ante. Additionally,

given the facts of this case, the court may very well have abused its discretion if it

24 ordered visitation to be unsupervised. Therefore, we find Father’s contention to be

without merit.

DISPOSITION

The juvenile court’s jurisdictional findings and dispositional order are affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

J.

We concur:

McKINSTER Acting P. J.

CODRINGTON

J.

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