Opinion
F079594
03-05-2020
In re J.V., a Person Coming Under the Juvenile Court Law. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. SAVANNA H., Defendant and Appellant.
Landon Charles Villavaso, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Kevin A. Stimmel, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 19CEJ3000002-1)
OPINION
APPEAL from orders of the Superior Court of Fresno County. Leanne Le Mon, Commissioner. Landon Charles Villavaso, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Kevin A. Stimmel, Deputy County Counsel, for Plaintiff and Respondent.
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Savanna H. (mother) appeals from the juvenile court's disposition orders declaring her now 17-month-old son, Jonathan V. (the baby), a dependent under Welfare and Institutions Code section 300, subdivisions (a), (b)(1) and (e), removing him from parental custody, and granting reunification services to her and the baby's presumed father, Jonathan V.M. (father). Mother contends the juvenile court erred in making jurisdictional findings as to her under section 300, subdivisions (b)(1) and (e), and there is insufficient evidence to support the removal order. Finding no merit to mother's arguments, we affirm.
Undesignated statutory references are to the Welfare and Institutions Code.
Father did not file an appeal.
FACTUAL AND PROCEDURAL BACKGROUND
On December 31, 2018, the Fresno County Department of Social Services (Department) received a referral of severe neglect and abuse of the baby, who was three months old. On that day, mother and father brought the baby to the Clovis Community Hospital emergency room with a complaint of abdominal pain. Father said he was holding the baby when he "heard a thud in his chest" and the baby would not stop crying. The baby had bruising and scratches on his face, as well as multiple rib fractures, and the doctor did not feel the parents' statements were consistent with those injuries.
A social worker responded to the hospital on January 1, 2019. A nurse reported that when the baby was brought in, the parents were concerned about rib pain. When asked to describe what happened, father said he was changing the baby and holding his legs to his chest to help him poop. When he picked the baby up around the chest, he heard a "thud" and the baby started crying. Father could not get the baby to stop crying, so after about 30 minutes he and mother decided to bring the baby to the hospital. The nurse noted bruising to both of the baby's eyes and some scratching to his face. Father said the baby head-butted him in the face when he was holding him, but this explanation did not seem consistent with the baby's injuries.
Subsequent references to dates are to dates in 2019, unless otherwise stated.
The social worker spoke with the attending doctor, who said the family gave him the same version of events. The doctor noted that to explain the bruising to the baby's face, father said he was lying on the floor that day, with a phone in one hand and the baby sitting on his stomach. At one point, the baby moved and, thinking he might fall, father reacted and head-butted the baby. A skeletal survey was completed, which showed the baby had three to four posterior and anterior lateral left rib fractures, which were fresh. Very little time had passed since the time of injury. The bruising around the face did not seem to match up with father's explanation and the doctor felt the facial injuries were not the result of a head-butt. The doctor consulted with the radiologist, and they agreed the fractures were classic non-accidental trauma injuries and highly suspicious of child abuse, given the lack of a reasonable explanation for them.
The social worker spoke with the parents and saw the baby. The baby had bruising on both eyelids and under both eyes, and there appeared to be bruising across, and possibly on both sides of, his nose. Mother and father lived together with the baby. They both worked - mother had two part-time jobs, one of which was as a certified nursing assistant (CNA), while father worked full time. Mother said the baby was healthy. They had recently taken him to the doctor, and he was diagnosed with thrush. Mother and father denied any drug use, domestic violence, or mental illness. Father denied having a criminal history, while mother said she had a history as a juvenile.
The social worker noted the parents were asked about the injuries several times and their version of events did not change, they merely added additional details. Father told the police officer who responded to the hospital due to a call of child abuse that he was taking care of the baby while mother was at work. At about 3:30 p.m., father was lying on his back on the floor of their apartment with the baby, who was able to hold his head up and sit upright, seated on his stomach. Father's right hand was on the baby and he was holding a phone in his left hand, browsing the internet, when the baby started to fall forward. Before he knew it, the baby struck the front of his face. The baby began crying and ultimately became very frustrated, but father was able to calm him down.
At about 7:15 p.m., he was changing the baby's diaper and moving the baby's legs in a bicycle manner, as he read online that would help the baby pass gas, relieve stress, and discharge any extra fecal matter. After he finished the diaper change, he picked the baby up by holding both sides of the baby's ribcage, raised the baby into the air, and started coddling him. When he picked the baby up, he felt cracking of the baby's left ribs. He contacted mother and she immediately asked to be picked up, as she does not drive, so they could take the baby to the hospital. They went home to get the baby's medical card and then took the baby to the hospital.
Mother told the police officer father dropped her off at work between 2:30 and 3 p.m. that day, as she did not have a driver's license, and the baby seemed fine; he did not have any bruises or marks on his face and did not seem to be in pain. At about 3:30 or 4 p.m., father called her and said the baby head-butted him when he was holding the baby on his stomach while lying on the ground. Mother was not too concerned because father had gotten a little rough with the baby in the past and she told him he needed to be very careful. Mother added there had been times when she needed to warn father about his aggressive handling of the baby and how he tended to get quickly frustrated. She told father he needed to calm down, take a walk, and separate himself from the situation.
At about 7:15 p.m., father called her again and told her he felt the baby's left ribcage area crack when he picked up the baby. Mother became extremely concerned for the baby's safety and wanted to immediately take him to the hospital. She asked father to pick her up at work; when he arrived, the baby was sleeping in the back seat and she did not notice anything wrong. They went home so she could pick up a copy of the insurance card to see which hospital they could go to, and then went to Clovis Community Hospital.
The parents told the social worker the same version of events. Father said he first contacted mother around 3:45 p.m. to tell her he and the baby head-butted. Mother said they played phone tag a couple times and father sent text messages which included a couple pictures of the bruising, even as it started to worsen. Father said the baby hit him fairly hard and he may have hit the baby hard in the face when he was trying to catch him. Mother said she reminded him to be more careful, but did not think much of what happened. Father said he heard a "thud" when he lifted the baby up after changing his diaper. The baby cried for about 30 minutes and when he could not console him, he called mother and told her they needed to take him to the doctor. Mother said she received the call around 7:45 p.m. The parents said they were the only ones who cared for the baby. They denied that the baby had been in any accidents or had fallen in the past 24 hours.
The social worker asked the parents if the baby had other injuries in the past. The parents said they liked to have the baby stand, as they felt he was strong enough, but he had fallen and hit them on the collarbone or face, and he had small red marks in the past, but nothing like this. Father admitted mother often told him not to play so rough with the baby or corrected him when he was picking up the baby, to help support his head, which mother confirmed. Both denied ever being frustrated with the baby or doing anything to harm him.
The social worker spoke with mother alone. She denied having any worries or concerns with father caring for the baby. While she had to talk to father about how to handle the baby, she did not believe he would ever intentionally hurt the baby. Mother said there had been times when she pretended to be asleep so she could watch father interact with the baby, and she saw that father followed her direction and was appropriate with the baby. Mother acknowledged they both would get frustrated and overwhelmed at times while caring for the baby, but they would "use each other and ask for space when needed." Mother was in foster care for years and around children who were abused, as was she, and she did not believe that was the situation for her son, she did not feel father would intentionally hurt her son, and if she thought father harmed her child, she would call police herself.
A protective hold was placed on the baby, who had been transferred to Community Regional Medical Center (CRMC) trauma unit for further evaluation and consultation.
A police detective spoke with the parents later on January 1. Father told the detective he loved his son so much he would squeeze him really tight when he hugged him. When asked to describe this, father said that while the baby's back was on his stomach, he would bear hug him, pressing his right fist into the baby's left side. Father said he would often do this about seven times, noting the last time was about 20 minutes after the baby fell and hit his face. He stopped bear hugging the baby because the baby was having trouble catching his breath and made a wheezing sound. Father laid the baby down for a nap, and the baby continued to wheeze while he slept.
The detective told the social worker it appeared father might not fully understand how fragile the baby is. It appeared mother had told him on numerous occasions not to be so rough in how he played with or picked up the baby, but he might not have been listening. Both parents talked about how they would do bicycle legs with the baby and mother acknowledged there were times she left bruises after doing this. Father told the detective he would toss the baby in the air without letting go and only stop when the baby was tired, which he knew because the baby's head was bobbing all over and he could no longer control it. Father acknowledged he must have done something, but it was unknown whether he had an angry intent. Police searched the family's home, which was found to be clean and in order with no noted concerns.
The social worker spoke with a CRMC social worker regarding the baby on January 2. The CRMC social worker reported the skeletal survey showed the baby had two previous fractures, one on the leg and the other on the wrist, which were healing, and father's explanation of the baby's current injuries did not seem consistent with them. A public health nurse notified the social worker the baby's CRMC medical records disclosed closed fractures of multiple ribs on both sides (left ribs 4-6 and right ribs 4-5), facial bruising, and possible and probable leg fractures. In addition, a CT scan of the head showed bilateral subdural hemorrhages, the left side greater than the right side, but there was no sign of retinal hemorrhages. No orthopedic or neurosurgery interventions were planned.
According to the neurologist who consulted on the case and examined the baby, the baby's "clinical history and neurologic examination [was] consistent with traumatic brain injury, which in the context of multiple rib and other bone lesions, is secondary to nonaccidental trauma. The abnormalities noted on the head CT and brain MRI are consistent with subdural and cerebral contusion from coup contrecoup injury. These areas of injury to the superficial grey matter may ultimately undergo atrophic changes. The exam today seemed normal and the long term consequences are difficult to predict."
CRMC records showed the baby was neurologically intact, but it was hard to tell his neurological and developmental future. Although the baby appeared to be developing and responding normally, without any obvious deficits, he was at increased risk for developmental delay. The baby was referred to outpatient pediatric neurology for a follow-up in six months due to the concern for developmental delay due to the traumatic brain injury.
The Department social worker went to the family's home, which was clean, furnished and appropriate. The social worker spoke with mother and told her the baby had fractured ribs on both sides, as well as subdural hemorrhages, and father's explanation was inconsistent with the injuries. The social worker asked mother about father being "rough" with the baby. Mother said she was a CNA and had told father how to appropriately handle the baby when he picks him up. Mother did not believe father would hurt their son.
On January 3, a public health nurse advised the social worker of the baby's most recent hospital progress notes, as well as a child advocacy consultation. The doctor who performed the consultation documented: "There is no clear explanation as to how the injuries occurred. Given the injuries present[,] the fractures and subdural hematomas are most likely the result of non-accidental trauma secondary to shaken baby syndrome."
A team decision meeting was held, which the parents attended. Father stated he wanted his son to grow up and was not always patient with him. Instead of waiting for the baby to meet his milestones, he "pushed" him. Mother never thought the baby was hurt, as he would not cry when she held him up as he grabbed her fingers and there was no sign of injuries. Father admitted he had been told he was "too rough" with the baby and often used more strength than needed. It was decided to have the baby remain in out of home care.
The Department filed a petition alleging the baby came within the provisions of section 300, subdivisions (a) (serious physical harm), (b)(1) (failure to protect), (e) (severe physical abuse), and (i) (cruelty). Allegations were made against each parent under each subdivision and were based on the new and older injuries. On January 9, the juvenile court ordered the baby detained and gave the parents supervised visitation.
The Department's Report
In a report prepared for the jurisdiction and disposition hearing, the Department recommended the petition's allegations be found true and the parents be given reunification services. The parents attended a meeting at the Department on February 4 and met separately with Department staff. When asked about the baby's injuries, father provided the same explanation as in the past. Father added the baby was very "mobile" and he thought if he could help him become more mobile, the baby would be able to "play" sooner, so they would stand and sit him up with minimal support. When advised he had unrealistic expectations for a three-month-old baby, he agreed and stated he needed child development education. Father, who was emotional when talking about the baby's injuries, stated: "After what happened, it shows me that I am very uneducated, and every day, I think about how I unintentionally hurt my son." Father did not want anyone else to take care of the baby, as he believed he and mother could "do a better job" than their family members.
Mother did not believe father intentionally hurt the baby. She acknowledged they both could benefit from parenting and child development classes. When asked to describe her relationship with the baby, mother became emotional and said she "loves him to death." She said she would have no problem contacting law enforcement if father were to hurt her or the baby. Mother and father continued to live together and were an intact couple.
The social worker told mother that since the Department had substantiated allegations against her and father, their names would have to be submitted to the Child Abuse Central Index (CACI), and advised mother of the grievance process. Mother stated she would lose her job and she would file a grievance as soon as possible.
The baby, who was discharged from the hospital on January 4, had a follow-up medical visit for his rib injuries on January 7; he was doing well with normal development. A week later, he had a physical exam; he appeared to be in good health and was feeling well. He was required to have his ribs wrapped for three to four months, until they healed. The baby's care provider reported he was an alert baby, was responsive when spoken to, made eye contact, and followed voices. There were no developmental concerns.
The parents' visits with the baby appeared to go well. They interacted appropriately with the baby and were very affectionate with him. The baby maintained eye contact with his parents, and smiled when they sang to him or made various sounds. The parents were gentle with the baby and no concerns were reported.
A family reunification services initial review panel reviewed the appropriateness of providing reunification services to the parents. The panel determined the parents met the criteria for denial of services under section 361.5, subdivisions (b)(5) and (6) based on the jurisdictional allegations against them of severe physical abuse under section 300, subdivision (e), and infliction of severe physical harm under section 300, subdivisions (a), (e) and (i). Nevertheless, the panel recommended the parents be offered reunification services, as doing so would not be detrimental to the baby.
The Department believed the parents' behaviors were likely to change if they received reunification services, as they acknowledged they had unreasonable expectations of the baby's physical abilities; father did not understand how fragile the baby was; father insisted he did not intentionally hurt the baby and mother adamantly believed he did not do so; and the parents denied domestic violence in the home. While the prognosis of safely returning the baby to the parents' care within 12 months was guarded, it appeared likely at the time. The parents were participating in parenting classes on their own and visiting the baby twice per week. Although the parents were not currently able to meet the baby's need for stability and continuity, the Department opined it would be in the baby's best interest to provide them reunification services.
The Jurisdiction Hearing
A contested jurisdiction hearing was held on June 26. At the outset of the hearing, the parties stipulated that based on additional medical documentation the Department provided to the parties, it had been confirmed the baby did not sustain prior fractures to his ribs, arms or legs, and it appeared the rib fractures were a single injury.
Only mother filed a statement of contested issues which raised only one issue, namely whether the Department could prove the petition's allegations.
The Department asked to withdraw counts against mother under section 300, subdivisions (a) and (i), and amend the remaining counts to allege as injuries only the baby's new rib fractures and bruising to the face. As pertinent here, the amended petition alleged as to mother: (1) under subdivision (b)(1), that the baby had suffered, or was at substantial risk of suffering, serious physical harm or illness as a result of mother's negligent failure to adequately supervise or protect the baby from father, as mother knew or reasonably should have known father could physically abuse the baby; and (2) under subdivision (e), that the baby had suffered serious physical abuse by father, and mother knew or reasonably should have known he was physically abusing the baby. The Department submitted on the jurisdiction and disposition report.
Mother called the assigned social worker for the case as a witness. When asked to explain the Department's theory on how the baby was injured, the social worker described father's reports of how the injuries occurred. It appeared to the social worker the parents delayed seeking medical care because once father heard the "thud," he waited to pick up mother rather than call 911. While the Department believed the parents should have called 911, they did seek medical care. When asked whether the Department believed mother knew or should have known about the baby's injuries, the social worker answered that throughout the investigation, father stated he wanted his son to grow up sooner and admitted he was not always patient with the baby, and mother reminded him often not to be too rough with the baby, which mother confirmed.
The social worker was asked whether it was the Department's opinion that abuse occurred prior to the date the baby was taken to the hospital The social worker responded the Department's allegations were based on the evidence provided, including that the baby was taken to the hospital on December 31, 2018, the parents had not disclosed prior abuse, and "there were not previous fractures on the minor indicating abuse, previous abuse." Mother told the social worker she had taken the baby to the doctor for thrush about 10 days before he was hospitalized and provided documentation of the visit, which did not show any indication there had been bruising, or signs of abuse or neglect. The social worker confirmed that despite the earlier allegation of multiple fractures throughout the baby's body, the Department now believed the baby's ribs were fractures in a single incident, as the parties stipulated. The Department supported the recommendation the parents should reunify with the baby.
Mother testified on her own behalf. She worked as a CNA at a healthcare facility, assisting a nurse in the care of geriatrics, and planned to further her profession or education in healthcare. She took the baby to the pediatrician around December 21, 2018 with concerns of thrush. The doctor, who examined the baby, did not say he had any concerns about the baby being sensitive or in pain.
Mother testified father called her at work on the day in question to let her know about the baby falling towards him, and that he had changed the baby, fed him, and put him to bed. Mother told father to let her know if the bruises got darker, the baby started acting differently, or the baby got a temperature. Later that day, father called to tell her about the next incident. He said he "heard a thud" when he was doing "bicycle legs to the baby." Mother asked father to feel the baby's ribs to see if anything felt different, listen to the baby's breathing, and see if the baby was alert, eating, and using the bathroom. Father said all those things were fine, but he was concerned. Father asked her to leave work so they could go to the hospital to check it out, just in case. They decided father would pick her up and they would "go back to the house, and get the right things for the hospital and then head there." They went to the hospital together because mother "knew where the Medi-Cal things were" and they "thought it was a family thing to do."
When asked to describe the concerns she had about father's handling of the baby before the baby was hospitalized, mother responded, "[t]he only thing I ever stated was that as a CNA I was taught to lift them from underneath instead of grabbing them from on top." Mother denied having any other concerns about the way father interacted with the baby or leaving the baby with him while she was at work. Mother did not believe father sent her any pictures of the baby's first injury and did not recall seeing any pictures of the baby's injuries before they took the baby to the hospital.
Following the argument of counsel, the juvenile court found the amended allegations under section 300, subdivisions (a), (b) and (e) had been proven by a preponderance of the evidence, but found the amended subdivision (i) allegation was not true. The juvenile court addressed arguments made regarding the subdivision (a) and (e) counts, finding that while father may not have intended the results, his actions were intentional as to how he handled the baby. The juvenile court further found as to the subdivision (e) count that mother knew or reasonably should have known of father's physical abuse of the baby based not only on the fractured ribs, but also the bruising to the face that appeared earlier that day, and mother's statements about father's handling of the baby, including that he had been rough with the baby in the past and she told him on numerous occasions how to pick up the baby. The juvenile court found the baby was described by section 300, subdivisions (a), (b) and (e).
The juvenile court immediately proceeded to disposition, without argument or objection by any of the parties' attorneys, stating it considered the same evidence it considered for jurisdiction. The court found there was clear and convincing evidence supporting removal of the baby from parental custody. As to the section 300, subdivision (e) allegations against mother and father, the court found only the allegations against father were supported by clear and convincing evidence. The court however found there was evidence that providing reunification services to father was likely to prevent re-abuse of the baby and it was in the baby's best interest to offer him services, noting the parents were young, had involved themselves in services early on and appeared to be making progress, and the court believed they would learn from the services. The court stated it did not find there was clear and convincing evidence as to the subdivision (e) count as to mother, therefore the bypass provision did not apply to her.
The juvenile court made the baby a dependent, removed him from parental custody, ordered unsupervised visits for the parents a minimum of eight hours per week which the Department had discretion to increase, and ordered reunification services for the parents. Services included a parenting class, evaluations for domestic violence and mental health, substance abuse assessments, and spot drug testing at the Department's discretion.
On May 8, the juvenile court granted the Department discretion to allow unsupervised visits.
DISCUSSION
I. Jurisdiction
Mother challenges the jurisdictional allegations as to her, arguing they are not supported by substantial evidence. Mother recognizes the juvenile court's assertion of jurisdiction would be supported by the sustained findings that father non-accidentally inflicted serious physical harm and severe physical abuse on the baby, and failed to adequately supervise or protect him. (See In re Alexis E. (2009) 171 Cal.App.4th 438, 451 [when dependency petition alleges multiple grounds for assertion that minor comes within dependency court's jurisdiction, reviewing court may affirm the juvenile court's finding of jurisdiction if substantial evidence supports any one of the enumerated bases for jurisdiction].) Appellate courts, however, generally exercise discretion to reach the merits of a challenge to a jurisdictional finding where, as here, it "(1) serves as the basis for dispositional orders that are also challenged on appeal [citation]; (2) could be prejudicial to the appellant or could potentially impact the current or future dependency proceedings [citations]; or (3) 'could have other consequences for [the appellant] beyond jurisdiction' [citation]." (In re Drake M. (2012) 211 Cal.App.4th 754, 762-763.)
Mother asserts in her opening brief we should review the grounds for jurisdiction as to her because (1) the outcome of the appeal is the difference between her being an "offending" versus "non-offending" parent, (2) the true findings affect her ability to request custody of the baby, and (3) the true findings undermine her ability to challenge the inclusion of her name on the CACI, which will affect her ability to maintain a job in the healthcare profession.
The Department of Justice is the repository of reports of suspected child abuse and severe neglect, which are maintained in the CACI. (Pen. Code, § 11170.) Upon request, the Department of Justice is required to make available information contained in the CACI to certain persons and agencies. (Ibid.) Agencies such as the Department are required to report to the Department of Justice every substantiated case of known child abuse or severe neglect. (Pen. Code, § 11169, subd. (a).) Anyone listed on the CACI has the right to a hearing to challenge the listing before the agency that requested the person's inclusion in the CACI, unless a court of competent jurisdiction has determined suspected child abuse or neglect has occurred. (Pen. Code, § 11169, subds. (d) & (e).)
In response, the Department asserts the jurisdictional findings do not directly affect the CACI-related consequence, as mother would have to file a grievance and prevail in an administrative hearing in order to have her name excluded from the CACI. The Department does not contend that we should not review any of the jurisdictional grounds found true as to mother, but rather asserts that if we find substantial evidence supports one of the statutory grounds for jurisdiction, we need not review the other ground because she would still be considered an offending parent and would not suffer any adverse consequence in relation to the other ground for jurisdiction.
In her reply, mother asserts that if we find substantial evidence supports either ground for jurisdiction, her name will be submitted to the CACI and she will be precluded from challenging her inclusion on the list. She further argues it would be appropriate to address the section 300, subdivision (e) finding because it serves as prima facie evidence the baby cannot be placed with her (§ 361, subd. (c)(1)), and thus directly impacts this proceeding with respect to whether she can request return of the baby at disposition and the burden of proof for removal.
We agree the jurisdictional findings could potentially affect future dependency proceedings (see, e.g., § 361.5, subd. (b)(3)), as well as mother's ability to obtain custody of the baby and challenge her inclusion on the CACI. Therefore, we exercise our discretion to consider whether the evidence supports the juvenile court's findings as to mother.
When the sufficiency of the evidence to support a finding or order is challenged on appeal, we review the record to determine if substantial evidence supports the trier of fact's conclusion. In doing so, we review the record in the light most favorable to the court's determinations and draw all reasonable inferences in support of the court's findings and orders. (In re I.J. (2013) 56 Cal.4th 766, 773.)
A. The Section 300, subdivision (b) Allegation
Section 300, subdivision (b)(1) applies, in relevant part, when the "child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of . . . the willful or negligent failure of the child's parent . . . to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left . . . ." A finding under section 300, subdivision (b)(1) requires three elements: "(1) one or more of the statutorily-specified omissions in providing care for the child . . .; (2) causation; and (3) 'serious physical harm or illness' to the minor, or a 'substantial risk' of such harm or illness." (In re Joaquin C. (2017) 15 Cal.App.5th 537, 561; In re R.T. (2017) 3 Cal.5th 622, 626-628.)
Mother challenges only the first element. The statutorily-specific omission the juvenile court found true was that mother negligently failed to adequately supervise or protect the baby from father's conduct because she knew or reasonably should have known he could physically abuse the baby. Mother asserts she was not negligent because she made a proactive effort to educate father, cure his childcare deficiencies, and ultimately ensure the baby's safety and protection. Comparing this case to In re Savannah M. (2005) 131 Cal.App.4th 1387 (Savannah M.), she argues father's conduct would not have caused a reasonably prudent parent to foresee he would later physically abuse the baby so as to cause serious injury, and she "should be allowed to trust father to care for his own child absent more clear evidence of wrongful conduct or abuse."
The evidence, however, supports the juvenile court's finding mother knew, or reasonably should have known, father could physically abuse the baby. Mother knew father would aggressively handle the baby and get rough with him, which required her to repeatedly warn him about his aggressiveness and tell him how to handle the baby. She also knew father tended to quickly get frustrated with the baby, to the point where she told him he needed to calm down and separate himself from the situation. It was evident even to law enforcement that father did not understand how fragile a newborn baby was, as shown by his admission he would toss the baby into the air with his head bobbing all over. Mother was concerned enough about father's handling of the baby that she watched him while feigning sleep to see if he would follow her instructions. Despite her concerns, she left the baby with father while she worked, which meant father could not take her advice to separate himself from the baby should he become frustrated.
The evidence established a pattern of father aggressively handling the baby at an age where he was highly susceptible to serious injuries when inappropriately handled or cared for. As a reasonably prudent parent, mother should have ensured father's aggressive behavior changed or another person was present when he was responsible for providing care for the baby.
The case mother relies on, Savannah M., is distinguishable. There, parents left their one-year-old twins with a family friend for 20 to 30 minutes and when they returned, the friend was changing one of the twins' diapers, which mother thought strange because the friend previously said he did not change diapers and the diaper had been changed before the parents left. The parents left the children with the friend two other times that night, and when they returned the final time, the friend was sexually abusing one of the twins. The parents immediately called the police, who took the children into protective custody. (Savannah M., supra, 131 Cal.App.4th at pp. 1390-1391.)
The juvenile court sustained an allegation under section, subdivision (b), which the appellate court reversed, as the evidence was insufficient to support a finding the past incident of sexual abuse placed the children at risk of serious future harm. (Savannah M., supra, 131 Cal.App.4th at pp. 1395-1396.) The court explained the diaper-changing incident was insufficient to cause a " 'reasonably aware' " parent to foresee future sexual abuse, noting that "without clearer evidence" of the friend's wrongful intentions, reasonable parents should be permitted to trust a family friend who had never given them reason to doubt his good intentions toward their children. (Id. at pp. 1396-1397.)
In contrast here, father had given mother reason to doubt his ability to care for the baby and his aggressive handling of the baby should have caused her to be "reasonably aware" and foresee that father could inflict serious injury to the child if left unsupervised. Mother clearly was suspicious of father's handling of the child, which required her to be "prescient or hypervigilant" under the circumstances. (Savannah M., supra, 131 Cal.App.4th at p. 1396.) While mother did try to educate father, her attempts were futile and she should have recognized father was not implementing the techniques she discussed.
In sum, given mother's prior observation of father's aggressive behavior and frustration toward the baby, her suspicions that father would hurt the baby when she was not looking, and her knowledge that the baby was hurt earlier in the day, there was substantial evidence to support the juvenile court's finding that mother failed to adequately protect the baby from father. Thus, substantial evidence supports the juvenile court's assertion of jurisdiction under section 300, subdivision (b).
B. The Section 300, subdivision (e) Allegation
In order to sustain a petition under section 300, subdivision (e), the juvenile court must find "[t]he child is under the age of five years 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." (Ibid.) "Severe physical abuse" as defined in the statute and relevant to this case means (1) "any single act of abuse which causes physical trauma of sufficient severity that, if left untreated, would cause permanent physical disfigurement, permanent physical disability, or death"; or (2) "more than one act of physical abuse, each of which causes bleeding, deep bruising, significant external or internal swelling, bone fracture, or unconsciousness."
Mother contends the evidence does not support the finding of severe physical abuse because the social worker testified there was a single incident of abuse that resulted in the rib fractures, and there was no evidence that injury would result in physical disfigurement, disability, or death if left untreated. The Department responds there was not one, but two acts of physical abuse, one of which caused significant swelling or bleeding to the baby's head and the other multiple fractured ribs. The Department asserts the brain injury, which was significant because it raised questions about the baby's neurological and developmental future, occurred earlier in the day, while the rib fractures occurred later, and together constituted "severe physical abuse" within the meaning of the statute.
Mother ignores the traumatic brain injury in her argument. Nevertheless, we agree there is no evidence the baby's injuries, namely the fractured ribs, facial bruising, and traumatic brain injury, were sufficiently severe that, if left untreated, would cause permanent physical disfigurement or disability, or death. The fractured ribs did not require casting and appeared to be healing normally. There is no evidence the bruises were severe enough to cause disfigurement. While there was concern about the baby's development due to the traumatic brain injury, there was no sign of current deficits and the neurologist admitted the long-term effects were unknown. Thus, if baby's injuries resulted from one act of abuse, there is insufficient evidence to support jurisdiction under subdivision (e).
This leaves the question of whether there is sufficient evidence to establish two acts of physical abuse which caused either deep bruising, significant external or internal swelling, or bone fracture. The juvenile court found two incidents of physical abuse occurred, one in which the baby's face was bruised and the other in which his ribs were broken. The evidence supports this finding. Father admitted there were two incidents and mother confirmed father contacted her twice to report that he injured the baby - first about the bruised face and nearly four hours later, about the broken ribs. The doctors who treated the baby did not believe father's explanation for the baby's injuries and opined they were caused by nonaccidental trauma. While it is not clear from the evidence when the traumatic brain injury occurred, that is irrelevant given the evidence supporting the finding of two incidents of physical abuse, each of which caused either deep bruising or bone fracture.
Mother also contends there was insufficient evidence she knew or reasonably should have known father was physically abusing the baby. But as the juvenile court found, mother knew father had injured the baby when he called her and reported the facial bruising. Despite her knowledge of father's propensity to aggressively handle the baby and get rough with him, as well as his tendency to get frustrated with the baby and his failure to understand the fragility of a newborn, mother did not intervene and instead left the baby with father.
Mother cites In re Roberto C. (2012) 209 Cal.App.4th 1241, to support her argument that like the evidence that case, the only evidence here of severe physical abuse was a single incident of abuse that resulted in fractured ribs of which she had no prior knowledge. In Roberto C., there was no evidence presented linking the parents to the injuries of their then nine-month-old son, and no credible evidence establishing the parents knew their son was being abused. (Id. at pp. 1248, 1254.) Here, unlike in Roberto C., there is evidence mother knew or reasonably should have known the baby was being abused, as she knew of the first incident abuse, namely father bruising the baby's face.
In sum, substantial evidence supports the juvenile court's findings that the baby suffered severe physical abuse within the meaning of section 300, subdivision (e), of which mother knew or reasonably should have known. Accordingly, the juvenile court did not err in asserting jurisdiction under section 300, subdivision (e).
II. Removal Order
Mother challenges the order removing the baby from her physical custody. She contends the order must be reversed because (1) there was insufficient evidence to support continued removal of the baby from her custody, and (2) the juvenile court failed to impose reasonable measures to avoid the necessity of removal. The Department argues mother forfeited her right to challenge the dispositional order on appeal because she did not raise these complaints below and challenged only the jurisdictional allegations.
"A party forfeits the right to claim error as grounds for reversal on appeal when he or she fails to raise the objection in the trial court. [Citations.] Forfeiture, also referred to as 'waiver,' applies in juvenile dependency litigation and is intended to prevent a party from standing by silently until the conclusion of the proceedings." (In re Dakota H. (2005) 132 Cal.App.4th 212, 221-222.) "[T]he failure to object to a disposition order on a specific ground generally forfeits a parent's right to pursue that issue on appeal." (In re Anthony Q. (2016) 5 Cal.App.5th 336, 345; see In re T.G. (2015) 242 Cal.App.4th 976, 984.) Although application of the forfeiture rule is not automatic, a reviewing court should exercise its discretion to excuse forfeiture rarely and only in cases presenting an important legal issue. (In re S.B. (2004) 32 Cal.4th 1287, 1293.) The discretion must be exercised with special care in dependency cases given they involve the well-being of children, and considerations of permanency and stability are of paramount importance. (Ibid.)
Here, mother forfeited her right to challenge the removal order by failing to object to it in the juvenile court. In her statement of contested issues, mother stated she was only challenging whether the Department could prove the petition's allegations. In closing argument on jurisdiction, mother's attorney asserted that mother was not asking the Department to dismiss the case, as she recognized the baby's injuries were serious, and "she welcomes the services and has engaged fully" by already participating in services, adding that mother "appreciates the chance and the opportunity to reunify with her son." After the juvenile court made its jurisdictional findings, it proceeded immediately to disposition and made its dispositional findings and orders without argument or objection from mother's attorney.
Mother argues she preserved the right to challenge the juvenile court's dispositional findings and orders because she submitted on the Department's report, not its recommendation. In support, she cites In re Richard K. (1994) 25 Cal.App.4th 580, 588-589 and In re Tommy E. (1992) 7 Cal.App.4th 1234, 1237-1238, which state that where a parent submits on a social services report, the parent agrees to the court's consideration of the information contained therein as the only evidence in the matter. The court in Richard K., however, also held a parent forfeits on appeal the right to contest the juvenile court's disposition by submitting to the social worker's recommendation that the child be removed, as shown by acquiescing in or yielding to the social worker's recommended findings and orders, without introducing evidence or offering any argument. (Richard K., supra, 25 Cal.App.4th at pp. 589-590.)
Contrary to mother's assertion, she did not submit on the Department's reports as to disposition. While mother cites to the reporter's transcript, she takes her attorney's statement out of context. There, her attorney stated, in concluding the argument on jurisdiction: "So we would submit to the Court given the evidence in the reporting, given the confirmed hospital records that show no additional fractures that might have caused so much concern initially in this case, appear to have been actually sustained by [the baby], it appears to be a single incident in a single day where first [the baby] bumped face - bumped his face with his father and then while being - trying to express gas from his abdomen [the baby]'s father reports that he heard a thud which it appears to be what caused the rib fractures, is not so much abuse even though it may be a (b) count of a failure to protect a child, but it certainly doesn't rise to the level of severe abuse as required in Section 300(e)." Thus, mother's attorney was not submitting on the report, but rather arguing to the court that given the evidence before it, there was insufficient evidence of severe abuse to sustain a section 300, subdivision (e) allegation.
Here, once the juvenile court found jurisdiction, mother essentially yielded to the social worker's recommended findings and orders. In any event, the record contains sufficient evidence to support the removal order. In order to remove a child from parental custody, the juvenile court must find by clear and convincing evidence, as relevant here, 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 . . . physical custody." (§ 361, subd. (c)(1).)
On review, we employ the substantial evidence test, bearing in mind that clear and convincing evidence requires a heightened burden of proof. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.) Mother bears the burden of showing there is no evidence of a sufficiently substantial nature to support the removal order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
In this case, mother posed a substantial danger to the baby's safety because, although she knew father was mishandling the baby and would get frustrated with him, she failed to take measures to protect the baby and instead left the baby in father's care, which led to the baby's injuries. The danger continued at the time of disposition because mother continued to live with father and maintain a relationship with him. Thus, the baby would not be safe in mother's care at least until mother and father engaged in services, which they acknowledged they needed, to address father's frustration and educate them on proper infant care.
We are not persuaded, given the facts of this case, by mother's contention that there existed reasonable means to prevent the baby's removal from her, such as asking father to leave the home, conducting unannounced home visits, or allowing mother to live with the baby's caretaker. While mother was cooperative with the Department and quickly enrolled in services, under any of these scenarios, nothing prevents her from allowing father to have access to the baby. Short of monitoring mother 24 hours a day, there was no way to ensure the baby's safety except by removing him from mother's care.
Mother's reliance on In re Basilio T. (1992) 4 Cal.App.4th 155 (Basilio T.), In re James T. (1987) 190 Cal.App.3d 58 (James T.), In re Jeannette S. (1979) 94 Cal.App.3d 52 (Jeannette S.), and In re Ashly F. (2014) 225 Cal.App.4th 803 (Ashly F.), is misplaced.
In Basilio T., the appellate court found insufficient evidence to remove minors from the home when the department relied upon several incidents of parents fighting with each other, without evidence of physical harm to the children. The court determined that since this was not an extreme case of parental abuse or neglect and the minors were not physically harmed, they could have been returned to the parents under strict supervision. (Basilio T., supra, 4 Cal.App.4th at pp. 170-172.) In contrast here, the baby was physically harmed, and therefore was at substantially greater risk should he be returned to mother's custody.
In both James T. and Jeannette S., the juvenile court assumed jurisdiction on the ground that the mothers had emotional problems and limited financial resources that rendered them unable to provide their children with adequate care. (James T., supra, 190 Cal.App.3d at pp. 62-63; Jeannette S., supra, 94 Cal.App.3d at pp. 55-58.) After the juvenile court removed the children from their mother's custody, the appellate court reversed, reasoning the children could have been returned to their mothers under the social service agency's supervision. (James T., supra, 190 Cal.App.3d at pp. 64-65; Jeannette S., supra, 94 Cal.App.3d at p. 60.) As explained above, that alternative is not suitable here.
Finally, in Ashly F., the mother physically abused two children. (Ashly F., supra, 225 Cal.App.4th at p. 806.) The father was not aware of the beatings. (Ibid.) In its dispositional report, the social services agency stated, without citing any evidence, that it made " 'reasonable efforts' " to prevent the children's removal and there were no " 'reasonable means' " to protect them. (Id. at p. 808.) The appellate court concluded that there was ample evidence of " 'reasonable means' " to protect the children. (Id. at p. 810.) The court focused on the mother's remorse and the parents' enrollment in parenting classes, and stated the agency should have considered "unannounced visits . . . , public health nursing services, in-home counseling services and removing Mother from the home." (Ibid.) Thus, the dispositional order was reversed. (Id. at p. 811.)
In contrast here, while father was remorseful and the parents had begun to engage in services, they had not ameliorated the reasons for the baby's removal. They admitted being very uneducated about child development and acknowledged the need for more education so they could become safer parents. Given the baby's significant injuries, which were highly suspicious of nonaccidental trauma, mother's and father's admission that father was rough with the baby, father's apparent lack of understanding of a baby's fragility and his unrealistic expectations of developmental milestones, and mother's failure to protect the baby, the juvenile court reasonably could conclude the baby was at risk of harm if he were returned to mother until the parents could benefit from services, and the only option to protect the baby was removal from mother's custody.
DISPOSITION
The juvenile court's June 26, 2019 findings and orders are affirmed.
/s/_________
SNAUFFER, J. WE CONCUR: /s/_________
FRANSON, Acting P.J. /s/_________
SMITH, J.