Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County, No. CK75848, Valerie Skeba, Referee.
Anna L. Ollinger for Defendant and Appellant.
Office of the Los Angeles County Counsel, James M. Owens, Assistant County Counsel, Frank J. DaVanzo, Principal Deputy County Counsel, for Plaintiff and Respondent.
KLEIN, P. J.
Rosa R. (mother) appeals orders of the juvenile court declaring her son, Erik R., a ward of the court and ordering him placed in foster care. Mother contends the evidence was insufficient to support (a) some of the jurisdictional findings, (b) the removal order or (c) the order directing mother to attend anger management counseling. We reject these contentions and affirm the orders of the juvenile court.
FACTS AND PROCEDURAL BACKGROUND
1. Detention of Erik R.
On January 3, 2009, mother brought six-month-old Erik to the hospital, assertedly because he was congested, and stated that on December 31, 2008, she noticed the child was in pain when she changed his diaper. The attending physician found Erik had bilateral temporal fractures of the ankles. Mothers suggested the child might have been injured kicking the back of the seat in the car. The attending physician indicated that would not have occurred unless the child had a bone disease. Mother stated she resides with her brother and his wife, mother works at home as a seamstress and she alone cares for Erik. Mother has older children living in El Salvador with maternal grandmother. Mother does not know the whereabouts of Erik’s father.
The next day a skeletal x-ray survey revealed Erik also had a healed fracture of the wrist and no abnormal bone disease. Erik underwent a bilateral distal tibia closed reduction procedure and was placed in bilateral casts. On January 6, 2010, Erik was placed in foster care.
2. Jurisdiction and interim reports prior to adjudication.
Mother told a social worker Erik had a fever and chest congestion on December 29 and 30, 2008. On January 1, 2009, mother noticed Erik was in pain when she changed his diaper. She massaged his legs with cream and gave him Tylenol. Erik continued to appear to be in pain and mother took him to the hospital on January 3, 2009. Mother stated she attends to Erik “24 hours a day. I am the only person who cares for my baby.” Mother indicated the older fracture of the wrist may have occurred at family gatherings in October and November and there was a family gathering at her cousin’s home on December 31, 2008.
A report filed April 13, 2009, indicated mother is loving and attentive during monitored visits.
Mother’s expert, Anthony Shaw, M.D., submitted a medical opinion based on his review of Erik’s medical records. Dr. Shaw concluded the emergency room x-rays show almost symmetrical acute (hours to a few days old) fractures of the ankle ends of the shin bones. The skeletal x-ray survey shows a healed fracture of the wrist end of the right radius with no deformity. No other fractures are seen and the bones appear to have a normal consistency. Dr. Shaw concluded, based on the symmetry of the tibia fractures, that an equally severe force was applied to both ankles simultaneously, most likely inflicted by a strong teenager or adult on December 31, 2009, or the next two days. The fact the forearm fracture healed without deformity suggests it was relatively minor. However, in the absence of an explanation, it is likely to have been inflicted. Dr. Shaw indicated concern that mother had been unaware of the injury to the wrist. However, a relatively minor fracture might have presented few symptoms. Dr. Shaw concluded Erik’s fractures were inflicted but was unable to say whether accidentally or intentionally.
3. Adjudication of petition and disposition.
Mother submitted on the petition as amended. The juvenile court received into evidence the social reports and the letter from Dr. Shaw, then sustained the petition as amended.
As sustained, the petition alleged in counts a-1 and e-1 that on January 3, 2009, six-month-old Erik was found to have fractures to the right and left tibia and an old healing fracture of the radius which were consistent with non-accidental trauma that would not ordinarily occur except as the result of deliberate and/or unreasonable or neglectful acts by mother.
The juvenile court ordered Erik removed from parental custody and granted mother family reunification services over the Department’s objection. The juvenile court found denial of family reunification services would be unduly punitive in the absence of any showing mother harmed the child. The juvenile court noted mother interacted positively with Erik during monitored visitation and found it would be in the child’s best interests to provide family reunification services. The juvenile court ordered mother to attend parenting class, individual counseling to address family issues including anger management issues and to cooperate with family preservation if those services were offered to her.
DISCUSSION
1. The jurisdictional findings.
Mother contends there was insufficient evidence to support the jurisdictional findings in which mother was the offending parent. The juvenile court sustained the petition with respect to mother under Welfare and Institutions Code section 300 subdivisions (a), [serious physical harm], (b) [failure to protect] and (e) [severe physical abuse]. Mother primarily attacks the finding under section 300, subdivision (e), which permits jurisdiction over a child if “[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.” (§ 300, subd. (e).)
Mother does not dispute the jurisdictional findings in the counts in which father is the offending parent (counts b-3 and g-1). Consequently, the juvenile court had jurisdiction over Erik regardless of the merits of mother’s contention. (In re Jonathan B. (1992) 5 Cal.App.4th 873, 875-876; In re Dirk S. (1993) 14 Cal.App.4th 1037, 1045; Randi R. v. Superior Court (1998) 64 Cal.App.4th 67, 72.) However, the findings under section 300, subdivisions (a), (b) and (e) could affect mother adversely in future proceedings. We therefore address the merits of mother’s contention.
Subsequent unspecified statutory references are to the Welfare and Institutions Code.
Mother does not contest the finding Erik was severely abused. She does contend, however, that she did not harm the child and she could not reasonably have known Erik was being abused. Mother notes she sought medical treatment for Erik, there was no reason for mother to suspect Erik was being injured and the evidence submitted by the Department indicated uncertainty as to how the injuries occurred. According to mother, at the time of the hearing, there was no evidence to support a finding under section 300, subdivision (e). (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.)
Mother also claims there is no evidence mother inflicted serious physical harm as required for jurisdiction under section 300, subdivision (a), or that Erik’s injuries were caused by mother’s negligence as required by section 300, subdivision (b). Mother concludes all of the counts based on her conduct must be set aside.
The standard of proof at the jurisdictional stage of a dependency proceeding is a preponderance of the evidence. (In re P.A. (2006) 144 Cal.App.4th 1339, 1344.) We review the juvenile court’s jurisdictional findings under the substantial evidence standard. (In re E.H. (2003) 108 Cal.App.4th 659, 669.)
In re E.H., supra, 108 Cal.App.4th 659, held a true finding under section 300, subdivision (e), does not require the Department to prove the parent had actual knowledge the child is being abused. Rather, “the only requirement is that they reasonably should have known.” (In re E.H., supra, at p. 670, italics added.) In that case, the child was never out of her parents’ custody and remained with a family member at all times. In re E.H. held a “res ipsa loquitur” argument can support a jurisdictional finding under section 300, subdivision (e). (In re E.H., supra, at pp. 669-670.) That doctrine provides a rebuttable presumption of negligence where the instrumentality causing the injury was in the defendant’s exclusive control, and the accident was of the type that ordinarily does not happen in the absence of negligence. (Id. at p. 669, fn. 6.)
Applying In re E.H. here, the evidence showed Erik suffered multiple fractures which Dr. Shaw found were “inflicted.” By mother’s admission, she was Erik’s sole caretaker and mother failed to provide any explanation for the fractures. The doctrine of res ipso loquitur permitted the juvenile court reasonably to conclude either mother inflicted the fractures or she knew or reasonably should have known who was abusing the child. Accordingly, the juvenile court properly found Erik came within its jurisdiction under section 300, subdivision (e).
If jurisdiction is proper under section 300, subdivision (e), it also was proper under subdivision (a), which requires severe physical harm. Infliction of severe physical abuse necessarily includes infliction of severe physical harm.
The sustained count under section 300, subdivision (b), relates to mother’s failure to obtain medical care for Erik’s wrist fracture. Mother makes no argument related to this count and has therefore waived the point. (Gunn v. Mariners Church, Inc. (2008) 167 Cal.App.4th 206, 217-218.)
2. The removal order.
Mother contends the juvenile court should not have removed Erik from her care because there was no clear and convincing evidence he would be unsafe in her home. Mother argues the juvenile court gave no rationale for its finding and there was no evidence mother was responsible for Erik’s injuries or that mother knew how they occurred. Mother claims speculation about her future conduct is insufficient to support removal. (In re Steve W. (1990) 217 Cal.App.3d 10, 22.)
Mother further contends there were reasonable alternatives to removal. Mother notes she has two brothers, one of whom was an approved visitation monitor. However, the Department did not investigate the possibility of allowing mother and Erik to live in his home. (In re Jeannette S. (1979) 94 Cal.App.3d 52, 60-62.) Alternatively, the Department could have provided in-home services with unannounced visits by the social worker as an alternative to removal. (In re Henry V. (2004) 119 Cal.App.4th 522, 530.)
Removal of a child from the care of a parent is governed by section 361, subdivision (c)(1), which, as relevant here, requires the juvenile court to find clear and convincing evidence “[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 or guardian’s physical custody.” On appeal, we review the juvenile court’s removal of a child from a parent’s custody pursuant to the substantial evidence standard. (In re Henry V., supra, 119 Cal.App.4th at p. 529.)
The evidence in this case provides ample support for the order removing Erik from mother’s care. Erik sustained multiple unexplained fractures while mother was his sole caretaker. Also Erik’s injuries occurred repeatedly, rather than on a single occasion. Mother had no explanation for the injuries and Erik suffered no new fractures after he was removed from mother’s care. Return to mother under these circumstances would expose Erik to the same risks he previously faced in mother’s care.
Mother’s suggested alternate dispositions would not ensure the child’s safety. Mother resided with her brother when the fractures occurred and unannounced visits by a social worker would not likely deter whoever was responsible for harming the child.
Mother’ reliance on In re Steve W. is misplaced. In that case, the mother’s boyfriend caused the death of one of mother’s children. The boyfriend was incarcerated for the killing and mother was not involved with any other male. In re Steve W. concluded there was no evidence the surviving child would be at risk of harm with mother. Here, mother was Erik’s sole custodian when Eric suffered multiple fractures. There is no boyfriend to blame. Consequently, substantial evidence supports the juvenile court’s finding there was substantial danger to Erik’s physical health if he were returned to mother and there was no reasonable means to protect the child without removal.
3. The order for anger management counseling.
Mother contends the order for anger management counseling is inappropriate because there was no evidence mother was responsible for the fractures or that mother had an anger problem. Mother notes the Department described her as caring and tender during monitored visits.
Given that mother was Erik’s only caretaker when he twice suffered unexplained fractures, the juvenile court reasonably could conclude mother would benefit from participation in counseling to address family issues, including anger management. Such an order is reasonably calculated to prevent further abuse.
DISPOSITION
The orders of the juvenile court are affirmed.
We concur: CROSKEY, J., ALDRICH, J.
Count b-2 alleged mother failed to obtain timely medical care for Erik thereby endangering the child’s physical and emotional health and safety.
Counts b-3 and g-1 alleged father failed to provide the necessities of life and father’s whereabouts are unknown.