Opinion
F076139
11-09-2017
BRANDON T., Petitioner, v. THE SUPERIOR COURT OF STANISLAUS COUNTY, Respondent; STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Real Party in Interest.
Robert D. Chase, for Petitioner. No appearance for Respondent. John P. Doering, County Counsel, and Maria Elena Ratliff, Deputy County Counsel, for Real Party in Interest.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 517857)
OPINION
THE COURT ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Ann Q. Ameral, Judge. Robert D. Chase, for Petitioner. No appearance for Respondent. John P. Doering, County Counsel, and Maria Elena Ratliff, Deputy County Counsel, for Real Party in Interest.
Before Levy, Acting P.J., Gomes, J. and Poochigian, J.
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Brandon T. (father) seeks extraordinary writ review of the juvenile court's orders issued at a contested dispositional hearing denying him reunification services (Welf. & Inst. Code, § 361.5, subd. (b)(5) & (6)) and setting a section 366.26 hearing as to his now 11-month-old son, C.T. Father contends the juvenile court's admission of a computerized voice stress analysis deprived him of a fair hearing and due process of law. C.T.'s mother, Alicia (mother), also filed a writ petition, which is pending before this court. We deny father's petition.
Statutory references are to the Welfare and Institutions Code.
Section 361.5, subdivision (b)(5) and (6) provide as relevant:
"(b) Reunification services need not be provided to a parent ... when the court finds, by clear and convincing evidence, .... [¶] ... [¶] (5) [t]hat the child was brought within the jurisdiction of the court under subdivision (e) [severe physical abuse] because of the conduct of that parent .... [¶] (6) [t]hat the child has been adjudicated a dependent pursuant to any subdivision of Section 300 as a result of ... severe physical harm to the child ... by a parent ..., and the court makes a factual finding that it would not benefit the child to pursue reunification services with the offending parent."
FACTUAL AND PROCEDURAL BACKGROUND
On February 2, 2017, emergency medical technicians responded to a call that then two-month-old C.T. was having difficulty breathing and was possibly choking. He was transported by ambulance to an emergency center and then by air to a children's hospital where he was admitted to the pediatric intensive care unit. During his hospitalization, he was diagnosed with bilateral subdural hemorrhages, an infarct in the right frontal region of the brain, multiple, multilayered retinal hemorrhages in the left eye, seizures and subdural hygromas.
Dr. Philip Hyden, the child advocacy attending physician, was consulted and opined that C.T.'s injuries were highly suspicious for nonaccidental trauma. He explained injuries like C.T.'s "occur when accelerative/decelerative rotational forces are delivered to the head and neck in an infant with poor head control. The forces cause shearing and hemorrhaging of the bridging cerebral veins into the subdural space. Similarly, the retinal vessels are affected by these forces, causing them to hemorrhage within the multiple layers. Often there is a combination of shaking and impact of the child's head into a soft surface, especially when there is no external sign of trauma. The subdural hygromas may indicate previous subdural hematomas which may indicate prior injury."
Dr. Hyden spoke to the parents about the situation leading up to the call for emergency services. Neither provided an explanation for C.T.'s injuries.
In an interview with a sheriff's detective, mother stated that the night before the incident, they had returned from a trip to Utah to visit family. She woke up early the next morning and took C.T. to visit a friend. She had breakfast with her father, then visited her mother at work and spent the afternoon with a friend. C.T. was smiling and in a good mood. She arrived home around 3:30 in the afternoon. Father took C.T. out of the car seat. Mother realized she had to go to the store and asked father if he wanted to go with her. He said he would stay home with C.T. While mother was in line at the store, she received a phone call from father who was crying. He told her C.T. was "choking and dying" and he did not know what to do. Mother told him to calm down and she would come home. She arrived home a couple of minutes later and father was holding C.T., who was limp and not moving. Mother took C.T. and told father's 13-year-old sister to call 911.
Mother told the detective that she had not dropped C.T., even accidentally, but that father had placed C.T. in his crib forcefully two or three times. It happened when they were trying to get C.T. to sleep and father became frustrated. She did not know how far father dropped C.T. onto the mattress; she just heard it happen. At those times, she would tell father to calm down but he would turn his frustration toward her. She denied that he ever hit her. She said there were times when she would take C.T. and tell father to "back off and calm down." When he got frustrated playing video games, he would toss the controller.
Mother said father had a short fuse and when he got mad, he yelled and cussed. She saw him shake C.T., "but not for a long amount of time." She demonstrated by holding her hands up in the air as if she was holding the baby and moving him in a shaking motion. She said C.T. was usually swaddled and his arms were at his side. When father shakes him, his head "shakes a little bit." She had seen father shake him more than five times but less than 10. She was concerned and told him to stop. Her parents told her it can cause shaken baby syndrome. She told father to stop every time he shook C.T., but father would tell her to shut up unless she was going to take care of the baby.
Mother believed father could have injured C.T. by shaking him or by dropping him in the crib. She could not think of any other explanation. While they were in Utah, father's grandmother was holding C.T. and bumped his head on a chair but there were no bruises as a result, just redness.
Mother did not think father meant to harm C.T.; she just thought he had a bad temper. When he was trying to tell her that C.T. was choking, he was in tears and she could not understand him.
Father told the detective he arrived home from work around 2:45 p.m. on February 2, 2017, and mother was out for the day. When she arrived home, he took C.T. out of the car by removing the entire car seat with the baby inside. Mother asked if he wanted to go to the store with her. He declined because he was tired and had already taken the car seat out of the car. C.T. was crying but mother put him in a swing in their room and left. About five minutes later, C.T. was fussy. Father swaddled him and held him to his chest. C.T. started to fall asleep so father put him in the crib. A minute later, he started crying "really bad." C.T. let out a high-pitched scream, and then father did not hear anything more. Father picked C.T. up and could not hear him breathing. He had mucus and formula coming out of his mouth. Father called mother because he did not know what to do. Mother returned home and his sister called 911. Father said he became frustrated in the past but usually passed the baby off to someone else. He said that happened about twice a week. He admitted having a short fuse but was not violent. His main cause of frustration was that he was tired and did not "want to come home to that." He denied dropping or shaking C.T.
On February 7, 2017, the Stanislaus County Community Services Agency (agency) placed a protective hold on C.T. at the hospital and filed a dependency petition alleging he was a minor described by section 300, subdivisions (a) (serious physical harm), (b)(1) (failure to protect) and (e) (severe physical abuse) because father physically abused him and mother knew or should have known of the abuse. The agency placed C.T. in foster care upon his discharge from the hospital.
The parents agreed to take a computer voice stress analyzer test. The test was administered by a certified voice stress analyst, using an 11-question format. Three of the questions related to shaking, throwing or hitting C.T. Father was asked whether he had ever shaken, thrown or hit C.T. The first time he was asked the questions, he answered affirmatively to shaking C.T. but denied throwing or hitting him. The analyst asked him if anything came to mind or if he had any questions. Father said he once gently tossed C.T. onto the bed on top of a piled up blanket and wondered if that would be considered throwing. The analyst explained that the question related to throwing with force. Father was asked the same three questions and answered them as he had the first time. The analyst conducted a third examination, using a five-question format. A question related to throwing was interspersed with irrelevant and control questions. The question was, "Other than what we've discussed, have you ever thrown [C.T.]? Father answered, "No." The analyst concluded that father showed deception in answering whether he threw C.T.
Using the same format, the analyst asked mother whether she had ever seen father shake C.T., whether she had ever shaken C.T. and whether she had ever hit C.T. She answered affirmatively to the first question and negatively to the other two. The analyst asked her the same questions a second time and she gave the same answers. The analyst concluded that mother answered the questions truthfully.
The analyst obtained the opinion of another analyst who agreed with his conclusions.
Father was arrested and charged with felony child endangerment (Pen. Code, § 273a, subd. (a)) and an enhancement for great bodily injury (Pen. Code, § 12022.7, subd. (a).) His criminal attorney also represented him in the dependency matter.
The juvenile court ordered C.T. detained pursuant to the petition and set a contested jurisdictional/dispositional hearing. In its report for the hearing, the agency recommended the juvenile court sustain the allegations in the petition and deny both parents reunification services under section 361.5, subdivision (b)(5) and (6). The agency also informed the court that the parents separated briefly but resumed living together and were expecting their second child. Prior to the hearing, the agency filed additional information, including the results of the voice stress analysis. The results were summarized in a sheriff's report.
On June 26, 2017, three days prior to the June 29, 2017 hearing, father's attorney filed an objection to the admission of the voice stress analyzer results under section 355, subdivision (c)(1). He objected to the evidence as hearsay and unreliable and asked that it be stricken.
On June 29, 2017, the juvenile court called but continued the contested hearing so father's expert could prepare. The court invited discussion about father's section 355 objection and whether it required a formal ruling. The court concurred with county counsel that section 355 did not give the court authority to strike evidence and only required that the evidence be corroborated by another source to support jurisdiction. Father's attorney argued that polygraphs are not admissible in criminal or dependency actions and asked the court to treat his objection as a motion in limine and strike the report. The court stated, "So the Court will treat it as a [section] 355 objection, which it is, and I don't believe the Court is required to make a formal ruling on it, at this particular time. We can deal with it at a later time."
Father was called to testify. He raised his Fifth Amendment right against self-incrimination as to most questions. He did testify that he considered himself and mother an intact couple and they planned to raise their second child together.
Mother testified she did not remember when father began shaking C.T. The last time she recalled was when C.T. was about one month old. She said it was "never violent" and "[i]t wasn't with force." She never saw much movement in his head. "It didn't move at all. It kind of sat back more." She accepted Dr. Hyden's diagnosis of abusive head trauma as a possibility and believed he could be right that C.T. was shaken. In the future, she planned to rely more heavily on her gut feelings and any red flags such as anger. She had gut feelings on more than one occasion that something bad could happen to C.T. She was concerned about father's anger and looked into an anger management program. She also thought shaken baby syndrome required a violent shaking of the head to cause injury.
Mother told father "maybe twice" not to shake C.T. One time he told her to shut up unless she was going to take care of the baby. "Sometimes" he would just kind of ignore her and change his approach with calming C.T.
On several occasions, mother wanted to go to her parents overnight for a break. Two or three times father threatened her, telling her she was not going to take the baby with her. At one point, she was going to call the police but they resolved the issue.
Mother never saw father drop C.T. at all, even into his crib, but she heard a "thud" while father was putting C.T. to bed. It concerned her but C.T. did not cry or show any signs of being in pain or stressed. She thought about leaving the house and taking C.T. with her but she had nowhere to go. Her parents' house was not an option because it was too small.
Mother intended to continue her relationship with father "if things go as planned." Her hope was that father's temper would improve and that their family could return to the way it was before C.T. was even born. Though she believed Dr. Hyden's diagnosis and recognized that father was the only one she had ever seen shake C.T., she still wanted to work things out because she did not believe that father intended to hurt C.T. She wanted to hear what everyone else had to say about the situation. Following mother's testimony, the juvenile court continued the matter to July 17.
On July 17, 2017, father's attorney again raised the issue of the voice stress analysis, asking the juvenile court to strike it. The court stated it was going to treat it as a section 355 objection but declined to rule on it. The court continued the hearing to July 25, when father's attorney called Dr. Hyden as a witness.
Dr. Hyden testified as an expert in pediatric child abuse. He did not review C.T.'s birth records but opined C.T.'s injuries were not the result of birth trauma. He acknowledged that C.T. had a high white blood count on admission to the hospital. He explained that a child's white blood count could rise to very high levels if the child is stressed. The high count could also be associated with an infection. C.T. had rhinovirus, the common cold, but the tests performed at the hospital showed no signs of infection that would cause brain damage. Infection did not cause C.T.'s subdural hematomas or retinal hemorrhages. Dr. Hyden also testified that C.T.'s subdural hematomas were new and could not have been caused at birth but the subdural hygromas could have been. He explained that subdural hygromas are resolved subdural hematomas; they are a membrane that no longer contains blood. He also explained that shaken baby injuries require a lot of force, "significant force, angular force, forces in which the head is going in an arc from front to back accelerated and decelerated." There were no broken ribs, which they often saw in shaken children, but it did not require gripping the child. He said, "You just have to hold the child."
During the lunch break, Dr. Hyden reviewed the records of C.T.'s birth, which was by cesarean section, and noted that mother had a very protracted labor, possibly up to 60 hours in duration. He also noted that C.T.'s head presented downward with an ear directed upward and that his head had extreme molding. He explained that molding referred to the reshaping of the fetal skull to protect the brain during childbirth. Dr. Hyden could not rule out that the subdural hygromas occurred during birth, but found nothing in the birth records that could account for the traumatic injuries he noted when he saw C.T.
Dr. Hyden was asked whether "slamming" C.T. onto a soft surface like a crib mattress could cause C.T.'s injuries. He said the force would have to be "very strong," "something that anyone would recognize was an inappropriate thing to do to a child, especially a little three-month-old infant." He explained a child could be shaken and impacted on a soft surface and have no external sign of injury. He stated, "I've seen in several cases in my hospital where children end up having even fractures from a soft surface, but many of them don't have anything externally until you get into the brain itself."
Dr. Hyden was asked whether the subdural hygromas seen in February 2017 could have been caused by father shaking C.T. when C.T. was a month old. Dr. Hyden said it depended on how hard and vigorous C.T. was shaken. C.T. would have had some symptoms, perhaps not major neurological symptoms, but vomiting, lethargy, sleeplessness or fussiness. County counsel referred Dr. Hyden to mother's statement to the police that C.T. had an episode of projectile vomiting five days before his appointment with the doctor on January 23, 2017, and asked whether projectile vomiting and mother's observations that father shook C.T. and forcibly put him in his crib caused him concern that there were prior incidents of abusive head trauma. Dr. Hyden stated it caused him concern but he could not say to a reasonable degree of medical certainty.
Dr. Hyden testified he last saw C.T. in April 2017 and he was doing very well. He could not give an opinion whether C.T. would have died without medical intervention. He said it was possible but because C.T. received a quick medical response, he did not know how serious his situation was.
Following Dr. Hyden's testimony, the juvenile court continued the hearing at the request of father's attorney until August 1, 2017, for a potential expert witness.
On August 1, 2017, father's attorney filed points and authorities in support of his objection under section 355 to the voice stress analysis results. The court continued the hearing until August 3.
On August 3, 2017, the juvenile court concluded the hearing. Father's attorney did not call an expert witness but raised his objection to the results of the voice stress analysis. After a lengthy discussion on the record, the court declined to strike the evidence but stated that it had ample evidence on which to make its decision and would not consider it in making its jurisdictional findings and dispositional orders.
The juvenile court found the allegations in the petition true and adjudged C.T. a dependent child under section 300, subdivisions (a), (b)(1) and (e). The court found that C.T. suffered a serious, life-threatening event, which could have resulted in his death and that father was the perpetrator. As to mother, the court found that she knew or should have known father could seriously injure C.T. when she saw him shaking C.T. Specifically, as to subdivision (a), the court found that C.T. was subjected to serious physical harm by his parent and that the harm was inflicted nonaccidentally. As to subdivision (b), the court found that mother contributed to his injuries by taking no action to prevent father from abusing him. As to subdivision (e), the court found that C.T. was a child under the age of five who suffered severe physical abuse, which could have resulted in death. The court commented in detail on the evidence it considered in making its jurisdictional findings. In so doing, the court did not mention the voice stress analysis or its results.
The juvenile court ordered C.T. removed from parental custody, denied both parents reunification services under section 361.5, subdivision (b)(5) and (6) and set a section 366.26 hearing for December 4, 2017.
DISCUSSION
Father contends the juvenile court prejudicially erred and violated his due process rights by considering the results of the voice stress analysis over his objection. He argues the evidence is "lie detector evidence," which is inadmissible hearsay. In order to consider such evidence, he asserts, the court is required to conduct a foundational hearing to determine its admissibility. By failing to follow procedure and considering inadmissible hearsay in adjudicating his case, father contends the court violated his right to a fair hearing. We find father's contentions meritless.
Hearsay evidence contained in the agency's social study report is generally admissible and constitutes competent evidence upon which a finding of dependency jurisdiction may be based. (§ 355, subds. (a) & (b).) However, if the declarant does not satisfy certain statutory criteria, and a party asserts a timely objection to the admission of specific hearsay evidence contained in a social study, that hearsay evidence "shall not be sufficient by itself to support a jurisdictional finding or any ultimate fact upon which a jurisdictional finding is based," unless the agency establishes that one of several exceptions applies. (§ 355, subd. (c)(1).)
Section 355 provides as relevant:
"(a) At the jurisdictional hearing, the court shall first consider only the question whether the minor is a person described by Section 300. Any legally admissible evidence that is relevant to the circumstances or acts that are alleged to bring the minor within the jurisdiction of the juvenile court is admissible and may be received in evidence. Proof by a preponderance of evidence must be adduced to support a finding that the minor is a person described by Section 300....
"(b) A social study prepared by the petitioning agency, and hearsay evidence contained in it, is admissible and constitutes competent evidence upon which a finding of jurisdiction pursuant to Section 300 may be based, ...."
The declarant must establish one or more of the following exceptions: "(A) The hearsay evidence would be admissible in any civil or criminal proceedings under any statutory or decisional exception to the prohibition against hearsay. [¶] (B) The hearsay declarant is a minor under 12 years of age who is the subject of the jurisdictional hearing.... [¶] (C) The hearsay declarant is a peace officer ..., a health practitioner ..., a social worker ..., or a [credentialed] teacher .... [¶] (D) The hearsay declarant is available for cross-examination." (§ 355, subd. (c)(1)(A)-(D).) --------
Here, the results of father's voice stress analysis were introduced through a report the agency filed for the contested hearing. The report contained various attachments, one of which was a sheriff's report. The sheriff's report contained a description of the voice stress analysis and a summary of the parents' results, including the analyst's opinion that father was deceptive when he denied throwing C.T. Father's attorney objected to the admission of the voice stress results and asked the juvenile court to strike the information, which the court did not do. There is no dispute that the agency, as the declarant of the voice stress analysis, did not establish any of the exceptions under section 355 that would allow the juvenile court to consider the evidence in deciding whether C.T. was described by any of the section 300 subdivisions alleged in the petition.
However, the juvenile court did not err in admitting the voice stress results because it did not rely on it to support its jurisdictional findings. The court clearly stated its intention not to use it and did not mention it in explaining its ruling. Rather, the court stated that it had ample other evidence on which to base its decision. Thus, father's claim he was denied due process fails.
Further, since father does not challenge the sufficiency of the evidence to support the juvenile court's jurisdictional findings and dispositional orders, we will not review them.
DISPOSITION
The petition for extraordinary writ is denied. This court's opinion is final forthwith as to this court pursuant to rule 8.490(b)(2)(A) of the California Rules of Court.