Opinion
F062788 Super. Ct. No. JJV065151B
09-23-2011
DARRYL J., Petitioner, v. THE SUPERIOR COURT OF TULARE COUNTY, Respondent; TULARE COUNTY HEALTH AND HUMAN SERVICES AGENCY, Real Party in Interest.
Mary Rogers for Petitioner. No appearance for Respondent. Kathleen Bales-Lange, County Counsel, and Carol E. Helding, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
Before Wiseman, Acting P.J., Poochigian, J. and Franson, J.
ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Charlotte A. Wittig, Commissioner.
Mary Rogers for Petitioner.
No appearance for Respondent.
Kathleen Bales-Lange, County Counsel, and Carol E. Helding, Deputy County Counsel, for Real Party in Interest.
Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from the juvenile court's orders issued at a contested dispositional hearing denying him reunification services pursuant to Welfare and Institutions Code section 361.5, subdivision (b)(5) and setting a section 366.26 hearing as to his daughter S. We will deny the petition.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
We refer to petitioner's daughter by her first initial because of the uniqueness of her name. (Cal. Rules of Court, rule 8.401(a)(2).)
STATEMENT OF THE CASE AND FACTS
In December 2010, one-year-old S. sustained non-accidental, life-threatening brain trauma in less than a 12-hour interval in which she was in the custody of either petitioner and his wife, Elizabeth, or her (S.'s) mother, Angelina. Following a contested jurisdictional hearing, the juvenile court concluded that petitioner, Angelina or Elizabeth injured S. but could not determine which one. The court adjudged S. a dependent child pursuant to section 300, subdivision (e) (severe physical abuse) and, on that basis, denied petitioner and Angelina reunification services pursuant to section 361.5, subdivision (b)(5). Because the relationship between petitioner, Angelina and Elizabeth was a precipitating factor in S.'s injury, we begin our summary of the facts with a brief description of the family circumstances.
Angelina also filed a writ petition (F062782) that is pending before this court.
Family Circumstances
Petitioner and Angelina are S.'s biological parents and petitioner is S.'s presumed father. Petitioner and Elizabeth were married in March 2009 and they have a 20-month-old daughter, Leila. Petitioner also has an infant daughter, Lauryn, by another relationship and she spends time with petitioner and his family.
Angelina has a three-year-old son, Joseph, Jr., with Joseph, Sr. (Joseph), a truck driver. Angelina and Joseph are not married and do not live together but he sometimes stays overnight with her and their son.
In early 2009, petitioner and Angelina had an affair and conceived S. who was born in October of that year. In December 2010, the family court issued a custody order effective December 6, granting petitioner custody of S. from Monday through Wednesday at 12:00 noon and Angelina custody of S. from Wednesday at 12:00 noon until Friday at 12:00 noon. Petitioner and Angelina alternated weekends.
Elizabeth, petitioner's wife, has a child welfare history in Tulare County dating back to January 1990, when her then nine-month-old son, John, was taken into protective custody after he was admitted to the hospital for evaluation of unexplained apneic episodes. Prior to that, John had been admitted 14 times in three months and was never noted to have an episode while under medical observation. Elizabeth was provided reunification services which included a psychiatric evaluation. After several evaluations, she was diagnosed with Munchausen syndrome by proxy (Munchausen syndrome) as either a primary or secondary diagnosis. In November 1990, Elizabeth gave birth to another son, Christopher, who was removed from her custody at birth. Elizabeth participated and progressed in therapy. In 1991, John and Christopher were returned to her custody and she raised them to adulthood.
Taber's Cyclopedic Medical Dictionary (20th ed. 2005), at page 1400, defines Munchausen syndrome by proxy as "The fabrication of symptoms or physical evidence of another's illness, or the deliberate causing of another's illness, to gain medical attention."
S.'s Injury
On Wednesday, December 15, 2010, at approximately 5:30 p.m., S. had a seizure while being examined at the emergency room at Children's Hospital of Central California (children's hospital). Her arms and legs were shaking rhythmically on the left side only. Diagnostic testing revealed an acute right-sided subdural hematoma, left-sided weakness, cerebral edema and massive bilateral retinal hemorrhages. She was transferred to the intensive care unit (ICU) where she was placed in a drug-induced coma and her brain was decompressed by means of an external ventricular drain. Dr. Philip Hyden, M.D., child advocacy attending physician, described her condition as "very life threatening." He believed S. had suffered non-accidental brain trauma caused by "serious accelerated, decelerated forces."
The Investigation
The Visalia Police Department and the Tulare County Health and Human Services Agency (agency) were contacted and initiated concurrent investigations. During the course of their investigations, they discovered that petitioner and Angelina continued a romantic relationship after petitioner and Elizabeth were married. At the same time, they were fighting over custody of S. Petitioner and Elizabeth accused Angelina and Joseph of engaging in domestic violence and endangering S. and Angelina suspected that petitioner and Elizabeth were mistreating S. The detectives and the agency also discovered that petitioner and Elizabeth kept a logbook of their contacts with Angelina and S. The logbook, entitled "[S.'s] Log," contained statements that seemed to predict S.'s injury.
Visalia Police Detective Luma Fahoum obtained S.'s medical records which revealed that S. had been to a doctor or hospital on at least 47 occasions since her birth. Many of those visits were for staring spells or seizures. Additionally, Detective Fahoum established that petitioner and Angelina each had custody of S. on December 15, 2010, and, according to Dr. Hyden, S.'s brain trauma would have to have occurred within minutes to a few hours before she had the seizure in the emergency room on the evening of December 15.
Angelina told Detective Fahoum that she and petitioner exchanged custody of S. on December 13, 2010, at the office of Dr. Antonio Sanchez, S.'s primary physician, where petitioner had taken S. for a follow-up medical appointment. The follow-up was necessitated by S.'s admission to the hospital on December 7 for seizures and vomiting. According to Angelina, S. appeared normal when she was discharged from the hospital on December 9. On December 10, S. went to petitioner's house and stayed until December 13. When Angelina took custody of S. that day, she noticed that S. was not acting normally and seemed lethargic. She also vomited a large amount of fluid. Angelina took her to Kaweah Delta Hospital.
Medical records from Kaweah Delta Hospital reflect that S. was evaluated in the emergency room at 5:07 p.m. on December 13, 2010, for lethargy, vomiting, weakness and seizures. The examining physician recorded that she was "awake, alert and cooperative" and that she was moving all extremities normally and without obvious pain. S. was discharged to Angelina's care in stable condition.
However, Angelina told Detective Fahoum that S. continued to vomit and was lethargic. On December 14, 2010, Angelina took S. to children's hospital emergency room where she was evaluated by Dr. Bayer. Dr. Bayer recorded that S. was previously evaluated for seizure disorder but that the diagnosis had been ruled out. Dr. Bayer noted that S. appeared dehydrated and her eyes were slightly sunken. In addition, she wanted to sleep and be left alone. However, she was easily aroused, nonlethargic and reacted appropriately with Angelina. Dr. Bayer diagnosed her as having vomiting and dehydration secondary to infectious gastroenteritis and discharged her to Angelina's care at 1:55 a.m. on December 15. Later that morning, Angelina telephoned petitioner and told him that S. was still lethargic and that she wanted to take her back to children's hospital. Petitioner told Angelina that she should take S. to Dr. Sanchez, so they agreed to meet at his office.
Dr. Sanchez evaluated S. on December 15, 2010, at approximately 12:18 p.m. with petitioner and Angelina present. He recorded that S. had an elevated temperature and intractable nausea. He referred petitioner and Angelina to children's hospital and called ahead to notify a physician there that she would be coming. Since it was petitioner's time to take custody of S., he and Angelina agreed that he would take S. to children's hospital. At 5:00 a.m. the next morning, petitioner notified Angelina that S. was in the ICU and that the agency had taken custody of her.
Angelina told Detective Fahoum she thought that petitioner might have "Munchinson's [sic]." She also said that during the time of their shared custody, petitioner asked her in a text message to have another child with him because he wanted a boy. She said she gave petitioner's text messages to the family court and was afraid that this angered Elizabeth and caused her to want to hurt S. She said Joseph had not been at her home since December 13, 2010, and would not harm S.
Detective Fahoum began her interview with Elizabeth by suggesting that S.'s injuries were caused by a fall or a car accident. Elizabeth immediately opined that child abuse was the cause and that she had always suspected Angelina of child abuse but could never prove it. She said she and petitioner asked the court for full custody of S. but were denied. Two weeks later, she noted, S. was in the ICU.
Detective Fahoum asked Elizabeth about S.'s seizures. Elizabeth stated that S. often stared into space and did not blink. She said S. had been taken to the hospital numerous times but not diagnosed. Elizabeth said, as it turns out, she and petitioner were right all along and that there was something wrong. She said she and petitioner left Dr. Sanchez's office around 3:00 p.m. on December 15, 2010, and went straight to children's hospital.
Ella, petitioner's mother, also told Detective Fahoum that she believed Angelina was abusing S. She recounted an incident when S. had a bump on her head and Angelina explained that S. had fallen off of the bed. However, after they took S. to the emergency room, Angelina changed her story and said S.'s brother was running with a lotion bottle and hit S. in the head. S. was diagnosed with a contusion. On another occasion, Ella was talking to Angelina and noticed that S. was staring off into space. She pointed this out to Angelina who then shook S. As a result of these episodes, Ella told petitioner to monitor S.'s well-being.
Petitioner told Detective Fahoum that, on December 15, 2010, Dr. Sanchez told him and Angelina to take S. to the hospital but did not say why. He said he picked up the referral, went to his mother's office which was right around the corner, drove home to pick up Elizabeth, Leila and Lauryn, dropped Lauryn off with a babysitter and left around 3:00 p.m. to take S. to children's hospital. He denied that anything could have happened to cause S.'s injuries while on the way there. He also stated that he loves Angelina because she is S.'s mother. He said Angelina was always saying that he loves her and that they are going to be together but he denied that. He said Angelina also threatened to destroy his marriage.
Joseph showed Detective Fahoum his work log. He said he stayed with Angelina on December 11 and 12, 2010, and left on the morning of December 13. On December 13, Angelina told him that S. was in the hospital and not feeling well. He stopped by that evening for about an hour and a half. He left and did not return until December 17. He said he had been with Angelina for eight years and knew about her affair with petitioner. He said they had worked it out and he treated S. as if she were his own child. He said S. was healthy until petitioner and Elizabeth began visiting her. He believed that petitioner was mad because Angelina chose him over petitioner.
During the course of the investigation, Angelina took a polygraph test and showed deception on several questions. Afterward, she revealed that she shook S. on December 13, 2010 because S. appeared to have passed out. She noticed that S.'s eyes were rolling back in her head so she panicked and began shaking her to wake her up. When S. woke up, she vomited and Angelina took her to Kaweah Delta Hospital. Angelina said she did not mention it to the doctors because she was scared.
Petitioner and Elizabeth also took polygraph tests. Detective Fahoum recorded and monitored the examinations. She listened for but did not hear any conflicting statements or statements that concerned her. She noted that they appeared to provide the same statements showing little or no deception.
After speaking with Dr. Hyden, Detective Fahoum eliminated Angelina and Joseph as suspects in S.'s injury based on the timeline provided by petitioner and Elizabeth. They stated that Angelina took S. to Dr. Sanchez's office at 12:30 p.m. on December 15, where S. remained with medical staff until 2:45 p.m. Petitioner left Dr. Sanchez's office with S. at 2:45 p.m. after which he picked up Elizabeth. They arrived at children's hospital at 4:45 p.m., making them alone with S. for two hours.
In April 2011, Detective Fahoum interviewed petitioner and Elizabeth at the police station. Petitioner and Elizabeth had just left family court where petitioner learned that Elizabeth was married to someone else. Detective Fahoum interviewed petitioner first and told him that Elizabeth lied a lot and confronted him with the fact that she has Munchausen syndrome. Petitioner said Elizabeth's parents told him she had a prior child dependency case many years ago but that it was unfounded and the children were returned to her. He previously told a social worker that Elizabeth's parents told him about Elizabeth's past but he did not want to hear it out of consideration for Elizabeth. Detective Fahoum stated she believed that Elizabeth injured S. and wondered if it could have happened on the way to children's hospital. Petitioner said Elizabeth was not alone with S. in the car. He said they stopped for gas and he got out of the car to put the gas in but could see into the car. He was also the one who got out of the car to drop Lauryn off with the babysitter but said he was outside the sitter's house the whole time. He said Elizabeth was alone with S. for only a moment.
Detective Fahoum read a portion of a medical report from children's hospital dated December 15, 2010, where petitioner stated that S. had not been using her left side since Sunday, December 12. Petitioner acknowledged that he may have stated that. Detective Fahoum asked him if he mentioned it to Dr. Sanchez on December 13, before he turned S. over to Angelina. Petitioner said he remembered telling Dr. Sanchez about it. Detective Fahoum pointed out that Dr. Sanchez did not note it in his chart.
Detective Fahoum asked petitioner about [S.'s] log and told petitioner she thought it was strange that they kept such a log. Petitioner agreed that it was strange that Elizabeth kept the log. He also found it strange that Elizabeth placed S. in time out when S. was six months old. He also said he made sure Elizabeth was never alone with his children. He said it concerned him that Elizabeth constantly insisted that S. was sick and that she was the only one who witnessed S. have a seizure.
Detective Fahoum also interviewed Elizabeth and asked her why she initially denied having a child welfare history involving her two oldest children. Elizabeth said her attorney at that time told her not to disclose it because her case was overturned. Detective Fahoum told her that her case was not overturned. Elizabeth explained that she kept the log because Angelina's family has a history of troubles and because Angelina is a poor parent. She said she kept the log to alert doctors to the problems that she perceived. Detective Fahoum asked her how she knew from the beginning that S. was going to be critically injured. Elizabeth said she saw classic signs of child abuse. Detective Fahoum told Elizabeth that she lied a lot. When Detective Fahoum confronted Elizabeth with all the lies she told, she began telling new lies so Detective Fahoum terminated the interview and arrested Elizabeth for child abuse and bigamy.
Detention
During the course of the investigation, the agency detained S., as well as her half-siblings, Joseph, Jr. and Leila. The agency also filed a dependency petition alleging counts as to petitioner and Angelina under section 300, subdivisions (a) (serious physical harm), (b) (failure to protect) and (e) (severe physical harm of a child under five years old). The agency also alleged separate counts under subdivision (j) (abuse of sibling) as to Joseph and Angelina. The children were ultimately placed together in foster care.
The agency recommended that the juvenile court exercise its dependency jurisdiction and deny petitioner, Angelina and Joseph reunification services.
Jurisdictional Hearing
In June 2011, the juvenile court conducted a contested jurisdictional hearing as to S., Leila and Joseph and took judicial notice of John and Christopher's dependency cases.
Petitioner testified that he was S.'s primary caretaker and denied injuring S. or seeing anyone else injure her. His attorney questioned him about S.'s left-sided weakness. He did not deny telling the emergency room physician on December 15, 2010, that he noticed that S. had not been using her left side since Sunday, December 12. However, he said he got his dates mixed up because there was so much going on and he did not notice S.'s left-sided weakness before December 15. He said he remembered discussing it with Dr. Sanchez during S.'s December 15 appointment.
Elizabeth was asked about a family function that was planned for Sunday, December 12, 2010, but cancelled after S. had a seizure. She testified that the family was planning to attend Leila's dedication at church that morning but sometime between 9:00 and 9:15 a.m., she observed S. "staring off kind of limp." Not long after, S. came around and they did not seek medical treatment for her. As a result of S.'s seizure, the family rescheduled the dedication. Elizabeth said she was upset but then said she was more disappointed than upset. She did not believe there was any time on December 12 when she was the only adult alone with S.
Elizabeth further testified that petitioner had custody of S. on December 13, 2010, until he turned her over to Angelina. Elizabeth thought she probably saw S. before petitioner left the house with her that morning but she was not sure. She said she did not see S. until approximately 3:00 p.m. on December 15, when petitioner arrived home and told her they had to take S. to the hospital. Elizabeth denied having Munchausen syndrome.
Ella, petitioner's mother, testified that petitioner and his family lived with her. She said she always accompanied Elizabeth when there was an exchange of custody because they did not trust petitioner alone with Angelina. She also said that petitioner took care of S. She said she witnessed S.'s seizure on December 12, when she walked into the living room where S. was playing with Leila and Lauryn. She called petitioner and Elizabeth into the room and they witnessed the seizure also. She described S.'s seizures as episodes where S. stared, her eyes rolled back and she lay still for awhile. Ella said S. had seizures all the time. She said she offered to stay home while the others attended the dedication but Elizabeth suggested they cancel it. She said no one was upset about having to cancel the dedication. She denied abusing or injuring S. or seeing anyone abuse Leila or Lauryn.
Ella further testified that she did not particularly like Angelina and told petitioner she did not want him to have anything to do with her. She knew that Angelina was attracted to petitioner and she warned petitioner and Elizabeth to stay away from Angelina. Ella said she suggested that petitioner and Elizabeth maintain a logbook and said that to her knowledge Elizabeth was never left alone with S. She said she saw S. in Dr. Sanchez's office on December 15, 2010, at approximately 1:00 or 1:15 p.m. S. was lying in Angelina's arms and would not lift her head. Her left eye was quivering and she was "just laying there."
Joseph testified as to his whereabouts from Saturday, December 11, 2010, to Thursday, December 16, 2010, according to his work log. During that time, he was driving out of town except for the afternoon and evening of December 12 and sometime after 5:00 p.m. on December 13, when he returned to Angelina's house because she told him S. was not feeling well. He stayed approximately 30 minutes after checking on them. He said that S. did not look her normal self. She did not reach for him to pick her up as she usually did. She just lay there like she wanted to rest. He said she was not vomiting. He said he never struck S. or Angelina, had never been arrested and had never had a child removed from his custody.
Joseph also testified that he saw S. on December 10, 2010 when Elizabeth and Ella picked her up from Angelina. He said she was happy until Elizabeth picked her up at which point she cried. He also said that Angelina called him on December 13, around 5:00 p.m., and stated that S. "wasn't quite right."
Dr. Sanchez testified that he evaluated S. on December 13, 2010, for vomiting. According to Dr. Sanchez's medical chart, S.'s visit began at 11:50 a.m. and ended at 12:36 p.m. No seizures were reported and she reportedly vomited once. He recommended that she continue to be hydrated. He said she was moving all her extremities with no problem.
Dr. Sanchez also testified that he evaluated S. on December 15, 2010, beginning at 12:18 p.m. He did not record her time out but believed her visit lasted 15 to 20 minutes. He said she had a fever and intractable vomiting and nausea. He said petitioner suggested that S. had some left-sided weakness which he tested by standing her up. She was able to stand on her own but her grip strength in her left hand was a little weak. Dr. Sanchez answered affirmatively when asked whether fever, intractable vomiting, nausea and weak grip strength could be signs of subdural hematoma. However, he did not directly answer whether he suspected S. of having a subdural hematoma at the time of her examination. Instead, he responded by testifying that he wrote "fever of unknown origin" in her chart and stating that he believed she needed to be hospitalized. He said she "looked terrible." Dr. Sanchez testified that he called ahead and notified an emergency room physician at children's hospital that S. would be going there and instructed petitioner and Angelina to take her there "soon." He said he did not send S. to the hospital by ambulance because the parents said they would transport her. He said S.'s condition was not life-threatening when she was in his office.
Dr. Hyden testified as an expert in child abuse and the approximate timing of non-accidental trauma for children. He believed that S. was severely shaken in a manner that caused her head to roll back and forth on its axis. He said she would have died if she had not received medical intervention. As to her prognosis, Dr. Hyden said that she had persistent left-sided problems but it was too early to assess her development. In addition, they had not yet determined if she could see.
Under questioning by county counsel, Dr. Hyden opined to a reasonable medical certainty that S. was injured between the time she was discharged on the morning of December 15, 2010, from children's hospital and the time she was readmitted there later that evening. He formed his opinion after reviewing Dr. Sanchez's medical charts. Dr. Hyden based his timing on the fact that S. was released from children's hospital in an improved condition and returned seizing and nonresponsive. Based on S.'s condition upon arrival at the emergency room, Dr. Hyden believed it was more likely that her injury occurred closer to the time she arrived. However, he could not pinpoint the exact time of her injury nor could he rule out the possibility that she was injured prior to being evaluated by Dr. Sanchez that afternoon.
On cross-examination, Elizabeth's attorney asked Dr. Hyden "If I told you that Dr. Sanchez tested the child's left side and found slight weakness on December 15, would that be indicative of something happening to the child before the visit with Dr. Sanchez ... [?]" Dr. Hyden testified that it would and that it would be consistent with the symptoms she presented at children's hospital later that day. Even without left-sided weakness, Dr. Hyden testified that S.'s intractable vomiting and Dr. Sanchez's referral to the emergency room indicated to him that S. was injured before she was evaluated by Dr. Sanchez. He said he believed to a reasonable degree of medical certainty that S. was traumatically injured before she got to Dr. Sanchez's office.
Dr. Hyden was also asked what significance to place on the severity of S.'s condition while at Dr. Sanchez's office given the fact that he allowed petitioner and Angelina to transport her to the hospital. He said he did not understand why Dr. Sanchez did not arrange for S. to be transported to the hospital by ambulance or helicopter but refused to speculate as to Dr. Sanchez's reason.
Dr. Hyden also testified that S. could have been injured prior to December 15, 2010, but that the injury she sustained that day was new and severe. He said it was possible that S. sustained another injury after leaving Dr. Sanchez's office but that it was speculative.
The juvenile court took the matter under submission and issued its ruling the following week. The court did not find petitioner and Elizabeth credible, particularly as it related to their claims that Elizabeth was never alone with S. The court was convinced that either petitioner, Elizabeth or Angelina injured S. but could not determine which one. The court amended the petition to conform to proof and sustained a single count under section 300, subdivision (e) and two counts under subdivision (b). The court found the section 300, subdivision (a) and (j) counts not true or not proved. The court ordered Joseph, Jr. returned to Angelina and Joseph's custody and Leila returned to petitioner and Elizabeth's custody and set a contested dispositional hearing as to S. for the following week.
Dispositional Hearing
On June 22, 2011, the juvenile court conducted the dispositional hearing. The agency recommended that the juvenile court deny petitioner and Angelina reunification services pursuant to section 361.5, subdivision (b)(5). The agency did not believe there were any services that would prevent reabuse. The agency also advised the court that S. had not required treatment for seizures, lethargy, vomiting or dehydration since being placed in foster care.
Petitioner did not offer any evidence at the dispositional hearing but argued through counsel that it was in S.'s best interest to reunify with him because he has a strong bond with her and because she has a relationship with his children/her siblings, Leila and Lauryn.
At the conclusion of the hearing, the court denied petitioner and Angelina reunification services as recommended. The court also found that petitioner and Angelina failed to prove that reunification services were likely to prevent reabuse or that failure to try reunification would be detrimental to S. Accordingly, the court set a section 366.26 hearing to consider a permanent plan of adoption. This petition ensued.
DISCUSSION
Petitioner contends the juvenile court erred when it found that it could not determine who injured S. He argues there was sufficient evidence to establish, based on Dr. Hyden's testimony, that Angelina injured S. Therefore, he further contends, the section 300, subdivision (e) allegation as to him and the section 366.26 hearing must be vacated and the matter returned to the juvenile court for an order dismissing the dependency petition as to him or ordering him reunification services.
Preliminarily, we note that the juvenile court, in addition to sustaining a subdivision (e) allegation, sustained a subdivision (b) allegation as to petitioner which he does not challenge. Therefore, even if this court found error in the court's subdivision (e) allegation, we would not direct the juvenile court to dismiss the petition as to him. Further, we conclude substantial evidence supports the juvenile court's section 300, subdivision (e) finding as to petitioner. Therefore, for the reasons we now explain, we will deny the writ petition.
Section 300, Subdivision (e)
The primary purpose of dependency proceedings is to protect the child. (In re Kerry O. (1989) 210 Cal.App.3d 326, 333.) To that end, the juvenile court stands in loco parentis to the minor over whom it has jurisdiction. (In re Hadley B. (2007) 148 Cal.App.4th 1041, 1048.) In order to exercise its dependency jurisdiction, the court must first find by a preponderance of the evidence that the minor child is described by any of the subdivisions set forth in section 300. (In re Veronica G. (2007) 157 Cal.App.4th 179, 185.)
In this case, the juvenile court determined that S. suffered severe physical abuse as defined in section 300, subdivision (e). Though the court could not determine from the evidence who inflicted the abuse, the court was convinced that it was either petitioner, Elizabeth or Angelina. Accordingly, the court exercised its dependency jurisdiction over S. pursuant to subdivision (e), finding that she "suffered severe physical abuse by a parent or person known to the parent" based on circumstantial evidence. In so doing, in effect, the court found sufficient evidence to find that petitioner or someone known to him severely physically abused S. and that Angelina or someone known to her severely physically abused S. Though seemingly inconsistent, such a result is permissible where the court cannot identify the perpetrator and is in keeping with the juvenile court's duty to protect the child. (In re E.H. (2003) 108 Cal.App.4th 659, 670.)
Section 300, subdivision (e) provides in relevant part: "Any child who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court: [¶] ... [¶] (e) The 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. For the purposes of this subdivision, 'severe physical abuse' means any of the following: 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; ...."
Hereafter, section 300, subdivision (e) will be referenced as "subdivision (e)."
On a challenge to the sufficiency of the evidence to support the juvenile court's finding or order, we determine whether substantial evidence supports the conclusion of the juvenile court. (In re Precious D. (2010) 189 Cal.App.4th 1251, 1258-1259.) In so doing, we defer to the juvenile court's determinations with respect to the weight of the evidence, the credibility of witnesses, and the resolution of conflicting evidence. (In re Sheila B. (1993) 19 Cal.App.4th 187, 199-200.) Further, we "accept the evidence most favorable to the order as true and discard the unfavorable evidence as not having sufficient verity to be accepted by the trier of fact." (In re Casey D. (1999) 70 Cal.App.4th 38, 53.)
With those principles in mind, the question before this court is not, as petitioner urges, whether the evidence supports a finding that Angelina severely abused S. thus exonerating him. Rather, the question before us is whether substantial evidence supports the juvenile court's finding that petitioner severely abused S. or reasonably knew that she was being severely abused. We conclude that it does. To that end, we find the juvenile court's evaluation of the evidence apt.
First, the juvenile court credited Dr. Hyden's initial opinion that S. was more likely injured within minutes to a few hours before her seizure activity in the emergency room, over his revised opinion that she was injured prior to being evaluated by Dr. Sanchez. The court stated:
"According to [Detective Fahoum's] report, when asked to provide a specific time of injury, Dr. Hyden indicated the accelerative/decelerative forces would have occurred within minutes to a few hours of the seizure activity observed in the [emergency room].
"During his testimony, Dr. Hyden first opined to a reasonable medical certainty the injury occurred on December 15, 2010, between the child's discharge at 1:30 a.m. and her readmission that same date. Dr. Hyden did review Dr. Sanchez' records prior to forming that opinion. Based on a review of those records, he indicated he cannot rule out the injury occurring prior to the child seeing Dr. Sanchez at 12:18 p.m.
"Dr. Hyden, after being given a hypothetical that Dr. Sanchez observed left-sided weakening, opined to a reasonable medical certainty that if that were the case, the injury most likely occurred prior to Dr. Sanchez seeing the child. However, Dr. Hyden struggled with the inconsistency of the facts of that hypothetical and the representation that Dr. Sanchez permitted the parent to take the child to the hospital by car rather than by ambulance or airlift.
"Dr. Sanchez testified he felt an ambulance was not necessary, the child should be seen at the hospital soon. Dr. Sanchez' records were silent as to observing any left-sided weakness. He did testify the child was able
to stand on her own legs, but her grip strength was weak on the left side. Dr. Sanchez' actions do not indicate an immediate concern about any left-sided weakness."
Further, the juvenile court considered that the vast majority of S.'s many medical appointments occurred after petitioner and Elizabeth began caring for her and that the concern about seizures arose at the same time. The court stated:
"Since her birth, [S.] has been seen by medical personnel, either at the doctor's office or at a hospital on at least 47 occasions. Significantly, only five of these visits occurred prior to [petitioner] and [Elizabeth] becoming a part of her life, and of those five, three were related to routine well-baby checks, one was a concern about diaper rash, and one she had symptoms of congestion.
"None of these five visits included symptoms related to vomiting or what has been termed 'seizure-like symptoms of staring into space, rolling eyes,' et cetera."
Finally, the court considered petitioner's unaccounted for delay in getting S. to children's hospital, stating:
"What is troubling, and is clear from the record, is that the father did not follow Dr. Sanchez' instructions to get the child to the hospital soon. Father, in his oral testimony and his statements to law enforcement, indicates he did not leave Dr. Sanchez' office until 2:30 or 3:00 p.m. Dr. Sanchez' record is very clear the child was seen at 12:18 p.m. His medical chart is silent as to the time the father left the office, however, his testimony is clear it was within 15 to 20 minutes of being seen, which would place it at no later than 12:38. There are approximately two hours unaccounted for. No plausible explanation is provided by the father as to why it took almost five hours for the child to reach the [emergency room]."
Given the above, we conclude substantial evidence supports the juvenile court's finding that petitioner severely abused S. Even if he did not inflict the injury himself, substantial evidence supports a finding that Elizabeth did and that he knew or should have known. Petitioner knew that Elizabeth had Munchausen syndrome and that she had a history of child abuse. In addition, he recognized her fixation on S.'s physical health as strange and took measures to make sure she was not alone with S. His knowledge and behavior in the context of repeated medical treatment speak to his knowledge that S. was being physically abused.
Section 361.5, Subdivision (b)(5)
Section 361.5, subdivision (b)(5) allows the juvenile court to deny a parent reunification services when the child was brought within the jurisdiction of the court under subdivision (e) because of the conduct of the parent. Other than to argue that subdivision (e) does not apply to him, petitioner does not challenge the court's denial of services to him under subdivision (b)(5) of section 361.5. Since we affirm the juvenile court's subdivision (e) finding, we will affirm its denial of services order as well.
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.