Opinion
F078617
09-23-2019
In re A.C. et al., Persons Coming Under the Juvenile Court Law. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. SABRINA G., Defendant and Appellant.
Nicholas J. Mazanec, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. 18CEJ300218-1, 18CEJ300218-2)
OPINION
APPEAL from an order of the Superior Court of Fresno County. Leanne Le Mon, Commissioner. Nicholas J. Mazanec, 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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INTRODUCTION
Appellant, Sabrina G. (mother), appeals from the juvenile court's jurisdictional order that her child, then-eight-month-old K.R. came within the jurisdiction of the juvenile court under Welfare and Institutions Code section 300, subdivisions (a), (b), and (e), and that her child, then eight-year-old A.C. came within the jurisdiction of the juvenile court under section 300, subdivisions (a) and (b). We affirm.
Pursuant to California Rules of Court, rule 8.90, we refer to certain persons by their first names and/or initials. No disrespect is intended.
All further undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Mother has three children, K.R., M.B., and A.C. On April 14, 2018, mother's mother, Nancy A., picked K.R. up from K.R.'s paternal relatives' home and saw what appeared to be a small bruise on K.R.'s face. Nancy was concerned because she suspected K.R.'s paternal grandmother suffered from dementia. Nancy took K.R. to the hospital. A police officer and a social worker from respondent Fresno County Department of Social Services (the department) contacted Nancy at the hospital. The officer and social worker noted an eraser-sized light bruise on K.R.'s right chin area. Nancy reported to the officer and the social worker that mother was aware of the incident and had decided to only allow K.R.'s paternal relatives to have contact with K.R. at mother's home. Nancy showed them a photograph mother had taken "a while back" of a bruise that appeared to be an older injury to K.R.'s right temple. K.R. was administered medical tests and deemed to be healthy. There were no visible signs of abuse or neglect besides the bruises to the right side of the chin area.
All dates in the factual and procedural background are from the year 2018.
On April 16, a social worker made contact with A.C. A.C. reported when she gets in trouble her mother talks to her. A.C. knew that K.R. had a "mark" on her. A.C. did not know how K.R. got the mark but " 'thought' " K.R. got it while playing with K.R.'s aunt. A.C. denied seeing anyone be mean to K.R. or seeing anyone hit or pinch K.R.
On April 19, a social worker made contact with mother in her home. The social worker observed mother's home to be appropriately furnished, maintained, and above minimal standards. Mother reported that A.C.'s father was deceased, K.R.'s father was incarcerated, and she shares "50/50 custody" of M.B. with M.B.'s father. Mother reported that K.R.'s paternal aunt watches K.R. every Monday, Wednesday, and Friday from 8:30 a.m. to 12:00 p.m. while mother is at school.
Mother pointed out the right side corner of K.R.'s mouth to the social worker. The social worker could not see anything at first but then observed a very small circular light brown mark, smaller than the size of a pea. Mother reported she had noticed the mark and asked the paternal aunt if she knew how it was made, and the aunt told her she did not know but later said it could have possibly been made by K.R. sleeping on her pacifier. Mother told the social worker she did not believe this explanation and instead thought the mark could have been made by the paternal grandmother whom she thought was suffering from dementia. Mother said the paternal grandmother is rough and pinches cheeks.
Mother said she had also noticed a small mark on K.R.'s ear a month prior after she had been in the care of the paternal relatives. Mother addressed the mark with the paternal relatives, and they stated they did not know how K.R. got the mark. Mother stated as a result of that incident and the recent incident, she was no longer utilizing the paternal aunt as childcare and was utilizing her grandmother and Nancy instead. Mother said she would only allow the paternal family to have contact with K.R. in her home. The social worker informed mother she made a good decision to access other childcare and that if mother allowed the paternal relatives to watch K.R., and K.R. were to sustain another injury, K.R. may be removed from mother's home. Mother stated she understood.
On August 9 K.R. was in the care of her paternal aunt, uncle, and cousin. Mother noticed a bump on K.R.'s forehead after picking K.R. up from the relatives' home. Over the course of the following two days, mother noticed the bump get bigger, which caused her to bring K.R. to the hospital on August 11. Dr. Braxton Duncan performed a physical exam on K.R. Because Duncan was informed of K.R.'s visit to the hospital in April, he ordered a CT scan and notified the department. The initial CT scan report indicated the bump was suggestive of a hematoma, which was a possible sequela of trauma. The department completed a "Suspected Child Abuse Report" (SCAR) and concluded that it was not likely mother was abusive and that K.R. was safe at home. K.R. was discharged, but a few hours later, a radiologist reviewed the CT scan film and discovered a skull fracture in the back of K.R.'s head. The latter head CT scan report indicated that K.R. had a complex skull fracture lacking overlying scalp swelling and also noted the "unexplained" hematoma. The report indicated the findings were "highly suspicious for injuries of different ages."
Mother was asked to return to the hospital on August 12 after the skull fracture was discovered. A social worker and a police officer went to the hospital. The attending physician, Dr. Francisco Garcia, informed the police officer K.R. did not have any swelling or bleeding on the back of the head, and the injury was nonaccidental. The social worker and the police officer contacted mother at the hospital and mother reported she did not know how K.R. received the injuries. Mother reported K.R. had fallen off her bed once a couple of months prior and once a couple of weeks prior. She stated her floor is carpeted, and K.R.'s bed does not have a bedframe, so it is not too high. At that point, the officer told the social worker he did not feel a section 300 hold was warranted because the injury date was unknown, and it was unknown if mother or the relatives caused the injury. Mother was notified more investigation would be done to determine whether a hold should be placed on the children.
The social worker visited mother's home again and spoke with A.C, who reported neither she nor M.B. get spanked. She reported K.R. got hurt at K.R.'s aunt's house. She also said K.R.'s aunt is part of K.R.'s father's family, not A.C.'s family. A.C. denied ever seeing anyone hurt K.R.
The social worker contacted the paternal relatives who watched K.R., and they could not explain how K.R. sustained the injuries and had not seen K.R. fall while in their care.
On August 14 the social worker contacted M.B. and M.B.'s father, Edgar B. Edgar reported he had never seen mother hit any of her children. He stated he had concerns about mother in the past because she had anger issues. He stated A.C. and M.B. had witnessed domestic violence incidents between he and mother, and that mother was the aggressor. M.B. told the social worker that when she is in trouble she is sent to her room, and denied being spanked. M.B. told the social worker that K.R. " 'falls off mommy's bed a lot and again and again.' " The social worker asked M.B. what mother does when K.R. is hurt, and M.B. stated that " '[mother] gets off her phone and picks her up and gives her a bottle.' "
On August 15 the social worker contacted mother to determine the number of injuries and time frame for K.R.'s injuries. Mother reported that she has observed other injuries K.R. had sustained while in the care of the paternal relatives that were not reported or investigated. Mother reported in March 2018, K.R. had a bruise on the inside of her left ear after being in the care of the paternal relatives. The relatives stated the bruise may have been from K.R. sleeping on her pacifier. Mother reported that in May 2018, she observed a bruise above and below K.R.'s left eye after K.R. had been in the care of her paternal relatives. When mother asked the relatives about it, they told her K.R. rubs her eye often and that is how she got the mark. Mother also reported K.R. had sustained a burn to her right cheek from a bottle that was overheated while in the care of the paternal relatives, but she did not provide a date.
On August 16 Duncan submitted a letter to the department that summarized K.R.'s visit to the hospital on August 11 and the subsequent discovery of the skull fracture. Duncan concluded: "This patient is 8 months old, able to sit but often requires support to do so, is not able to crawl, and is not able to pull herself to stand. The presentation, particularly with signs of frontal head impact and posterior skull fracture is highly concerning for and suggestive of abusive head trauma. These findings are not consistent with injuries that could be self-inflicted by an 8 month old child."
On August 17 the department filed a dependency petition on behalf of K.R. and A.C. The petition alleged that K.R. came within the jurisdiction of the juvenile court under section 300, subdivisions (a) (serious physical harm; count a-1), (b) (failure to protect; count b-1), and (e) (severe physical abuse of a child under five years old; counts e-1, e-2). It alleged A.C. came within the jurisdiction of the juvenile court under section 300, subdivisions (a) (count a-1) and (b) (count b-2). M.B. was placed with her father and was not part of the petition.
The jurisdiction/disposition report indicated mother had a criminal history consisting of a misdemeanor conviction for fighting, a misdemeanor conviction for battery against a cohabitant, and a misdemeanor conviction for violating a domestic violence court order, all occurring in 2015.
A contested jurisdiction/disposition hearing was held on November 14. The department recommended the petition be found true and that family reunification services be ordered for both mother and K.R.'s father. Mother called Duncan as a witness. Duncan testified he was a second year resident and performed the initial physical exam on K.R. when mother brought her to the hospital on August 11. At that time, Duncan observed a right frontal scalp bump on K.R.'s head with no abrasion or contusion overlying it. Duncan did not recall giving a diagnosis to the bump on the head but recalled being suspicious of a cyst developing. Duncan testified he was aware K.R. had a previous visit for nonaccidental trauma or suspected nonaccidental trauma. He contacted a social worker who completed a SCAR form. Because the initial radiology report said there was no skull fracture, they discharged K.R. The initial CT report read the bump on the head was "unremarkable," and that it was suspected to be a hematoma, or a collection of blood. When Duncan went into the hospital the next day, the nursing staff informed him that a radiologist had reviewed the scan and identified at least one skull fracture. Duncan never saw the actual report and did not recall looking at the imaging.
Duncan testified that the injury was "certainly" concerning for nonaccidental trauma. He testified there is a high level of suspicion for any trauma particularly in children less than a year old. Patterns of bruising, history of previous visits, delayed presentation, and injuries that could not be sustained on their own are factors that suggest nonaccidental trauma. The skull fracture in particular was extremely unlikely to be sustained on its own. Duncan testified it was extremely unlikely that falling off a regular-height bed onto carpet would cause a skull fracture in an eight-month-old child unless it was a bunk bed onto tile floor. A motor vehicle accident could also cause a fracture in an eight-month-old child, but he did not recall mother mentioning anything about K.R. being in a motor vehicle accident. Duncan testified he went over the contents of the letter with his attending physician with regard to how the letter should be phrased.
The social worker testified the facts supporting the section 300, subdivision (a) allegation were that K.R. had sustained a head injury and there was no reasonable explanation for what happened, and the child was under the care of mother at the time. The social worker testified it was not determined when the injuries to K.R. occurred. When asked by mother's counsel whether it was the department's position that mother inflicted the injury onto K.R., the social worker responded, "There was no reasonable explanation as to who did it, but medical professional[s] did say it was non-accidental trauma." The social worker primarily relied on Duncan's letter to support the conclusion that the injury was nonaccidental.
The court found by a preponderance of the evidence the petition was true. As for the section 300, subdivisions (a) and (e) counts, the court found by a preponderance of the evidence that the injuries to K.R. were nonaccidental. The court noted there was no evidence the skull fracture was accidental because there was no evidence K.R. was involved in a motor vehicle accident and though mother stated K.R. fell off the bed, Duncan testified the injury would not occur from falling off a normal bed onto carpet. The court noted Duncan testified that the bump was extremely unlikely to occur on its own because K.R. was not ambulatory.
The court also noted there was a history of prior injury, which occurred when K.R. was in the care of her paternal relatives, and that mother continued to utilize them for child care even after being advised not to.
As to the section 300, subdivision (b) counts, the court stated, "While I do agree that we do not know specifically who caused the injury, we do know that the minor was only left in the care of the paternal relatives and the mother."
The court found the reunification service bypass provisions under section 361.5, subdivision (b)(5) and (6) had been met but that clear and convincing evidence showed reunification services with mother were in the best interest of the children and reunification services were likely to prevent re-abuse of the children and that accordingly reunification services were appropriate. The court ordered reunification services for mother.
Mother appeals the jurisdictional findings.
DISCUSSION
Mother contends the juvenile court erred in finding A.C. and K.R. came within the court's jurisdiction under all statutory bases alleged, namely, section 300, subdivisions (a), (b), and (e). Mother acknowledges that generally " '[w]hen a dependency petition alleges multiple grounds for its assertion that a minor comes within the dependency court's jurisdiction, a reviewing court can affirm the juvenile court's finding of jurisdiction over the minor if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence' " and need not consider whether any or all of the other alleged statutory grounds for jurisdiction are supported by the evidence. (In re D.P. (2015) 237 Cal.App.4th 911, 916.) She contends, however, we should exercise discretion and consider all statutory bases because she has been listed in the Child Abuse Central Index (CACI). She asserts her inclusion in the CACI has had and will continue to have a prejudicial effect on her future employment because she is in nursing school. She also contends she would be prejudiced in any future dependency matters.
"Courts may exercise their 'discretion and reach the merits of a challenge to any jurisdictional finding when the finding (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 D.P., supra, 237 Cal.App.4th at p. 917.) Mother's argument regarding her inclusion in CACI relies on facts not in the record before us, which we cannot consider, but we agree that the findings on the section 300, subdivisions (a) and (e) allegations could potentially affect future dependency proceedings. (See, e.g., § 361.5, subd. (b)(3).) Thus, we will exercise our discretion and consider whether the evidence supports the juvenile court's findings under section 300, subdivisions (a), (b), and (e).
In evaluating whether a child comes within the court's jurisdiction, we use the substantial evidence standard of review, where we determine whether evidence of reasonable, credible and solid value supports the dependency court's findings. We do not reweigh the evidence, nor do we consider matters of credibility. (In re Sheila B. (1993) 19 Cal.App.4th 187, 199-200.) " '[W]e must uphold the [trial] court's [jurisdictional] findings unless, after reviewing the entire record and resolving all conflicts in favor of the respondent and drawing all reasonable inferences in support of the judgment, we determine there is no substantial evidence to support the findings.' " (In re J.N. (2010) 181 Cal.App.4th 1010, 1022.)
I. Section 300, subdivision (a)
A child comes within the jurisdiction of the juvenile court under section 300, subdivision (a) when "[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm inflicted nonaccidentally upon the child by the child's parent or guardian." (Ibid.)
Mother contends the evidence was not sufficient to support the juvenile court's finding K.R. and A.C. came within the meaning of subdivision (a) because the court stated it could not determine who inflicted the injuries. We disagree.
As respondent points out, the department alleged that K.R. and A.C. came within the meaning of section 300, subdivision (a) because they were at "substantial risk" of suffering serious harm inflicted nonaccidentally by mother.
Section 300, subdivision (a) provides that "a court may find there is a substantial risk of serious future injury based on the manner in which a less serious injury was inflicted, a history of repeated inflictions of injuries on the child or the child's siblings, or a combination of these and other actions by the parent or guardian that indicate the child is at risk of serious physical harm."
Here, there is substantial evidence that K.R. and A.C. were at risk of serious future injury. K.R. had suffered several injuries in the custody of mother over the course of K.R.'s life, some of which mother did not report or seek medical care. Further, mother had a history of anger management and domestic violence issues. Though there was evidence K.R. may have suffered at least some of her injuries while in the care of the paternal relatives, the trial court could not rule out mother as the perpetrator of the harm. Considering the totality of the circumstances and drawing all reasonable inferences in favor of the judgment, we find substantial evidence supports that K.R. and A.C. were at risk of serious future injury inflicted by mother.
II. Section 300, subdivision (b)
A child comes within the jurisdiction of the juvenile court under section 300, subdivision (b)(1) 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 failure or inability of his or her parent or guardian to adequately supervise or protect the child,
or the willful or negligent failure of the child's parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left, or by the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent or guardian to provide regular care for the child due to the parent's or guardian's mental illness, developmental disability, or substance abuse." (Ibid.)
Mother contends the evidence is not sufficient to support the juvenile court's finding under section 300, subdivision (b) because there was no evidence of "current risk" to K.R. because mother agreed not to allow the paternal relatives to care for [K.R.] anymore. Mother also contends if she had adequate childcare, the risk to K.R. would be alleviated. She suggests her not having suitable childcare is the reason she utilized the paternal relatives even after telling the department she would not. Mother, however, points to no evidence to support an inference she would be able to find alternate childcare moving forward. The court could have reasonably rejected mother's assertion she would not utilize the paternal relatives for childcare in the future.
Mother also contends that substantial evidence does not support the finding as to A.C. because there is no evidence she received any injuries nor that she has a relationship with K.R.'s paternal relatives. We disagree. " 'In determining what constitutes a substantial risk of serious physical harm [under section 300, subdivision (b)], some general guidance may be drawn from subdivision (a) of section 300, which uses the same language to authorize jurisdiction where "[t]he minor has suffered, or there is a substantial risk that the minor will suffer, serious physical harm inflicted nonaccidentally upon the minor by the minor's parent or guardian." For purposes of that subdivision, "a court may find there is a substantial risk of serious future injury based on the manner in which a less serious injury was inflicted, a history of repeated inflictions of injuries on the minor or the minor's siblings, or a combination of these and other actions by the parent or guardian which indicate the child is at risk of serious physical harm." (§ 300, subd. (a).)' " (In re Alysha S. (1996) 51 Cal.App.4th 393, 399, italics added.)
The record shows that mother noticed several bruises and marks that K.R. received while in the care of her paternal relatives and still continued to utilize them for childcare. She did so even after the department advised her not to. Mother's behavior showed a pattern of disregard for K.R.'s safety. As an eight year old, A.C. is of an age where she requires childcare. The court could infer from mother's behavior she could similarly ignore signs of abuse and fail to protect A.C. in choosing childcare for her. The court could consider the history of K.R.'s injuries to find jurisdiction over A.C. The section 300, subdivision (b) finding is supported by substantial evidence as to both children.
Mother also argues the court erred in applying the section 355.1, subdivision (a) presumption, which reads: "Where the court finds, based upon competent professional evidence, that an injury, injuries, or detrimental condition sustained by a minor is of a nature as would ordinarily not be sustained except as the result of the unreasonable or neglectful acts or omissions of either parent, the guardian, or other person who has the care or custody of the minor, that finding shall be prima facie evidence that the minor is a person described by subdivision (a), (b), or (d)." Mother contends the finding of a prima facie case was not supported by "competent professional evidence."
Because the record contains evidence sufficient to support true findings under section 300, subdivisions (a) and (b) independent of the application of the section 355.1 presumption, we need not address mother's argument that the section 355.1 presumption was erroneously applied.
III. Section 300, subdivision (e)
A child comes within the jurisdiction of the juvenile court under section 300, subdivision (e) when "[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.) The definition of "severe physical abuse" relevant to our analysis is "more than one act of physical abuse, each of which causes bleeding, deep bruising, significant external or internal swelling, bone fracture, or unconsciousness . . . ." (Ibid.)
Mother contends the evidence does not support the finding that K.R. suffered more than one act of physical abuse. She does not argue the evidence does not support that the injuries were caused by physical abuse. Rather, she argues the injuries sustained by K.R. do not fall under the definition of what types of injuries constitute "severe physical abuse." We disagree.
Mother contends the present case is similar yet distinguishable from In re E.H. (2003) 108 Cal.App.4th 659 (E.H.). In E.H., a section 300 petition was brought on behalf of E.H. because of several fractures which were likely nonaccidental. (E.H., supra, 108 Cal.App.4th at pp. 661-662.) The appellant and all relatives who watched E.H. stated they did not know how E.H. sustained the injuries. (Id. at p. 663.) A doctor found E.H.'s injuries to be a result of " 'gross child abuse.' " (Ibid.) The juvenile court found the injuries were intentionally inflicted and were caused by someone in the household, but because the evidence did not establish who injured the child, the court sustained the petition as to section 300, subdivisions (a), (b), and (j), but dismissed the allegations under subdivision (e). (E.H., at pp. 661, 667.) The department appealed, and the appellate court reversed the juvenile court's order finding that E.H. was not a person coming within the provisions of section 300, subdivision (e). (E.H., at pp. 661, 671.)
The appellate court in E.H. concluded that a parent's actual knowledge of abuse is not required, only that they reasonably should have known. "[W]here there is no identifiable perpetrator, only a cast of suspects, jurisdiction under subdivision (e) is not automatically ruled out. A finding may be supported by circumstantial evidence." (E.H., supra, 108 Cal.App.4th at p. 670.) Mother contends E.H. is similar because the acts of physical abuse were proven here by circumstantial evidence in that it was not clear who injured K.R. Mother contends the case is nonetheless distinguishable because the definition of "severe abuse" was "clearly met" in E.H., and is not in the present case.
That the child in E.H. sustained more injuries than K.R. does not mean the definition was not met in the present case. Here, the injuries alleged to support the section 300, subdivision (e) allegation are the skull fracture and the hematoma. The skull fracture clearly qualifies as an injury listed in section 300, subdivision (e). The hematoma presented to mother as a bump which grew steadily over the course of two days. The hematoma could be described by the subdivision as either bleeding or significant internal or external swelling. The medical reports indicated that the injuries likely occurred at different times. Thus, substantial evidence supports the inference that K.R. suffered two acts of physical abuse, which caused a statutorily enumerated injury.
As mother appears to concede, there is substantial evidence on the record K.R.'s injuries were caused by acts of physical abuse. Duncan testified it was extremely likely the injuries were caused nonaccidentally. He testified the type of impact that could cause a skull fracture in an eight-month-old child was a motor vehicle accident or falling off a bunk bed onto tile floor, and there was no evidence that either of those scenarios occurred. The CT scan report said trauma was a possible cause of the hematoma. Mother offered no evidence nor is there any on the record which could explain a nonabusive cause of the skull fracture or the hematoma.
The court's finding that K.R. came within the meaning of section 300, subdivision (e) is supported by substantial evidence.
DISPOSITION
The juvenile court's jurisdictional order is affirmed.
/s/_________
DE SANTOS, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
MEEHAN, J.