Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County Super. Ct. No. DP013962, Caryl Lee, Judge.
Julie E. Braden, under appointment by the Court of Appeal, for Defendant and Appellant.
Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent.
No appearance by the Minor.
OPINION
BEDSWORTH, ACTING P. J.
Eight-year-old Anthony L. has a congenital disorder that makes him susceptible to meningitis. The disorder can be remedied by surgery, which his doctors have recommended, but his father Fernando has balked at this course of treatment. For Anthony’s protection, the juvenile court issued an order assuming jurisdiction over him and placing him in the custody of his grandparents. Fernando contends the order is not supported by substantial evidence, but we disagree and uphold the court’s decisions.
Anthony was born with a defect in his nasal cavity. Doctors have determined there is a hole in the cavity to his brain through which cerebral fluid leaks into his nasal passage. This makes Anthony prone to infection, and in fact when he was four years old, he came down with his first bout of meningitis. He was successfully treated with antibiotics, but two years later, in the summer of 2006, the disease reappeared.
That development came fairly soon after Anthony’s mother Iris suffered a fatal heart attack. She and Fernando had been estranged, and Fernando had not been very involved in Anthony’s care. Between 2001 and 2005 he suffered four drug-related convictions, and he has also been convicted of spousal battery and dissuading a witness. However, when Iris died, he stepped in and assumed custody of Anthony. They lived with Fernando’s parents, and when Anthony became sick in 2006, Fernando took him to Children’s Hospital of Orange County (CHOC).
Anthony was admitted to the hospital and diagnosed with streptococcus pneumoniae meningitis. He had a polyp removed from his nasal passage, but this did not halt the flow of fluid from his brain. CHOC neurologist Laurie Ackerman told Fernando that Anthony needed a bifrontal craniotomy to repair the leak. She warned that without this surgery, Anthony would remain susceptible to meningitis and other complications. When Fernando said he wanted to get a second opinion, Ackerman gave him some referrals and discharged Anthony on July 10, 2006.
On July 18, Fernando brought Anthony to Children’s Hospital in Los Angeles. The doctors there were in accord with Dr. Ackerman’s opinions. They reiterated to Fernando that Anthony’s condition made him prone to meningitis and if he got the disease again he could “get deafness, brain damage, or die.” They wanted to admit Anthony to the hospital, but Fernando refused. As a compromise, Fernando agreed to bring Anthony back to CHOC the following day. He never showed up.
That failure prompted a house call from social services. Asked why he refused to admit Anthony to the hospital, Fernando said, “I want another opinion that’s not biased.” He acknowledged Anthony’s condition was potentially life threatening, but expressed skepticism about the doctors’ diagnosis and said he wanted to pray about the matter. The social worker insisted that Fernando take Anthony back to CHOC that evening, and he did.
The emergency room physician told Fernando that Anthony was leaking cerebral fluid. When Fernando questioned this, the doctor told him “there’s leakage. It’s [just] not noticeable. Right now, [Anthony] has bacterial meningitis, it’s extremely dangerous.” Fernando said he wanted another opinion, but the doctor admitted Anthony to the hospital straightaway.
The following day, July 20, Dr. Ackerman examined Anthony and reiterated to Fernando that the boy needs a craniotomy to repair the breech in his nasal cavity. In her report, Dr. Ackerman wrote, “I do not think that this is an overt emergency at this point; however, as we have previously discussed on many occasions, I do think that if [Anthony’s breach] is not fixed, . . . he remains at risk for meningitis again and sequelae including neurological deficit and death. Dad understands this.” It was Dr. Ackerman’s opinion that the surgery should be performed at “some point soon.”
On July 21, the doctors and social workers met with Fernando and the grandparents to discuss Anthony’s situation. Dr. Ackerman explained, “Anthony is at very high risk of developing meningitis. As of today, it’s not an immediate threat to life. However, meningitis is life threatening.” Fernando said, “I want another unbiased opinion. We can go to Israel and have him seen over there.” He did not believe Anthony had a hole in his nasal cavity, and he expressed hope that, even if he did, the hole would mend on its own. He did not think Anthony needed surgery to avoid getting meningitis, and the doctors admitted there was a chance that, even without surgery, Anthony might never get the disease again. However, they also told Fernando that without surgery, Anthony could get meningitis at any time. Nonetheless, because there was no immediate medical emergency, they discharged the boy into his father’s care.
In early August, Fernando brought Anthony to the family doctor, Brian Miyazaki. He found Anthony to be doing well, but he told Fernando the boy should have the surgery. Fernando then had neurologist Jack Florin review Anthony’s medical records, and he suggested the same thing. Not having seen Anthony, Florin declined to make any recommendations outside those already offered by his other doctors.
On August 14, Fernando told the social worker, “I think we’re going to go through with surgery.” However, he conditioned this statement with the phrase, “When I get MediCal.” He then explained he was having trouble gathering the necessary documents to obtain MediCal. A social worker had been working with Fernando on this, but he was so remiss in terms of supplying the requisite information that his application file was closed.
On August 15, a day after indicating he was open to surgery, he called Dr. Ackerman and said he wanted further testing done to determine whether Anthony was leaking cerebral fluid. Dr. Ackerman told him further testing would probably not be fruitful, but she would look into it. Interpreting Fernando’s request as further foot-dragging, the social worker had Anthony taken into protective custody a week later, on August 22.
The primary allegation in the subsequent dependency petition was that Fernando failed to obtain proper medical care for his son. The petition also alleged Fernando had a history of substance abuse and domestic violence. After the court upheld Anthony’s detention and placed him with his grandparents, Fernando agreed to move out of the residence. He was granted unlimited visitation and spent a considerable amount of time with Anthony. However, he continued to oppose surgery for the boy, citing potential side effects (loss of taste and sense of smell) and the inherent risks of surgery. Given his prior drug convictions, the court ordered Fernando to drug test weekly. He was also supposed to attend a pretrial interview with his social worker. Fernando never drug tested, nor did he appear for the interview.
On September 11, he took Anthony to see Dr. Michael Muhonen for yet another opinion on the matter. Like the doctors before him, Dr. Muhonen determined Anthony needs a craniotomy to prevent further leakage of cerebral fluid into his nasal passage. He reported, “I think this operation can be done safely [with two or three days of hospitalization] and if successful the risk of [further leakage] should certainly be diminished. All of this was detailed with the child’s father and grandparents, who seemed to understand. . . . I told them that there is virtually a 100% chance the child will once again get meningitis and if not treated he will die, assuming the leak is not fixed.” Dr. Muhonen did not believe the leak would fix itself. To the contrary, he felt it would only get worse if left alone. At the same time, he felt it was up to Fernando to follow-up on his recommendation. He described the surgery as “elective” because Anthony was “not at immediate risk of death at this time.”
In a telephone call with the social worker, Fernando acknowledged Dr. Muhonen’s opinion about the leak, but he dismissed it, saying the doctors “all say the same thing.” Upset and frustrated by the situation, Fernando used profanity toward the social worker and threatened to sue the county for “taking away his kid.” While acknowledging he had been ordered to drug test, he admitted he had not done so. And at the end of the call he said he would call the social worker back later. He never did.
Anthony, meanwhile, seemed to be doing fine. He was doing well in school, and other than an occasional cold, he appeared to be in good health. He enjoyed living with his grandparents and also liked spending time with his adult half-sister and her children, who live nearby. Fernando was a regular visitor, too, of course, so Anthony had plenty of family support. However, the social worker still harbored concerns about Fernando’s ability to make decisions regarding Anthony’s medical needs. She therefore recommended the court assume jurisdiction over Anthony and order him to remain with his grandparents so his medical care could continue to be monitored.
The jurisdictional hearing took place on January 9, 2007. Fernando did not show up, but the court did take judicial notice of the fact he had completed a drug diversion program on August 11, 2006, resulting in the dismissal of three drug-related cases. County counsel not only asked the court to sustain the allegations against Fernando, he also asked the court (for the first time) to order Anthony to undergo the recommended surgery. Fernando’s attorney opposed the request for surgery, arguing “there is no reason to think [Fernando] would not proceed as is necessary to protect his child’s health.” He urged the court to refrain from assuming jurisdiction and to order Anthony returned to Fernando’s custody.
The court was sympathetic to Fernando’s plight, noting he’s a single parent who is “faced with some very monumental decisions.” The court found it understandable he would want to obtain second opinions regarding Anthony’s situation, but felt some aspects of Fernando’s behavior were worrisome. The court noted first that he failed to avail himself of social services’ efforts to assist him in obtaining MediCal. Second, he “hasn’t involved himself in the court process.” Indeed, the jurisdictional hearing was continued several times to accommodate Fernando, but he failed to appear. Dismayed by this, the judge lamented, “I don’t even have him here to have the benefit of knowing how his cooperation would be. Right now [his] track record of cooperation is very minimal . . . .” The court also noted that the risk of harm from the recommended surgery was low, the likelihood of success was high, and Anthony could die if the surgery was not performed.
In light of these considerations, the court sustained the allegation of medical neglect. It also sustained the allegations of prior substance abuse and domestic violence, noting Fernando had failed to drug test and his rehabilitation efforts, although successful in some respects, have had their ups and downs over the years. For Anthony’s protection, the court assumed jurisdiction over him and ordered him to remain in the custody of his grandparents. However, the court determined it would be premature to order Anthony to undergo surgery because social services had failed to follow the requisite procedures to obtain such an order.
I
Fernando claims there is insufficient evidence to justify the court’s decision to assume jurisdiction over Anthony. We disagree.
“In juvenile cases, as in other areas of the law, the power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the verdict, if possible.” (In re Katrina C. (1988) 201 Cal.App.3d 540, 547.)
The juvenile court assumed jurisdiction over Anthony pursuant to Welfare and Institutions Code section 300, subdivision (b). That provision empowers the court to adjudge a minor a dependent child if there is a substantial risk he will suffer serious physical harm or illness from the willful or negligent failure of the parent to provide him with adequate medical treatment. Proof of present harm to the child is not a prerequisite to state involvement in medical decisions pertaining to a child’s health. (In re Eric B. (1987) 189 Cal.App.3d 996, 1002-1004.)
In Eric B., the court upheld an order that required a dependent minor to undergo periodic medical monitoring for the possible recurrence of eye cancer. The parents had objected to the monitoring on religious grounds, arguing there was no evidence of an immediate need for medical treatment. However, the appellate court pointed out, “The purpose of dependency proceedings is to prevent risk, not ignore it.” (In re Eric. B., supra, 189 Cal.App.3d at p. 1004.) Because the minor “faced a not insignificant danger of future risk from a recurrence of [a] life-threatening disease,” the court determined there was sufficient evidence to justify the order for medical monitoring. (Id. at pp. 1005-1006.)
In this case, Anthony likewise faces a significant danger of future risk from the recurrence of a life-threatening disease. While there is no evidence his health was in imminent danger at the time of the jurisdictional hearing, the doctors were in unanimous agreement that he is at very high risk of getting meningitis in the future. Indeed, one of the doctors said that without the recommended surgery, his chance of getting the disease is virtually one hundred percent. And if he gets the disease again, it could result in hearing loss, brain damage or death. Under these circumstances, it does not matter that, as Fernando points out, “the medical evidence reflected no emergency need for surgery.” The juvenile court does not have to wait for an emergency situation to arise before it acts for the protection of a child. (In re Eric. B., supra, 189 Cal.App.3d at pp. 1004-1006.)
Still, Fernando claims the court’s exercise of jurisdiction was premature because he has “demonstrated a willingness to seek treatment for Anthony, and [has been] appropriately attentive to his needs.” This is debatable. When Fernando took Anthony to the Children’s Hospitals in Orange County and Los Angeles, the doctors there wanted to admit Anthony right away in order to perform the recommended surgery. However, Fernando refused and broke his promise to bring Anthony back to CHOC on his own accord. It was only after social services intervened that he brought the child back to CHOC. And despite the fact that three more doctors of his own choosing recommended surgery for Anthony, despite the fact no doctor has ever recommended against surgery, Fernando has continued to resist this course of treatment. No one would question Fernando’s right to obtain a second or third opinion on the issue, but his steadfast rejection of what now amounts to a mountain of unanimous medical advice can only be described as reckless, irresponsible and dangerous. The trial court could well have viewed Fernando’s acts as passive resistance to treatment.
The evidence shows that Fernando has also refused to comply with the court’s order to undergo drug testing and that he has been less than cooperative in terms of communicating and working with social services. Fernando argues this evidence is inadmissible because it relates to events that transpired before the court ordered a formal case plan at the jurisdictional hearing. However, Fernando never objected to the evidence on this basis in the trial court, and has therefore waived his right to challenge it on appeal. (Evid. Code, § 353, subd. (a).) Since Fernando has chosen to ignore much of what the doctors, the social workers and the court have advised and instructed him to do, the trial judge was justifiably concerned about Fernando’s capability and willingness to make proper medical decisions regarding his son. (See In re Petra B. (1989) 216 Cal.App.3d 1163 [despite the absence of an imminent medical emergency, juvenile court properly assumed jurisdiction over child based on the parents’ past indifference to, and attitude toward, her medical needs].)
It is also significant that, as the trial court found, the risk involved in the proposed surgery is relatively low, the chance of success in terms of curing Anthony’s condition is quite good, and the danger to Anthony if he doesn’t have the surgery is potentially life-threatening. (See In re Petra B., supra, 216 Cal.App.3d at pp. 1171-1172; In re Eric. B., supra, 189 Cal.App.3d at p. 1005.) This is not a case where the child’s particular medical situation places him at elevated risk from the proposed course of treatment. (Compare In re Phillip B. (1979) 92 Cal.App.3d 796, 802 [juvenile court was justified in dismissing dependency petition aimed at having child undergo cardiac surgery where child’s heart condition and Down’s Syndrome created special surgical risks to child].)
In the end, we are satisfied the evidence fully justifies the juvenile court’s decision to assume jurisdiction over Anthony. Fernando may be a highly concerned parent, and it may be his decisions are intended to protect Anthony. However, there is substantial evidence his failure to provide Anthony with adequate medical treatment places the boy at substantial risk of serious harm or illness. Under these circumstances, we are powerless to disturb the court’s assumption of jurisdiction.
II
Fernando also challenges the court’s decision to place Anthony in the continuing care of his grandparents. He argues there is not substantial evidence to justify the removal of Anthony from his care, but we find to the contrary.
Pursuant to Welfare and Institutions Code section 361, subdivision (c)(1), the juvenile court may remove a dependent child from his parents’ custody upon clear and convincing evidence of a substantial danger to the child’s physical health or well-being if there are no other reasonable means to protect the child. Such an order “is proper if it is based on proof of parental inability to provide proper care for the minor and proof of a potential detriment to the minor if he or she remains with the parent. [Citation.] The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child. [Citations.]” (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136.)
This standard has obvious parallels to the jurisdictional issue discussed above. For the reasons stated in examining that issue, we are convinced the court’s dispositional order was proper. It’s not just that Fernando has ignored the advice of a multitude of doctors in deciding how to treat his son’s potentially life-threatening disorder. He’s also shown considerable defiance to the court and social workers throughout the case. His actions and attitude paint the picture of a person who, presumably well-intentioned, is unable to provide proper care for Anthony and may expose the boy to considerable detriment in the future. And as there are no other reasonable means to protect the child, we uphold the court’s custody order. The order enjoys substantial support in the record and is fully justified by the circumstances presented.
The order is affirmed.
WE CONCUR: MOORE, J., ARONSON, J.