Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County, No. DP018488, Douglas Hatchimonji, Judge.
Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and Appellant.
Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Julie J. Agin, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minor.
OPINION
FYBEL, J.
Introduction
Wendy C. (Mother) appeals from the jurisdictional/dispositional order sustaining allegations of a dependency petition that she and I.F. (Father) failed to protect their daughter, C.F., born in October 2008. The juvenile court declined to declare C.F. a dependent child and released her to Mother and Father with services. Father has not appealed.
The dependency petition asserted one count (count 1) for infliction of serious physical harm under Welfare and Institutions Code section 300, subdivision (a) and another count (count 2) for failure to protect under section 300(b). The juvenile court found, after a lengthy jurisdictional/dispositional hearing, the allegations of infliction of serious physical harm were not proved by a preponderance of the evidence but found true the allegations of failure to protect.
Further Code references are to the Welfare and Institutions Code. Section 300, subdivision (a) is referred to as section 300(a), and section 300, subdivision (b) is referred to as section 300(b).
We conclude the allegations of count 2, together with the evidence supporting them, are insufficient to meet the statutory requirements of failure to protect and therefore reverse. The failure to protect count did not include an allegation that Mother or Father inflicted injury on C.F. The failure to protect count was based instead on allegations Mother delayed three to four hours in taking C.F. to the emergency room after it became evident C.F. was in pain, Mother suffered from anxiety, Mother lied to a police officer about her relationship with Father for fear he would be deported, and one doctor reported that C.F. had suffered nonaccidental injuries. While Mother’s delay in taking C.F. to the emergency room showed poor judgment and constituted parental neglect, there was some justification for the delay and no evidence of a substantial risk such delay in seeking medical care would ever happen again, as required by statute. There was no evidence of a causal connection between either Mother’s anxiety or her single act of dishonesty and any substantial risk of serious physical harm to C.F. Although the juvenile court found true the allegation that one doctor reported that C.F. had suffered nonaccidental injuries, the court found the infliction of serious physical harm allegations were not proven by a preponderance of the evidence. The juvenile court found to be “well founded” and “compelling” another doctor’s explanation of how C.F.’s injuries were accidental.
Facts and Dependency Proceedings
I.
Events Leading to Detention
C.F. is the only child of Mother and Father, who are engaged to be married. Mother has one adult child and one teenaged child from a previous marriage. Mother and Father have no criminal, drug, or alcohol history. Mother is a high school graduate and has a bachelor’s degree in child development and special education. She is a medical assistant and worked as an instructor for medical assistants until August 2008, when she went on disability leave.
On May 1, 2009, C.F. received a “well[-]baby physical” and six month immunizations in both legs. After the immunizations, C.F. was unusually fussy and unhappy and stopped moving her right leg. At about 4:30 p.m. on May 5, C.F. awoke in her crib crying, screaming, and refusing to move. Her right leg was swollen and made a clicking sound when gently moved. Mother called C.F.’s pediatrician. A medical assistant returned the call about two and a half hours later and told Mother she could see the doctor the next day or take C.F. to the emergency room. Following the conversation with the medical assistant, Mother conducted Internet research on the immunizations given to C.F. and the risk of swine flu in Orange County hospitals.
At about 11:00 p.m. on May 5, Mother and Father brought C.F. to the emergency room of Children’s Hospital of Orange County (CHOC) due to discomfort and swelling in her right leg. They said they thought C.F.’s leg might have been broken when she was forcefully held down during the immunizations or when C.F.’s leg was caught in the slats of a crib.
C.F. was found to have a fractured right femur and facial abrasions. The treating pediatric physician believed the injuries were “an indication of child abuse and neglect.” Dr. Andreef, one of C.F.’s pediatricians, examined C.F. and believed her injuries were “suspicious.” Dr. Daphne Wong, the director of CHOC’s Suspected Child Abuse Services Team, concluded C.F.’s injuries “were not consistent with the child getting her leg caught in the crib” and it was not plausible a nurse would have broken the leg while giving and immunization.
Father, who was in this country unlawfully, left the hospital when he heard C.F. had a broken leg. La Habra Police Officer Nick Wilson responded to CHOC’s report of suspected child abuse. Mother told Wilson that Father was her brother and had left because he was tired. When Wilson confronted her, she admitted lying, and told him Father was in the country illegally and feared deportation. Mother told Wilson she believed C.F. might have broken her leg by getting it caught in the slats of the crib or when the nurse held C.F.’s legs while giving the immunizations.
II.
The Dependency Petition
The dependency petition, filed in May 2009, included allegations pursuant to section 300(a) for infliction of serious physical harm (allegation a-1 through a-4) and allegations pursuant to section 300(b) for failure to protect (allegations b-1 through b-7). Allegation a-2 alleged: “On or about May 6, 2009, Dr. Wong reported that the injuries sustained by the child are of nonaccidental origin and could not be a result of the child having gotten her leg stuck in a crib or as a result of being held down for her immunizations five days prior. The parents are unable to provide any reasonable explanation for the child’s injuries, placing the child at risk of further harm in the care of the parents.”
The failure to protect count was based on allegations Mother and Father delayed seeking medical attention for C.F. Allegation b-5 alleged: “On or about May 5, 2009, [Mother], and [Father], failed to seek immediate medical attention for the child, [C.F.], after observing swelling to the child’s right leg and signs of pain and discomfort in the child, as made evident by the child’s crying, her agitation, a clicking sound produced when the parents moved her leg and the child’s refusal to stand on her injured leg. The parents’ failure to seek immediate medical treatment caused the child to needlessly suffer severe emotional distress and undue physical pain.”
C.F. was detained and placed with Michelle G, Mother’s 18 year old daughter.
III.
Evidence at the Jurisdictional/Dispositional Hearing
The jurisdictional/dispositional hearing began on August 10, 2009 and continued over eight days of testimony, concluding on October 7. Father, Mother, Dr. Wong, Wilson, Michelle G., social worker Carrie Murphy, Dr. Aminian, and C.F.’s primary care physician Dr. Edgar Flores testified.
A. Father’s Testimony
Father testified that C.F. received immunizations in both legs on May 1, 2009. After receiving the immunizations, C.F. was uncomfortable and cried. On May 2, Father and Mother took C.F. to the beach, where C.F. was irritable and cried more than she normally would. Father did not see her crawl while at the beach. On May 3 and 4, C.F. was still irritable and a little fussy.
On May 5, C.F. awoke from a nap “really crying something out of the ordinary as though she was hurt.” As the day progressed, she continued crying a lot and did not want to eat. Her right leg was swollen and felt different from normal. Several days earlier, Father had noticed that C.F. had a scratch on the left side of her face from the ear to halfway to the jaw and a scratch on the right side of her face.
At about 4:30 p.m., Mother called the pediatrician’s office and was told to wait for the doctor to call her back. A nurse from the pediatrician’s office called back at about 7:00 p.m. Mother called the pediatrician’s office again about a half hour later because C.F. “was much more irritable than before” and Mother and Father noticed “her leg was more swollen than before.” Someone from the doctor’s office told Mother to take C.F. to the emergency room.
Father and Mother did not take C.F. to the hospital immediately because they were waiting for the pediatrician to call. They did not realize C.F. had a broken leg. Father took a shower while Mother tried to feed C.F. and researched the Internet for information on reactions to vaccines. At around 10:00 p.m., Mother called the hospital emergency room about the presence of swine flu. At that point, Father made the decision to take C.F. to the emergency room. They left for the hospital at about 10:40 p.m.
Father testified he believed C.F. was injured when receiving her immunizations on May 1 because the medical assistant applied too much pressure to her legs. The injury became worse on May 5 when C.F. got her leg stuck between slats on her crib. He testified that after receiving her vaccinations on May 1, C.F. favored her left leg. Father testified he believed C.F. self-inflicted the scratches on her face or received them by rubbing her face against the belt of her car seat.
B. Mother’s Testimony
Mother testified that C.F. was irritable on the day she received her immunizations. Mother did not notice whether C.F. could bear weight on her right leg. The next day, Mother and Father took C.F. to the beach, where Mother noticed C.F. would not lean on her right leg and was fussy, in part due to diaper rash. C.F. also engaged in a “seizure-like activity.” Mother noticed C.F. had a scratch on her face and believed C.F. had scratched herself or had rubbed the side of her head against a car seat strap. A few days later, Mother noticed C.F. had an abrasion on the right side of her face, which Mother believed was caused by bouncing in the crib or rubbing against the car seat strap.
On May 5, C.F. did not crawl or roll over to her after waking up from her nap at around 4:00 p.m. and cried very loudly. C.F. was noticeably fussier than she had been during the preceding days, would not lean on her right leg, and cried when Mother touched the leg. Mother felt C.F.’s right leg just above the knee and noticed it felt different from normal.
Mother called C.F.’s pediatrician at around 4:30 p.m. and told the person answering the phone that in the four days since C.F. had her immunizations she had not leaned on her right leg. Mother said she thought C.F. might have had a reaction to the vaccines or injured herself in the crib by twisting her leg between the slats. Mother was told the doctor was not in, the doctor would have to be contacted, and to wait for the doctor’s return call.
The pediatrician’s office called Mother back at around 7:00 p.m. and told her she could wait to see the doctor the next day or, if she believed C.F. had broken her leg, to take her to the emergency room because the pediatrician’s office did not have an X-ray machine. After the call ended, Mother conducted internet research on adverse reactions to vaccines and the presence of swine flu in Orange County.
As the evening progressed, Mother became increasingly concerned and periodically checked C.F.’s leg for swelling. C.F.’s right leg looked a little swollen and C.F. was behaving fussily and not feeding well. At 10:20 p.m., Mother called the pediatrician’s office again but received the answering machine. At that point, Mother and Father decided to take C.F. to the emergency room. Mother called St. Jude Hospital because it was the closest hospital and asked whether it accepted CHOC as insurance. Mother was told to contact CHOC, which she did.
Mother and Father took C.F. to the emergency room at CHOC. Mother informed hospital staff that four days earlier C.F. was refusing to bear weight on her right leg and was more irritable, that three days earlier Mother had noticed a scratch on C.F.’s left chin, and that on the day of admission to the hospital C.F. cried a lot and her right leg was swollen.
At the hospital, Dr. Dabiri informed Mother he was going to notify the police and social services about possible child abuse. Mother was afraid that Father, who was in the United Stated unlawfully, would be deported and told him to leave the hospital. Father left, but Mother later called him and asked him to return after a police officer assured her he would not be arrested. Mother told hospital staff that Father was her brother.
Mother testified she believed C.F.’s broken leg was caused by a medical assistant placing too much pressure on it when giving C.F. her immunizations and was made worse when C.F.’s right leg was twisted between the slats of the crib.
On June 19, 2009, when Dr. Aminian removed the cast from C.F.’s right leg, Mother asked him whether it appeared that C.F.’s injuries were caused by child abuse. Dr. Aminian replied, “no, not at all” and told Mother “this looks like this could have happened in the crib or it could be possible that it could be the medical assistant.”
At the time of C.F.’s injury, Mother was in counseling for general anxiety. She never told anyone her anxiety was severe or caused by a work-related disciplinary action.
Mother spoke with Dr. Wong on May 6. Mother told Dr. Wong that while at the beach on Saturday, May 2, C.F. was fussy, would not lean on her right leg, and was not crawling or pulling herself up to stand.
Mother did not know of any time when Father was alone with C.F. after she received her immunizations. Mother provides most of the caretaking for C.F.
C. Dr. Wong’s Testimony
Dr. Wong testified she is a pediatrician and the director of the CHOC Suspected Child Abuse and Neglect Team. She examined C.F. on May 6, 2009; read her medical records; examined her X-rays, ophthalmology exam, and C.T. scan; reviewed the X-ray reports with the radiologist; and spoke with her attending physician. Dr. Wong also spoke with Mother and Father separately. C.F. had been born healthy and not prematurely, her bone density and mineralization were normal.
Dr. Wong testified C.F. had a linear (also called a transverse) fracture of the distal femur and concluded C.F.’s injury was not accidental. To Dr. Wong, a nonaccidental injury equated with child abuse.
Dr. Wong testified both Mother and Father told her C.F. had crawled on the beach the previous Saturday. That fact was significant because C.F. would not have been able to crawl on Saturday if she had been injured while being immunized on Friday. Dr. Wong’s opinion the fracture was nonaccidental would be the same, however, if C.F. had not crawled at the beach. If C.F. were injured on Friday, Mother and Father would have noticed a dramatic change in her behavior by Saturday and there would have been noticeable swelling of her leg.
Over the course of four years, Dr. Wong had examined 15 to 20 children per day for well-child visits or immunizations but had never seen a bone fracture by an improperly given immunization. She explained: “The amount of force that it would take to cause a femur fracture of that nature I think would be excessive, and that a nurse or a[] N[urse’s] A[ssistant] or a P[hysician’s] A[ssistant] would not be using that type of force, wouldn’t be using that type of force to give a vaccine.... You wouldn’t need that much force to hold the leg.” If C.F.’s leg had been broken when the vaccine was given, C.F. would have screamed and cried immediately and would not have been able to crawl. C.F.’s crying and screaming in the pediatrician’s office would have alerted someone that C.F. had been injured.
Dr. Wong had never had a case in which a child broke a leg by getting it stuck between the slats of a crib. She testified it was possible for a child to break a leg in that manner, but “at six months old, the amount of force you would need to have a femur fracture would be very unlikely.” If C.F.’s leg had broken while trapped between slats in the crib, pain would have prevented C.F. from removing her leg, and Mother and Father would have found her with her leg still between the slats. A preexisting fracture of C.F.’s right leg could have been aggravated by getting trapped between the crib slats, but in that case it would have been less likely C.F. would have been able to free her leg.
Dr. Wong believed the scratches on C.F.’s face were too large to have been self-inflicted. After examining a photograph of C.F. strapped in her car seat, Dr. Wong concluded the straps or harness could not have caused the abrasions on C.F.’s face.
D. Wilson’s Testimony
Wilson testified he is an officer in the La Habra Police Department. On May 5, 2009, he interviewed Mother following a report of suspected child abuse. He testified Mother was nervous and provided information that was inconsistent with what he had been told by doctors and nurses. He came to believe Mother “was withholding information and was just being untruthful with me during my interview with her.”
Mother told Wilson that Father was her brother. Wilson confronted Mother, and, after several minutes, she revealed Father’s true relationship. When Mother expressed concern that Father would be deported, Wilson told her he was not there to deport anyone and to call Father and have him return to the hospital. Mother told Wilson she was suffering from severe anxiety due to work-related disciplinary issues and had anxiety attacks. Wilson asked Mother if it were possible she injured C.F. during an anxiety attack.
Wilson also interviewed Father, whom he found “very forthcoming with information.” Father told Wilson that C.F. had started showing signs of pain in her right leg within the previous two days and that she did not show signs of immediate discomfort when she received her immunizations.
E. Michelle G.’s Testimony
Michelle G. testified she was at the beach with Mother, Father, and C.F. According to Michelle G., C.F. cried and stuck her right leg out “like a flamingo” when held in Mother’s lap. C.F. had learned to crawl earlier that week but would not crawl that day.
F. Murphy’s Testimony
Murphy, the social worker handling C.F.’s case, testified Mother did not tell her C.F. had been crawling at the beach. Mother told Murphy C.F. had been sitting in a covered playpen area.
Murphy confirmed there had been no criminal filings against Mother and Father based on C.F.’s injuries. Murphy acknowledged allegation a-4 therefore was not true.
Murphy testified she believed the allegation that Mother and Father failed to seek medical attention for C.F. was substantiated by the fact C.F. started showing symptoms of injury on the day of or the day after her immunizations but did not call the doctors for four days, then waited several hours after talking to the doctor’s office before taking C.F. to the emergency room. Murphy was aware that Mother had called the pediatrician’s office at about 4:30 p.m. on May 5 and waited until 7:00 p.m. for a call back. Although Murphy did not know whether it was unreasonable to wait from 4:30 p.m. to 7:00 p.m., she thought “that is a pretty lengthy period of time.” Murphy believed it was reasonable for Mother to be concerned about swine flu at a hospital but did not believe it was reasonable to wait from 7:00 p.m. to 10:00 p.m. before calling hospitals.
Allegation b-6 stated “Mother continues to not be forthcoming with accurate information about the cause of [C.F.]’s injuries.” Murphy believed that allegation was true because Mother maintained C.F.’s leg was broken when C.F. was given her immunizations or because her leg became stuck in the slats of the crib. As Mother and Father were the sole caretakers of C.F., Murphy believed Mother and Father must have known of the cause of C.F.’s injuries.
Allegation b-7 alleged Mother suffers severe anxiety. Based on a letter from Mother’s doctor stating Mother did not suffer severe anxiety or panic attacks, Murphy acknowledged Mother’s anxiety was not severe. Murphy believed the word “severe” could be changed to “general.” She believed anxiety could impair Mother’s ability to care for C.F. if Mother had a panic attack but did not know whether “that anxiety would interfere with her supervising the child.” Murphy’s report included a letter from Mother’s doctor stating “this diagnosis is not provided for severe anxiety or panic attacks.”
Mother had given Murphy five letters from different doctors expressing opinions regarding the case. Murphy did not include all five in her report, could not identify which ones were excluded, and had no explanation why some were excluded.
Dr. Wong had told Murphy it was possible for a child to break a leg by getting it stuck between the slats of a crib, but the child would not be able to pull the broken leg back out of the slats.
G. Dr. Aminian’s Testimony
Dr. Aminian testified he is the medical director of pediatric orthopedics at CHOC. He examined C.F., saw her X-rays, and spoke with Mother and Father. Dr. Aminian concluded C.F. had a compression fracture of the right distal femur that was caused accidentally.
Dr. Aminian explained that C.F.’s fussiness after receiving an immunization to the right leg “could be within the acceptable history of this type of a fracture.” C.F. might have sustained a compression fracture by getting her leg caught in the crib if the bone already had been weakened or had a small crack.
Dr. Aminian testified it was possible but unlikely a femur would be broken while giving a child an immunization. “[A] big person leaning on a 6[]month[]old trying to hold the leg, and the area that you’re trying to hold the legs completely matches where the fracture is, that I would say yes, it is possible.” It would be possible, he explained, for a child to get a toddler’s fracture, a small nondisplaced fracture that would not appear in X rays, that would cause the child to be fussy and to avoid bearing weight on the leg. Mother and Father’s description of C.F.’s behavior at the beach was consistent with such a fracture. Once the bone was weakened or partially fractured, it could become completely fractured if the leg became caught between the crib slats. At that point, the child would become fussier and swelling would appear near the fracture.
Dr. Aminian had never seen a child who received a fractured leg while being immunized, but he had seen one or two cases in which a child had a broken bone caused by falling in a crib. Without a preexisting fracture or injury, a leg caught in a crib would produce a spiral fracture, not a compression fracture as C.F. suffered. Dr. Aminian posited this scenario as the cause of C.F.’s leg fracture: “[I]f the child has sustained a little nondisplaced fracture or a crack in the bone, from compression, by holding the leg, and the location of the fracture completely matches where you would apply that compression to hold the leg for an immunization, and then subsequently either maybe not even got the leg caught in the crib, she started crawling, put pressure on that knee and twisted and then completed that fracture, that would make sense to me.”
H. Dr. Flores’s Testimony
Dr. Flores testified he is a pediatrician and has treated C.F. since birth. He was aware Mother had called his office on May 5, 2009 and understood Mother had called because C.F. was irritable, was not moving her right leg as much as normal, and was experiencing pain from the immunizations. Mother wanted to know what, if anything, should be done. Dr. Flores told his medical assistant to “let Mom know if the child continued to have increased pain, if we couldn’t see her in the office, to go ahead and take her to the emergency room.” When C.F. was given her immunizations, Dr. Flores examined her hips, legs, and feet and found nothing wrong.
When Dr. Flores was told C.F. had a broken leg, he was surprised because “most children at that age usually don’t sustain fractures like the one they were telling me that she had sustained.” He never had a child sustain a leg fracture due to excessive force in giving an immunization.
IV.
The Juvenile Court’s Ruling
The juvenile court found it had not been shown by a preponderance of the evidence the allegations of count 1 for infliction of serious physical harm (allegations a-1 through a-4) were true. The court found the allegations of count 2 for failure to protect were true by a preponderance of the evidence. The court sustained without change allegations b-1, b-4, and b-5, and sustained as amended allegations b-2, b-3, b-6, and b-7. The court declined to declare C.F. a dependent child and ordered her released to Mother and Father with services provided pursuant to section 360, subdivision (b).
The juvenile court noted the divergent opinions of Dr. Wong and Dr. Aminian on the cause of the fracture. The court found Dr. Aminian’s interpretation of events “logical, well[-]founded, and therefore compelling.” Although the court found Dr. Wong to be credible, she was not asked to offer an opinion on whether C.F. might have aggravated an existing fracture by crawling or turning, as Dr. Aminian did.
The juvenile court also noted the conflict in testimony on whether C.F. was able to crawl at the beach on May 2. The conflict was important, the court explained, because Dr. Wong’s testimony was based on the assumption C.F. could and did crawl, while Dr. Aminian’s testimony was based on the assumption C.F. did not crawl. The court found Mother’s and Father’s trial testimony to be of “dubious credibility” but considered Michelle G.’s testimony, Mother’s statements to Wilson, and Father’s statements to Dr. Aminian as significant support for a finding C.F. did not crawl at a beach. “That being the case, the court must find that it has not been shown by a preponderance of the evidence that the child’s femur fracture was inflicted nonaccidentally.”
The juvenile court similarly found it had not been shown by a preponderance of the evidence the scratches and bruises on C.F.’s face were inflicted nonaccidentally.
The juvenile court concluded, however, that Mother and Father delayed in seeking medical care for C.F. constituting a failure to protect under section 300(b). The court explained its reasoning: “Taking the parents’ evidence at face value the child had been non-weight bearing, irritable and out of sorts since her immunization on May 1. Between May 1 and May 5 her symptoms did not improve as might reasonably be expected if her symptoms were due to the immunization. Instead of improving on May 5 there was an out of the ordinary cry by the child and marked symptoms including swelling, tenderness and a clicking. Reasonable prudence and caution suggests that this marked increase in the intensity of her symptoms required immediate medical attention by her physician. It was after normal business hours, and therefore the only alternative was the emergency room, which should have occurred earlier.”
The juvenile court declined to declare C.F. a dependent child for several reasons. The court found there was no prior abuse or neglect, Mother and Father did take some action on May 5 by calling the pediatrician, the delay in taking C.F. to the emergency room on May 5 was a matter of hours rather than days, there was some justification for the delay in taking C.F. to the emergency room, and Mother and Father likely would be cooperative with services.
Discussion
I.
Section 300(b)A juvenile court may exercise jurisdiction over a child if it finds by a preponderance of the evidence “[t]he 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... by the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment....” (§ 300(b); see § 355 [preponderance of evidence standard].)
Section 300(b) has three requirements: (1) a specified form of parental neglect; (2) causation; and (3) the child suffers serious physical harm or illness or is at substantial risk of physical harm or illness. (In re David M. (2005) 134 Cal.App.4th 822, 829.) “The third element ‘effectively requires a showing that at the time of the jurisdiction hearing the child is at substantial risk of serious physical harm in the future (e.g., evidence showing a substantial risk that past physical harm will reoccur). [Citations.]’” (Ibid.)
“‘While evidence of past conduct may be probative of current conditions, the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm.’ [Citations.] Thus, previous acts of neglect, standing alone, do not establish a substantial risk of harm; there must be some reason beyond speculation to believe they will reoccur. [Citations.]” (In re Ricardo L. (2003) 109 Cal.App.4th 552, 565.)
II.
Review of the Jurisdictional/Dispositional Order
We will review the jurisdictional/dispositional order in two steps. First, we will determine whether substantial evidence supported the allegations found true by the juvenile court. Second, we will determine whether the allegations supported by substantial evidence are legally sufficient to support the jurisdictional finding under section 300(b).
A. Sufficiency of the Evidence to Support Allegations of Failure to Protect
“In reviewing the jurisdictional findings and the disposition, we look to see if substantial evidence, contradicted or uncontradicted, supports them. [Citation.] In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the trial court’s determinations; and we note that issues of fact and credibility are the province of the trial court. [Citation.]” (In re Heather A. (1996) 52 Cal.App.4th 183, 193.)
The court sustained without change allegations b-1, b-4, and b-5, and sustained, as amended, allegations b-2, b-3, b-6, and b-7. We review these allegations in order.
Allegation b-1 stated: “On or about May 5, 2009, the child, [C.F.] age six months old, was taken to the Emergency Room of [CHOC] for discomfort and swelling to her right leg. On May 6, 2009, CHOC forensic child abuse specialist, Dr. Wong, reviewed the x-rays of the child’s injury and diagnosed the child with a fractured right femur and an abrasion to the left side of facial cheek.” This allegation is supported by substantial evidence and was not factually disputed.
Allegation b-2, as amended, stated: “On or about May 6, 2009, Dr Wong reported that the injuries sustained by the child are of a non-accidental origin and was not likely the result of the child having gotten her leg stuck in a crib or as a result of being held down for her immunizations five days prior.” The allegation is an accurate description of Dr. Wong’s opinion. Though Mother disputes the legal significance of allegation b-2, it is supported by substantial evidence.
Allegation b-3, as amended, stated: “On May 5, 2009, the child [C.F.], was in the sole and primary custody of the Mother... and the presumed Father.... On May 5, 2009, the child’s injuries included a fractured right femur, a two inch linear abrasion on her left ear and facial cheek, a greenish-yellow dime sized bruise on the left side of her chin and a dime sized greenish-yellow bruise on the right side of her chin.” This allegation is supported by substantial evidence.
Allegation b-4 stated: “On or about May 5, 2009, the La Habra Police Department responded to [CHOC] and took a police report in regards to the investigation of abuse. The mother... and alleged father... are the subjects of a pending criminal investigation and may be facing charges of child abuse and/or neglect.” The second sentence of this allegation is not supported by substantial evidence. Murphy confirmed there had been no criminal filings against Mother and Father based on C.F.’s injuries and testified allegation a-4, which is the same as b-4, was not true.
Allegation b-5 stated: “On or about May 5, 2009, the child’s mother... and the alleged father... failed to seek immediate medical attention for the child, [C.F.], after observing swelling to the child’s right leg and signs of pain and discomfort in the child, as made evident by the child’s crying, her agitation, a clicking sound produced when the parents moved her leg and the child’s refusal to stand on her injured leg. The parents’ failure to seek immediate medical treatment caused the child to needlessly suffer severe emotional distress and undue physical pain.”
The evidence, viewed in the light most favorable to the juvenile court’s determinations, supports the true finding on allegation b-5. The evidence established that Mother called the pediatrician’s office about 4:30 p.m. on May 5, immediately upon C.F. waking up from her nap crying in pain. Mother waited for a return call from the pediatrician’s office until 7:00 p.m., then delayed taking C.F. to the emergency room until 10:30 p.m. It can be inferred that C.F. suffered physical pain and emotional distress from the delay. In declining to declare C.F. a dependent child, the juvenile court found the delay was a matter of hours rather than days, and Mother had some justification for waiting. These findings relate to the legal significance of allegation b-5 rather than its truth.
Allegation b-6, as amended, stated: “The child’s mother... lied to law enforcement about the father’s true identity.” Substantial evidence supported that finding. Mother told Wilson that Father was her brother.
Allegation b-7, as amended, stated: “The child’s mother... is suffering from anxiety as the result of a work[-]related issue. The mother is involved in counseling and continues to experience symptoms of anxiety....” Substantial evidence supported this allegation. Mother acknowledged she suffered anxiety. Originally, allegation b-7 alleged Mother suffered “severe” anxiety “impairing her ability to supervise, parent and protect the child.” At the conclusion of trial, the allegation was amended to delete the quoted language.
Thus, allegations b-1, b-2, b-3, b-5, b-6, and b-7 and the first sentence of allegation b-4 were supported by substantial evidence.
B. Suffiency of the Sustained Allegations to Supporting Finding of Failure to Protect
Mother argues the substantiated allegations do not meet the statutory requirement of showing that C.F. was at substantial risk of serious physical harm at the time of the jurisdictional/dispositional hearing. We agree.
The substantiated allegations established the first element under section 300(b)-a specified form of parental neglect. On May 5, 2009, while C.F. was in Mother and Father’s care, Mother delayed seeking medical attention for C.F. after noticing her right leg was swollen and she appeared to be in pain and discomfort. The evidence showed, and the juvenile court found, the delay was a matter of hours, and there was some justification for it. Mother called the pediatrician’s office at 4:30 p.m., waited until about 7:00 p.m. for a call back, and took C.F. to the emergency room at about 10:30 p.m. Telephone records corroborated Mother’s testimony she contacted several hospitals about concern over swine flu. Although the delay in contacting the hospitals and taking C.F. to the emergency room was too long and was harmful to C.F., there is no evidence this past act of parental neglect would recur and no reason to believe such delay in seeking medical care would continue in the future. (In re Rocco M. (1991)1 Cal.App.4th 814, 824.)
Mother did suffer from general anxiety, but many parents do, and there was no causal connection between Mother’s anxiety and her ability to care for C.F. In In re David M., supra, 134 Cal.App.4th at page 830, we stated: “The record on appeal lacks any evidence of a specific, defined risk of harm to either [the child] or A. resulting from mother’s or father’s mental illness, or mother’s substance abuse. Certainly, it is possible to identify many possible harms that could come to pass. But without more evidence than was presented in this case, such harms are merely speculative.” Here, there was no evidence of a specific, defined risk of harm to C.F. resulting from Mother’s general anxiety. The allegation that Mother’s severe anxiety impaired her ability to care for C.F. was deleted.
Mother did lie to Wilson about her relationship with Father out of fear he would be deported. There was no evidence of a causal connection between this single act of dishonesty and harm to C.F.
County counsel asserts the juvenile court sustained allegation b-2, regarding Dr. Wong’s opinion, to acknowledge there was evidence of Mother’s and Father’s culpability and “to make it unmistakably clear that the court was not entirely confident about what happened.” The court did not give that reason for sustaining allegation b-2. The court found Dr. Wong generally to be credible, but found Dr. Aminian’s explanation of the cause of C.F.’s injuries “well[-]founded, and therefore compelling.”
County counsel’s assertion is unpersuasive too because the juvenile court did not have the option of being ambivalent: It either had to find true or find not true by a preponderance of the evidence the allegation C.F.’s injuries were nonaccidental. The court chose the latter and expressly found it was not proven by a preponderance of the evidence that C.F.’s injuries were nonaccidental. Thus, Mother is not being held culpable for causing C.F.’s injuries. Having made that finding, the court could not base its jurisdictional order on an inconsistent finding that Mother might be culpable for C.F.’s injuries. Thus, while allegation b-2 accurately reflected Dr. Wong’s opinion, it cannot support the conclusion that C.F. was at substantial risk of serious physical harm at the time of the jurisdictional/dispositional hearing.
Mother exercised poor judgment by her delay of three to four hours in taking C.F. to the emergency room on May 5. But a single act of questionable parenting, without evidence it could recur and place the child at substantial risk of serious harm or illness, does not under the evidence in this case justify the exercise of jurisdiction under section 300(b). (In re David M., supra, 134 Cal.App.4th at pp. 829 830; In re Ricardo L., supra, 109 Cal.App.4th at p. 565; In re Rocco M., supra, 1 Cal.App.4th at p. 824.)
Disposition
The jurisdictional/dispositional order is reversed.
WE CONCUR: O’LEARY, ACTING P.J., IKOLA, J.