Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from orders of the Superior Court of Los Angeles County. Marilyn Kading Martinez, Commissioner. Los Angeles County Super. Ct. No. CK70216
Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Byron G. Shibata, Deputy County Counsel, for Plaintiff and Respondent.
CHAVEZ, J.
Appellant O.L. (father) appeals from the juvenile court’s jurisdictional and dispositional orders establishing dependency jurisdiction over his daughters, D.L. and G.L., pursuant to Welfare and Institutions Code section 300, subdivision (e), and denying him family reunification services pursuant to section 361.5, subdivisions (b)(5) and (b)(6). Father contends the evidence was insufficient to support a finding that either child suffered “severe physical abuse,” within the meaning of section 300, subdivision (e). Father further contends that section 300, subdivision (e) requires that a perpetrator deliberately and intentionally inflict abuse on a child, and there was insufficient evidence that he acted with such intent.
Although the Department of Children and Family Services (DCFS) contends G.L. is not a subject of this appeal, there is nothing in the record to indicate that father’s appeal is limited to D.L.
All further statutory references are to the Welfare and Institutions Code.
Intent is not a requisite element of a finding of physical abuse under section 300, subdivision (e), and substantial evidence supports the juvenile court’s jurisdictional and dispositional findings. We therefore affirm the juvenile court’s orders.
BACKGROUND
Minors G.L. and D.L., were born in January 2007. G.L. weighed only one pound at birth. Father was incarcerated at the time the children were born, and the children lived with their mother, M.T. (mother), in the home of their maternal grandmother. Mother’s brother, his wife, and their child also resided in the home. After father was released from jail, he frequently visited the home and often stayed there overnight.
The children’s maternal aunt cared for them on weekday mornings from 7:00 a.m. until noon while mother went to school. On September 5, 2007, the maternal aunt noticed that G.L.’s left leg was swollen and that she was crying more than usual. She advised mother, who took G.L. to Gardena Memorial Hospital to be examined. Doctors diagnosed G.L. with a broken left femur and fitted her with a brace for the fracture. Neither mother nor father could explain the injury. The matter was referred to DCFS, and it opened a voluntary case to monitor both children. Mother and father agreed to attend parenting classes and to have D.L. examined.
On September 28, 2007, mother took D.L. to the hospital to be examined. X-rays revealed that the child had a fractured bone in her left leg. DCFS received a referral regarding physical abuse of both children, and placed both children in protective custody.
Los Angeles police officers conducting a suspected child abuse investigation interviewed D.L.’s attending physician, Dr. Perez, on October 1, 2007. Dr. Perez said D.L. had sustained a left tibia spiral fracture, and that a child of D.L.’s age does not normally experience this type of injury. Dr. Perez opined that the injury was nonaccidental and would have required a significant amount of force to the affected area.
That same day, police officers interviewed mother, who said that she did not know the cause of D.L.’s injury, and that she had never hurt the children. Mother further stated that she had a good relationship with father, and that she had never seen father strike or abuse the children.
The maternal grandmother told the officers that father plays “rough” with the children. She once saw father throw D.L. towards the ceiling while playing with her and admonished father that he might hurt the child by doing that. The maternal grandmother said she observed father slap the children’s hands and feet. When she advised father that he could hurt the children, he replied that he was simply being playful. The maternal grandmother also told the DCFS social worker that she saw father being rough with G.L. and D.L. and told him that the children were too fragile for rough play. She said that father did not know how to care for children, that he spent too much time on the streets, and that he was affiliated with a gang.
Police officers also interviewed the children’s maternal aunt, who said that she had observed father playing “rough” with children, pulling the children’s legs, twisting their arms and legs, and slapping them in their faces. She also witnessed father pick the children up and shake them. On one occasion, the maternal aunt saw father hold D.L. by the waist and throw her toward the ceiling, although she did not believe father had acted with any negative intentions at the time. On another occasion when father was being rough with the children, the maternal aunt brought it to his attention and father responded, “They are my girls. They’re going to be just like me, rough. They’re going to be gangsters.”
The children’s maternal uncle told police officers that he never saw the children being physically abused. In a separate interview with a DCFS social worker, the maternal uncle said that he had seen father playing roughly with the children, grabbing them by their arms and legs continually since birth. When other family members informed father that his actions were inappropriate, father would respond by saying, “Stay out of my business. They are my babies. Take care of your own. I am roughing them up a little bit.”
On October 3, 2007, DCFS filed a petition pursuant to section 300, alleging serious physical harm to both children under section 300, subdivision (a); failure to protect the children under subdivision (b); severe physical abuse of a child under five years old pursuant to subdivision (e); cruelty under subdivision (i); and abuse of a sibling under subdivision (j). The allegations under section 300, subdivisions (a), (b), (i), and (j) stated that the parents’ deliberate, unreasonable, and neglectful acts endangered the children’s physical and emotional health and safety and placed them at risk of physical harm. Based on the injuries the children sustained, DCFS recommended continued detention of both children.
In an addendum report dated October 3, 2007, DCFS recommended that neither parent be granted reunification services, and that neither child be released to other family members without DCFS’s approval. Included as an attachment to the addendum report was a statement by a DCFS social worker who had interviewed father on October 2, 2007. The social worker noted that father appeared hostile and defensive during the interview and cursed at the social worker. Father admitted being rough and playing rough with the children but denied pulling or twisting their arms or legs or tossing them into the air.
At the October 3, 2007 detention hearing, the juvenile court found that a prima facie case existed for detaining both D.L. and G.L. The court ordered both children detained in shelter care and ordered family reunification services for both parents.
At a pretrial resolution conference hearing held on October 29, 2007, the juvenile court appointed Dr. Lynne Ticson under Evidence Code section 730 to evaluate the children’s medical records and to address the effect of the children’s injuries if left untreated. Father’s attorney asked for a continuance because father was recently incarcerated on a robbery charge, and the matter was continued until November 28, 2007. On November 26, 2007, father pleaded guilty to robbery and was sentenced to two years in state prison.
A supplemental report filed by DCFS on November 28, 2007, summarized an interview with Dr. Valerie Grant, the emergency room physician who had initially examined G.L. Dr. Grant stated that G.L.’s injury was not a common fracture for a baby who does not walk, and because the bone fractured was a large one, the caretakers should have heard the baby scream at the time of injury. Dr. Grant further stated: “This injury could not have been healed without orthopedic intervention. The bone that was injured was too big to have healed on its own.”
DCFS’s supplemental report included as an addendum a November 15, 2007 letter from Dr. Ticson, the court-appointed medical evaluator. Dr. Ticson reported that x-rays on G.L. taken on September 6, 2007, revealed “new, proximal to mid-femur spiral fracture on the left, which is displaced laterally.” The x-rays also raised “a question of a right corner fracture of the right distal radius, but repeat studies could not confirm this.” D.L.’s x-rays “showed a periostitis of the left tibia and a fracture line, with an oblique, rather than a spiral fracture. The fracture was six weeks old or less and was not new.” Dr. Ticson also found periostitis on D.L.’s right lower leg, although no fracture line was visible. Dr. Ticson explained that “[p]eriostitis can be seen as a physiologic finding on x-ray in young babies up to six months old and does not have to be associated with a fracture, and is due to growing bone.” Dr. Ticson opined, however, that the periostitis found on D.L.’s right lower leg was “not a physiologic periostitis,” but “appears to be due to either a post-traumatic contusion which is healed, where the periostitis is still resolving, or it may be due to an old fracture (older than the left side) where the fracture line is well healed.” Dr. Ticson concluded: “The children did not cause or facilitate their own fractures. [¶] The mechanism of injury in both cases can be due to a twisting motion to the shaft of the tibia or a direct blow [to] the area, and a twisting motion or a direct blow to the shaft of the femur. G.L.’s fracture is fresh; there is no callous formation seen. D.L.’s fracture of the left tibia is dated at less than six and likely more than two weeks old. The probable right tibial fracture is older than six weeks. [¶] D.L.’s injury seems to be healing without consequence to the left leg. G.L.’s femur fracture may or may not cause a leg length discrepancy. That clinical diagnosis would be made by Orthopedics.”
Periostitis is inflammation of the periosteum, a dense membrane of fibrous connective tissue surrounding all bone except the bone of articulating surfaces in joints. (See MedicineNet.com, MedTerm Dictionary, Definition of Periostitis (Dec. 1998) (as of Dec. 17, 1998).)
For the jurisdiction/disposition hearing, mother filed certain documents, including a medical records review by Dr. Thomas Grogan, an orthopedic surgeon mother retained as an expert witness. In a letter dated January 16, 2008, Dr. Grogan stated that he had reviewed G.L.’s and D.L.’s medical records, as well as Dr. Ticson’s medical review. Dr. Grogan opined that G.L.’s injury was “a single isolated injury” that left untreated, “would spontaneously go on to heal and would not cause any permanent physical disfigurement, permanent physical disability, or death.” According to Dr. Grogan, “[t]he amount of energy to cause the fracture in G.L.’s case would have been slightly more than breaking a pencil. This fracture tends to happen when the knee and left leg are grasped by a right-handed individual who lifts the child abruptly into the air. The child’s body weight acts as a counterweight across the fulcrum of the parent’s fingers, causing the transverse type facture in the position that G.L. evidenced on the September 6, 2007 x-ray.”
With regard to D.L., Dr. Grogan noted that there was evidence of a tibial facture in D.L.’s left leg, with “periosteal new bone formation present on the left surrounding the facture site” suggesting that “the fracture [was] at least one week old and most probably two weeks old.” Dr. Grogan stated that this type of fracture “would occur from a twisting force applied to the patient’s foot and specifically an outward twisting force. This twisting force would cause the tibia to fail, but because the fibula is more plastic [at] this age, the fibula typically does not fail.” In D.L.’s case, the fibula was intact, without injury, which resulted in minimal swelling. The only evidence of injury would therefore have been an inability to bear weight on the left leg. Because D.L. was not yet able to walk, the injury would have gone unnoticed without an x-ray. Dr. Grogan opined that D.L. had sustained “a minor injury that did not require any intervention even when diagnosed on September 28, 2007, and certainly if left untreated would cause no permanent physical disfigurement, permanent physical disability or death.” Dr. Grogan also found evidence of periostitis around the tibia in D.L.’s right leg. Because no fracture line was visible in the right tibia, however, Dr. Grogan opined that the periostitis in D.L.’s right leg was “not in any way related to trauma.”
At the January 28, 2008 adjudication hearing, the juvenile court admitted into evidence mother’s submitted documents, including Dr. Grogan’s letter, and DCFS’s documents, including Dr. Ticson’s medical review letter. After hearing argument from the parties, the juvenile court found both children to be persons described under section 300, subdivisions (b) and (e) and D.L. to be a person described under section 300, subdivision (j). The court dismissed the allegations under section 300, subdivisions (a) and (i), struck the word “deliberate” from the remaining allegations, and sustained, as amended, the allegations in counts b-1, b-2, e-1, e-2, j-1, and j-2 of the petition. The juvenile court found father to be the perpetrator of the children’s nonaccidental injuries, and that his handling of the children constituted abuse of G.L. and D.L. Based on its jurisdictional findings, the juvenile court declared both children dependents of the court and ordered them removed from their parents’ custody. The court ordered reunification services for mother, but denied reunification services to father pursuant to section 361.5, subdivisions (b)(5), (b)(6), and (b)(12).
Father filed the instant appeal.
DISCUSSION
I. Applicable Law and Standard of Review
Section 300, subdivision (e) accords the juvenile court jurisdiction over a child if “[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. 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; any single act of sexual abuse which causes significant bleeding, deep bruising, significant external or internal swelling; or more than one act of physical abuse, each of which causes bleeding, deep bruising, significant external or internal swelling, bone fracture, or unconsciousness; or the willful, prolonged failure to provide adequate food.” (§ 300, subd. (e).)
We review the juvenile court’s jurisdictional findings under section 300, subdivision (e) under the substantial evidence standard of review. (In re E.H. (2003) 108 Cal.App.4th 659, 669.) Under this standard, we review the record to determine whether there is reasonable, credible, and solid evidence to support the juvenile court’s conclusions, resolve all conflicts in the evidence, and draw all reasonable inferences from the evidence in support of the juvenile court’s orders. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393.) We review an order denying reunification services pursuant to section 361.5 for substantial evidence. (Amber K. v. Superior Court (2006) 146 Cal.App.4th 553, 560; In re Harmony B. (2005) 125 Cal.App.4th 831, 839.)
II. Father’s Failure to Challenge the Other Jurisdictional Findings
Father challenges the juvenile court’s jurisdictional findings under section 300, subdivision (e) only. He does not dispute the juvenile court’s other jurisdictional findings -- that the children were persons described by section 300 subdivisions (b) and (j). Father acknowledges and concedes that an appellate court can affirm a juvenile court’s jurisdictional finding if the evidence supports any one of the statutory bases for jurisdiction. (In re Jonathan B. (1992) 5 Cal.App.4th 873, 875.) He nevertheless urges us to address the merits of his arguments because he claims to have been prejudiced by the findings under section 300, subdivision (e). Father maintains that those findings were the basis for the juvenile court’s denying him visits with the children during his incarceration and for denying him family reunification services. We exercise our discretion to consider the merits of father’s claims in order to address issues of statutory interpretation raised by his appeal.
III. Substantial Evidence Supports the Findings Under Section 300, Subdivision (e)
Substantial evidence supports the juvenile court’s findings that G.L. and D.L. suffered severe physical abuse within the meaning of section 300, subdivision (e). The emergency room physician who examined G.L. stated that the child’s fractured femur was not a common injury in a baby that could not yet walk, that the child’s caretakers should have heard the baby scream at the time of injury, and that the injury could not have healed without orthopedic intervention. The doctor consequently fitted G.L. with a brace to enable the fracture to heal. After reviewing G.L.’s medical records, Dr. Ticson could not rule out a possible leg length discrepancy as a result of the child’s fractured femur, despite the medical intervention taken.
D.L.’s attending physician, Dr. Perez, opined that the fracture in D.L.’s left tibia was nonaccidental and would have required a significant amount of force to the affected area. Dr. Ticson agreed that D.L. could not have caused or facilitated the injury. In addition to the fracture in D.L.’s left leg, Dr. Ticson found evidence of an older injury in D.L.’s right leg, where periostitis was also present as the result of a contusion or fracture that had already healed. Dr. Ticson opined that the fracture in D.L.’s left leg was between two to six weeks old and that the “probable” fracture in her right leg was older than six weeks.
Father contends the juvenile court ignored the assessment of mother’s orthopedic expert, Dr. Grogan, who opined that G.L.’s injury was caused by a force “slightly more than breaking a pencil” and if left untreated, would heal spontaneously without any permanent disfigurement, permanent physical disability, or death. Dr. Grogan also concluded that the fracture in D.L.’s left leg was a “minor injury” that did not require any intervention and disagreed with Dr. Ticson’s opinion that the periostitis found in D.L.’s right leg was caused by an earlier “probable” fracture or post-traumatic contusion. The test, however, is not whether there is substantial conflicting evidence, “‘but rather whether there is substantial evidence in favor of the respondent. If this “substantial” evidence is present, no matter how slight it may appear in comparison with the contradictory evidence, the judgment will be affirmed.’ [Citation.]” (In re Stephen W. (1990) 221 Cal.App.3d 629, 644, fn. 12.) The statements of Dr. Ticson and the doctors who examined G.L. and D.L. constitute such substantial evidence in support of the juvenile court’s findings.
The juvenile court did not, as father contends, disregard Dr. Grogan’s expert testimony and render its own lay opinion in order to find jurisdiction under section 300, subdivision (e). The ultimate determination is whether a reasonable trier of fact could have found as it did based on the whole record, not just those parts relied upon by the party challenging the court’s action. (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633.) When a juvenile court decision is supported by adequate evidence in the record, an appellate court has no power to reweigh the evidence relevant to the decision in order to change the lower court’s ruling. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) Substantial evidence supports the juvenile court’s jurisdictional findings under section 300, subdivision (e).
IV. A Showing of Intent Is Not Required for a Section 300, Subdivision (e) Finding
Father contends that section 300, subdivision (e) applies only when the perpetrator deliberately and intentionally inflicts severe physical abuse on a child and there was insufficient evidence that he acted with such intent. Section 300, subdivision (e) defines “severe physical abuse” in three ways: (1) an act or acts of physical abuse causing severe physical injury, (2) sexual abuse, and (3) the willful, prolonged failure to provide adequate food. Father argues that because two of the three offending acts enumerated in the statute – sexual abuse and the willful failure to provide adequate food – are intentional acts, the third type of conduct – physical abuse – must, as a matter of statutory interpretation, also require an element of intent. The plain language of section 300, subdivision (e), its legislative history, and the relevant case law provide no support for father’s interpretation.
“The objective of statutory construction is to determine the intent of the enacting body so that the law may receive the interpretation that best effectuates that intent. [Citation.] ‘We first examine the words themselves because the statutory language is generally the most reliable indicator of legislative intent. [Citation.] The words of the statute should be given their ordinary and usual meaning and should be construed in their statutory context.’ [Citation.]” (Fitch v. Select Products Co. (2005) 36 Cal.4th 812, 818.) “In analyzing statutory language, we seek to give meaning to every word and phrase in the statute to accomplish a result consistent with the legislative purpose, i.e., the object to be achieved and the evil to be prevented by the legislation. [Citations.]” (Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1159.)
Of the three forms of severe physical abuse enumerated in section 300, subdivision (e), only the last one, the “willful, prolonged failure to provide adequate food,” expressly contains an element of intent. (§ 300, subd. (e), italics added.) The absence of similar language in the two preceding types of acts enumerated in the statute-- physical abuse and sexual abuse -- indicates that the Legislature did not intend to require intent as an element of those acts. The plain language of the statute requires willful conduct only with regard to the prolonged failure to provide adequate food, and not to other acts of physical abuse. “If a statute’s language is clear, then the Legislature is presumed to have meant what it said, and the plain meaning of the language governs. [Citation.]” (Kizer v. Hanna (1989) 48 Cal.3d 1, 8.)
The statute’s legislative history does not support father’s argument that section 300, subdivision (e) covers only “willful” acts of physical abuse. The term “willful” was added to section 300, subdivision (e) in 1992, when the statutory definition of “severe physical abuse” was amended to include the “willful, prolonged failure to provide adequate food.” (Stats. 1992, ch. 382, § 1.) The term “willful” was included in the statute in order to exclude parents who lacked the financial resources to provide adequate food for their children. (Assem. Com. on Judiciary, Rep. on Sen. Bill No. 1646 (1992 Reg. Sess.) June 17, 1992, p. 7 [use of the term “willful” excludes “a parent who knowingly does not provide adequate food . . . as a result of being homeless or destitute”].) There is no evidence that the Legislature intended the term “willful” to apply to other acts of physical abuse, nor is there any evidence that the Legislature intended only deliberate and intentional acts of physical abuse to be covered under the statute.
Father’s interpretation of section 300, subdivision (e) is unsupported by applicable case authority. As support for his position, father cites cases in which courts sustained jurisdiction under section 300, subdivision (e) because a perpetrator’s intentional acts caused grievous injury to a child. (See, e.g., In re Joshua H. (1993) 13 Cal.App.4th 1718 [mother’s boyfriend head-butted the child, slapped the child nine or ten times, and repeatedly used closed fists to hit the child in the chest and abdomen]; Raymond C. v. Superior Court (1997) 55 Cal.App.4th 159 [father, who had physically abused mother and another daughter in the past, was observed treating minor roughly]; Deborah S. v. Superior Court (1996) 43 Cal.App.4th 741 [mother tied minor’s ankles and wrists and put a sock in his mouth, confined minor to a darkened closet for extended periods of time, and jabbed at child with a screwdriver].) None of the courts in those cases held, however, that intent is a necessary element under section 300, subdivision (e).
Father’s position is also inconsistent with case law which holds that section 300, subdivision (e) does not require that the perpetrator of the abuse be identified. (In re Kenneth M. (2004) 123 Cal.App.4th 16, 21.) If determining the identity of the perpetrator is unnecessary, it would be inconsistent to require a finding as to the perpetrator’s culpable mental state. Except for the willful, prolonged failure to provide adequate food, evidence of the perpetrator’s intent is not required to support a finding under section 300, subdivision (e). The absence of evidence that father deliberately and intentionally inflicted physical abuse on the children did not preclude the juvenile court from sustaining jurisdiction under section 300, subdivision (e).
V. Denial of Reunification Services
Father challenges the dispositional order denying him family reunification services under sections 361.5, subdivisions (b)(5) and (b)(6). He does not dispute the denial of reunification services under section 361.5, subdivision (b)(12), based on his conviction for robbery. We affirm the denial of reunification services on that basis and need not review the juvenile court’s denial of reunification services pursuant to section 361.5, subdivisions (b)(5) and (b)(6).
A court may deny a parent family reunification services under section 361.5, subdivision (b)(5) if the court finds, by clear and convincing evidence, “[t]hat the child was brought within the jurisdiction of the court under subdivision (e) of Section 300 because of the conduct of that parent or guardian.” A court may deny reunification services under subdivision (b)(6) of the statute if it finds “[t]hat the child has been adjudicated a dependent pursuant to any subdivision of Section 300 as a result of severe sexual abuse or the infliction of severe physical harm to the child, a sibling, or a half sibling by a parent or guardian . . . and the court makes a factual finding that it would not benefit the child to pursue reunification services with the offending parent or guardian.”
A court may deny family reunification services under section 361.5, subdivision (b)(12) if the court finds, by clear and convincing evidence, “[t]hat the parent or guardian of the child has been convicted of a violent felony, as defined in subdivision (c) of section 667.5 the Penal Code.”
DISPOSITION
We concur: BOREN, P. J., DOI TODD, J.