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In re F.L.

Court of Appeals of California, Second District, Division Three.
Nov 6, 2003
No. B165721 (Cal. Ct. App. Nov. 6, 2003)

Opinion

B165721.

11-6-2003

In re F.L., A Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. B.L., Defendant and Appellant.

Steven D. Schatz, under appointment by the Court of Appeal, for Defendant and Appellant. Lloyd W. Pellman, County Counsel and William C. Sias for Plaintiff and Respondent.


In this juvenile dependency case (Welf. & Inst. Code, § 300 et seq.), B.L., the mother of the subject minor child ("Mother"), appeals from a disposition order that declared the minor a dependent child of the court, removed him from Mothers custody, and placed him with his father under the supervision of the Department of Children and Family Services ("the Department"). Mother contends the court was presented with insufficient evidence to warrant removing the minor from her custody. Our examination of the record shows otherwise. We will therefore affirm the disposition order.

Except as otherwise indicated, all references herein to statutes are to the Welfare and Institutions Code.

BACKGROUND OF THE CASE

1. The Department Detains the Minor

The minor who is the subject of this appeal is Mothers son F.L. ("the minor"). He and his baby half-sister came to the attention of the Department in January 2003 when Mother took the baby (who is not a subject of this appeal), to the hospital for injuries to the infants head. The examining doctor determined the injuries (fractures in her skull) were not consistent with the explanation for such injuries that was given by Mother and the babys father, T.K, but were consistent with inflicted trauma. The sister was three weeks old at the time, and the subject minor was seven years old. Mothers explanation for how the baby came to sustain the head injury was that on January 5, 2003, Mother was using a public restroom in a storage facility and had the baby in a sling that wraps around Mother, and when Mother bent over, the baby fell out of the sling and hit her head on the concrete floor. Thereafter, when the babys head began to swell, Mother and T.K took her to the emergency room at Drew/King Medical Center.

Prior to the intervention of the Department, the minor and his half-sister lived with Mother and T.K.

The minor was initially placed in a foster home while the baby remained in the hospital. According to the Departments detention report, Mother and T.K. admitted that approximately two months earlier, T.K. had slapped Mother in the face causing her nose to bleed. The minor appeared to the social worker to be in good physical and emotional health himself, and well cared for, and he denied any physical abuse towards him by Mother or T.K. He stated he did not see the incident that was Mothers explanation of how the baby came to have the skull fractures, and that he felt safe with Mother and T.K.

2. The Detention Hearing

The detention hearing was held on January 14 and 15, 2003. By that time, the baby was out of the hospital and living in a foster home to which the minor himself was scheduled to be replaced. Also by that time, one of the hospital doctors (Dr. Sun, a neuroradiologist),was reporting a different analysis of the babys head injury, to wit, that there was actually only one skull fracture, and that the injury was consistent with a fall on a hard surface and with Mothers explanation of how the injury occurred. This information came to the Department via a letter from Dr. Kerry English, associate professor of pediatrics at Drew/King medical center. Based on the new medical analysis, the Department recommended that the minor be released to Mother, and the baby be released to Mother and T.K., and that perhaps the petition be dismissed and a program of supervision be initiated (§ 301).

At the detention hearing, the court found a prima facie case for detaining the minor and the baby. The minor was released to his own father, R.B., ("Father"), and the baby remained detained in foster care. The case was continued for an adjudication hearing. Mother was permitted daily monitored visits with the baby so that she could breast feed the infant.

3. The Adjudication Hearing

a. Reports

An "Information For Court Officer," submitted by the Department, states: "Per L.A.P.D., neither parent rents a storage locker at the location in Venice. Further, the restrooms there are covered with linoleum, not concrete as represented." The reference to the storage and to linoleum pertains to a statement made by Father to a social worker, to wit, that he took Mother to a storage facility in Venice and waited for her in the car, and when she came out she informed Father that she had dropped the baby while she was using the restroom, and the baby fell on a cement floor.

The Departments jurisdiction/disposition report states that when Mother and T.K were interviewed, Mother stated she and T.K. have only had one fight, and T.K. stated that he did hit her and make her nose bleed but it only bled because Mother already had a scab on it. A Department investigator spoke with the abovementioned Dr. Kerry English about the babys skull injury and Dr. English stated that while the abovementioned Dr. Sun had concluded that there was actually only one skull fracture and it was consistent with the childs injury being accidental, Dr. English had spoken with others about the case and "we cant make a decision (about what happened) based on the physical findings. Basically, we dont know one way or the other what happened." The Drew/King final radiology report states that "[g]iven the history and radiographic findings, one must be suspicious of child abuse." Detective Monica Annas, of the Los Angles Police Departments abused child unit indicated to the social worker that she had arranged for a new evaluation of the babys x-rays, to be done by experts at Childrens Hospital.

The Departments visit to the apartment that Mother shares with T.K., the minor and the baby revealed that the apartment has one bedroom, and it was occupied by "Wendy" and "Tommy," whom T.K. described as "temporary visitors." Mother and T.K. had inconsistent explanations for why and how long these two people had lived there. Mother indicated that she and the children and T.K. sleep on the sofa or on a mattress that was standing in the kitchen. The apartment was cluttered with stacks of clothing and other objects, some as high as four feet. Mother stated she does not do much cooking. Rather, the minor eats at school or they go to McDonaldss. The bed in the small bedroom was covered with filthy bed linens. The apartment was "smelly and unventilated," and there was no baby equipment and toys. T.K. reported later that the premises were cleaned up and the visitors were ejected.

The jurisdiction/disposition report states that T.K. "has a lengthy criminal history, including five felony convictions." Those convictions include robbery, assault with a deadly weapon, and grand theft from person, and his last felony conviction was in 1990. Since his release from prison in 1990, he was arrested for being under the influence of a controlled substance and placed in a diversion program, and arrested in 1997 under Penal Code section 273.5, subdivision (a) for domestic violence. He is employed as a security guard for Greystone Security and had been working for them for two years at the time of the Departments report. On January 13, 2003, he went to the hospital looking for the baby, and he attempted to leave with the childs x-rays. When stopped by hospital security, he stated a nurse had told him he could have a copy of the x-rays, but the nurse denied telling him that.

A report from Childrens Hospital states that the babys head CT study shows two skull fractures, and "[t]he presence of two skull fractures is almost invariably indicative of two separate events." However, the doctor who made the report, Philip Stanley, went on to set out scenarios in which the baby could have fallen out of Mothers baby sling and sustained two fractures to her head. The two scenarios are: "If the child struck her head on the toilet seat on the way down rotating and hit the opposite side as she struck the floor, this would account for two fractures. Although very unusual it is possible for the child to hit his [sic] head on the vertex and a fracture to spread to both sides. It should be noted that most children fall onto the parietal bone which is at the side of the head and not on the vertex." The report concluded "[i]t is not possible to rule out inflicted trauma."

Mother never reported that the baby hit her head on both the toilet and the floor, although in a follow-up interview by a police officer, Mother stated that perhaps when the baby fell she also hit hear head on a handrail.

A follow-up investigation report from the police department states that according to Mother and T.K., Mother keeps most of her personal property at the storage facility in Venice, California and goes there weekly to gather her clothes for the week, and on the day of the babys injury, T.K had dropped Mother and the baby off at the storage facility, at approximately 10:30 in the morning, while he took care of the subject minor. Mother stated that when she was done gathering her clothes, she used the restroom at the storage facility, and while she was balancing over the toilet, which she did not want to sit on, the baby slipped out of the right side of the wrap and hit the concrete floor. After the baby was injured, Mother and T.K. could find no bruises, but Mother insisted that the child be taken to the hospital, and T.K insisted that the hospital be Drew/King, which was 22 miles away, because it is close to his employment. A log from the storage facility for the date on which the baby was alleged to have fallen there does not show that Mother entered the facility on that day, but it shows that Father did.

b. The Jurisdiction and Disposition Hearing

The jurisdiction hearing took place over the course of several days, commencing on March 3, 2003. On March 12, the court adjudicated the petition.

The court dismissed several of the allegations in the petition and sustained the section 300, subdivisions (a) and (b) allegations. Two sustained counts allege that in January 2003, Mothers and T.K.s baby was medically examined and diagnosed with two fractures on the right side of the infants head that occurred at a different time than a fracture on the left side of her head, and such injuries are not consistent with Mothers and T.K.s explanation of how the injuries occurred. Further, "such injuries would not ordinarily occur except as the result of deliberate, unreasonable and neglectful acts by the childs parents who have care, custody and control of the child [and] [s]aid conduct of the childs parents endangers the childs physical health, safety and well being and [also] places the [subject minor] at risk of severe physical harm." The two other sustained counts allege that the subject minor was exposed to a violent physical altercation between Mother and T.K., where T.K. punched Mother in the face which resulted in her nose bleeding, and such conduct by T.K. endangers the minors and the babys physical and emotional health, safety and well being, creates a detrimental home environment for them, and places them at risk of physical and emotional harm and damage.

The parties entered into a disposition case plan, and the court declared both children dependents of the court. Custody of the baby was taken from her parents and placed with the Department for suitable placement of the infant. The subject minor was placed in Fathers home under supervision of the Department and the court ordered that Mother was not to reside there. Family maintenance services were ordered for Father. Family reunification services were ordered for Mother and T.K, including parenting class, individual counseling to address case issues, including domestic violence, and separate domestic violence classes if the counselors believe warranted. Thereafter, Mother filed this timely appeal from the disposition order.

CONTENTIONS ON APPEAL

Mother contends there is insufficient evidence to support the trial courts finding of a substantial risk of future harm to the minor, and therefore, she concludes, the minor should not have been taken from her custody.

DISCUSSION

1. The Record Supports the Finding That the Minor Is a Person Within the Jurisdiction of the Dependency Court

Section 300 begins with the statement that "[a]ny child who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court[.]" Subdivisions (a) through (j) of section 300 provide the descriptions of conditions in a childs life which require intervention by the court.

Subdivision (a) of section 300 provides in part: "The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm inflicted, nonaccidentally, upon the child by the childs parent or guardian. For the purposes of this subdivision, a court may find there is a substantial risk of serious future injury based on . . . a history of repeated inflictions of injuries on the child or the childs siblings . . . ."

Subdivision (b) of section 300 states in part: "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 childs parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left . . . ."

Appellant contends that when we apply the substantial evidence test to this case, we will find there was insufficient evidence presented to the trial court to support its finding that there is a substantial risk to the subject minor of future physical harm or illness. Appellant acknowledges that in a sufficiency of the evidence challenge, we are limited to determining whether there is any evidence, contradicted or uncontradicted, to support the trial courts decision. We review the record in the light most favorable to the challenged order, we resolve conflicts in the evidence in favor of the trial courts decision, and we give the evidence reasonable inferences. Weighing evidence, assessing credibility, and resolving conflicts in evidence and in the inferences to be drawn from evidence are the domain of the trial court. When two or more inferences can reasonably be deduced from the facts, this court may not substitute its deductions for those of the trial court. Evidence from a single witness, even a party, can be sufficient to support the trial courts findings. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53; In re Rocco M. (1991) 1 Cal.App.4th 814, 820; In re Cheryl E. (1984) 161 Cal.App.3d 587, 598.)

At the jurisdiction hearing, the court was presented with testimony from several expert witnesses regarding the babys skull fractures. The court noted that while all five of the witnesses qualified as an expert, they were not equally qualified, and the court set out its reasons for rejecting the substance of the testimony of some of them and accepting the testimony of one of them. It found that Dr. Suns work was "sloppy at best," and unreliable, and that Dr. English relied on Dr. Suns impressions. A third expert relied on the expertise of another doctor, and the court was not privy to how such other doctor did his job. The court was not presented with the background of the fourth expert and thus did not rely on his testimony. The one expert whom the court did find useful, Dr. Gaspar, a neuroradiologist, was Dr. Suns immediate supervisor. The court relied on Dr. Gaspars testimony in determining that the baby had three separate fractures, sustained on at least two separate occasions. The doctor indicated that the "best interpretation of the [radiology] film" is that "one must be suspicious of child abuse." The court found Dr. Gaspars qualifications to be "excellent," and his work "thorough."

The court rejected the contention that the babys injuries could have occurred when someone other than the parents was caring for her, saying: "Mothers statements to the police officer was [sic] that nobody had ever cared for this child, and it was on the witness stand that Mom managed to think of seven other people that might have at some point cared for this child, but stories prior to that were consistent that she had taken care of the child or that the parents had." Thus, the court found that Mothers trial testimony was inconsistent with her past representations.

The court also rejected as not credible the testimony of Mother and T.K. that the baby had fallen out of its carrying sling in the restroom. The court observed that when Mother demonstrated to the court how she had wrapped the cloth around the baby and how the baby fell out, "she actually had to use both her hands, and I believe it was around 20 seconds—counsel disagreed—to unwrap the baby." The court stated it "did not see great openings on the side of the sling" and did not see how the baby could fall out.

The court concluded that skull fractures in a three-week-old baby would not ordinarily occur except as a result of deliberate, unreasonable and neglectful acts of the parents, although the court acknowledged that it could not identify which parent caused the fractures. The court made reference to section 355.1. Section 355.1 states in part: "(a) 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) of Section 300. [¶s] (c) The presumption created by subdivision (a) constitutes a presumption affecting the burden of producing evidence." "The effect of a presumption affecting the burden of producing evidence is to require the trier of fact to assume the existence of the presumed fact unless and until evidence is introduced which would support a finding of its nonexistence, in which case the trier of fact shall determine the existence or nonexistence of the presumed fact from the evidence and without regard to the presumption. Nothing in this section shall be construed to prevent the drawing of any inference that may be appropriate." (Evid. Code, § 604.)

Here, the court had expert testimony that the baby sustained skull fractures on at least two separate occasions and that child abuse should be suspected. Moreover, the baby was less than a month old when the injuries occurred, and so the court could reasonably find that nothing the baby itself had done could have caused the fractures. The court found that only the parents had been caring for the baby. Thus, the court could reasonably find that the injuries were of a nature that they would not ordinarily occur but for the unreasonable or neglectful acts or omissions of one or both of the babys parents. The presumption created by subdivision (a) in section 355.1 therefore arose. While the parents provided contrary evidence for the later of the injuries, the court rejected the parents explanation of how the later injury occurred. Thus, the baby was reasonably found to be a child described by section 300.

The trial court stated its belief that Mother knows "what happened to [the baby.]"

Subdivision (a) permits a court to find that there is a substantial risk that a child will suffer serious future injury harm inflicted nonaccidentally by his parent if the childs sibling has been subjected to repeated inflictions of injury by the parent. Given that the baby was so subjected, the court was not unreasonable in its finding that the subject minor faces a substantial risk of serious future injury. While the minor may not have suffered such injury in the past, clearly the repeated injuries to the baby within three weeks of its birth demonstrate that the past cannot necessarily be relied on a predictor of the subject minors future safety. The evidence shows that one or both of the babys parents is willing to abuse children. The minor is a small child, incapable of defending himself against an adult. That the baby was subjected to repeated injury speaks volumes about the dangerous condition the children were in.

While subdivision (a) focuses on the parent who inflicts the harm, subdivision (b)s focus is on the risk of serious physical harm due to the failure or inability of a parent to adequately supervise or protect the minor from such harm. Here, the failure of one of the babys parents to protect her from harm by the other parent is sufficient evidence for the trial court to fear the same outcome for the subject minor child. The trial court need not wait for actual harm to occur to him. We note also that Mother was not able to protect the baby from T.K.s decision to drive 22 miles for hospital care for the infant when there was emergency care closer to their home.

Moreover, section 300 is implicated because the family home was the subject of domestic violence by T.K. that occurred when Mother was pregnant, and T.K. has a prior arrest in 1997 for domestic violence. Domestic violence in a home supports a finding that children living in the home are at risk of serious injury. (In re Heather A. (1996) 52 Cal.App.4th 183, 193-194.) While Heather A. addressed a trial courts finding that the children were persons described by subdivision (b) of section 300, the domestic violence in the instant case would also support a finding that the subject minor is a person described by subdivision (a) since that subdivision addresses not only repeated infliction of injuries on the child or the childs siblings, but also "other actions by the parent or guardian which indicate the child is at risk of serious physical harm." Additionally, the record shows that T.K. has additional history of inflicting himself on others. He has convictions for robbery, assault with a deadly weapon, and grand theft from person.

2. The Trial Court Complied With Section 361

Subdivision (d) of section 360 provides that if the court finds a child is a person described by section 300, it may adjudge the child a dependent of the court, as the trial court did here. Subdivision (c) of section 361 provides that "[a] dependent child may not be taken from the physical custody of his or her parents . . . with whom the child resides at the time the petition was initiated unless the juvenile court finds clear and convincing evidence of any of the following: [¶] (1) There is a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor or would be if the minor were returned home, and there are no reasonable means by which the minors physical health can be protected without removing the minor from the minors parents . . . physical custody."

Using the substantial evidence standard of review (In re Heather A., supra, 52 Cal.App.4th at p. 193; In re Basilio T. (1992) 4 Cal.App.4th 155, 170), we find there is sufficient evidence to support the trial courts removal of the minor from Mothers custody. We have already set out the evidence indicating a substantial risk of harm to the minor—the several skull fractures to the three-week-old baby, the failure of protection by a parent, the domestic violence, and T.K.s history of felonies.

However, the directive in subdivision (c) (1) of section 361 involves both substantial danger to the child, and a lack of reasonable means of protecting the child short of removal. As for alternatives to removal, Mother appears to suggest the minor should have been returned to her "under strict supervision." She relies on a case in which the court found the minor children had not been physically harmed (In re Basilio T., supra, 4 Cal.App.4th at pp. 171-172). That is hardly the situation here. Certainly the baby was physically harmed, and Mother provides no analysis for her assertion that the minor "was not likely to be subject to the kind of abuse the court believed had been inflicted upon his infant sister." Moreover, we noted in In re Heather A. that even though domestic violence is not directed at the children in the home, those children may nevertheless be physically and emotionally harmed by such violence. (In re Heather A., supra, 52 Cal.App.4th at pp. 194, 195.)

DISPOSITION

The disposition order is affirmed.

We Concur: KITCHING, J. and ALDRICH, J.


Summaries of

In re F.L.

Court of Appeals of California, Second District, Division Three.
Nov 6, 2003
No. B165721 (Cal. Ct. App. Nov. 6, 2003)
Case details for

In re F.L.

Case Details

Full title:In re F.L., A Person Coming Under the Juvenile Court Law. LOS ANGELES…

Court:Court of Appeals of California, Second District, Division Three.

Date published: Nov 6, 2003

Citations

No. B165721 (Cal. Ct. App. Nov. 6, 2003)