Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. CK74495, Marilyn Kading Martinez, Commissioner. Affirmed.
Donna Balderston Kaiser, under appointment by the Court of Appeal, for Defendant and Appellant Marisa C.
Andrea R. St. Julian, under appointment by the Court of Appeal, for Defendant and Appellant Salvador Y.
Andrea Ordin, County Counsel, James M. Owens, Assistant County Counsel, Jeanette Cauble, Deputy County Counsel for Plaintiff and Respondent.
ROTHSCHILD, J.
Parents appeal from orders of the juvenile court assuming dependency jurisdiction over their children and removing the children from their custody. They challenge the sufficiency of the evidence to support the court’s findings that their infant son had suffered severe, nonaccidental physical abuse which also placed his two-year old sibling at risk of similar abuse. The parents further contend both the jurisdiction and disposition orders must be reversed because the court failed to advise them of their due process rights, failed to advise them of the consequences of waiving these rights, and failed to secure their personal waiver of their rights. Mother also asserts that she was denied due process because the trial court appointed a guardian ad litem for her. We affirm.
BACKGROUND
Detention
On November 26, 2008, 16-year old Marisa C. (Mother), accompanied by Salvador Y. (Father) and the paternal grandparents, took two-month-old Julian to the child’s doctor, and upon the doctor’s advice, to the hospital. Emergency room personnel at Children’s Hospital in Los Angeles observed bruises on the right side of Julian’s face and right eyelid. X-rays revealed that he had multiple rib fractures and an intracranial hemorrhage. Mother reported that before his hospitalization Julian’s head had been swollen and that he had been vomiting, coughing, and acting strangely for several days.
Apparently, someone informed hospital personnel that Mother, Father, and their children, Julian and two-year-old Jasmine, were living with the paternal grandparents in Victorville in San Bernardino County. As a result of contact from hospital personnel, Victorville police interviewed Mother at the hospital on November 26. She told police that she was unaware of how Julian had received his injuries. Concerned by Mother’s response, the police called the child abuse hotline in San Bernardino.
On November 26, Mother was interviewed at the hospital by a social worker from the San Bernardino Department of Children Services (department). Mother gave inconsistent accounts about the length of time she and the children had been living in Victorville, ranging from two months to five days. Mother denied that Salvador was Julian’s father and claimed that she did not know the identity of the child’s father and had only met him at a party. She also claimed that she did not know the identity of Jasmine’s father.
Mother told the worker that Julian was born several weeks prematurely and that he sometimes had breathing problems. She said that on October 23, 2008, Julian had stopped breathing and was taken by ambulance from the paternal grandparents’ home in Victorville to St. Mary’s Hospital in Apple Valley.
Also on November 26, an officer from the Victorville Police Department interviewed the maternal grandmother who lived in the Baldwin Park area of Los Angeles. She told the officer that because she could not care for Mother and Mother’s children she had sent them to live with an aunt in Victorville. When confronted with information that a detective was then at the paternal grandparents’ home in Victorville and that persons there said their family name was Y., and not the aunt’s surname, the maternal grandmother admitted that she had lied about certain things, including about not knowing the identity of Julian and Jasmine’s father. She also admitted that Mother and the children were not living with an aunt but with Father at the paternal grandparents’ home “‘because they have more money that I do.’” She explained that she lied to authorities to protect Father from the consequences of having engaged in a four-year sexual relationship with her underage daughter.
Maternal grandmother explained that on the morning of November 26, 2008, she was caring for her children and Mother’s children while Mother was out. She went into the bathroom for a few minutes and when she came out her three-year-old son, who weighed between 45 to 55 pounds, told her that while running he had fallen on Julian. Julian’s lip was swollen and she could not get him to stop crying. She did not tell Mother about the incident because she “‘did not see any concerns with what happened.’”
The maternal grandmother said that her husband was asleep during the falling incident and the department apparently did not interview him.
Maternal grandmother also told police that on November 23, 2008, several days before the falling incident, Julian was at her home when he stopped breathing. She performed CPR on Julian using chest compression but said that she “‘did not do it that hard.’” She did not tell Mother about the incident and did not take Julian to the hospital to determine the cause of Julian’s breathing problems, stating that she did not think it was necessary because Julian seemed fine after receiving CPR.
On November 26, police and the San Bernardino social worker interviewed the paternal grandparents at the hospital. They confirmed that their son was the father of both Jasmine and Julian, but fearful of being arrested, he had left his parents’ home and was living with friends. The paternal grandparents were concerned that Father would get into trouble because of his continuing sexual relationship with Mother which began when she was 13 years old. They confirmed that Mother and the children had been living with them on and off for several weeks. The paternal grandfather said he had noticed that Julian’s head was swollen when Mother and the children arrived at his home on November 22, 2008. The paternal grandmother confirmed that on November 22, Julian had not looked the same, and during his stay had problems eating and was more tired than usual.
The next day, the social worker and a police officer went to the paternal grandparents’ home to check on Julian’s two-year-old sibling Jasmine. They were concerned because of the many inconsistencies in the parties’ stories and because Julian’s injuries were unexplained. Jasmine, however, appeared well cared for and had no visible bruises or injuries.
Hospital personnel advised the social worker that after admission on November 26, 2008, Julian had received a fontanelle tap, which involved inserting a needle into his head to drain the fluid. On November 30, 2008, the hospital reported that Julian was in stable condition but might require surgery to insert a drain to remove accumulating fluid from his head. The hospital further reported that Julian had multiple rib fractures that were healing and may have an arm fracture as well.
On November 27, 2008, the social worker explained to Mother that the department would be detaining Julian, the reasons for his detention and the date and time of the detention hearing. She provided Mother with pamphlets explaining juvenile dependency, her civil rights, and a map and address of the juvenile court.
The hospital’s report for suspected child physical abuse, submitted as an attachment to the detention report, stated that Julian had a fever on admission and that mother reported he had been vomiting, coughing and listless for days. Julian had multiple bruises on his right cheek and upper right eyelid, a swollen head and tense fontanelle (the soft spots on the baby’s head), small pupils which were minimally reactive, mouth sores, a hard palate (tissue on the back roof of the mouth that normally is soft), jutting ribs on both sides, and questionable sundowning (abnormal behaviors associated with psychosis or dementia) and back arching (either a sign of reflux or of developmental delay).
On December 2, 2008, the department filed a petition pursuant to Welfare and Institutions Code section 300 with respect to both Jasmine and Julian. The petition alleged that Julian had suffered serious physical harm inflicted nonaccidentally while in Mother and Father’s custody (§ 300, subds. (a), (b) & (e)). A second petition alleged that this abuse placed his sibling, Jasmine, at risk of similar abuse (§ 300, subd. (j)).
Further unmarked statutory references are to this Code.
These subdivisions of section 300 provide in pertinent part:
Detention Hearing
On December 3, 2008, the court held the detention hearing. Father did not appear. Mother was present and because she was a minor, the court, over her counsel’s objection, appointed a guardian ad litem for her. The court trailed the matter to allow Mother to discuss the case with her guardian ad litem. After the court recalled the matter, Mother’s counsel waived formal reading of the petition, arraignment, and advisement of rights and entered Mother’s denial with “regard[] to detention.”
The court admitted the detention report. Mother presented no evidence but argued that the children should be placed with the paternal aunt. The court found the evidence in the detention report and the hospital’s report of suspected child physical abuse established a prima facie case to detain the children and authorized the Children’s Assessment Center to conduct an evidentiary forensic medical examination of both children. The court commented that each of the family members, when interviewed, claimed that they had no idea how Julian might have received his various injuries and, until the matter had been fully investigated, the court stated that it needed to act to protect the children. The maternal grandmother told the court, “[p]eople make mistakes, ” and Mother told her to be quiet.
The court set the jurisdiction and disposition hearing for December 23, 2008.
Jurisdiction Report for December 23, 2008
On December 3, 2008, Julian had surgery to place a shunt into his head to drain fluid. He was in stable condition and due to be released from the hospital on December 11, 2008, but was retained for observation after experiencing an episode of sleep apnea. Hospital personnel recommended that a sleep study be performed because he had stopped breathing for ten seconds and because, after the apnea episode, there was discharge in his eyes.
Julian left the hospital on December 16, 2008, and was placed in a foster home for medically fragile children. The doctor’s discharge report noted that Julian was a thirty two week premature child, who had suffered chronic subdural hematomas, apnea episodes, rib fractures, and nonaccidental trauma. The doctor stated that Julian “will need close follow up with multiple services including neurosurgery, trauma surgery, ophthalmology, ... [and] audiology.”
On December 11, 2008, Father had telephoned the social worker. He explained that he did not appear at the detention hearing because he was fearful of being arrested for having sexual relations with a minor. He said that he met Mother when he was 18 years old and they were both living in Baldwin Park. He stated that he believed that Mother was 17 years old but a few days later she told him that she was 13. Father knew that the relationship was wrong but stated that he was in love with Mother. Father said that the maternal grandmother knew he was much older than Mother but nevertheless allowed him to continue the relationship.
Father said that Mother and the children usually lived with the maternal grandmother in Baldwin Park but sometimes stayed with him at the paternal grandparents’ home in Victorville. On one such occasion (presumably, October 24, 2008), Father said that Julian stopped breathing and Father and the paternal grandfather tried to perform CPR on Julian. They called 911 and Julian was transported by ambulance to St. Mary’s Medical Hospital in Apple Valley. Once Julian’s situation stabilized, he was transferred to Loma Linda University Children’s Hospital. Father reported, apparently sometime before November 26, that Mother had told him, apparently a few weeks after the October 24th incident, that Julian again stopped breathing when Julian was in the maternal grandmother’s care. He learned that the maternal grandmother performed CPR on Julian, but that she did not take Julian to a doctor because he started breathing again. That night when he picked up Mother, he noticed that Julian’s head was swollen but did not do anything about it because he thought Julian’s head size would return to normal and because he did not want to argue with Mother.
Mother told emergency medical service personnel that an “uncle” had given Julian two “rescue breaths” while waiting for paramedics to arrive.
The social worker’s report noted that the family members’ stories were inconsistent, failed to provide an explanation of when or how Julian received his injuries and, for this reason, no one could be ruled out as a possible perpetrator of the abuse.
Jurisdiction Hearing
Father first appeared at the December 23, 2008 hearing. Mother and her counsel also appeared. Father’s counsel waived formal reading of the petitions, arraignment, and advisements of rights and entered denials of the petitions’ allegations. Counsel requested a continuance because he and Father had just received copies of the reports and needed time to review them. The court granted counsel’s request and set a contest for jurisdictional and dispositional issues to start on January 12, 2009, subject to counsel’s right to request an additional continuance to prepare. Father’s counsel reserved the right to waive the contest.
On January 7, 2009, the department informed the court that the Children’s Assessment Center was still waiting for Julian’s medical records from Children’s Hospital in Los Angeles in order to complete the forensic medical study. The department requested, and the court granted, a three-week continuance and reset the contested jurisdiction hearing for February 4, 2009.
On February 4, 2009, the court continued the jurisdiction hearing to February 26, 2009, because the doctor from the Children’s Assessment Center required additional time to complete his analysis and report.
Dr. Mark Massi’s report of February 26, 2009, attached to an addendum jurisdiction report, concluded that Julian’s injuries were “highly suspicious for physical abuse.” First, the doctor reviewed the medical records for the period of November 26 to December 16, 2008, from Children’s Hospital. The emergency room physician’s notes stated that Julian was admitted on complaints of days of cough, fever, bruising, and increased head size and tense fontanelle for two weeks. Chest x-rays revealed multiple healing rib fractures and that Julian had acute hemorrhage and abnormal swelling of the head. The attending physician reported that in addition to the rib fractures, Julian’s right arm was fractured as well.
Dr. Massi also reviewed medical records regarding Julian’s treatment at St. Mary’s Medical Center on October 24 and 25, 2008, and at Loma Linda University Children’s Hospital on October 25 through 30, 2008. On this occasion, the family reported that Julian had stopped breathing, his lips and mouth had turned blue, he had received two rescue breaths, and, when paramedics arrived, Julian was breathing on his own. He was diagnosed with bronchiolitis, anemia, and conjunctivitis and his treatment included intravenous antibiotics and antibiotics to the eyes. While hospitalized, Julian had another apnea episode and was transferred to Loma Linda for further observation and treatment. A CT scan of his head revealed an abnormality in the left parietal-occipital lobe, two areas at the back of the brain which process sensory and visual information respectively. He was discharged with a diagnosis of an apparent life-threatening event, apnea, and gastrointestinal reflux. Dr. Massi’s review of the chest x-ray and upper gastrointestinal study performed at Loma Linda revealed previously unrecognized fractures of the left fifth through seventh ribs.
Based on the review of these medical records, Dr. Massi opined that Julian was an “infant victim of child maltreatment who suffered abusive head trauma, facial contusions, and multiple rib fractures. [¶] It is important to note that this child has sustained injuries on multiple occasions as supported by the change in head CT results between 10/25/08 and 11/26/08, additional rib fractures between 10/27/08 and 11/26/08. Additionally, a significant deceleration in the child’s weight gain occurred after the discharge from the neonatal intensive care unit, which is physical neglect.”
At the hearing on February 26, 2009, the court granted Mother and Father’s request to advance the contested jurisdiction hearing to that date. The court admitted into evidence the jurisdiction report of December 23, 2008, and addendum reports of February 4, and February 26, 2009. Father’s counsel then stated, “On behalf of my client, I have no affirmative evidence. I am going to object to the jurisdictional recommendations and allegations.” Mother’s counsel stated that Mother had had extensive discussions with the guardian ad litem that morning and that they had collectively agreed “to go forward this morning. Mother will be placing an objection to the [c]ourt finding any of the allegations against her true.” Mother, like Father, did not present any evidence.
The court sustained the allegations of severe, nonaccidental physical abuse of a child under five years old (§ 300, subd. (e)) and the allegations that the abuse put sibling Jasmine at risk for similar abuse (§ 300, subd. (j)). The court granted the department’s request to dismiss without prejudice the allegations under section 300 subdivisions (a) and (b) as repetitive. The court also granted the department’s request to transfer the case for disposition to Los Angeles County where Mother then resided with the maternal grandmother.
Transfer
On March 19, 2009, the Los Angeles juvenile court accepted transfer of the case. The court did not appoint a guardian ad litem for Mother on her counsel’s representation that a guardian ad litem was unnecessary. The court found that Father was the children’s presumed father and ordered the Department of Children and Family Services (DCFS) to prepare a disposition report.
Disposition Report
The DCFS’s May 12, 2009 report stated that the parents visited the children regularly together and that they missed their children very much and requested more time with them. Father told the worker that he was willing to do whatever was necessary to regain custody of his children. He was still unable to explain the cause of Julian’s injuries. Mother offered that perhaps Jasmine had fallen on top of him, but could think of no other cause. Both Mother and Father had recently enrolled in various programs, including parenting classes, individual counseling, and anger management.
A Los Angeles DCFS worker interviewed the San Bernardino County social worker who had been involved in the case from the beginning. She stated that Julian had had many serious injuries, both old and new, which required that he be placed in a foster home for medically fragile children. The worker noted that none of the family members objected when the department took temporary custody of Julian but that when the department took custody of Jasmine as well “‘all of a sudden everybody was upset.’” It disturbed the San Bernardino worker that Mother had lied about not knowing the identity of Father and that the paternal grandparents had appeared to be more concerned about protecting Father than about protecting Julian. She also was concerned that no one took responsibility for Julian’s injuries and for this reason she recommended that no reunification services be offered to the family.
The DCFS recommended that no reunification services be offered to Mother or Father under the authority of section 361.5, subdivisions (b)(5) and (6) based on the jurisdictional finding under section 300, subdivision (e) of severe, nonaccidental physical abuse of a child under the age of five.
Section 361.5, subdivision (b) provides in pertinent part: “Reunification services need not be provided to a parent or guardian described in this subdivision when the court finds, by clear and convincing evidence, any of the following: [¶]... [¶]
Disposition Hearing
Mother and Father attended the May 12, 2009 disposition hearing. The court stated that it had reviewed and considered the December 3, 2008 detention report, the jurisdiction report of December 23, 2008, addendum reports of February 4, and February 26, 2009, and the May 12, 2009 disposition report. Neither parent presented any evidence.
Father’s counsel requested the court to grant Father reunification services. While acknowledging the serious allegations against Father, counsel pointed out that Father was young, remorseful, had no criminal history, was closely bonded with his two children, and had no prior dependency referrals. Counsel argued that Father would benefit from services and noted that Father had shown a commitment to regain custody of his children by voluntarily enrolling in and participating in parenting classes, anger management, and individual counseling, and was eager to learn how to exercise better judgment so that he could be a more prudent and careful parent.
Mother’s counsel noted that Mother was an extremely young mother who would benefit from reunification services. Counsel pointed out that Mother was participating in numerous programs, including anger management and parenting in addition to attending school.
The children’s counsel joined Mother and Father in requesting that the court offer the parents family reunification services. Counsel noted that the parents were very young, that Jasmine had been well cared for, and that based on the parents’ efforts and actions, that it was in the best interests of the children to offer the parents reunification services to assist them in regaining custody of their children.
The DCFS urged the court to deny reunification services because of the severity of Julian’s injuries and the parents’ failure to either take responsibility, or offer a reasonable explanation, for the injuries.
The court ordered the children removed from the parents’ custody and suitably placed, and directed the DCFS to provide the parents family reunification services, finding that reunification services were in the children’s best interest.
The parents appeal from the court’s orders.
DISCUSSION
Guardian Ad Litem
At Mother’s initial appearance at the detention hearing on December 3, 2008, it was undisputed that she was 16 years old. Over Mother’s counsel’s objection, the court appointed a guardian ad litem for Mother. On appeal, Mother contends the court violated her rights to due process by appointing her the guardian. We disagree.
In December 2008, when the court made the appointment, Code of Civil Procedure section 372, subdivision (a) required the court to appoint a guardian ad litem for Mother. Code of Civil Procedure section 372, subdivision (a) provided that “[w]hen a minor, an incompetent person, or a person for whom a conservator has been appointed is a party, that person shall appear either by a guardian or conservator of the estate or by a guardian ad litem appointed by the court in which the action or proceeding is pending, or by a judge thereof, in each case....” (Italics added.) Nor, as Mother now contends, did the court err in not holding an evidentiary hearing. Her status as a minor, the only basis for appointment of the guardian, was not disputed. (Compare In re James F. (2008) 42 Cal.4th 901, 904 [before appointing a guardian ad litem for a parent believed to be mentally incompetent the juvenile court must hold an informal hearing to explain the nature and purpose of the proceedings and the purpose and powers of the guardian ad litem, at which the parent is given an opportunity to object and explain why a guardian is not required]; see also In re Sara D. (2001) 87 Cal.App.4th 661, 671-672 [parent claimed to be mentally incompetent is entitled to an informal hearing regarding the necessity of a guardian ad litem].)
Effective January 1, 2009, Code of Civil Procedure section 372 was amended to permit a juvenile court in its discretion to allow minors who are parents of dependent children to proceed without a guardian ad litem, provided the court finds that the parent understands the nature of the proceedings and is capable of assisting counsel in preparing the case. This change, however, does not alter the propriety of the appointment when made. Mother cites no relevant authority for her assertion that the appointment was “revoked” by operation of law once the new law became effective, and we have found none. Her reliance on Estate of Green (1981) 120 Cal.App.3d 589 is misplaced. Estate of Green did not concern Code of Civil Procedure section 372 nor the effect of amendment of a statute on a previously valid order.
Code of Civil Procedure section 372 was amended to add subdivision (c) which provides:
Although at the February 2009 jurisdiction hearing the continuing propriety of a guardian ad litem was a matter within the juvenile court’s discretion, Mother did not object to the guardian or request his removal. She has thus forfeited any claim on that ground. Nor has she shown any prejudice resulted from the appointment.
Personal Waiver of Rights
At the initial, or detention, hearing, the court must inform the parties of their rights, including the right to counsel at each stage of the proceedings. (§§ 311, subd. (b), 316; Cal. Rules of Court, rule 5.534(g) & (k), 5.668(a).) Formal advisement of these rights may be waived by parents represented by counsel but a personal waiver by the parent is required. (In re Monique T. (1992) 2 Cal.App.4th 1372, 1377.)
California Rules of Court, rule 5.668(a) provides that “[a]t the beginning of the initial hearing on the petition, whether the child is detained or not detained, the court must give advisement as required by rule 5.534.”
At each of their initial appearances both Mother’s counsel and Father’s counsel waived formal reading of the petition’s allegations and advisement of rights on the parents’ behalf and the court accepted counsels’ waivers. Relying on the decision in In re Monique T., supra, 2 Cal.App.4th 1372, Mother and Father now contend the court erred by failing to advise them of their due process rights and further erred by accepting counsels’ waiver of their rights without obtaining their express personal waivers, and without finding that their waivers had been knowingly and voluntarily made. They contend the error requires reversal of the court’s orders. We agree that the court erred in failing to secure the parents’ personal waivers but find the error harmless.
In In re Monique T., the mother, through her counsel, waived the reading of the petition at the detention hearing, advice of rights and explanation of the proceedings and submitted the matter on the petition and detention report. The child was detained and placed in foster care. Later, on the same date, mother, through counsel, submitted the matter for a jurisdictional determination based only on the petition and the detention report. The court did not advise the mother of the rights she would be giving up by submitting the issue of jurisdiction. The court sustained the dependency petition’s allegations and ordered the child’s continued placement in foster care. (In re Monique T., supra, 2 Cal.App.4th at p. 1375.) Because the juvenile court did not explain the mother’s due process rights as required, and did not obtain her personal waiver of these rights, the court concluded it was error to accept a waiver of rights based only on counsel’s representations. (Id. at p. 1377.) The court nevertheless concluded that the error was harmless, regardless whether the Chapman or Watson standard applied. (Chapman v. California (1967) 386 U.S. 18; People v. Watson (1956) 46 Cal.2d 818, 836.; In re Monique T., supra, 2 Cal.App.4th at pp. 1377-1378 [declining to decide which harmless error standard applied in this context].) “The mother was represented, at all stages of the proceeding, by an attorney, who explained her rights to her and who indicated that she desired to waive them. She does not deny this, nor does she claim she was under any kind of pressure to waive the rights. Moreover, the evidence of the mother’s inability to care for the child is uncontradicted and the mother does not indicate that she could have offered different or more favorable evidence or witnesses.” (Id. at p. 1378.)
As in In re Monique T., so here too the error was harmless under either the Chapman or Watson standard. Mother and Father were represented at all stages of the proceedings by counsel. Although both submitted the issue of detention on the detention report and petition, Mother requested a contested hearing on jurisdiction at Father’s first appearance and Father requested a continuance in order to prepare. Because they asserted their right to a trial of the jurisdictional issues, it is reasonable to assume that counsel had informed them of their due process rights to a trial and of their trial rights at a hearing of the contested matter. The contested hearing was scheduled in December 2008 and held February 26, 2009. At some point during this three-month interval the parents apparently decided not to present any evidence but only to object to the court finding any of the allegations true.
On December 23, 2008, the court set the matter for a contested hearing on jurisdictional issues. Father’s counsel informed the court that he was unprepared to commit to a date certain for the hearing and requested a continuance, as well as the right to vacate the hearing date in the event he required more time. Father’s counsel stated: “Regarding jurisdiction and disposition, I have received a lot of reports, your Honor. My client just received his petition and reports, so I am going to ask for a short continuance. I don’t want to fully advise him until I know what the facts are. I am asking for a further JD, a short continuance.” The court set a date for the contested hearing at Mother’s request and Father’s counsel reserved the right to “vacate any trial date set if I need to. I don’t know what I’m up against.”
In any case, the parents do not claim that they were under any pressure to waive their rights or that counsel did not explain their rights. Nor does either parent suggest that he or she had more favorable evidence or witnesses to offer at the contested jurisdiction hearing. We thus conclude that error in accepting counsels’ waiver at the parents’ initial appearance, without obtaining the parents’ express personal waiver, was harmless.
Jurisdiction
The parents contend that insufficient evidence supports the court’s finding of jurisdiction under subdivision (e) of severe, nonaccidental physical abuse of a child under the age of five. They accordingly argue that the court’s jurisdictional findings and order removing the children from their custody must be reversed. We disagree.
While this case was pending on appeal, the juvenile court on December 9, 2009, terminated its order for suitable placement, found both parents in compliance with the case plan, and entered an order for a permanent plan of placing both children with father in Victorville with directions to the DCFS to provide family maintenance services. The court then transferred the case to San Bernardino County.
In reviewing the sufficiency of the evidence on appeal we consider the entire record to determine whether substantial evidence supports the court’s findings. We “draw all reasonable inferences in support of the findings, view the record favorably to the juvenile court’s order and affirm the order even if other evidence supports a contrary finding. [Citations.]” (In re James R. (2009) 176 Cal.App.4th 129, 134-135.)
When a child under the age of five has suffered severe physical abuse by a parent, or by someone known by the parent, and the parent knew or should have known that the person was abusing the child, the child is subject to juvenile court jurisdiction under section 300, subdivision (e). The statutory definition of “severe physical abuse” is “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” or “more than one act of physical abuse, each of which causes bleeding, deep bruising, significant external or internal swelling, bone fracture....” (§ 300, subd. (e).) Here, the evidence showed that Julian suffered head trauma apparently on more than one occasion, chronic subdural hematomas, facial contusions, multiple rib fractures on more than one occasion, and a broken arm. Although a nonaccidental explanation for the injuries is possible, the cluster of the injuries supports the court’s determination that they were not accidental.
Assuming for the sake of argument that the evidence does not support a finding that either parent personally inflicted the injuries, it does support a finding that the parents should have been aware that someone in the family was injuring Julian. The evidence established that Julian was never in the care of anyone except the parents or their families. Prior to November 26, Julian’s head was already swollen, he had had several apnea incidents, he was vomiting, listless, cried excessively, had protruding ribs, and was malnourished. For example, when Julian was admitted to Children’s Hospital in Los Angeles Mother reported that, in addition to having a noticeably swollen head, Julian had also been vomiting, coughing and acting strangely for several days. On November 22, 2008, Father noticed that Julian’s head was larger than usual, but did nothing about it because he did not want to get into an argument with Mother. This evidence shows that each parent had independently observed that something was seriously wrong with Julian and, from the nature of his afflictions, either knew or reasonably should have known that Julian had been subjected to abuse.
The parents acknowledge that the court’s jurisdictional finding under subdivision (j) that Jasmine was at risk for similar abuse depends for its validity on the court’s jurisdictional finding under section 300, subdivision (e) which we conclude is supported by substantial evidence.
Contrary to the parents’ argument, it is not necessary for the parent to personally inflict the physical abuse to sustain a section 300 petition under subdivision (e). (In re E.H. (2003) 108 Cal.App.4th 659, 670 [the infant was never out of the parents’ custody and remained with a family member at all times; therefore, either the parents inflicted the injuries themselves, or reasonably should have known that someone else in the family was abusing the child].) It is sufficient that the parents knew or reasonably should have known that the abuser was a person having access to the child. (See In re Joshua H. (1993) 13 Cal.App.4th 1718, 1729 [injuries inflicted by mother’s boyfriend].) Further, and contrary to the parents’ arguments, it is also not necessary that the parent know the full extent of the child’s injuries when, as here, the injuries of which they are aware or can observe show that the child has been abused. (Ibid.)
Disposition
The court did not err in removing the children from the parents’ custody after it sustained the allegations of severe physical abuse under section 300, subdivision (e). Pursuant to section 361, subdivision (c)(1), the “fact that a minor has been adjudicated a dependent child of the court pursuant to subdivision (e) of Section 300 shall constitute prima facie evidence that the minor cannot be safely left in the physical custody of the parent or guardian with whom the minor resided at the time of the injury.” The jurisdictional finding under subdivision (e) was prima facie evidence that removal was appropriate. This circumstance justified the court in removing the children from the parents’ custody in order to ensure the children’s safety.
DISPOSITION
The orders are affirmed.
We concur: MALLANO, P. J. CHANEY, J.
“(a) 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 child’s parent or guardian. For the purposes of this subdivision, a court may find there is a substantial risk of serious future injury based on the manner in which a less serious injury was inflicted, a history of repeated inflictions of injuries on the child or the child’s siblings, or a combination of these and other actions by the parent or guardian which indicate the child is at risk of serious physical harm. For purposes of this subdivision, ‘serious physical harm’ does not include reasonable and age-appropriate spanking to the buttocks where there is no evidence of serious physical injury.
“(b) The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child, or the willful or negligent failure of the child’s parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left, or by the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent or guardian to provide regular care for the child due to the parent’s or guardian’s mental illness, developmental disability, or substance abuse.... [¶]... [¶]
“(e) The 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;... or more than one act of physical abuse, each of which causes bleeding, deep bruising, significant external or internal swelling, bone fracture, or unconsciousness.... [¶]... [¶]
“(j) The child’s sibling has been abused or neglected, as defined in subdivision (a), (b), (d), (e), or (i), and there is a substantial risk that the child will be abused or neglected, as defined in those subdivisions. The court shall consider the circumstances surrounding the abuse or neglect of the sibling, the age and gender of each child, the nature of the abuse or neglect of the sibling, the mental condition of the parent or guardian, and any other factors the court considers probative in determining whether there is a substantial risk to the child.”
“(5) That 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.
“(6) That 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, as defined in this subdivision, and the court makes a factual finding that it would not benefit the child to pursue reunification services with the offending parent or guardian.”
“(1) Notwithstanding subdivision (a), a minor may appear in court without a guardian ad litem in the following proceedings if the minor is a parent of the child who is the subject of the proceedings [in family court, dependency proceedings, guardianship proceedings, or other proceedings involving child custody, visitation or support].
“(2) If the court finds that the minor parent is unable to understand the nature of the proceedings or to assist counsel in preparing the case, the court shall, upon its own motion or upon a motion by the minor parent or the minor parent’s counsel, appoint a guardian ad litem.” (Stats. 2008, c. 181 (S.B. 1612), § 1.)
At the same time, the Legislature amended the Welfare and Institutions Code to add section 326.7 which provides: “Appointment of a guardian ad litem shall not be required for a minor who is a parent of the child who is the subject of the dependency petition, unless the minor parent is unable to understand the nature of the proceedings or to assist counsel in preparing the case.”
California Rules of Court, rule 5.534(k) specifies:
“(1) The court must advise the child, parent, and guardian in section 300 cases, ... of the following rights:
“(A) Any right to assert the privilege against self-incrimination;
“(B) The right to confront and cross-examine the persons who prepared reports or documents submitted to the court by the petitioner and the witnesses called to testify at the hearing;
“(C) The right to use the process of the court to bring in witnesses; and
“(D) The right to present evidence to the court.
“(2) The child, parent, guardian, and their attorneys have:
“(A) The right to receive probation officer or social worker reports; and
“(B) The right to inspect the documents used by the preparer of the report....”
We requested the parties to provide supplemental letter briefs to address the impact of the court’s orders returning the children to Father’s custody and transferring jurisdiction from Los Angeles County to San Bernardino County. The DCFS asked this court to dismiss the appeal as moot or, in the alternative, request the Supreme Court to transfer the appeal to the Fourth Appellate District for review. The DCFS asserted that this court had no jurisdiction to decide the appeal and could not provide effective relief now that jurisdiction of the cause is in a different county. (Citing Cal. Const., art. VI, §§ 11 & 12.) Both Father and Mother contend the appeal is not moot, arguing that the court’s jurisdiction and disposition orders have collateral consequences which will continue to adversely affect them in these proceedings, and potentially in future proceedings as well. Mother and Father point out that the court’s findings of jurisdiction under section 300, subdivision (e) and order at disposition removing the children from their custody, if left standing, have the potential to make them ineligible for reunification services in the future pursuant to section 361.5, subdivision (b). We conclude that Mother and Father have the better argument.
“As a general rule, ‘an appeal presenting only abstract or academic questions is subject to dismissal as moot.’ [Citation.]” (In re Jody R. (1990) 218 Cal.App.3d 1615, 1621.) Because the jurisdictional findings and disposition orders could affect the parents in the future if dependency proceedings were ever initiated with respect to these or any future children, we conclude that the challenge to the court’s findings and orders are not moot. (In re Joshua C. (1994) 24 Cal.App.4th 1544, 1547 [appeals in dependency matters are not moot if “the purported error is of such magnitude as to infect the outcome of [subsequent proceedings]”]; see also In re J.K. (2009) 174 Cal.App.4th 1426, 1432 [father’s challenge to the jurisdictional findings were not moot because they could affect him if dependency proceedings were initiated in the future with respect to the minor or any other of his children].)
We also reject the DCFS’s assertion that this appeal should be transferred to another district. As noted in In re Lisa E. (1986) 188 Cal.App.3d 399, 405, a transfer of the appeal would cause further delay, contrary to the policy of juvenile law to expeditiously resolve juvenile dependency cases. In any case, transfer is unnecessary because, “[t]his court’s decision will still be binding on the [San Bernardino] Superior Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)” (In re Lisa E., supra, 188 Cal.App.3d at p. 405.)