Opinion
B191196
12-6-2006
In re JOSE G., a Minor. JENNIFER C., Petitioner, v. THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES, Respondent. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES et al., Real Parties in Interest.
Kenneth A. Krekorian for Petitioner. No appearance for Respondent. Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Jacklyn K. Louie, Senior Deputy County Counsel, for Real Party in Interest Los Angeles County Department of Children and Family Services. Childrens Law Center of Los Angeles and Estaire Rachel Press for Real Party in Interest Jose G.
Petitioner Jennifer C. seeks extraordinary writ relief from the juvenile courts order, made at the jurisdiction and disposition hearing after the court denied reunification services, setting a hearing pursuant to section 366.26 to consider termination of parental rights and implementation of a permanent plan for her one-year-old son Jose G. Jennifer C. contends (1) there was not substantial evidence to support the courts jurisdictional finding Jose G. suffered severe physical abuse inflicted either by a parent or by person known by the parent if the parent knew or should have known of the abuse; (2) even if the jurisdictional finding was properly made, the court should have ordered reunification services; and (3) the court abused its discretion in failing to order an assessment of Jose G.s maternal grandmother for placement. Jennifer C.s petition is opposed by the Department of Children and Family Services (Department) and also by Jose G., who has filed a joinder in the Departments response. We deny the petition.
Welfare and Institutions Code, section 366.26, subdivision (l); California Rules of Court, rule 38.1. All statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
On January 18, 2006, when Jose G. was two months old, Jennifer C. took him to the hospital for an injury to his clavicle and a rash. An examination revealed Jose G. had a broken left clavicle that was two to three weeks old, five broken ribs three to five weeks old, and two subdural hematomas. Jennifer C. gave various inconsistent stories as to how Jose G. sustained the injuries, none of them consistent with the injuries. She told the examining doctor Jose G. sustained the broken ribs when he fell from a chair to the floor. Later, she told the hospital staff the broken clavicle and fractured ribs resulted from a fall from a car seat that had been resting on a chair, onto a tile floor. When interviewed by a police officer, Jennifer C. initially stated she did not know how Jose G. was injured, then said she had put Jose G. to sleep, took a shower, and when she emerged Jose G.s father told her he had wrapped Jose G. tightly in a blanket and heard a cracking noise. The next day Jennifer contacted the officer and changed her story, explaining she was afraid, did not want to go to jail, and thought she may have hurt Jose G. Jennifer C. proceeded to tell the officer she took Jose G. to a medical clinic on December 12 after he fell out of a car seat. Three days later the father was holding Jose G. while she and the father were arguing, and when she tried to forcefully pull the baby from the father, Jose G. cried and she heard a cracking noise. Jennifer C. wrapped Jose G. in a blanket and placed him in a bassinet. Jose G. continued to cry, so she unwrapped him, heard another cracking sound, and felt swelling on Jose G.s back.
Jose G. later had surgery to drain the hematomas.
The doctor determined the fracture was from "squeezing" and not from a fall.
On January 23 the Department filed a petition to declare Jose G. a dependent child of the juvenile court. The petition included an allegation Jose G. had suffered severe physical abuse by a parent or a person known by the parent. At the detention hearing, the court found prima facie evidence to detain Jose G. from Jennifer C. and the father, and advised Jennifer C. that the Department recommended reunification services not be provided to her. The court ordered an examination of Jose G. at the hospital by Dr. Lynne Ticson.
Section 300, subdivision (e) provides in part that a child under the age of five may be adjudged a court dependent if he "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."
In a report for the jurisdiction and disposition hearing, the Department outlined in detail Jennifer C.s inconsistent accounts of how Jose G. suffered his various injuries, as well as different versions she had given of the same story. The Department also reported that several physicians who examined Jose G. at the hospital opined his injuries were caused by non-accidental trauma.
On March 17, 2006 Dr. Ticson prepared a report of her examination of Jose G. and her review of his medical records. The report outlined Jose G.s multiple clavicle and rib fracture injuries in different stages of healing and his subdural hematomas, also in different stages of resolution and which had required a neurosurgical procedure to relieve pressure on the brain. Dr. Ticson noted the various stories given by Jennifer C. and the father as to how the injuries occurred, and concluded as follows:
"The injuries could not have been self-inflicted, as the child is too young to physically injure himself. There are multiple injuries on this young infant which are in different stages of healing, which is the classic definition of the Child Abuse Syndrome. The injuries are not consistent with one huge event as the cause of all the trauma. The injuries are consistent with multiple episodes of non-accidental trauma."
The adjudication hearing commenced May 8, 2006. Jennifer C. testified Jose G.s ribs were fractured when she and the father were arguing, Jose G. was asleep, and the father was holding him. Jennifer C. was angry at the father, grabbed Jose G. with two hands, and pulled him twice toward her. As she was pulling him toward her Jose G. woke up and she heard a cracking noise. Jennifer C. admitted she had initially told a police detective that Jose G.s father had injured Joses ribs while she was in the shower, and later told the detective the injuries were sustained when she pulled and squeezed Jose G. during her argument with the father.
Jennifer C. further testified Jose G. broke his clavicle when he fell from a car seat onto the tile floor while she was in the kitchen. Jennifer C. heard Jose G. crying, and when she turned to look found Jose G. face down on the floor crying and with the car seat on top of him. Although Jennifer C. had not seen Jose G. wiggle out of his car seat before, she believed he could do so. After he fell, Jose G. would not calm down and his torso was red, so she took him to the hospital where she was told Jose G.s clavicle was broken. Two or three days later she returned with Jose G. to the hospital and the broken ribs were diagnosed. Jennifer C. did not know how Jose G. sustained the brain injuries, which were diagnosed later.
The fathers testimony regarding Jose G.s rib injuries was similar to Jennifer C.s testimony: He was having an argument with her; she tried to grab Jose G. away from him, and he told her to stop and moved away from her; Jennifer C. then grabbed Jose G. with two hands by the stomach and "yanked" him away; as she did so, the father heard a cracking sound on Jose G.s ribs.
The father further testified he was in the house when Jose fell out of a car seat a few days earlier. He and Jennifer C. took Jose G.s clothes off and did not see any injuries other than redness behind his head. Later, the father testified he and Jennifer C. did not take Jose G.s clothes off at the house, and it was when they took him to the clinic that the clothes were taken off.
The court found Dr. Ticson to be an expert in physical child abuse. Dr. Ticson testified that the medical records indicated one of Jose G.s subdural hematomas was at least one or two weeks older than the other, and both were likely due to impact. Dr. Ticson opined the clavicle fractures were sustained more recently than either of the hematomas. While it was possible for Jose G. to have sustained a broken clavicle by falling onto a tile floor, Dr. Ticson believed that due to his young age he "could not have generated enough movement to cause [the car seat] to move laterally and then overturn."
Dr. Ticson described Jose G.s rib fractures as posterior rib fractures caused when the ribs are gripped from the back and squeezed strongly toward the center of the body, as when cardiopulmonary resuscitation is administered. Because C.P.R. had not been performed on Jose G., and because the injuries were "in a place where its very difficult to fracture" especially in a ten-week-old baby, Dr. Ticson opined Jose G.s fractures were caused by nonaccidental trauma. Although it was within the realm of possibility the fractures could have been caused by the events as described by Jennifer C. and the father, it was not likely and she had "never heard of any history like that." Dr. Ticson concluded Jose G.s various injuries were of different ages and at different stages of healing, and were consistent with Child Abuse Syndrome.
On May 9, 2006, after hearing argument, the court sustained the dependency petition including the allegation of severe physical abuse under section 300, subdivision (e). The court found that the stories given by Jennifer C. and the father were not credible, as they were inconsistent with stories they had given earlier and with the nature and stages of healing of Jose G.s various injuries. Additionally, the clavicle injury could not have occurred from a fall from a car seat as described by Jennifer C., in view of Jose G.s inability to generate the movement required to cause the car seat to overturn. The court concluded Jennifer C.
". . . [came] in and lied. This court does not for one minute . . . believe the stories [she] told today. . . . Even if this court were to believe [the story that Jose G.s ribs were fractured when Jennifer C. pulled him from the father], thats not an accident, and thats not negligent. . . . This is truly a case where you know it when you see it because even if I believed [the] story, I dont know how you would indicate that playing tug of war with a baby with a broken clavicle who is all of five weeks of age is anything but cruel. That was not negligence; that was not an accident. Those were purposeful acts. . . . I have seen little girls and boys treat dolls better and more carefully and certainly less cruelly than these parents have treated their own live feeling child."
The court proceeded immediately to the dispositional stage. The court accepted counsels stipulation Jennifer C. would testify that she had completed a parenting class. No other evidence was presented. The court denied reunification services to Jennifer C. and the father, stating that services were not in the best interest of Jose G., "who was so severely battered in his short life." The court also denied a request for a pre-release investigation of Jose G.s maternal grandmother for placement of Jose G. with her, explaining such placement would allow Jennifer C. and the father to have access to Jose G. and this would not be in his best interest. The court proceeded to set the matter for a selection and implementation hearing.
DISCUSSION
1. There Was Substantial Evidence to Support the Juvenile Courts Jurisdictional Finding of Severe Physical Abuse.
We review a courts jurisdictional finding under the substantial evidence standard. We resolve all conflicts in support of the determination, and indulge in all legitimate inferences to uphold the courts order. Additionally, we do not substitute our deductions for those of the trier of fact, and we have "no power to judge the effect or value of the evidence, to weigh the evidence, to consider the credibility of witnesses, or to resolve conflicts in the evidence or the reasonable inferences to be drawn therefrom."
In re Kristin H. (1996) 46 Cal.App.4th 1635, 1649.
In re Katrina C. (1988) 201 Cal.App.3d 540, 547; In re John V. (1992) 5 Cal.App.4th 1201, 1212.
In re Stephen W. (1990) 221 Cal.App.3d 629, 642.
With this standard of review in mind, we find substantial evidence to support the courts finding Jose G. suffered severe physical abuse as defined in subdivision (e) of section 300.
Jennifer C. makes no contention regarding the severity of the injuries suffered by Jose G. Nor does she allege she did not know the identity of the person who caused Jose G.s injuries. Her claim is simply that there was no clear explanation as to how the injuries were sustained and they could have resulted from negligent conduct and not from deliberate acts.
Besides the fact there was substantial evidence Jose G. suffered injuries as the result of Jennifer C.s deliberate acts, this does not matter. To justify a jurisdictional finding under subdivision (e) of section 300 the Department must establish three elements: (1) A child under the age of five, (2) has suffered severe physical abuse as defined in the statute, (3) by a parent or any person known to the parent if the parent knew or reasonably should have known that the person was physically abusing the child. Here, Jennifer C. concedes all three elements: She personally inflicted severe physical abuse upon her infant son Jose G. In any case, Dr. Ticsons testimony constituted substantial evidence that Jose G.s multiple injuries were the result of nonaccidental trauma and were consistent with Child Abuse Syndrome.
Section 300, subdivision (e) describes severe physical abuse as "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 unconsciouness."
See In re Joshua H. (1993) 13 Cal.App.4th 1718, 1727.
2. Reunification Services Were Properly Denied to Jennifer C.
Recognizing that in certain categories of cases it is futile to provide reunification services, the Legislature has enacted provisions for "fast-track" permanency planning under specified circumstances. One such situation is when a child under the age of five is made a court dependent for severe physical abuse inflicted either by a parent or by a person known to the parent if the parent knew or should have known of the abuse.
See Deborah S. v. Superior Court (1996) 43 Cal.App.4th 741, 750-751; Randi R. v. Superior Court (1998) 64 Cal.App.4th 67, 70-71.
Section 300, subdivision (e); section 361.5, subdivision (b)(5).
In such cases "the general rule favoring reunification is replaced by a legislative assumption that offering services would be an unwise use of governmental resources." Accordingly, the Legislature has provided that, when a child is made a dependent for severe physical abuse, the juvenile court lacks power to order reunification unless it finds, based on competent testimony, that services "are likely to prevent reabuse or continued neglect of the minor or that failure to try reunification will be detrimental to the minor because the minor is closely and positively attached to the parent."
In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478.
Section 361.5, subdivision (c), third paragraph.
At the disposition hearing the Department thus did not have the burden to prove reunification services would be unsuccessful. Rather, it was Jennifer C.s burden to rebut, by competent testimony, the statutory presumption reunification services are inappropriate. The record shows the court properly determined Jennifer C. did not meet this burden. Jennifer C. did not testify at the jurisdiction and disposition hearing, and the only evidence she presented was her stipulated testimony that she had completed a parenting class. This testimony did not constitute "competent testimony" showing reunification services were likely to prevent reabuse, and Jennifer C. presented no evidence to rebut the statutory presumption by showing denial of reunification would be detrimental to Jose G. because he is clearly and positively attached to Jennifer C.
Raymond C. v. Superior Court (1997) 55 Cal.App.4th 159, 164.
3. This Court Is Without Jurisdiction to Consider Jennifer C.s Claim the Juvenile Court Abused its Discretion in Failing to Order an Investigation of the Maternal Grandmother for Placement of Jose G. with Her.
Jennifer C. claims the juvenile court abused its discretion in failing to order a pre-release investigation of the maternal grandmother who sought Jose G.s placement with her. Jennifer C. has no standing to raise this issue of relative placement.
Jennifer C.s interest in the dependency proceeding is to reunify with Jose G. The juvenile courts decision not to evaluate placement with the maternal grandmother does not adversely affect that interest, nor does it preclude Jennifer C. from presenting at future hearings any evidence about Jose G.s best interests or his relationship with her.
Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1035.
The only interest affected by the order she attempts to challenge at this point in the proceedings is the grandmothers interest in having Jose G. placed with her. "An appellant cannot urge errors which affect only another party who does not appeal." Because Jennifer C. is not aggrieved by the order she challenges, this court is without jurisdiction to consider her claim.
Cesar V. v. Superior Court, supra, 91 Cal.App.4th at pages 1034-1035; In re Gary P. (1995) 40 Cal.App.4th 875, 876-877.
In re Vanessa Z. (1994) 23 Cal.App.4th 258, 261.
DISPOSITION
The petition is denied.
We concur:
PERLUSS, P. J.
WOODS, J.