Opinion
NOT TO BE PUBLISHED
Lake County Super. Ct. No. JV4993
Kline, P.J.
Rochelle P. appeals from orders of the juvenile court declaring her children, Laci L. and Ty L., dependents of the court and removing them from her custody. She contends the principles of res judicata and collateral estoppel should have barred relitigation of issues involved in prior proceedings regarding her older daughter, Sierra L., and the evidence was insufficient to support detention, jurisdiction, or out-of-home placement at disposition. We affirm the jurisdiction order, but reverse the disposition order and remand for further proceedings.
STATEMENT OF THE CASE AND FACTS
Rochelle and Anthony L. are the parents of Sierra, born in 2001, Laci, born in 2006, and Ty, born in 2008. In August 2001, Sierra suffered extreme injuries that left her legally blind, brain damaged, unable to speak or feed herself, and in need of various services. The parents maintained that the injuries were due to a brain infection and an incident in which Rochelle, suffering an epileptic seizure, dropped the baby and fell on top of her. Dependency proceedings were ultimately dismissed after a legal guardianship was established with Sierra’s maternal great grandparents. Criminal prosecution of the parents concluded with Anthony pleading guilty under People v. West to felony child endangerment (Pen. Code, § 273a, subd. (a)). Anthony was placed on five years’ probation, and the case against Rochelle was dismissed. Anthony’s subsequent attempt to withdraw his plea was denied.
Juvenile dependency proceedings were instituted in August 2001. After numerous continuances, the jurisdictional hearing began on March 19, 2002. The court received in evidence the jurisdictional report and its exhibits, including medical records and reports, police reports, transcripts of sheriff’s department interviews with Rochelle and Anthony and other documentation. The court heard testimony from Anthony and from Dr. Philip Riedel, who treated Sierra at Santa Rosa Memorial Hospital in July 2001. The court heard further testimony on May 14 and 15 from Anthony, Rochelle and Gary Shawl. Following a number of continuances, on September 24, 2002, the case was dismissed and dependency proceedings terminated because a guardianship had been established for Sierra with her maternal great-grandparents.
People v. West (1970) 3 Cal.3d 595.
Penal Code section 273a, subdivision (a), provides: “Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years.”
After a preliminary hearing on July 19, 2002, Anthony and Rochelle were charged with two felony counts of willful harm to a child (Pen. Code, § 273a, subd. (a)), with special allegations that they each personally inflicted great bodily injury (Pen. Code, § 12022.7, subd. (d)). On October 15, 2002, Anthony entered a guilty plea to one count pursuant to People v. West; the other count and the special allegations were dismissed as to Anthony, and all charges and allegations as to Rochelle were dismissed. On January 24, 2003, Anthony moved to vacate his plea; his motion was denied on February 10, 2003. After reviewing the probation report, Anthony’s statement in mitigation and the prosecution’s sentencing brief, the court continued the sentencing hearing to obtain the appearance of a medical expert. Dr. Crawford, who treated Sierra at Oakland Children’s Hospital in August 2001, testified for the prosecution, and several witnesses testified for the defense. The court referred the matter to the probation department for a supplemental report concerning terms of probation if the court should choose that sentencing option. On October 3, 2003, the court suspended imposition of sentence and placed Anthony on probation for five years.
In March 2006, Rochelle’s mother obtained a temporary restraining order (TRO) against Anthony, after a February 28, 2006 incident in which she sustained injuries after he pushed her. She did not pursue the matter and on April 3 the TRO was dissolved.
Laci was born in August 2006. The record reflects no indication of any problems with the parents’ care of her.
The current dependency proceedings were instituted in January 2008, shortly after Ty was born, when Laci was 16 months old. The petition, filed by the Lake County Department of Social Services (Department) on January 11, 2008, alleged Laci and Ty came within the provisions of Welfare and Institutions Code section 300, subdivisions (a), (b), and (j). Specifically, it was alleged under section 300, subdivision (a), that the children were at substantial risk of suffering serious physical harm inflicted nonaccidentally by their father, Anthony L., in that Anthony had a history of physical violence evidenced by his having pled guilty on October 15, 2002, to “Willful Harm or Injury to a Child regarding multiple injuries inflicted upon his newborn daughter, Sierra [L.],” including “at least 18 bone fractures as well as head trauma that consisted of hemorrhaging, bruising and atrophy of the brain” and resulting in permanent disabilities including blindness and mental retardation; and by a TRO issued against Anthony on March 20, 2006, for physically assaulting the maternal grandmother, who required hospital treatment for injuries including bruising on her wrist, shoulder and back and lumps on her head. Under section 300, subdivision (b), the petition alleged that the children were at substantial risk of suffering serious physical harm or illness as a result of Rochelle P.’s “self-medication with Marijuana to control her epileptic seizures rather than taking her doctor prescribed medication,” which was of particular concern because Rochelle contended that her seizures caused Sierra’s 2001 injuries, and as a result of Anthony’s use of controlled substances including marijuana. Finally, it was alleged under section 300, subdivision (j), that the children were at risk of being abused or neglected in that Anthony had severely abused Sierra; Rochelle had failed to protect Sierra from Anthony’s physical abuse; and both parents had a history of failing to seek necessary and immediate medical treatment for Sierra, including failing to seek treatment in July 2001 despite the newborn being “unresponsive and hypothermic for 2 days.”
Further statutory references will be to the Welfare and Institutions Code unless otherwise specified.
Also on January 11, 2008, the Department obtained an ex parte warrant for protective custody (§ 340), representing that it had recently received a report that the parents had had the two subject children, its investigation revealed that the parents were moving out of the home they shared with “numerous supervising adults” to one in which they would live alone with the young children, and removal of the children was necessary and appropriate because of Rochelle’s “untreated medical needs and substance abuse issues,” Anthony’s “history of violence” and the parents’ “significant CPS history.”
An amended petition was filed on January 14, adding an allegation under section 300, subdivision (b), that the injuries to Sierra occurred while the parents were living together and Rochelle supported Anthony’s explanation denying culpability in Sierra’s dependency case. The detention order was filed after a hearing on January 17, 2008, and the children were placed in a foster home.
The jurisdiction report was filed on February 8, 2008, with supplemental reports filed on February 13 and May 19, 2008; the jurisdiction hearing began on February 8, and continued with intermittent hearings until June 11, 2008.
Rochelle was 18 years old and Anthony 20 years old when Sierra was born, several weeks premature, in June 2001. Rochelle testified that the baby was born with a brain infection caused by the hospital withholding her labor too long. Sierra was hospitalized until June 25, then went home for only 12 days before the parents brought her to Redbud Hospital on July 7, lethargic and hypothermic, with a rectal temperature of 95.6 degrees. She was transferred the same day to Santa Rosa Memorial Hospital (SRMH). Medical records reflect that the parents said Sierra had been in this condition for two days, with decreasing response to stimuli. A CT scan showed a subarachnoid hemorrhage (bleeding around the brain), and Sierra had healing abrasions on her nose and chin, bruises on her right temple and around her genitalia and rectum, and a possible bruise on her left cheek. A report by Dr. Philip Riedel, of SRMH, stated the baby had suffered “ ‘possible child abuse’ ” and was also being evaluated for possible sepsis and viral meningoencephalitis. Hospital records stated that when possible abuse was discussed, Anthony said he might have “ ‘bruised her butt’ while grabbing her to go to the hospital” and that he “ ‘freaked out cause she wasn’t moving.’ ”
Rochelle testified that a red mark on Sierra’s buttocks observed during this hospitalization was where Anthony pinched her, trying to get a response, and that the bruising on Sierra’s face was due to her brain infection. Rochelle testified that neither she nor Anthony did anything to physically harm the baby. They took her to the clinic for a follow up visit after her initial hospital discharge and she appeared to be fine; then a day or so later they took her to the hospital because she stopped breathing. Rochelle testified that Sierra had not shown signs of illness before they took her to the hospital and denied that the baby had been unresponsive for two days.
Sierra was transferred to University of California San Francisco (UCSF), where the medical team concluded her symptoms were more consistent with an infection in the brain than with child abuse, although they were not able to identify an organism that caused the infection. Sierra improved and was discharged on July 31, alert and active. In a letter to Child Protective Services (CPS), however, a UCSF social worker noted that nurses had commented on the parents’ “general rough handling” of the baby and Anthony’s “rather aggressive demonstrations of affection.” The social worker stated, “Had Sierra come to UCSF under different circumstances, the parental behaviors described above may have been attributed to young, unsophisticated parents with no parenting experience. However, given the history, it seems appropriate that there be some CPS follow up after discharge.”
During the 2002 dependency proceedings, Reidel was asked about a sheriff’s report quoting him as having opined that Sierra had not been abused and her bruising was due to viral encephalitis. The doctor did not remember having made such a statement and testified that he would not have done so.
Only a week later, on August 7, Sierra was back in the hospital with severe injuries. In medical records from Redbud Hospital, Dr. David Racker reported that Sierra had suffered a fractured humerus, fractures of ribs 6 through 9, significant collapse of her left lung, and “[b]ilateral probable subdural fluid collections not having a typical appearance for acute hemorrhage but developing since the earlier study of 07 July 01.” A scan of Sierra’s head showed an area of shrinking or dead tissue that was “distinctly unusual for a 2 month old patient but appear to have developed largely since the exam of one month ago.” She was transferred to Oakland Children’s Hospital.
Lake County Sheriff’s Department reports related that Dr. James Crawford, of Oakland Children’s Hospital, was not convinced Sierra’s old injuries were caused by infection. He characterized Sierra’s injuries as “ ‘a horrific level of skeletal trauma’ ” that he felt was caused by child abuse and described Sierra as a “ ‘neurological devastated child’ with a brain that looked like ‘Swiss cheese.’ ” Dr. Crawford was suspicious of Rochelle’s explanation that Sierra was injured when Rochelle had an epileptic seizure, dropped the baby, and fell on top of her, finding it unusual that Rochelle appeared “ ‘completely neurologically awake’ ” after having had a seizure. Rochelle had said she was taking her seizure medication when the accident occurred, but reportedly there were no signs of medication in her blood. Crawford believed the injuries were caused by “ ‘really dramatic, violent forces similar to a horrific car crash or a violent squeezing and grabbing,’ ” consistent with a severe form of child abuse and not consistent with Rochelle’s explanation. Among the 18 new and old fractures Crawford found were two old ones on Sierra’s ankles. Anthony said he must have caused these when he grabbed the baby’s ankles, held her upside down and shook her in an incident when she was bathing and began to choke on milk. Crawford said this would not have caused the type of fractures Sierra sustained, which were “ ‘classic shaken baby fractures.’ ” When he explained to the parents that sometimes someone snaps and hurts a baby without meaning to, Anthony, crying, responded, “ ‘Yeah, but the cops don’t care if that’s why something happened.’ ” Crawford also stated that Dr. Poulain, who treated Sierra at UCSF, had told him the UCSF neurologist believed Sierra’s MRI was conclusive for an infection but the Infectious Disease Department disagreed, having found no evidence of an infection after multiple “aggressive” studies. Sierra had been treated for an infection and released from UCSF on July 31 “completely well.”
Rochelle testified that the injuries Sierra sustained in August 2001 occurred when she had a seizure and Sierra got stuck between the waterbed mattress and frame; that Sierra did not have shaken baby syndrome; and that Anthony did not hurt Sierra “while he was in an uncontrolled emotional state” or by handling her inappropriately. Rochelle disagreed with Dr. Crawford’s assessment that her description of what happened the night Sierra was injured was not consistent with the baby’s injuries.
Asked about the report of Anthony’s statements to the doctor concerning Sierra’s ankle fractures, Rochelle believed the doctors had “mixed up the information that they received from Anthony.” Rochelle said Anthony held the baby face down toward the floor, with one hand under her chest and the other, higher, holding her ankles, but did not shake her. She remembered the doctor talking about shaken baby fractures happening when the aggressor did not mean to hurt the baby but stated that to her knowledge Anthony did not make the statement attributed to him about the police not caring why something happened.
Anthony testified that, when Sierra spit up her formula, he “flipped her around with her ankles below her head not above her head just to make sure the milk got out of her using gravity alone,” and did not hit or shake her. He did not believe Sierra ever had fractured ankles, and stated that the medical records showed no doctor other than Crawford ever made such a finding. He acknowledged that he probably made a statement along the lines of what Crawford reported, saying, “I was probably pretending, just how this case happened there was no actual investigation. They don’t care how anything happens. They are just going to go through their system with it truthful or nontruthful, factual or nonfactual, evidence or nonevidence. It wasn’t of any guilt.” Anthony felt the police “had their minds made up of what happened. That’s pretty much why I think they pulled us out of visiting with our daughter when we didn’t know if she was going to live or not. They interrogated us for three and a half hours. We were basically denied to be with her at those critical points in time.” He believed the doctors, too, made up their minds about what happened based on Sierra’s injuries before asking the parents about the incident.
Rochelle had suffered from seizure disorder all her life. She believed marijuana was more effective at controlling her seizures than the Depakote she was taking the night Sierra was injured. She was aware the blood tests did not find Depakote in her system that night and suggested this could have been because she threw up during the seizure. At the time of the hearing, she was using only marijuana because the anti-seizure medications were causing her to have different types of seizures. She had been taken off a prescription medication during her pregnancy with Laci because it causes birth defects. She had a medical marijuana card that was prescribed for vomiting during her pregnancy and for seizure disorder and, pursuant to her doctor’s recommendation, had used only marijuana to control her seizures during her pregnancies with Laci and Ty. She had used a different prescription seizure medication briefly in February 2008, but stopped after only about four days because it caused her to have seizures and other side effects. Rochelle testified that, although she had seizures while smoking marijuana, they were not as violent and she would see flashing lights within about 15 minutes before the onset of a seizure, a warning sign she did not get while taking traditional seizure medication. She also did not suffer multiple side effects that she had when taking traditional medication. She testified that she smoked about half a joint of marijuana each morning and another half each evening, but estimated that she used a total of about four joints a week.
Rochelle’s medical records reflected that she used medical marijuana and not anti-seizure medication during her pregnancies and did not have seizures during the pregnancies, was started on Tegretol on January 16, 2008, “at the behest of Child Protective Services,” had seizures within four days of beginning the medication, including a “large” one in which she fell in the shower, and stopped taking the medication, pursuant to medical advice, on January 26, 2008.
Rochelle testified that she would protect her children from being harmed while she had a seizure by putting them down in a safe place and that Anthony helped her by taking the children away from her during a seizure and calling 911 for her. At the time Laci and Ty were detained, Rochelle and her family were living in a house with Gary S. and Cherie H., both of whom were also aware of Rochelle’s medical condition and able to help her. Since the detention, however, Rochelle and Anthony were not living with friends or relatives.
With respect to Rochelle’s drug use, the jurisdictional report related that on Sierra’s July 31, 2001 hospital discharge, Dr. Poulain reported Rochelle had a history of grand mal seizures “ ‘well controlled by Depakote.’ ” In a January 4, 2008 interview, Rochelle’s physician, Dr. Shepherd, stated he would require Rochelle to resume taking the prescription seizure medication she had stopped taking while she was pregnant; on the same date Rochelle told the social worker she was self-medicating with marijuana because she believed she had more control over her epileptic condition this way. Rochelle told the social worker that she and Anthony both had current medical marijuana cards. When the social worker told Rochelle it was detrimental to Ty for her to be smoking marijuana when she was breastfeeding and supplying the Department with frozen breast milk, she began to cry and asked, “ ‘Do you want me to have a seizure?’ ” Anthony told the social worker that he and Rochelle had been smoking marijuana for a long time without negative effects and he “would ‘bet’ ” the social workers could not tell that they had been high during their visit with the children. The report noted that Anthony had accepted a prescription for marijuana in August 2004 and registered to grow cannabis for personal medical use despite the fact that the terms of his probation from the section 273a conviction required that he not possess or use marijuana. Social worker Melinda Lahr testified that the Department does not condone marijuana use under any circumstances, including medicinal use with a physician’s prescription.
Since Sierra’s dependency proceedings, Rochelle had taken classes in parenting, anger management and early childhood education, and she had become CPR certified for adults and infants. She visited Sierra at her grandparents’ home at least five times a week. Rochelle was employed working with disabled adults. Rochelle testified that Anthony also took the anger management and parenting classes, and was currently enrolled in a class relating to domestic violence that was required for his probation. He had previously tried to sign up for the class he was directed to take but found it was not offered in Lake County; the current class was an alternative approved by probation. She testified that Anthony used marijuana for pain, that she knew this violated a condition of his probation but that he had a prescription for it, they had both talked to his probation officer about it and the probation officer had indicated Anthony’s marijuana use would not be a violation of his probation because of the medical prescription.
Rochelle testified that Anthony accepted the plea deal in order to save her from being prosecuted, although neither of them had done anything wrong. She stated she would “absolutely not” try to help Anthony cover it up if he had hurt the baby. Rochelle felt Laci and Ty were completely safe with Anthony and she would have no reservation about leaving them alone with him. She testified that Anthony was able to control his anger and was patient, and she had many times seen him able to handle an extremely stressful situation calmly. This was not the case when the children were detained but, Rochelle commented, “If you have kids and your kids get taken away for no reason, aren’t you going to cry and show emotions?”
Anthony testified that he had a medical marijuana card for relief of pain and severe migraines after a workplace accident in 2003. His first medical marijuana prescription was in 2005, after other medications failed to work for him; medical marijuana made him “feel like a regular person” and allowed him to function.
Anthony testified that he was completely innocent of hurting Sierra. He explained that he entered his guilty plea under the assumption that a plea under People v. West did not mean he was guilty, that Judge Herrick had told him he was not pleading guilty to “any specifics of the crime” but only getting the case “over with,” and that he entered the plea because he was under duress and facing 18 years in prison. He tried to withdraw the plea shortly after entering it, when he learned he had pleaded guilty to a crime he did not commit. Anthony testified that he did not know why he was not permitted to withdraw his plea and that the judge stated, at sentencing, that there was no evidence in the case. He testified that neither Laci nor Ty was in any danger in his or Rochelle’s care.
In November 2004, revocation of Anthony’s probation was sought based on his having committed misdemeanor driving under the influence (Veh. Code, § 23152, subd. (a)) in September 2004, and having tested positive for marijuana on that occasion and another in October 2004. Probation was reinstated on February 3, 2006. Anthony testified that the attempt to revoke his probation was dropped because he had a medical marijuana card, that he had been told his card allowed him to use marijuana because it was prescribed by a doctor; that he had tested regularly, his tests were positive for THC, and his probation officer raised no problem; and that his new probation officer had told him his file reflected the renewals of his medical marijuana card and “your 215 sticks, because the doctor prescribed it to you.” The new probation officer, however, testified that the terms of Anthony’s probation required him to refrain from all use of controlled substances, without an exception for medical marijuana, she had explained this to him, and he had said he would stop using marijuana in order to regain custody of his children. She stated that probation records indicated that Anthony had told his probation officer in 2004 that he did not realize he was not permitted to use marijuana and would stop. The probation officer testified that there were two categories of probation conditions, one prohibiting all marijuana use and the other allowing use pursuant to a medical marijuana card, and that Anthony’s condition was of the first type, but she did not know when Lake County had adopted use of the two separate conditions.
The incident underlying the 2006 TRO occurred on February 28, 2006. The report of the police officer who responded to Kathy P.’s home states that Kathy was crying and unable to respond to questions and her neighbor reported Kathy having said that Anthony threw her into a table. The neighbor apparently supplied an incorrect last name for Anthony. According to the police report, Rochelle came to the police department on March 2 and reported that she and her boyfriend had been staying at her mother’s house, her mother “attacked” her during a verbal argument, and Anthony pushed her mother off her because Rochelle was pregnant and he was afraid Kathy would kill the baby. Repeated attempts to contact Kathy had been unsuccessful and it appeared none of the parties wanted prosecution on the matter.
Kathy P. filed a request for a TRO on March 20, 2006, stating that she and Anthony had gotten into a verbal disagreement because she asked him to stop smoking marijuana at her house; he shoved her, she hit him back, he shoved her into the closet doors. Kathy came to and heard Rochelle saying “get out or my mom will call the cops on you.” Anthony left, Kathy’s neighbor called the police and Kathy was taken to the hospital by ambulance. She had bruising on her right wrist and upper shoulder, lumps on her head and a bruise on her back. The TRO was granted on March 20, and a hearing set for April 3. Neither party appeared for the hearing, however, and the judge ordered the TRO dissolved and the matter dropped from calendar.
At the outset of the jurisdiction hearing on February 8, 2008, Anthony’s attorney offered a notarized typewritten statement by Kathy P. dated January 17, 2008, in which she stated that she did not recall signing a restraining order against Anthony regarding the 2006 incident, but remembered Anthony and Rochelle had been staying with her and she was “not myself... due to me being put on several new meds for my medical disorder (bi-polar disorder).” According to the statement, Kathy got angry when Anthony and Rochelle said they could not give her a ride to a medical appointment and Rochelle shut the door to the bedroom and “I wound up pushing my pregnant daughter into the closet doors that are located in the hallway of my apartment. Anthony said what are you doing Kathy your daughter is pregnant Anthony pushed me off my daughter I tripped over the chair I had in my living room and hurt myself on the door frame of my apartment.” The statement continued that Anthony and Rochelle asked if Kathy wanted to go to the hospital and she told them to get out of the house, reiterated that she did not recall signing a restraining order, and concluded, “I honestly believe Anthony was protecting his girlfriend and his unborn child. I honestly believe Rochelle and Anthony are loving and caring providers for all three of their children.”
Later in the jurisdiction hearing, Kathy P. testified that she had never lied to a court or signed a document that was untruthful under penalty of perjury. She testified that at the time she wrote the January 17, 2008 letter, she was off her medications and had no idea what she was doing. Kathy testified, “If I’m not [sic] off my Paxil, I flip out.” Even when taking the Paxil, she sometimes became angry or confused, but it was worse when she did not take the medication. Kathy testified that Rochelle typed the letter for her and she glanced at it but could not make it out, so she “just signed it.” She testified that she typically did not read things before signing them, stating, “[b]ecause I can’t comprehend when it’s reading, but in my mind I do. But it’s totally different when I read it.” Kathy stated that she knew how to read “[s]omewhat.” Shown the letter at the hearing, Kathy did not recall signing it or having seen it before, and did not know whether the document she was shown in court looked like what she had signed.
The medications she was supposed to be taking included Paxil, for bipolar disorder and Attention Deficit Hyperactivity Disorder, Vicodin for pain from chronic nerve damage, and medications for seizures, excess water fat, cramps, high cholesterol, thyroid, heartburn, asthma, and stomach relief.
Kathy testified that the February 28 incident was her fault because she started the physical fight: Angry that Anthony was smoking marijuana in the bedroom, she kicked open the bedroom door and pushed Rochelle, then Anthony pushed Kathy, telling her to stop because Rochelle was pregnant; Kathy lost her footing, then tried to hit Anthony, he pushed her again and she fell into the desk. Kathy stated that she was unstable on her legs due to nerve problems, so “anybody could push me and I’ll fall,” that she had never seen Anthony have outbursts of anger, and that he was angry on this occasion because she pushed Rochelle and kept pushing him. She said Anthony was trying to protect Rochelle. Kathy testified that she got the restraining order because she did not like Anthony pushing her, even though it was her fault, and she did not like his smoking pot and saying things that offended her. The day she had the TRO request filed she was “kind of” afraid of Anthony and said she was abused, but the next day she “dropped” the restraining order because she knew the incident was her fault. Nothing in the restraining order request was false. Kathy testified that she had no fear that Anthony or Rochelle would injure their children.
Rochelle’s description of the incident tracked that of the January 17 statement: Kathy was angry about the ride to the medical appointment and pushed Rochelle into the closet doors in the hallway; Anthony grabbed Kathy to protect Rochelle and the unborn baby; Kathy pushed Anthony and he pushed back; and Kathy tripped over a chair and hit her head against a stud. Kathy declined going to the hospital and told them to leave the house. Rochelle testified that she and Anthony went from Kathy’s house to the police station to make a report; she insisted that the police report indicating she was at the station on March 2 was wrong. Asked about the police report reflecting an incorrect last name and birth date for Anthony, Rochelle said that the name was given to the police by Kathy’s neighbor. Rochelle knew Anthony had already been through a probation revocation hearing and might be sent to prison if he had another violation; she testified that they told the police about the felony probation and denied that she would lie to keep Anthony out of prison.
Rochelle testified that she typed the January 17, 2008 letter on Kathy’s computer, with Kathy’s wording, then went with Kathy to have it notarized. Kathy had testified that she did not have an “apparatus” at her home that could “generate a document like this and print it.” Asked why she had her mother write this letter, Rochelle explained, “Just to basically cover her butt because she filed a temporary restraining order, and basically she wanted to tell the truth about what happened that day, and she didn’t know how to go about doing that and didn’t know she was going to be subpoenaed in the courtroom for that issue, so we wrote that letter, basically to prove—a character reference letter I guess you would call it.” Kathy brought up the subject because she was “worried about having a false report” and “wanted the truth to come out.” Rochelle testified, “It wasn’t to cover my butt. It wasn’t to cover Anthony’s butt. It was to cover her own butt for making a false report....”
Several witnesses testified at the jurisdictional hearing about Anthony’s conduct around the time Laci and Ty were detained. Social worker Susan Harrison testified that she first met with the parents on January 4, with Rochelle at the hospital after Ty’s birth and with Anthony at home with Laci. Harrison did not know the basis of the referral to the Department; as far as she knew, there had been no reports of problems with the family in the preceding 18 months. Anthony was “pretty angry” and “very eager” to explain the past history of Sierra’s injuries, ranting for about 20 minutes, saying he had done nothing and becoming increasingly agitated.
On January 14, after the Department had been investigating the case and trying to locate the family, Harrison spoke with Anthony by telephone. He was “furious” and “hostile,” asking why CPS was involved and saying that if they detained the children again “that Rochelle couldn’t handle it and that her life would be in danger” and she would leave him. The conversation ended with him crying and saying he would not let CPS take the children. Unlike most parents, who would be upset but generally wanted to do what they needed to do to work with CPS, Anthony’s anger was “completely off the map and explosive.”
On January 15, the parents and other relatives brought the children to the office. Initially Anthony was talking “nonstop,” seemingly trying to persuade Harrison to give the children to one of the relatives, but when it became clear Harrison was going to detain the children, he became very agitated and angry. Harrison was concerned about returning the children to Anthony because she did not feel he could control his emotions around them. She acknowledged that she had seen no sign of physical abuse with Laci or Ty, that Rochelle was appropriate and affectionate with Ty, that Anthony acted appropriately with the children, and that Laci seemed attached to him.
Sara Buske, Harrison’s supervisor, joined the meeting because Anthony’s behavior “had gotten a little explosive and out of control.” Anthony had been yelling in the lobby about feeling the detention was unfair and wanting to sue the Department; he yelled at Buske, very agitated, and pointed his finger repeatedly at her. Buske testified that Anthony’s reaction was “beyond what we normally see” in parents whose children are detained. She felt Anthony was attempting to manipulate her by alternating between anger and attempting to evoke empathy by crying, and commented that his behavior was similar to what she had seen in men who had been involved in domestic violence relationships. Laci did not seem at all phased by her father’s display of emotion.
CPS officer John Griffith heard loud voices from the room where the family was meeting with Department workers and observed as Anthony “stormed” out of the room, crying loudly, “slammed” out the building, and paced “frantically” in the parking lot. Griffith prepared himself to clear the lobby and lock off access to the rest of the building, but did not do so because Anthony seemed calmer when he returned, although still noticeably crying and upset. Griffith had not previously seen anyone at the office upset at “even close to that level,” and had never before been close to clearing the lobby and locking the security door.
Gary Shawl, a friend of Anthony’s family, testified that Anthony had lived with him for at least 11 years, and Rochelle for about seven years, including the time they had their children with them. He had never seen Anthony lose his temper around the children or seen either parent abuse the children. He described Anthony as an “excellent” father and noted that Laci was “really happy” and Anthony was “probably one of her favorites.” Rochelle treated Laci “[j]ust excellent, like a mom should treat a kid” and had a good relationship with her.
Cherie Hammack, who lived with Shawl, testified that she thought Anthony and Rochelle were very good parents and very protective of their children, not allowing Cherie to babysit until they observed her with the children even though they had known her for a long time. She had never seen Anthony be abusive toward the children or lose his temper with them.
The record includes many letters attesting to Rochelle and Anthony’s character, reliability, responsibility and loving care of their children from medical professionals, Laci’s daycare providers, employers and customers, friends and relatives.
On May 19, 2008, the Department filed a supplement to the jurisdiction report stating that Laci and Ty, who had been placed with their great-grandparents on March 11, had been returned to their previous foster home after the great-grandparents requested they be moved because their presence in the home was having a negative effect on Sierra. The report also described a number of concerns: The parents refused to participate in substance abuse treatment and parenting classes or submit to drug testing and remained “uncooperative and contentious with Department staff”; and problems occurred at several visits, including the parents arguing “continually” in front of the children, the parents asking Laci, when she went to a CPS worker for comfort during a visit, “How could you do this to us?”, Rochelle responding to Laci’s attempt to bite her by telling the child she would “pop you in the mouth” if she bit her, and Rochelle slapping Laci’s hand when the child grabbed the dog by its fur. The report also expressed concern about the parents’ and other relatives’ hostility toward the Department and how this would affect a “ ‘family’ placement.”
On the last day of the jurisdiction hearing, June 11, 2008, county counsel argued that the Department did not feel Laci and Ty were safe with their parents because of the nature of the injuries Sierra had suffered and facts that the parents had not taken responsibility for those injuries and believed Dr. Crawford was wrong to reject their explanation of how they occurred, and that Anthony had not acknowledged his anger issues or made any effort to treat them. Counsel argued that the January 2008 letter from Kathy P. was clearly fabricated and the parents’ willingness to engage in such fabrication contributed to the Department’s belief that the children were not safe with them. The Department acknowledged there were no signs of physical or emotional abuse of Laci or Ty.
The court stated it agreed Sierra had been abused, but questioned what current risk there was to Laci and Ty. On the other hand, the court expressed concerns about Rochelle’s marijuana use and seizures, and about Anthony’s ability to control his emotions.
Anthony’s attorney referred the court to the transcript of the sentencing hearing in the criminal case, in which Judge Herrick, who had presided over Sierra’s dependency proceedings as well as the criminal case, expressed that he was not convinced Anthony had intentionally injured Sierra, and gave him probation because of his doubts about what happened. Counsel argued there was no evidence of any problem in parenting Laci and Ty and substantial evidence to the contrary, and urged that the Department was relying on post-hoc justifications for removing the children from the parents’ custody, pointing out that the children were removed before the parents refused to accept responsibility for Sierra’s injuries and the Department was attempting to use Anthony’s anger after the children were detained as a justification for detaining them. Counsel portrayed the Department’s use of the TRO incident as a “desperate attempt” to portray Anthony as a violent person.
Rochelle’s attorney argued Kathy was not a credible witness, given her disjointed testimony, memory lapses, and the multitude of medications she was taking; that there was no evidence all of Sierra’s injuries were caused by Anthony and not by the brain infection, and Judge Herrick was not convinced about how Sierra was injured; and that there had been no problems with the parents’ care of Laci, teachers and health professionals who knew the family thought the parents were doing well with Laci, both parents had taken parenting and anger management classes, and Rochelle was under medical treatment for her seizures. Counsel noted that Rochelle’s 2008 seizure, which the court had asked about, occurred while she was taking prescription anti-seizure medication. Counsel also argued the Department was taking inconsistent positions, contending that Anthony was responsible for Sierra’s injuries, but also contending Rochelle presented a risk to the children because her seizure caused the injuries.
Counsel for the children was convinced Anthony was responsible for Sierra’s injuries, but questioned whether there was evidence of a substantial risk to the younger children, although he was worried about the future because of the extreme harm to Sierra and absence of change since then.
The court observed that Anthony’s behavior in court “fit the pattern” the Department alleged to pose a risk: On the first day in court he was “inconsolable and basically out of control,” then he was “totally calm” until “just a few minutes ago.”
The court found not true the allegation that the children were at risk due to Anthony’s marijuana use, but otherwise sustained the petition. It modified the allegations under section 300, subdivision (a), to state that Anthony pled guilty to willful harm to a child and the injuries were caused nonaccidentally by at least one of the parents while in the parents’ joint care. Regarding the allegation that Sierra was injured while the parents were living together and Rochelle supported Anthony’s explanation denying culpability, the court found that the injuries were caused intentionally (recognizing that a parent could take intentional action not knowing how harmful it could be) and neither parent had adequately explained how the injuries occurred. The court modified the allegations under section 300, subdivision (j), to state that one of the parents (rather than just Anthony) severely physically abused Sierra and that both parents (rather than just Rochelle) failed to protect Sierra from injury.
Having found jurisdiction, and stating that because of medical problems he might not be available for disposition, Judge Lechowick “strongly urge[d]” the Department to establish a family maintenance plan as soon as possible, subject to the conditions that Rochelle supply the Department with a medical update concerning her treatment and medication, and that Anthony obtain a psychological evaluation before being in the home with the children. Noting that the latter condition would take longer to satisfy, the court stated it hoped the case could be moved to family maintenance “relatively quickly” with respect to Rochelle. Disposition was set for June 23, just less than two weeks ahead.
The Department’s disposition report, filed on June 27, 2008, recommended that the children remain in out-of-home placement with reunification services to the parents. The report noted that the parents had refused to accept a voluntary case plan in January 2008, and had refused to sign reunification case plans presented to them in February and June. It stated that Rochelle had acted appropriately during most of her visits with the children, but both parents admitted they used controlled substances prior to the visits. Anthony had become “increasingly hostile” in contacts with the Department, often confronted CPS staff in front of the children, and had begun to direct anger at Rochelle and the children. At a June 2 visit, Anthony became angry when Laci would not allow him to change her diaper and, despite efforts from Rochelle and an aide to calm him, he kicked Rochelle in the leg. Both parents’ drug tests in January through March were positive for THC and both refused further drug testing. Anthony’s psychological evaluation was scheduled for July 7, 2008. Stating that the parents had not yet complied with the court’s June 11 conditions for family maintenance, the Department recommended out-of-home placement and reunification services pending completion of the conditions and the Department’s review.
The disposition hearing was held on June 30, 2008, before Judge Freeborn. Rochelle’s attorney argued that the recommendation for reunification in the face of Judge Lechowick’s clear statements about family maintenance “reinforces some of the mistrust that the parents have towards CPS,” and that Rochelle had provided her medical records. Anthony’s attorney agreed and urged that Judge Lechowick had wanted the children placed with Rochelle pending Anthony’s psychological evaluation. Counsel for the children agreed that Judge Lechowick wanted family maintenance and noted that with the parents resentful of the situation and the Department maintaining it only wanted an obvious danger addressed, a case where there should not be a problem with the parents reunifying “seems like it’s jumping the rails.” Counsel for the Department argued that the parents had not discussed with the Department where Anthony was going to live if the children were returned to Rochelle. Rochelle’s and the Department’s attorneys disagreed about whether Rochelle had supplied the medical information Judge Lechowick had wanted as a condition to family maintenance, and whether his condition included Rochelle having a new EEG performed. Judge Freeborn concluded the case should be continued with present orders in effect until September, when it was hoped Judge Lechowick would be able to conclude it, over the objections of the parents’ attorneys that putting the case over so long was tantamount to ordering reunification rather than family maintenance. Judge Freeborn then signed the disposition orders prepared by the Department, which declared Laci and Ty dependent children, removed them from parental custody pending compliance with the conditions set forth on June 11, transferred the case to family reunification pending compliance with those conditions and at that time to be transferred to family maintenance, and continued the matter to September 15, 2008, for a six-month review hearing.
On August 15, 2008, county counsel filed a request for Judge Lechowick to sign proposed Jurisdiction Findings and Orders regarding the June 11 jurisdiction hearing. The Findings and Orders were subsequently signed by the judge and filed on September 3, 2008.
On August 18, 2008, Rochelle filed a timely notice of appeal from the detention, jurisdiction and disposition orders.
DISCUSSION
I.
Rochelle argues that the juvenile court erroneously permitted the Department to relitigate Sierra’s case, and made findings regarding the cause of Sierra’s injuries, in violation of the doctrine of res judicata. Asking how many times she and Anthony “were... supposed to defend Sierra’s injuries before they could stop being stigmatized in their parenting of subsequent children,” she cites Roos v. Red (2005) 130 Cal.App.4th 870, 879, for the principle that “ ‘[p]ublic policy and the interest of litigants alike require that there be an end to litigation.’ ”
“ ‘The doctrine of res judicata rests upon the ground that the party to be affected, or some other with whom he is in privity, has litigated, or had an opportunity to litigate the same matter in a former action in a court of competent jurisdiction, and should not be permitted to litigate it again to the harassment and vexation of his opponent....’ (Citizens for Open Access Etc. Tide, Inc. v. Seadrift Assn. (1998) 60 Cal.App.4th 1053, 1065.) The doctrine precludes parties or their privies from relitigating a cause of action that has been finally determined by a court of competent jurisdiction.” (Roos v. Red, supra, 130 Cal.App.4th at p. 879.) Under the principle of collateral estoppel, the doctrine also precludes “a party to prior litigation from redisputing issues therein decided against him, even when those issues bear on different claims raised in a later case.... [¶] Collateral estoppel applies when (1) the party against whom the plea is raised was a party or was in privity with a party to the prior adjudication, (2) there was a final judgment on the merits in the prior action and (3) the issue necessarily decided in the prior adjudication is identical to the one that is sought to be relitigated. (Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1201.)” (Roos v. Red, at p. 879.)
Here, neither res judicata nor collateral estoppel arises from Sierra’s dependency proceedings because those proceedings resulted in no final judgment adjudicating any issue: The case was dismissed, and dependency terminated, before the conclusion of the jurisdiction hearing, when the great-grandparents assumed guardianship. There was no impediment to the trial court considering evidence related to Sierra’s injuries for its relevance to the question of risk posed to Laci and Ty.
The criminal prosecution concluded with Anthony’s guilty plea, which necessarily constituted an admission of every element of the offense. (People v. Hoffard (1995) 10 Cal.4th 1170, 1177-1078.) Rochelle asserts that relitigation of Sierra’s case undermined the plea, arguing that People v. West “allowed [Anthony] to plead ‘nolo contendere’ to the charges and had the ‘legal effect of a guilty plea, but the plea could not be used against the defendant as an admission in any civil suit based upon or growing out of the act upon which the criminal prosecution is based.’ (People v. West, supra, 3 Cal.3d 595, 601.)” The language quoted (inaccurately) from West was, in West, quoted from Penal Code section 1016, which at that time provided, as to a plea of “nolo contendere,” “that ‘[t]he legal effect of such plea shall be the same as that of a plea of guilty, but the plea may not be used against the defendant as an admission in any civil suit based upon or growing out of the act upon which the criminal prosecution is based.’ ” (People v. West, supra, 3 Cal.3d at p. 601.) Penal Code section 1016 was amended in 1982 to make the limitation in use of a plea of nolo contendere applicable only to offenses not punishable as felonies: “The legal effect of such a plea, to a crime punishable as a felony, shall be the same as that of a plea of guilty for all purposes. In cases other than those punishable as felonies, the plea and any admissions required by the court during any inquiry it makes as to the voluntariness of, and factual basis for, the plea may not be used against the defendant as an admission in any civil suit based upon or growing out of the act upon which the criminal prosecution is based.” (Stats. 1982, ch. 390, § 3, p. 1725.)
Rochelle, in her reply brief, suggests that “respondent apparently agrees that father was advised that as a result of the plea ‘he would not be treated as if he was admitting each and every element of the crime of child endangerment.’ ” Respondent’s full statement was as follows: “Accordingly, there is no reason why Father’ guilty plea, entered after the Juvenile Dependency proceedings regarding Sierra had been dismissed, and entered after Father was advised that his plea even under People v. West, would not be treated as if he was admitting each and every element of the crime of child endangerment. As a result, Father’s prior admission of guilt to the devastating injuries suffered by Sierra were very relevant to the present safety of Ty and Laci. Equally relevant was the parents’ present state of mind as to the prior injuries and guilty plea.” It is apparent that something is either misstated or missing from the first sentence quoted, which simply does not make sense as written. The statement follows respondent’s quotation from the transcript of the plea hearing, in which the court told Anthony, “The cases say that if you plead guilty, whether or not you plead guilty under People v. West, it has the same operative effect either way; and that operative effect is that you are in effect admitting each of the elements of the crime, admitting that each of the elements of the crime are true. [¶] Under People v. West, you’re not required to actually do that, to tell me what happened or to even tell me that the charges are true or the charge is true but it will be treated as though you did that basically.” It is apparent that respondent’s argument is exactly the opposite of Rochelle’s characterization; respondent’s point is that Anthony was advised he would be treated as if he was admitting each of the elements of the offense. The transcript of the plea hearing reflects that the court also explained to Anthony that the offense defined in Penal Code section 273a could be committed in alternative ways and Anthony’s guilty plea meant he was “in effect admitting that at least one of the alternative forms of conduct is true.”
Aside from the fact that the limitation Rochelle suggests does not apply to a felony conviction, Anthony’s plea was “guilty” not “nolo contendere.” “ ‘A plea of guilty is admissible in a subsequent civil action on the independent ground that it is an admission.’ ” (Pease v. Pease (1988) 201 Cal.App.3d 29, 33, quoting Teitelbaum Furs, Inc. v. Dominion Ins. Co., Ltd. (1962) 58 Cal.2d 601, 605-606.) A guilty plea does not have collateral estoppel effect in a subsequent civil action, however, because a guilty plea does not involve full litigation of the issues. (Ibid.)
There was nothing to prevent the juvenile court from viewing Anthony’s guilty plea as establishing that he willfully injured Sierra. Nor was the court precluded from considering evidence of the extent and cause of Sierra’s injuries. Rochelle complains that relitigation of Sierra’s case permitted the Department to establish “risk” based on the fact that presently the parents “could no more explain the injuries to Sierra than they could in 2001.” But the issue in the present proceedings was not that the parents could not explain Sierra’s injuries; it was that those injuries were inflicted nonaccidentally and the parents refused to accept responsibility for them.
II.
Rochelle argues the evidence was insufficient to support the juvenile court’s detention, jurisdiction and disposition orders. Her fundamental position is that there was no proof of risk to Laci and Ty, as to whom there was no evidence of any kind of abuse. Rochelle argues there was no nexus between the events in 2001 and the current situation of Laci and Ty. She stresses that even the judge who presided over Sierra’s dependency proceedings and the criminal case was not convinced about how Sierra was injured and felt the parents’ explanation was as plausible as the explanation that the baby was abused. She urges that there was no evidence to support the court’s conclusion that she might have intentionally injured Sierra, or that her seizures and marijuana use posed any risk to Laci and Ty. As for the other evidence of Anthony’s alleged emotional volatility, Rochelle urges that Kathy P. abandoned the TRO because she was at fault, that Anthony’s distraught state when Laci and Ty were detained was understandable, that there was no evidence Anthony had ever reacted to the children in anger, and that numerous witnesses attested to the parents good care of the two younger children.
At the detention hearing, the court “shall order the release of the child from custody unless a prima facie showing has been made that the child comes within Section 300, the court finds that continuance in the parent’s or guardian’s home is contrary to the child’s welfare, and any of the following circumstances exist: [¶] (1) There is a substantial danger to the physical health of the child or the child is suffering severe emotional damage, and there are no reasonable means by which the child’s physical or emotional health may be protected without removing the child from the parent’s or guardian’s physical custody....” (§ 319, subd. (b)(1).) The court is also required to determine “whether reasonable efforts were made to prevent or eliminate the need for removal of the child from his or her home, pursuant to subdivision (b) of Section 306, and whether there are available services that would prevent the need for further detention.” (§ 319, subd. (d)(1).)
Rochelle urges that the detention here was based on “unsubstantiated suppositions” regarding Sierra’s dismissed dependency case, “unfounded suppositions” about Rochelle’s marijuana use, and the dismissed TRO from before Laci or Ty’s birth. The most significant factor, of course, was the degree of Sierra’s injuries. Rochelle’s position centers on the assumption that she and Anthony were in no way at fault for those injuries and, therefore, that they presented no risk to their younger children. The court, however, was faced with the information that Sierra had been grievously injured, non-accidentally, while in the parents’ care, that Kathy P. had obtained a TRO against Anthony, that there were questions about the treatment of Rochelle’s medical issues, which might have played a role in Sierra’s injuries, and that the parents were moving out of a home in which other adults were present to one where they would be alone with the children. This information amply supported the court’s conclusion that a prima facie case had been made.
To establish jurisdiction, the juvenile court must find by a preponderance of the evidence that the child is a person described by section 300. (§ 355, subd. (a).) “We review the juvenile court’s jurisdictional findings for sufficiency of the evidence. (In re Heather A. (1996) 52 Cal.App.4th 183, 193; In re Kristin H. (1996) 46 Cal.App.4th 1635, 1649.) We review the record to determine whether there is any substantial evidence to support the juvenile court’s conclusions, and we resolve all conflicts and make all reasonable inferences from the evidence to uphold the court’s orders, if possible. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393.)” (In re David M. (2005) 134 Cal.App.4th 822, 828.)
Rochelle argues that Anthony’s guilty plea, without more, did not prove a substantial risk to Laci and Ty. One prong of this argument is that there was no proof Anthony (or Rochelle) in fact intentionally injured Sierra. As stated above, Rochelle relies heavily on the fact that Judge Herrick, after hearing evidence in Sierra’s dependency proceedings and accepting Anthony’s guilty plea in the criminal case, harbored serious doubts about what happened to Sierra. The record of Anthony’s sentencing hearing reflects that Judge Herrick was not completely convinced Sierra’s injuries were inflicted intentionally rather than accidentally. Judge Herrick accepted that the injuries occurred during Rochelle’s seizure, stating he did not know of any other opportunity for them to have occurred, and expressed that he found this explanation “at least as plausible” as deliberate injury because he found it difficult to conceive of the scenario under which the parents intentionally inflicted the injuries. The transcript of Judge Herrick’s remarks, as well as all the evidence contained in the medical records and testimony from the earlier dependency proceedings, was before the court in the present case. Plainly there was substantial evidence to support the court’s conclusion that Sierra’s injuries were not inflicted accidentally.
Considering sentencing options, Judge Herrick explained: “For me to sentence [Anthony] to state prison at his age and with his minimal history, criminal history, I need to be comfortable in my own mind with the concept of what he did; and I’m not, and I’m not sure that I ever will be.” “And I’ve thought many, many, many times as I’ve thought about this case in my own mind what did [Anthony] do to this child, and I cannot—based upon everything I’ve heard and everything I’ve read and everything I’ve seen, I can’t picture that. It’s just not possible for me to reconstruct the kind of heinous crime that on the surface is presented in this case at his hands. I mean, what did he do to this child to cause all of those injuries? [¶] I can imagine based upon the testimony of the expert that a lot of these injuries might have been caused as contended by both [Rochelle] and [Anthony], if that happened. Clearly these injuries, at least—I don’t know of any other opportunity for these injuries to have occurred except at that instant of time when everything hit the fan that morning—that night. [¶] So I know from the testimony of an independent witness that [Rochelle] was on the floor having a convulsion and that [Anthony] was somewhat panic stricken. [¶] So I go back ten minutes in time, 15 minutes in time, and try to picture in my mind these two parents torturing this child or more specifically [Anthony] torturing this child, unbelievably torturing this child; and I just can’t—I just—I can’t play the movie in my head as they say. It just doesn’t come to me. [¶] And it needs to come to me, I think, given the fact that [Anthony] is otherwise is a suitable candidate for probation in my view.”
The second, and critical, prong of Rochelle’s argument is that Sierra’s case does not prove a substantial risk to Laci and Ty years later. “ ‘While evidence of past conduct may be probative of current conditions, the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm. [Citations.]’ (In re Rocco M. [(1991)] 1 Cal.App.4th [814,] 824.) ‘[P]revious acts of neglect, standing alone, do not establish a substantial risk of harm; there must be some reason beyond mere speculation to believe they will reoccur. [Citations.]’ (In re Ricardo L. (2003) 109 Cal.App.4th 552, 565.)” (In re David M., supra, 134 Cal.App.4th at pp. 831-832.)
In David M., an older child had previously been declared a dependent child because the mother used marijuana during her pregnancy, was incarcerated at the time of the child’s birth, and was unable to care for the child. The court found insufficient evidence to support jurisdiction over a two-year-old, as to whom no problems had been demonstrated, and a newborn taken from parental custody at birth. The alleged basis for jurisdiction was the mother’s use of marijuana and mental health problems, as shown by an evaluation during the earlier dependency case, and the father’s mental health problems. The court stated, however, that “the evidence of mother’s mental and substance abuse problems and father’s mental problems was never tied to any actual harm to [the younger children], or to a substantial risk of serious harm.” (In re David M., supra, 134 Cal.App.4th at p. 829.) Accepting that both parents had mental health issues and that the mother had a “limited” substance abuse problem, the court stated, “[The Department] offered no evidence that these problems caused, or created a substantial risk of causing, serious harm to David or A. ‘[The Department] has the burden of showing specifically how the minors have been or will be harmed and harm may not be presumed from the mere fact of mental illness of a parent. [Citations.]’ [Citations.]... The record on appeal lacks any evidence of a specific, defined risk of harm to either [child] resulting from mother’s or father’s mental illness, or mother’s substance abuse.” (Id. at p. 830.)
Here, jurisdiction was not based on Sierra’s injuries alone, although the extreme nature of those injuries was obviously an important aspect of the court’s decision. The 2006 TRO incident, while not pursued further by Kathy P., was evidence from which the court could reasonably infer, at least, that Anthony could be provoked to violence in a domestic situation. The court specifically held that despite the problems with Kathy P.’s testimony, the incident appeared to have occurred as she originally described it. Clearly, the court did not accept the parents’ and Kathy P.’s attempt to portray Kathy P. as the aggressor in that incident, and its refusal to do so is amply supported.
The Department’s brief is devoted largely to convincing this court that the parents fabricated the January 17, 2008 letter by Kathy P. purporting to negate her statements in the 2006 TRO request, thereby demonstrating “the lengths to which the family would go to conceal Father’s dangerous explosive anger and propensity toward physical violence.” The juvenile court made no explicit finding on this point, although it obviously was not persuaded by the letter or testimony attempting to avoid the import of the 2006 TRO request, and we will not do so in the first instance.
Anthony’s conduct around the time the children were detained provided further evidence of his emotional volatility. While no one suggested a parent should not be upset at having his children detained, several Department witnesses testified that Anthony’s response went far beyond what they saw in other cases, describing him as “explosive,” “off the map” and “out of control.” One Department witness believed he would have to take security precautions against Anthony, although Anthony calmed down sufficiently for him to avoid actually doing so. We recognize that none of the evidence showed Anthony turning his anger toward Laci or Ty. The court is not required to wait until a child is seriously injured to assume jurisdiction and act to protect the child. (In re Heather A., supra, 52 Cal.App.4th 183, 194-196.) In light of the horrific injuries to Sierra, for which Anthony accepted legal responsibility, the evidence of Anthony’s continued inability to control his emotions and anger provided substantial evidence for the court’s conclusion that there was a substantial risk of serious physical injury to the children.
Additionally, the evidence demonstrated that neither parent believed Anthony had done anything wrong with respect to Sierra, that Rochelle did not believe Anthony had anger issues, and that both parents felt the children were completely safe in Anthony’s care. This attitude, rejecting the significance of what had happened to Sierra and the risk posed by Anthony’s volatility, further supported the conclusion that Laci and Ty were at risk.
Rochelle also contends there was no evidence to support the court’s finding that she might have intentionally caused Sierra’s injuries. The petition alleged that Laci and Ty were “at substantial risk of suffering serious physical harm inflicted nonaccidentally by the father” as evidenced, in part, by his guilty plea in Sierra’s case. The court found, however, that Sierra’s injuries “were caused non-accidentally by at least one of the parents while in the parents’ joint care.” Rochelle urges that the evidence shows only that her epileptic seizure—a non-intentional event beyond her control—caused Sierra’s injuries. The court’s finding reflects a conclusion, supported by the evidence, that this explanation of Sierra’s injuries was not adequate and, as stated by Sierra’s treating physicians, the baby’s injuries resulted from abuse. While Anthony’s guilty plea serves to place legal blame for the injuries upon him, and this was the basis upon which the Department proceeded, the record does not demonstrate the factual scenario under which the injuries were inflicted. The court’s finding here recognizes this fact and represents a conclusion, supported by the record, that whatever the unknown scenario, Sierra was horrifically injured, nonaccidentally, while in the parents’ joint care.
Our discussion of the above issues suffices to dispose of Rochelle’s argument that the evidence was insufficient to support the jurisdictional findings under section 300, subdivision (j), based on the severe, nonaccidental injuries to Sierra.
We agree, however, with Rochelle’s argument that no substantial evidence supports the court’s finding that her medical situation and marijuana use was a proper basis for jurisdiction. The court found that the children were at substantial risk of suffering serious physical harm or illness as a result of Rochelle’s self-medication with marijuana rather than “doctor prescribed medication” to control her seizures. During the proceedings, the court expressed serious doubt about the validity of using marijuana to treat seizures, as well as a negative view of medical marijuana in general. No expert testimony was introduced on the medicinal use of marijuana to control seizures. Most important, absolutely no evidence was presented suggesting any risk of harm to the children from Rochelle’s marijuana use. “[T]he mere use of marijuana by a parent will not support a finding of risk to minors.” (In re Alexis E. (2009) 171 Cal.App.4th 438, 451-452; In re David M., supra, 134 Cal.App.4th at pp. 829-830.) The record here reflects nothing like the evidence of harm to the children that led the court in In re Alexis E. to conclude the father’s marijuana abuse constituted a basis for jurisdiction. Rochelle had a medical marijuana card. Laci had been in her care for 16 months with no indication of any problem. The petition alleged that Rochelle’s marijuana use was of “particular concern” because of her contention that a seizure caused Sierra’s injuries, but the record reflects that at the time of Sierra’s injuries Rochelle was using prescription anti-seizure medication, not marijuana. Whatever Judge Lechowick’s views on medical marijuana, there simply was no evidence of risk to the children on this basis and this allegation should not have been sustained.
The court asked Rochelle whether there was anything in the medical literature to show marijuana helps with the kind of seizures she had, and Rochelle said it helps with two of the three types of seizures from which she suffered and she could try to provide her source for this information. The court told her, “Try. If you don’t produce it, it means in my mind it doesn’t exist, that maybe it’s just something coming out of your mind? [¶]... [¶]... [T]he court would be very interested, and so would CPS—it might change their position—if in fact there’s some supporting evidence that marijuana helps to prevent any of these types of seizures. I mean, if it exists, it certainly would be beneficial to your case. I—obviously, I’m skeptical, but maybe—I’m certainly not a doctor and don’t have the medical knowledge on those items. So if it exi[s]ts, bring it to the next court hearing.” The parents subsequently offered a binder described as containing articles and research addressing the medical use of marijuana with epilepsy and seizures; the Department objected on grounds of foundation and hearsay and the court took the objection under submission. In its subsequent written objection to the documents, the Department argued that they reflected no actual clinical evidence but rather various organizations’ discussion of anecdotal reports from patients finding marijuana to have beneficial effects on seizures and others’ recognition of potential negative effects and an absence of objective research on the effects of marijuana on seizures. The court ultimately concluded the objections went only to the weight of the evidence.
When Anthony’s attorney argued that Rochelle’s marijuana use did not justify the Department’s position, the court stated that Rochelle’s medical marijuana prescription was from “the local doctor who gives it to everybody” and was not for her seizures, and that Rochelle’s treating physician wanted her to take the “regular medicine” for the seizures. Counsel corrected the court’s misconception that the marijuana was prescribed by a particular doctor the court knew to “give it to everybody” and the court said it stood corrected “but its notorious how people can just go in and get a medical marijuana prescription for a bad back or anything; but the bottom line is it was not prescribed for seizures.”
Finally, Rochelle urges the Department did not meet its burden of demonstrating substantial risk to the children if returned to her home. According to Rochelle, because there was no evidence Laci and Ty were neglected, family maintenance services would have been sufficient to address any risk without removing the children from parental custody.
“ ‘The governing statute, section 361, subdivision (c), is clear and specific: Even though children may be dependents of the juvenile court, they shall not be removed from the home in which they are residing at the time of the petition unless there is clear and convincing evidence of a substantial danger to the child’s physical health, safety, protection, or physical or emotional well-being and there are no “reasonable means” by which the child can be protected without removal. (See In re James T. (1987) 190 Cal.App.3d 58, 66 [noting clarity and specificity of predecessor version of § 361].) The statute embodies “an effort to shift the emphasis of the child dependency laws to maintaining children in their natural parent’s homes where it was safe to do so.” (In re Jason L. (1990) 222 Cal.App.3d 1206, 1216; see also In re Paul E. [(1995)] 39 Cal.App.4th 996, 1005.)’ (In re Jasmine G. (2000) 82 Cal.App.4th 282, 288.)” (In re Henry v. (2004) 119 Cal.App.4th 522, 528.) “The high standard of proof by which this finding must be made is an essential aspect of the presumptive, constitutional right of parents to care for their children. (In re Kieshia E. [(1993)] 6 Cal.4th [68,] 76; In re Basilio T. [(1992)] 4 Cal.App.4th [155,]169; In re Paul E.[, supra] 39 Cal.App.4th [at pp.] 1001, 1003.)” (In re Henry v., at p. 525.)
Section 361, subdivision (c), provides, as pertinent here: “A dependent child may not be taken from the physical custody of his or her parents or guardian or guardians 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 circumstances... [¶] (1) There is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor’s physical health can be protected without removing the minor from the minor’s parent’s or guardian’s physical custody. 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 injury. The court shall consider, as a reasonable means to protect the minor, the option of removing an offending parent or guardian from the home. The court shall also consider, as a reasonable means to protect the minor, allowing a nonoffending parent or guardian to retain physical custody as long as that parent or guardian presents a plan acceptable to the court demonstrating that he or she will be able to protect the child from future harm.”
As we have discussed in connection with the jurisdictional findings, the risk to Laci and Ty was established by the evidence of Sierra’s devastating, nonaccidental injuries, for which Anthony was legally responsible; the parents’ ongoing refusal to accept any responsibility for those injuries; and Anthony’s emotional volatility and demonstrated violent conduct. The question with respect to disposition is whether this risk was established by clear and convincing evidence, not merely by the preponderance of the evidence required to support jurisdictional findings. At disposition, in addition to the evidence we have discussed thus far, the court was presented with the Department’s report that the parents had consistently refused to cooperate with efforts to involve them in services, that Anthony’s hostility to the Department had increased, and that, in visits, he had begun to direct anger at the children and at Rochelle to the point of kicking her in the leg. Although Judge Lechowick had clearly stated the children should be returned to Rochelle only on the condition that Anthony not reside with them pending the outcome of a psychological evaluation, and that evaluation had not yet occurred, the parents did not have a plan for him to live separately.
While these circumstances amply support concern over potential risk to Laci and Ty, it is far less clear that they satisfy section 361’s standard of clear and convincing evidence. The primary risk was perceived to arise from Anthony; even the Department expressed willingness to have the children returned to Rochelle immediately, subject to the update on her medical condition, if Anthony was not living with the family. The court never addressed Anthony’s attorney’s representation, in response to the court’s question how family maintenance services could be provided when the parents wanted no part of them, that since jurisdiction had been established, the parents would now do whatever was required to regain custody of the children. While it is apparent that the primary basis for finding the children at risk was the conclusion that Anthony intentionally caused Sierra’s devastating injuries, the court never discussed its reasons for finding, if it did, clear and convincing evidence for this conclusion, as compared with Judge Herrick’s statements in the criminal case, after hearing all the evidence in Sierra’s dependency case, that the parents’ explanation of the injuries was not necessarily less plausible than intentional child abuse.
More fundamentally, the record before us simply does not demonstrate that any judicial officer made any of the findings required by section 361. The judge who presided over the disposition hearing was not the one who conducted the lengthy jurisdictional proceedings and was not familiar with the details of the case. At the disposition hearing, Judge Freeborn stated that because of the long history of the case with Judge Lechowick and the parties’ differing views, a decision should be delayed until Judge Lechowick returned from his medical leave. Judge Freeborn stated, “this is a case of complexity, and I think it should be continued with the existing orders essentially extended to that date.” Despite this statement, however, Judge Freeborn went on to adopt the findings and orders submitted by the Department—that is, the “Findings and Orders for Disposition” which, among other things, recited, “The Court finds by clear and convincing evidence that there is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the children if the children were returned home at this time, and there are no reasonable means by which the children’s physical health can be protected without removing the children from the children’s parent’s physical custody.”
“A dispositional order removing a child from a parent’s custody is ‘a critical firebreak in California’s juvenile dependency system’ (In re Paul E., supra, 39 Cal.App.4th at p. 1003), after which a series of findings by a preponderance of the evidence may result in termination of parental rights. Due process requires the findings underlying the initial removal order to be based on clear and convincing evidence. (Id. at p. 1001; Cynthia D. v. Superior Court [(1993)] 5 Cal.4th [242,] 253–255.)” (In re Henry v., supra, 119 Cal.App.4th at p. 530.) Here, the dispositional orders were adopted and signed by Judge Freeborn despite his explicit statement that he wanted the decision on disposition delayed and made by Judge Lechowick. In this circumstance, we cannot take the signing of orders prepared by the Department and reciting statutory language as reflecting a judicial determination that the Department met its burden of showing by clear and convincing evidence either the requisite degree of danger to the children or the absence of reasonable means to protect the children short of removal from Rochelle’s custody.
DISPOSITION
The jurisdiction order is affirmed. The disposition order is reversed and the matter remanded for further proceedings.
We concur: Haerle, J., Richman, J.
The prosecutor argued that the parents’ stories were inconsistent: Anthony stated that he woke to see Sierra hanging with her arm between the footboard and mattress of the waterbed, screaming, and Rochelle having a seizure on the floor, while Rochelle said that she had a seizure, dropped the baby and fell on her. The prosecutor also argued that the parents’ accounts did not explain the baby’s injuries, which Dr. Crawford felt were most likely explained by the baby being “picked up violently by the arm and grabbed and squeezed,” that the “crushing injury” to Sierra’s front and back could not have occurred if she fell onto the footboard and then broke her arm, and that the transverse fracture of her arm, without other fractures to her legs and pelvis, could not have resulted from Rochelle falling on the baby.
Judge Herrick, however, posited other scenarios that might explain the injuries, asking why they could not have been caused by the baby being crushed between the waterbed frame and Rochelle at the same time her arm was pinned between the bed and the frame and Anthony “yanked” her out in a panic. The court reiterated that it could not imagine what intentional conduct could have caused the injuries Sierra sustained. “And obviously this happened shortly before her seizure. I mean, I don’t see them concealing this for a day or two and then, you know, all of a sudden using the seizure as a convenient opportunity to take both the mother and the child to the hospital. [¶] So what were they doing to this child and why is it any more likely that [Anthony] did it, except for the fact as to the plea, instead of [Rochelle]?” The court stated that every one of the injuries could have been caused by Rochelle, with Anthony “taking the rap... to get her out of the case.”