Opinion
NOT TO BE PUBLISHED
Super. Ct. No. JD223525
SIMS, J.Appellants Danielle R. (father) and Rachel R. (mother) appeal from the juvenile court’s order denying mother’s petition for modification. (Welf. & Inst. Code, §§ 388, 395; undesignated statutory references are to the Welfare and Institutions Code.) They contend the juvenile court erred in denying mother’s petition for modification without conducting an evidentiary hearing. We affirm.
BACKGROUND
Most of the following statement of facts is taken from this court’s unpublished opinion in a prior appeal concerning this matter, which is now final. (In re Nehemiah R. (Dec. 20, 2007, C053724).)
On December 20, 2005, Sacramento County Department of Health and Human Services (DHHS) filed a petition on behalf of then three-month-old Nehemiah, alleging the minor came within the provisions of section 300, subdivisions (a), (b) and (e). The petition alleged that, on December 7, 2005, Nehemiah had suffered second and third degree burns to his face after father used a blow-dryer to make the minor sleep. The petition further alleged that, on December 18, 2005, Nehemiah was admitted to Kaiser Hospital (the hospital) and found to be suffering from intracranial bleeding and brain injury from nonaccidental trauma.
The minor was detained and remained at the hospital in intensive care. He was not expected to survive.
A pediatrician, Dr. Kevin Coulter, reviewed the minor’s medical records and testified at the jurisdictional hearing. In his medical opinion, the minor had suffered inflicted head trauma, with forces abusive in nature. After the hearing, the juvenile court found the allegations in the petition true and sustained the petition under all three subdivisions of section 300, including subdivision (e) (severe physical abuse of a child under five years old).
A contested dispositional hearing was held on September 8, 2006. DHHS recommended neither parent be provided reunification services. Some of the minor’s medical records and several doctors’ reports were submitted to the juvenile court for consideration.
The minor has an extensive medical history. He was prematurely delivered by cesarean section in September 2005. He weighed just under 4 pounds 11 ounces at birth and was born with congenital hydrocephalus secondary to aquaductal stenosis. He was discharged from the hospital nine days later.
A CT scan was performed at the minor’s four-week follow-up appointment. The minor was doing well at that time. On November 22, 2005, however, the minor was seen by doctors because of fussiness and edema of his feet. The parents were complaining of colic and spitting. The minor was found to be anemic and was placed on progestimil. A genetics evaluation was also performed.
On November 28, 2005, the minor was examined again. His head size had increased dramatically and he was very irritable. He was admitted for surgery to have a ventriculoperitoneal shunt placed in his head for symptomatic hydrocephalus. The surgery went well.
On December 6, 2005, the minor was examined by a cardiologist who confirmed the minor had a heart murmur secondary to anemia. The cardiologist recommended a follow-up appointment in one to two months.
The following day, however, the minor was brought in for facial burns. The parents reported that they had seen a video about using white noise to calm an infant. Mother had reportedly used a blow-dryer in the past to that effect. While mother was sleeping, father stated he placed the blow-dryer next to the minor’s face because the minor was crying. He held the blow-dryer to the minor’s face for five minutes and then left the blow-dryer resting on the minor’s shoulder for about 30 minutes. Father claimed not to know the blow-dryer was blowing hot air or that it was burning the minor until he heard the minor crying. Father then discovered the minor had blisters on his face. Father woke mother, said it was an accident, and they took the minor to the hospital where it was determined the minor had sustained second and third degree burns to his face and chest. Child Protective Services investigated the referral but deemed the referral “[u]nfounded.”
Mother told the social worker that father had left the blow-dryer resting on the minor’s shoulder for five minutes.
Medical reports differ with respect to the degree of the minor’s burns, with one report indicating they were first and second degree burns.
The minor was seen on December 9, 2005, and the doctor noted that the burns to the face were healing. On December 12, 2005, the minor was seen for a follow-up appointment with pediatric neurosurgery. The surgical incisions appeared well healed and a CT scan showed the shunt in good position with a slight decrease in ventricular size. No intraventricular or subdural bleeding was present.
On December 18, 2005, the parents brought the minor into a clinic. The minor was minimally responsive, and appeared to be unstable and critically ill. He was immediately transferred to the hospital’s emergency department where he was fluid resuscitated and, eventually, stabilized. He was then admitted to the pediatric intensive care unit for ongoing care and treatment. His injuries were extremely severe.
The minor suffered intraventricular and subdural hemorrhaging, an acute interhemispheric hematoma, significant anemia secondary to bleeding in the brain, and extensive retinal and subretinal hemorrhaging in both eyes. He also sustained a fracture of the right proximal humerus (upper arm near the shoulder), two suspected rib fractures (which were not present when the minor was X-rayed on November 22), and his bones demonstrated diffuse trauma.
The fracture of the right proximal humerus was noted in the initial medical summary. A metabolic bone disease expert also believed there was a right proximal humerus fracture, due to trauma. A third doctor also noted, “There were changes to the humeral heads that may be reflective of osteopenia or direct trauma,” but he could not say “with certainty” there was a right proximal humerus fracture.
Within two weeks, a follow-up CT scan revealed the minor had lost 90 percent of his brain functions from the December 18, 2005 trauma, rendering his “prognosis for any meaningful recovery of neurological function extremely poor.” He has had a tracheostomy and requires a gastronomy tube and an enteral pump for fluid and nutritional feeding. It is unlikely the minor will “ever walk, talk, see, eat by mouth, interact with his environment in any meaningful way, or be able to carry on even the most basic of activities of daily living.” He requires 24-hour awake care and it is unlikely he will ever be moved to a lower care level.
Numerous doctors concluded the minor’s injuries were due to nonaccidental trauma and were consistent with Shaken Baby Syndrome. In fact, Kaiser Neurologist Dr. Kahn, stated that “‘only violent shaking’” would result in the minor’s injuries.
The shunt remained functional and numerous tests were performed. Doctors ruled out the possibility of a bleeding disorder, and a genetics doctor ruled out glycogen storage disease and concluded the only logical cause of the injuries was trauma. Doctors also stated that the December 18, 2005, injuries were from trauma inflicted minutes or hours, but not days, earlier.
The minor remained in the pediatric intensive care unit until January 30, 2006, when he was transferred to the hospital’s general pediatric unit. On March 16, 2006, the minor was transferred to a subacute facility.
On March 27, 2006, the minor was transferred to the hospital due to breathing problems. It was determined he had pneumonia. In mid-April 2006, the minor was returned to a subacute facility.
With respect to the December 18, 2005, trauma, the parents reported to doctors that the minor had eaten well that morning and had been happy and playful. Mother later told the social worker that the minor did not finish his bottle that morning. The parents also told the social worker and a detective that the minor had been fussy or crying that morning. Some friends visited for a short time that morning and the parents put the minor down to sleep. The minor was not crying at that time and the friends left thereafter. While the minor was sleeping, mother left the minor in father’s care to run some errands. She was gone for approximately 45 minutes. Father reported that while she was gone, the minor cried briefly. When mother returned, she found the minor to be pale, breathing strangely, and lethargic. She and father brought the minor to the clinic.
During the investigation, the parents had offered two possible causes of the minor’s injuries. Father vaguely suggested that perhaps he had bounced the minor too roughly in the “Baby Bjorn.” Dr. Kahn, however, concluded that such bouncing could not have caused the minor’s injuries. The parents also suggested that something may have happened at the day care center at father’s gym where he had left the minor for two hours the day before. As noted above, doctors agreed that the injuries were from trauma inflicted on December 18, 2005, and were not consistent with trauma occurring any earlier than that date.
At the time of the September 2006 dispositional hearing, mother maintained, despite the doctors’ assessments, that the minor’s injuries were the result of something that had gone wrong during the shunt surgery. She also did not believe the hospital had performed all the tests they could have to rule out a genetic cause or bleeding disorder. She refused to accept that father had caused the injuries. However, she also hinted that she knew something about the cause of minor’s injuries that she refused to share “for ‘personal reasons.’”
The juvenile court found the minor had suffered severe physical harm as a result of deliberate and serious injury inflicted upon him by father on two separate occasions--the burns from the blow-dryer and the severe injuries from having been shaken. It also found neither father nor mother was entitled to reunification services.
The juvenile court ordered a permanent plan of out-of-home placement with a specific goal of a less restrictive foster care. The court further ordered both parents to receive regular supervised visitation.
Appellants appealed the denial of reunification services in their previous appeal. (In re Nehemiah R., supra, C053724).) This court affirmed. (Ibid.)
In a February 2007, post-permanency review report, the social worker noted that the minor remained in the subacute care facility. He was receiving regular stimulation, and was in physical and occupational therapy. He was continually monitored by hospital staff and seen weekly by Dr. Quintana. He was on 12 medications for numerous conditions and remained on both tracheostomy and gastrostomy tubes. The respiratory therapist reported that the minor has a monitor that watches oxygen and breath sounds and the minor receives an oxygen mist treatment to hydrate unused respiratory organs. The minor also needs a lot of suctioning to clear his throat of secretions and prevent blocking of the tracheostomy tube.
Dr. Quintana agreed with the previous assessment that only 10 percent of the minor’s brain was functioning and that the minor’s prognosis was poor, as there had been no improvement in the previous months. He believed the most anyone could do was make the minor as comfortable as possible. Mother asked Dr. Quintana after a meeting if he thought the minor’s condition was due to child abuse and he responded that he knew of no other cause for the minor’s retinal bleeding besides being shaken or suffering violent trauma.
A medical assessment attached to an addendum to the report indicated the minor was in a persistent and permanent vegetative state. The minor’s physical and cognitive problems limit his ability to progress, and his developmental level of functioning ranged between zero and one month.
DHHS requested a permanent plan of placement in the subacute care facility. The parents continued to object to out-of-home placement. At the February 28, 2007, hearing, the juvenile court ordered a permanent plan of placement in the Sub-Acute Saratoga Hospital. The court noted that the evidence did not indicate that a less restrictive placement would be likely in the future so it would not order less restrictive placement as a goal. The court did not modify the visitation order, which provided the parents have regular supervised visitation.
On May 19, 2007, mother filed a section 388 petition for modification. The petition requested the minor be placed in the parents’ care and dependency be terminated. As changed circumstances or new evidence, mother attached a lengthy report prepared by Dr. Harold E. Buttram. Mother alleged that, subsequent to the disposition hearing, Dr. Buttram had reviewed the time-line of events, the prenatal records from Kaiser, the newborn hospitalization and pediatric office records, and the neurosurgery consultation notes. Mother alleged that, after reviewing those records, Dr. Buttram had concluded that the minor did not suffer from inflicted trauma or Shaken Baby Syndrome.
Dr. Buttram had concluded that the minor had advanced clinical rickets at the time of his December 18, 2005, hospitalization, and that the minor’s extremely low levels of vitamin C were within range for risk of scurvy. Scurvy could contribute to brain hemorrhages. Dr. Buttram also indicated that the stretching of the brain caused by hydrocephalus could result in spontaneous ruptures of the veins and capillaries, which was the source of the acute intracranial bleeding. Dr. Buttram further found that a vaccine the minor took on November 15 could have contributed to the hematomas. Finally, Dr. Buttram concluded that the minor could not have suffered from Shaken Baby Syndrome because it is physiologically impossible to shake a baby hard enough to cause brain damage without first killing the baby from a broken neck or causing a severe cervical spine injury, especially when the baby has hydrocephalus.
The section 388 petition also alleged that it was in the minor’s best interest to be returned to the parents’ care and custody, as they did not inflict trauma on him and knew how to care for him. The juvenile court entered an order setting the matter for a hearing on June 20, 2007.
There was considerable argument at the June 20, 2007, hearing. The juvenile court indicated it had read mother’s petition and began by asking mother’s counsel, Jim Stillens, if it was his position “that the underlying medical diagnosis as to blood work and the like were known to Referee Hertoghe at the jurisdictional hearing?” Stillens responded that he did not know because he did not represent mother at the time of the jurisdiction hearing. The juvenile court then articulated a distinction between new medical evidence that was not known to the court at the time of the jurisdiction hearing, and a different opinion about the same medical evidence that was known to the court at the time of the jurisdiction hearing. The juvenile court specifically asked, several times, if there was any new medical evidence. Stillens responded that he did not know if there were any medical facts considered by Dr. Buttram that were not known to the juvenile court at the time of the jurisdiction hearing, and argued that Dr. Buttram’s “new” opinion constituted sufficient new evidence to support the section 388 petition. He did not know what medical evidence Dr. Coulter had reviewed or upon what evidence Dr. Coulter’s opinion was based. Instead, he took the position that they should have a new trial to allow Dr. Buttram to testify to what presumably could have been testified to a year earlier.
The parents had privately retained counsel at the time of the April 26, 2006, jurisdiction hearing. In June 2006, prior to the disposition hearing, Stillens substituted in as counsel for mother and Aimee Steele substituted in as counsel for father.
As neither the written petition, nor mother’s counsel, had provided anything to suggest that there was new medical evidence, only a new opinion based on previously known medical evidence, the juvenile court refused mother’s request to have Dr. Buttram testify and denied the petition.
DISCUSSION
Appellants contend the juvenile court erred in denying mother’s petition for modification without conducting an evidentiary hearing. As a preliminary matter, DHHS argues that father’s appeal must be dismissed for lack of standing. We do not decide the disputed standing issue, however, because the record does not support appellants’ argument.
A parent may bring a petition for modification of any order of the juvenile court pursuant to section 388 based “upon grounds of change of circumstance or new evidence.” (§ 388.) To establish the right to an evidentiary hearing on the petition, it must include facts that make a prima facie showing of a change in circumstances or new evidence and that “the best interests of the child may be promoted by the proposed change of order.” (In re Daijah T. (2000) 83 Cal.App.4th 666, 672-673); In re Zachary G. (1999) 77 Cal.App.4th 799, 806; In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1414; Cal. Rules of Court, rule 5.570(d).)
As we have recounted, the juvenile court initially found mother had made an adequate showing of new evidence and set the petition for a hearing. That ensuing hearing was an evidentiary hearing. We thus reject appellant’s assertion that the juvenile court summarily denied the petition without a hearing. It appears appellants assume that, because the juvenile court did not permit live testimony from Dr. Buttram, mother was not afforded a hearing on her petition. They are incorrect.
With exceptions not relevant here, proof at a section 388 hearing “may be by declaration and other documentary evidence, or by testimony, or both, at the discretion of the court.” (Cal. Rules of Court, rule 5.570(h)(2).) Trial courts are vested with wide discretion to admit or reject evidence. (Wagner v. Benson (1980) 101 Cal.App.3d 27, 36.) We do not disturb such rulings absent a patent abuse of discretion. (In re Raymundo B. (1988) 203 Cal.App.3d 1447, 1456.)
In this instance, the court had reviewed mother’s sworn petition which purported to allege what new evidence had been obtained. Mother did not identify any evidence, other than the documentary evidence submitted with her petition, that she would offer if afforded the opportunity to offer live testimony. Nor could she identify any evidence that had not been presented to the juvenile court at the jurisdiction hearing. Despite the juvenile court’s repeated requests for an offer of proof as to any new medical facts or information considered by Dr. Buttram that was not previously known to the juvenile court and which may have supported a decision to permit oral testimony, mother could make no such offer. Mother offered only a different opinion, presumably based on previously known medical evidence. Not only did mother’s offer of proof fail to mandate that the court permit live testimony, but we agree with the juvenile court that the opinion evidence, as offered, did not constitute “new evidence” and, contrary to mother’s position, did not require the court hold a “new trial.”
On appeal, appellants now claim Dr. Buttram’s report mentions several medical conditions which were not mentioned by Dr. Coulter during his previous testimony. This, of course, does not necessarily establish that there were new facts not known to the court at the time of jurisdiction. And in any event, mother made no such offer of proof at the section 388 hearing, despite the juvenile court’s repeated requests.
In sum, we reject appellants’ contention that the juvenile court summarily denied mother’s petition without holding a hearing. The juvenile court here held a hearing on the petition, taking evidence by way of documentary evidence, offers of proof and some questioning and argument. Mother, however, was unable to present any new evidence to the juvenile court. We find no error.
DISPOSITION
The juvenile court’s order denying the Welfare and Institutions Code section 388 petition is affirmed.
We concur: SCOTLAND, P. J., ROBIE, J.