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In re Sabrina D.

California Court of Appeals, Second District, Eighth Division
Sep 17, 2008
No. B204587 (Cal. Ct. App. Sep. 17, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. CK 68795, D. Zeke Zeidler, Judge.

Deborah Dentler, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Timothy M. O’Crowley, Deputy County Counsel, for Plaintiff and Respondent.


FLIER, J.

Nanette D. is the mother of Sabrina D., age nine in 2007, and Angelina D., then age two. The court found Sabrina and Angelina to be dependent children under subdivisions (a) and (b) of section 300 of the Welfare and Institutions Code. The care and custody of the children was taken from Nanette and the children were placed in the home of Rolando D., the father, under the supervision of the Department of Children and Family Services (DCFS). Nanette was allowed to reside in the home but she is not to be left alone with the children. Nanette appeals, principally on the ground that the evidence is insufficient to support the trial court’s orders. We affirm.

All further references are to the Welfare and Institutions Code.

STATUTORY STANDARDS

The trial court’s orders were based on very serious injuries sustained by Devynn C., then nine months old, whom Nanette was babysitting at the time she was injured. Devynn is Sabrina’s and Angelina’s cousin; Mary Jane C., Devynn’s mother, is father Rolando’s sister. The injury was caused by violently shaking Devynn.

Subdivision (a) of section 300 provides:

“Any child who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court:

“(a) The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm inflicted nonaccidentally upon the child by the child’s parent or guardian. For the purposes of this subdivision, a court may find there is a substantial risk of serious future injury based on the manner in which a less serious injury was inflicted, a history of repeated inflictions of injuries on the child or the child’s siblings, or a combination of these and other actions by the parent or guardian which indicate the child is at risk of serious physical harm.”

In relevant part subdivision (b) of section 300 provides:

“(b) The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child.”

FACTS

The injury to Devynn occurred on June 12, 2007. Mary Jane, Devynn’s mother, had begun working two months before. Mary Jane and Jason, Devynn’s father, had decided to ask Nanette to babysit Devynn because Nanette was home with her two children.

On June 12, 2007, Jason dropped Devynn off with Nannette around 9:00 a.m.; Nanette had earlier taken Sabrina to school. Nanette was alone in the house with Angelina and Devynn.

Nanette refused to testify at the hearing, asserting her rights under the Fifth Amendment. Her version of events is based on various statements she made to social workers and medical personnel prior to the hearings conducted by the trial court.

According to Nannette, she and the two children were upstairs in the house, watching television until about 11:00 a.m. Nannette decided she wanted to go downstairs. She took Devynn on her right arm and Angelina on her left arm, with the children resting their heads on her shoulder. She began walking downstairs and missed a step, tumbling down the stairs with the children. Angelina did not fall all the way down but Nannette and Devynn continued to fall until they reached the bottom of the stairs. Nannette was trying to protect Devynn’s head by holding the back of her neck. When they reached bottom, Devynn wound up underneath Nannette. Devynn cried for two or three minutes, stopped crying and started to look sleepy. Nanette laid Devynn on the living room floor to make sure she was okay. Nannette concluded that Devynn was only sleepy, picked her up and put her in her carrier.

She also gave the time as 1:30 p.m.

They went to pick up Sabrina in school and came home. Nannette tried to wake Devynn up by sprinkling water on her face. She called Mary Jane, Devynn’s mother, but got no answer. She called the pediatrician who told her to take Devynn to the emergency room.

Jason received a call from Nannette around 3:00 p.m. who told him that she had fallen down the stairs while holding Devynn and that something was not quite right.

Devynn had a previous injury to her head that she sustained on March 31, 2007. This injury was seen to in an emergency room. Apparently this injury played no role in the events of June 12, 2007.

Nannette took Devynn to Tri-City Hospital from where Devynn was transferred to the pediatric intensive care unit at Long Beach Memorial Hospital. Dr. Ceverha, a surgeon, gave a prognosis of imminent death. Devynn was comatose with no external sign of injury. There were multiple acute retinal hemorrhages in both eyes. As will become apparent from the opinions of several physicians set forth below, this type of injury is typically inflicted by shaking the child.

From this point forward, a number of physicians were involved in Devynn’s treatment. With the exception of Dr. Ronald Gabriel, who supported Nannette’s version of events (we set forth the gist Dr. Gabriel’s conclusions below), medical opinion was unanimous that Devynn was the victim of the shaken baby syndrome.

Initially at Long Beach Memorial Hospital, Dr. Ceverha found that Devynn’s injuries were not consistent with falling down stairs but they were consistent with shaking the baby’s head. Dr. Houri saw no external injuries and agreed with Dr. Ceverha’s observations. The prognosis was poor, i.e., it was thought that Devynn would be permanently in a vegetative stage.

Dr. Rosales at Long Beach Memorial diagnosed Devynn on June 15, 2007, with nonaccidental trauma and shaken baby syndrome. The diagnosis was based on acute, multiple, retinal hemorrhaging in both eyes. Dr. Rosales did not think that Devynn had fallen down the stairs because she had no external injuries.

At the adjudication hearing, Dr. Glenn Levine of Long Beach Memorial testified that he was on the critical care team that cared for Devynn. Dr. Levine testified that Devynn’s brain was swelling and that surgery was required to decompress the brain. The presence of retinal hemorrhaging indicated that Devynn had been shaken. This type of injury is inflicted by acceleration and deceleration, i.e., by the shaking of the child. According to Dr. Levine, it would be almost impossible to inflict this kind of injury by falling down the stairs.

Dr. Kerry English also testified. His conclusions were the same as Dr. Levine’s, and based on the same reasons. Dr. English thought that it was overwhelmingly likely that Devynn was injured by violent shaking.

Dr. Gabriel, who testified for Nannette, concluded that Devynn had been injured when, as described by Nannette, she had fallen down the stairs. Dr. Gabriel stated that the initial CT scan showed no retinal hemorrhaging and that there were four explanations other than shaking for this type of injury. Dr. Gabriel was specifically critical of Dr. Rosales because, in his opinion, she did not have all the facts about Devynn. For example, she had not reviewed the CT scans and did not know that Devynn had a coagulation defect. On cross-examination, Dr. Gabriel admitted he had not spoken to any of the treating physicians and had gotten the facts from Nannette’s statement, which her attorney gave him. Dr. Gabriel insisted, however, that Devynn’s injuries were not caused by shaking.

These were bleeding in the brain, pressure on the retina, a depressed clotting factor and the operative procedure undertaken to reduce the swelling in Devynn’s brain.

Dr. Rosales was recalled and testified that an ophthalmological examination revealed multiple hemorrhages in both eyes, that these injuries were acute and that they had been inflicted at the same time. Dr. Rosales stated that a CT scan would not reveal these injuries. She repeated the point that these injuries were not consistent with falling down the stairs and she again explained the mechanism of how these injuries are caused by shaking.

We find it unnecessary to summarize the testimony of another critic, Dr. Levine, of Dr. Gabriel’s conclusions but note in the margin that Dr. Levine thought that Dr. Gabriel was wrong in stating that acute retinal hemorrhaging could be caused by intercranial bleeding.

Others who testified were Nannette’s husband, Rolando, who stated that he has never seen Nannette being abusive to children during the 10 years that they have been married. A therapist who has had 12 sessions with Nannette testified that she is depressed and distressed. After initially stating that the risk to Nannette’s children was low, the therapist changed her testimony in response to the court’s questioning that there would be a risk, but it would be low if Nannette was monitored. A social worker testified that Nannette was cooperative with DCFS and that Nannette had never given an indication that she was violent. DCFS recommended that Nannette participate in parent education and in individual counseling.

THE TRIAL COURT’S RULING

The trial court analyzed the evidence in a detailed oral ruling. The salient aspect of the ruling is that Dr. Gabriel’s conclusions leave something to be desired. Specifically, the court noted that Dr. Gabriel had not opined that, other than the four explanations he gave for Devynn’s type of injury, these injuries could be caused by shaking. That is, Dr. Gabriel did not rule out shaking as a possible cause. The trial court stated that Dr. Gabriel’s testimony was biased to the extent that he simply did not consider shaking as a possible cause, which was “a factor that I’m [the court] not too sure he would disagree with.”

Given that Drs. Ceverha, Houri, Rosales, Levine and English all testified in varying detail that Devynn’s injuries were caused by shaking, the trial court’s observation about Dr. Gabriel appears to be on target.

DISCUSSION

1. There Is Substantial Evidence of a Substantial Risk of Harm To Sabrina and Angelina

Nannette contends that there is no evidence to support the conclusion that there is a substantial risk of harm to Sabrina and Angelina.

In making this argument, Nannette points to a solid body of evidence that shows that her therapist did not think that she would harm her own children; that she was cooperative and compliant with her case plan; that all indications are that she understands the need to be vigilant in the care of her children; that she was described by her therapist as a devoted mother; that her husband thought the children would be safe with her and that even Devynn’s mother called her a caring and devoted parent. It is also true that Sabrina and Angelina are healthy and well cared for and that there is no history of abuse or neglect. Finally, there is evidence that Nannette was devastated by Devynn’s injury.

The fact is that this case involves not only a tragedy for Devynn and her parents but also a personal tragedy for Nannette. The weight of the evidence is that she shook Devynn for reasons that are unknown and that will probably remain unknown. In all other respects, we take Nannette to be the kind of person that the evidence describes. It is exactly for such a person that the infliction of such harm on a child must be a nightmare.

It is the nightmarish quality of the act of shaking Devynn so violently as to deprive her of any chance of a life even distantly normal that called these proceedings into existence. This was not a spanking or a slap that was too hard, this was, unfortunately, an abandoned act of rage against a baby. The heinousness of the act requires that properly constituted authorities take appropriate action.

The action that the trial court took in this case was appropriate. It did not remove Sabrina and Angelina from Nannette’s care and presence as a mother but it does require someone else to be present when she is with the children. The very fact that Nannette’s act of shaking Devynn is inexplicable requires observation and safety measures to guard against another outbreak. Should there be another outbreak with similar consequences, it would comfort no one to know that, in all other respects, Nannette was a good mother.

We do not agree with Nannette that subdivision (a) of section 300 does not authorize the court to take the action that it did take. While it is true that substantial risk of future injury is to be based “on the manner in which a less serious injury was inflicted, a history of repeated inflictions of injuries on the child or the child’s siblings, or a combination of these” (§ 300, subd. (a), italics added), this provision also refers to “other actions by the parent or guardian which indicate the child is at risk of serious physical harm.” Shaking Devynn was clearly such “other action” that indicates that there is a substantial risk of harm to Sabrina and Angelina.

While the plain text of subdivision (a) of section 300 empowered the court to make the orders that it did make, it is noteworthy that subdivision (b) of section 355.1 provides that harm to a minor other than the parent’s child is admissible evidence in proceedings conducted under section 300. And it is also true that past events reflecting the parent’s conduct are a proper subject in a section 300 proceedings. (In re Troy D. (1989) 215 Cal.App.3d 889, 900.)

“Proof that either parent, the guardian, or other person who has the care or custody of a minor who is the subject of a petition filed under Section 300 has physically abused, neglected, or cruelly treated another minor shall be admissible in evidence.” (§ 355.1, subd. (b).)

We deem it important to note that, despite Nannette’s insistence that she and Devynn fell down the stairs, the evidence that the injuries were caused by shaking is overwhelming. Medical opinion is virtually unanimous among six physicians that shaking was the cause. Dr. Gilbert’s dissent is a great deal less than persuasive, nor even well reasoned, as the trial court pointed out. Thus, it is not only that there is a risk of harm, it is that the harm that is risked is of catastrophic proportions. This aspect of the case surely cannot be ignored.

Given the evidence that Nannette inflicted great harm on Devynn by shaking her, we reject the contention that it is only speculation that Sabrina and Angelina might be injured by Nannette’s carelessness in carrying children down a staircase. In the first place, the trial court did not frame the orders that it did frame because Nannette was careless in carrying children. The orders were based on the nearly fatal injuries that Nannette inflicted on Devynn. Second, while it is true that subdivision (b) of section 300 refers only to the risk of harm to the child of the guardian or parent, it is precisely because there is a risk to Sabrina and Angelina that Nannette needs to be monitored.

We conclude that there is a substantial risk of harm to Sabrina and Angelina and that the trial court’s orders represent the correct response to that risk of harm.

2. The Allegations of the Petition Were Sufficient

Nannette contends, belatedly, that the allegations of the petition were inadequate because they were based on harm to Devynn, who is not Nannette’s child. As respondent points out, a defect in the petition must be challenged in the trial court prior to the time that the trial takes place. (In re Shelley J. (1998) 68 Cal.App.4th 322, 328.) Although this disposes of the matter, we note that the petition was based on the allegation that Nannette’s shaking of Devynn directly posed a substantial risk of harm to Sabrina and Angelina. The petition therefore was not insufficient.

DISPOSITION

The order finding Sabrina and Angelina dependent children of the court, and the order of placement together with its conditions, are affirmed.

We concur: COOPER, P. J., BIGELOW, J.


Summaries of

In re Sabrina D.

California Court of Appeals, Second District, Eighth Division
Sep 17, 2008
No. B204587 (Cal. Ct. App. Sep. 17, 2008)
Case details for

In re Sabrina D.

Case Details

Full title:In re SABRINA D. et al., Persons Coming Under the Juvenile Court Law. LOS…

Court:California Court of Appeals, Second District, Eighth Division

Date published: Sep 17, 2008

Citations

No. B204587 (Cal. Ct. App. Sep. 17, 2008)