Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County. No. CK83801, Albert Garcia, Referee.
Matthew I. Thue, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Kim Nemoy, Deputy County Counsel, for Plaintiff and Respondent.
RUBIN, ACTING P. J.
Jose V. (father) appeals from the order adjudicating his son, Sebastian V. (Sebastian), a person described by Welfare and Institutions Code section 300, subdivision (b) and placing Sebastian in out-of-home placement. He contends the adjudication and disposition were not supported by substantial evidence. We affirm.
All further undesignated statutory citations are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Sebastian was born at Pacific Alliance Hospital (Pacific Alliance) in July 2010. The family came to the attention of the Los Angeles County Department of Children and Family Services (DCFS) two weeks later, when Sebastian was hospitalized in the Neonatal Intensive Care Unit of the Los Angeles County-USC Medical Center, suffering from septic shock and multiple organ failure. Sebastian was detained on August 20.
According to the detention report, Sebastian lived with mother and his four half siblings. Father did not live with them, but he was actively involved in Sebastian’s care. On August 5, 2010, father and mother noticed that Sebastian, then seven days old, seemed unwell, with symptoms that included vomiting after most feedings. Two days later, on August 7, mother took Sebastian to Pacific Alliance while father was at work. When father arrived at mother’s home after work that day, mother told him that Sebastian had a 102 degree fever and that the hospital had instructed her to take Sebastian to Children’s Hospital Los Angeles. Father did not know why mother did not take Sebastian to Children’s Hospital as directed; father did not take the initiative because mother was in charge of Sebastian’s care. Although Sebastian’s fever had subsided, he cried often and continued to vomit over the next week. On August 15, father and mother bathed Sebastian, hoping this would calm him; when Sebastian continued to be “fussy” mother gave him some water and chamomile tea. At 11:00 p.m. that night, father was partially asleep when he received a call informing him that mother was taking Sebastian to the hospital. Father went back to sleep. The next morning, Jessica called to tell father that Sebastian was very sick. Father went to the hospital after work. Father never saw mother behave inappropriately to any of her children. A social worker interviewed all of Sebastian’s half siblings. None of them showed any signs of neglect or reported any physical or sexual abuse by anyone; all of them reported that they were given medicine or taken to the doctor when they were sick.
Mother, who is not a party to the appeal, was a widow and lived with four minor children from her prior marriage (the half siblings): Jessica G. (15 years old), Carlos G. (13 years old), Karina G. (11 years old), and Jacqueline G. (6 years old). We refer to Sebastian and the half siblings collectively as the children.
Mother explained that Sebastian was given Tylenol and a suppository at Pacific Alliance. She was told that they wanted Sebastian to be seen at another hospital, but after waiting two and one-half hours for the other hospital to call back, they had her sign a paper that she was voluntarily leaving. Mother signed the paper because Sebastian’s fever had decreased. She was told to take Sebastian to a hospital with a pediatrics department, but she was not told which hospital to take him to. Because Sebastian no longer had a fever, mother did not immediately take him to another hospital. Several days later mother was sleeping in bed with Sebastian when she noticed that he was not making any noise, his eyes were opening and closing and he was shaking. When she called Jessica, her 15-year-old daughter, to look at him, Jessica decided to call an ambulance.
A section 300 petition was filed several days later as to all of the children. Paragraph B-1 of that petition alleged that Sebastian was suffering from acute febrile illness on August 7, 2010, when mother left Pacific Alliance against medical advice and failed to take Sebastian to Children’s Hospital, as she was told to do by Pacific Alliance; as a result, Sebastian suffered septic shock and multiple organ failure on August 15; he was hospitalized that day with seizures, renal failure, urosepsis, respiratory failure and hypocalcaemia; mother and father failed to obtain necessary medical care for eight days; mother’s and father’s severe medical neglect of Sebastian endangered his physical and emotional health and safety and placed all of the children at risk of physical and emotional harm, damage, danger and death. Paragraph J-1 of the petition made the identical allegation.
Following an August 25, 2010 detention hearing, the court found that DCFS had established a prima facie case the children were persons described by subdivisions (b) and (j) of section 300. It ordered the half siblings released to mother but that custody of Sebastian, who was still hospitalized, be given to DCFS with discretion to place Sebastian with father after Sebastian was released from the hospital. The matter was continued to October 5 for adjudication.
On September 1, 2010, mother and father were at the hospital visiting Sebastian and the half siblings were at the home of their adult brother when Jacqueline was seriously injured when an iron fence fell on her. She was airlifted to Children’s Hospital where she was diagnosed with a skull fracture and admitted to the pediatric intensive care unit in critical condition. The incident resulted in a child neglect referral to DCFS. Upon investigation, DCFS determined that the half siblings were being appropriately cared for and there was no issue of abuse or neglect. The investigator concluded that Jacqueline’s injuries “appear to have been accidental and in no way as a result of any abuse or neglect.” However, in its jurisdiction report, DCFS recommended against dismissing the case as to the half siblings due to this incident: “the combination of [Sebastian’s] hospitalization on 8/16/2010 due to mother’s failure to obtain timely medical care as well as the minor Jacqueline[’s] recent head fracture incident remains a serious concern regarding mother’s parenting and protective capacity abilities.” DCFS recommended that the children be declared dependent children and that both parents be ordered to, among other things, complete a parenting program for medically fragile infants.
On September 10, 2010, Sebastian was in stable condition when he was discharged from the hospital to a foster home. Various follow-up appointments were scheduled and, although his seizures had resolved, he was prescribed prophylactic Phenobarbital every 12 hours pending a neurology follow-up.
At the adjudication hearing on October 5, 2010, the court admitted into evidence the detention report, the jurisdiction report, and a September 9 “Report to the Juvenile Court of Death, Injury or Illness.” According to the jurisdiction report, mother told the social worker that after waiting at Pacific Alliance for more than two hours she “was bothered that nothing was being done so the doctor told me to sign a paper which I thought was because they had been trying to call the hospital for a few hours and there was no response. Also it was getting later and I needed to leave the clinic and no one from the clinic seemed to have given much urgency to Sebastian’s condition. Eventually the doctor told me to leave and advised me to take Sebastian to a hospital that has pediatricians.... I do admit I made a huge mistake by not following up in taking him to a hospital but I thought he was okay and also the clinic did not appear to be concerned or worried.” Father told the social worker that on the day mother brought Sebastian to Pacific Alliance, she told father that she “waited like 2 hour[s] at Pacific Alliance Clinic because the clinic called Children’s Hospital where [Sebastian] needed to be taken. According to [mother], the doctor at Pacific Alliance told her she needed to go to Children’s Hospital but she had waited there for 2 hours to get permission to take Sebastian to the hospital. After waiting 2 hours and [no] response from Children’s Hospital, she decided to leave and the clinic made her sign a paper stating that that she left against medical advice. [¶] I do admit [mother] made a mistake by not taking Sebastian to the hospital but also the clinic did not request an ambulance nor did they seem to be concerned or worried for his health which made her think it was not serious.” The jurisdiction report concluded that Sebastian could not safely be returned to mother because she had failed to comply with medical advice to take Sebastian to a hospital for evaluation. Regarding placing Sebastian with father, the jurisdiction report stated that father told the social worker that, since he worked seven days a week and had no help, he could not take physical custody of Sebastian.
Father did not testify, but it was stipulated that if he had his testimony would have been that “he understands the importance of taking Sebastian to the doctor if he is not feeling good or if he appears to not feel good. He will make sure that he goes to the doctor and if the mother can’t do it, he will make sure he gets to the doctor.” Father did not present any evidence that his work schedule had changed or that he could obtain help to care for Sebastian if Sebastian were to be placed with him.
The court sustained the petition as to both Sebastian and the half siblings. Regarding disposition, counsel for Sebastian and the half siblings argued that all of the children were at substantial risk of harm if returned to the parents, who did not have the medical knowledge to care for Sebastian and Jacqueline, both of whom were now medically fragile as a result of their respective injuries. Mother did not challenge the placement recommendations. Father maintained that DCFS had not met its burden to prove by clear and convincing evidence that Sebastian could not be placed with father. He argued that Sebastian should be placed with him because he promised to make sure that Sebastian received all necessary medical treatment.
Although it placed the half siblings with mother, the court found clear and convincing evidence that substantial danger existed to Sebastian’s physical and/or mental health if he was returned home, and that the only reasonable means to protect Sebastian was to remove him. It ordered Sebastian “placed in an appropriate place to deal with his medical needs” under the supervision of DCFS. Mother and father were ordered to obtain counseling “to deal with making sure that the children [get] proper medical [care]. That they are getting properly trained for Sebastian’s problems specifically with that child.” The court explained: “[Y]ou don’t like my ruling, but I have to protect children, that is my job. If I don’t do that, I’m not doing my job, okay. So this is not about harming you, this is about protection of the children and at this point we need to make sure that Sebastian is in proper treatment....”
Father filed a timely notice of appeal from “all findings and orders of the court including sustaining the petition and not returning custody to me.”
DISCUSSION
A. There Was Substantial Evidence of Risk to Support Jurisdiction
Father contends the trial court’s finding that Sebastian was at risk of harm was not supported by substantial evidence. He argues that Sebastian’s injuries were the result of a single misjudgment, which both parents acknowledged, and there was no evidence that Sebastian continued to be at risk.
In dependency proceedings, the petitioner must prove by a preponderance of the evidence that the minor is a person described by section 300. (In re Veronica G. (2007) 157 Cal.App.4th 179, 185.) We review the trial court’s jurisdictional findings for substantial evidence. That is, “such relevant evidence as a reasonable mind would accept as adequate to support a conclusion; it is evidence which is reasonable in nature, credible, and of solid value.” (In re J.K. (2009) 174 Cal.App.4th 1426, 1433 (J.K.).)
A child may be adjudged a dependent child upon a showing that “[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of... the willful or negligent failure of the parent or guardian to provide the child with adequate... medical treatment.... The child shall continue to be a dependent child pursuant to this subdivision only so long as is necessary to protect the child from risk of suffering serious physical harm or illness.” (§ 300, subd. (b).)
There is a split of authority as to whether a single incident of parental conduct can support jurisdiction under section 300, subdivision (b), or whether a current or future risk of harm must also be proven. For example, in J.K., supra, 174 Cal.App.4th at pages 1435-1436, the court held that prior serious harm, standing alone, is sufficient to establish jurisdiction under subdivision (b) of section 300. (See also In re Adam D. (2010) 183 Cal.App.4th 1250, 1261, fn. 7.) But in In re Carlos T. (2009) 174 Cal.App.4th 795, 803, the court reasoned that, since a child does not remain a dependent child of the juvenile court under subdivision (b) if he or she is no longer at risk of suffering physical harm or illness, “[i]t follows, then, that dependency jurisdiction is not warranted under subdivision (b) if, at the time of the jurisdiction hearing, there no longer is a substantial risk that the child will suffer harm.” In In re J.N. (2010) 181 Cal.App.4th 1010, the court similarly concluded a single incident by itself does not authorize dependency court jurisdiction. The J.N. court expressly rejected the decision in J.K., reasoning: “If such an interpretation governed such a case, a juvenile court could take jurisdiction but would be required to immediately terminate the dependency under the final sentence of section 300, subdivision (b).” (J.N., at p. 1023; see also In re Maria R. (2010) 185 Cal.App.4th 48, 60 [in considering whether child would be at risk from parental neglect, court considers the circumstances at the time of the jurisdictional hearing].)
This case does not require us to choose a side in the debate because, even assuming for the sake of argument that past infliction of physical harm, standing alone, does not establish a substantial risk of future harm, there was substantial evidence that Sebastian was at risk of future harm. Cases involving a risk of serious harm generally fall into two categories: (1) an adult with a proven record of abusiveness or (2) children so young that the absence of adequate supervision and care poses an inherent risk to their physical health and safety. (In re Rocco M. (1991) 1 Cal.App.4th 814, 824.) This case falls into the second category. As a medically fragile infant, Sebastian was helpless to protect himself and so deserved special protection from the parents’ poor judgment, which had already had such severe consequences. Under these circumstances, the parents’ failure to provide adequate medical care on this one occasion was sufficient to show an inherent risk of future harm to Sebastian.
B. There Was Substantial Evidence That Return to Mother and Placement with Father Presented a Risk of Physical Danger to Sebastian
Father contends that, even assuming the jurisdictional order was supported by substantial evidence, the order removing Sebastian from parental custody was not. He argues that DCFS did not prove by clear and convincing evidence that returning Sebastian to mother would put Sebastian in danger and that there was no alternative to protect Sebastian other than removal. We disagree.
“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.... [¶] [that] [t]here 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....” (§ 361, subd. (c)(1).)
When removal is ordered pursuant to section 361, the court must place the child with a formerly noncustodial parent unless it finds that such placement would be physically or emotionally detrimental to the child. (In re V.F. (2007) 157 Cal.App.4th 962, 970, superceded by statute § 361.2, subd. (a) on other grounds as stated in In re Adrianna P. (2008) 166 Cal.App.4th 44, 57.) Section 361.2 applies to a noncustodial parent without regard to whether that parent was offending or nonoffending. But in assessing whether placement with a noncustodial parent would be detrimental, the court may consider any jurisdictional findings relating to that parent under section 300, as well as any other evidence showing there would be a risk to the child if placed with that parent. (V.F., at p. 970.) While section 361, subdivision (c)(1) requires a showing that there are no reasonable means to protect the child without removal from the home, section 361.2 simply instructs the court to consider whether placement with the noncustodial parent would be “detrimental to the safety, protection, or physical or emotional well-being of the child.” (In re Luke M. (2003) 107 Cal.App.4th 1412, 1425.)
Out-of-home placement is “a last resort” to be considered only when there is clear and convincing evidence that the child would be in danger if allowed to live with the parent. (In re Henry V. (2004) 119 Cal.App.4th 522, 525, 529-530 (Henry V.) [out-of-home placement order reversed where trial court did not use clear and convincing standard and the recommended bonding study could just as easily be performed in-home].) To justify removal under subdivision (c)(1) of section 361, there must be a threat to the physical safety of the child. (In re Isayah C. (2004) 118 Cal.App.4th 684, 698.) The parent need not be dangerous; removal may be based on a parent’s inability to provide proper care and proof of a potential detriment to the child if he or she remains with the parent. (In re Cole C. (2009) 174 Cal.App.4th 900, 917; In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, overruled on other grounds in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6, superceded by statute on other grounds as stated in In re Angelique C. (2003) 113 Cal.App.4th 509, 518.) The parent’s level of denial is a factor which may be considered. (In re Esmeralda B. (1992) 11 Cal.App.4th 1036, 1044.)
We review an order removing a dependent child from the home of his or her parent for substantial evidence of danger to the child if he or she is returned home, and the absence of any reasonable means to protect the child other than removal. (In re Javier G. (2006) 137 Cal.App.4th 453, 463; Henry V., supra, 119 Cal.App.4th at p. 529.) It is immaterial that the standard of proof at trial was clear and convincing. On appeal, “ ‘ “the clear and convincing test disappears... [and] the usual rule of conflicting evidence is applied, giving full effect to the respondent’s evidence, however slight, and disregarding the appellant’s evidence, however strong.” [Citation.]’ [Citation.]” (In re E.B. (2010) 184 Cal.App.4th 568, 578.)
Here, the court expressly found by clear and convincing evidence that returning Sebastian to the parents’ custody presented a substantial danger to his physical and/or mental health and that there was no reasonable means to protect Sebastian other than removing him from the parents’ physical custody. That Sebastian could not be returned to mother was supported by the evidence that brought Sebastian under the court’s jurisdiction – mother’s failure to follow the doctor’s instructions about Sebastian’s medical care. It is further supported by evidence from which it reasonably could be inferred that mother was in denial about her responsibility for Sebastian’s condition. Mother testified that the doctor at Pacific Alliance told her to take Sebastian somewhere with a pediatric department because Pacific Alliance did not have one. But after waiting several hours for a call-back from another hospital, mother took Sebastian home. Mother explained: “If it was an emergency, why didn’t they send me right away?” Thus, rather than take full responsibility for her actions, mother appeared to blame Pacific Alliance.
There was also substantial evidence supporting the finding that Sebastian could not safely be placed with father. This includes the undisputed evidence that on September 19 father told the social worker that he could not care for Sebastian because of his work schedule. Father’s stipulated testimony that he now understands the importance of taking Sebastian to the doctor if he appears unwell and that he will do so if mother does not, did not contradict the evidence that father’s work schedule precluded him from taking physical custody of Sebastian.
Moreover, the evidence showed that Sebastian was medically fragile – although released from the hospital in stable condition, he was still being treated for seizures – and the parents’ inability to care for a medically fragile infant can be inferred from their previous failure to obtain the proper medical care for Sebastian. Neither parents’ testimony demonstrated that they had had gained the necessary skills to care for Sebastian in the weeks since he had been detained. Thus, substantial evidence supported the trial court’s finding that mother and father were unable to protect the medically fragile Sebastian at this time.
Father’s reliance on In re Jeanette S. (1979) 94 Cal.App.3d 52, for a contrary result is misplaced. That case is distinguishable in that it involved dependency jurisdiction and removal based on the parents’ inability to provide a clean home, whereas this case involves the parents’ failure to obtain necessary medical treatment for Sebastian. While periodic visits to the home to assure that it was being kept clean was a reasonable alternative to removal in Jeannette S., periodic visits are not a reasonable alternative in this case where any failure to meet Sebastian’s medical needs between periodic visits could have deadly consequences. Under these circumstances, substantial evidence supported the out-of-home placement order.
DISPOSITION
The order is affirmed.
WE CONCUR: FLIER, J., GRIMES, J.