Opinion
D041410.
7-22-2003
In re Z.M.P., et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. G.M., Defendant and Appellant.
G.M. (Mother) appeals the jurisdictional and dispositional orders declaring her children, Z.M.P. (Z.P.) and Z.M.M. (Z.M.), to be persons described by Welfare and Institutions Code section 300 and removing them from her custody. She contends insufficient evidence supported the jurisdictional findings because the evidence did not show she physically abused Z.M. Alternatively, if substantial evidence supports the true finding on Z.M.s petition, she contends the court erred in making a true finding on Z.P.s petition because there was no evidence showing he was at substantial risk of suffering the same type of physical abuse Z.M. suffered. We affirm the orders.
All statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In May 2002, the San Diego County Health and Human Services Agency (the Agency) removed four-year-old Z.P. and two-month-old Z.M. from Mothers custody and filed a section 300 petition on each childs behalf because Z.M. had a subacute subdural hematoma and retinal hemorrhages in both eyes. In August, Mother submitted on the report, and the court made true findings on the section 300, subdivision (e) allegation in Z.M.s petition and one of the section 300, subdivision (j) allegations in Z.P.s petition. In October, the court removed the children from Mothers custody and ordered reunification services.
In June, the Agency filed amended petitions.
The remaining allegations were dismissed.
DISCUSSION
I
Mother contends insufficient evidence supported the finding that Z.M. was a person described by section 300, subdivision (e) because the evidence insufficiently established Mother caused the injuries and the experts opinion that Z.M. would suffer symptoms shortly after injury was not supported with sufficient foundation.
At the jurisdictional hearing, the court determines whether the child falls within any category in section 300. (In re Michael D. (1996) 51 Cal.App.4th 1074, 1082.) The petitioner in a dependency proceeding must prove by a preponderance of the evidence that the child who is the subject of a petition comes under the juvenile courts jurisdiction. (In re Shelly J. (1998) 68 Cal.App.4th 322, 329.)
Here, the court took jurisdiction over Z.M. under section 300, subdivision (e), which provides in part:
"The child is under the age of five and has suffered severe physical abuse by a parent, or by any person known by the parent, if the parent knew or reasonably should have known that the person was physically abusing the child. For the purposes of this subdivision, severe physical abuse means any of the following: any single act of abuse which causes physical trauma of sufficient severity that, if left untreated, would cause permanent physical disfigurement, permanent physical disability, or death . . . or more than one act of physical abuse, each of which causes bleeding, deep bruising, significant external or internal swelling, bone fracture, or unconsciousness."
Here, the evidence shows the doctor who treated Z.M. was "highly certain" the injury had happened the evening before Z.M.s hospitalization because of her symptoms at the time of admission. She had a subdural hematoma with acute bleeding into the brain. The blood building up in her skull put pressure on her brain, and pushed it to the other side of her skull. She had suffered a stroke. In addition, she needed blood, which, in the doctors opinion, showed the injuring incident happened recently. Further, she began to show signs of being unwell at 1:00 a.m., when she had seizures. Within 30 minutes, she was running a high temperature and was cranky and "moaning." She vomited at 4:00 a.m.
Mother was the only adult caring for Z.M. after 3:30 p.m. when the babysitter left. Mother admitted the child was fine at that time. She was not fussing, complaining, or running a temperature. Although the babysitter returned about an hour later, she stayed at the home less than 30 minutes and did not see any other adults in the home. Mother did not assert any other adult was present in the home that evening.
Z.M. was also fine the day before.
Mother contends the evidence is insufficient because the social worker should have asked the doctor whether the incident occurred in the afternoon. However, once the Agency introduced evidence showing the injury happened in the evening, Mother had the burden to offer evidence showing the injury happened at a different time. Because she did not, the court could reasonably conclude the injury happened in the evening while the child was in Mothers care.
Moreover, the doctor who treated Z.M. believed her injuries were nonaccidental and were "highly suspicious of damage from physical forces." She believed the injuries were consistent with being shaken too hard. Mother introduced no contrary evidence and had no explanation for the injuries. The babysitter did not report Z.M. had fallen or had been in an accident. Although Z.M. could have sustained her injuries by falling from a building or being in a severe car accident, she had not fallen, hit her head, been in a car accident, or been injured since birth.
Mother also contends the evidence was insufficient because the doctor did not provide any foundation for her opinion that Z.M. was injured in the evening. An experts opinion "is no better than the facts on which it is based." (Kennemur v. State of California (1982) 133 Cal. App. 3d 907, 923, 184 Cal. Rptr. 393.) However, the party who contends the facts upon which an expert bases his or her opinion are insufficient must object on that basis at the hearing or otherwise waive the contention on appeal. (Wagner v. Osborn (1964) 225 Cal. App. 2d 36, 44, 37 Cal. Rptr. 27; see also People v. Rodriquez (1969) 274 Cal. App. 2d 770, 775-776, 79 Cal. Rptr. 240.) Here, Mother submitted on the report and did not challenge the foundation of the doctors opinion. She knew she had the right to have a hearing on the jurisdictional issues and call the doctor as a witness. (Cal. Rules of Court, rule 1412.) She also knew a consequence of submitting on the report was that the court was likely to find the petition to be true. However, because she waived her right to a hearing or call the doctor as a witness, she has waived her right to challenge the foundation of the doctors opinion here. In any event, the doctor opined Z.M.s symptoms at the time of admission and her need for blood placed the injury in the evening, which is sufficient foundation for her opinion. Substantial evidence supports the finding that Z.M. is a person described by section 300, subdivision (e).
II
Mother contends insufficient evidence supported the finding that Z.P. was subject to the courts jurisdiction because there was no evidence he was at substantial risk of suffering the same type of physical abuse that Z.M. suffered.
Mother also contends the true finding on Z.P.s petition should be reversed because the true finding on Z.M.s petition had no merit. However, because substantial evidence supports the true finding on Z.M.s petition, we need not address this argument.
The court made a true finding that Z.P. was a person described by section 300, subdivision (j). That subdivision provides:
"The childs sibling has been abused or neglected, as defined in subdivision (a), (b), (d), (e), or (i), and there is a substantial risk that the child will be abused or neglected, as defined in those subdivisions. The court shall consider the circumstances surrounding the abuse or neglect of the sibling, the age and gender of each child, the nature of the abuse or neglect of the sibling, the mental condition of the parent or guardian, and any other factors the court considers probative in determining whether there is a substantial risk to the child."
To sustain a section 300, subdivision (j) finding, there must be a risk the minor will be mistreated in a manner similar to that of his or her sibling. (In re Jason L. (1990) 222 Cal. App. 3d 1206, 1217, 272 Cal. Rptr. 316.) Mother argues Z.P. was not at risk, because even assuming she shook Z.M., a four-year-old child would not be harmed if shaken, because he is physically old enough to withstand such treatment. Further, she asserts it is unlikely she would shake him because he can communicate with her. However, Z.P. is not at risk because Mother might shake him; he is at risk because Mother cannot control her actions when she becomes frustrated with her children. In addition to shaking Z.M., she taped Z.P.s mouth shut and tied to him to a chair when he did not want to eat. She did so because he was "not [a] good boy" and because he did not like the food provided. She admitted hitting him with her belt when he "got smart." Further, Z.M. had an older brain injury and appeared to be in pain when her leg was lifted, from which the court could reasonably infer Mother had injured her at other times.
Mother also contends the Agency had to demonstrate she would mistreat Z.P. in such a way as to put him at risk of permanent physical disfigurement, permanent physical disability, or death. However, under section 300, subdivision (e), one definition of severe physical abuse is "more than one act of physical abuse, each of which causes bleeding, deep bruising, significant external or internal swelling, bone fracture, or unconsciousness." A child who is hit by belt or tied to a chair could suffer bleeding, deep bruising, external or internal swelling, or unconsciousness if hit in the head.
Moreover, the evidence showed Mother had no experience being a parent. When Z.P. was approximately one month old, she made arrangements for her family to care for him. After that, she saw him only once or twice a year. She did not begin to care for him until after Z.M. was born. Consequently, she went from having no parental responsibilities to parenting a four year old and a newborn. A person under such circumstances could easily become overwhelmed.
Further, there is no evidence Z.P. could protect himself. As a young child, he is deserving of special protection. (In re Rocco M. (1991) 1 Cal.App.4th 814, 824.) He had no means to seek help or protect himself because he was not in daycare with a licensed provider or otherwise in contact with persons who are mandated by law to report suspected child abuse. His babysitter had not telephoned the police or the Agency when he told her he had been hit, tied to a chair, and had his mouth taped shut. A court need not wait until the child is harmed to intervene. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, disapproved on other grounds by Renee J. v. Superior Court (2001) 26 Cal.4th 735, 749, fn. 6.) This is because the paramount purpose underlying the dependency proceeding is the protection of the child. (In re Jason L. , supra, 222 Cal. App. 3d at p. 1214.) Substantial evidence supports the courts finding that Z.P. was a person described by section 300, subdivision (j).
DISPOSITION
The orders are affirmed.
WE CONCUR: McINTYRE, J., AARON, J.