Opinion
E041387
12-12-2006
O. P. Petitioner, v. THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; SAN BERNARDINO COUNTY DEPARTMENT OF CHILDRENS SERVICES, Real Party in Interest.
Melvin Frieldand for Petitioner. No appearance for Respondent. Dennis E. Wagner, Interim County Counsel, and Dawn M. Messer, Deputy County Counsel, for Real Party in Interest.
Petitioner O. P. (mother) challenges the juvenile courts findings that her two young children are within the jurisdiction of the juvenile court and its further ruling denying her reunification services. For the reasons set forth below, we deny the petition.
STATEMENT OF FACTS AND PROCEDURE
Jermaine was born in May 2006. At his one-week checkup, all seemed normal. When he was 11 days old, mother noticed Jermaines eyes were "cloudy and red" and took him to the emergency room. At that time, the emergency room doctor consulted with a pediatrician and concluded that the redness, swelling, and slight bruising of the eyes could have happened at birth, although the symptoms were new and Jermaine was born by cesarean section. Jermaine received no treatment. The redness and swelling subsided over the next two weeks.
On the evening of June 26, 2006, mother and Jermaines father (parents) brought Jermaine to the emergency room. Jermaine suffered from fractures of eight ribs and brain hemorrhaging, all in different stages of healing. Doctors feared that he might not survive the injuries. The extreme swelling and bleeding of the brain resulted in the "differentiation between the white and gray brain matter [being] lost." Both the treating physician and the responding police officer interviewed each parent at length, and neither parent was able to provide a feasible explanation for how Jermaine incurred these severe injuries. The San Bernardino County Department of Childrens Services (department) placed a hold on Jermaine at the hospital. The social worker picked up Jermaines one-year-old sister, J., from the family home and placed her in foster care.
Jermaines treating physician told the social worker that the one-month-old infant had multiple rib fractures, some recent and some having been inflicted at various earlier times, appearing to date back to when Jermaine was only one week old. Similarly, Jermaine had acute head trauma, with evidence of both new and old head trauma. The treating physician estimated that the most recent head trauma occurred on Saturday, June 24, or Sunday, June 25. Doctors later confirmed that the last brain injury occurred "within a day" before Jermaine was admitted to the hospital. The morning after Jermaine was admitted to the hospital, the investigating police detective observed several large bruises on Jermaines back that appeared to be fading.
The parents were interviewed separately at the police station the next morning, June 27, 2006. The interview with mother was tape-recorded. The parents were interviewed again "at length" on July 5, 2006, by a police detective and the social worker. These interviews were tape-recorded and videotaped. Mothers description of events during the time in which Jermaine likely was injured was not consistent, both between the two interviews and over the course of the first interview. This led detectives and the social worker to conclude that mother was not being truthful.
Between the two parents, the following explanations were offered for the injuries: Jermaine fell from his car seat onto the floorboard of the family car or slipped onto the backseat; a two-year-old cousin picked the infant up out of a bassinet with a 40-inch railing; and an aunt cared for the infant alone while the family was swimming outside. Medical staff discounted these explanations as not being consistent with Jermaines injuries.
A relative reported that father had been seen tossing the infant into the air, two feet above his head, and then catching him with his hands around the infants midsection. Both mother and father initially denied this; then, mother eventually admitted that she saw it happen. Mother stated she argued with father about this and told him not to do it again.
Mother took Jermaine to visit father, who lived in another city, on June 7 or 8. At midnight on June 8, mother noticed Jermaines eyes were cloudy. In the morning, he woke up with red eyes. Mother reported that when she took the infant to the emergency room, the doctor told her the redness was pressure from labor, although the infant was born by cesarean section. Mother again picked father up from his home on June 20, 2006, so he could stay with her and Jermaine. Mother gave varying versions of the days before Jermaine was hospitalized. During the initial interview on June 27, 2006, mother told the investigating detective that she and father argued on June 24, a Saturday. Father pushed her against a wall and put his arm around her neck. Mother stated that she believed father might have shaken the baby while she was asleep that night because he was upset with her. Mother later told the detective that she and father argued on June 24 and that she took J. outside and left Jermaine inside with father. Mother also told the detective that after she and father argued, father locked her out of her bedroom where Jermaine was sleeping in the bassinet. While father was in the bathroom, mother opened the locked door with a butter knife to check on Jermaine. Jermaine was asleep, but mother saw that his eyes were cloudy. Mother slept in another room that night while father slept in the bedroom with Jermaine.
In one version of events, mother said she first noticed something wrong on the evening of Sunday, June 25, about 9:30 p.m. Jermaines arms were jerking as he slept. In another version, mother stated she notice around 4:00 p.m. on June 25 that Jermaines eyes were "turning cloudy and sleepy . . . like when he had the redness when he was younger." Father gave him a bath around 11:00 p.m. Jermaine slept through the bath, which was unusual because he does not like the water. Jermaine then slept through the entire night, instead of waking up three to four times to eat. The parents woke Jermaine at 11:00 a.m. on Monday, June 26, and fed him two ounces of formula. The parents left Jermaine with relatives while they took J. with them shopping at various stores. When the parents returned from shopping, they decided to take Jermaine to the emergency room because he was not eating well, he did not look right, and he would lay with his head, arms, and legs hanging down and his eyes would roll back in his head.
On June 29, 2006, the department filed a juvenile dependency petition as to both children, alleging serious physical harm (Welf. & Inst., § 300, subd. (a)); failure to protect (§ 300, subd. (b)); severe physical abuse (§ 300, subd. (e)); and abuse of sibling (§ 300, subd. (j)). At the detention hearing on June 30, 2006, the parents denied the allegations. The juvenile court ordered the children detained and authorized the parents to have supervised visitation with both children.
After about one month in the hospital, Jermaine was placed in a foster home for medically fragile children.
At the jurisdiction/disposition hearing held on September 18 and 19, 2006, the treating physician testified that Jermaine suffered from "shaken baby syndrome," and that his injuries could not have been caused by a fall. She also testified that the most recent brain injuries were likely inflicted 48 to 72 hours prior to the brain scan that was performed on June 27. In addition, the physician testified that Jermaine suffered from a fractured leg that could only have been caused by someone yanking on the leg. Overall, the physician testified that it was her opinion that Jermaines injuries resulted from trauma, caused by intentional abuse. The physician described Jermaines prognosis as "very poor." Most of Jermaines brain was dead, leaving him in a vegetative state.
When mother testified, she denied telling the police detective during the June 27, 2006, interview that she believed father might have injured Jermaine on June 24 by shaking him. She also denied telling the detective that father pushed her and held her up against a wall during an argument on June 24. However, when informed on cross-examination that her interviews with detectives had been tape-recorded, mother admitted that father pushed her up against a wall. Mother also admitted that she had told the detective that she thought father may have taken out his anger with her on Jermaine the evening of June 24, but stated she had only told the detective what he wanted to hear.
At the end of the hearing on September 19, 2006, the juvenile court found by a preponderance of the evidence that father had purposely caused Jermaines injuries and that mother should have known this. The court found that Jermaine came within the juvenile courts jurisdiction under section 300, subdivisions (a) [serious physical harm], (b) [failure to protect], and (e) [severe physical abuse], and that J. came within the juvenile courts jurisdiction under section 300, subdivisions (a), (b) and (j) [abuse of sibling]. The court denied reunifications services for Jermaine under section 361.5, subdivision (b)(5) [the "conduct of that parent" caused severe physical abuse], and J. under section 361.5, subdivision (b)(6) [severe physical harm to a sibling] and (b)(7) [reunification services denied as to a sibling because of severe abuse]. The court set the permanent plan hearing (§ 366.26) for January 17, 2007. Mother then filed her petition for extraordinary writ pursuant to California Rules of Court, rule 38.1(a).
DISCUSSION
1. Sufficient Evidence to Support the Jurisdictional Finding
Mother contends the juvenile court erred in finding that Jermaine was a dependent child under section 300, subdivision (e), because there was insufficient evidence to support the finding that she knew or reasonably should have known that Jermaines father was abusing him.
Section 300 authorizes the juvenile court to adjudge a child a dependent child of the court under certain specified circumstances. Subdivision (e) provides one of those circumstances and states in part: "The child is under the age of five years 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." Mother does not argue that Jermaine was not severely abused. She does argue, however, that she did not know, and could not reasonably have known, that Jermaine was being abused.
In reviewing the juvenile courts jurisdictional finding, we apply the substantial evidence standard. (In re E.H. (2003) 108 Cal.App.4th 659, 669 (E.H.).) In applying the substantial evidence standard, we consider the record as a whole and determine whether it contains substantial evidence, i.e., evidence that is reasonable, credible, and of solid value to support the courts findings. (Ibid.)
In the dependency petition, the department alleged that, "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, and if the parent knew or reasonably should have known that the person was physically abusing the child." We conclude that substantial evidence supports this allegation and the courts finding under section 300, subdivision (e).
Mother asserts that the evidence shows father had not exhibited any violent tendencies toward their first child, that she did not observe any abuse of Jermaine, and that she routinely took Jermaine to the hospital whenever he exhibited peculiar behavior. She then argues that this negates a finding that she knew or reasonably should have known that Jermaine was being abused.
In E.H., supra, 108 Cal.App.4th 659, the appellate court confirmed that a true finding under section 300, subdivision (e), does not require that the parent have actual knowledge that the child is being abused. Rather, the court stated that "the only requirement is that they reasonably should have known." (E.H., supra, 108 Cal.App.4th at p. 670, italics added.) In that case, the appellate court agreed with the social services agency that a "res ipsa loquitur" type of argument can support a jurisdictional finding under section 300, subdivision (e), under a set of facts remarkably similar to those we consider in the present case. (E.H., supra, 108 Cal.App.4th at pp. 669-670.)
"There was severe physical abuse of a child under five (E.s broken bones) and the child was never out of her parents custody and remained with a family member at all times; therefore [the parents] inflicted the abuse or reasonably should have known someone else was inflicting abuse on their child . . . . [This is] the only reasonable conclusion which may be drawn from the evidence." (E.H., supra, 108 Cal.App.4th at pp. 669-670.)
In this case, unlike in E.H., mother was aware that father had some tendency toward violence. Mother told the police detective during the initial interview that father had abused her twice in the past. In addition, mother knew that father had a criminal background involving an assault charge in Colorado and an active warrant.
The evidence also supports a finding that mother at least suspected that father was abusing Jermaine. Mother stated that father "sometimes play[ed] too much" with Jermaine, and that she had seen him throwing Jermaine up in the air, about two feet from the roof, and catching him around his ribs. Mother also told a police detective during her initial interview that she and father had argued two days before they took Jermaine to the hospital and that she suspected father might have taken out his anger on the infant while she was locked out of the room. Mother testified at the jurisdiction/disposition hearing that she first noticed something wrong with Jermaine on Sunday evening, but she did not take him to the hospital until the evening of the following day, after returning from a day of shopping.
As the department points out in its response to mothers petition for extraordinary writ, mother was Jermaines primary caretaker and only occasionally left him in the care of father or family members, in a set of facts very similar to those in E.H. This, combined with the fact that Jermaines injuries occurred over approximately a three-week period, from the age of about one week to four weeks, rather than resulting from a single incident, supports the juvenile courts finding that mother knew or should have known that father was physically abusing Jermaine.
2. Denial of Reunification Services to as to Jermaine
Mother contends that the trial court erred when it denied her reunification services as to Jermaine, because the jurisdictional finding was not based on her own conduct, but rather on that of father.
"Reunification services need not be provided to a parent or guardian . . . when the court finds, by clear and convincing evidence . . . (5) [t]hat the child was brought within the jurisdiction of the court under subdivision (e) of Section 300 because of the conduct of that parent or guardian." (§ 361.5, subd. (b)(5), italics added.)
Mother advances no legal support for this argument, other than the language of the statute. However, the respondent department cites a case which directly counters mothers statutory argument. "[T]he Legislature intended subdivision (b)(5) of section 361.5 to apply to the parent who, knowing the actual abuser, knows or reasonably should have known that the other person was physically mistreating the child." (In re Joshua H. (1993) 13 Cal.App.4th 1718, 1732.)
Thus, because case law holds that the juvenile court need not provide reunification services to a parent who should have known the child was being abused, and because the evidence supports the juvenile courts finding that mother should have known that father was abusing Jermaine, we conclude that the juvenile court did not err when it denied mother reunification services as to Jermaine under section 361.5, subdivision (b)(5).
3. Denial of Reunification Services as to J.
Under section 361.5, subdivision (b)(7), "Reunification services need not be provided to a parent or guardian . . . when the court finds, by clear and convincing evidence . . . (7) [t]hat the parent is not receiving reunification services for a sibling . . . pursuant to paragraph (3), (5), or (6)." Mother argues in her petition that J. does not fall under this provision because the court erred in denying her reunification services to Jermaine under section 361.5, subdivision (b)(5). However, as stated above, we conclude that substantial evidence supports the juvenile courts decision to deny reunification services under that very subdivision. Thus, mothers argument on this point fails.
Because we uphold the denial of reunification services as to J. under section 361.5, subdivision (b)(7), we need not address mothers arguments on this same issue based on section 361.5, subdivision (b)(6).
DISPOSITION
The petition is denied.
We concur:
KING, J.
MILLER, J. --------------- Notes: All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.