Opinion
No. H031301
5-17-2007
P.H. et al., Petitioners, v. THE SUPERIOR COURT OF SANTA CRUZ COUNTY, Respondent; SANTA CRUZ COUNTY HUMAN RESOURCES AGENCY, Real Party in Interest.
NOT TO BE PUBLISHED
Richee H. and P.H. petition this court (Cal. Rules of Court, rules 8.450, 8.452) for writ relief from the juvenile courts order terminating reunification services and setting a permanent plan hearing (Welf. & Inst. Code, § 366.26) with respect to their son N. Both parents challenge the sufficiency of the evidence to support the jurisdictional finding under section 300, subdivision (e). They also contend that there was insufficient evidence to support the juvenile courts finding that they were not entitled to reunification services. We deny the petitions.
I. Statement of Facts
N. was born in July 2006. On August 10, 2006, the Human Resources Agency of Santa Cruz County (Agency) filed a petition on behalf of N. pursuant to section 300, subdivisions (a) [serious physical harm], (b) [failure to protect], and (e) [severe physical abuse]. The amended petition alleged: N. sustained multiple leg fractures in both legs non-accidentally in the first 29 days of his life; these leg fractures were in various stages of healing and were not the result of disease or organic etiology; though Ms. H. observed that N. was not moving his leg, she did not report this information to the pediatrician; on July 30, 2006, N. experienced symptoms consistent with head trauma; and the parents did not have a reasonable explanation for N.s condition.
On August 11, 2006, the juvenile court ordered N. detained on the ground that there was substantial danger to his physical and mental health. The juvenile court also ordered supervised visitation three times per week for both parents.
On November 28, 2006, the Agency filed a combined jurisdictional and dispositional report. The social worker recommended that N. be declared a dependent of the court, that no reunification services be offered to his parents, and that a hearing be set to select a permanent plan for him.
In her report, the social worker summarized the history of the case. On July 30, 2006, N.s parents took him to the emergency room at Watsonville Community Hospital, because he was having trouble breathing. According to Ms. H., N.s arm was also moving "strangely back and forth," his eyes were rolling back in his head, and milk that was tinged with blood was coming out of his nose. N. stopped breathing several times. He was then transferred to Stanford Hospital where his condition stabilized. Several tests were conducted, but the results were not significant. On August 6, 2006, N. was released from the hospital. At that time, Mr. and Ms. H. were instructed to take him to his pediatrician the next day. When they took him to Dr. Linda Shaw, she noticed that there was something wrong with one of N.s legs. After an x-ray revealed that his leg was fractured, Dr. Shaw arranged for N. to be readmitted to Stanford Hospital. Subsequent x-rays revealed three leg fractures. The fractures were in N.s right femur, right tibia, and left femur.
The social worker also documented her interviews with Mr. and Ms. H. She interviewed Mr. H. on August 17, 2006. He believed that someone at Stanford Hospital injured N.s legs even though the social worker explained that the fractures were present prior to his admission to the hospital. Mr. H. explained that his wife was the primary caregiver and that she was nearby whenever he fed N. or changed his diaper. He then stated that he did not know what happened to N. Mr. H. also stated that when he noticed that one of N.s legs was larger and was not moving, he suggested that they take N. to the doctor. He did not notice this condition until after N. was released from Stanford Hospital. However, Mr. H. had told the previous social worker that N.s leg looked swollen on July 28, 2006. Mr. H. denied that he had injured N. He did not believe that his wife or N.s maternal great-grandmother, who also lived at the home, had injured N.
The social worker interviewed Ms. H. on August 17, 2006. Ms. H. believed that N. had been injured at Stanford Hospital. She denied that she had hurt N. She did not think that either Mr. H. or her grandmother had hurt N. Ms. H. suggested that N. might have a bone disease. She also stated that she was changing his diaper on July 26, 2006 when she heard "a pop or cracking noise." His leg appeared swollen later that afternoon. Ms. H. denied pulling or twisting his legs when she changed his diaper.
The social worker then interviewed Dr. James Crawford and Dr. Rachel Gilgoff. Dr. Crawford was certain that all three fractures occurred prior to N.s admission to Stanford Hospital on July 30, 2006. Both doctors stated that the fractures were the result of twisting, pulling, and bending. According to Dr. Crawford, the force used was a "`very violent and aggressive act," and "`violent forces were applied to both lower extremities." The doctors stated that the fractures had not been noticed at Stanford Hospital, because the doctors were not aware of any physical trauma, and thus did not have any reason to look for resulting injuries.
On March 5 and 6, 2007, a combined jurisdictional and dispositional hearing was held. Dr. Crawford testified as an expert in pediatrics and the medical evaluation of child abuse and neglect. He testified, "My bottom-line diagnosis is that hes a healthy child who has sustained three different fractures to three different bones as a result of unaccounted-for trauma." According to Dr. Crawford, x-rays indicated that the fractures were at least 10 days old. Thus, the injuries did not occur after July 28, 2006. According to medical records, N. had a "three-day history of fussiness, a change in sleeping patterns, decreased appetite, eye rolling and movements spells" before his parents took him to the emergency room on July 30, 2006. The injuries to N. were "very painful," and N. would have shrieked. However, he would have behaved as a cranky baby as time passed.
Dr. Crawford was asked whether the three fractures occurred as the result of one act. He indicated that they did not and explained that "[t]he type of forces being applied by definition are to different body parts. So whatever happened to the left leg is not going to touch the right leg and vice versa. The injury to the femur on the left and the tibia on the right again is more of a pulling mechanism. The injury to the femur on the right is more of a bending type mechanism. . . . For example, if everything happened between now and a very short order from now, it would be a sequence of closely related events that were from a standpoint different from each other." Dr. Crawford agreed that the injuries "were proximate in time with each other but we dont know how proximate." He also testified that it could have been one incident but that the injuries were the result of two different movements of major force, that is, "pulling as well as bending to the right leg, pulling in isolation to the left."
Melissa Klein, the social worker, testified that N.s gross motor skills were delayed, but he was otherwise healthy. He had not suffered any broken bones while he was in foster care. She also testified that the parents visits with N. were "wonderful." They were "very gentle and caring and attentive to his injuries." They had done everything that the Agency had requested of them. However, she believed that the risks to N.s health and well-being were high, because she did not know who inflicted his injuries. She found it "difficult to imagine [the parents] benefiting from [reunification services] when they dont feel it applies to them."
Dorothy H., Ms. H.s grandmother, testified that Mr. and Ms. H. lived in her home. According to Dorothy H., both parents cared for and loved N. While N. was at Stanford Hospital, she told one of the nurses that she thought his leg looked swollen. The nurse told her that the fluids that they were putting into him caused the swelling. The only people who were caring for N. were his parents.
Ms. H. testified that she asked the doctor at Stanford Hospital whether it was normal for a baby to have a chubby leg. The doctor checked his leg, and said it was fine. She also asked a nurse. After she asked about N.s leg, she phoned Mr. H. to tell him that they said his leg was fine.
Ms. H. also testified that N. might have been injured when they changed his diapers. She explained that she heard "a little noise" when she changed them. N. did not cry when she heard this sound. However, she also testified, "I dont think nobody hurt him, but I think theres something wrong with him."
Mr. H. testified that he mostly worked between 11:00 p.m. and 7:00 a.m. Monday through Friday during the month of July 2006. When he returned from his shift, he would sleep six to seven hours. He would then eat and play with N. On July 28 or 29, Mr. H. noticed that N. would cry when his diaper was changed. Mr. H. did not discuss this with anyone at Stanford Hospital. Mr. H. was also concerned about N.s legs, because they were swollen. When he asked a doctor at Stanford Hospital about the appearance of N.s legs, the doctor responded that it was probably due to the medication that he was receiving.
Mr. H. did not know how N.s legs were broken. He believed that he would be able to protect N. in the future, because neither he nor Ms. H. injured N. He also testified that if N. were placed in his care, he would raise him by himself.
The juvenile court declared N. a dependent of the court, ordered that neither parent should receive reunification services, and set a hearing to select a permanent plan for June 29, 2007.
II. Discussion
Both parents contend that there was insufficient evidence to support the juvenile courts jurisdictional finding under section 300, subdivision (e).
"The standard of review in juvenile dependency cases is the same as in other appeals on grounds of insufficiency of the evidence. We review the record to determine whether there is any substantial evidence, contradicted or not, which supports the courts conclusions. `All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the verdict, if possible." (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1649, quoting In re Katrina C. (1988) 201 Cal.App.3d 540, 547.)
Section 300, subdivision (e) permits the juvenile court to take jurisdiction if "[t]he 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." "`Severe physical abuse means any of the following: . . . more than one act of physical abuse, each of which causes . . . bone fracture . . . ." (§ 300, subd. (e).)
Both parents contend that N.s injuries did not occur as the result of "more than one act of physical abuse." We disagree. The evidence established that N.s injuries were the result of two, possibly three acts, that is, "pulling as well as bending to the right leg, pulling in isolation to the left." The force used was "`very violent and aggressive." These acts might have occurred on the same occasion. However, they were separate acts and thus fell within the statutory definition of "severe physical abuse." (§ 300, subd. (e).)
Mr. H. argues that there was no evidence that he "knew or reasonably should have known" Ms. H. physically abused N. (§ 300, subd. (e).) He points out that the doctors at Stanford Hospital failed to diagnose N.s fractures.
In In re E.H. (2003) 108 Cal.App.4th 659, the minor suffered from multiple fractures that were one to six weeks old. (Id. at p. 661.) Though the perpetrator was never determined, it was someone living in the home. (Id. at p. 670.) The reviewing court held that the requirements of section 300, subdivision (e) were met, because the parents "reasonably should have known (since they lived there) the identity of the perpetrator." (Ibid.)
Here Mr. and Ms. H. were the only individuals providing care for N. Thus, either Mr. H. or Ms. H. caused the three fractures to his legs. Even if this court assumes that Mr. H. did not inflict these injuries, he reasonably should have known that Ms. H. had done so. Mr. H. knew that N. cried when his diapers were changed in late July, yet he never discussed this symptom with medical personnel. In addition to crying when his legs were moved, N. had a "three-day history of fussiness, a change in sleeping patterns, decreased appetite, eye rolling and movements spells" before his parents took him to the emergency room on July 30, 2006. Thus, Mr. H. should have reasonably known that Ms. H. had physically abused N.
Both parents next argue that there was insufficient evidence to support the juvenile courts finding that they were not entitled to reunification services
Section 361.5, subdivision (a) mandates that reunification services are to be provided whenever a child is removed from the parents custody. However, section 361.5, subdivision (b) sets forth several circumstances in which the juvenile court may order the bypass of reunification services. Subdivision (b)(5) provides that the juvenile court may deny reunification services to a parent if "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."
Moreover, there are circumstances in which the juvenile court shall deny reunification services. Section 361.5, subdivision (c) states, in relevant part, that "the court shall not order reunification in any situation described in paragraph (5) of subdivision (b) unless it finds that, based on competent testimony, those services are likely to prevent reabuse or continued neglect of the child or that failure to try reunification will be detrimental to the child because the child is closely and positively attached to that parent. The social worker shall investigate the circumstances leading to the removal of the child and advise the court whether there are circumstances that indicate that reunification is likely to be successful or unsuccessful and whether failure to order reunification is likely to be detrimental to the child." Factors that indicate that reunification services are likely to be unsuccessful include the "failure of the parent to respond to previous services, the fact that the child was abused while the parent was under the influence of drugs or alcohol, a past history of violent behavior, or testimony by a competent professional that the parents behavior is unlikely to be changed by services . . . ." (§ 361.5, subd. (c).)
Here the juvenile court found that reunification services would not prevent reabuse and that the denial of reunification services would not be detrimental to N. There was substantial evidence to support the juvenile courts findings. Since the juvenile court could not determine who had inflicted N.s injuries, there was no evidence that any services would prevent their recurrence. Moreover, N. had been in his parents care for less than a month, and thus was not closely and positively attached to them. Since, the denial of services would not be detrimental to N., the juvenile court properly ordered the bypass of reunification services.
III. Disposition
The petitions for extraordinary writ are denied.
WE CONCUR:
Bamattre-Manoukian, Acting P.J.
McAdams, J. --------------- Notes: All further statutory references are to the Welfare and Institutions Code.