Opinion
C086730
12-13-2018
In re J.A., a Person Coming Under the Juvenile Court Law. SACRAMENTO COUNTY DEPARTMENT OF CHILD, FAMILY AND ADULT SERVICES, Plaintiff and Respondent, v. P.A., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JD238563)
P.A., mother of the minor, appeals from the juvenile court's orders removing the minor from her custody, awarding custody to the minor's father, and terminating dependency jurisdiction. (Welf. & Inst. Code, § 395.) She contends insufficient evidence supported the removal order and that the juvenile court abused its discretion in terminating dependency jurisdiction and ordering her visits be supervised. Disagreeing, we shall affirm.
Undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
On November 2, 2017, the Sacramento County Department of Child, Family and Adult Services (the Department) filed a section 300 petition on behalf of the then three-year-old minor, alleging that on October 25, 2017, he ingested a chemical substance and sustained injuries to his mouth, neck, and esophagus while in mother's care, and that mother's version of the events and timing was inconsistent with the injuries.
Mother's Statements and Testimony
Mother told the treating physician at the hospital that the minor had been picked up from preschool and taken home by his babysitter at 5:30 p.m. He ate dinner and was taken to the park where, according to the babysitter, he slipped and hit the side of his face. The babysitter took the minor home, fed him a snack, and put him to bed. After she arrived home at around 11:00 p.m., mother found the minor coughing, drooling, and having trouble breathing, and observed blistering on the side of his face and swelling around his mouth. The treating physician concluded that the injuries appeared to have been caused by the ingestion of a chemical. Mother reported that she keeps bleach and other cleaners under the bathroom sink and does not have safety locks on the cabinets.
The following morning, mother told the same general facts to the social worker, but added that she had called 911 and then driven the minor to the hospital because the ambulance took too long. She told the social worker she keeps her cleaning supplies under the bathroom sink but keeps bleach in an upper cabinet. She added the babysitter takes the bleach out to use for cleaning. Mother agreed to let the social worker view her apartment, but then said she could not reach the social worker at the number she was provided.
In February 2018 a detective interviewed mother about the incident. Mother related the same general facts as she had told the physician and social worker but added that the babysitter reported she had heated some milk in the microwave earlier, which may have caused the burns. Mother did not call 911 because of a previous bad experience. She told the detective she believed the minor had ingested hot milk or had been forced to drink a caustic chemical while in the babysitter's care and that all the chemicals in the home were kept in a locked cabinet in the laundry room. Mother became more agitated and frustrated as the detective asked more detailed questions. When the detective asked mother if she ever threatened to hurt herself or the minor, or if she ever heard voices, she became very agitated and denied the accusations. The detective was "concerned about [mother's] mental health."
At the detention hearing, mother testified that on the night of the incident, as soon as she walked into the house the babysitter told her the minor had fallen and bruised his face. She found the minor in bed, sweating and drooling. She saw what appeared to be a "blistered burn" on the left side of his face.
Mother asked the babysitter to send her an e-mail explaining the fall, which mother intended to forward to father, who might question mother's care of the minor when he saw the injury. The minor then vomited; while mother cleaned him up and changed his clothes, she realized his condition was "really serious." She did not call 911, but instead took the minor to Kaiser hospital after calling the Kaiser advice nurse.
Mother and father are divorced; father saw the minor on weekends.
Mother testified she told Kaiser doctors she kept her laundry and cleaning items, including bleach, in the laundry area outside the reach of the minor. She did tell them the bathroom cabinet was unlocked. She believed the minor drank bleach at the babysitter's house; perhaps some bleach the babysitter may have left out after washing the minor's thumb protectors.
Babysitter's Statements and Testimony
The babysitter told the social worker that she had picked the minor up from day care around 5:30 p.m. and brought him to mother's house. The minor went to the bathroom on his own while she started preparing dinner. He ate dinner and then they walked to the park; while there, he fell from a structure and scratched his face.
The minor had warm milk at around 8:15 p.m. and was in bed by 9:00. He behaved normally. She checked on him around 10:00 p.m., and he was asleep.
When mother came home (which was usually between 11:00 p.m. and 11:15 p.m.), the babysitter told her about the fall. Mother went to check on the minor and the babysitter followed a few minutes later. Mother had him on her lap and he was awake. Mother asked her to write an e-mail explaining his fall. Everything in the bathroom looked normal and nothing was out of place. The minor did not appear upset and the scratch on his face looked the same. The babysitter gave him some water from a cup with a straw that mother keeps on the kitchen table. He did not react or vomit after he drank it. Mother told the babysitter she could leave; mother and the minor walked her to the door, she hugged him goodbye and left. He was acting normally the entire time.
The babysitter's testimony at the combined jurisdiction/disposition hearing was consistent with what she told the social worker. She added, and had also told the social worker, that the minor complained the warm milk she heated in the microwave for him was too hot, so she told him to let it cool. She did not think he swallowed any of the hot milk. The doctors said his burns could not have been caused by mere scalding.
Regarding the "thumb protectors," the babysitter described them as gloves that leave the fingers exposed but cover his thumbs to help stop his thumb sucking. She washes the protectors in a glass of hot water with a little soap and bleach. She lets them soak as she does the dishes and then rinses them out and lets them dry on the kitchen sink. The babysitter said mother has detergent and bleach in the laundry areas, and keeps cleaners under the bathroom sink, which is not safety locked.
Minor's Special Assault Forensic Evaluation (SAFE) Interview
A SAFE interview took place on February 7, 2018. The minor indicated he had two "owies." One that he got at father's house from a fall. The other (in his mouth) he got at mother's house. The minor was asked about the "owie" in his mouth and on his chest. He said his mommy gave him some medicine and that the medicine was white. He said she was present when he got his owie. He mentioned the word "burn" and referenced "bath" or being in the shower.
Physicians' Statements and Testimony
Michele Evans, M.D., a pediatrician and regional medical director for Kaiser Permanente Child Abuse Services and Prevention Program, testified as an expert in child abuse, including investigations related to child abuse and maltreatment. Evans evaluated the minor's injuries and consulted with a burn specialist and a toxicologist. In addition to an abrasion near the minor's ear, consistent with a fall, the minor had received a grade three chemical burn to his esophagus. There was also some swelling of his oral cavity, primarily the lips and larynx, but no injury to his stomach. The injuries could have been caused by any very acidic or very basic substance but were most likely caused by a cleaning product such as bleach.
The minor's vomiting would explain the blistering on the minor's mouth, face, and neck, as well as the lack of damage to his stomach. Evans would have expected to see indications on his clothing if he ingested the chemicals himself, but there were no notes of chemical or bleach stains on clothing at the time of hospital admission.
Dr. Kevin Haug, the treating physician, testified as an expert in general pediatrics. He said he would anticipate symptoms from this ingestion within minutes to "maybe a half an hour." Haug would expect the minor to be crying or fussy, drooling, with mouth and throat swelling, pain, some difficulty swallowing, and possibly some spitting. Those symptoms would progress over the next several hours. It is possible he could fall asleep in this condition. When the minor first arrived at the hospital, he had mild to moderate symptoms. When Haug saw him later, he had more significant symptoms. Based on the timing of mother's call to the Kaiser advice nurse, Haug opined the minor probably ingested the chemical around 11:00 p.m., but no more than an hour or two before he presented symptoms.
Haug also testified that it is not plausible that thumb protectors being washed in bleach would have caused the extent of damage to the minor's esophagus. The minor had swallowed straight chemical. The blisters on his face were likely from a splash or a couple of drops of the chemical he had consumed.
Father's Statements and Testimony
The minor's father stated that mother e-mailed him at 12:46 a.m. stating the minor was at the emergency room but did not tell him any details. Around 2:00 a.m., he received a forwarded message from mother in which the babysitter apologized for taking the minor to the park where the child fell and was hurt. He was concerned about the minor's care in part because previously the minor had fallen while he was with mother. Father testified that with respect to what happened on the night of October 25, 2017, the minor told him, "Mommy -- Mommy gave me hot -- hot medicine." The first time the minor told him this was about a month after the incident. Each time father heats something to drink, the minor wants to check it. The minor also said this when father was giving him medication through the G-tube; he also worries the shower water will be too hot.
Father wished to have the minor placed with him and said the paternal grandmother lived with him and he had her support in caring for the minor. He was willing to participate in services even though the allegations were not about him. He was attending American River College and employed as a Certified Nursing Assistant. He testified mother had physically abused him and that in May 2016, she called and left a voicemail telling him that if he did not come back, she was going to kill the minor and herself. He was concerned that she hallucinates, hears voices, and is violent. On one occasion, she claimed to see her late mother and that "things [were] hovering in the house." She fought with him when they lived together; he worried that the minor will be her "next target."
Previous Child Protective Services and Law Enforcement Contact
A substantiated referral alleging physical abuse of the minor by mother was made in October 2015. The reporting party stated there had been a domestic violence incident in the home between the mother and paternal grandmother and father while the child was in the home. Father and grandmother moved out and the situation stabilized.
Law enforcement had also responded to a call of a domestic violence disturbance between the parents in April 2017.
Minor's Placement
The minor was detained from mother's custody and placed with father on November 2, 2017. The social worker visited on December 16, 2017, and noted that minor appeared to be doing well in his placement with father and did not present with any behavioral or emotional concerns. The minor was "very engaging" with father and initiated play with him. Father reported the minor had been "traumatized" by the incident and initially had difficulty sleeping and eating. By the time of the social worker's visit, the minor was sleeping through the night and his drooling had stopped. He was no longer on the G-tube for feeding and was able to eat regular soft food. Mother was visiting twice weekly.
There had been an issue with father not dropping the minor off at the preschool consistently or on time; he explained the minor was either tired or refused to go to school, which caused delays.
Juvenile Court's Jurisdiction/Disposition Ruling
In addition to hearing the testimony, the juvenile court viewed the video of the mother's police interview and the body camera footage taken at the hospital. Dispatch had confirmed that mother had not called 911 the evening of the incident.
The juvenile court sustained the allegations in the petition. In its ruling, the court began by noting that the ingestion either occurred accidentally, by the minor finding the caustic substance, possibly in an unlocked cabinet, or intentionally, by someone giving the substance to the minor to drink. The court stated that, had the minor accidentally gained access to the substance in the home, "it could have been easily explained." Instead, it found mother's response to be concerning and her statements to be inconsistent. Moreover, given the minor's age, the reasonable inference would be that there would be some visible evidence had the minor gotten into the substance himself, like a container left uncapped or out of place, or spillage on his clothing or surrounding surfaces. But mother did not cooperate with the social worker and accordingly there was no evidence of an accident.
The court expressly discounted mother's testimony that when she arrived home the minor presented with symptoms. Instead, the court believed the babysitter that the minor was fine when she left. The court also believed the babysitter that nothing was out of place in the bathroom when she left, and the minor had been asleep for an hour or two before mother came home. The court "completely reject[ed] the notion" that the ingestion occurred on the babysitter's watch.
The court found mother's untruthfulness when speaking to the detective was apparent from the video. It further found it "unusual and suspicious" that mother would take the time to bathe the minor and change his clothes before obtaining medical care, and that she would not call 911, and troublesome that she would take the time to e-mail father about the minor's fall while the minor was having severe symptoms. The court found the minor's statements at the SAFE interview to be "haunting."
The court found substantial risk to the minor if returned to mother because mother would not acknowledge any responsibility for what happened. Instead, she made false statements and attempted to blame others. As a result, the court did not believe there was a service at this point that would alleviate the risk to the minor and that "simply putting locks on the cabinet doors does not alleviate the concerns that the Court has." The court adjudged the minor a dependent, removed him from mother's custody, placed him in father's custody, granted mother supervised visitation, and terminated the dependency. In ordering mother's visits to be supervised, the court explained: "And I do want to make it clear that the Court is ordering supervised visits because the Court finds by clear and convincing evidence that the child received grade-two-to-four esophageal burns as the result of the ingestion of a caustic substance. [¶] The ingestion occurred while in the mother's care and custody. The Court specifically rejects the mother's testimony that the ingestion occurred while in the care of the child's babysitter."
DISCUSSION
I
Removal from Mother's Custody
Mother first contends there was insufficient evidence to support the juvenile court's order removing the minor from her care, arguing that the evidence was not sufficient to support the court's finding of substantial danger to the minor's physical health and safety if he were returned to her home. We disagree.
To support an order removing a child from parental custody, the juvenile court must find clear and convincing evidence "[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 . . . physical custody." (§ 361, subd. (c)(1).) " 'The jurisdictional findings are prima facie evidence that the child cannot safely remain in the home. [Citation.]' [Citation.]" (In re John M. (2012) 212 Cal.App.4th 1117, 1126.) The juvenile court must also "make a determination as to whether reasonable efforts were made to prevent or to eliminate the need for removal of the minor" and "state the facts on which the decision to remove the minor is based." (§ 361, subd. (e).)
We review the dispositional order removing a child from parental custody for substantial evidence. (In re John M., supra, 212 Cal.App.4th at p. 1126.) The evidence is considered "in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order. [Citations.]" (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) "In the presence of substantial evidence, appellate justices are without the power to reweigh conflicting evidence and alter a dependency court determination." (Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 705.)
Mother argues that the jurisdictional findings do not support removal because it was more likely that the babysitter than mother was lying about what happened that night. We do not reweigh evidence or reevaluate credibility on review. (People v. D'Arcy (2010) 48 Cal.4th 257, 293.) In making its credibility determination, the juvenile court noted it had the opportunity to watch the videos and see and hear the testimony of mother, the babysitter, and the social worker. It found mother lacked credibility and rejected the notion that the caustic ingestion occurred on the babysitter's watch. This finding is well-supported. Mother's statements were inconsistent and the babysitter's were consistent; further, the babysitter's statements were consistent with the doctors' conclusions and entirely plausible.
Mother also complains that the court considered hearsay testimony about what the minor said at the SAFE interview, contrary to the recent California Supreme Court ruling in In re I.C. (2018) 4 Cal.5th 869 at pages 875, 886-887, which held that the court cannot base its jurisdictional finding solely on a hearsay statement of a child too young to separate truth from falsehood, unless the child's statements bear special indicia of reliability. Although mother devotes significant analysis establishing there was no "special indicia of reliability" here, she fails to recognize that the juvenile court's findings in this case were not based solely (or even significantly) on the minor's statements. Thus, the concerns addressed in In re I.C. were not present here and the holding is inapposite.
Mother also argues removal was not necessary because she had changed her work schedule to obviate the need for a babysitter. The juvenile court, however, expressly found the minor's injury occurred while he was in mother's home and care, not in the care of a babysitter. Thus, mother's promise to spend even more time alone with the minor does not advance her argument against removal in the slightest.
Although mother posits that there were reasonable alternatives to removal, such as services, locks on the cabinets, and unannounced visits, in light of the severity of the minor's injuries and mother's failure to acknowledge her role in their acquisition, the evidence amply supports the juvenile court's conclusion that the minor remained at risk as long as he was in mother's care. The court was concerned that mother had not been forthcoming and instead had attempted to shift blame to the babysitter. Mother's inability or refusal to explain how the minor obtained the caustic substance suggests that she may be unable or unwilling to prevent another occurrence in the future without substantial services, at the least. Thus, the court's finding that there were no reasonable means by which the minor's physical health could be protected without removing him from mother's custody is supported by the record.
The dispositional order removing the minor from mother's custody is supported by the evidence.
II
Termination of Dependency Jurisdiction
If the juvenile court orders a minor removed from the custodial parent's home, and there is a nonoffending, noncustodial parent who desires custody of the minor, the court must place the minor with the noncustodial parent unless doing so would be detrimental to the minor's safety, protection, or physical or emotional well-being. (§ 361.2, subd. (a).) Here, the court found that father was a nonoffending, noncustodial parent and there was no evidence that placing the minor with him would cause detriment to the minor.
Mother asserts that the juvenile court erred by not maintaining jurisdiction and supervising father, in case father turned out "to be a poor parent who may need services and/or who may not be capable of maintaining custody," as demonstrated, she argues, by his repeated tardiness in getting the minor to preschool. Mother also attacks father's veracity based on his decision to assert his Fifth Amendment rights during questioning about a prior marriage that she claims was fraudulent. Mother complains that, by not maintaining jurisdiction, the Department would be unable to file a section 388 petition to protect the minor.
Under section 361.2, subdivision (b), the juvenile court has two options relevant here: (1) the court may order that the noncustodial parent become the minor's legal and physical custodian and terminate dependency jurisdiction (§ 361.2, subd. (b)(1)), as the court did here, or (2) the court may order that the noncustodial parent assume custody subject to the court's jurisdiction or supervision (§ 361.2, subds. (b)(2), (3)). The court's decision to terminate dependency jurisdiction and issue exit orders is normally reviewed for an abuse of discretion. (Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 300; In re Stephanie M. (1994) 7 Cal.4th 295, 318.)
Here, the record supports the juvenile court's finding that supervision was no longer necessary. The minor had a positive, preexisting relationship with his father and, by the time of the hearing, had been placed with father for over three months. The father had housing and employment, and the minor was doing well in his care. The court could reasonably determine that tardiness alone did not justify continued jurisdiction. Even if a risk to the minor were to develop, the Department would be able to file a new section 300 petition on the minor's behalf. We find no error.
III
Supervised Visitation
Finally, mother contends the juvenile court abused its discretion in ordering her visits with minor to be supervised. But this order was well within the court's discretion.
Section 362.4 authorizes a juvenile court to issue visitation orders when it terminates jurisdiction. (See § 362.4, subd. (a); In re Chantal S. (1996) 13 Cal.4th 196, 202-203; In re Armando L. (2016) 1 Cal.App.5th 606, 616.) Supervised visitation is warranted where unsupervised visits would jeopardize the minor's safety. (See § 362.1, subd. (a)(1)(A) & (B).) The court has broad discretion in fashioning visitation orders, and its determination will not be disturbed on review absent a clear abuse of discretion. (In re R.R. (2010) 187 Cal.App.4th 1264, 1284.)
Under the circumstances of this case, which we have described at length, the juvenile court could easily conclude that supervision was required to insure the minor's safety while in mother's care.
DISPOSITION
The orders of the juvenile court are affirmed.
/s/_________
Duarte, J. We concur: /s/_________
Raye, P. J. /s/_________
Murray, J.