Opinion
E069134
03-16-2018
In re E.P., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. N.H., Defendant and Appellant.
Cristina Sanchez, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, Dawn M. Martin, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J270233) OPINION APPEAL from the Superior Court of San Bernardino County. Christopher B. Marshall, Judge. Affirmed. Cristina Sanchez, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, Dawn M. Martin, Deputy County Counsel, for Plaintiff and Respondent.
N.H. (mother) contends there was insufficient evidence to support the juvenile court's jurisdictional findings as to her child, E.P. (the child), under Welfare and Institutions Code section 300, subdivisions (a) and (e). She also argues that the court erred in denying her reunification services under section 361.5, subdivision (b)(5). We affirm.
All further statutory references will be to the Welfare and Institutions Code, unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
On March 29, 2017, the San Bernardino County Children and Family Services (CFS) filed a section 300 petition on behalf of the child, who was three months old at the time. The petition alleged that he came within the provisions of section 300, subdivisions (a) (serious physical harm), (b) (failure to protect) and (e) (severe physical abuse). The petition included the allegations that mother failed to appropriately supervise the child, the child sustained a nonaccidental skull fracture while in mother's care and custody, and she failed to seek immediate medical care for him. The petition further alleged that mother had a substance abuse problem and mental health problems.
In the detention report, the social worker reported that mother brought the child to the hospital due to a head injury. The social worker spoke with the reporting party while the child was waiting to be transferred to Loma Linda University Children's Hospital. The hospital staff was concerned because mother did not seek immediate medical treatment for the child. The social worker spoke with mother, who said she woke up at 5:00 a.m. and then fell asleep while feeding the child in bed. She said she woke up at 5:30 a.m., due to the child crying. She found him on the tile floor. Mother said she did not have a phone, so she went to use her neighbor's phone to contact the child's father (father). Father told her to keep an eye on the child and make sure he did not fall asleep. Mother said she did not call 911 because, "it didn't click." At around noon, she noticed a lump on the side of the child's face, so she called the maternal grandfather to tell him about the situation. The maternal uncle came to the house to take the child to the hospital at 1:00 p.m. Mother did not provide a reason for why she waited so long to take the child to the hospital, except that, "it didn't click," and she did not see any injuries when the incident took place. The child sustained a left parietal skull fracture with a subdural hemorrhage. Mother disclosed that she continuously used marijuana, and the last time she smoked was at 6:00 a.m. She said she usually smoked three times a day. Mother also said that the child "does not roll" yet, but he "wiggles."
Father is not a party to this appeal.
The social worker spoke with father at the family's home. Father said he left the home for work between 4:30 a.m. and 5:00 a.m. that day. When he left, mother and the child were both in bed. Mother was lying on the right side of the bed with the child on her arms in the middle of the bed. Father said she was "dosing off" while feeding the child. Father said he received a text from mother at 9:30 a.m. stating that the child had fallen off the bed. He told her not to let the child fall asleep and to call 911 if he got worse. At around noon, mother called him and was screaming, while the child was crying. Father went home and when he arrived, the maternal uncle was there getting ready to take the child to the hospital. The child was crying and had a lump on the left side of his face. Father had to go back to work, so mother and the maternal uncle took the child to the hospital. Father told the social worker he would be obtaining a restraining order against mother, to ensure that she did not come to the house and that the child would be safe.
Father also informed the social worker that mother had been placed on a Welfare and Institutions Code section 5150 hold, due to her making statements that she wanted to kill herself. Mother was taken to the Arrowhead Medical Center to see a psychiatrist. Father further stated that he would not allow mother to move back into the house. He also said the maternal grandparents did not want mother in their home either because of a disagreement with her.
The social worker spoke with the maternal uncle, who said mother called the maternal grandfather at 12:50 p.m. to tell him about the incident. The maternal uncle said mother told the maternal grandfather she was feeding the child and fell asleep, the child fell off the bed at 4:00 a.m., and she woke up to the child crying.
On March 30, 2017, the court detained and removed the child from mother, and ordered the child to remain in father's custody, under the supervision of the court. The court also specified that mother was not to reside in the home or have contact with the child, outside of CFS supervision.
Jurisdiction/Disposition Report and Hearing
The social worker filed a jurisdiction/disposition report on April 26, 2017, recommending that the court find the allegations in the section 300 petition true as alleged, that the court grant custody of the child to father, and that the dependency be dismissed. The social worker reported that mother said she had been suffering from postpartum depression. Mother said she started using marijuana when she was about 14 years old and used marijuana daily in order to get through the day. She claimed she stopped using substances during her pregnancy; however, CFS was informed that the child tested positive for tetrahydrocannaboil (THC) and benzodiazepines at the time of birth.
The social worker interviewed father on April 19, 2017, and he said mother had periods of being volatile, when she would hit and throw things. Both parents indicated that they did not intend to continue in their relationship.
The social worker attached the children's assessment center (CAC) report. The doctor stated that the child had a significant skull fracture and that mother reported a fall; however, the details were not clear. The doctor noted that the child did not have the developmental capacity to roll from the bed. Moreover, because there was a delay in seeking care, the findings were suspicious for inflicted trauma. The doctor further stated that the delay in seeking treatment, prenatal and postnatal exposure to illicit substances, and exposure to domestic violence were all consistent with severe neglect.
On July 5, 2017, the social worker filed additional information for the court, opining that continued monitoring of the family would be in the child's best interest, in order to ensure that father was established as a separate and self-reliant entity, with a secure safety network in place. Thus, CFS changed the recommendation to having the child remain in father's custody under a plan of family maintenance and not ordering reunification services for mother. In another memorandum to the court, the social worker noted that CFS continued to be concerned by mother's lack of explanation for the child's injuries.
The court held a contested jurisdiction/disposition hearing/presettlement conference on September 15, 2017. Mother's counsel argued there was no indication in the medical report that there was any risk or danger to the child by the "short delay" in taking him to the hospital. He further averred there was no evidence presented that "this was not an accidental situation." He pointed out that the only description they had of what occurred that day was from mother, and it was clearly an accident. Mother's counsel further argued that the only evidence it was not an accident was the CAC's suspicion, which was not actually evidence. Mother's counsel submitted on the section 300, subdivision (b) allegations that mother failed to appropriately supervise the child, and the child sustained a skull fracture while in her care. Counsel also submitted on the section 300, subdivision (b) allegation that mother had mental health problems and substance abuse problems, but asked the court to substitute "marijuana" for "substance abuse."
County counsel argued that mother admitted she was under the influence of marijuana, the child was injured at around 5:00 a.m., mother failed to seek medical care until about 1:00 p.m., she was the only person who had complete custody of the child at the time of the incident, and the medical reports indicated that she gave unclear statements about what occurred. Moreover, the doctor opined that the mother's story was highly suspicious. The child was not capable of rolling off the bed by himself, and mother was the only person that could have caused the injuries. Counsel for the child agreed with county counsel and added that the child was injured in mother's care, and the evaluation was suspicious for physical abuse. Given mother's explanation, the severe injury to the child, and the fact that the child could not roll over on his own, there was sufficient evidence to support true findings under section 300, subdivisions (a) and (e).
In rebuttal, mother's counsel asserted that mother never claimed the child rolled off the bed. Mother added that she admitted she might have kicked him off the bed. Her counsel reiterated that mother drifted back to sleep with the child in bed with her and woke up 30 minutes later to find the child on the floor crying. He stated: "She never once gives an explanation as to how that occurred. Her assumption has been that she must have knocked him off or something while she was in her sleep, but she never ever has said that the child rolled off the bed."
The court found that CFS had satisfied its burden under section 300, subdivisions (a) and (e), in that there was no evidence to contradict the evidence that mother was the only person present at the time the child was injured. The court pointed out that her counsel's argument confirmed that mother had done something that led to the child's injury. The court noted there was significant physical trauma that required medical attention. It pointed out the doctor's opinion that the findings were suspicious for inflicted trauma. Moreover, as the doctor noted, mother was present and reported the fall, but the details were not clear. Thus, the court found it could reasonably infer from the doctor's report that the incident was nonaccidental. The court sustained the petition, noting the allegation that mother had mental health problems would be amended to state instead that mother had a history of depression. The court found father to be the presumed father, declared the child a dependent, and placed him with father, under a plan of family maintenance. The court found that mother was the one who inflicted severe physical harm on the child, and the section 300, subdivision (e) allegation was found true by clear and convincing evidence. The court denied mother reunification services under section 361.5, subdivision (b)(5) and (b)(6), finding that the child was adjudicated a dependent pursuant to section 300, subdivision (e), because of mother's conduct, and it would not benefit the child to pursue services with her.
ANALYSIS
I. The Evidence Was Sufficient to Support the Court's Findings Under Section 300,
Subdivision (e)
Mother argues there was insufficient evidence to support the court's jurisdiction findings under section 300, subdivisions (a) and (e). The crux of her argument is that there was no evidence the child was injured as a result of an act of abuse by her. Consequently, there was no basis for the court to bypass reunification services under section 361.5, subdivision (b)(5). (See § II, post.) We conclude that the evidence was sufficient to support the court's finding under section 300, subdivision (e).
We initially note that "[w]hen a dependency petition alleges multiple grounds for its assertion that a minor comes within the dependency court's jurisdiction, a reviewing court can affirm the juvenile court's finding of jurisdiction over the minor if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence. In such a case, the reviewing court need not consider whether any or all of the other alleged statutory grounds for jurisdiction are supported by the evidence. [Citations.]" (In re Alexis E. (2009) 171 Cal.App.4th 438, 451.) In other words, " 'the juvenile court's jurisdiction may rest on a single ground.' [Citation.]" (In re Christopher C. (2010) 182 Cal.App.4th 73, 83 (Christopher C.).) Here, mother submitted on the section 300, subdivision (b) allegations that she failed to appropriately supervise the child, and he sustained a skull fracture while in her care, and that she had mental health problems and problems with marijuana use. Thus, it is undisputed that the child came within the jurisdiction of the court. (See Christopher C., at p. 83.) As such, we will only address mother's claim regarding the court's finding under section 300, subdivision (e), since it is related to her other claim that there was no basis for denying her services under section 361.5, subdivision (b)(5). (See Ibid.)
" 'On appeal from an order making jurisdictional findings, we must uphold the court's findings unless, after reviewing the entire record and resolving all conflicts in favor of the respondent and drawing all reasonable inferences in support of the judgment, we determine there is no substantial evidence to support the findings. [Citation.] Substantial evidence is evidence that is reasonable, credible, and of solid value. [Citation.]' " (Christopher C., supra, 182 Cal.App.4th at p. 84.) "We do not reweigh the evidence, nor do we consider matters of credibility." (In re E.H. (2003) 108 Cal.App.4th 659, 669 (E.H.).)
Section 300, subdivision (e) provides, in pertinent part, that the court has jurisdiction where "[t]he child is under the age of five years and has suffered severe physical abuse by a parent . . . . 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." The court in In re Joshua H. (1993) 13 Cal.App.4th 1718, 1727, interpreted this language to impose three requirements on the appropriate agency to establish jurisdiction under this subdivision: "(1) there is a minor under the age of five; [¶] (2) who has suffered severe physical abuse as defined in section 300, subdivision (e); [¶] (3) by a parent or any person known to the parent if the parent knew or reasonably should have known that the person was physically abusing the minor."
Mother argues there was no evidence of any intentional act of abuse by her that caused the child's injury. She contends that to infer that anything other than an unintentional act by her would require "reliance on speculation." It is undisputed that mother never admitted to intentionally abusing the child. She maintains that she fell asleep and woke up to find that the child somehow ended up on the floor crying. Accordingly, respondent employs a " 'res ipsa loquitur' " type of argument to support the jurisdictional finding under section 300, subdivision (e). (See E.H., supra, 108 Cal.App.4th at p. 669.) Based on the child's significant skull fracture, the CAC report, mother's inability to explain how the child's injury occurred, the delay in seeking medical treatment, and the doctor's conclusion that the injury was suspicious for inflicted trauma, respondent argues that it was reasonable for the court to find the section 300, subdivision (e) allegation true. We agree. "A finding may be supported by circumstantial evidence as it is here. Otherwise, a family could stonewall the Department and its social workers concerning the origin of a child's injuries and escape a jurisdictional finding under subdivision (e)." (E.H., at p. 670.) Because mother was the only person present when the incident occurred, she was the only person who would know what actually happened. However, she could not say how the child's injury occurred, since she was allegedly asleep. Under these circumstances, and in light of the evidence cited by respondent, it was entirely reasonable for the court to conclude that mother abused the child and caused his skull fracture.
Mother further contends that the court made no finding of severe physical abuse in its ruling. She points out that the court found there was " 'a single act here of significant physical trauma that did require medical care,' not an act of severe physical abuse, or any type of abuse." Section 300, subdivision (e), defines severe physical abuse as "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." We note that, in addition to the phrase mother cites from the court's ruling, the court further stated that, "the medical care would be necessary to prevent anything more permanent for the child." It also found there was serious physical harm that the child suffered nonaccidentally, citing the doctor's opinion that the findings were suspicious for inflicted trauma. The court expressly stated that the subdivision (e) allegation was found to be true by clear and convincing evidence. In view of the totality of the court's statements, we conclude it properly made the finding that the child came under section 300, subdivision (e).
II. The Court Properly Denied Mother Reunification Services
In a related argument, mother contends that, since there was insufficient evidence to support the section 300, subdivision (e) finding, there was no basis for the court to bypass reunification services under section 361.5, subdivision (b)(5); thus, reunification services must be ordered. In light of our conclusion ante, mother's claim has no merit. (See § I., ante.) We further note that the court also denied mother reunification services under section 361.5, subdivision (b)(6), finding that it would not benefit the child to pursue services with her. Mother does not dispute the denial of services under section 361.5, subdivision (b)(6).
Section 361.5, subdivision (b)(5) provides that reunification services need not be provided to a parent when the court finds, by clear and convincing evidence, that the child was brought within the jurisdiction of the court under section 300, subdivision (e).
We conclude that the court properly denied mother reunification services.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. FIELDS
J.