Opinion
D082722
01-19-2024
In re A.D., a Person Coming Under the Juvenile Court Law. v. ANDRES D. et al., Defendants and Appellants SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent,
Megan Turkat Schirn, under appointment by the Court of Appeal, for Defendant and Appellant Andres D. William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant Antasia D. Claudia G. Silva, County Counsel, Lisa M. Maldonado, Chief Deputy County Counsel, and Natasha C. Edwards, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEALS from an order of the Superior Court of San Diego County, No. J521223 Alexander M. Calero, Judge.
Megan Turkat Schirn, under appointment by the Court of Appeal, for Defendant and Appellant Andres D.
William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant Antasia D.
Claudia G. Silva, County Counsel, Lisa M. Maldonado, Chief Deputy County Counsel, and Natasha C. Edwards, Deputy County Counsel, for Plaintiff and Respondent.
McCONNELL, P. J.
Antasia D. (mother) and Andres D. (father) appeal the juvenile court's order finding jurisdiction over their son, A.D., under Welfare and Institutions Code section 300, subdivision (a). They contend this finding is not supported by substantial evidence and the juvenile court improperly applied the presumption in section 355.1. We find no error and affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise specified.
I
FACTUAL AND PROCEDURAL BACKGROUND
On May 2, 2023, three-month-old A.D. fractured his left humerus. While he was at the hospital, it was discovered that A.D. also fractured a rib approximately two to four weeks earlier. Mother and father explained to hospital staff that A.D. was seated in an infant swing chair in the same room as father, A.D. was fussy and wanted to be picked up, his cry suddenly turned to screams, father rushed over and picked up A.D., A.D. reached up with his right arm but not his left, mother arrived when A.D. was placed on a changing table and they noticed A.D.'s left arm was not moving, and A.D. was previously using both arms. The parents denied any known trauma regarding A.D., and they also denied that his arm got tangled or caught in the swing.
In a police report from May 3, 2023, the parents stated A.D.'s arm might have got caught in the swing or he might have grabbed it as he was being taken out. When interviewed by a social worker on May 3, 2023, the parents confirmed that mother placed A.D. in the swing and left the room, father secured A.D. in the swing, and A.D.'s increasing cries prompted the father to remove him from the swing, after which the parents noticed A.D.'s left arm was not moving. They did not mention whether A.D. got caught in the swing while being removed.
Child abuse expert, Dr. Sarah Villarroel, consulted on A.D.'s injuries on May 4, 2023. Although the parents initially reported that A.D.'s cries got louder before being picked up from the swing, mother told Dr. Villarroel that his cries became louder after being picked up. Mother also reported multiple prior episodes of bruising and a prior incident of oral bleeding. Dr. Villarroel determined the parents did not have a reasonable explanation for the arm or rib facture, and neither would be caused by routine handling of an infant. Dr. Villarroel also reported that infant bruising is unusual, and infants do not typically sustain bruising from a car seat as reported by mother, especially on multiple occasions. She further stated the oral bleeding was concerning for trauma to the mouth, and A.D. had elevated liver enzymes which could be an indicator of past abdominal trauma. Dr. Villarroel concluded the combination of A.D.'s injuries was definitive evidence of physical abuse.
On May 5, 2023, the Health and Human Services Agency (Agency) filed a petition pursuant to section 300, subdivision (a), alleging mother and father subjected A.D. to serious physical harm and the substantial risk thereof based on his arm and rib fractures and the constellation of his injuries. On May 8, 2023, the juvenile court found a prima facie case of physical abuse and detained A.D. in a resource family home.
On May 15, 2023, a social worker interviewed the parents and father said he wanted to clarify A.D.'s unexplained rib injury. He stated he and mother were showering with A.D., and when he was transferring A.D. to mother, she felt him slip so she grabbed his torso to prevent him from falling. Both mother and father denied noticing any discomfort when this happened. As for the humerus fracture, father confirmed he did not notice if A.D.'s arm got caught in the swing, while mother believed it probably got caught. Mother also reported both parents believed the hospital caused A.D.'s arm injury by manipulating it prior to taking X-rays.
Dr. Villarroel was informed of the new explanation for the rib injury and determined that while it was possible, that type of injury usually requires a violent squeeze or shaking. Dr. Mallory McPhee, a child abuse pediatrician, agreed with Dr. Villarroel's assessment. She found the parents' account regarding the rib could be consistent with the injury, but mother would have used excessive force and Dr. McPhee believed it was an inflicted injury. Dr. McPhee also determined the parent's story regarding the swing would not cause a fracture to the humerus, and the fracture was most consistent with inflicted injury.
The parents maintained supervised visits with A.D. from May to August. They also participated in parenting and child abuse classes from June to August. Father was found to be attentive but in the early stages of his classes. On August 16, 2023, Mother's child abuse provider reported that mother's participation was low, she did not take any responsibility for A.D.'s injuries, and she had made no improvement. Mother was also enrolled in a domestic violence treatment group because of an incident between her and father prior to A.D.'s birth. That incident involved mother hitting and strangling father while he was driving, but both parents denied the incident involved domestic violence when asked by a social worker.
A contested jurisdiction and disposition hearing was held over the course of three days in August and September of 2023. The juvenile court admitted reports and testimony from an Agency social worker recommending that A.D. be placed in a resource family home and that the parents be provided reunification services. The Agency determined the parents' home environment had not changed because they had not acknowledged the severity of A.D.'s injuries, they had not taken responsibility for the injuries, and they were not able to verbalize how they would prevent future injuries. The Agency also found the parents had made insufficient progress in their child abuse courses, which is why their visits with A.D. remained supervised.
Dr. McPhee testified on behalf of the Agency as an expert in child abuse pediatrics. She opined that the arm and rib fractures were two separate incidents of abuse. She explained that humerus fractures are rare in infants, the fracture of A.D.'s humerus would require a violent force recognizable as potentially causing harm, it is hard to imagine how the swing could have caused the fracture because it could not have generated enough force, and if the baby swing caused the fracture, that would have been readily apparent but that was not reported as a cause of the injury when A.D. was taken to the hospital. Regarding the rib fracture, Dr. McPhee stated it is unusual in infants, it would require force well outside the realm of normal infant handling, the person inflicting the force would know that it was likely to cause harm, and the parents' explanation is unlikely because they reported that A.D. did not suffer any pain. She further opined that bruising and oral bleeding are rare in infants and often a warning sign that abuse is happening and will escalate. Dr. McPhee concluded that returning A.D. home would place him at risk for ongoing and possibly escalating maltreatment.
Dr. Lisa Miller testified as an expert in pediatric orthopedic surgery on behalf of father. She believed A.D.'s humerus fracture was accidental and could reasonably be explained by his arm getting caught in the swing when father picked him up. She also stated the parents' account of the rib fracture was reasonable, and the parents may not have noticed that they caused that fracture. Dr. Miller further testified that oral bleeding and bruising were not present when A.D. came to the hospital, and the bruising was explained by the seatbelt.
Both mother and father also testified. Father described the arm injury as follows: A.D. became fussy while in the swing, father removed A.D. and exited the room to change his diaper, father was in a hurry, A.D. became fussier and more aggressive as father was exiting the room, and father noticed that A.D.'s arm was not working properly when he arrived at the changing table. Mother testified that A.D. was fussy and crying, father went to pick him up, and A.D.'s crying got louder and aggravated. She also explained that in hindsight, father was positive that A.D.'s arm got caught in the swing. Regarding the rib injury, father claimed it occurred when he was transferring A.D. to mother in the shower and mother had to catch A.D. because he slipped. The parents also stated they are enrolled in parenting and child abuse classes which they intend to abide by, they did a parenting class on their own, and they have made changes including removing the swing and baby-proofing the house.
In ruling on the matter, the juvenile court gave great weight to Dr. McPhee's testimony because she had more relevant experience based on her current position as a child abuse pediatrics fellow at Rady Children's hospital, and she referenced studies and empirical data to support her conclusions. The court found Dr. Miller's testimony less compelling because she was initially uncertain about the records she considered, she lacked more recent medical experience having retired in 2017, and she did not reference studies and empirical data. The court also determined the parents' lack of transparency regarding the prior domestic violence incident impacted their credibility, and that incident raised concerns as to whether unaddressed issues contributed to A.D.'s injuries or created a substantial risk of physical harm. It also gave great weight to the number and type of injuries A.D. sustained.
Ultimately, the juvenile court found the Agency met its burden in proving the allegations of the petition, and it declared A.D. a dependent. However, the court determined the Agency did not meet its burden regarding removal, and it placed A.D. with the parents subject to the following conditions: a family member must live with the parents, A.D.'s counsel has access for unannounced visits, injuries must be immediately reported to the Agency, and the parents must continue to engage in services. Both parents timely appealed.
II
DISCUSSION
Mother and father argue the juvenile court's jurisdictional finding was not supported by substantial evidence because they provided plausible explanations for A.D.'s injuries, they promptly engaged in services, Dr. McPhee's testimony was conjectural, and the court improperly relied on prior events to find a future risk of harm. They also claim the juvenile court improperly relied on the presumption in section 355.1 because they were not notified it was going to be applied. We disagree with these claims and affirm.
A. Substantial Evidence
"Section 300, subdivision (a), provides that jurisdiction may be assumed if the child has suffered, or there is a substantial risk the child will suffer, serious physical harm inflicted nonaccidentally by the child's parent or guardian. 'Nonaccidental' generally means a parent or guardian 'acted intentionally or willfully.'" (In re Cole L. (2021) 70 Cal.App.5th 591, 601.) "[A] court may find there is a substantial risk of serious future injury based on the manner in which a less serious injury was inflicted, a history of repeated inflictions of injuries on the child or the child's siblings, or a combination of these and other actions by the parent or guardian that indicate the child is at risk of serious physical harm." (§ 300, subd. (a).)
" 'In reviewing a challenge to the sufficiency of the evidence supporting the jurisdictional findings and disposition, we determine if substantial evidence, contradicted or uncontradicted, supports them. "In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court's determinations; and we note that issues of fact and credibility are the province of the trial court." [Citation.] "We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court." '" (In re I.J. (2013) 56 Cal.4th 766, 773.)
Dr. McPhee opined that the fractures of A.D.'s arm and rib were nonaccidental based on the force required to cause those injuries in an infant and inadequate explanations from the parents. She also determined bruising and oral bleeding are rare in infants and a sign of abuse, and A.D. was at risk for ongoing maltreatment. Dr. Villarroel's opinion was consistent with Dr. McPhee's. She questioned the parents' explanations of the injuries and found A.D.'s liver enzymes were a sign of abdominal trauma.
Although the parents described A.D.'s injuries as accidental and Dr. Miller agreed, the juvenile court questioned the parent's credibility and gave greater weight to Dr. McPhee's opinion, and we defer to that assessment on appeal.
Nor is Dr. McPhee's opinion conjectural as the parents contend. She reviewed A.D.'s medical records which included the parents' explanations, she examined A.D., and she observed an image of the swing. She then applied that information to data regarding infant bones, which have more cartilage and are less susceptible to fracture than adult bones, and she logically concluded the parents' explanations were inconsistent with A.D.'s injuries. She further relied on a study in opining that bruising and oral bleeding in infants were a warning sign of abuse.
In addition to the medical opinions, the number and severity of A.D.'s injuries while in the parents' care during his short life are circumstantial evidence that the arm and rib fractures were not accidental and that the risk of harm remained. Indeed, the juvenile court "may find there is a substantial risk of serious future injury based on the manner in which a less serious injury was inflicted, a history of repeated inflictions of injuries on the child or the child's siblings, or a combination of these and other actions by the parent or guardian that indicate the child is at risk of serious physical harm." (§ 300, subd. (a).)
The parents contend A.D.'s less severe injuries were accidental, and therefore cannot be relied on to show future harm. However, the juvenile court did not find that the less severe injuries were accidental. Instead, it doubted the parents' credibility, and the combination of injuries during less than four months and the opinions of Dr. McPhee and Dr. Villarroel support a finding that the less severe injuries were also not accidental.
The parents further claim the juvenile court improperly relied on the prior domestic violence between them because it was a single incident that occurred before A.D.'s birth and it has no bearing on whether A.D. falls within subdivision (a) of section 300. But as noted above, the juvenile court may base it findings on "other actions by the parent" in conjunction with the child's injuries in determining risk of harm. (§ 300, subd. (a).) The juvenile court did not solely rely on the domestic violence incident, as it gave great weight to Dr. McPhee's opinion and the number and types of injuries A.D. suffered. Additionally, the prior domestic violence incident involved mother hitting and strangling father, the parents were not honest about it, and mother had not completed the class she was taking as a result of that incident. When this is considered with all of A.D.'s injuries, it provides additional circumstantial evidence that A.D. was at substantial risk of serious physical harm.
As for the parents' engagement in services, there was evidence of insufficient progress. One of mother's service providers reported she had made no progress, both parents were still in the early stages of their classes, and the Agency determined the parents lacked insight into the cause of A.D.'s injuries and future prevention of injuries.
Under these circumstances, substantial evidence supports the juvenile court's determination that the parents inflicted serious and nonaccidental physical harm on A.D., and that a substantial risk of that harm remained. We therefore affirm that determination.
"Where the court finds, based upon competent professional evidence, that an injury, injuries, or detrimental condition sustained by a minor is of a nature as would ordinarily not be sustained except as the result of the unreasonable or neglectful acts or omissions of either parent, . . . that finding shall be prima facie evidence that the minor is a person described by subdivision (a), (b), or (d) of Section 300." (§ 355.1, subd. (a).) Section 355.1 constitutes a presumption affecting the burden of producing evidence. (§ 355.1, subd. (c).) As such, when subdivision (a) has been satisfied, the trier of fact must assume the minor is within the juvenile court's jurisdiction unless a parent introduces rebuttal evidence, in which case the presumption will no longer apply. (§ 355.1, subd. (c); Evid. Code, § 604.)
The presumption under section 355.1 was raised for the first time by A.D.'s counsel in closing argument. Neither parent objected when the argument was made, so the issue has been forfeited on appeal. (In re G.C. (2013) 216 Cal.App.4th 1391, 1398.)
In any event, the record demonstrates the juvenile court did not rely on the presumption. Although the court said it "considered" section 355.1 in its analysis, it did not say its jurisdictional finding was based on that presumption. Instead, the court confirmed the Agency had the burden to prove its allegations by a preponderance of the evidence, it weighed the competing evidence from the Agency and the parents, and it determined the Agency met its burden. This shows the juvenile court imposed the standard burdens on the Agency and did not rely on section 355.1. Accordingly, the parents have not shown that reversal is warranted on this ground.
III
DISPOSITION
The order is affirmed.
WE CONCUR: DO, J., BUCHANAN, J.