Opinion
D060137 Super. Ct. No. SJ12554
12-15-2011
In re AIDEN R., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. ASHLEY C., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from an order of the Superior Court of San Diego County, Garry G. Haehnle, Judge. Affirmed.
Ashley C. appeals a juvenile court order removing her minor son, Aiden R., from her custody under Welfare and Institutions Code section 361, subdivision (c), after Aiden became a dependent of the court because of severe physical abuse inflicted nonaccidentally by his father, Joseph R. Ashley contends the evidence is insufficient to support the court's removal order and the court abused its discretion by limiting her visitation with Aiden. We affirm the order.
Statutory references are to the Welfare and Institutions Code.
Joseph has not appealed.
FACTUAL AND PROCEDURAL BACKGROUND
On April 21, 2011, Ashley and Joseph took three-month-old Aiden to the hospital after Joseph heard a "pop" while moving Aiden's leg to change his diaper. In the emergency room, Aiden was extremely fussy and irritable when picked up or touched anywhere on his body. Medical tests showed he had multiple bone fractures, including an acute spiral fracture of the right femur and a fresh fracture of his first rib near his collarbone. Aiden had other fractures in various stages of healing, including two rib fractures and four leg fractures. Two physicians, one of whom was a child abuse expert, concluded the injuries were the result of nonaccidental trauma.
The parents reported they were Aiden's sole caregivers. Joseph was on active duty in the Navy, and Ashley stayed home to care for Aiden. When asked to explain Aiden's injuries, the parents described how Joseph heard a "pop" while changing Aiden's diaper. Ashley was in another room at the time. Ashley could not remember if Aiden cried as they drove him to the hospital because she was preoccupied with how he could have been injured. The parents also reported that a month earlier, Ashley fell asleep while holding Aiden, and Joseph, who was also asleep, awakened to find Aiden lying face down on the carpet and screaming. The parents surmised Aiden hit a coffee table as he fell. Ashley said Aiden cried loudly until she held and comforted him. The parents did not seek medical attention for Aiden because he had no visible injuries and seemed unaffected by the fall. They had no other explanation for Aiden's fractures. Based on this information, the San Diego County Health and Human Services Agency (Agency) filed a petition in the juvenile court under section 300, subdivision (e), alleging Aiden had suffered severe physical abuse inflicted nonaccidentally by his parents. The court detained Aiden in out-of-home care and ordered supervised visits for the parents.
During an interview by a police detective, Joseph admitted causing Aiden's injuries. Joseph said he was frustrated with Aiden because he did not sleep and he cried when having his diaper changed. Joseph admitted that on the day he took Aiden to the hospital, he had twisted Aiden's leg after becoming frustrated while changing his diaper. He also admitted firmly squeezing Aiden's torso on five to eight occasions in the previous month, and squeezing Aiden's knees together, causing him to cry. Every time this occurred, Joseph felt bad about hurting Aiden, and asked himself why he did it. Joseph said Ashley was not present when he inflicted the injuries, and he denied she knew he caused them. Ashley said Joseph had difficulty calming and soothing Aiden, but she never noticed Joseph's frustration and she was unaware of Aiden's injuries.
When interviewed by the social worker, Ashley said that about a week before taking Aiden to the hospital, she noticed he no longer tried to stretch his legs or bear weight on them when he was held by the torso. Ashley did not think this change in behavior was significant. She believed Aiden was a "fussy" baby, and she did not recognize his crying as indicating he had been injured or was in pain. Ashley was angry that Joseph possibly injured Aiden.
Child abuse expert Jenn Davis, M.D., wrote a letter describing Aiden's injuries and the mechanism that caused them. Dr. Davis stated that other than the spiral leg fracture for which the parents sought medical attention, Aiden's other fractures may not have been visible and, thus, Ashley may not have been aware of the individual injuries sustained before April 21, unless she saw Joseph harming Aiden. Nevertheless, Dr. Davis concluded that returning Aiden "to an unchanged environment places him at great risk of further harm or death."
The social worker recommended the court remove Aiden from his parents' custody, deny Joseph reunification services and order reunification services for Ashley. During supervised visits with Aiden, Ashley was attentive and appropriate. She was attending a parenting class and was about to begin individual therapy. The social worker's recommendation for removal was based on her concern that Ashley had not noticed anything unusual about Aiden, despite the number and severity of his injuries. The force that resulted in Aiden's bone fractures would have been severe and dramatic, causing him great pain. It was reasonable to expect Ashley to notice Aiden was more than "fussy" when he was being injured multiple times over the course of a month. In the social worker's opinion, there were no reasonable means by which Aiden could be protected without removing him from the home. The social worker believed Ashley needed to learn how to recognize signs of child abuse, and to examine the dynamics of her relationship with Joseph so that she could be proactive and protect Aiden.
At the jurisdiction hearing, the court granted Agency's request to amend the petition to reflect Joseph, not the parents, inflicted Aiden's injuries. The court received in evidence Agency's reports and sustained the allegations of the amended petition by clear and convincing evidence.
At the disposition hearing, social worker Loretta DeCunzo testified she continued to recommend removing Aiden from parental custody. Aiden would be at risk in Ashley's custody because Ashley knew Joseph became frustrated while caring for Aiden, but nevertheless allowed Joseph to have unfettered access to him. Further, Ashley did not recognize Joseph had injured Aiden on multiple occasions. Before Aiden could be safely placed with Ashley, she would need to develop insight, learn how to identify "red flags" for abuse and become proactive in protecting him in the future.
Ashley testified she never saw Joseph become angry or upset, and he never yelled at her or Aiden. She had no idea Joseph would lose control with Aiden. Had she seen signs of potential harm, she would not have allowed Joseph to have access to Aiden. Ashley initially did not believe Joseph intentionally caused Aiden's injuries, even after reading reports those injuries were nonaccidentally inflicted. Joseph told her he did not mean to do it, and he said he apologized to Aiden afterwards. Ashley planned to move away from Joseph and return to Guam with Aiden after the case was closed.
After considering the evidence and arguments of counsel, the court declared Aiden a dependent, removed him from parental custody, denied Joseph reunification services and ordered reunification services for Ashley, including supervised visits. The court expressed its hope that Ashley would soon have frequent unsupervised visits with Aiden, and set a special hearing in one week to address visitation.
DISCUSSION
I
Ashley contends the court's order removing Aiden from her custody was not supported by substantial evidence. Ashley asserts there was no evidence Aiden was at substantial risk of harm in her care because: (1) she was "innocent" and could not have known Joseph was harming Aiden; and (2) Joseph, who admittedly inflicted Aiden's injuries, was no longer in the family home. Ashley further asserts there were other reasonable means by which the court could have protected Aiden without removing him from her custody.
A
Before the court may order a child physically removed from his or her parents, it must find, by clear and convincing evidence, the child would be at substantial risk of harm if returned home and there are no reasonable means by which the child can be protected without removal. (§ 361, subd. (c)(1); In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.) The jurisdictional findings are prima facie evidence the child cannot safely remain in the home. (§ 361, subd. (c)(1).) The parent need not be dangerous and the child need not have been actually harmed before removal is appropriate. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, disapproved on another ground in Rene J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6; In re Jamie M. (1982) 134 Cal.App.3d 530, 536.)
In reviewing an order removing a minor from parental custody, we consider the entire record to determine whether substantial evidence supports the juvenile court's findings. (In re Kristin H., supra, 46 Cal.App.4th at p. 1654.) Evidence is " 'substantial' " if it is reasonable, credible and of solid value. (In re S.A. (2010) 182 Cal.App.4th 1128, 1140.) We do not pass on the credibility of witnesses, resolve conflicts in the evidence, or weigh the evidence. Instead, we draw all reasonable inferences in support of the findings, view the record favorably to the juvenile court's order and affirm the order even if other evidence supports a contrary finding. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53; In re Dakota H. (2005) 132 Cal.App.4th 212, 230.) The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the court's findings or orders. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
B
Here, the evidence supported a finding Aiden would be at substantial risk of harm in Ashley's care. Ashley initially believed Aiden's injuries could have occurred when she fell asleep while holding him, causing him to hit a coffee table as he fell face down on the carpet. Ashley said she was able to comfort Aiden and did not seek medical attention for him because he had no visible injuries and seemed unaffected by the fall. Even after Aiden could no longer stretch his legs or bear weight on them when being held, Ashley gave no significance to this change in behavior, and again did not seek medical attention. She denied Aiden ever cried as if he was in pain, showing she was unable to distinguish between the cries of a "fussy" baby and those of a baby with numerous broken bones. In the social worker's opinion, the force that resulted in Aiden's bone fractures would have been severe and dramatic, causing him great pain and, thus, it was reasonable to expect Ashley to notice Aiden "was more than fussy when being injured multiple times over the course of a month."
Although Ashley claims Aiden did not seem to be injured, other evidence showed he was extremely irritable and cried loudly when picked up or touched anywhere on his body by examining physicians at the hospital.
Ashley cites a statement by Dr. Davis to support her claim she did not knowingly or negligently tolerate the abuse to Aiden. Dr. Davis stated Aiden's fractures "may not have had any associated bruising or swelling. Usually, parents and even physicians are unaware [of] rib fractures and metaphyseal fractures when looking at an infant. For this reason, unless [Ashley] directly observed [Joseph] harming [Aiden], it is most likely that she was unaware of the individual injuries sustained prior to April 21, 2011." This statement, however, shows only that Ashley may not have known Aiden had leg and rib fractures because they were not necessarily visible. Dr. Davis's statement does not address whether there would have been other indications that Aiden had been injured or whether Ashley should have known Joseph posed a risk to Aiden. Given Aiden's multiple severe injuries, inflicted over the course of a month, Dr. Davis's opinion that Ashley "could have been unaware of the ongoing abuse" supports an inference Ashley would be unable to protect Aiden from future harm. As Dr. Davis noted, returning Aiden "to an unchanged environment places him at great risk of further harm or death." This conclusion is consistent with the social worker's opinion that Ashley needed to learn to identify abuse and protect Aiden before he could safely be returned to her care.
Presumably, Dr. Davis was unaware that Ashley reported Aiden could not stretch his legs or bear weight on them a week before the parents took him to the hospital.
Further, although Ashley may not have witnessed Joseph inflicting Aiden's injuries, she was at home full time with Aiden, and acknowledged Joseph had difficulty caring for and soothing him. Joseph told Ashley he was tired and frustrated because Aiden cried continually and did not sleep. Nevertheless, Ashley allowed Joseph to care for Aiden, and she did not notice anything "unusual" or recognize the warning signs of physical abuse. Even after learning Aiden's injuries were nonaccidentally inflicted, Ashley did not believe Joseph intentionally caused them. Under these circumstances, the court could reasonably find Aiden remained at substantial risk of harm until Ashley developed insight, learned to identify "red flags" for abuse and became proactive in protecting him.
Ashley asserts the court's stated justification for removing Aiden from her custody did not "comport with the legal standard" because there was no substantial evidence she had neglected signs that: (1) Joseph had hurt Aiden or was likely to hurt him; or (2) Aiden had been physically harmed. As we previously discussed, the evidence permits a reasonable inference Ashley knew or should have known Aiden had been physically abused by Joseph. In any event, we review the juvenile court's ruling, not its reasoning, and may affirm a judgment or order if it was correct on any ground. (In re Natasha A. (1996) 42 Cal.App.4th 28, 38.) The court here found Aiden would be at substantial risk of harm if left in parental care, and substantial evidence supports that finding.
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C
Ashley contends the court should have considered a disposition order less drastic than removal. She suggests alternatives such as returning Aiden to her custody under stringent conditions of supervision by Agency, especially because Joseph has moved out of the home and is no longer a threat to Aiden.
At the time of the disposition hearing, there was no evidence Ashley was capable of protecting Aiden from abuse by Joseph or any other person without removing him from Ashley's custody. Ashley admitted she was unable to recognize when Aiden was in pain as a result of serious trauma that resulted in broken bones, and she denied knowing Joseph was repeatedly inflicting these injuries. As the social worker noted, Ashley needed to examine the dynamics of her relationship with Joseph that allowed the repeated and severe physical abuse of Aiden. She also needed to improve her protective skills to assure Aiden's safety in the future, whether she is with Joseph or someone in a new relationship. Thus, the court could reasonably find that returning Aiden to Ashley's custody, even with Agency supervision and services, was not a feasible alternative to removal.
II
Ashley contends the court abused its discretion by limiting her visitation with Aiden based on Agency's "protocol" for high risk cases. She asserts she was entitled to daily unsupervised visits.
A
When a court orders reunification services, visitation must be as frequent as possible, "consistent with the well-being of the child." (§ 362.1, subd. (a)(1)(A); In re Alvin R. (2003) 108 Cal.App.4th 962, 972.) The juvenile court defines a parent's visitation rights by balancing the parent's interests in visitation with the child's best interests. (In re Jennifer G. (1990) 221 Cal.App.3d 752, 757.) The court may impose restrictions on parental visitation, consistent with the child's best interests under the particular circumstances of the case. (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1009.) The state's interest in providing for the best interests of the child justifies any limited intrusion on a parent's right to visitation. (In re Melissa H. (1974) 38 Cal.App.3d 173, 175.) The court has broad discretion when making visitation orders, which we review for abuse of discretion. (In re Lee G. (1991) 1 Cal.App.4th 17, 26-27; In re Stephanie M. (1994) 7 Cal.4th 295, 318.)
B
Here, the court's visitation order was consistent with Aiden's best interests. The evidence showed Ashley had been unable to recognize that Aiden had been repeatedly abused and severely injured, and she could not adequately protect him in the future without participating in services. Thus, the court reasonably found Ashley's visits with Aiden should initially be supervised.
The record shows the court encouraged Agency to increase the frequency of visits, and a discussion ensued about who would supervise them. Agency explained that in a high risk case such as this one, filed under section 300, subdivision (e), protocol required that Agency's own professionals supervise the visits. The court stated Agency protocol should not apply here because Ashley had not inflicted Aiden's injuries. The court directed Agency to explore the possibility of increasing Ashley's visits with Aiden, with the hope of allowing unsupervised visits in the home of the foster parents, and set a special hearing in one week to address the issue. The court's visitation order was within its discretion.
DISPOSITION
The order is affirmed.
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McDONALD, J.
WE CONCUR:
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BENKE, Acting P. J.
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AARON, J.