Opinion
D076575
03-10-2020
In re Z.G., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. M.U., et al., Defendants and Appellants.
Elena S. Min, under appointment by the Court of Appeal, for Defendant and Appellant J.G. Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant M.U. Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Lisa M. Maldonado, Deputy 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J520066D) APPEALS from orders of the Superior Court of San Diego County, Michael J. Popkins, Judge. Affirmed. Elena S. Min, under appointment by the Court of Appeal, for Defendant and Appellant J.G. Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant M.U. Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Lisa M. Maldonado, Deputy Counsel for Plaintiff and Respondent.
Mother and Father (parents) appeal from the juvenile court's jurisdictional order on a petition filed by the San Diego County Health and Human Services Agency (Agency) under Welfare and Institutions Code section 300, subdivision (a) on behalf of their minor son, Z.G. The parents also challenge the court's dispositional order removing Z.G. from their care. The parents assert insufficient evidence supports the court's true finding on Agency's petition and its finding that removal was necessary to protect Z.G. Finding no error, we affirm the juvenile court's orders.
All subsequent statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
On June 13, 2019, the Agency received a report that three-month-old Z.G. had purple bruises on his buttocks that the parents could not explain. The report came from Z.G.'s daycare provider. Z.G. had been in the daycare for six weeks, and Mother had worked at the same daycare center for over 13 years. As a result of the report, Z.G. was taken to Rady Children's Hospital's pediatric emergency department for evaluation.
The attending physician obtained a phone consultation from Dr. Shalon M. Nienow, the hospital's on-call child abuse pediatrician. Dr. Nienow provided a one-page report to the Agency explaining that without any explanation for the bruising, Z.G.'s "injuries are diagnostic of physical abuse." Dr. Nienow further opined that if Z.G. "were to be returned to the environment in which his injuries were sustained without identification of and removal of the perpetrator it would place him in extreme risk of further maltreatment and potentially death." Dr. Nienow also noted that Z.G. had an elevated PTT [partial thromboplastin time] of 48 seconds, which could be indicative of a bleeding disorder, but that Z.G. did not exhibit any other bleeding symptoms and if a bleeding disorder were present, "bruising isolated to one location would not be expected . . . ."
When the Agency's investigating social worker met with Mother, she stated that she noticed discoloration on Z.G.'s buttocks the night before, but thought it was from his stool because of a recent formula change. Mother said she did not change Z.G.'s diaper the morning of the report. Mother thought that the bruises might have been caused by a new car seat the parents purchased a few weeks earlier. In his interview, Father also said he noticed discoloration on Z.G.'s buttocks the day before, but thought it was from his stool. Father said he had not noticed anything concerning when he changed Z.G.'s diaper early in the morning before Mother took him to daycare. In her report for the detention hearing, the Agency's social worker stated that when the parents were asked about a support network to help safety plan, they were unable to identify any friends or relatives. Mother said she did not want to notify her mother of the abuse allegation.
Mother's three older children, Z.G.'s half-siblings, ages 14, 13, and nine, were also interviewed. They told the investigating social worker that any bruising was likely from the car seat because Z.G. did not like being in it. All three children denied any physical abuse by either Mother or Father and the two oldest stated that the parents took good care of Z.G. The family had some prior child welfare history related to Mother's 14-year-old daughter, who had been in trouble at school in 2017 and in a treatment program after a hospitalization for suicidal ideation in 2018, and one report in 2017 by Mother's nine-year-old son who said his aunt had tried to choke him.
On June 13, 2019, the Agency took protective custody of Z.G. and placed him at Polinsky Children's Center. The next day, a Friday, the infant was moved to foster care. On Monday, June 17, 2019, the Agency filed its petition under section 300, subdivision (a) on behalf of Z.G. and petitions under section 300, subdivision (j) on behalf of the three half-siblings. At the initial detention hearing on June 18, 2019, the court appointed counsel for Z.G. and his siblings, Mother, and Father. Counsel for Mother and Father indicated the parents contested the removal of Z.G. from their care and counsel for the minors asked for a one-day continuance so that all of the siblings could be present for the hearing. The court made temporary prima facie and placement findings and granted the short continuance. The parents and siblings also requested visitation with Z.G., who they had not seen since his foster placement, because the foster parent indicated she could not provide visitation for another two days. The court ordered the Agency to facilitate a visit with the family that day.
At the hearing the next day, all parties and their counsel were present. The court heard testimony from the maternal uncle (Uncle) who is a California Highway Patrol officer. Uncle testified that if Z.G. were placed back in his parents' care, he would be willing to check on the family on a daily basis and would do whatever was needed to ensure Z.G. was not at risk, including taking daily photos of the infant's body to share with the Agency. After Uncle's testimony, the Agency's counsel argued that because the parents refused to identify relatives to help with the minors' care, removal was the only option to ensure their safety.
The parents conceded there was sufficient evidence for the court to make a prima facie finding on the petition, but argued removal was not appropriate because there were other reasonable means to ensure Z.G.'s safety. Specifically, counsel pointed to Uncle's willingness to check on the child daily, that Z.G. would be in the daycare where the injury was reported five days a week, and the Agency's ability to make unannounced visits to the family's home. Relying on the statement of the child abuse pediatrician, Z.G.'s counsel argued in favor of detention. The siblings' counsel sided with the parents, asserting that removal was not warranted in this case and pointing to the same safeguards noted by parents' counsel.
At the conclusion of the hearing, the court issued its ruling from the bench. The court found the Agency had established a prima facie case for jurisdiction, but noted the Agency would have an "uphill battle at the jurisdiction hearing." With respect to removal, the court stated that its decision was not easy, and found the Agency had not made reasonable efforts to prevent or eliminate the need for removal. The court ordered placement with Mother and Father. The court stated it found Mother credible and expressed concerns about the Agency's reliance on the pediatrician's brief report. To protect Z.G., the court ordered the minor remain in daycare, that Uncle make at least daily visits to the home, and periodic unannounced visits by the Agency. The court scheduled the jurisdiction and disposition hearing for July 10, 2019.
Two days after the detention hearing concluded, the minors' counsel requested the court stay its placement order. After confirming that there had been no new indication of physical abuse, the court denied the request. Z.G.'s counsel then filed a petition for writ of mandate in this court seeking a stay of the placement order. On June 27, 2019, this court stayed the juvenile court's order placing Z.G. with his parents and ordered Mother, Z.G., and the Agency to file informal responses to the minors' petition. As a result of this court's order, Z.G. was removed from the family home and placed in foster care.
The petition was dismissed as moot after the trial court issued the orders appealed here.
In its report for the July 10, 2019 hearing, the Agency stated it had interviewed the child abuse pediatrician by phone and the doctor had reiterated her view that the injury was the result of physical abuse, and was "a classic spanking injury." Dr. Nienow also explained that additional testing of Z.G. had been done and there was no indication of a blood disorder. Dr. Nienow thought the initial testing indicating an elevated PTT "was a fluke," and she rejected the explanation that the bruising could have been caused by the car seat.
In the July 10, 2019 report, the Agency's social worker indicated that the parents and Uncle wanted Z.G. placed with Uncle and his family. Since Z.G.'s removal, the parents had spoken with Z.G.'s foster mother daily and had visited whenever the foster mother was able to facilitate visitation. Mother, Father, and the other three minors consistently denied any physical abuse in the home. All of the family members remained unable to provide an explanation for the bruising and continued to think it might have been caused by the infant's car seat.
At the initial jurisdiction and disposition hearing, the Agency recommended that the court make true findings on the petition it filed on behalf of Z.G. and dismiss the petitions filed on behalf of his three half-siblings. Mother and Father contested the allegations in the petition filed on behalf of Z.G. and the court set the matter for an evidentiary hearing to begin on September 5, 2019. The court dismissed the petitions filed on behalf of Z.G.'s three half-siblings. In its August 21, 2019 report for the pre-trial conference, the Agency stated that Z.G. had been moved to the home of Uncle and his wife, and the parents were visiting him regularly. Mother and Father had also completed intake appointments for child abuse classes and enrolled in parenting classes.
At the contested hearing, the court first received the Agency's reports into evidence as well as curriculum vitae of two of the Agency's social workers and medical experts for the Agency, Z.G., and the parents. The Agency called Dr. Nienow as its expert and she testified in line with her earlier reports, maintaining that Z.G.'s injuries could only have been caused by some form of abuse. Mother called a practicing, experienced pediatrician, Dr. Stephen Carson, as her expert. Unlike Dr. Nienow, Dr. Carson was not certified in child abuse pediatrics. Dr. Carson testified that the injury was likely caused by the child being placed into his car seat with a pacifier in the seat, possibly inadvertently with too much force. Dr. Carson had examined the car seat and found that because it did not have very much padding it could have caused the bruising. He also testified that the pattern in the bruise showed the pacifier that the parents believed the infant was placed on. Dr. Carson opined the bruises were not indicative of any abuse.
A third medical expert, board certified in child abuse pediatrics and a member of the child protection team at Children's Hospital in Orange County, Dr. Daphne Wong, testified on behalf of the minor. Dr. Wong had examined the documentation in the case, as well as Dr. Carson's report, and concluded that Z.G.'s injuries were the result of abuse. Like Dr. Nienow, Dr. Wong rejected Dr. Carson's conclusion that the injury could have been inflicted accidentally. Two social workers involved in the case also testified about their reports and their interactions with the parents and Z.G.'s older half-siblings. The family's current social worker testified that she believed Z.G. was at risk of additional harm if placed in the parents' care.
The court also heard the testimony of Mother, Father, and Uncle. All denied the existence of any abuse. Mother thought the bruises were likely the result of Z.G. being placed onto a pacifier in his car seat the evening before the bruises were reported to the Agency. Father likewise was unsure of the cause of the bruise but believed it was caused by a pacifier being underneath Z.G. in his car seat. Uncle testified that he and his wife were caring for Z.G. and he had supervised most of the parents' visits with Z.G. He had no concerns about either parent's ability to care for Z.G. or his siblings. Uncle also testified that as a California Highway Patrol officer he was a mandatory reporter of child abuse and would report any concerning behavior to the Agency.
After closing statements by counsel, the trial court announced its ruling from the bench. The court first stated that the case was an enigma because it was difficult to conceive how the parents could have injured Z.G. The court noted that it found all three experts qualified, but concluded that the explanation proffered by Dr. Carson was not reasonable based on the facts before the court. The court found that it was not reasonable to conclude that Z.G. was bruised by being placed in his car seat, and that excessive force had to have been applied to cause Z.G.'s injury. The court also found by clear and convincing evidence that there was no reasonable alternative to placement outside the home. The court stated that it believed Mother and Father would be successful in their reunification efforts, and directed the Agency to give strong consideration to beginning a 60-day trial visit with the parents before the six-month review hearing. Both parents timely appealed.
DISCUSSION
Mother and Father both contend insufficient evidence supports the trial court's finding that the allegations in the Agency's petition under section 300, subdivision (a) are true. They also assert insufficient evidence supports the court's order removing Z.G. from their care. While we share the trial court's optimism that this family will be reunited in short order—and perhaps Z.G. has already been returned to his parents' care—under the applicable standards of review, we cannot say the court's orders were unsupported by the evidence.
I
We review the court's jurisdictional findings for substantial evidence. (In re David M. (2005) 134 Cal.App.4th 822, 828.) Under this standard, we consider the entire record to determine whether the evidence 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, attempt to 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 orders, and affirm the orders even if other evidence supports a contrary finding. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53 (Casey D.); In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) Substantial evidence is not synonymous with any evidence. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393.) The ultimate test is whether, considering the entire record, a reasonable trier of fact would make the challenged ruling. (Id. at pp. 1393-1394; accord In re David M., at p. 828.)
Section 300, subdivision (a) authorizes the juvenile court to adjudge a minor a dependent child of the court when "[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm inflicted nonaccidentally upon the child by the child's parent or guardian." (§ 300, subd. (a).) The provision specifies, "For purposes of this subdivision, 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." (Ibid.)
In addition, under section 355.1, "[w]here 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, the guardian, or other person who has the care or custody of the minor, 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).) "Once the petitioner establishes a prima facie case under section 355.1 the burden of producing evidence 'shifts to the parents the obligation of raising an issue as to the actual cause of the injury or the fitness of the home.' (In re James B. (1985) 166 Cal.App.3d 934, 937, fn. 2.) 'The effect of a presumption affecting the burden of producing evidence is to require the trier of fact to assume the existence of the presumed fact unless and until evidence is introduced which would support a finding of its nonexistence, in which case the trier of fact shall determine the existence or nonexistence of the presumed fact from the evidence and without regard to the presumption.' (Evid. Code, § 604.)" (In re D.P. (2014) 225 Cal.App.4th 898, 903-904 (D.P.).)
Here, the existence of the injury coupled with the testimony of Dr. Nienow and Dr. Wong supported the court's finding that bruising on three-month-old Z.G. could not have been sustained except as a result of excessive physical force. Under section 355.1, this evidence created a presumption that Z.G. was a minor described by section 300, subdivision (a). To overcome the presumption, the parents were required to prove the injury was not caused by abuse. (D.P., supra, 225 Cal.App.4th at p. 903.) As they did in the juvenile court, the parents rely on Dr. Carson's testimony to support their argument that the presumption of abuse was overcome, and that insufficient evidence supported the court's jurisdictional finding. The juvenile court, however, rejected Dr. Carson's version of events.
Although the court found Dr. Carson a qualified pediatric expert witness, it concluded that his explanation that the bruising was caused by the car seat's lack of padding or the infant being placed onto his pacifier in the car seat was not reasonable. Instead the juvenile court found that Dr. Nienow and Dr. Wong's conclusions were the only reasonable explanations of what caused the minor's injuries. This expert testimony was sufficient to support the court's jurisdictional finding and to support its rejection of the explanation proffered by Dr. Carson. Put simply, this court cannot reweigh the evidence in the manner requested by Mother and Father. (See Casey D., supra, 70 Cal.App.4th at pp. 52-53 ["We have no power to judge the effect or value of the evidence, to weigh the evidence, to consider the credibility of witnesses or to resolve conflicts in the evidence or the reasonable inferences which may be drawn from that evidence."].)
Mother and Father also argue insufficient evidence supports the court's finding because there was no evidence that Z.G.'s bruises were caused by them. However, the parents testified that Z.G. was in their exclusive care, except when he was at daycare, leading up to the discovery of the bruises. Although Father testified that at the first moment he learned of the bruising, he assumed it happened at daycare, neither party testified that they thought the infant was injured at daycare. Dr. Nienow and Dr. Wong testified that the minor's bruising was serious, that the absence of any explanation for the injury suggested the intentional use of excessive force, and that without any reasonable explanation by the parents for the bruises, Z.G. was at risk of additional harm. This evidence was sufficient to support the court's jurisdictional finding under section 300, subdivision (a). (See D.P., supra, 225 Cal.App.4th at p. 903 ["The undisputed evidence of nonaccidental trauma and mother's failure to explain how [her minor son] was injured in her care constituted substantial evidence that mother was responsible for inflicting these injuries on [the minor]."].)
II
After the juvenile court makes a true finding at the jurisdictional phase of a dependency case, the court must then consider whether a minor should be declared a dependent and whether he or she would be at substantial risk of harm if not removed from the parent's care. (§§ 358, subd. (a), 360, 361; see In re Austin P. (2004) 118 Cal.App.4th 1124, 1129.) Section 361, subdivision (c)(1) provides for removal where there is 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" his or her parents' custody.
Section 361 also requires the juvenile court to determine "whether reasonable efforts were made to prevent or to eliminate the need for removal of the minor from his or her home . . . ." (§ 361, subd. (e).) "The adequacy of reunification plans and the reasonableness of [the welfare agency's] efforts are judged according to the circumstances of each case." (Amanda H. v. Superior Court (2008) 166 Cal.App.4th 1340, 1345.) The juvenile court has broad discretion in crafting a disposition pursuant to a child's best interests. (In re Nada R. (2001) 89 Cal.App.4th 1166, 1179.) "The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus . . . is on averting harm to the child." (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, disapproved on other grounds by Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6; In re Jamie M. (1982) 134 Cal.App.3d 530, 536.) Like the jurisdictional finding, we review the juvenile court's dispositional findings for substantial evidence. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.)
Here, the same evidence that supports the juvenile court's jurisdictional findings, i.e., the expert testimony of Dr. Nienow and Dr. Wong, also supports its finding that removal was required. These experts testified that in light of Z.G.'s age and the nature and severity of the injury, any additional abuse could go undetected, and thus, the significant protective measure of maintaining his placement with Uncle was required. Coupled with a lack of alternative explanation for the bruises, this expert evidence was sufficient to support the juvenile court's determination that no other measure would be sufficient to adequately protect Z.G.
Mother and Father rely on In re Hailey T. (2012) 212 Cal.App.4th 139 and In re Henry V. (2004) 119 Cal.App.4th 522 (Henry V.), in support of their contention that removal was not appropriate. These cases contain important distinctions from the present case. Hailey T. also involved an unexplained injury to an infant, but the parents did not appeal the juvenile court's removal of the infant from their care. Rather, the parents challenged only the removal of the infant's three-year-old sibling. (Hailey T., at p. 145.) This court concluded there was insufficient evidence to support removal of the sibling since there was no indication she had been abused and she "was not an infant of only a few months old, who would be unable to articulate any abuse to which she might be subjected, and who would be completely isolated from the observations of mandated reports of abuse." (Id. at p. 147.) Although the circumstances surrounding the abuse allegation here bear some similarities to the facts in Hailey T., like the sibling that suffered the injury in Hailey T., Z.G. is an infant and unable to report any abuse he could suffer, making Hailey T. distinguishable.
Henry V., likewise, involved a four-year-old child who could communicate injuries to the child protective workers responsible for ensuring his safety. (Henry V., supra, 119 Cal.App.4th at pp. 525-526.) Additionally, there was no evidence in Henry V. that the juvenile court applied the clear and convincing evidence standard in making its removal decision. (Id. at p. 530.) Further, the "court explicitly premised the out-of-home placement on the need to complete a bonding study" although there was no evidence the study could not have been performed while the child resided at home. (Id. at p. 529.) Here, the juvenile court explicitly recognized the appropriate evidentiary standard in its findings and the expert testimony credited by the court was sufficient to support its determination that continued placement with Uncle was necessary.
In sum, we conclude substantial evidence supports the juvenile court's jurisdictional and dispositional findings. While this court is bound to affirm under the applicable standard of review, like the juvenile court, we note the difficult nature of this case and are optimistic that the parents' reunification efforts will succeed.
DISPOSITION
The orders are affirmed.
GUERRERO, J. WE CONCUR: McCONNELL, P. J. HALLER, J.