Opinion
D059652 Super. Ct. No. J518041
01-09-2012
In re N.L., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. S.S. et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEALS from findings and orders of the Superior Court of San Diego County, Richard Neely, Juvenile Court Referee. Affirmed.
S.S. and O.L. appeal an order adjudicating their daughter, N.L., a dependent of the juvenile court under Welfare and Institutions Code section 300, subdivision (b). We affirm.
Unless otherwise indicated, further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
S.S. and O.L. are the parents of R.L., born December 2005, and N.L., born May 2010. This appeal concerns N.L. only. On January 28, 2011, seven-month-old N.L. was diagnosed with unexplained, nonaccidental fractures of her left distal tibia (ankle fracture) and a spiral fracture of her right distal femur (thighbone fracture). Doctors at Rady Children's Hospital believed that N.L.'s thighbone fracture was 10 to 14 days old, and that her ankle fracture was acute. However, the doctors did not rule out the possibility that the injury to N.L.'s left ankle may have occurred earlier, or that the right leg may have been reinjured on January 27.
N.L.'s caregivers during this time period were S.S., O.L. and the family's nanny. The nanny had worked for the parents since November 2010. None of N.L.'s caregivers provided a history that explained N.L.'s injuries.
On February 9, 2011, the San Diego County Health and Human Services Agency (the Agency) filed a petition under section 300, subdivision (b), alleging that N.L. had suffered, or that there was substantial risk she would suffer, serious physical harm or illness as a result of the failure of her parents to adequately supervise or protect her. Based on the time lines provided by the medical experts and its own investigation, the Agency reported, but did not allege in the petition, that N.L.'s injuries occurred while N.L. was in the care of either her parents or her nanny.
The social worker interviewed five-year-old R.L. and said that he appeared to be a happy and healthy child. Joyce A. Adams, M.D., who examined N.L. at a follow-up visit on February 3, reported that N.L. was a well-developed, well-nourished baby, who was smiling and happy when she was with her mother and father.
At an ex parte hearing on February 9, the juvenile court authorized N.L.'s detention with a relative. The parents, who are highly educated professionals with no criminal history, no history of child protective services intervention and no substance abuse or mental health issues, immediately began participating in recommended services.
At the jurisdictional and dispositional hearing, the parties consented to proceed by way of trial on the documents. The court admitted in evidence the Agency's reports, including N.L.'s medical records, the investigative reports of the San Diego Police Department, and reports of interviews with S.S., O.L. and the nanny.
The parents reported that in mid-January 2011, on a Friday, they noticed that N.L. was favoring her left leg and that she would not stand up. S.S. and O.L. were concerned and planned to take her to the doctor. By the following Monday, N.L. was not favoring either leg and appeared to be fine. S.S. said that she "forgot about it." N.L. was unusually fussy for the next two weeks.
The nanny said that on the morning of January 27, N.L. was very fussy. The nanny thought that N.L. felt warm. She gave N.L. a dose of Tylenol at approximately 12:00 p.m. The nanny's husband was working in the home that day. O.L. came home at around lunchtime to pay the nanny's husband for his work. N.L. was sleeping during the time that O.L. was home. When N.L. awoke, the nanny and her husband took her to the mall. The nanny said that N.L. was "doing fine" but did not want to eat.
S.S. said that when she arrived home from work, N.L. was crying. S.S. tried to breastfeed N.L. but she did not feed well. S.S. assumed that N.L. was coming down with the flu because S.S.'s son had been ill earlier in the week. N.L. screamed every time S.S. touched her. S.S. gave N.L. more Tylenol at approximately 6:00 p.m. By approximately 8:00 p.m., S.S. and O.L. knew that there was something wrong with N.L.'s right leg. S.S. said that she had never seen N.L. in so much pain in her life. N.L. usually awakened every two hours during the night to breastfeed, but on that night she was more restless than usual. N.L. did not sleep after 3:00 a.m. She was sensitive to touch and would not straighten her right leg. On the morning of January 28, S.S. and the nanny took N.L. to a 9:00 a.m. appointment with her pediatrician, who referred N.L. to Rady Children's Hospital for further evaluation.
The social worker reported that the parents had completed their parenting classes and that they were fully engaged with other recommended services. Beginning in early April, the parents had unsupervised visits with N.L. without any protective concerns. The Agency acknowledged that it did not know who had harmed N.L. or the manner or means by which she had been harmed. The social worker believed that the parents had gained enough insight and skills to allow them to safely care for N.L., conditioned on their continued participation in services.
S.S. presented affirmative evidence by way of a letter from Thomas J. Grogan, M.D., who stated that N.L.'s thighbone fracture could have been caused by an exercise saucer. Dr. Grogan stated that the type of ankle fracture that N.L. had typically occurred when a person deliberately pulled on a child's leg.
An "exercise saucer" or "baby activity center" is a stationary activity center that features a sturdy round base with an elevated seat for the baby, whose feet can rest on the saucer's base, allowing the baby to remain upright to practice standing and play with the attached toys.(<http://www.babyproducts.about.com/od/swingssaucersbouncers/f/exersaucerfaq.htm>, [as of Jan. 5, 2012].)
Without commenting on the evidence, the juvenile court found that the Agency had met its burden to prove the allegations of the petition by a preponderance of the evidence, and adjudicated N.L. to be a dependent of the juvenile court. The juvenile court further found that there was not clear and convincing evidence to show that there would be a substantial danger to N.L.'s safety or well-being in the family home, and placed her with her parents under a plan of family maintenance services.
DISCUSSION
A
The Parties' Contentions
S.S. and O.L. contend that there is insufficient evidence to support the jurisdictional findings under section 300, subdivision (b). Specifically, they argue that there is no evidence to show that N.L. was harmed as a result of any act or omission on the part of either parent because she was not in their exclusive custody and control during the time that the injuries occurred. S.S. and O.L. assert that the juvenile court's sustaining the petition without sufficient evidence is significantly prejudicial and violates their due process rights.
S.S. and O.L. each join the other's briefing.
The Agency contends that there is substantial evidence to support the petition because the petition was filed under section 300, subdivision (b), and section 355.1, subdivision (a), which applies when a child has unexplained injuries that would not ordinarily have been sustained except as the result of the unreasonable or neglectful acts of either the parent, guardian or other person who has the care and custody of the child. The presumption created by section 355.1, subdivision (a), constitutes a presumption that affects the burden of producing evidence. (§ 355.1, subd. (c).) The Agency argues that the juvenile court did not err when it sustained the petition under section 300, subdivision (b), because the parents did not meet their burden to rebut the prima facie case under section 355.1, subdivision (a), that N.L.'s injuries were a result of the unreasonable or neglectful acts of her parents or her nanny.
Minor's appellate counsel agrees that there is insufficient evidence to support the jurisdictional findings, and joins in the parents' briefs.
B
The Parties Did Not Proceed Under Section 355.1 at the Jurisdiction Hearing
We are not persuaded by the Agency's argument that section 355.1, subdivision (a), applies here. The petition filed on behalf of N.L. under section 300, subdivision (b), does not reference section 355.1, subdivision (a), and the Agency did not provide notice to the parties or to the juvenile court that it was relying on section 355.1, subdivision (a). As noted, section 355.1, subdivision (a), applies where "the court finds . . . 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 the parent, the guardian, or other person who has the care or custody of the minor." (Italics added.) However, the petition makes no mention of the possibility that a person other than the parents may have inflicted N.L.'s injuries, but instead alleges that N.L.'s injuries were a result of unreasonable or neglectful acts or omissions committed solely by her parents.
The Agency acknowledged at trial, and continues to acknowledge on appeal, that the identity of the perpetrator of N.L.'s injuries has not been determined.
Because of these inconsistencies and omissions, the parents, minor's counsel and the court may have reasonably believed that they were proceeding only under section 300, subdivision (b), which pertains to the actions or omissions of the child's parent or guardian, and not to "[another] person who has the care and custody of the minor." (§ 355.1, subd. (a).) The Agency did not cure any deficiencies in the petition during the jurisdictional hearing by informing the court that it was proceeding under section 355.1, subdivision (a), and the court did not make the threshold finding that section 355.1, subdivision (a), applied. Such a finding would have put the parents on notice that they had the burden of producing evidence to rebut the presumption that the child's injuries were nonaccidental or that they were not the perpetrator of the injuries. (§ 355.1, subd. (c).) By failing to adequately notify the parties and the court that it was relying on section 355.1, subdivision (a), the Agency forfeited its right to proceed at the jurisdictional hearing under that subdivision, and may not assert on appeal that section 355.1, subdivision (a), controls this court's analysis. (People v. Stowell (2003) 31 Cal.4th 1107, 1114 [it is unfair and inefficient to permit a claim of error on appeal that could have been easily corrected or avoided had it been timely brought to the attention of the trial court].)
C
There Is Substantial Evidence to Support the Jurisdictional Findings
A child comes within the description of section 300, subdivision (b), where "[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent . . . to adequately supervise or protect the child." (§ 300, subd. (b); In re S.O. (2002) 103 Cal.App.4th 453, 461.) Unless the juvenile court finds that section 355.1, subdivision (a) applies, the Agency has the burden of producing evidence to prove, by a preponderance of the evidence, that a child is a person described by section 300. (§ 355, subd. (a).)
The power of the appellate court begins and ends with a determination whether there is any substantial evidence, contradicted or uncontradicted, to support the conclusions of the trial court. (Silicon Valley Taxpayers' Assn., Inc. v. Santa Clara County Open Space Authority (2008) 44 Cal.4th 431, 447.) In reviewing the sufficiency of the evidence on appeal, we consider the entire record to determine whether there is substantial evidence supporting the juvenile court's findings. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393.) The appellant has the burden of showing that there is no evidence of a sufficiently substantial nature to support the findings or orders. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)
The parents argue that N.L.'s injuries were accidental. In making this argument, the parents essentially reiterate the position that they took in the juvenile court. However, the reviewing court does not reweigh the evidence, evaluate the credibility of witnesses or resolve evidentiary conflicts. (In re Dakota H., supra, 132 Cal.App.4th at p. 228.) There is ample evidence in the record to support a finding that N.L.'s injuries were deliberately inflicted. Marilyn Kaufhold, M.D., and Dr. Adams both stated that N.L.'s injuries were typical of fractures caused by child abuse. Dr. Adams emphasized that N.L.'s ankle fracture was caused by an adult pulling on or shaking her leg with extreme force, causing a corner of her left tibia to be pulled off. Dr. Grogan, the parents' expert, agreed that such ankle fractures are typically deliberately inflicted. With respect to the thighbone fracture, Dr. Kaufhold and David Gutglass, M.D., stated that in non-ambulatory children like N.L., a spiral femur fracture is commonly caused by a yank and twist motion. Contrary to the Agency's assertion that the record does not show that N.L. was active in an exercise saucer at home, the record in fact indicates that the parents told the attending physician that N.L. used both a jumper and an exercise saucer. However, Dr. Kaufhold said that N.L. did not have the same type of fracture that is typical in children who have been accidentally injured while playing in an exercise saucer.
The physicians generally agreed that the ankle fracture was acute and that the thighbone fracture was from 10 to 14 days old. During this time period, N.L.'s primary caregivers were her parents and nanny. The juvenile court did not make any findings concerning the identity of the perpetrator of N.L.'s injuries. The record supports the reasonable inference that one of N.L.'s caregivers was responsible for her injuries.
S.S. and O.L. argue that where, as here, the cause of the child's injuries are unknown, the mere possibility that one or both parents engaged in unreasonable or neglectful acts or omissions is insufficient to support a finding that N.L. was at risk of harm within the meaning of section 300, subdivision (b). (In re James R. (2009) 176 Cal.App.4th 129, 137 (James R.).) The parents' reliance on James R. is misplaced. That case involved a parent who had a history of mental instability and was hospitalized after having taken a combination of alcohol and ibuprofen while caring for her children. (Id. at p. 131.) The children had never been abused or neglected. They were healthy, well cared for and adequately supervised. (Id. at pp. 136-137.) In reversing the jurisdictional findings, this court stated that in the absence of a specific, defined risk of harm resulting from the parent's mental illness or substance abuse, speculation about a parent's future conduct, as opposed to actual evidence of risk, does not constitute substantial evidence. (Ibid.)
N.L.'s case is different. The record contains substantial evidence to show that N.L. was seriously physically abused by one of her caregivers, none of whom was excluded as the perpetrator. Thus, the risk to N.L. from further serious physical abuse by the unidentified perpetrator is not only real, but may be life threatening.
In their briefing on appeal, the parties include the nanny's husband as a possible perpetrator of the physical injuries to N.L. Other individuals were in the home on occasion, as well. However, the record does not indicate that any other individual was responsible for N.L.'s care or was alone with N.L. at any time.
In determining whether there is a substantial risk of serious physical harm or illness under section 300, subdivision (b), the juvenile court may consider the manner in which the injury was inflicted, the severity of the injury, whether there was a history of repeated inflictions of injuries, and other factors, or acts or omissions, by the parent which indicate the child is at risk of future harm. (In re Rocco M. (1991) 1 Cal.App.4th 814, 823-824.) The fact that the child's injuries were inflicted by an unidentified perpetrator, who may still have access to the child, heightens the risk of harm to the child.
Dependency proceedings are not the equivalent of criminal proceedings, where establishing the identity of the perpetrator is paramount. (In re E.H. (2003) 108 Cal.App.4th 659, 668-669.) The purpose of the dependency scheme is to provide the maximum safety and protection to a child who is currently being physically abused or neglected, and to ensure the safety of a child who is at risk of that harm. (§ 300.2.) Where, as here, a child has suffered serious, nonaccidental physical injuries in the home and the child's parent cannot be excluded as the perpetrator of those injuries, the juvenile court may reasonably infer that the child is at substantial risk of serious physical harm or illness within the meaning of section 300, subdivision (b). (Cf. In re E.H., supra, at p. 670 ["where there is no identifiable perpetrator, only a cast of suspects, jurisdiction under [section 300,] subdivision (e) is not automatically ruled out"]; In re Christina T. (1986) 184 Cal.App.3d 630, 640 [jurisdiction under section 300, subdivisions (a) and (d), is appropriate where identity of perpetrator of abuse on a child is unknown].) The juvenile court is not required to conclusively establish the identity of the perpetrator in order to establish jurisdiction based on substantial risk to the child under section 300, subdivision (b).
To the extent the record suggests that a nonparent inflicted the fractures to N.L.'s leg and ankle, there is substantial evidence in the record to show that the parents did not adequately supervise N.L. or protect her from this harm. On February 3, S.S. told Dr. Adams that approximately two weeks earlier, on a Friday (either January 14 or 21), N.L. would not bear any weight on her left leg. The parents were concerned and planned to take her to a physician. However, by the following Monday, N.L. seemed fine and was not favoring either leg. S.S. said she "forgot about it." The parents acknowledged that they may have delayed obtaining medical treatment for N.L. In the two weeks following N.L.'s initial manifestations of distress, the parents said that N.L. was fussier than usual and that during this time, she did not like having her clothes or her diaper changed. S.S. knew that the nanny was having a difficult time caring for N.L. because the baby was crying excessively. On the evening of January 27, N.L. screamed every time S.S. touched her. By approximately 8:00 p.m., the parents knew that there was something wrong with N.L.'s right leg. S.S. said that she had never seen N.L. in so much pain in her life. However, the parents did not take N.L. to the emergency room that evening, but instead, waited until the following morning to seek medical care and treatment for her. The parents' failure to seek prompt medical treatment for their seven-month-old daughter, knowing that she was in distress, prolonged her physical injury and allowed her to suffer additional harm.
Under these circumstances, the parents' lack of action constitutes substantial evidence of inadequate supervision and protection within the meaning of section 300, subdivision (b). (In re Rocco M., supra, 1 Cal.App.4th at p. 824 [to sustain a petition under section 300, subdivision (b), the child welfare agency must show serious physical harm or illness due to the parent's failure or inability to protect the child]; see, In re Joshua H. (1993) 13 Cal.App.4th 1718, 1729 [severe physically abused child is subject to juvenile court jurisdiction if the parent knew the perpetrator and knew or reasonably should have known of the abuse].) Further, even if the parents reasonably delayed obtaining medical care and treatment for N.L., the simple fact that N.L. suffered multiple, serious, nonaccidental injuries while in the family home constitutes substantial evidence that her parents did not adequately supervise and protect her.
We conclude that there is substantial evidence to support the findings that N.L. is a child described by section 300, subdivision (b). Because we determine that there is substantial evidence to support the jurisdictional findings, we need not address the parents' argument that the government's intervention to protect N.L. violated their due process rights.
We are concerned about the potential collateral consequences to a parent in cases such as this one, where identity of the perpetrator of physical abuse to a child remains unknown. Despite our concerns, in light of the record on appeal, we cannot reach the parents' claim that their potential inclusion on the California Child Abuse Central Index (CACI) violates their substantive federal due process rights. At oral argument, county counsel represented that the parents may petition to remove their names from CACI through administrative proceedings. They may also file a petition for writ of mandamus pursuant to Code of Civil Procedure section 1094.5 after exhausting their administrative remedies. (See, In re C.F. (2011) 198 Cal.App.4th 454, 464-465; Burt v. County of Orange (2004) 120 Cal.App.4th 273, 280.)
DISPOSITION
The findings and orders are affirmed.
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AARON, J.
WE CONCUR:
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MCCONNELL, P. J.
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HALLER, J.