Opinion
F074813 F074814
03-10-2017
S.J., Petitioner, v. THE SUPERIOR COURT OF KINGS COUNTY, Respondent; KINGS COUNTY HUMAN SERVICES AGENCY, Real Party in Interest. D.S., Petitioner, v. THE SUPERIOR COURT OF KINGS COUNTY, Respondent; KINGS COUNTY HUMAN SERVICES AGENCY, Real Party in Interest.
S.J., in pro. per, for Petitioner S.J. David S., in pro. per, for Petitioner David S. Colleen Carlson, County Counsel, and Rise A. Donlon, Deputy County Counsel, for Real Party in Interest.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. 16JD0108, 16JD0109)
OPINION
THE COURT ORIGINAL PROCEEDING; petition for extraordinary writ review. Jennifer Lee Giuliani, Judge. S.J., in pro. per, for Petitioner S.J. David S., in pro. per, for Petitioner David S. Colleen Carlson, County Counsel, and Rise A. Donlon, Deputy County Counsel, for Real Party in Interest.
Before Kane, Acting P.J., Detjen, J. and Smith, J.
-ooOoo-
Petitioners S.J. (mother) and David S. (father) in propria persona challenge the juvenile court's exercise of its dependency jurisdiction over their two infant sons, now 22-month-old Santiago and nine-month-old Gabriel, and its dispositional orders denying them reunification services based on its finding that Gabriel suffered severe physical abuse while in their exclusive custody. They contend there was insufficient evidence that they knew or had reason to know that Gabriel was being physically harmed. They seek extraordinary writ relief from the juvenile court's jurisdictional findings and dispositional orders, including the court's order setting a Welfare and Institutions Code section 366.26 hearing. (Cal. Rules of Court, rule 8.452.) We deny the petition.
On our own motion, we consolidated their writ petitions.
Statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL SUMMARY
On August 8, 2016, petitioners rushed then two-month-old Gabriel to a nearby clinic after mother found him on the living room floor "turning blue" and struggling to breathe. He was transported to Valley Children's Hospital Emergency Room where he was diagnosed with multiple fractures of his upper and lower extremities and ribs, intracranial hemorrhages, bilateral encephalomalacia (cerebral softening), and retinal hemorrhage of the left eye. Gabriel also had multiple patterned bruising of the face and upper chest and was underweight and malnourished. The physicians ruled out osteogenesis imperfecta (brittle bone disease) as a cause for Gabriel's fractures.
Dr. Philip W. Hyden, the child advocacy attending physician, opined that Gabriel's injuries were consistent with physical abuse. Gabriel's fractures were in various stages of healing and many of them were caused by forceful grabbing of his extremities. His intracranial and retinal hemorrhages were caused by accelerative/decelerative angular forces. Dr. Hyden suspected petitioners abused him because they were unable to provide an explanation consistent with his injuries.
Mother said she was cleaning the kitchen and Gabriel was in the living room lying on his stomach on a pillow when she heard him cry. Father was outside feeding his animals. She found Gabriel face down on the pillow apneic and unresponsive. She "shook" him and then called father who began chest compressions while she called 911. When mother's call to 911 went to an answering machine, they decided to drive Gabriel to a clinic that was within a 10-minute driving distance. Mother took over the chest compressions while father drove.
Mother attributed Gabriel's fractures and bruising to an incident that occurred a week before when Santiago pulled Gabriel from a coffee table in the living room. She explained that she had placed Gabriel in his bouncer on the table because Santiago threw toys at Gabriel and tried to hurt him. She was in the kitchen when she heard a thump and ran to the living room. She saw the bouncer upside down with Gabriel inside it. She did not take Gabriel to the doctor because Gabriel did not cry very loudly. She said father was not there at the time. She denied that she, father or Santiago pulled on Gabriel's arms or legs. Mother later explained that she caused Gabriel's facial bruising by repeatedly squeezing his face while performing cardiopulmonary resuscitation (CPR).
Mother told Detective Kevin Smyres she and father had been married for four or five years and that Gabriel and Santiago were their only children. She did not work and stayed home with the children. Father worked six to seven days a week at a dairy from 7:00 p.m. to 8:00 a.m. He slept when he got home and helped with the children when he woke up. She said she was the primary caretaker for the children and left them with father once or twice a week while she went to appointments. They also had a 25-year-old roommate who lived with them.
Mother said she became concerned about Gabriel approximately three weeks before because he was crying excessively. The doctor told her he was colicky and probably had gas. She said she fed Gabriel seven to eight times a day and gave him three ounces per feeding but he usually consumed only two.
Father said he watched Gabriel for about an hour two or three weeks before because mother took Santiago to see his godmother. He denied pulling on Gabriel or observing anyone else do so but had observed Santiago hit Gabriel in the head. Father produced pictures he took the day before of Gabriel on his pillow and pointed out that Gabriel did not have any visible marks or bruises. Father stated he was not home when Santiago pulled Gabriel and his bouncer off the table and did not believe Santiago was capable of doing that because he did not walk. After he was informed that Gabriel had 14 fractures throughout his body in various stages of healing, father became emotional and said that Gabriel had cried a lot since birth but the doctors always told them he was "OK." He thought he and mother might have "messed the baby up" when they performed CPR on Gabriel but stated that he would never hurt his children.
Smyres interviewed mother at the sheriff's office and asked about Gabriel's arm and leg fractures. She first denied knowing their cause but after a while suggested that she may have caused his leg fractures while changing his diaper and his arm fractures while bathing him. She explained that he fussed when she changed his diapers and would draw his legs up to his chest, making it difficult to change him. She would pull his legs to straighten them out and thought it possible that pulling his legs caused them to fracture. When she bathed Gabriel, she held him by his arm stretched over his head, causing him to dangle by the wrist. After interviewing father a second time, Smyres arrested mother for child abuse. (Pen. Code, § 273a, subd. (a).) She posted bail and returned home to father.
The Kings County Human Services Agency (agency) took Gabriel and then 15-month-old Santiago into protective custody and filed a petition alleging Gabriel came within the juvenile court's jurisdiction under section 300, subdivision (a) (serious physical harm), (b) (failure to protect) and (e) (severe physical abuse) based on the severity and intentional nature of his injuries while in petitioners' care. As to Santiago, the agency alleged he was at risk of suffering abuse or neglect similar to that suffered by Gabriel. (§ 300, subd. (j) (abuse of sibling)). The juvenile court ordered the children detained and the agency placed them together in foster care.
Mother insisted she loved Gabriel and was adamant she did not intentionally harm him. She and father stated that Gabriel cried constantly since birth and they had taken him to the doctor who told them he was fine.
The agency obtained Gabriel's medical records from his pediatrician, Dr. Marifi Cabaluna. According to the records, Gabriel was seen in Dr. Cabaluna's office on June 10, 2016 by a family practice resident for a well-baby check. Gabriel was four days old. Mother was feeding Gabriel breast milk only and there were concerns he was not being adequately nourished because he had lost nine percent of his body weight. Dr. Cabaluna and the resident conferred and asked mother to return in a week to check his weight. Mother returned to the clinic a week later and Gabriel had gained weight. On July 19, 2016, Dr. Michelle Keeter evaluated Gabriel, then six weeks old for colic. Mother reported that Gabriel cried a lot and seemed to have gas. Dr. Keeter recommended mother try a different formula and follow up with Dr. Cabaluna in a week. On July 29, 2016, mother took Gabriel to see Dr. Cabaluna. Mother complained that Gabriel cried all the time and doubled up and flexed his belly to get relief. She denied that he burped or spit up or had blood in his stool. Dr. Cabaluna noted a scratch mark and bruise on Gabriel's left cheek which mother said happened the day before after Santiago accidentally dropped Gabriel from a swing. Dr. Cabaluna noted that Gabriel was normocephalic, "alert" and "move[d] all extremities appropriately." She recommended mother change his formula.
In its report regarding jurisdiction and disposition, the agency recommended the juvenile court adjudge the children dependents as alleged in the petition, deny petitioners reunification services under section 361.5, subdivision (b)(5) and set a section 366.26 hearing.
In November 2016, the juvenile court conducted a contested jurisdictional/dispositional hearing. County counsel called mother as a witness and asked if anyone other than she and father cared for the children. Mother responded that someone else cared for Santiago. When county counsel tried to clarify that no one else cared for Gabriel, mother invoked her Fifth Amendment right and was excused.
Dr. Cabaluna testified as an expert in pediatrics. She reviewed Gabriel's discharge summary from Valley Children's Hospital and had been Gabriel's primary physician since birth. She saw Gabriel three times between birth and the age of two months, mostly for colic. Her usual practice was to perform a physical examination, including manipulating the baby's arms and legs. When she manipulated Gabriel's arms and legs, he did not cry. She recalled mother stating that Gabriel fell and that he had a bruise on his face but she did not think much of it because there was no other physical evidence to indicate abuse. She said the constellation of Gabriel's injuries was classic child abuse. She anticipated based on his brain injuries that he would have seizures and developmental delay.
Dr. Cabaluna further testified that she asked mother about Gabriel's injuries. Mother denied harming Gabriel and could not explain the injuries. Dr. Cabaluna asked mother why she was the only one charged with a crime and she said because she was the only one caring for Gabriel. Dr. Cabaluna had not spoken to father about Gabriel's injuries and had not seen him at any of Gabriel's medical appointments.
Father testified he and mother were Gabriel's only care providers. He worked two night jobs, including the one at the dairy and normally returned home around 8:00 to 8:30 in the morning. When he got home, he was tired but fed his animals, took a shower and ate breakfast. If the children were awake, he played with Santiago before going to sleep. Gabriel cried while he was trying to sleep, sometimes for hours, which disturbed father's sleep. He never asked mother why Gabriel cried so much but said the doctors told her that Gabriel had colic and gas. Father told the police he had seen Santiago hit Gabriel on the head frequently but had never seen anyone else hit him or treat him roughly and he had never seen anyone injure Gabriel. He said he accompanied mother to Gabriel's appointments with Dr. Cabaluna when he could and that Dr. Cabaluna lied when she testified that he never did.
The juvenile court sustained the dependency petition and adjudged the children dependents as alleged. The court removed the children from parental custody, denied petitioners reunification services under section 361.5, subdivision (b)(5) as to Gabriel and subdivision (b)(7) as to Santiago and set a section 366.26 hearing.
In rendering its rulings, the juvenile court found that Gabriel was severely injured by mother or father or both based on medical evidence that his injuries were nonaccidental and mother and father's testimony that Gabriel was in their care at all times.
DISCUSSION
Petitioners contend the juvenile court's rulings were error because there was insufficient evidence that they knew or should have known that Gabriel was being subjected to "serious physical harm." Therefore, they ask this court to vacate the section 366.26 hearing and order the juvenile court to return the children to their custody or provide them reunification services. We find no error.
The juvenile court adjudged Gabriel a dependent child under three subdivisions of section 300; subdivisions (a), (b) and (e). The court found under subdivision (a) that Gabriel suffered serious physical harm inflicted nonaccidentally by mother and father based on his injuries. Under subdivision (b), the court found that mother and father failed to properly nourish him and provide for his medical needs. However, the important finding with respect to the juvenile court's disposition of the case is its finding under section 300, subdivision (e) that Gabriel was severely physically abused. The subdivision (e) finding is critical because the juvenile court can deny a parent reunification services under section 361.5, subdivision (b)(5) if the subdivision (e) finding is based on the conduct of the parent. The court can also deny the parent reunification services under section 361.5, subdivision (b)(7) as to a sibling over which the court has jurisdiction.
We note that petitioners refer to "serious physical harm" rather than "severe physical abuse" in framing their argument. "Serious physical harm" is the standard required by subdivision (a), not subdivision (e). Nevertheless, we will assume for the purpose of reaching the merits of their argument that they are arguing the sufficiency of the evidence to support a subdivision (e) finding.
Section 361.5, subdivision (b)(5) and (7) provides: "Reunification services need not be provided to a parent ... described in this subdivision when the court finds, by clear and convincing evidence, ... [¶] [t]hat the child was brought within the jurisdiction of the juvenile court under subdivision (e) of Section 300 because of the conduct of that parent .... [¶] [t]hat the parent is not receiving reunification services for a sibling ... of the child pursuant to paragraph ... (5), ...."
The juvenile court exercised its dependency jurisdiction over Santiago under section 300, subdivision (j) based on petitioners' abuse of Gabriel. --------
Section 300, subdivision (e) provides for dependency court jurisdiction when: "The child is under the age of five years and has suffered severe physical abuse by a parent, or by any person known by the parent, if the parent knew or reasonably should have known that the person was physically abusing the child." "Severe physical abuse" includes, as relevant here, "more than one act of physical abuse, each of which causes ... bone fracture." (§ 300, subd. (e).)
It is undisputed that Gabriel meets the age requirement under subdivision (e) and that he suffered "severe physical abuse" as statutorily defined. Further, the juvenile court found that Gabriel was "abused by a parent," either father or mother or both. Therefore, the court did not have to consider whether petitioners knew or should have known that the other was physically abusing Gabriel. Finally, having found a basis for jurisdiction under subdivision (e) as to each parent because of their conduct, the juvenile court properly denied them services under section 361.5, subdivision (b)(5) as to Gabriel and under subdivision (b)(7) as to Santiago.
We find no error.
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.