R.R. v. Superior Court CA4/3 ( 2014 )

Filed 12/30/14 R.R. v. Superior Court CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
R. R.,
Petitioner;
v.
THE SUPERIOR COURT OF ORANGE G050819
COUNTY,
(Super. Ct. Nos. DP024465,
Respondent; DP024466)
ORANGE COUNTY SOCIAL SERVICES OPINION
AGENCY et al.,
Real Parties in Interest.
Original proceedings; petition for a writ of mandate/prohibition to
challenge an order of the Superior Court of Orange County, Caryl Lee, Judge. Petition
granted; writ issued.
Frank Ospino, Public Defender, Laura Jose, Assistant Public Defender,
Hong TL Nguyen and Dennis M. Nolan, Senior Deputy Public Defenders, for Petitioner.
No appearance for Respondent.
Nicholas S. Chrisos, County Counsel, Karen L. Christensen, Supervising
Deputy County Counsel, and Jeannie Su, Deputy County Counsel, for Real Party in
Interest Orange County Social Services Agency.
Law Offices of Harold LaFlamme and Tina Stevens for Minors.
* * *
Petitioner R.R. (mother) challenges juvenile court orders in the dependency
cases of her two daughters, one-year-old M.E. (baby) and three-year old S.E. (sister).
These cases arose out of baby suffering severe head injuries at the age of two months, at
which time both children were detained and a dependency petition was filed. Previously
under the exclusive care of mother and L.E. (father), baby and sister have been in the
custody of maternal grandparents since the inception of their respective dependency
cases. At the jurisdictional hearing, expert testimony supported an inference that baby’s
injuries were caused by child abuse and the court sustained the petitions based on a
finding that baby’s injuries were inflicted non-accidentally by a parent. At the
dispositional hearing, the court denied reunification services to both parents, limited
parental visitation rights, and scheduled a permanency hearing for both minors on
January 6, 2015. Mother petitions this court for extraordinary relief (Cal. Rules of Court,
rule 8.452), primarily asserting she should not be denied reunification services based on
the physical abuse of baby, which she now attributes to father.
The horrible injuries inflicted on baby clearly support most of the court’s
findings and orders pertaining to baby and sister. There is no doubt that the court
properly removed minors from the custody of parents, exercised jurisdiction over the
minors, and found them to be wards of the court. Nor is there any question that father
was properly denied reunification services, overriding the usual requirement that such
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services be provided to parents of dependent children. (See Welf. & Inst. Code,
1
§ 361.5.) The denial of reunification services to mother, however, is a much closer
question. Having examined the record and considered the bypass provisions cited by the
court in its denial of reunification services (§ 361.5, subds. (b)(5)-(7)), we conclude there
is insufficient evidence to support a denial of all reunification services to mother. We
therefore grant the petition.
FACTS
Petition, Detention Report, and Detention Hearing
On December 11, 2013, Orange County Social Services Agency (SSA)
filed a section 300 juvenile dependency petition pertaining to baby and sister. The
petition alleged baby was brought to the hospital on December 8 by her parents as a result
of what SSA alternately characterized as seizures or convulsions. Upon baby’s
admittance, a variety of injuries to baby were observed. The injuries included “a skull
fracture extending from the right side of her head all the way to the back of the child’s
skull, a she[a]ring injury to the frontal lobe of the brain, chronic and acute bilateral
subdural bleeding on the brain, bruising behind the right ear, old and new retinal
hemorrhages, two to three greenish bite marks on her right thigh, possible bite marks on
her right calf, and bruising on the top of both feet.” The injuries could only be explained
by “the unreasonable or neglectful acts or omissions of” the parents, who were the sole
caretakers of baby. According to the petition, parents waited approximately 20 hours to
take baby to the hospital after observing the first of six to seven convulsions. The
1
All statutory references are to the Welfare and Institutions Code.
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petition alleged dependency jurisdiction existed under section 300, subdivisions (a), (b),
2
(e), and (j).
SSA also filed a detention report providing additional detail concerning
baby, sister, mother, father, and the circumstances leading to SSA’s recommendation to
detain both children. Apparently, the parents stated baby “may have received the injuries
on [Friday, December 6]; the father was watching his two daughters . . . while the mother
was at the store. [Baby] was lying on the bed and [sister] was jumping on the same bed
when she fell onto [baby] accidentally striking [baby] with her knee on [baby’s] head.
Parents stated they noticed [baby] having convulsions on [December 7] but did not feel it
was serious. On [Sunday, December 8, baby] was having more convulsions and they
brought her to the hospital at 8 pm.” “Dr. [Daphne] Wong, child abuse specialist, stated
that [sister] could not have caused serious injuries to the child. The parents could not
offer a reasonable explanation for any of the child’s injuries.” Sister was two years old at
the time of baby’s hospitalization.
The court held a detention hearing on December 12, 2013, at which time
the court approved of SSA’s removal of the children from their parents’ custody. The
court found a prima facie showing had been made under section 300 and that there was “a
substantial danger to the physical and emotional health” of the children absent their
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“Any child who comes within any of the following descriptions is within
the jurisdiction of the juvenile court which may adjudge that person to be a dependent
child of the court: [¶] (a) The 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. . . . [¶] (b)(1) The 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 or his or her parent or guardian to adequately supervise or protect the child . . . .”
“(e) 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.” “(j) The child’s sibling
has been abused or neglected, as defined in subdivisions (a), (b), (d), (e), or (i), and there
is a substantial risk that the child will be abused or neglected, as defined in those
subdivisions.” (§ 300.)
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removal from parents’ custody. (See § 319, subd. (b).) Neither parent testified, and
counsel for each parent requested that SSA not question them regarding “the substance of
the accusations,” with father’s counsel explicitly referencing his Fifth Amendment right
against self-incrimination. The court ordered monitored visitation of seven hours per
week for each parent and ordered “SSA to provide reunification services as soon as
3
possible to reunify child with family.” The court set a trial for January 28, 2014.
Jurisdiction/Disposition Report
SSA filed a jurisdiction/disposition report on January 10, 2014. But a trial
did not actually go forward in January. Multiple continuances were granted (mostly at
the request of SSA) and trial did not commence until July. SSA initially indicated further
investigation was needed to determine the cause of baby’s injuries before providing a
dispositional recommendation, then repeatedly asked for more time to consult with a
medical professional concerning baby’s injuries. In this section, we summarize the report
and the multiple addenda to the report that were filed prior to the jurisdictional hearing,
which took place in July and August 2014.
This case was the family’s first contact with SSA and the juvenile court.
Though unmarried, parents had been together for eight years. Neither parent had a
criminal record. Father was employed in construction work. The family lived in a rented
bedroom in a house in Santa Ana, California. Mother disciplined her children by taking
away toys or threatening to disallow consumption of candy. According to mother, father
occasionally spanked sister with his hand; father denied any use of physical discipline.
There was no evidence of alcohol use, drug use, mental health issues, or domestic
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Parents were provided with a packet of information on January 9, 2014,
including “Resources and Referrals.” It does not appear that either parents or SSA
actually attempted to enroll parents in any educational or therapy programs. On May 13,
2013, the social worker noted that she had “not received any verification of enrollment or
participation in the services the children’s parents were given.”
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violence between parents. After being detained, both children were placed in the care of
their maternal grandfather. “The parents are visiting the children regularly and have been
cooperative with” SSA. The parents wanted the children returned to their care; both
children were too young to state their preferences.
Most of the factual information in the report was based on interviews
conducted (around the time of detention) by social worker Wendy Llamas and public
health nurse Kevin Jerry.
Mother explained her initial reluctance to take baby to the hospital after the
symptoms started as stemming from her ignorance as to the true cause of the baby’s
problems, as well as her belief that vaccinations received by the baby on December 6
(i.e., a day earlier) might have caused a reaction. Also, father thought mother was
exaggerating when mother described the symptoms to him. Though the report did not
quote mother, it described these episodes alternately as “seizures” or “convulsions.”
Mother estimated the symptoms in each of the six or seven episodes to have lasted about
a minute. All but the last episode affected half of baby’s body; the last episode appeared
more extensive. During another interview, mother indicated the first episode was on the
right side of her body and could be observed in her eyes, tongue, arm, and leg. There is
no additional detail from mother’s interview accounts describing precisely what baby
looked like during the episodes. Mother claimed she did not know what was happening
to baby; the report states mother claims “she did not know what the child was
experiencing were convulsions until she got to the hospital.” To explain the cause of
baby’s injuries, mother relayed a story about sister kneeing baby while jumping on the
bed, but mother professed to lack details because she was not present. When asked to
explain the presence of two greenish marks on baby’s right thigh (which appeared to be
bite marks), mother could only suggest that baby bruised easily since birth, particularly
after going to the doctor. Mother denied that either parent ever hit baby, and asserted her
belief that the damage was sustained as a result of sister’s play.
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Father confirmed he was caring for the children alone on the evening of
Friday, December 6. Father was cleaning sister’s high chair, but he turned toward the
bed in time to see sister “fall onto the bed, with her knee hitting the right side of [baby’s]
head.” Baby cried for an unspecified period of time and had a bump on her head. Father
put rubbing alcohol and a hat on her head. Father thought baby was okay. Baby did not
lose consciousness. When mother noticed baby “trembling” the next day, father was
sleeping. Mother awoke him and father stated he thought baby was cold. Father thought
there were five to six episodes in total before baby was brought to the hospital, each
lasting about one minute. Unlike mother, father recalled baby’s entire body (including
her facial features) trembling during the episodes he observed, not just one side of her
body. Even after observing baby’s episodes, father continued to believe baby was merely
cold. Baby continued to sleep and act normally when the episodes were over. Father
decided to bring baby to the hospital based on the frequency of the episodes, not because
the last episode was different from the others. Father did not know how baby sustained
bruises on her body; he speculated that they related to her vaccinations. Father claimed
mother had previously raised the issue of bruising with the pediatrician, who did not
know why the bruising was occurring.
From the beginning of the case, Dr. Wong described baby’s injuries
consistently with the allegations in the petition. She “asserted that [baby’s head] injuries
could not have been caused by the two-year-old sister. Dr. Wong added that [baby] was
delivered via C-section, indicating that she did not have a traumatic birth,” which could
have resulted in baby bruising easily. A social worker’s written report from December
10, 2013, based on information from another social worker (classified as a special
medical intake coordinator) indicated that the “bite marks . . . are very apparent on her
Right thigh” and there were “possible bite marks on her Right calf.” There was also
“bruising on top of both feet,” but there was no report as to whether these injuries were
obvious.
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At a December 10, 2013 team meeting (involving parents, grandparents,
social workers, and a nurse), a series of statements were made that are sometimes
attributed jointly to parents and sometimes attributed to a specific parent. Parents jointly
(and mother separately) claimed they did not know baby’s shaking symptoms were
seizures until they were told this information by health care workers at the hospital.
Mother added that another tenant at their residence had told her (at an unspecified time)
that baby was suffering from “convulsions.” Mother stated her initial belief was that the
episodes were a reaction to the December 6 vaccinations. The parents continued to
attribute baby’s head injuries to sister. The parents are jointly attributed with the
suggestion that baby’s bruises were “probably caused by the needles used at the hospital
when [baby] was born. She had an IV; they put needles all over her body to monitor her
sugar levels.” Parents are also jointly attributed with a statement about “a lot of forceful
movement” during baby’s birth. The report of the team meeting directly attributes to
father a statement that baby “had needles in her head on the same side as where she is
now injured.” A statement about baby crying “a lot since birth” was attributed to mother.
On April 14, 2014, SSA filed an addendum report describing a meeting
between a social worker and one of the caretakers, maternal grandmother (who is not
mother’s biological mother). Maternal grandmother reported that parents were visiting at
different times; father missed some visits and was not as patient as mother with the
children. Maternal grandmother stated her belief that father “could have bitten” baby’s
leg, based on a prior incident in which father had admitted to biting sister on the cheek.
Father “liked to bite.” Maternal grandmother believes father “may have” caused baby’s
injuries. Father supposedly said to maternal grandfather that he would take the blame for
the injuries so the children could be returned to mother.
On May 12, 2014, SSA filed an addendum report recommending that the
court sustain the petition, declare children dependents of the court, deny reunification
services to father and mother, and consider suitable placement orders. The report
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described a May 7 interview with Dr. Wong. “In summary, Dr. Wong indicated [baby]
suffered an injury that is classified as abusive head trauma. Dr. Wong expressed the
child sustained non-accidental trauma. Dr. Wong further implied that the child had two
different brain bleeds; one chronic and one acute bleed. Dr. Wong opined that shaking
the child vigorously would cause the she[a]ring to the frontal lobe of the brain. Dr. Wong
indicated the bleeds in the child’s head and the skull fracture the child sustained are a
result of blunt force trauma and shaking. If left untreated, Dr. Wong expressed the
child’s seizures may not have stopped and there would be the possibility of death.”
SSA added in its evaluation: Baby “will most likely endure permanent
damage as a result of her injuries. [Baby] is currently being evaluated by the Regional
Center of Orange County . . . . [Baby] is not developmentally on target for her age as
evidenced by her reported floppy tone . . . .”
Following this new evidence and SSA’s recommendations, mother sought
and received an additional continuance to allow her time to retain an expert witness. One
final SSA addendum report was filed, on July 1, 2014, prior to trial. Regarding sister,
maternal uncle reported that mother was not adequately disciplining sister for
misbehavior during visits. Regarding baby, additional seizures had occurred, resulting in
medication changes and trips to the hospital.
4
Jurisdictional Hearing
Trial on jurisdictional issues occurred over several days from July 7 to
August 5, 2014. Both mother and father refused to testify, invoking their Fifth
Amendment right against self-incrimination.
4
At mother’s request, the court bifurcated the dispositional issues from the
jurisdictional issues. The parties stipulated that evidence admitted at the jurisdictional
hearing could be relied on at the dispositional hearing.
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Dr. Wong, an expert in child abuse, testified first. Dr. Wong relied on her
personal evaluation of baby on December 9, 2013, as well as her review of primary care
records, lab results (including a computed tomography scan, a magnetic resonance
imaging scan, a skeletal survey, an ultrasound, and a chest X-ray), and interviews with
mother and Dr. Uyen Dangthy Bui (baby’s primary care physician) in forming her
opinions about baby. Dr. Wong confirmed the description of her opinions in the SSA
reports, i.e., that baby suffered nonaccidental trauma to her head consistent with the
allegations in the petition. Dr. Wong believed the lab tests and baby’s medical history
ruled out the possibility of a bleeding disorder. Dr. Wong does not “believe a two-year-
old would be able to generate the force that would cause the serious injuries that [baby]
had.” “Certainly maybe get a bump on the head. But I don’t believe [sister] would be
able to cause the force that we see in [baby’s injuries].”
Baby suffered from subdural hematomas (i.e., bleeding under the skull) on
both sides of her head. The two bleeds “appeared to be of different ages.” Dr. Wong
believes this indicates two different episodes of abuse. Infection and congenital issues
were ruled out as causes of the bleeding. The shearing injury to baby’s brain could be
caused by “a severe blunt force trauma” or a “shaking force.” The skull fracture “had to
be caused by some blunt force trauma.”
Asked about baby’s symptoms upon hospitalization, Dr. Wong testified that
baby “presented with seizures.” Dr. Wong did not describe the observable manifestations
of the seizures. She agreed that seizures “can be seen in abusive head trauma” cases.
When asked whether baby’s injuries could have caused death, Dr. Wong stated, “[S]he
did continue to have quite a few seizures up until the point that she was loaded with
medication . . . . Without that, she could have . . . had much more serious
consequences . . . .” Dr. Wong opined that baby’s injuries could have “caused permanent
physical disability” had they “been left untreated.” Dr. Wong did not testify regarding
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the short-term or long-term effects, if any, of the 20 hour gap between baby’s first seizure
and her hospitalization.
Social worker Kendyl Hicks also testified. Hicks did not opine as to which
parent the evidence pointed to as the perpetrator of the abuse. Hicks had no evidence that
any particular person inflicted the injuries on baby; she did not know whether father’s
alleged statements to maternal grandmother would qualify as an admission. Sister had no
physical injuries on her body at the time of removal. Parents had no history of alcohol or
drug abuse, no history of domestic violence, and no history of mental illness. Hicks
agreed that a police report concluded allegations of neglect or abuse against parents in
connection with baby’s injuries were “unfounded.”
Hicks did not speak with the pediatric neurosurgeon, Dr. Louden. Based on
her review of the medical records, Hicks was aware that Dr. Louden’s opinion about
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baby’s injuries was different in some respects form Dr. Wong’s opinion. Hicks agreed it
was important for the court to have this information, but she did not provide the
information in any of her reports. Hicks did not speak with baby’s pediatrician in the
course of her investigation, even though Dr. Wong’s opinion that there were two separate
instances of head injury would indicate the pediatrician had seen baby in between the two
5
The appellate record does not include baby’s medical records, of which
there were apparently 244 pages. Mother’s counsel cross-examined both Dr. Wong and
social worker Hicks regarding the contents of those records (and in particular a written
statement from Dr. Louden from the time of treatment about whether at least one of
baby’s injuries was consistent with an accidental cause), but apparently did not seek to
admit these records as exhibits. At one point, counsel purported to read into the record
Dr. Louden’s key comment, “In light of her significant dilation of her subarachnoid
spaces, it is reasonable to consider that her subdural hematoma is due to closed head
injury that she sustained from her older sister a few days ago.” The contents of the
records are not included in the SSA reports, which were admitted as exhibits. Dr. Louden
was not called to testify at the jurisdictional or dispositional hearing. And, as pointed out
by Dr. Wong in her testimony, Dr. Louden’s note did not address baby’s other injuries,
including the skull fracture, which Dr. Louden apparently did not notice during his
examination.
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instances of abuse. Hicks did not know how many times mother had taken baby to her
pediatrician. Hicks was aware that baby was taken to the pediatrician for vaccines on
December 6, 2013, information she gathered from the medical records. Hicks agreed that
there had been no determination as to whether the bite marks on baby’s thigh had been
caused by an adult or child.
The last witness to testify was Dr. Bui, baby’s (and sister’s) pediatrician.
Dr. Bui conducted “a well-baby check” on baby on October 11, 2013. This was a normal
examination for newborns; baby was born in late September 2013. Mother was at the
appointment with baby. Baby had no fever and appeared to be well-nourished, hydrated,
and comfortable. Baby’s head was normal with no sign of trauma. Baby’s eyes, ears,
nose, and throat were normal. Baby did not have bruises. In sum, Dr. Bui did not find
anything wrong with baby on October 11.
Dr. Bui also examined baby on December 3 and December 6, 2013. Dr.
Bui became aware that baby had been taken to Saint Joseph’s Hospital on November 28,
a date on which his office had been closed for the Thanksgiving holiday. Dr. Bui was
told that baby was taken to the hospital on November 28 because of vomiting and fever.
Dr. Bui examined baby at a December 3 appointment as a follow-up to the hospital visit.
Dr. Bui prescribed medication to address baby’s vomiting and dehydration. Dr. Bui’s
diagnosis was that baby had reflux, which was causing the vomiting. Overall, baby
appeared to be well-nourished and well-developed; she was “breathing comfortably” and
was “not fussy.” Baby’s head appeared to be normal. Dr. Bui found nothing to raise an
alarm during the December 3 examination. Dr. Bui asked mother to bring baby back in
two days.
Mother returned on December 6 with baby. Dr. Bui again examined baby
and found her “to be well-nourished, well-developed, and in no acute distress.” Baby did
not appear to be in pain. Dr. Bui did not observe any bruises. Dr. Bui continued to
prescribe medication for baby and also gave her vaccinations. Mother always acted
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appropriately in her interactions with Dr. Bui. Dr. Bui always conducted a thorough
examination of baby. Dr. Bui has never noticed any bruising on sister in his
examinations of sister.
Dr. Bui recalls talking to Dr. Wong around December 9 or 10. Dr. Bui
recalls telling Dr. Wong at that time that he had noticed nothing unusual during
examinations of baby.
Dr. Bui was not aware of baby having a disorder that would cause her to
bruise easily, and mother never reported to Dr. Bui that baby bruised easily. Dr. Bui is
not certified as a child abuse specialist and was not conducting the examinations of baby
for the purpose of looking for child abuse or trauma. Dr. Bui agreed one could not
necessarily tell from a visual examination whether a child has suffered head injuries like
those suffered by baby. A child with head injuries does not always present with acute
distress. Vomiting is a symptom of head injury. Dr. Bui opined that most parents would
take their child to the hospital “right away” if the child was suffering from seizures.
In closing argument, SSA asserted “it appears clear that [baby’s] injuries
were caused by a parent. The perpetrator at this time is unknown. However, it is clear
that it is either the mother or the father.”
The court found the allegations of the petition to be true by a preponderance
of the evidence, with section 300, subdivisions (a), (b), and (e) applicable to baby, and
section 300, subdivisions (a), (b), and (j) applicable to sister. The court set a
dispositional hearing for September 9, 2014. The court noted that one inference to be
taken from the record was that father committed the acts of abuse while mother was away
on December 6, 2013, but the court ultimately refrained from finding which parent
actually committed the abusive acts toward baby. The jurisdictional findings of the court
are not the subject of this writ petition.
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Dispositional Hearing
An addendum report was submitted prior to commencement of the
dispositional hearing. This report stated that both children were doing well in their
placement with the maternal grandparents and described their appearance as healthy. The
dispositional hearing occurred over several days, from September 9 to October 1, 2014.
Mother testified at the dispositional hearing. Mother ended her relationship
with father two months before her testimony, i.e., in approximately July 2014. Mother
ended the relationship after hearing the testimony of Dr. Wong at the jurisdictional
hearing. Before hearing the testimony, mother had believed the injuries were accidental,
in part based on a statement attributed to Dr. Louden. Mother denies that she committed
any abuse of baby. Mother still refuses to directly accuse father of committing abuse,
because she was not present and has never seen him commit violence against her
children. Mother signed up for parenting and child abuse programs three weeks prior to
her testimony.
For the most part, father was never alone with the children for more than 90
minutes. Mother did not agree with father spanking sister on the few occasions he did so.
Father admitted to biting sister on her cheek one time, but he never did it again. Father
said he “became anxious and that’s why he had bitten her.” Mother became angry and
warned father not to do it again or she would leave him. Now that mother knows there
were bite marks on baby’s thighs, she agrees father is a risk to baby. Mother noticed
bruising on baby after her birth, when hospital staff put needles in her feet, hands, and
head.
Mother noticed a little bump on baby’s head after she returned from her
errand on December 6, 2013. Father explained without inquiry from mother about sister
jumping on the bed and hitting baby with her knee. Mother believed father when he told
her this. From midnight the next night (i.e., the end of Saturday into Sunday, December
8), baby exhibited periodic episodes of strange movements with one of her hands. The
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court described mother’s physical gestures on the witness stand as mother, “with her hand
in a fist, moving at the wrist in a circular motion.” Mother did not see baby roll her eyes
or baby’s body stiffen. Mother was concerned, but she thought it was a reaction to the
vaccinations. Baby went to sleep, but then had another episode closer to morning in
which her hand moved. Mother did not know what a seizure or convulsion was. Mother
stayed home “almost the entire day” until the afternoon of December 8. Baby “had some
movements in the morning and then she didn’t have anything in the afternoon.” While
out to get dinner on December 8, baby’s hand and feet began to “react a little stronger”
and parents took her to the hospital. Father did not object to mother’s request to take
baby to the hospital and parents immediately proceeded to the hospital once the decision
was made to do so. There was no attempt on cross-examination to attack mother’s
perception of baby’s physical appearance during the seizures, including the fact that she
had mentioned more than baby’s arm in an interview in December 2013.
Mother’s aunt testified. She confirmed that mother came to live with her
alone (i.e., without father) in July 2014. According to aunt, mother was “very patient”
with her children and was an “excellent mother.” Aunt’s understanding is that baby was
hurt when sister kneed her in the head. Aunt believes both mother and father are good
parents.
The children’s maternal grandfather also testified. He and his wife cared
for the minors since the beginning of the dependency cases. According to grandfather,
mother has never missed her visitation allotment with the children. Sister cries when
mother needs to leave; sister is “too close to her mother . . . .” Mother takes excellent
care of her children. Grandfather is very protective of his grandchildren, but has no
concern mother would ever harm them. Grandfather does not know who caused baby’s
injuries.
In closing argument, counsel for father and mother each claimed the more
likely perpetrator was the other parent. Counsel for SSA posited “the court does not need
15
to determine who the perpetrator is. It is clear that it is one or both of these parents as the
child was only under the care of one or both . . . at any time.”
Dispositional Findings
The court declared the children to be dependents of the court and found that
clear and convincing evidence supported removing the children from the physical
custody of parents under section 361, subdivision (c)(1). The court found that
reunification services did not need to be provided to parents pursuant to section 361.5,
subdivisions (b)(5), (6), and (7). Neither the court’s oral statements at the hearing nor the
minute order explicitly stated that the findings predicate to denying reunification services
were made by clear and convincing evidence. The court found there was “no evidence
that [reunification] services would benefit parents and/or the interest of the children . . . .”
In discussing the evidence, the court noted that baby’s “injuries, to say the
least, were very significant. I think that that was made clear during our jurisdictional
hearing. And the evidence did disclose that there was more than one occasion where
these injuries were inflicted, as various stages of healing were revealed by the diagnostic
testing.” “[T]here were visible signs that there was something wrong with this child,
acknowledging that some of the serious nature of what was going on was not
distinguished until further diagnostic testing was done by medical professionals, of
course, but bruising, seizures, . . . and waiting 20 hours to have these checked out is quite
staggering in effect.” “There were signs that both parents should have been on notice that
there was something gravely wrong, and the [section 300, subdivision (e)] count doesn’t
require that the court point a finger at a specific parent, and that is certainly is not
necessary. The analysis that could flow from the [section 300, subdivision (a)] count
could certainly suggest that perhaps the injuries were inflicted by father when mother
went to the store; however, it is unclear if that actually could be the case in light of the
fact that these injuries were from various stages of healing.” The court also found fault
16
with mother not initiating treatment services or moving away from father until after the
jurisdictional hearing. The court rejected the argument that mother did not have
sufficient information before her early on to conclude that baby’s injuries were not
accidental. Despite the court’s refusal to actually conclude as a factual matter that father
committed the abuse, the court criticized mother’s failure to come to terms with father’s
apparent abuse of baby.
The court ordered that a permanency planning hearing pursuant to section
366.26 be held on January 6, 2015. And the court approved of SSA’s case plan and
6
visitation plan as set forth in its reports.
DISCUSSION
Mother does not challenge the jurisdictional findings of the court in this
writ petition, including the section 300, subdivision (e), finding by a preponderance of the
evidence that baby “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.” (§ 300, subd. (e).)
Case law is clear that SSA may employ a “‘res ipsa loquitur’ type of argument to support
a jurisdictional finding under subdivision (e). There was severe physical abuse of a child
under five . . . and the child was never out of her parents’ custody and remained with a
family member at all times; therefore, [parents] inflicted the abuse or reasonably should
have known someone else was inflicting abuse on their child, bringing [baby] within the
6
We grant SSA’s request for judicial notice of a subsequent order adjusting
the visitation schedule to one 2-hour monitored visit per week for each parent.
17
language of section 300, subdivision (e).” (In re E. H. (2003) 108 Cal. App. 4th 659, 669-
7
670, fn. omitted.)
Instead, mother challenges the court’s orders at the dispositional hearing.
The key decision by the court at the dispositional hearing was to deny reunification
services to mother; the limits set on visitation and the scheduling of the section 366.26
permanency planning hearing followed logically from the denial of reunification services.
SSA defends the court’s orders, counsel for minors agree with SSA, and father takes no
part in this writ proceeding. “We review the court’s decision to deny reunification
services under the substantial evidence test to determine whether it is supported by
evidence that is reasonable, credible, and of solid value. [Citation.] ‘We do not reweigh
the evidence, nor do we consider matters of credibility.’” (L.Z. v. Superior Court (2010)
188 Cal. App. 4th 1285, 1292 (L.Z.).)
“Family reunification services play a critical role in dependency
proceedings. [Citation.] Unless a specific statutory exception applies, the juvenile court
must provide services designed to reunify the family within the statutory period.”
(Tyrone W. v. Superior Court (2007) 151 Cal. App. 4th 839, 845.)
The court found that reunification services did not need to be provided to
parents pursuant to section 361.5, subdivisions (b)(5), (6), and (7). “Reunification
services need not be provided to a parent . . . when the court finds, by clear and
convincing evidence, any of the following: “(5) That the child was brought within the
jurisdiction of the court under subdivision (e) of Section 300 because of the conduct of
7
As to the section 300, subdivisions (a) and (b) findings, “[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).)
18
that parent . . . .” or “(6) That the child has been adjudicated a dependent pursuant to any
subdivision of Section 300 as a result of . . . the infliction of severe physical harm to the
child, a sibling, or a half sibling by a parent . . . and the court makes a factual finding that
it would not benefit the child to pursue reunification services with the offending
parent . . . .” “(7) That the parent is not receiving reunification services for a sibling . . .
of the child pursuant to paragraph (3), (5), or (6).” (Ibid., italics added.) Obviously,
subdivision (b)(7) covers sister’s situation if SSA proved either subdivision (b)(5) or
(b)(6) as to baby by clear and convincing evidence. We must examine the applicability
of these two subdivisions separately, as either subdivision could independently support
the court’s order.
Section 361.5, subdivision (b)(6)
“[S]ection 361.5, subdivision (b)(6) requires the juvenile court to find that a
parent inflicted severe physical harm on the child by act, omission or consent before it
may deny reunification services to that parent under subdivision (b)(6). The Legislature
did not intend subdivision (b)(6) to apply to deny reunification services to a negligent
parent; rather, the parent must have been complicit in the deliberate abuse of the child.”
(Tyrone W. v. Superior Court, supra, 151 Cal.App.4th at p. 843; see also In re Kenneth
M. (2004) 123 Cal. App. 4th 16, 21 [“By its express terms, subdivision (b)(6) applies to
the parent who inflicted severe physical harm to the minor”].)
“A finding of the infliction of severe physical harm, for the purposes of this
subdivision, may be based on, but is not limited to, deliberate and serious injury inflicted
to or on a child’s body . . . by an act or omission of the parent or guardian, or of another
individual or animal with the consent of the parent or guardian; deliberate and torturous
confinement of the child . . . in a closed space; or any other torturous act or omission that
would be reasonably understood to cause serious emotional damage.” (§ 361.5, subd.
19
(b)(6).) “The court shall read into the record the basis for a finding of . . . severe physical
harm under paragraph (6) of subdivision (b) . . . .” (Id., subd. (k).)
In its factual findings, the court listed three bases for its conclusion that
baby suffered severe physical harm: (1) baby’s “very serious” injuries (presumably, the
head injuries); (2) the evidence suggesting head injuries were suffered on “more than one
occasion”; and (3) the “staggering” effect of “waiting 20 hours” to seek medical attention
for baby’s injuries, some of which could be observed without the diagnostic testing that
8
ultimately established the seriousness of the injuries. We assume the court intended for
all of its findings to apply against mother and review whether there is substantial
evidence supporting the court’s implicit findings that mother inflicted serious injuries on
baby through her acts, consent to father’s acts, or omissions.
First, did mother herself inflict baby’s serious head injuries? The limited
evidence that is available all points to father as the direct perpetrator of the abuse. Father
made somewhat incriminating statements suggesting he would take the blame for abusing
baby. Father was alone with the baby for enough time to inflict the injuries, a day before
the seizures began. Father volunteered a story about sister harming baby when mother
returned from her errand, perhaps trying to cover his tracks. Father had spanked sister
and bit her cheek in the past, while mother never used physical punishment or force
against her children. Mother stood up to cross-examination in denying culpability for
9
baby’s injuries. The record lacks substantial evidence for the proposition that mother
struck or shook baby.
8
The court’s findings leave much to be desired. The court did not
specifically explain which acts mother directly perpetrated, consented to, or omitted to
perform. (See In re Kenneth M., supra, 123 Cal.App.4th at p. 21 [stating that juvenile
court must identify perpetrator in making § 361.5, subd. (b)(6) findings].) And the court
did not make clear whether it was making these findings by clear and convincing
evidence, as required by section 361.5, subdivision (b).
9
Certainly, much of this evidence can be discounted or ignored because it
20
Second, did mother consent to baby’s injuries? SSA suggests this case is
akin to Amber K. v. Superior Court (2006) 146 Cal. App. 4th 553, wherein reunification
services were denied to mother under section 361.5, subdivision (b)(6), even though it
was clearly the father who was the actual perpetrator of the sexual abuse at issue.
(Amber K., at pp. 561-563.) But in Amber K., there was testimony from a child victim
that he had told the mother about the sexual abuse over the course of 18 separate
incidents; the record thus supported a finding that the mother was an offending parent
alongside the father for actively consenting to the abuse. (Id. at p. 560-562.) “By its
express terms, section 361.5, subdivision (b)(6) applies to a parent who gave actual or
implied consent to the sexual abuse of the child by another person, as well as the parent
who was the actual perpetrator of the sexual abuse.” (Id. at p. 561.)
SSA points to mother’s prior knowledge of the bite mark on sister’s cheek
as substantial evidence for the conclusion that mother gave actual or implied consent to
baby’s head injuries. But there are no details in the record concerning the depth of the
bite mark and minimal indications of the circumstances that led to this bite (father
claimed he was “anxious”). Moreover, the scale is out of proportion. The bite mark
evidence is disturbing, but it is unreasonable to suggest that mother’s forgiveness of
father’s bite of sister amounted to her consent to the brutal infliction of head injuries on
baby. Baby also had bruises and bite marks at the hospital. But there is no solid
evidence that mother discovered these injuries before baby’s hospitalization on December
8. Despite repeated opportunities for medical professionals to inspect baby, up to and
including an appointment with Dr. Bui on December 6, there is no evidence anyone
came from parents (primarily mother) and mother’s relatives, and the court did not find
either parent to be credible. But if the limited evidence pointing to father as the
perpetrator is ignored, there is essentially nothing left to determine which parent
perpetrated the abuse. To simply throw up one’s hands and conclude mother or both
parents actually struck baby is an affront to the clear and convincing standard of
evidence.
21
suspected child abuse before the December 8 hospitalization. Father’s apparent abuse of
baby even before the evening of December 6 (as evidenced by expert testimony
suggesting there were multiple internal bleeds in baby’s head) was uncovered by way of
medical tests starting on December 8, not mere observation. There is insufficient
evidence supporting a finding that mother consented to baby’s abuse.
Third, did mother’s omission or omissions inflict serious physical injury on
baby? SSA cites Pablo S. v. Superior Court (2002) 98 Cal. App. 4th 292 in support of the
court’s finding that mother’s (“staggering”) failure to immediately take baby to the
hospital supports the denial of reunification services. In Pablo S., the minor accidentally
broke his leg but his parents failed to seek medical attention for nearly two months. (Id.
at p. 294.) The court rejected the parents’ claim that the application of section 361.5,
subdivision (b)(6), was inappropriate because “they did not ‘deliberately’ or
‘consciously’ inflict harm on” the minor. (Id. at p. 300.) “In light of [the minor’s]
constant pain and the disfigurement that resulted from the broken leg, the parents’ failure
to provide medical attention constituted the infliction of serious injury by omission.” (Id.
at p. 301.) In other words, the occasion on which minor suffered his broken leg was
beside the point in Pablo S. The injury to minor for purposes of the dependency case was
caused by the parents’ failure to seek medical attention.
In theory, the same rationale could apply to the instant case. Even if
mother had nothing to do with the blunt force and/or shaking injuries, one might posit
that the 20-hour delay in taking baby to the hospital inflicted serious physical harm in its
own right. The court certainly found fault with the delay in taking baby to the hospital in
light of her seizures and visible bruising; Dr. Bui’s testimony and common sense supports
this critique, as most parents would seek medical attention as soon as possible in these
circumstances. Taking this line of thought further, it is generally understood that medical
care is most effective when delivered as quickly as possible. There is no particular
reason to think that the onset of seizures would be an exception to this common
22
understanding. These facts and reasoning amply support the court’s jurisdictional and
custodial findings as against mother.
But there remains a gap between the court’s factual findings and the
conclusion that mother should be denied reunification services under section 361.5,
subdivision (b)(6) — namely, the need for evidence demonstrating that mother’s
omission inflicted severe physical harm on baby. This gap is not bridged in the record.
The record is vague as to the precise characteristics of what were variously referred to as
seizures, convulsions, or “hand movements” (in mother’s testimony). This lack of
specificity leaves the factfinder in a poor position to decide (1) whether the seizures
themselves caused severe physical harm, and (2) whether mother was on actual notice
(recall that § 361.5, subd. (b)(6), does not apply to negligence) that she was inflicting
severe physical harm by not taking baby to the hospital. Mother had shown no reluctance
over the course of baby’s short life to take her to the hospital or her pediatrician, and she
ultimately took baby to the hospital less than a day after the seizures began. Moreover,
there is no medical testimony supporting a finding that this 20-hour delay was significant
10
to the physical harm suffered by baby. Were the seizures themselves seriously harmful
to baby (or were they merely indications of the severe injury already inflicted upon
baby)? Was baby’s medical outcome worse because of the 20-hour delay? The trial
court could only have reached answers to these questions by way of speculation.
In sum, substantial evidence does not support the court’s order under
section 361.5, subdivision (b)(6). The juvenile court’s order is understandable given the
seriousness of baby’s injuries, but SSA failed to present sufficient evidence to prove
mother inflicted severe physical harm upon baby.
10
Perhaps this failure in proof occurred because SSA relied on medical
testimony provided at the jurisdictional hearing rather than recalling Dr. Wong to address
issues particular to the dispositional hearing.
23
Section 361.5, subdivision (b)(5)
When SSA “‘proves by clear and convincing evidence that a dependent
minor falls under subdivision (e) of section 300, the general rule favoring reunification
services no longer applies; it is replaced by a legislative assumption that offering services
would be an unwise use of governmental resources.’” (L.Z., supra, 188 Cal.App.4th at p.
1292; see § 361.5, subd. (b)(5) [reunification services may be denied if there is clear and
convincing evidence “[t]hat the child was brought within the jurisdiction of the court
under subdivision (e) of Section 300 because of the conduct of that parent”]; § 300, subd.
(e) [dependency jurisdiction exists if “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
11
child”].)
It is conceded that mother and father were the sole caretakers for baby and
that medical expert testimony supported findings that baby’s injuries amounted to severe,
nonaccidental physical abuse. “For the purposes of this subdivision, ‘severe physical
abuse’ means any of the following: any single act of abuse which causes physical trauma
of sufficient severity that, if left untreated, would cause permanent physical
11
Jurisdictional findings by a preponderance of the evidence under section
300, subdivision (e), are insufficient on their own to deny reunification services pursuant
to section 361.5, subdivision (b)(5); “the facts underlying the section 300[, subdivision
(e)] abuse finding must be established by clear and convincing evidence.” (K.F. v.
Superior Court (2014) 224 Cal. App. 4th 1369, 1373 [reversing denial of reunification
services].) The court did not explicitly state it was making its findings pursuant to
section 361.5, subdivision (b)(5), by clear and convincing evidence. To the extent the
court was simply deferring to its jurisdictional findings, reversal is required. It might be
assumed, however, that the court was applying the clear and convincing evidentiary
standard to its factual findings at the dispositional hearing because the court explicitly
noted that its section 361, subdivision (c)(1), findings were made by clear and convincing
evidence, and there is significant overlap between the facts relevant to both legal
questions. As our analysis on the merits results in relief for mother, we need not resolve
this difficulty.
24
disfigurement, permanent physical disability, or death; any single act of sexual abuse
which causes significant bleeding, deep bruising, or significant external or internal
swelling; or more than one act of physical abuse, each of which causes bleeding, deep
bruising, significant external or internal swelling, bone fracture, or unconsciousness; or
the willful, prolonged failure to provide adequate food.” (§ 300, subd. (e).)
“Section 300, subdivision (e), and subdivision (b)(5) of section 361.5, . . .
do not require identification of the perpetrator. [Citation.] Read together, those
provisions permit denial of reunification services to either parent on a showing that a
parent or someone known by a parent physically abused a minor. [Citation.] Thus,
‘conduct’ as it is used in section 361.5, subdivision (b)(5) refers to the parent in the
household who knew or should have known of the abuse, whether or not that parent was
the actual abuser.” (In re Kenneth M., supra, 123 Cal.App.4th at p. 21.) But it is
certainly possible that a section 361.5, subdivision (b)(5), denial of reunification services
could apply to only one parent. “It may well be that the minor’s other parent was in no
way involved, either as the abuser or as one with the requisite knowledge of abuse by
another. There is no reason in this type of situation to deny the other, or innocent, parent
reunification services.” (In re Joshua H. (1993) 13 Cal. App. 4th 1718, 1732.)
As the analysis in the previous section shows, there is insufficient evidence
for a finding that mother directly inflicted baby’s head injuries; these injuries constitute
the severe physical abuse of baby under section 361.5, subdivision (b)(5). The issue
therefore is whether there is substantial evidence supporting the court’s implicit finding
that mother knew or should have known of the physical abuse of baby, putting aside the
court’s refusal to classify mother or father as the actual abuser. (See L.Z., supra, 188
Cal.App.4th at p. 1292.) It is not required that SSA prove mother was aware of the
severity of the abuse of baby, only that mother was aware that father was in fact
physically abusing baby. (See In re Joshua H., supra, 13 Cal.App.4th at pp. 1729-1732.)
25
The following evidence and argument can be marshaled in support of the
court’s order. Baby had previously suffered from vomiting problems that led to parents
taking her to the hospital. Although medical providers did not diagnose child abuse,
these vomiting problems (which are consistent with a prior head injury) and trip to the
hospital should have caused mother to become hypersensitive to baby’s health. Father
had previously bitten sister’s cheek, which should have caused mother to distrust him
with her children. The bruising and bite marks on baby (discovered by medical personnel
on Dec. 8, 2013) should have been observed by mother before December 8 (although
perhaps not on or before Dec. 6, as Dr. Bui’s examination of baby did not disclose any
body marks). To the extent it was actually true that mother was away from home on the
night of Friday, December 6, she should have been suspicious of father’s story that sister
had harmed baby. When baby’s seizures began, mother should have known something
more serious had happened to baby than an accident involving sister. Mother’s delay in
taking baby to the hospital and false explanations for baby’s injuries (e.g., sister’s fall,
immunizations, needles at the hospital) are evidence of a cover up. Mother was not
credible based on the court’s observation of her testimony and demeanor. Perhaps if
mother had immediately called an ambulance (for baby’s seizures) and the police (to
accuse father of abuse) at an appropriate time after the night of December 6 but before
8:00 p.m. on December 8, mother could escape the charge that she knew or should have
known about the abuse and therefore contributed to baby’s severe physical abuse by not
doing anything about it. But mother did neither of these things.
We acknowledge that the seriousness of baby’s injuries makes it tempting
to believe the worst of mother. And we point out yet again that the evidence certainly
supported the court’s exercise of jurisdiction over minors, the removal of minors from
parents’ physical custody, and the denial of reunification services to father. But the
evidence is simply insufficient to support the court’s implied finding that mother knew or
should have known father was abusing baby.
26
12
L.Z., supra, 188 Cal. App. 4th 1285, is directly on point. “Z.Z. was two
months old and suffered unexplained, nonaccidental injuries while in her parents’ care
that included a spiral fracture to her left humerus and nine broken ribs.” (Id. at p. 1287.)
The juvenile court sustained a dependency petition under section 300, subdivisions (b)
and (e). (L.Z., at pp. 1287-1288.) Mother and father were teenage parents who had
issues with domestic violence and alcohol abuse. (Id. at p. 1288.) “Although Mother
noticed that Z.Z. seemed to be in pain for about a week, her injuries were not discovered
until Mother brought her in to a regularly scheduled doctor’s visit,” at which time the
mother expressed concern about the baby’s arm and X-rays were taken. (Ibid.) After
becoming aware of the extent of baby’s injuries, mother identified an incident in which
father went into Z.Z.’s room after mother and father had argued. Z.Z. cried after father
went into her room. (Id. at p. 1289.) But the evidence was unclear as to precisely when
the injuries were suffered, and the court declined to identify which parent caused Z.Z.’s
injuries. (Id. at pp. 1289, 1291.)
The L.Z. appellate court reversed the juvenile court’s denial of reunification
services to mother. (L.Z., supra, 188 Cal.App.4th at pp. 1293-1294.) The conditions in
which Z.Z. was raised “created circumstances that exposed Z.Z. to situations of extreme
12
We note one point of apparent confusion on the part of the trial court and
trial counsel for SSA. Both expressed the mistaken view that L.Z. was not binding on the
trial court because it did not issue from the Court of Appeal in this district. California
trial courts are obligated to follow all Court of Appeal decisions, without regard to the
geographical location of the authoring Court of Appeal panel. (See Auto Equity Sales,
Inc. v. Superior Court (1962) 57 Cal. 2d 450, 455; Cuccia v. Superior Court (2007) 153
Cal. App. 4th 347, 353-354.) Of course, if appellate court decisions are in conflict, trial
courts must choose to apply one of the conflicting decisions. (Auto Equity Sales, Inc.,
supra, 57 Cal.2d at p. 456.) And trial courts “ordinarily will follow an appellate opinion
emanating from its own district even though it is not bound to do so.” (McCallum v.
McCallum (1987) 190 Cal. App. 3d 308, 315, fn. 4.) But this latter point is very different
from the comments made on the record by counsel and the court, which suggested L.Z.
was “not controlling” and “an advisory type of decision the court could rely on,” and we
hope this footnote clears up any confusion that may exist.
27
danger. This . . . could support a jurisdictional finding under section 300, subdivision (e)
that may be based upon the conduct of either parent.” (L.Z., at p. 1293.) But there was
insufficient evidence indicating the mother should have been able to know Z.Z. was
abused based on her physical condition; the parties stipulated that baby’s broken bones
could not necessarily be identified absent an X-ray. (Id. at pp. 1292-1293.) The juvenile
court was focused on the parents’ mutual refusal to admit their conduct “rather than
ascertaining the legal measure of Mother’s conduct required by section 300, subdivision
(e).” (Id. at p. 1293.) “Baby Z.Z. suffered severe physical abuse. But the statutes do not
permit the court to deny a parent reunification services simply because it cannot
determine who inflicted the abuse unless it is proven that the parent knew or should have
known the baby had been abused.” (Id. at p. 1294.)
The court in the instant case erred by failing to follow L.Z. and grant
reunification services to mother. Obviously, there are differences between the situation
here and the facts in L.Z. Unlike the L.Z. mother, baby’s mother did not immediately
accuse father of the abuse after seeing the results of medical testing; in fact, mother
retains some measure of loyalty to her partner of eight years as evidenced by her initial
belief that there was an innocent explanation for baby’s injuries and her continuing
refusal to outright accuse father of inflicting baby’s head injuries. But it is unclear why
the court should count this against mother when the issue under section 361.5,
subdivision (b)(5) is what mother knew or should have known prior to baby’s arrival at
the hospital (when baby’s injuries were actually inflicted), not the position taken by
13
mother at the onset of the dependency case.
13
We acknowledge the difficult spot SSA and the court were put in at the
detention and jurisdictional hearings, when both father and mother (the only individuals
with significant personal knowledge relating to baby’s care) refused to testify. Mother,
however, eventually testified at the dispositional hearing. Nothing was uncovered to
suggest she was the one who physically harmed baby or that she had actual knowledge of
father’s actions. And it is unclear why mother should be required to condemn father
28
Another difference between the two cases is that seizures (regardless of
whether mother knew what they were or what was causing them) are more serious than
14
arm problems, particularly in light of what we now know about baby’s injuries. Mother
took baby to the hospital within 20 hours of baby’s first seizure, whereas the mother in
L.Z. took the minor in for a regularly scheduled appointment a week after noticing
problems with her arm. We agree with the court’s criticism of the parents for the extent
of the delay in taking baby to the hospital, and mother’s testimony is indicative of an
attempt to minimize the fault she bears for not acting sooner. But the missing link in the
court’s analysis is to suggest that this 20-hour delay somehow demonstrates by clear and
convincing evidence that mother was aware father had abused baby. The delay is also
entirely consistent with someone unsure of the seriousness of the symptoms and reluctant
to rush to the hospital in the middle of the night when baby seemed to recover quickly
from the first episode and had just been seen by her pediatrician the day before. Mother
eventually took baby to the hospital after the sporadic seizures continued or got worse.
As the court acknowledged, it took medical testing to demonstrate the seriousness of
baby’s head injuries and the nonaccidental source of the injuries. Mother repeatedly took
baby to the doctor and hospital throughout baby’s brief life (she was only two months old
at the time of the dependency petition) for her vomiting issue and regular check-ups,
before either the court or SSA were willing to do so. The argument for mother doing so
has the benefit of a certain logic: (1) the court was convinced one of the two parents
harmed baby; (2) mother knew in her own head whether she abused baby; and (3)
accepting the court’s axiom and eliminating the impossible (presumably, her own guilt),
mother should have been able to deduce that father harmed baby. While Sherlock
Holmes would have no trouble reaching the court’s preferred conclusion, it is perhaps
tougher when one is being asked to condemn the father of one’s children and eight-year
partner by inference rather than an explicit court finding that he abused baby.
14
Bruises or skin marks might be more or less concerning than arm problems,
depending on the particular bruises or marks. We discuss the issue of baby’s bruises and
bite marks below.
29
partially undermining the suggestion that she hoped to cover up for father by avoiding
medical care (particularly given Dr. Wong’s testimony that there were at least two
separate incidents of abuse, the first of which was consistent with baby’s vomiting
issues). Parental abuse was discovered only upon the December 8 hospital admittance;
Dr. Bui did not observe any signs of abuse at baby’s December 6 appointment. The delay
in taking baby to the hospital only feels convincing as proof of an attempted cover up by
mother if one assumes the very fact in dispute, i.e., mother’s knowledge of the abuse of
baby.
The lack of any substance abuse, domestic violence, or other indication of
an unsuitable family environment in the record contrasts with the L.Z. parents. The
evidence suggests mother and father provided a fairly stable family environment until the
abuse suffered by baby. General circumstances did not indicate extreme suspicion of
father was warranted. SSA can point to the instance in which father apparently bit the
cheek of sister as indicating mother should have known father was abusing baby, but this
evidence (while admittedly strange and troubling) by itself cannot support an inference
that mother should have known father was physically abusing baby.
Also notable is the court’s rejection of mother’s credibility and disjointed
15
early reports by parents referencing vaccines and baby’s bruises/bite marks. The
existence of the bruises and bite marks perhaps come close to supporting the order
denying mother’s reunification services. These are external indicators (unlike the serious
internal head injuries suffered by baby) that are potentially consistent with abuse. The
court inferred that mother must have seen these bruises/bite marks before taking baby to
the hospital and must have therefore been on notice that father was abusing baby; the
attempts by father and mother to explain these marks would naturally then be seen as part
of a mutual cover up of abuse. But there are no photos of these bruises/marks in the
15
Mother’s lack of credibility, in and of itself, is not positive evidence of the
required factual findings under section 361.5, subdivision (b)(5).
30
record; it is particularly unclear whether the bruises on baby’s foot were obvious (or
“apparent,” as the thigh marks were described in a report). And there is no testimony
indicating that the marks were such that mother necessarily would have seen them
immediately (in December, when baby was likely wearing clothes over her entire body
except when her diaper was changed) and that she should have known baby was being
abused based on this observation. Dr. Bui noticed nothing wrong with baby two days
before her hospital admittance, and there is no evidence that anyone at the hospital
noticed bruising or other signs of abuse during baby’s first hospital admittance. Thus, to
the extent the court was relying on the bruises/marks, the court’s conclusion was based
on speculation, as there is nothing solid in the record to conclude that mother observed
these marks before the December 8 hospitalization and that the marks themselves were
sufficient to put a reasonable person on notice of child abuse.
In sum, the record does not include substantial evidence to support a
finding that mother knew or should have known parental abuse by father was occurring
16
and was the source of any of baby’s health problems.
16
We need not reach the remainder of mother’s contentions, which are largely
based on the following statutory language: “[T]he court shall not order reunification in
any situation described in paragraph (5) of subdivision (b) unless it finds that, based on
competent testimony, those services are likely to prevent reabuse or continued neglect of
the child or that failure to try reunification will be detrimental to the child because the
child is closely and positively attached to that parent. The social worker shall investigate
the circumstances leading to the removal of the child and advise the court whether there
are circumstances that indicate that reunification is likely to be successful or unsuccessful
and whether failure to order reunification is likely to be detrimental to the child.”
(§ 361.5, subd. (c).) As mother explains, the court did not explicitly address whether
sister or baby were closely and positively attached to mother such that the denial of
reunification services would be detrimental. And mother takes issue with the quality of
SSA’s investigation.
31
DISPOSITION
Let a peremptory writ of mandate issue directing the court to vacate its
orders of October 1, 2014, denying reunification services to mother and setting a section
366.26 hearing. The court shall enter new and different orders providing mother with
reunification services and concomitant visitation rights appropriate in light of the new
17
reunification order. SSA’s request for judicial notice is granted.
IKOLA, J.
WE CONCUR:
O’LEARY, P. J.
FYBEL, J.
17
Given the exceptional delay that occurred in reaching a disposition, the
reunification deadlines imposed by the Welfare & Institutions Code are problematic if
mother is to receive a fair chance at reunification with her children. All we can do at this
point is note our acknowledgement of these difficulties, and leave their resolution to the
juvenile court and the parties. Nothing in this opinion, of course, bears on the question of
whether mother will be able to successfully reunify with her children.
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