In re L.G. CA1/3 ( 2021 )

Filed 8/30/21 In re L.G. CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION THREE
In re L.G., a Person Coming Under
the Juvenile Court Law.
SONOMA COUNTY HUMAN
SERVICES DEPARTMENT,
A161341
Plaintiff and Respondent,
v. (Sonoma County
Super. Ct. No. DEP6104)
J.T.,
Defendant and Appellant.
L.G., the minor, lives with her father, appellant J.T.1 In the summer of
2019, a dentist diagnosed L.G. with six cavities and three teeth in need of
extraction. Over the next year, L.G. saw multiple dentists but only had one
tooth extracted and no cavities filled. By the time of the jurisdictional
hearing, L.G. had 11 cavities and at least one infected tooth in need of
extraction—which placed her at risk of a more serious infection necessitating
hospitalization. As a result, the juvenile court declared L.G. a dependent
Mother is estranged from the family and has had little or no contact
1
with the father or L.G. She did not participate in these dependency
proceedings.
1
under Welfare and Institutions Code section 300, subdivision (b)(1),2 placed
her in father’s custody, and gave the Sonoma County Human Services
Department (Department) “exclusive authority” over L.G.’s dental care.
Father challenges the sufficiency of the evidence to support the court’s
jurisdictional findings and dispositional order. We find the evidence
sufficient to support the court’s findings that L.G. was at substantial risk of
serious physical harm or illness due to father’s unwillingness or inability to
provide adequate dental care and affirm.
FACTS
A. The Dependency Petition, the Detention of L.G., and
Subsequent Hearings
After receiving a referral about L.G. in January 2020 when she was six
years old, the Department met with L.K., father’s then live-in girlfriend who
helped take care of L.G. According to L.K., father “has always been against
institutions including doctors, dentists, schools, government, etc.” As a
result, he refused to take L.G. to see a dentist until she was five. At that
time, father allowed L.K. to take L.G. to a dentist, and in the summer of
2019, the dentist determined that L.G. had six cavities and three teeth in
need of extraction. Rather than treat L.G.’s teeth, however, father “believed
that the cavities would just get infected and fall out on their own.” L.K. also
informed the Department that L.G. recently had to have surgery to remove
an earring from her ear lobe.
On January 26, 2020, L.G. woke with a swollen cheek so father and
L.K. took her to a dentist. The dentist diagnosed L.G. with an abscessed
tooth. Although the dentist wished to extract the tooth that day, L.G. was
2 All further statutory references are to the Welfare & Institutions
Code.
2
given antibiotics, and an appointment for the extraction was scheduled for
January 29. On that day, however, father fed L.G. cereal for breakfast, and
the extraction had to be rescheduled for February 3.
Father brought L.G. to the PDI Dental Surgery Center (PDI) on
February 3, 2020 but became angry when PDI wanted to take x-rays and
asked for consent to “any and all necessary treatment” after L.G. was “put
under.” Father then left with L.G. before she could have dental surgery.
According to PDI, L.G. had three teeth in need of extraction and several in
need of fillings and “could develop sepsis” if those teeth were not treated.
After father refused to talk to the Department about L.G.’s dental care,
the Department scheduled an Imminent Risk Team Decision Making Meeting
for February 13, 2020. The Department informed father about the meeting,
but father did not attend.
On February 18, 2020, the Department filed a dependency petition,
alleging that L.G. has suffered or faces a substantial risk of suffering serious
physical harm or illness due to father’s failure to provide proper dental care.
Based on the “immediate risk for sepsis, a life threatening condition”, the
Department asked the juvenile court to detain L.G. in “protective
custody . . . in order to ensure her safety.” The Court did so but authorized
her return to father after further investigation and 72 hours notice to the
parties.
Three days later, the Department submitted an informational memo to
the court. The memo stated that PDI would not treat L.G. until it obtained
authorization from its Board due to “father’s past behavior.” As a result, the
Department could only obtain a tentative date of March 17 for L.G.’s dental
surgery. In response, father requested the immediate return of L.G.
3
At the February 27, 2020 hearing on father’s request, the Department
informed the court that L.G. had been returned to father the day before.
Father reported that he had scheduled a dental appointment for L.G. with a
different dentist for the next day. After expressing its displeasure with the
Department over its misrepresentation of L.G.’s condition as emergent, the
court ordered father to keep the dental appointment.
B. The Jurisdictional Hearing
On March 5, 2020, the Department submitted another informational
memo to the juvenile court. According to the memo, the Department
contacted father about the February 28 appointment. Father told the
Department the dentist no longer “want[ed] to be involved” and would not
return his calls or texts due to its actions. As a result, he had scheduled
another appointment “in about 2 weeks” with a different dentist. The dental
office that allegedly refused to see L.G., however, told the Department that
father did not bring L.G. to the appointment and that the dentist “was [still]
willing to see” her. The Department then filed an amended petition, adding
this new information.
In its Jurisdiction Report, the Department wrote that PDI was willing
to treat L.G. but had requested “a stay-away order for” father “as a pre-
condition, due to father’s eruptive anger as previously displayed in their
office.” The Department also reported that it was unable to meet with L.G.
because father claimed she had the flu. Finally, the Report listed six
allegations of neglect and emotional abuse against father from 2013 to
2020—and detailed father’s criminal history—which included a 2013 felony
conviction for burglary, a 2017 misdemeanor conviction for use of a controlled
substance, and various older convictions for theft, possession of controlled
substances, reckless driving, battery, and illegal possession of a firearm. The
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Department recommended that the court sustain the petition and order
random drug testing and a psychological evaluation of father.
In response to the Report, father provided a receipt for dental
insurance. He also claimed he sent an email canceling the February 28
appointment because L.G. had a cold and asking to reschedule. When he did
not hear back, father scheduled an appointment with another dentist for
April.
At a March 2020 hearing, L.G.’s attorney reported that she was a
“happy little girl.” According to the attorney, L.G., who “was a little
guarded,” said that her mouth “hurt for a while” but it did not hurt “at that
time.” Father’s attorney told the court that father only wanted to provide the
name of L.G.’s newest dentist to the court. The court, however, ordered
father to provide the dentist’s information to the Department so it could
check up on L.G.’s dental care. The court then continued the hearing to give
father “the chance to get” L.G.’s “teeth done.”
In May 2020, the Department reported that L.G. had not received any
dental care yet because dental offices were closed due to the pandemic. It
also reported that the social worker saw L.G.—who appeared to be “in good
spirits and in no apparent distress”—in April but that father screamed at the
social worker “saying that he was done with her.” L.G.’s attorney was able to
speak with L.G. but only in father’s presence. The court expressed confusion
over why L.G. had not received any treatment: “Here’s what I don’t
understand: How we went from this child might die four months ago to now
she’s still doesn’t have her dental services, when I know that dentists are
doing emergency services. And at some point, this was an emergency
situation.” The court then set a jurisdictional hearing for June 19.
5
On June 12, 2020, the Department submitted an Addendum Report—
which attached a letter from Dr. Tanvi Shah of PDI. In the letter, Dr. Shah
wrote that L.G. came to PDI for treatment on February 3 and “revealed that
she was waking up at night repeatedly with pain and just wanted the pain to
go away.” Dr. Shah determined that L.G. needed “at least three extractions,
and several other fillings.” Father, however, was “rude and disruptive” and
refused to consent to treatment. According to Dr. Shah, “[i]t is in” L.G.’s
“best interest to have her teeth worked on ASAP” because she suffers from
“unnecessary discomfort and swelling,” and because her teeth, if left
untreated, could “place her in the hospital for dental abscess/cellulitis” and
“affect her permanent teeth and other vital structures.” In Dr. Shah’s
“professional opinion,” delaying treatment “would have adverse effects on”
L.G.’s “dental and medical health.”
At the June 19, 2020 hearing, father presented an “itemized treatment
plan” for L.G. In response, the Department asked for a continuance so it
could contact Dr. Dana Yee, the dentist who prepared the plan. Father
moved to dismiss the petition, but the court refused until the “dental work is
done” and continued the hearing.
Five days later, the Department reported that Dr. Yee was reluctant to
provide any information. Father moved to dismiss the petition. The court
refused and suggested that father sign a release authorizing Dr. Yee to
provide information to the Department.
Father, however, never signed a release. Nonetheless, the Department
was able to subpoena Dr. Yee and learned that L.G. had “an emergency
procedure on an infected tooth on July 13.” Father moved to dismiss the
petition based on Dr. Yee’s statement that L.G. “was not experiencing dental
pain.” The court refused because father had “not followed through to the
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extent that” he “should” and had “tried to mislead the Court” and his
attorney. When the court stated that it was “considering taking custody
back,” the social worker responded that father appeared to be “starting to
follow through” and that it was not in L.G.’s “best interest at this time to
detain her.” The court then set a jurisdictional hearing for August.
At the jurisdictional hearing, the Department introduced into evidence
the social worker reports, the call service logs, and a letter from Dr. Yee
dated August 4, 2020. In the letter, Dr. Yee stated that she saw L.G. on July
28 and discovered “11 teeth with cavities.” Dr. Yee provided L.G. with a
“comprehensive exam, radiographs, dental cleaning with fluoride,
prescription for antibiotics given and silver diamine fluoride application to
appropriate teeth with dental caries.” She further stated that a follow-up
appointment for “extraction of an infected tooth” had been scheduled for
August 10.
Kara Jacobs, a social worker, testified that L.G., who was now seven,
had six cavities in August 2019. That number had increased to 11 by the
time Dr. Yee saw L.G. roughly one year later. Jacobs also testified that she
transferred L.G.’s case to Melissa McKinney, another social worker, because
father refused to allow Jacobs to speak to L.G. and spoke to her “in an
elevated voice” at their last meeting. According to Jacobs, the Department
had difficulty getting “cooperation from father.” She had not, however,
attempted to contact father by phone since mid-April, and apologized to
father for failing to be more proactive from mid-March to mid-April.
McKinney also had difficulty reaching father and was unable to see L.G. but
was able to speak with father several times.
Jacobs further testified that she spoke with a nurse at PDI on February
24, 2020 who told her that L.G.’s condition was not life-threatening if she
7
took the prescribed antibiotics. According to Jacobs, L.G. seemed happy and
normal when she saw her in April and that a police officer who saw L.G. in
June described her as “happy and healthy”. Jacobs also confirmed that
dental offices were closed in May 2020 but stated that dentists could have
seen L.G. “[u]p until mid-March.”
Father testified that he knew that L.G. had six cavities in August 2019.
He claimed he scheduled an appointment with PDI “as soon as possible” in
January 2020. Father, however, was concerned that PDI might do
unnecessary work and decided at the February 3 appointment to get a
“second opinion” as suggested by PDI. That same day, father called Denti-
Cal for options for a second opinion and learned they were limited. He then
remembered a dentist, Dr. Gil Rodriguez, who had worked on his teeth in the
past and scheduled an appointment with Dr. Rodriguez for February 28.
According to father, he canceled that appointment because L.G. was
sick and sent an email asking to reschedule. He also claimed he called and
texted Dr. Rodriguez but never heard back. Father then claimed he
scheduled an appointment with Bright Now Dental in March. At that
appointment Bright Now Dental identified cavities “that needed to be
addressed” and “one extraction that needed to happen” and created a
treatment plan. Father scheduled a follow-up appointment but the pandemic
struck and the dental office shut down. Although father eventually
rescheduled the appointment for June 4, Bright Now Dental refused to treat
L.G. at that time because it was not an emergency and because of HVAC
issues.
Father then testified that he scheduled an appointment with Dr. Yee
for June 17, 2020. On July 13, L.G. had a tooth extracted. L.G. then had
another appointment with Dr. Yee on July 28—during which Dr. Yee treated
8
her teeth with silver diamine fluoride. According to father, L.G. had another
appointment with Dr. Yee for an extraction on August 19—which he intended
to keep. Finally, father explained that Dr. Yee was unable to do any fillings
because of HVAC issues.
As to his failure to obtain treatment for L.G.’s teeth earlier, Father
testified that he deferred to the dentists and that the pandemic made it
difficult to schedule appointments. He claimed there was no need to
“immediately” treat L.G. “to prevent any serious harm” because he had
“never once personally had a complaint from her about her
teeth . . . [¶] . . . [¶] . . . since she was alive.” He also claimed he never
“noticed anything with her chewing or favoring anything.” Finally, father
claimed no dentist ever “expressed any kind of concern of any harm or danger
that she might be in, in any way, shape or form.” In particular, father denied
that PDI mentioned any risks to L.G.’s health at the February 3
appointment.
Father also denied being “rude and disruptive” at the February 3
appointment or uncooperative with the Department. He claimed he never
refused to allow the Department to see L.G and had been responsive to every
request made by the Department. He, however, admitted that he refused to
sign any releases because he felt “violated” by the Department.
The juvenile court sustained the petition, citing, among other things,
father’s “longstanding failure to cooperate with the” Department.
C. The Disposition
On August 28, 2020, the Department filed a Disposition Report,
recommending that the court declare L.G. a dependent and order family
maintenance services. In support, the Department cited L.G.’s 11 cavities,
including two abscessed teeth, and the serious health consequences to L.G.,
9
including “pain, difficulty in eating, malformation of her adult teeth” and the
possibility of “death from sepsis,” if these teeth remain untreated. On March
2, L.G. told the social worker that father told her not to “ ‘talk to anyone
unless he is there.’ ” At the social worker’s next meeting with L.G. in April,
father “was very angry” and would not allow the social worker to speak with
L.G. This was the last time the Department saw L.G. despite multiple efforts
to schedule another meeting.
As to L.G.’s dental appointment on August 19, 2020, the Department
reported that Dr. Yee was unable to treat L.G. because she was screaming
and blocking her mouth with her hands despite the use of nitrous oxide.
Because Dr. Yee could not sedate L.G. any further, she referred L.G. “to
UCSF and Oakland Children’s Hospital.” Although the Department did not
blame father for this latest failure to treat L.G.’s teeth, it stressed the need
for father to cooperate with the Department to ensure that L.G. received the
dental care she needed. Finally, the Department noted that father was
“incredulous” about the court’s ruling at the jurisdictional hearing because he
had “done everything” he had been asked to do.
At the dispositional hearing, father testified that he took L.G. for a
dental appointment in Oakland on September 2, 2020. Father claimed he did
not schedule the appointment himself because the court “stripped” him of his
ability to do so. At the appointment, he advocated for the use of nitrous oxide
because it involved the “least risk” but recognized that nitrous oxide may not
be enough. He, however, expressed concern about the use of general
anesthesia. According to father, no treatment plan was made at that time,
and another appointment was scheduled for September 25. Father also
testified that he never prevented the Department from seeing L.G.
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Noreen Mendoza, a social worker, testified that she made many efforts
to “engage with” father after she was assigned the case in August. When her
offer to include father in the scheduling of another dental appointment was
ignored, she scheduled the September 2 appointment herself and provided
father with the information.
After observing that father’s frustration was understandable after L.G.
had been erroneously removed from his custody at the detention hearing, the
juvenile court ordered family maintenance services because L.G. still had not
received adequate dental care over “seven months” later. The court
expressed “zero confidence” that father, “if left to his own devices,” would get
L.G. the dental care that she needed. The court also noted the worsening
condition of L.G.’s teeth and father’s cavalier attitude toward her dental
health. Although father appeared more cooperative, the court stated it was
“not enough” and gave the Department “exclusive authority to make all
decisions regarding” L.G.’s “dental care.”
DISCUSSION
A. Motion to Augment the Record
In its motion to augment the record/request for judicial notice (motion),
the Department asks the Court to consider the following postjudgment
evidence: (1) supplemental petition filed pursuant to section 387; (2) minute
order noting that the supplemental petition had been served; and (3) minute
order sustaining the supplemental petition. We deferred ruling on the
motion pending our determination of the merits of the appeal, and we now
deny it.
“Consideration of postjudgment evidence in dependency appeals
violates generally applicable rules of appellate procedure as well as the
specific statutes that govern termination of parental rights, and is contrary to
11
the strong interest in finality of juvenile dependency proceedings.” (In re
N.S. (2016) 245 Cal.App.4th 53, 58.) Although courts have recognized an
exception to this general rule “when an event occurs that renders it
impossible for the court to grant effective relief” (id. at p. 59), that exception
does not apply here (see In re Travis C. (2017) 13 Cal.App.5th 1219, 1225 [“If
the court was without jurisdiction to rule on the section 300 petition, it was
also without jurisdiction to consider the section 387 petition”]). Because we
may not consider the section 387 petition or the juvenile court’s ruling on that
petition in deciding this appeal, the motion is denied.
B. The Jurisdictional Findings
Father contends there was insufficient evidence to support the juvenile
court’s jurisdictional findings under section 300, subdivision (b)(1) at the time
of the hearing. We disagree.
“ ‘[W]e review both the jurisdictional and dispositional orders for
substantial evidence. [Citation.] In doing so, we view the record in the light
most favorable to the juvenile court’s determinations, drawing all reasonable
inferences from the evidence to support the juvenile court’s findings and
orders. Issues of fact and credibility are the province of the juvenile court
and we neither reweigh the evidence nor exercise our independent judgment.
[Citation.] But substantial evidence “is not synonymous with any evidence.”
[Citations.] A decision supported by a mere scintilla of evidence need not be
affirmed on appeal. [Citation.] . . . The ultimate test is whether it is
reasonable for a trier of fact to make the ruling in question in light of the
whole record.’ [Citation.]” [Citation.].’ ” (In re Joaquin C. (2017) 15
Cal.App.5th 537, 560 (Joaquin C.).) “The appellant has the burden of
showing there is no evidence of a sufficiently substantial nature to support
the finding or order.” (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)
12
Under section 300, subdivision (b)(1), a child may be declared a
dependent if the juvenile court finds by a preponderance of the evidence that
“[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 willful or
negligent failure of the parent or guardian to provide the child with adequate
. . . medical treatment.” Specifically, the court must find: (1) “one or more of
the statutorily-specified omissions in providing care for the child”—i.e., a
failure to provide adequate medical care (Joaquin C., supra, 15 Cal.App.5th
at p. 561); “ ‘(2) causation; and (3) “serious physical harm or illness” to the
minor, or a “substantial risk” of such harm or illness’ ” (ibid.). “The third
element ‘effectively requires a showing that at the time of the jurisdictional
hearing the child is at substantial risk of serious physical harm in the
future.’ ” (In re James R. (2009) 176 Cal.App.4th 129, 135, abrogated in part
on another ground by In re R.T. (2017) 3 Cal.5th 622 (R.T.).) The focus is
“ ‘on the child rather than the parent.’ ” (R.T., at p. 625.)
“Although there must be a present risk of harm to the minor, the
juvenile court may consider past events to determine whether the child is
presently in need of juvenile court protection.” (In re A.F. (2016) 3
Cal.App.5th 283, 289.) Indeed, a “past failure [may be] predictive of the
future.” (In re Jasmon O. (1994) 8 Cal.4th 398, 424.) However, “ ‘there must
be some reason beyond mere speculation to believe’ ” that serious physical
harm or illness will occur in the future. (In re Savannah M. (2005) 131
Cal.App.4th 1387, 1394, italics omitted, abrogated on another ground by R.T.,
supra, 3 Cal.4th at p. 622.)
In this case, there was ample evidence at the time of the jurisdictional
hearing that the minor was at substantial risk of serious physical harm due
to father’s unwillingness or inability to provide adequate dental care. In the
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summer of 2019, L.G. was diagnosed with six cavities and three teeth in need
of extraction. Despite this diagnosis, father did not take L.G. to see a dentist
again until late January 2020 and only did so because she had a swollen
cheek. At that time, L.G. was in “tremendous pain” and had “at least” three
teeth in need of extraction. Despite this, father cancelled at least two dental
appointments and cycled through four dentists over the next seven months.
As a result, L.G. only had one of her teeth extracted and no cavities filled
before the jurisdictional hearing in August 2020. In the meantime, L.G. now
had 11 cavities and at least one infected tooth in need of extraction. The
infections in her teeth, if left untreated, “could potentially spread and place
her in the hospital for dental abscess/cellulitis and in need of IV antibiotics.”
Considered altogether, these facts are more than sufficient to establish that
L.G. faced a substantial risk of serious physical harm without adequate
dental care and that father was unwilling or unable to provide that care.3 (In
re Hadley B. (2007) 148 Cal.App.4th 1041, 1048 [“juvenile court adjudicating
dependency jurisdiction must consider all the circumstances affecting the
child, wherever they occur”].)
Nonetheless, father contends the jurisdictional findings should be
reversed because there was no evidence that L.G. had ever suffered serious
physical harm at the time of the hearing. But father ignores evidence that
L.G. was in “tremendous pain” and could not open her mouth widely in
February 2020. In any event, section 300, subdivision (b)(1) does not require
an “immediate medical necessity.” (In re Eric B. (1987) 189 Cal.App.3d 996,
3
After the jurisdictional hearing, Dr. Yee was unable to treat L.G.
because L.G. needed to be sedated and referred L.G. to another dental clinic.
Father, however, refused to work with the Department to schedule an
appointment with that clinic. As a result, the Department scheduled the
appointment. Although father took L.G. to the appointment, he left without
a treatment plan.
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1003.) Instead, a “reasonable apprehension” of future harm is sufficient.
(Ibid.) The letter from Dr. Shah—which stated that it was “imperative” for
L.G. to have her decaying teeth extracted or treated with
“pulpotomie/crowns”—is more than sufficient to establish such a reasonable
apprehension.
Father also argues that he provided L.G. with adequate dental care.
But this argument is refuted by the simple fact that L.G.’s cavities and
infected teeth were left largely untreated for almost one year after the initial
diagnosis and almost six months after the filing of the dependency petition.
Indeed, the condition of L.G.’s teeth actually worsened during that time
period as evidenced by the almost doubling of her teeth with cavities.
Although the pandemic did cause some delay, it does not explain why L.G.
failed to get any treatment during the eight months before the pandemic
struck or why her treatment was delayed after father was able to schedule
dental appointments again in June 2020. Although father cites a litany of
excuses for the delay, the juvenile court did not find those excuses credible,
and we may not reweigh the evidence on appeal. (Joaquin C., supra, 15
Cal.App.5th at p. 560.)
Finally, father’s claim that he was ready, willing, and able to provide
L.G. with the dental care she needed at the time of the jurisdictional hearing
is belied by the evidence in the record. According to his ex-girlfriend, father
distrusted medical professionals, did not allow L.G. to see a dentist until she
was five, and believed that L.G.’s infected teeth would simply fall out on their
own. Consistent with this cavalier attitude toward L.G.’s dental health,
father downplayed the condition of L.G.’s teeth at the jurisdictional hearing.
Indeed, he testified that L.G. never complained about any pain, that he never
saw any sign that L.G.’s teeth were bothering her, and that no dentist had
15
ever expressed any concern about L.G.’s health. Evidence of father’s
misleading statements to the Department and the court and his refusal to
cooperate with the Department bolsters the conclusion that L.G. would not
receive adequate dental care absent court intervention. Thus, a reasonable
trier of fact could conclude on this record that the “attitude” of father “posed a
then-existing threat to” L.G.’s “well-being.” (In re Petra B. (1989) 216
Cal.App.3d 1163, 1170.)
Accordingly, we find substantial evidence to support the juvenile court’s
assumption of jurisdiction pursuant to section 300, subdivision (b)(1).
DISPOSITION
The orders dated August 14, 2020, and September 15, 2020 are
affirmed.
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_________________________
Chou, J.*
WE CONCUR:
_________________________
Fujisaki, Acting P. J.
_________________________
Petrou, J.
A161341
*
Judge of the Superior Court of San Mateo County, assigned by the
Chief Justice pursuant to article VI, section 6 of the California Constitution.
17