Regina C. v. Superior Court CA5 ( 2013 )

Filed 6/18/13 Regina C. v. Superior Court CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
REGINA C.,
F066920
Petitioner,
(Super. Ct. No. 516468)
v.
THE SUPERIOR COURT OF STANISLAUS OPINION
COUNTY,
Respondent;
STANISLAUS COUNTY COMMUNITY
SERVICES AGENCY,
Real Party in Interest.
THE COURT*
ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Ann Q.
Ameral, Judge.
Robert D. Chase, for Petitioner.
No appearance for Respondent.
John P. Doering, County Counsel, and Robin Gozzo, Deputy County Counsel, for
Real Party in Interest.
-ooOoo-
* Before Gomes, Acting P.J., Franson, J. and Peña, J.
Regina C. (mother) seeks an extraordinary writ (Cal. Rules of Court, rule 8.452)
from a March 2013 juvenile court order setting a Welfare and Institutions Code section
366.261 hearing to select and implement a permanent plan for her seven-month-old son,
Joshua. The court reached its decision having denied the parents services to reunify with
Joshua, who suffered repeated physical abuse at the hands of his father. The court found
mother, by her omission, also inflicted severe physical harm on Joshua and that it would
not benefit the infant to pursue reunification services with mother. (§ 361.5, subd.
(b)(6).) We agree with the juvenile court and deny this petition.
FACTUAL AND PROCEDURAL HISTORY
November 2 and 8, 20122 Visits to the Pediatrician
On November 2, 12-week-old Joshua had a scheduled well-baby check with his
pediatrician, Dr. Jonas Bernal. When Dr. Bernal entered the examination room, he was
immediately struck by the appearance of Joshua‟s head. The frontal area of the infant‟s
head was very prominent. In addition, Joshua‟s anterior fontanelle or soft spot was open
and full. Joshua‟s head was obviously misshapen. These were new and unusual findings
that concerned the doctor.
The circumference of Joshua‟s head that day measured 15.5 inches or 39.3
centimeters, which placed him in the “high normal” range for his chronological age. The
circumference of Joshua‟s head, when last measured in late August, was 12.25 inches or
31.1 centimeters placing him at the 10th percentile for his age. This head circumference
increase also concerned the pediatrician.
Dr. Bernal expected the parents would have been concerned by the shape of
Joshua‟s head. The pediatrician asked the parents if they noticed Joshua‟s head size or
1 All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
2 All further dates refer to 2012 unless otherwise indicated.
2
head shape and were they concerned. Mother reported she had noticed it but she
attributed it to the head size in the father‟s family. The father said nothing.
The pediatrician asked the parents if they had any concerns and if Joshua had
exhibited symptoms, such as irritability, increased sleepiness, projectile vomiting,
changes in the baby‟s activity or any abnormal activities. The parents only mentioned
Joshua spit up sometimes, but there was no vomiting. The parents had no other
complaints or concerns to report. According to the parents, Joshua seemed to be doing
well.
Dr. Bernal ordered a cranial ultrasound to check the infant‟s brain structures. He
did not consider it an emergency at that time because Joshua did not have any symptoms,
either reported by the parents or based on the doctor‟s physical examination, of increased
intracranial pressure. Symptoms of increased intracranial pressure in an infant usually
include projectile vomiting, a change in behavior, either the baby would be very irritable
or very lethargic, and in extreme cases “sunsetting eyes” or eyes with a downward gaze.
The ultrasound, conducted on November 7, revealed a large collection of fluid in
Joshua‟s brain. Once the pediatrician received the results of Joshua‟s ultrasound, he had
the parents return on November 8. At that appointment, the parents stated Joshua had
two vomiting episodes during the past two days. This caused the pediatrician increased
concern. Also, the circumference of Joshua‟s head on November 8, measured at 16
inches or 40.6 centimeters. The one-half inch increase in less than a week‟s time was
significant to the pediatrician.
Dr. Bernal arranged for the parents to immediately take Joshua to Children‟s
Hospital in Madera.
Joshua’s Multiple Injuries
On November 8, Joshua was admitted to the hospital for an urgent MRI, which
uncovered there was bleeding in more than one area of his brain. Specifically, there were
large, bilateral subdural hematomas in the cerebral hemispheres with evidence of prior
3
brain injury in the right parietal and frontal region. Due to the large fluid collection on
Joshua‟s brain, he was taken to surgery to evaluate the subdural hematomas and to insert
a drain. He was then admitted to the hospital‟s pediatric intensive care unit.
On November 10, a chest x-ray revealed Joshua had eight healing bilateral rib
fractures. They appeared to be similar in age. These findings led to a medical
consultation for possible nonaccidental trauma to the infant.
According to Dr. Philip Hyden, the hospital‟s child advocacy attending physician,
each parent claimed no recall of any trauma which could have resulted in Joshua‟s brain
and rib injuries. They did provide, however, additional information about the infant‟s
history.
Joshua’s Prior Hospitalization
Joshua had been hospitalized between September 13 and 15 for what medical
professionals termed an apparent life-altering episode or ALTE. The infant was alone
with his father on September 13. The father purportedly fed Joshua and placed him in his
crib. The father later checked on Joshua, who appeared to have difficulty breathing and
was not moving his extremities. The father “„freaked out‟” and called 911. When
paramedics arrived, Joshua was bradypneic, lethargic and dusky.3 He was held upright
and burped, which resulted in a large amount of emesis or vomit. Joshua then became
responsive and began crying. At a hospital emergency department, Joshua was much
improved, yet he still had a moderate amount of non-forceful emesis. No apnea or
hypoxia was noted. He was admitted to the hospital with an apnea monitor but had no
apnea events.
Joshua’s Symptoms Prior to His November Hospitalization
Over a few days, before his November hospitalization, Joshua had episodes of
projectile vomiting. The parents and maternal grandmother also noted Joshua‟s eyes
3 Bradypneic comes from the noun “bradypnea,” which means abnormally slow
breathing.
4
were looking downward or “sunsetting.” This was first observed on October 22, and
occurred intermittently since then. According to his parents, Joshua did not seem to be in
any pain and had been growing, despite the frequent vomiting.
Dr. Hyden informed detectives from Stanislaus County Sheriff‟s Department of
Joshua‟s injuries. On November 14, detectives and social workers from Stanislaus
County visited with the parents, as well as Dr. Hyden, at the hospital. The detectives and
social workers met first with mother.
Mother described herself as a stay-at-home mom and primary caregiver for
Joshua. Joshua was a good baby and did not fuss too much. She did not have an
explanation for Joshua‟s injuries. She claimed she did not know how it was possible that
Joshua was “injured.”
When one detective advised mother that Joshua‟s injuries were consistent with
shaken baby syndrome, mother had little reaction. She reported she had not shaken him.
She added when they, an apparent reference to her and the father, got upset or frustrated,
they would put Joshua down and walk away. She also reported there were concerns
about Joshua‟s head being oddly shaped since September or October. During the
interview, mother had a flat affect and did not show any emotion.
Joshua’s Injuries Resulted from Child Abuse
On November 15, Dr. Hyden reported to a social worker and a detective that
Joshua‟s injuries were the result of child abuse. There was old and new blood on
Joshua‟s brain and at the location of the old blood there was a hole in the brain from the
injury. Joshua also had a retinal hemorrhage in his left eye and possible old hemorrhages
that had healed. The bilateral rib fractures were old. In addition, he showed signs of
“sunsetting” eyes for some time.
A social worker informed the parents on November 15 that Joshua would be taken
into protective custody. Mother became upset and wanted to know how that could be.
During her conversation with the social worker, mother “wanted to know who was on her
5
side and if she could get the police on her side.” When the social worker explained the
juvenile court process, mother again wanted to know who was on her side and stated that
everyone was against them. During the conversation, mother did not talk about Joshua‟s
well-being or safety. She only spoke of herself and how this was affecting her.
The Father’s Confession
Later on, on November 15, the father asked to meet with Dr. Hyden and explain
how Joshua was injured. The father stated he had considerable apprehension when caring
for the infant, and would become frustrated when Joshua would cry or be fussy. He
frequently shook the baby back and forth, very hard. The father knew that it would hurt
the child.
The father specifically recalled the day in September when he was left alone with
Joshua. He fed and burped the infant, but when Joshua would not stop crying, the father
burped him “„really hard, then shook him.‟” He later noticed the child was having
difficulty breathing, and his legs were limp. The father then stated that he performed
CPR on the baby, and called 911. He did not inform the paramedics or admit to the
hospital emergency department what had transpired. He claimed no one asked him if he
had injured the infant. As a result, the father felt that he may have not harmed Joshua.
After Joshua returned home from the hospital in September, and the father was
alone with the child, he would continue to become frustrated when Joshua would cry, and
shake him, with short, rapid but forceful, back-and-forth movement. The father recalled
that Joshua‟s head would go forward and backward. The father began counting the days
between shaking events, to see if he could prevent himself from doing recurrent harm to
his son. He said that he was afraid to tell his wife because she was critical of him.
When the father confessed his actions to a Stanislaus County detective, the father
said he had shaken Joshua “about seven to eight times.” To Dr. Hyden, the father said he
did so “ten or eleven times, maybe more.” The father counted the days when the father
had not hurt Joshua because he was shaking the infant so often.
6
In Dr. Hyden‟s opinion, the event which created the September ALTE was most
likely the episode that caused Joshua‟s intracranial injuries and rib fractures.
Mother’s Response
Mother later spoke privately with Dr. Hyden. Mother was calm and objective,
stating that she was surprised that her husband could hurt Joshua, and wondered if she
had been “„too hard‟” on the father, not realizing that he was dealing with so much stress.
She acknowledged that they had recently obtained a new home, had a new baby, and her
husband was dealing with too many issues at once. Mother also recalled that she had
observed the father “„jolting‟” the infant by grabbing him forcibly on one occasion, but
she intervened, and did not believe the father meant to cause Joshua harm.
During a November 16 conversation with one of the social workers, mother again
mentioned seeing the father “„jolt‟” Joshua. According to mother, this occurred one time
when Joshua was very little. She claimed she did not think it was a big deal at the time
because Joshua was swaddled and his head did not flop around. The father had been
burping Joshua. She described the jolt as a “„tremor of [the father‟s] hand.‟” She
reported that afterwards she told the father they “„could not take it out on him‟” when
they were frustrated with Joshua because he was just a baby and did not know any better.
Mother claimed she just recently remembered this event.
Mother also reported that Joshua‟s head began to become enlarged around
September or October and they were not really concerned about it based on conversations
with family and friends. She also noticed Joshua‟s head “„felt heavy‟” but did not think
anything of it. As for the infant‟s prominent forehead, mother thought he was going to
have a big forehead because of the father‟s family. She also claimed for the first time
that she had asked the pediatrician about Joshua‟s head at the infant‟s regular check-up.
While others stated it was obvious Joshua‟s head was abnormally large and misshapen,
mother reported she had worked with older children but did not have experience with
babies and did not know any different. The agency later learned that mother had six
7
years of experience as a child care provider and more specifically worked in an infant
class for approximately two years.
Juvenile Dependency Proceedings
While Joshua remained hospitalized, real party in interest Stanislaus County
Community Services Agency (agency) petitioned the juvenile court to exercise its
dependency jurisdiction over the infant. Based on the foregoing facts, the agency alleged
Joshua came within the juvenile court‟s jurisdiction under section 300, subdivisions (a)
[serious physical harm inflicted nonaccidentally by the child‟s parent], (b) [serious
physical harm as a result of parental neglect], and (e) [severe physical abuse of a child
under the age of five by a parent or anyone known by the parent who knew or reasonably
should have known the person was physically abusing the child]. The agency later
recommended the court also remove Joshua from parental custody and deny each parent
reunification services. The agency argued the parents should be denied services because
Joshua came within the court‟s jurisdiction under section 300, subdivision (e) due to the
parent‟s conduct (§ 361.5, subd. (b)(5)) and because Joshua should be adjudged a
dependent pursuant to any subdivision of section 300 as a result of the infliction of severe
physical harm to him by a parent, and it would not benefit Joshua to pursue reunification
services with the offending parent (§ 361.5, subd. (b)(6)).
Contested Evidentiary Hearing
Over several days in February and March 2013, the juvenile court held a contested
jurisdictional/dispositional hearing. By this time, Joshua was out of the hospital and
making progress. However, he had clearly suffered permanent brain damage and was
exhibiting some developmental delays. In addition to the hole in his brain, Joshua was
missing approximately 10 percent of his brain, which would never grow back.
At the beginning of the jurisdictional/dispositional hearing, the father waived his
rights, pled no contest to the dependency petition‟s allegations, and waived his right to
custody and reunification services.
8
Dr. Husam Abdulnour, a pediatrician who cared for Joshua during his September
hospitalization, testified that Joshua‟s symptoms were most consistent with gastro-
esophageal reflux. Upon Joshua‟s September hospital discharge, Dr. Abdulnour advised
mother that if the baby continued vomiting he needed to be returned to the clinic.
Melissa Hale, a mental health clinician, testified about a clinical assessment she
recently conducted of mother. Based on her assessment, Hale recommended mother be
psychologically evaluated in order to explain her apparent lack of insight. It did not
appear that mother accepted any responsibility for what happened to Joshua. According
to Hale, during the assessment, mother claimed she became concerned a couple of days
prior to Joshua‟s doctor appointment when he began vomiting.
When mother took the witness stand, she confirmed that at some point in late
October she noticed Joshua did vomit. She also vividly remembered that on October 31,
Joshua vomited and it was a “grave concern” to her. However, she did not take Joshua to
the doctor that night. Mother claimed when she took Joshua for his November 2 check-
up, she reported her concerns about Joshua‟s vomiting to Dr. Bernal. Mother did not
have an explanation however for why, if she told Dr. Bernal on November 2 about
Joshua‟s vomiting, she did not seek medical attention for Joshua sooner than just waiting
for his next appointment.
Dr. Bernal testified there was no mention at the November 2 appointment of
Joshua vomiting. Had he been informed that on October 31 Joshua had “vomiting of
grave concern,” Dr. Bernal would have most likely sent Joshua to the emergency room.
Mother admitted she had used the word “jolt” to describe the father‟s conduct on
one occasion. His conduct and her conversation with him about dealing with frustration
occurred sometime in September. However, “jolt” was not the proper word to describe
what she actually saw.
She denied knowing anything about sunsetting eyes before her conversation with
Dr. Hyden. At most, the maternal grandmother did mention to her at the end of October
9
that Joshua‟s eyes might look a little funny. Mother, however, did not take any action in
response to the grandmother‟s observation. Mother did not think Joshua‟s eyes were
abnormal during the two months prior to his removal.
Mother also denied believing Joshua‟s head looked either inappropriately large or
misshapen during the two months prior to his removal. She denied telling the social
worker in November that Joshua‟s head began to be large around September or October
or that his head was large and misshapen. Mother did admit saying Joshua‟s head did
feel heavy when she held him.
Mother admitted she did not take any responsibility for what happened to Joshua
while he was in her care and custody. She also did not believe that there was anything
she could have done differently. If he were returned to her care, she would look for
honesty in people to ensure Joshua‟s safety.
Dr. Angela Rosas, an expert in child abuse, testified on mother‟s behalf. In the
doctor‟s opinion, there was no significant enlargement of Joshua‟s head size until the
week before his November admission to the hospital. However, Dr. Rosas could not
completely rule out any pattern of abnormal head growth in September or October
because there was no measurement of Joshua‟s head circumference in those months.
Mother would not have recognized the child‟s head was misshapen. Also, in the doctor‟s
view, Joshua‟s symptoms were slowly progressing. Before November 8, a caregiver
would not be able to recognize symptoms “specifically of child abuse.”
Photographs submitted by mother did show that starting in October, Joshua had a
downward gaze. However, according to Dr. Rosas, there was nothing specific in the
photographs that would make nonaccidental trauma obvious. On the other hand,
photographs of Joshua starting on October 24 showed his head was misshapen, as well as
the prominence of his forehead.
Dr. Rosas also testified about the age of Joshua‟s injuries. In her opinion, the rib
fractures were two to four weeks old from when the November x-rays were taken. Some
10
of the brain injuries could have been months old, as in September or even earlier. The
older brain injury was a hole in Joshua‟s brain. Dr. Rosas agreed with Dr. Hyden‟s
opinion that the September ALTE event was the most likely episode to have caused the
older brain injury and would explain the older rib fractures. The clinical symptoms that
Joshua exhibited in September were consistent with abusive head trauma.
However, at least one brain injury occurred probably within a few days of
November 8. That injury would have contributed to the increase in the volume of
subdural fluid. Also, there was quite a bit of fluid, indicating an injury that was several
weeks to a month old.
Joshua‟s maternal grandmother testified about Joshua‟s eyes not focusing. She
noticed this on October 18, as she changed his diaper. However, she did not mention it to
mother. The maternal grandmother, who acknowledged she was concerned, instead
“looked into it” by searching baby ocular development on the internet. When she saw
Joshua between October 18 and November 8, his eyes were not focusing approximately
60 percent of the time. The maternal grandmother mentioned Joshua‟s eyes looking
downward to mother toward the end of October. The maternal grandmother did so
because it had been a concern of hers and to see if mother agreed. They did not agree.
Court‟s Ruling
Following closing arguments, the court exercised its jurisdiction over Joshua
under section 300, subdivisions (a), (b), and (e). It also adjudged Joshua a dependent
child and removed him from parental custody.
The court could not find by clear and convincing evidence that mother abused
Joshua or that she knew he was being abused. Therefore, it would not deny her
reunification services under section 361.5, subdivision (b)(5). However, it did deny
mother reunification services under section 361.5, subdivision (b)(6) based on the severe
physical harm Joshua suffered.
11
The court did not find mother credible. As examples, the court noted it did not
accept mother‟s testimony that: she never thought Joshua‟s head was misshapen; she told
Dr. Bernal on November 2 that Joshua had been vomiting, or that she used the word
“jolt” incorrectly to describe what the father did to Joshua when he was very young.
Another credibility issue for the court arose based on mother‟s early statement that she
had no experience with babies when later it turned out that she did.
The court found Joshua had observable signs for quite some time that something
was wrong with him. The court did not believe mother could have missed knowing
something was wrong with Joshua. Someone, namely mother, should have taken the
baby to the doctor earlier to assure prompt medical attention. The court was
“flabbergasted” that mother would not rush Joshua to the emergency room. In particular,
it found Joshua‟s vomiting on October 31 gave mother her “grave concern,” but she did
nothing. She still did nothing after the November 2 appointment despite his ongoing
vomiting.
DISCUSSION
I. The juvenile court did not deny mother her statutory right to counsel or due
process.
At a November 26 detention hearing for Joshua, the juvenile court did not appoint
counsel for either of the parents. As a preliminary matter, mother contends the juvenile
court consequently denied her statutory right to have counsel at the detention hearing
(§ 317, subd. (d)) and her constitutional right to due process. We disagree.
A juvenile detention hearing is the first hearing conducted once a child has been
taken into temporary custody and a petition is filed with the juvenile court to exercise its
dependency jurisdiction. (§§ 309; 319.) The social worker must make a prima facie
showing that the child comes within section 300 (the grounds for jurisdiction), as well as
that continuance in the parent‟s home is contrary to the child‟s welfare. (§ 319, subd.
(b).) Assuming there is a prima facie showing, the court issues a detention order and sets
a jurisdictional hearing at which the social worker must show by a preponderance of the
12
evidence that the child comes within section 300. (§ 355, subd. (a).) Once the court
exercises its jurisdiction, the social worker must show, by clear and convincing evidence,
that there exists the requisite risk of harm to warrant the court removing a child from
parental custody. (§ 361.)
At a detention hearing, the court shall appoint counsel for the parent “[w]hen it
appears to the court that [the parent] is presently financially unable to afford and cannot
for that reason employ counsel .…” (§ 317, subd. (b).)
In this case, the juvenile court did not appoint counsel for either parent at the
November detention hearing because neither appeared to qualify. The couple was
married, the father had a fulltime job making in excess of $40,000 a year and they
recently bought a house. Although both parents said they could not afford counsel,
neither parent had even spoken to any attorneys and mother in particular did not know
how much an attorney would cost. The court urged the parents to speak with attorneys
and made clear the parents could come back and renew their requests once they spoke
with some attorneys about fees and could show they could not afford those fees.
The court could have continued the detention hearing for one day. (§§ 319, subd.
(c); 322.) However, the court did not abuse its discretion by not granting a one-day
continuance. By this point, Joshua had been in protective custody for many days and still
the parents had done nothing so far as seeking counsel was concerned. One day in all
likelihood would not have made a difference.
Instead, the court briefly trailed the hearing for the parents to review the petition
and the social worker‟s report. Mother then told the court she underlined “a few things
that I didn‟t say or are not correct.” Yet, when the court gave her the chance to cross-
examine the social worker who wrote the report, mother did not pose any questions. The
court then found a prima facie showing, and set the jurisdictional hearing.
A few days later, mother returned to juvenile court and persuaded another judge to
appoint counsel for her. That judge reserved the ability-to-pay issue.
13
On this record, we conclude the evidence did not compel the juvenile court to
appoint counsel for mother on November 26, nor did it violate mother‟s statutory right to
have counsel at the detention hearing. In any event, mother makes no showing that any
statutory error was prejudicial. She overlooks the low evidentiary standard of a prima
facie showing at the detention hearing compared to the higher evidentiary standards the
juvenile court must apply at the jurisdiction hearing and to warrant removal from parental
custody. She also does not contest in this writ proceeding the sufficiency of the evidence
to support the juvenile court‟s multiple jurisdictional findings or its removal order.
Therefore, we conclude any statutory error related to the detention hearing was harmless.
We likewise reject mother‟s due process claim. Her constitutional argument is
meritless in that it is little more than a conclusional statement that her due process rights
were violated. (People v. Wharton (1991) 53 Cal.3d 522, 563 [bare mention of a due
process claim on appeal does not merit a reviewing court‟s consideration].) In any event,
she appears to assume her due process claim amounts to structural error and therefore she
is entitled to reversal per se. However, she cites no authority to support such an
assumption. She also overlooks the state supreme court‟s decision in In re James F.
(2008) 42 Cal.4th 901, 917 in which the court questioned whether the structural error
doctrine, established for certain errors in criminal proceedings, has any place in the quite
different context of juvenile dependency proceedings. The court also observed the
question of prejudice is relevant in a dependency proceeding when the child‟s welfare is
at issue. (Ibid.) Given mother‟s failure to demonstrate any resulting prejudice from the
juvenile court‟s initial decision not to appoint her counsel and to proceed with the
detention hearing, we conclude mother is not entitled to any relief.
II. There was substantial evidence that mother, by her omission, inflicted severe
physical harm on Joshua.
Mother also challenges the order denying her reunification services under section
361.5, subdivision (b)(6). Claiming there was insufficient evidence that she knew the
14
father was abusing their child, mother contends the court erred by denying her services
under section 361.5, subdivision (b)(6). We disagree.
As a general rule, reunification services are offered to parents whose children are
removed from their custody, in an effort to eliminate the conditions leading to loss of
custody and to facilitate reunification of parent and child. This furthers the goal of
preservation of family, whenever possible. (Raymond C. v. Superior Court (1997) 55
Cal.App.4th 159, 163.) But recognizing that it may be fruitless to provide reunification
services, the Legislature has enacted provisions for “fast-track” permanency planning
under certain circumstances. (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478.) We
review the juvenile court‟s order denying reunification services under section 361.5,
subdivision (b) for substantial evidence. (Cheryl P. v. Superior Court (2006) 139
Cal.App.4th 87, 96.)
The governing provision in this case, section 361.5, subdivision (b)(6), provides in
relevant part:
“Reunification services need not be provided to a parent ... when the
court finds, by clear and convincing evidence, any of the following: [¶] ...
[¶] (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 ... 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 ....”
A finding of the infliction of severe physical harm for purposes of section 361.5,
subdivision (b)(6) “may be based on, but is not limited to, deliberate and serious injury
inflicted to or on a child‟s body or the body of a sibling or half sibling of the child by an
act or omission of the parent ....” (§ 361.5, subd. (b)(6); italics added.) Section 361.5,
subdivision (b)(6) “is not limited to the parent or parents whose act directly caused the
child‟s injury.” (Tyrone W. v. Superior Court (2007) 151 Cal.App.4th 839, 851.) For
example, where parents were aware of their child‟s pain and disfigurement resulting from
an accidentally broken leg, their failure to seek medical attention for two months was
15
deemed infliction of severe physical injury by omission. (Pablo S. v. Superior Court
(2002) 98 Cal.App.4th 292, 301.)
By arguing there was insufficient proof that she knew Joshua was suffering severe
physical abuse, mother ignores the juvenile court‟s findings. As mentioned above, the
juvenile court acknowledged it could not find clear and convincing evidence that mother
did know the father was severely abusing Joshua. If it had, it would have denied mother
reunification services on the alternative ground of section 361.5, subdivision (b)(5).
Section 361.5, subdivision (b)(5) essentially prohibits services when a child under the age
of five has suffered severe physical abuse by a parent or by any person known by the
parent, if the parent knew or reasonably should know the person was physically abusing
the child (§ 300, subd. (e)).
On the other hand, the court did find that: Joshua had observable signs for quite
some time that something was physically wrong with him and mother could not have
missed them; and mother should have taken the baby to the doctor earlier to assure
prompt medical attention. It was on this basis, distinct from whether mother knew Joshua
was suffering abuse, that the court denied her services under section 361.5, subdivision
(b)(6).4
Over the space of approximately six weeks, mother observed Joshua‟s head had
become misshapen and enlarged, his gaze had changed and he frequently vomited,
including projectile vomiting to the point that she claimed it was of “grave concern.”
Yet, as Joshua‟s primary caregiver, mother failed to seek medical care for him. This was
despite the fact that she had been specifically told in September by the hospital
pediatrician that she should bring Joshua in if he continued vomiting.
4 The court also found in this regard it would not benefit Joshua to pursue
reunification services with mother, a finding that she does not challenge in this writ
proceeding.
16
There was also evidence that Joshua‟s injuries occurred over a period well beyond
the September ALTE episode. The rib fractures were two to four weeks old from when
the November x-rays were taken. One brain injury was several weeks to a month old as
of the November 8 hospital MRI. There was also at least one brain injury, which
occurred probably within a few days of that MRI. In other words, had mother alerted
doctors to Joshua‟s vomiting or downcast gaze before November 8, she could have
prevented at least one or more of his serious injuries. For example, we know from Dr.
Bernal‟s testimony that had he been alerted to either Joshua‟s recurrent downward gaze
or his vomiting on October 31 that was of grave concern to mother, the pediatrician
would have arranged for an earlier ultrasound or most likely sent Joshua to the
emergency room on November 2.
Even if mother did not know the father was abusing Joshua, we conclude there
was substantial evidence to support a finding that mother‟s conduct amounted to
“infliction of severe physical harm” by “omission” for purposes of section 361.5,
subdivision (b)(6).
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to
this court.
17