In re Emma P. CA2/4 ( 2021 )

Filed 12/2/21 In re Emma P. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
In the Matter of EMMA P. et al., B310149
Persons Coming Under Juvenile
Court Law. (Los Angeles County
LOS ANGELES COUNTY Super. Ct. No.
DEPARTMENT OF CHILDREN 20CCJP02944A-B)
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
MARISA P.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Jean M. Nelson, Judge. Reversed in part,
affirmed in part.
Pamela Deavours, under appointment by the Court of
Appeal, for Defendant and Appellant.
Tarkian & Associates and Arezoo Pichavi for Plaintiff
and Respondent.
___________________________________
INTRODUCTION
The material facts in this appeal are undisputed. On
May 17, 2020, father T.P. (who has not appealed) shook his
one-month-old son G.P. because he would not stop crying.
Appellant mother Marisa P. was out at the time, but noticed
G.P. exhibiting seizure-like symptoms after she returned.
Father professed ignorance of the cause of G.P.’s symptoms,
and Mother called 911. Three days later, while G.P. was still
hospitalized, Mother learned his doctors suspected shaken
baby syndrome. After discovering the doctors’ suspicions,
Father confessed his actions to Mother, the maternal
grandmother, and the maternal aunt (Mother’s sister, who
was a public defender). The aunt advised Father and
Mother not to talk to anybody until they consulted with
counsel. As a result, Mother did not inform G.P.’s doctors of
Father’s confession.
On May 29, 2020, the Los Angeles County Department
of Children and Family Services (DCFS) filed a petition on
behalf of G.P. and his sister Emma (born February 2018),
alleging jurisdiction under Welfare and Institutions Code
section 300, subdivisions (a), (b)(1), (e), and (j). At a
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detention hearing held June 3, 2020, Mother testified about
when she had learned of Father’s actions, and why she had
not told anyone before. While the court did not approve of
Mother’s failure to disclose, it concluded she posed no risk to
the children, and released them to her custody.
Six months later, a different judge found jurisdiction
over the children on various grounds. The only grounds
involving Mother were under Welfare and Institutions Code
section 300, subdivisions (b)(1) and (j), alleging that she
failed to protect G.P. “by not timely advising medical
providers of the cause of the child’s injuries once she became
. . . aware of that cause.” Though the court has since
terminated jurisdiction and released the children to Mother,
Mother urges us to consider her appeal in which she argues,
among other things, that the court erred in assuming
jurisdiction because there was no current risk of harm to the
children at the time of the adjudication hearing. DCFS has
not argued to the contrary on appeal, and we agree. We
therefore reverse the finding of jurisdiction on the counts
involving Mother’s failure to disclose.
STATEMENT OF RELEVANT FACTS
A. DCFS Investigates a Referral
On May 20, 2020, DCFS received a referral alleging
physical abuse of G.P. (born April 2020). The report stated
that three days earlier, Mother had observed G.P. to be limp,
pale, and exhibiting seizure symptoms. She called 911 and
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G.P. was admitted to a pediatric intensive care unit. Upon
further testing, G.P. was observed to have bloody
cerebrospinal fluid. He was intubated, and his brain MRI
showed bilateral subdural hematomas.1 Additional testing
revealed bilateral severe retinal hemorrhages. There were
concerns that the injuries were caused by “non-accidental
trauma, as mother did not mention prior injuries or head
injuries,” but it was also noted that “infection-related causes
ha[ve] not been ruled out and there is more testing planned
for the next several days.” A medical social worker spoke
with Mother, who denied any concerns of child abuse. She
explained she had gone to the store on May 17, leaving the
children with Father, but after returning home, noticed the
onset of seizures in G.P.
On May 20, a children’s social worker (CSW) later
telephoned Mother, and after Mother expressed confusion
over DCFS’s involvement, she provided the CSW with the
address of the maternal aunt’s house, where the family was
staying. The maternal aunt -- who was a public defender --
then joined the call, stated she was an attorney, and refused
to let the CSW speak further with Mother. When asked if
she, Mother, Father, and Emma could meet with the CSW at
the hospital, the maternal aunt refused, but stated the CSW
could come to the aunt’s house.
After this conversation, a doctor spoke with the CSW
and two detectives from the Los Angeles County Sheriff’s
1 A hematoma is a localized bleeding outside of blood vessels.
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Department. He opined that no child at G.P.’s age should be
having seizures, and that the results of an MRI “‘swings [the
cause of his symptoms] from infection more towards
trauma.’” The doctor “clarified that it is still possible, but
less likely now, for the cause to be an infection,” and that the
“infection markers,” which they were still awaiting, had been
negative so far. The doctor also stated that an eye specialist
had observed an edema (swelling) behind G.P.’s eye, adding
to the likelihood that his injuries were caused by trauma.
The doctor said the injuries appeared to have been caused by
“‘severe shaking,’” possibly within the past week. Additional
tests would be done to allow the doctors to make a final
determination of the cause of the injuries.
The CSW and detectives went to the home of the
maternal aunt, who refused to allow them to enter or speak
with the parents or to see two-year-old Emma. On May 21,
2020, the court granted an after-hours removal order for the
children. Two social workers, accompanied by law
enforcement, removed Emma from the parents.
B. DCFS Files a Petition
On May 29, 2020, DCFS filed a petition under Welfare
and Institutions Code section 300, subdivisions (a), (b)(1),
and (j) on behalf of Emma, and subdivisions (a), (b)(1), and
(e) on behalf of G.P. Counts a-1, b-1, and j-1 identically
alleged that G.P. was suffering from serious injuries
“consistent with inflicted trauma” and which “would not
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ordinarily occur except as the result of deliberate,
unreasonable and neglectful acts by the child’s parents,” but
that the parents “gave no explanation of the manner in
which the child sustained the child’s injuries.” Counts b-2
and j-2 identically alleged that after G.P. was injured, the
parents “failed to obtain emergency and timely medical care
for the child’s injuries.” Count e-1 alleged that G.P. was
seriously injured in a manner consistent with inflicted
trauma, and that the parents knew or should have known he
was being physically abused and failed to protect him.
At the June 3, 2020 detention hearing, Mother was
called to testify; she explained that after her sister had
refused entry to the CSW and law enforcement on May 20,
Mother had called the hospital to ask why a social worker
wanted to speak with her. She learned that the hospital
“had to file a report of child abuse, which they believe[d] was
shaken baby syndrome.” Mother became upset and after she
hung up the phone, Father approached her, crying and
apologizing. He confessed to shaking G.P. because the infant
would not stop crying. Mother screamed for her sister and
mother and, when they arrived, Father confessed to them as
well. Mother did not call the police because her sister
advised her not to speak with anyone without an attorney.
On May 31, 2020, after she spoke with her dependency
attorney, Mother attempted to call a social worker to inform
her of what had happened, but was unable to reach her; she
also e-mailed the social worker, asking for a call-back. Prior
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to this incident, Mother had never observed Father be
violent toward her or the children.
The court (Judge Martha A. Matthews) found that
while the children should be detained from Father, DCFS
had not met its burden of proof to demonstrate they should
be detained from Mother. The court found Mother credible,
and believed that prior to this incident, she had no reason to
believe her children were at risk. The court noted that when
Mother observed seizure signs in G.P., she immediately
called 911. The court acknowledged Mother’s failure to
inform the police regarding Father’s confession, but did not
find this to be evidence of lack of protective capacity because,
by the time of the confession, “the doctors . . . had already
determined that someone had shaken” G.P., and he was
“already in the hospital receiving all appropriate medical
care.” The court noted it would have been a “different
matter” if Mother had “withheld information that was
critical to the baby’s medical treatment.” Over the objections
of DCFS’s counsel and the children’s counsel, the court
released the children to Mother, provided they reside in a
DCFS-approved location.2
2 At DCFS’s request, the court stayed the order for five days
to permit DCFS to interview the maternal aunt and grandmother
regarding Mother’s testimony. After DCFS concluded its
interviews, it asked the court to modify its previous order. The
court declined and lifted the previously imposed stay, ordering
the children released to Mother under DCFS supervision, with
Mother residing with the maternal grandmother or at some other
DCFS-approved housing.
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C. DCFS Continues to Investigate
In a subsequent interview with DCFS, Mother made
statements consistent with her testimony at the detention
hearing and denied the children were at risk in her care.
She emphasized that Father had been “‘an amazing father to
Emma,’” and that she “‘never feared him or thought that he
could cause harm to our children.’” A CSW stated she had
observed “‘great improvements in’” G.P., and opined that
Mother was “‘organized and good at advocating’ for her
children’s needs.”
DCFS also obtained medical records, which stated that
as of May 26 -- six days after Mother discovered what Father
had done -- medical professionals were continuing to
determine the cause of G.P.’s symptoms. A May 20 entry
stated the doctor was “highly concerned for NON-
ACCIDENTAL TRAUMA” and that an “echocardiogram and
CT abdomen/pelvis” were needed “to rule out trauma.”
“[M]etabolic and infection” were given as “[d]ifferential
diagnoses.” A May 21 entry noted the medical team “sen[t]
for more labs to rule out metabolic and rare infectious
causes” but that “[t]rauma is the only unifying diagnosis as
no other etiology can explain[] the whole constellation of
abnormalities.” The records indicated additional tests would
be done, and a May 26 entry indicated the results of those
tests were negative for infection, but that a further test
would be performed.
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D. Adjudication and Disposition
Six months later, in December 2020, Judge Jean M.
Nelson held an adjudication hearing. Mother testified in a
manner consistent with her testimony at the detention
hearing. Regarding her call to the hospital after DCFS’s
initial visit, she testified that the doctor told her “there was
a suspicion of shaken baby syndrome,” but did not “express
any uncertainty as to there being any other cause for” G.P.’s
symptoms. Mother stated the doctor had informed her they
were waiting on the results for other tests they had
performed. She admitted knowing that G.P. had a PICC line
inserted to deliver antibiotics, which were given to those who
had infections.3 Mother claimed she told G.P.’s neurologist
“what happened,” “right after” the children were released to
her (on June 8). Mother testified that according to the
doctors and her own observations, G.P. was currently
“functioning completely normal right now for his age.”
The maternal aunt testified that she was a public
defender, and confirmed that it was she who had denied
DCFS entry into her home, and had advised Mother and
Father not to speak to law enforcement without counsel.
The aunt admitted she had no experience with dependency
law.
The court then invited argument. DCFS’s counsel
argued that Mother’s failure to inform the doctors of the
cause of G.P.’s symptoms immediately upon discovery
3 A PICC line is a peripherally inserted central catheter.
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constituted a failure to protect, because G.P.’s diagnosis was
still uncertain, and Mother knew that doctors were
administering antibiotics and performing additional
diagnostic tests that were “completely unnecessary,” given
the actual cause of G.P.’s symptoms. The children’s counsel
asked that counts a-1, b-1, and j-1 be amended to state that
the parents “gave no immediate explanation of the manner
in which the child sustained the child’s injuries” and argued
that while there was little question that G.P. sustained his
injuries due to Father’s actions, Mother’s failure to
immediately inform the doctors did not constitute a failure to
protect. The children’s counsel disputed that G.P.
underwent “many” unnecessary diagnostic procedures or
suffered any injury after Mother learned the cause of his
injuries. Father’s counsel asked the court to dismiss the
petition for lack of evidence, stating there was no evidence
that G.P. suffered detriment following Father’s confession.
The court adjourned the hearing and stated it would issue a
ruling the next day.
The court found that Mother had no role in the initial
shaking of G.P., but that “her failure to disclose from
between May 20th and the time of June 1st was a failure to
protect . . . .”4 The court opined it was “common sense that
the doctors need[ed] to know the cause of injury,” and while
4 We understand the court’s reference to “June 1st” to mean
when Mother testified at the detention hearing. While the
detention hearing was initially scheduled for June 1, 2020, it was
not held until June 3.
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the court acknowledged the contrary legal advice Mother
received, “her first responsibility is to protect her child
regardless of other consequences.” The court stated it was
“fair to assume that [the withheld information] would have
been a key piece of evidence or information for the doctors to
figure out the treatment. And Mother was aware that they
suspected shaken baby syndrome. They had not ultimately
concluded it, and she never tried to change that and ensure
doctors understood the cause . . . .”
After amending counts a-1, b-1, and j-1, and count e-1
to remove the allegations regarding Mother, the court
sustained these counts as to Father. The court also
amended and sustained counts b-2 and j-2 as to Mother. As
amended, these counts identically alleged that Mother
“failed to protect the child [G.P.] by not timely advising
medical providers of the cause of the child’s injuries once she
became aware of that cause. Such medical neglect of the
child on the part of the mother endangers the child’s
physical health and safety and places the child and the
child’s sibling Emma P[.] at risk of serious physical harm,
damage, and medical neglect.”5 Mother’s counsel objected to
the amended language “both on the sufficiency of the
evidence and [on the ground that] the amended language
fails to state a claim.”
5 In the initial petition, the counts alleged that Mother and
Father “failed to obtain emergency and timely medical care” for
G.P.’s injuries.
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On disposition, with all counsel’s agreement, the court
removed the children from Father. Over DCFS’s objection,
the court released the children to Mother, finding that “both
children have remained safely in Mother’s care so there is
evidence that the risk has dropped off.” The court further
found that “[a]lthough Mother failed to timely tell the
medical providers about the shaking, she has since shown
herself to be safe and attentive to the children such that the
department failed to meet the clear and convincing evidence
standard.” Mother timely appealed the jurisdictional
findings and the allegations sustained against her.
E. Post-Appeal
After the appeal was filed, the court terminated
jurisdiction in June 2021, issuing minute orders finding that
“conditions which would justify the initial assumption of
jurisdiction under WIC section 300 no longer exist and are
not likely to exist if supervision is withdrawn . . . .” The
court awarded Mother sole legal and physical custody of G.P.
and joint legal and sole physical custody of Emma.
Subsequently, DCFS declined to file a respondent’s brief.6
6 Although DCFS claimed in a request for judicial notice that
it was offering evidence of the termination of jurisdiction “for the
purpose of expediting an issue on appeal that may now be moot,”
DCFS made no motion to dismiss the appeal.
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DISCUSSION
A. We Exercise Our Discretion to Consider
Mother’s Appeal
Though the juvenile court terminated jurisdiction and
released the children to Mother, she requests we consider
her appeal on the merits, arguing that the outcome of this
appeal could shift her status from “‘offending’” to “‘non-
offending’” parent. We agree, and will consider her appeal
on the merits. (See In re Drake M. (2012) 211 Cal.App.4th
754, 763 [deciding potentially moot appeal because “the
outcome of this appeal is the difference between father’s
being an ‘offending’ parent versus a ‘non-offending’ parent”].)
B. Substantial Evidence Does Not Support a
Finding of Substantial Risk to the Children
at the Time of the Adjudication Hearing
While the juvenile court found Mother had no role in
shaking G.P., it found “her failure to disclose from between
May 20th and the time of June 1st was a failure to protect.”
We agree. While Mother protests an alleged lack of evidence
before the court “to support the assumption that mother’s
failure to disclose father’s confession on the night of May 20,
2020 and prior to her testimony on June 3, 2020 resulted in
any change in G[.P.]’s course of treatment,” we agree with
the court that it was “common sense that the doctors
need[ed] to know the cause of injury.” Because Mother’s own
testimony established that she knew there was “a suspicion
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of shaken baby syndrome,” but also knew there was no
definitive diagnosis, we concur that her failure to disclose
what Father had confessed not only subjected the infant to
additional tests, but deprived the doctors of information any
medical professional would want as soon as possible to
deliver optimum care. The fact that G.P. was properly
treated is fortunate but fortuitous -- it does not excuse
Mother’s serious lapse of judgment or negate the risk that
lapse posed to her child. In short, substantial evidence
supported the court’s conclusion that Mother’s failure to
disclose constituted a failure to protect G.P.
Nevertheless, “dependency jurisdiction is not
warranted under [Welfare and Institutions Code section
300,] subdivision (b) if, at the time of the jurisdiction
hearing, there no longer is a substantial risk that the child
will suffer harm.” (In re Carlos T. (2009) 174 Cal.App.4th
795, 803; Welf. & Inst. Code, § 300, subd. (b)(1) [child comes
within jurisdiction of juvenile court if “[t]he child has
suffered, or there is a substantial risk that the child will
suffer, serious physical harm or illness, as a result of the
failure or inability of his or her parent or guardian to
adequately supervise or protect the child . . . . The child
shall continue to be a dependent child pursuant to this
subdivision only so long as is necessary to protect the child
from risk of suffering serious physical harm or illness”].)
Similarly, “subdivision (j) of section 300 requires a finding of
a current risk of abuse, because a child under subdivision (j)
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must be both a sibling of an abused child and at risk of being
abused.” (In re Carlos T., supra, at 803, italics omitted.)
By the time of the adjudication hearing -- six months
after the detention hearing -- there was nothing to suggest
Mother posed a substantial risk to the children. In its
jurisdiction/disposition report, DCFS noted “‘great
improvements in’” G.P., and opined that Mother was
“‘organized and good at advocating’ for her children’s needs.”
Mother testified without contradiction that according to the
doctors and her own observations, G.P. was “functioning
completely normal right now for his age.” And the court
itself found that “both children have remained safely in
Mother’s care so there is evidence that the risk has dropped
off.” Further, the court found that since the time the
children had been released to her, Mother had “shown
herself to be safe and attentive to the children . . . .” Because
we find that substantial evidence does not support a finding
that at the time of the adjudication hearing, Mother still
posed a substantial risk to either of her children, we reverse
the finding of jurisdiction over the children under counts b-2
and j-2. In light of our holding, it is unnecessary to consider
any of Mother’s other arguments.
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DISPOSITION
We reverse the court’s finding of jurisdiction over the
children under counts b-2 and j-2. In all other respects, the
court’s jurisdictional order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
MANELLA, P. J.
We concur:
WILLHITE, J.
COLLINS, J.
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