In re Jonathan F. CA2/7 ( 2013 )

Filed 7/22/13 In re Jonathan F. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re JONATHAN F., a Person Coming B242144
Under the Juvenile Court Law.
(Los Angeles County)
Super. Ct. No. CK90647)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
NATALIE A., et al.,
Defendants and Appellants.
APPEAL from orders of the Superior Court of Los Angeles County, Anthony
Trendacosta, Juvenile Court Referee. Affirmed.
The Law Offices of E. Thomas Dunn, Jr. and E. Thomas Dunn, Jr., for Defendant
and Appellant Natalie A.
Janice A. Jenkins, under appointment by the Court of Appeal, for Defendant and
Appellant J.F.
John Krattli, County Counsel, James M. Owens, Assistant County Counsel, and
Jeanette Cauble, Senior Deputy County Counsel for Plaintiff and Respondent.
_______________________
Mother Natalie A. and father J.F. appeal from the juvenile court’s jurisdictional
and dispositional orders concerning their son Jonathan F. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
J.F. called 911 on October 27, 2011, when five month-old Jonathan F. had
difficulty breathing. Jonathan F. was rushed to the hospital, where he was diagnosed
with a subdural hematoma requiring emergency surgery. Surgeons found a possible older
head injury. Jonathan F. displayed no trauma to the outside of his body.
Jonathan F. had been in the care of his maternal grandmother while Natalie A. was
in school the day before his hospitalization, but Natalie A. had picked him up from her
mother’s home while it was still light out. They arrived home at nightfall: it was “a little
bit dark.” J.F. and Natalie A. then were alone with Jonathan F. all night. On the morning
of the hospitalization, Natalie A. left for school and J.F. was caring for Jonathan F. for
the first time by himself. At about 9:00 a.m. Jonathan F. awoke; J.F. fed him, changed
his diaper, and played with him. Jonathan F. fell asleep at approximately 9:30 a.m., but
J.F. observed that he was gasping for air. J.F. watched Jonathan F. for ten minutes and
tried to rouse him, but he did not open his eyes. Jonathan F.’s face began to turn red, and
the top of his forehead was changing colors. J.F. called Natalie A., who instructed him to
call 911. J.F. denied that Jonathan F. had fallen from any surface or bumped his head.
He denied shaking or mistreating Jonathan F.
Natalie A. reported that she did not know what happened to Jonathan. She told
DCFS that when Jonathan was born he had swelling on one side of his head, but the
pediatrician assured her that it was not of concern. She denied mistreating or shaking
Jonathan F., and denied that he had fallen or bumped his head.
Maternal grandmother Yolanda L. babysat Jonathan F. while Natalie A. was in
school. On school days Natalie A. would drop off Jonathan F. around 6:30 in the
morning and pick him up at approximately 4:00 p.m. She had never witnessed
Jonathan F.’s parents mistreating him. She denied shaking the baby or that he had
fallen or hit his head.
2
Over the next few days, Jonathan F. began having seizures and was unable to
move the left side of his body. He was found to have an acute right subdural hematoma,
a subarachnoid hemorrhage, bilateral brain ischemia, and retinal hemorrhages in his left
eye. The treating medical professionals suspected the injuries were inflicted rather than
accidental. The Department of Children and Family Services (DCFS) filed a petition
alleging that Jonathan F. came within the jurisdiction of the juvenile court under Welfare
and Institutions Code1 section 300, subdivisions (a), (b), and (e).
Jonathan F. remained hospitalized or at a rehabilitation center until late December
2011. It was believed that in addition to his traumatic brain injury, Jonathan F. was blind,
had mild paresis on his left side, and was experiencing cognitive and motor delays.
Further evaluation by an ophthalmologist revealed reason to believe he had some vision
on his left side.
In January 2012, when the social worker attempted to explain to Natalie A. the
physical issues Jonathan F. faced due to the brain injury he had sustained, Natalie A.
responded that Jonathan F. was fine and that there was nothing wrong with him, and
maintained that nothing had happened to him. Natalie A. and J.F. visited Jonathan F.
regularly and were attentive and caring. In March 2012, the parents completed training
on dealing with medically fragile children.
From April through June 2012, the court conducted a contested adjudication
hearing at which multiple witnesses testified as to the cause of Jonathan F.’s injuries.
Astrid Heger, M.D., the Executive Director and Medical Director of the Child
Intervention Program and the Child Abuse Program at the University of Southern
California, was a consulting physician on Jonathan F.’s case while he was hospitalized.
Heger concluded that when Jonathan F. was brought to the hospital, he had suffered a
recent serious, significant intracranial injury most consistent with an acceleration-
deceleration type of action. While Jonathan F. did not have fractures, bruising, or neck
injuries, there was no constellation of medical conditions or accidental injuries that would
1 All further statutory references are to the Welfare and Institutions Code.
3
have resulted in a child presenting as Jonathan F. did. The fact that Jonathan F.’s retinal
hemorrhages were on one side rather than bilateral did not affect her opinion as to the
cause of his injuries, as only 40 percent of children suffering from nonaccidental head
trauma have bilateral retinal hemorrhages. The injury had occurred within hours to a day
before his hospitalization. The emergency brain surgery was necessary to save his life.
Heger was examined concerning possible alternative causes for Jonathan’s
condition that had been advanced by the mother’s expert witnesses. Heger testified that
there were no facts in Jonathan F.’s evaluation, examination, or presentation that would
indicate that he had any vascular abnormality. His presentation was inconsistent with
PHACE syndrome or any other vascular syndrome. His laboratory test results indicated
no blood coagulation disorder. The idea that the acute subdural hematoma was actually a
recurrence of bleeding from a prior trauma was inconsistent with Jonathan F.’s
conditions, as rebleeds from prior trauma are usually very small and asymptomatic; they
do not cause apnea and massive subdural hematomas. Jonathan F. did not display a
vitamin K deficiency; his bleeding studies were normal, he did not have liver disease, and
he had received vitamin K at birth, so his condition was not consistent with a vitamin K
deficiency. Jonathan F. presented with no infections that could have caused his injuries.
He had no facial hemangiomas, only a birthmark or simple nevus on his face, commonly
called an “angel kiss” or “salmon patch.” A salmon patch is a faint, pinkish-red mark on
the forehead or the back of the neck; the vascular component is under the skin, and it is
not raised. A hemangioma, in contrast, is a very purple-red mark, on the surface of the
skin; it is raised, disfiguring, and does not fade over time. Had the mark on Jonathan F.’s
face been a hemangioma this would have been noted in Jonathan F.’s medical records
and further medical evaluation would have been performed.
Parham Yashar, M.D., the neurosurgeon who supervised the surgery on
Jonathan F., also testified. During the craniotomy and evacuation, he saw a thin
membrane overlying the hematoma, which is suggestive of a previous subdural
hematoma. He saw no evidence of arterial-venous malformations in Jonathan F.’s brain.
Yashar saw no sign of a hemangioma on Jonathan F.’s face or scalp. Based on his
4
observations and knowledge, he concluded that the acute subdural hematoma was caused
by trauma in recent hours or the immediately preceding day or two.
Natalie A. called Mohammed Ali Al-Bayati, a pathologist and toxicologist, to
testify. Al-Bayati, a scientist, did not examine Jonathan F., and he did not have a
doctorate in medicine. He did not review Jonathan F.’s tests, only the interpretive
reports. Al-Bayati opined that the likely causes of Jonathan F.’s respiratory distress were
infection, hypoxia, metabolic acidosis, and bleeding. His intracranial bleeding and brain
ischemia were caused by a vitamin K deficiency, septicemia, and disseminated
intravascular coagulation. Al-Bayati testified that the child had a blood clot that traveled
to the brain, blocked the artery that supplied blood to the brain, and caused the brain to
bleed. Although Al-Bayati cited other cases where bacterial infections had caused brain
bleeds, he conceded that those findings were not similar to Jonathan F.’s case. Al-Bayati
believed that Jonathan F.’s immune system had previously been compromised due to
allergic reactions to vaccinations. Al-Bayati had evaluated more than 80 cases of
possible shaken baby syndrome; in none of those cases did he conclude that the child had
been shaken.
Charles Niesen, M.D., a neurologist who testified that he was board certified in
child neurology but then admitted that he was not currently board certified in that field,
prepared a report in March 2012 about Jonathan F. based on a review of medical records
and tests without a physical examination of the child, although he had later examined
him. Niesen did not believe that Jonathan F. had suffered abusive head trauma: While
his hematoma was the kind of injury that can be seen in cases of abusive head trauma,
Jonathan F. had a very small hematoma and it was not only in the subdural area but in the
subarachnoid area as well. Subarachnoid hemorrhages are uncommon in abusive head
trauma. Niesen believed that the subdural hematoma happened first, but that the
subarachnoid bleeding caused Jonathan F.’s respiratory problems and seizure. The bleed
itself was not very large, not large enough to cause pressure effects or change in the
appearance of the surface of the brain; violent shaking of a child usually causes more
bleeding and pressure effects. Jonathan F. did not have any long bone fractures, which
5
are one of the “pillars of evidence” for abusive head trauma, and his retinal hemorrhages
did not appear until later and were on the opposite side of the head from his hematoma.
He had no external bruising or damage to the neck vertebrae.
Niesen believed that a mark on Jonathan F.’s face was a hemangioma, an
abnormal formation of blood vessels. He also claimed that Jonathan F. had hemangiomas
over both eyelids and on other parts of his body. According to Niesen, this was
potentially indicative of PHACE syndrome, and multiple skin hemangiomas are
associated with a risk of other vascular malformations inside the body. Niesen opined
that Jonathan F. was not subjected to nonaccidental abusive head trauma, because he had
no bruising and no fractures, and because there’s “a more than reasonable, plausible
explanation as to why Jonathan has these intracranial bleeds.” Niesen acknowledged that
a magnetic resonance angiogram was performed to investigate whether Jonathan F. had
blood vessel abnormalities, and that none were found; he maintained that a cerebral
angiogram should have been performed instead.
Niesen acknowledged on cross-examination that his report, in which he found that
Jonathan F. likely suffers from PHACE syndrome, was drafted without seeing
Jonathan F. Niesen also reviewed Al-Bayati’s report and found it “an interesting take
on the facts” but he could not “see a relationship between his explanation and the
bleeding.”
The juvenile court issued an extensive written ruling discussing the various
witnesses and assessing the testimony. The court appeared to find Al-Bayati’s testimony
largely incredible: the court observed that several of his conclusions were outside his
area of expertise and incompatible with the three other medical witnesses, and that it
“defies logic” that Al-Bayati had never identified abuse in any of the dozens of cases on
which he had been called on to consult. With respect to Niesen, the court noted its
concerns (1) that he had misrepresented his status with respect to board certification and
that he was evasive about it; and (2) that he had rendered a diagnosis in the case based on
some photographs without seeing Jonathan F., then had to retract that opinion in favor of
a different diagnosis later.
6
The court acknowledged that not all the classic factors typically found in a shaken
baby case were present: there were no fractures, neck trauma, or bruising, and the retinal
hemorrhages were unilateral and not discovered until days after the hospitalization. The
court, however, credited Heger’s testimony that not all inflicted trauma cases include
each of the identified features. The court also observed that with respect to the vascular
malformation theory advanced by Niesen, the scan performed while Jonathan F. was
hospitalized to investigate vascular abnormalities found none; the neurosurgeon
supervising the craniotomy and evacuation saw none; and Jonathan F.’s medical records
indicated no findings consistent with vascular abnormalities or hemangioma. Ultimately,
the court concluded that “the County’s evidence is more persuasive. It was not helpful to
the court when the evidence presented by the parents’ experts appears to contradict each
other and undermines the other’s findings. The treating physicians’ findings and
opinions are based upon records, exams, physical observation and testing. Putting a[s]ide
Dr. Al-[]Bayati’s rather incredible findings, the court notes that although Dr. Niesen’s
opinions are grounded on his expertise, in medical science and on the medical records in
evidence, they [] tend to lean toward the speculative [more] than that provided by the
treating physicians.”
The court sustained the allegations of the petition under section 300, subdivisions
(a) and (e), and entered a removal order under section 361, subdivision (c). The parents
appeal.
DISCUSSION
I. Sufficiency of the Evidence
Natalie A. contends that there was insufficient evidence that she had injured
Jonathan F. to support the jurisdictional findings under section 300, subdivisions (a) and
(e). J.F. contends that there was insufficient evidence to support the finding under
section 300, subdivision (e). Each parent joins in the arguments of the other. We review
the jurisdictional findings for substantial evidence. (In re J.K. (2009) 174 Cal.App.4th
1426, 1433.) Under this standard of review, we examine the whole record in a light most
7
favorable to the findings and conclusions of the juvenile court and defer to the lower
court on issues of credibility of the evidence and witnesses. (In re Savannah M. (2005)
131 Cal.App.4th 1387, 1393.) We determine only whether there is any substantial
evidence, contradicted or uncontradicted, that supports the juvenile court’s order,
resolving all conflicts in support of the determination and indulging all legitimate
inferences to uphold the lower court’s ruling. (In re John V. (1992) 5 Cal.App.4th 1201,
1212.) Substantial evidence supports the jurisdictional findings here.
Section 300, subdivision (a) provides for juvenile court jurisdiction when a 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. Section 300,
subdivision (e), provides for juvenile court jurisdiction in a child under the age of five
years, where the child has suffered severe physical abuse by a parent, or by a person
known by the parent, if the parent knew or reasonably should have known that the person
was physically abusing the child. Severe physical abuse includes any single act of abuse
which causes physical trauma of sufficient severity that, if left untreated, would cause
permanent physical disfigurement, permanent physical disability, or death. (§ 300, subd.
(e).)
The evidence is sufficient to support jurisdiction under both provisions. Infant
Jonathan F. was subjected to nonaccidental trauma that caused him life-threatening brain
injuries. He suffered an acute subdural hematoma and an acute subarachnoid
hemorrhage; the hematoma was so large that it interfered with his breathing and
necessitated surgery to save his life. The treating physicians, the consulting physician,
and the neurosurgeon who supervised his brain surgery all concluded that Jonathan F.’s
injuries were inflicted nonaccidentally. Despite numerous examinations and medical
tests, no alternative explanation for his injuries was detected by his treating physicians.
There was evidence that his injuries were consistent with abusive head trauma and not
with alternative conditions advanced by the mother’s expert witnesses. Jonathan F.
became symptomatic at approximately 9:30 a.m., when he had been in the custody of one
or both parents without interruption since before dark the prior late October day. The
8
injuries that required his hospitalization had been inflicted hours to a day before he was
hospitalized. Substantial evidence supported the juvenile court’s conclusion that
Jonathan F. had suffered severe physical harm and abuse at the hands of his parents.
The parents argue that section 300, subdivision (e) does not apply because there is
no evidence to support that the parents knew or should have known that Jonathan F. was
being abused. The identity of the perpetrator is not required to sustain an allegation
under subdivision (e), and circumstantial evidence may support a finding that the parent
knew or should have known that the child was being abused. (In re E.H. (2003) 108
Cal.App.4th 659, 670.) As Jonathan F.’s symptoms would have been apparent within
hours to a day after the nonaccidental head trauma was inflicted; he was in his father’s
care at the time his symptoms were observed; and he had been in the exclusive care and
custody of his parents for approximately 17 hours prior to his display of symptoms, the
record supports a conclusion that at least one of the parents harmed Jonathan F. and that
the other parent knew or should have known he was being abused.
While Natalie A. contends that there is nothing in the record that “points to anyone
who may have committed some act of abuse,” specifically arguing that she had left the
home and that J.F. was caring for Jonathan F. at the time he became symptomatic,
Natalie A. and J.F. were Jonathan F.’s sole caregivers for approximately 17 hours before
his symptoms appeared. This supports the juvenile court’s conclusion that there were
two possible perpetrators of the abuse—Jonathan F.’s parents. This long period of care
by the parents leading up to the display of symptoms distinguishes this case from In re
Roberto C. (2012) 209 Cal.App.4th 1241, a case in which a baby became symptomatic
while for several hours in the custody of a babysitter, and the babysitter gave inconsistent
accounts of what had happened to the child.
Natalie A. argues that the juvenile court “improperly presumed the County
doctors’ credibility, [footnote] mischaracterized Dr. Niesen’s testimony about his
certification and rejected Dr. Niesen’s findings and analysis on the specious ground that
he initially drafted a report without examining the child first (all the while ignoring the
fact that the doctor did not do so because he was not afforded the opportunity to conduct
9
an examination), there thus was no reasonable basis for rejecting the testimony of Dr.
Niesen. There was likewise no reasonable basis for concluding the County’s doctors’
theory of causation was correct.” None of these assertions are supported by the record.
We understand the court’s comment that Heger’s and Yashar’s credibility was “not at
issue here” not as a presumption that they were credible but an observation that these two
witnesses had not been attacked as inherently incredible, unlike Niesen and Al-Bayati,
each of whom faced significant credibility challenges due to particular issues about
misrepresentation, bias or lack of objectivity, and issuing arguably premature opinions.
The juvenile court did not mischaracterize Niesen’s testimony about his certification, for
the record supports the conclusion that Niesen misrepresented himself as board certified.
The court, moreover, did not reject Niesen’s opinion on the ground that he had drafted his
report before examining Jonathan F.; the court merely observed that a witness’s
willingness to diagnose a person with a vascular condition based on a photograph alone
and without an examination raises questions of credibility. Finally, the record afforded
the juvenile court a reasonable basis both for accepting the opinions of Heger and Yashar
and for rejecting Niesen’s, a basis that the juvenile court articulated: Heger and Yashar’s
opinions were “based on records, exams, physical observation and testing,” while
Niesen’s opinion was more speculative. As we defer to the lower court on issues of
credibility of the evidence and witnesses, Natalie A.’s complaints about the juvenile
court’s credibility determinations and weighing of the evidence are unavailing. “When
an appellate court reviews a sufficiency of the evidence challenge, we may look only at
whether there is any evidence, contradicted or uncontradicted, which would support the
trier of fact’s conclusion. We must resolve all conflicts in favor of the court’s
determination, and indulge all legitimate inferences to uphold the court’s order.
Additionally, we may not substitute our deductions for those of the trier of fact.” (In re
John V., supra, 5 Cal.App.4th at p. 1212.)
J.F. and Natalie A. allege that the dependency petition’s allegations under section
300, subdivision (e) contemplated only that they knew of the abuse and failed to protect
Jonathan F. from it, not that they were the instruments of the abuse, and that because
10
there was no evidence that they knew of the abuse and failed to protect him from it, the
jurisdictional finding under this provision cannot stand. To the extent this is a challenge
to the sufficiency of the factual allegations of the petition, this argument was waived by
failing to raise it before the juvenile court. (In re Christopher C. (2002) 182 Cal.App.4th
73, 83.) To the extent that the parents contend that the language of the allegation
excludes a true finding on this allegation based on a finding that the parents abused
Jonathan F., we conclude that the allegation encompasses abuse perpetrated by the
parents. The evidence was sufficient to support the court’s findings under section 300,
subdivisions (a) and (e).
III. Removal Order
J.F., joined by Natalie A., argues that there was no basis for removal here. We
review removal orders at disposition for substantial evidence, bearing in mind the clear
and convincing evidence standard of proof at the juvenile court level. (In re Kristin H.
(1996) 46 Cal.App.4th 1635, 1654.) Substantial evidence supports the removal order.
When a child is adjudicated a dependent child of the court under section 300,
subdivision (e), the fact of the adjudication constitutes prima facie evidence that the
minor cannot be safely left in the physical custody of the parent or guardian with whom
the child resided at the time of injury. (§ 361, subd. (c)(1).) J.F. argues that he overcame
the presumption of an unsafe home by presenting evidence that Jonathan F. had been well
cared for prior to suffering his injuries; the abuse was isolated; the parents were loving,
present, and attentive to him after he was hurt; and, by the time of the dispositional
hearing, the parents had completed courses to learn how to provide care for a medically
fragile child. Neither parent, however, accepted any responsibility for Jonathan F.’s
injuries, nor did they provide any explanation as to anyone else who could have caused
them. Months after Jonathan F. was injured, Natalie A. continued to deny that anything
had happened or that anything was amiss with him despite the brain injuries having
caused him weakness on one side, blindness, and cognitive and motor delays. Natalie A.
and J.F. had not engaged in counseling, completed parenting classes, or otherwise
11
demonstrated that they had acquired the skills to prevent physical abuse of Jonathan F. in
the future. As the parents failed to demonstrate that they had addressed the issues that led
to the severe physical abuse of Jonathan F. while in their care and custody, they did not
overcome the presumption of an unsafe home set forth in section 361, subdivision (c)(1).
Substantial evidence supported the juvenile court’s decision to remove Jonathan F. from
the custody of his parents.
DISPOSITION
The judgment is affirmed.
ZELON, J.
We concur:
PERLUSS, P. J.
WOODS, J.
12