In re J.S. CA3 ( 2014 )

Filed 10/17/14 In re J.S. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Yolo)
----
In re J.S. et al., Persons Coming Under the Juvenile
Court Law.
YOLO COUNTY DEPARTMENT OF
EMPLOYMENT AND SOCIAL SERVICES, C074723
Plaintiff and Respondent, (Super. Ct. Nos. JV12441,
JV12443)
v.
Q.S.,
Defendant and Appellant.
Q.S., father of the minors J.S. and H.S., appeals from the juvenile court’s
jurisdictional and dispositional orders. (Welf. & Inst. Code, §§ 360, subd. (d), 395.)1
Father contends there was insufficient evidence to sustain the jurisdictional finding he
1 Undesignated statutory references are to the Welfare and Institutions Code.
1
intentionally caused the death of his child, S.S. He further contends there was
insufficient evidence to support the juvenile court’s orders removing the children from
his custody, denying him reunification services, and decreasing his visitation.
We conclude the juvenile court’s jurisdictional finding, that father intentionally
inflicted S.S.’s fatal injuries, is supported by substantial evidence. We also conclude
substantial evidence supports the juvenile court’s orders removing the children from
father’s custody and denying father reunification services. As to visitation, we conclude
father has forfeited this contention. Accordingly, we affirm the juvenile court’s orders.
BACKGROUND
Petition/Detention
On October 9, 2012, the Yolo County Department of Employment and Social
Services (Department) filed petitions for J.S. born 2010 and H.S. born July 2012, alleging
both children were at risk of abuse or neglect because of injuries suffered by their sibling
S.S. also born July 2012, allegedly caused by one or both of the children’s parents.2 The
following day the children were removed from the parents and later placed with their
maternal grandparents.
On October 9, 2012, S.S. died in the hospital. The Department then amended the
petitions to allege the surviving siblings, J.S. and H.S., were at risk because the children’s
parents caused the death of S.S. (§ 300, subd. (f).)
In March 2013, the Yolo County Sheriff/Coroner’s Office completed the autopsy
report on S.S.’s death. The manner of death was determined to be homicide, caused by
“severe traumatic brain injury and bilateral neuro-ocular injury (acute and chronic)”
described as “recurrent brain injuries.”
2 H.S. and S.S. were twins.
2
The petitions were amended a third time in April 2013 to include an advisory that
the Department would rely on section 355.1, subdivision (a), to establish jurisdiction.
Contested Jurisdictional Hearing
The contested hearing on jurisdiction began April 29, 2013, and lasted seven days.
The following evidence was admitted at that hearing:
A.
Father’s Testimony
On September 5, 2012, father returned home from work around 5:00 p.m.
Approximately 30 minutes later, mother left for her job coaching soccer. After mother
left, father set a sleeping S.S. in the middle of their king-sized bed, toward the middle, on
his back. H.S. was buckled in a swing. J.S. was walking between the living room and his
bedroom, about five steps from the parents’ bedroom, playing. Father testified J.S. would
often hug the twins and try to pick them up.
According to father’s testimony, after he set S.S. down on the bed, he went to the
front porch and took a stroller to the garage. When he returned to the master bedroom, he
found S.S. face down on the hardwood bedroom floor. When father picked up S.S., he
was limp and his breathing sounded more like “humming.” Father held S.S. and rocked
him but S.S. remained limp. Father testified S.S. opened his eyes and moved a bit, but
was not crying and did not make any noise.
Father then called mother. He told mother S.S. fell, he was worried, and she
should hurry home. Father returned to watching S.S., and according to father, S.S.
eventually began to breathe and move more normally. As he walked around with S.S.,
father said he saw J.S., whose speech development was delayed and who was not yet able
to speak, standing in the corner of his room doing nothing.
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Mother soon arrived home. She took S.S. from father and examined him.
According to father, by then S.S. was better but still did not appear “normal.” He was not
alert and was crying “softly.” J.S. was still in his room; H.S. was still in the swing.
Mother and father took S.S. to the closest emergency room, approximately 20 minutes
away.
When they arrived at the emergency room, father carried S.S. inside in his car seat.
S.S. was awake, more alert, and not crying. Father told the intake person S.S. had fallen
off the bed. About 30 minutes later, someone took S.S.’s vital signs and weighed him.
Father and S.S. continued to wait for a doctor but nurses continued to check in, saying
everything looked good. Eventually, a doctor examined S.S. and told father S.S. was
“okay” and sent the family home without further testing.
Around 5:00 a.m. the following day, S.S. vomited most, if not all, of the bottle
father fed to him. Father went back to bed. When he awoke, mother told him she fed
S.S. again and he vomited again. In the following days, S.S. continued to vomit after
eating. On September 7, 2012, mother and father e-mailed S.S.’s pediatrician (Dr. Otani)
with their concerns. That day, father took S.S. to Dr. Villalobos, who was recommended
by Dr. Otani.
Father told Dr. Villalobos about the fall and the projectile vomiting since the fall.
While Dr. Villalobos observed father feeding S.S., S.S. did not vomit. Dr. Villalobos
suggested the vomiting might be a result of overfeeding S.S., or maybe he had a virus
that was causing stomach problems. Dr. Villalobos discussed doing a CAT scan on S.S.
and consulted with an off-site neurologist, but ultimately Dr. Villalobos recommended
against the scan. She and the neurologist were concerned about exposing S.S. to the
radiation because “with the symptoms that we’re seeing, [the neurologist] didn’t believe
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one needed to be done.” She sent father and S.S. home, and recommended the parents
feed him less and make sure he was sitting up when they fed him.
S.S. continued to vomit after eating. On September 11, 2012, father e-mailed Dr.
Otani because S.S. became unusually upset while he and mother were changing his
diaper and then went limp. Father described S.S.’s condition as similar to when father
found him on the floor six days earlier. According to father, S.S. would “flop” over when
held, he was unresponsive and did not make eye contact, and his breathing sounded more
like “humming.” This “episode” lasted about five minutes.
Dr. Otani responded to father’s e-mail the following day. Dr. Otani characterized
S.S.’s behavior as a “coping mechanism” for kids who get really upset. Father and
mother continued to e-mail back and forth with Dr. Otani to try to determine why S.S.’s
symptoms were occurring and what could be done to stop the symptoms. At that time,
Dr. Otani did not recommend a CAT scan or EEG for S.S. After that day, S.S.’s
vomiting decreased and he did not have another episode of “limpness” until October 3,
2012.
On October 3, 2012, father left for work without feeding either twin. Father
returned home around 5:00 p.m. and mother left for soccer practice. Around 6:00 p.m.,
father fed S.S., swaddled him, then put S.S. in the swing after S.S. fell asleep.
Approximately one hour later, father checked on S.S. and saw S.S.’s head was hanging
off to the side and his breathing sounded like humming. Father took S.S. out of the
swing, massaged his legs and arms, and patted him on the back for about five minutes.
S.S. did not respond. Father continued to hold S.S., who remained unresponsive, and
called 911. Father called mother as soon as S.S. was taken to the emergency room.
Father rode in the ambulance with S.S. and did not see him regain consciousness. S.S.
died six days later on October 9, 2012.
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B.
Mother’s Testimony
Mother’s testimony was consistent with father’s: she left the family home to
coach soccer around 5:00 p.m. on September 5, 2012, and no one was home with the
children other than father. Father called her around 7:45 p.m. He was “scared.” Father
told mother he found S.S. face down on their bedroom floor.
When mother got home, she found father holding S.S. in a blanket. She took S.S.
from father and looked him over. He appeared conscious. She saw no blood or
“anything” but observed S.S. was “kind of whimpering” and breathing “a little different.”
Mother did not see S.S. lose consciousness, but father told her S.S. was “out of sorts” for
three to five minutes after the fall. After consulting with their firefighter neighbor, father
took S.S. to the emergency room. Mother stayed in contact with father while he was in
the emergency room with S.S. To the best of her recollection, they returned home around
9:15 p.m.
Mother testified father later explained he did not know what had happened to S.S.
before father found him on the floor. Father thought J.S. might have gone into the
bedroom, climbed up onto the bed, and pulled S.S. to the floor -- three feet below.
Mother remembered seeing J.S. pull himself up onto their bed before September 12,
2012. She also described a bench at the foot of their bed, which J.S. also could have used
to climb onto the bed.
Mother confirmed father’s testimony that on September 6, 2012, S.S. began
projectile vomiting, so they contacted Dr. Otani, who suggested they see Dr. Villalobos
because Dr. Otani was unavailable. Mother also testified Dr. Villalobos believed the
vomiting was a stomach issue, not related to the fall, and no testing was ordered. S.S.’s
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vomiting decreased and both parents stayed in contact with physicians. A follow-up
appointment was scheduled on September 10, 2012.
On September 10, 2012, S.S. received immunizations. Mother was warned S.S.
would be irritable and more tired for the next couple of days. On the following day, S.S.
went limp while mother and father were changing his diaper. Mother remembered they
contacted Dr. Otani and described S.S.’s symptoms, but Dr. Otani reassured them S.S.
was okay and did not order any tests. Mother expressed her concern to Dr. Otani that
S.S. was not tracking with his eyes. Dr. Otani told her not to compare S.S. with his twin
brother H.S.
Mother also testified J.S. was loving toward his twin brothers and tried to
“engage” them. She described how J.S. would often try to lift one of the twins, but
mother or father would intervene and make J.S. sit down while they helped him hold his
brothers. J.S. was a typical two year old who was not rough with his brothers, but not
able to “gauge” his behavior.
Mother described herself and father as “even keel.” Their relationship was
“great,” and she had never seen father act violently or aggressively toward any of their
children. She viewed theirs as a family without problems.
C.
Medical Testimony Presented by the Department
1. Dr. Kevin Coulter
The juvenile court found Dr. Coulter qualified as an expert on issues related to the
diagnosis or finding of physical child abuse. He testified that on October 3, 2012, S.S.
was transferred from Woodland hospital to the University of California at Davis Medical
Center (UCDMC). Tests and clinical observations at UCDMC showed S.S., who was not
responding normally to stimulation, had suffered a head injury and was having
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uncontrollable seizures. Testing showed fluid collected around S.S.’s brain. The blood
accumulating around S.S.’s brain was of varying ages: some of the blood had
accumulated within three to seven days prior to admission and some of the blood was at
least two weeks old.
In Dr. Coulter’s expert opinion, the acute blood found in S.S.’s brain could not
have been directly caused by the fall that occurred a month prior. He also said it would
be unusual to suffer the bilateral subdural hematomas found in S.S.’s brain by falling
from a bed. He acknowledged he had seen such injuries from a fall, but typically the
child’s injuries were not as bad as S.S.’s injuries. Dr. Coulter also acknowledged such an
injury could produce “re-bleeds” in the brain, but in his opinion, S.S.’s injuries were not
“re-bleeds.” Dr. Coulter characterized the bleeding in S.S.’s brain as “lots of bleeding all
over, and in association with an abrupt, extremely abrupt onset of . . . symptoms that
were rapidly worsening.”
Dr. Coulter also testified X-rays performed at UCDMC revealed bilateral,
posterial rib fractures that, in his opinion, “carry with them significant specificity for
child abuse, particularly in infants.” The rib fractures were healing but were difficult to
date. After consulting with a cardiologist, Dr. Coulter estimated the fractures were about
one to three weeks old. He opined it would be “very unusual” for these types of fractures
to occur in a fall. Dr. Coulter testified the general consensus was that head injuries with
this type of subdural bleeding, accompanied by these types of rib fractures, were the
result of squeezing and compressing forces. He also said it would be highly unusual for
these rib fractures to have been caused by J.S. falling on top of S.S. after S.S. fell off the
bed, particularly because the fractures were bilateral.
Dr. Coulter also testified S.S. had retinal hemorrhages when he arrived at
UCDMC on October 3, 2012. A formal evaluation of S.S., done four days later, revealed
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S.S. had extensive retinal hemorrhaging in both eyes, involving “multiple layers of the
retina.” Dr. Coulter opined the hemorrhaging could have been caused by the brain bleed
but said such extensive hemorrhaging, affecting multiple layers of the retina, would not
typically be caused by a brain bleed. The current thinking on such eye injuries, he
testified, is that they occur during acceleration/deceleration movements that pull on the
retina. In his expert opinion, S.S.’s injuries were intentionally inflicted.
On cross-examination, Dr. Coulter acknowledged S.S.’s behavior after
September 5, 2012, was consistent with a child suffering an acute brain bleed. He also
acknowledged he initially informed law enforcement officers S.S.’s rib fractures were
caused by his brother falling on him and there were documented cases of fatal impact
injuries caused by subdural hematomas. He further acknowledged there were studies that
showed retinal hemorrhaging and subdural bleeding occurring from a “crush” injury.
Dr. Coulter agreed it was unusual S.S. could be shaken so violently but have no
resulting neck injury. He also agreed a good deal of research showed bleeding can
accumulate over time and cause a pressure effect, and acknowledged S.S.’s head had
grown from the 28th percentile in July 2012 to the 60th percentile in September 2012.
However, in Dr. Coulter’s opinion, S.S.’s injuries occurred because S.S. was grabbed by
the rib cage and shaken so violently it fractured his ribs and resulted in numerous head
injuries.
2. Dr. Ikechi Ogan
The juvenile court found Dr. Ogan qualified as an expert on issues related to
forensic pathology. Dr. Ogan also conducted part of the autopsy on S.S. on October 11,
2012. S.S.’s autopsy revealed two small contusions on S.S.’s forehead. Two other, much
smaller, injuries were found inside S.S.’s scalp. Dr. Ogan opined these injuries were
caused by some degree of impact to S.S.’s head at these points. He noted the injuries
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were between 72 hours to five days old at the time of the autopsy. Dr. Ogan also
confirmed S.S. had two rib fractures, both in the healing phase, though he could not date
the fractures without additional examination and evaluation.
Dr. Ogan further testified a different pathologist performed a specific examination
of S.S.’s brain. Dr. Ogan did, however, observe there was a large amount of different-
aged blood inside S.S.’s skull. The older blood was at least two weeks old at the time of
the autopsy and had stained the brain, the skull, and the subdural surface. Dr. Ogan also
noted there had been bleeding into the optic nerve, bleeding that he attributed to trauma.
In Dr. Ogan’s opinion, S.S.’s death was the result of a severe traumatic brain injury and
bilateral neuro-ocular injury that was acute, chronic, and recurrent. In his opinion,
because of the numerous and varying injuries S.S. suffered, the fatal injuries could not
have been caused by a fall a month earlier.
On cross-examination, Dr. Ogan agreed S.S.’s head injuries, which were the result
of blunt force trauma, could have been caused by a fall, as well as by violently shaking
S.S. He also testified that if a child was shaken violently back and forth, the pivot point
would be the child’s neck and S.S. had no neck injuries. He opined S.S.’s head growth
around September 2012 was due to bleeding into his head during that time.
3. Dr. Bennet Omalu
Dr. Omalu performed the autopsy on S.S.’s brain. The juvenile court qualified
him as an expert on issues related to forensic pathology and neuropathology. In his
expert opinion, S.S. suffered a traumatic brain injury. Dr. Omalu described S.S.’s brain
as “markedly swollen with large amounts of water on the brain.” He also found
contusions in the “front of the lobes and temporal ports indicating trauma, blunt force
trauma and in addition to bilateral subdural hemorrhages and interhemispheric
hemorrhages.”
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Dr. Omalu described a “pattern of constellation of multiple traumas” in S.S.’s
brain. He noted an “axon” had been “sheared, . . . torn apart,” resulting in multifocal
“spheroids,” from which the only conclusion could be S.S.’s traumatic brain injury was a
severe acceleration/deceleration injury. Moreover, he found, S.S.’s brain “showed
evidence of bilateral subdural hemorrhages in the optic nerves and bilateral retinal
hemorrhages on both sides accompanying b[i]retinal detachment.” This type of retinal
hemorrhaging is “strongly indicative of physical injury, traumatic injury.”
In his opinion, the types of injuries suffered by S.S. were caused by a sudden
change in movement that caused the brain to bounce up and down inside the skull “in an
oscillatory fashion.” Dr. Omalu described S.S.’s injuries as “severe” and “traumatic . . . ,
the highest class of traumatic.” In his opinion, these injuries were unlikely to be caused
by a fall from three feet onto a hardwood floor, though he could not be absolutely certain
because “medicine is not an absolute science.”
On cross-examination, Dr. Omalu opined the injuries to S.S.’s brain could not
have been inflicted a month before he was admitted to the hospital because: (1) it was
medically impossible for such massive brain swelling to be present for a month and (2)
the injuries to S.S.’s eyes were “acute” and, in his opinion, had to have occurred just
before S.S. was admitted to the hospital.
D.
Medical Testimony Presented by Father
Dr. John Plunkett testified on father’s behalf as an expert on issues regarding
forensic pathology in general and forensic pathology as it relates to infant injury
evaluation. Dr. Plunkett described several medical studies and concluded there was no
scientific evidence one could shake an infant to the point of injuring the infant’s brain
without also injuring the child’s neck. He also cited a study that concluded if a person
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were to shake an infant to the point of brain damage, it would “almost literally decapitate
that infant.” Dr. Plunkett cited other medical studies that concluded retinal folds and
tears can be caused by crushing injuries or accidental injuries.
In addition to the studies cited above, Dr. Plunkett described a case study where an
infant died three days after a short fall from a bed, and another where an infant fell down
a flight of stairs and suffered a fatal and acute head injury that included detached retinas.
He also opined S.S.’s retinal detachment was not a result of being shaken, but a “post-
mortem artifact” caused by the autopsy. In his opinion, S.S.’s injuries were the result of
an “impact.”
Dr. Plunkett also noted that “radiographic and autopsy findings,” as well as the
lack of any visible acute injury, indicated S.S.’s injuries occurred three to four weeks
prior to his admission to the hospital. He said rib fractures in infants were more common
than people believed, and S.S.’s could have been the result of something that happened
before September 2012, even as far back as S.S.’s birth. He also testified S.S. had a
Vitamin D insufficiency, which would delay healing and further complicated dating the
injuries.
Dr. Plunkett also observed the bleeding in S.S.’s brain included a large volume of
chronic bleeding, which would have taken three to four weeks to develop. Moreover,
based on his review of S.S.’s medical records, much of the blood surrounding S.S.’s brain
was old blood, blood that was three or four weeks old. The new blood, in his opinion,
was the result of new blood vessels that formed in the original “hematoma,” that can
rupture and bleed, causing a subdural hematoma to develop. Such new blood offered no
help in dating S.S.’s injuries because they were secondary to the original injury. On the
other hand, Dr. Plunkett also noted that, in his opinion, the image studies demonstrated
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the natural history of a chronic subdural hematoma, which, when sufficiently large, will
cause irritability and vomiting.
Dr. Plunkett also disagreed with the Department’s expert testimony. He disagreed
with Dr. Ogan’s method for measuring the blood in S.S.’s brain. He also criticized Dr.
Omalu’s conclusion the “cortical vein thrombosis” was evidence S.S. had bruises on the
surface of his brain. In Dr. Plunkett’s opinion, what Dr. Omalu saw as bruises were
actually “venous infarcts” or “thrombose blood vessels.” In Dr. Plunkett’s opinion, this
was further evidence S.S.’s injuries were weeks old and healing. Dr. Plunkett agreed
with Dr. Omalu’s conclusion S.S. had axonal injuries that were “sparse.” However, in
Dr. Plunkett’s opinion, the distribution of axonal injuries was caused by a lack of oxygen,
not trauma.
Based on his experience and his review of S.S.’s records, in Dr. Plunkett’s
opinion, S.S.’s injuries could have been caused by a fall off the bed. Such a fall would
have resulted in a small brain bleed, which expands over time. He himself had seen
around 50 cases of infants with a “chronic subdural hematoma” that remained
asymptomatic for up to four months after the injury was sustained. In his opinion, the
medical data showed S.S. suffered his injuries on September 5, 2012, and those injuries
resulted in the intractable seizures on October 3, 2012. Ultimately, S.S. died as a result
of those seizures. In conclusion, he opined, “there is really no evidence that anything
other than an accidental fall on September 5 caused [S.S.’s] death.”
E.
Character Testimony
Several witnesses testified on behalf of father, saying he was an even-tempered,
loving parent, a man who found parenting to be “a pleasure . . . not a task,” and the kind
of man who should be a parent. Father was described by at least one witness as “very
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patient, very calm, very attentive, [and] very fun loving,” and those traits did not change
after the twins were born. Another witness described him as a caring, compassionate,
“amazing person.” Another witness, who was a regular visitor in the family’s home, said
she never saw bruises or injuries on any of the children; there was never any indication
the children were being neglected or abused.
Mother’s sister described both mother and father as calm and patient parents. In
the 15 years she had known father, she had never seen him act aggressively. She
described S.S. as a sweet baby who was not “colicky,” and she remembered seeing J.S.
get up on the parents’ bed by climbing on a bench at the foot of the bed.
Mother’s sister confirmed that after September 5, 2012, S.S. had to be fed more
often because he was not keeping his food down, and she had personally seen him vomit
on two occasions. She noticed S.S.’s eyes were not “tracking.” She also noticed mother
and father were more solicitous of S.S. after September 5, 2012, because of his ongoing
symptoms.
Witnesses also testified there was no apparent conflict between father and mother,
they were a happy family, and father’s reputation in the community did not include a
reputation for aggression or impulsiveness. People were known to regularly just drop in
on the family to visit, often without advance notice, and the parents’ family members
were frequently in and out of the family’s home.
Jaclyn Garton, the case social worker, testified an exam of S.S.’s siblings, H.S.
and J.S., revealed no signs of either child being abused. She also testified that other than
S.S.’s injuries and ultimate death, there was no evidence either H.S. or J.S. was at risk in
their parents’ care. According to Garton, the Department had no medical concerns
regarding either H.S. or J.S. Moreover, after extensive interviews with friends and
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family, the Department found nothing “definitive” to suggest either parent had a motive
to harm S.S.
F.
Social Worker Testimony
In the jurisdiction report, Garton noted that during the investigation, father
responded, “So the first time I did it was do you want an exact date” to the detective’s
question about when he first saw S.S. go limp. (Italics added.) When questioned, Garton
stated she spoke with the detective but had not actually listened to father’s interview with
the detective. She agreed there were other interpretations of the statement father made
that would not be an admission of guilt. In addition, Garton testified that based on
psychological testing and examination of father, it was an “extremely low probability” he
would on multiple occasions inflict injury on his children.
Garton also agreed father and mother relied on medical advice that, after S.S. was
found on the bedroom floor, he was fine and needed no further tests. In conclusion,
Garton testified if S.S.’s death was determined to be accidental, the Department would
return the children to both parents and dismiss the petition.
G.
Closing Arguments
In closing, the Department argued that, as shown by the evidence, S.S. suffered
from “bilateral subdural hematomas, brain damage, bilateral hemorrhaging of the retinas,
detachment of the retinas, and rib fractures.” According to the Department’s experts, the
injuries could not have been caused by a re-bleed, nor could they have been caused by
intracranial pressure. Rather, according to the Department’s experts, these injuries were
most likely caused by abusive head trauma -- not a fall from the bed. Accordingly, the
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Department met its burden of showing by a preponderance of the evidence S.S. was
injured by nonaccidental means, and thus H.S. and J.S. were at risk in their parents’ care.
In closing, father relied on Dr. Plunkett’s testimony to discredit the Department’s
experts. Father argued that, according to Dr. Plunkett, modern science rejects the notion
this particular combination of brain injuries can be caused only by shaking a baby, and
certainly not without also injuring the child’s neck. Father argued that physics rendered
such a result impossible. According to father, current research suggests such a
combination of injuries can also be caused by an accidental fall and the Department’s
experts simply chose to ignore more current information.
Moreover, father argued, 10 witnesses described father and mother as parents
devoted to their children and who love their children. There was no evidence father had
any motive to harm S.S., or that he would harm H.S. or J.S. Father argued the more
reasonable interpretation of the evidence was that somehow J.S. pulled S.S. off the bed
on September 5, 2012, and that fall caused the injuries that ultimately resulted in S.S.’s
death. It was far less reasonable to infer father had violently shaken S.S.
H.
Jurisdictional Findings and Orders
In issuing its decision, the juvenile court took a “step back” from the detailed
medical evidence. The court found the fundamental question to be: “[H]ow did [S.S.]
suffer his fatal injuries?” The court also offered only three possible scenarios to answer
that question: (1) two-month-old S.S., somehow managed to roll himself off of the bed;
(2) someone else accidentally caused S.S. to fall off of the bed; or (3) the injuries were
intentionally inflicted.
The court rejected the first scenario because S.S. causing himself to fall off the bed
was a virtual impossibility. The court also rejected the second scenario as “illogical.”
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The court found the possibility father accidentally caused S.S. to fall off the bed was not
supported by any evidence. Furthermore, the court found the theory that J.S. could have
pulled S.S. from the bed to the floor “preposterous.”
According to the court, “[i]t is simply not physically possible for J.S. to leave his
room or the living room, wherever he was at the time that [father] exited the bedroom, go
in to the master bedroom where S.S. was sleeping, climb up on the bench, climb up on
the bed, and then carry or roll or push S.S. to the edge of the bed, drop him to the floor,
fall on top of him, and then return to his room.
“The fact that [S.S.] was asleep at the time that [father] left the bedroom means
that there wasn’t even any reason why [J.S.] would have occasion to enter the master
bedroom. It is not like he had a younger brother who was active and maybe could be
seen as a play thing, the baby is asleep.
“I find this theory, this suggestion is physically impossible, and if not that at the
very least illogical.”
Moreover, the juvenile court found Dr. Plunkett’s theory, that S.S. could have
suffered his injuries in a fall, was not supported by the evidence because Dr. Plunkett
could not explain the rib fractures. Because Dr. Plunkett’s theory did not explain all of
S.S.’s injuries and there was no reasonable interpretation of the evidence that resulted in
S.S. falling from the bed, the court was not persuaded S.S.’s injuries were caused by a
fall from the bed.
The court thus concluded the only reasonable explanation for S.S.’s injuries, based
on the evidence admitted, was that they were intentionally inflicted. The court looked at
the evidence of S.S.’s numerous injuries and agreed with the Department’s experts that
the only conclusion to be reached was that the injuries were intentionally inflicted.
Furthermore, the only person “who had the ability” to inflict those injuries was father.
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Accordingly, the court ruled the evidence established father intentionally injured S.S., not
only by a preponderance of the evidence, but by clear and convincing evidence.
The juvenile court thus sustained the allegations in the petition, except the court
found mother had not failed to do everything she could to care for all three children. The
court thus modified the prior order for visitation and permitted mother to move in with
the maternal grandmother, where the children were placed. The court further modified
the prior order for visitation, over father’s objection, and reduced father’s time with the
children to twice-weekly visits at the supervising agency. The court set the disposition
hearing for May 22, 2013.
I.
Dispositional Findings and Orders
In its disposition report, the Department recommended father be denied
reunification services because he “caused the death of another child through abuse or
neglect.”3 (§ 361.5, subd. (b)(4).) In recommending father be bypassed for services, the
Department noted father remained “adamant” he did not cause S.S.’s death. Accordingly,
the Department concluded, reunification services to father would place H.S. and J.S. at
risk for abuse or neglect.
At the contested disposition hearing, father presented the testimony of Dr. Donald
Siggins, who performed a bonding study on father, H.S., and J.S. Dr. Siggins concluded,
based on his study, both children were very attached to father -- especially J.S. Dr.
Siggins opined that if the children were not reunified with father, the psychological cost
3 The Department initially recommended mother be bypassed for services as well,
noting she continued to “stand by” father and the two of them continue to “perpetuate a
lie.” The Department later changed its position with respect to mother and recommended
she receive reunification services.
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would be high, particularly for J.S. H.S., he testified, would be able to forget father, but
his self-esteem would be affected. J.S. on the other hand, would be at risk “of lifelong
psychological problems.” Dr. Siggins noted J.S.’s health had been in decline since the
reduction in visitation with father and opined his health would only improve if father’s
visitation was greatly increased.
The maternal grandmother also testified J.S. was “confused” by his father’s
absence, sometimes becoming “distressed.”
The Department offered testimony through social worker Kathleen Clemons who,
among other things, testified, as far as she knew, no one from the Department had spoken
with father to discuss the matter with him.
Father argued the only evidence admitted at the hearing was that the children were
suffering from limited contact with father and would suffer further without reunification.
Father further argued the Department conducted no investigation into whether father
should be offered services, relying instead on its speculation about the parents’ views on
what happened to S.S. The children’s counsel agreed father should be offered
reunification services because it would be in the children’s best interests.
The juvenile court subsequently ordered family maintenance services for mother,
with whom the children were already living. The court, however, denied reunification
services for father. The court found this was not a “rare” case where services should be
offered despite the finding father caused the death of another child. The court
acknowledged J.S. and H.S. would suffer at the termination of services for father, but
stated it was the court’s obligation to ensure the children were physically protected.
From the court’s perspective, “as long as [father’s] position remains one of denial for his
responsibility in [S.S.]’s death, there is no way that he could possibly convince me that
the boys could be protected.” The court thus denied reunification services and asked the
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Department to recommend whether visitation should be terminated, reduced, or continued
under specified circumstances.
Father was subsequently arrested and incarcerated. The Department
recommended father receive no visits with the children until he was released from jail.
After he was released, father requested visitation with the children three times a week at
the maternal grandmother’s home. The children’s counsel was in agreement. The
Department, however, asked that the order for visitation be reduced to two-hour visits,
twice weekly. The court ordered visits as requested by the Department. Mother’s
counsel argued the reduced visitation was harmful to the children. The court then
modified its order, further reducing father’s visitation to four hours weekly, every other
week; father would have two hours weekly on the alternate weeks.
DISCUSSION
A.
The Jurisdictional Findings and Orders
Father contends there was insufficient evidence to support the juvenile court’s
finding he intentionally caused S.S.’s death. In support of his contention, father argues
the court reached its finding “by disregarding any evidence about [father’s] intentions or
motivations, and assuming time and motion analysis that was not presented by any party
and could not be rationally inferred from the time or distances involved, absent
competent testimony on the issue.” We are not persuaded by father’s argument and
conclude there was sufficient evidence to support the jurisdictional findings.4
4 We agree the juvenile court did not make the predicate finding that the injuries
suffered by S.S. were the type that could not have been caused except by the parent.
(§ 355.1.) Accordingly, there can be no presumption under section 355.1 that father
caused the injuries that resulted in S.S.’s death.
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“At the jurisdictional hearing, the court determines whether the minor falls within
any of the categories specified in section 300. [Citation.] ‘ “The petitioner in a
dependency proceeding must prove by a preponderance of the evidence that the child . . .
comes under the juvenile court’s jurisdiction.” ’ [Citation.] On appeal from an order
making jurisdictional findings, we must uphold the court’s findings unless, after
reviewing the entire record and resolving all conflicts in favor of the respondent and
drawing all reasonable inferences in support of the judgment, we determine there is no
substantial evidence to support the findings. [Citation.] Substantial evidence is evidence
that is reasonable, credible, and of solid value. [Citation.]” (In re Veronica G. (2007)
157 Cal. App. 4th 179, 185.) If two reasonable inferences are to be drawn from the
evidence, one that supports the juvenile court’s decision and one that does not, the
reviewing court must rely on the first inference. (In re Misako R. (1991) 2 Cal. App. 4th
538, 545 (Misako).)
Here, there was credible expert evidence regarding the cause of S.S.’s injuries and
his death. The Department’s experts opined S.S.’s death could be caused only by shaking
S.S. violently. Father’s expert opined that was a physical impossibility and the more
likely scenario was S.S. was injured falling from his parents’ bed. The juvenile court
found the Department’s expert testimony better explained S.S.’s injuries. On appeal, we
cannot decide the alternate theory offered by father, that S.S. was injured in a fall, is the
more reasonable explanation. (Misako R., supra, 2 Cal.App.4th at p. 545.)
Moreover, the juvenile court found father’s theory J.S. somehow pulled S.S. from
the bed to be “preposterous.” Father now argues this finding is a “combination of [the
court’s] own assumptions, unsupported by evidence, or own presumptions about young
children, which [father] suggests are contrary to the common experience of most parents
and the percipient testimony of actual witnesses.” We disagree.
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First, there was no “percipient testimony of actual witnesses” regarding the cause
of S.S.’s injuries. Father testified he did not see what happened to S.S. on September 5,
2012. Although mother testified she had previously seen J.S. climb onto his parents’ bed
and, in other situations, try to lift his brother, there is no evidence J.S. climbed on the bed
or lifted his brother on September 5, 2012. And J.S. did not testify; he was not able to
speak due to delayed speech development.
Second, the juvenile court’s findings are supported by the evidence. The juvenile
court was aware J.S. was two-and-a-half years old, heard testimony about where J.S. was
in relation to the master bedroom, and heard father’s testimony he was outside for only as
long as it took to move a stroller from the front porch to the garage. It is not
unreasonable for the court to infer from this evidence it was physically impossible for J.S.
to go into the master bedroom, climb on the bench, climb on the bed, push or pull S.S. to
the floor, fall on top of S.S. (cracking his ribs), then walk back into his own bedroom
before father returned. Contrary to father’s claim on appeal, this evidence is sufficient to
support the juvenile court’s conclusion, particularly when the court already had
concluded S.S.’s injuries could not have been caused by a fall from the bed.
We conclude the juvenile court’s jurisdictional finding, that father intentionally
inflicted S.S.’s fatal injuries, is supported by sufficient evidence.
B.
The Dispositional Findings and Orders
Father contends substantial evidence did not support the juvenile court’s orders to
remove the surviving siblings from father’s custody, bypass reunification services for
father, and ultimately reduce father’s visitation with H.S. and J.S.
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1. Substantial Evidence Supports Removal
“A removal order is proper if based on proof of parental inability to provide proper
care for the child and proof of a potential detriment to the child if he or she remains with
the parent. [Citation.] ‘The parent need not be dangerous and the minor need not have
been actually harmed before removal is appropriate.’ [Citation.] There must be clear and
convincing evidence that removal is the only way to protect the child.” (In re N.M.
(2011) 197 Cal. App. 4th 159, 170.)
Here, the juvenile court found, by clear and convincing evidence, father
intentionally inflicted the injuries that caused the death of H.S. and J.S.’s sibling, S.S. By
the time of the disposition hearing, father continued refusing to take responsibility for
S.S.’s death and refused to discuss with the Department the circumstances surrounding
S.S.’s injuries and death. There is, therefore, sufficient evidence to support the juvenile
court’s finding that “as long as [father’s] position remains one of denial for his
responsibility in S.S.’s death, there is no way that he could possibly convince me that the
boys could be protected.” We conclude there was sufficient evidence supporting the
juvenile court’s decision to remove H.S. and J.S. from father’s care.
2. Substantial Evidence Supports Denial of Services
Reunification services are normally offered to parents whose children are removed
from their custody to eliminate the conditions leading to removal and to further the goal
of preserving the family whenever possible. (§ 361.5, subd. (a); In re Baby Boy H.
(1998) 63 Cal. App. 4th 470, 478.) However, the juvenile court need not offer
reunification services if clear and convincing evidence shows conditions exist that would
make it futile or detrimental to the minors to attempt reunification. (§ 361.5, subds.
(b)(2)-(15), (e)(1); In re T.M. (2009) 175 Cal. App. 4th 1166, 1171-1172.) Even where
grounds exist to bypass services under section 361.5, subdivision (b), the court may offer
23
services if it finds by clear and convincing evidence reunification is in the children’s best
interests. (§ 361.5, subd. (c).)
We review an order denying reunification services for substantial evidence.
(R.T. v. Superior Court (2012) 202 Cal. App. 4th 908, 914; Sheila S. v. Superior Court
(2000) 84 Cal. App. 4th 872, 880.)
Under section 361.5, subdivision (b)(4), the juvenile court may deny reunification
services to a parent who has caused the death of another child. As discussed above, the
juvenile court found father intentionally caused the death of H.S. and J.S.’s sibling, S.S.
In order to receive reunification services at the disposition hearing, it was father’s burden
to prove by clear and convincing evidence reunification would be in the children’s best
interests. (§ 361, subd. (c).) Father did not meet his burden.
In the disposition report, the Department found father did not accept responsibility
for causing S.S.’s injuries and, ultimately, his death. The parents were unwilling to
discuss the events surrounding S.S.’s death with the Department.5 Father offered
testimony, including expert testimony, that his failure to reunify with H.S. and J.S. would
cause both children psychological harm to varying degrees. The juvenile court
acknowledged this harm. The court nevertheless found that until father took
responsibility for causing S.S.’s death, the risk of physical harm to H.S. and J.S. was too
great; and concluded reunification was not in the children’s best interests.
5 In his reply brief, father argues the disposition report is insufficient evidence for
the removal order because it was based on father’s denial of responsibility for S.S.’s
death and the social worker did not interview father about his son’s death. However, the
lack of an interview with father does not mean the report is based on speculation. Rather,
based on father’s refusal to discuss his son’s death, it is reasonable to infer he was not
taking responsibility.
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On this record, we conclude the juvenile court’s decision to deny reunification
services is supported by substantial evidence.
3. Reduction in Visitation
In his opening brief, father asserts the juvenile court abused its discretion in
reducing father’s visitation. Father does not present any argument to support this claim,
instead limiting his arguments to removal and bypass of services. Accordingly, the claim
is forfeited. (People v. Hardy (1992) 2 Cal. 4th 86, 150 [a reviewing court need not
address any issue purportedly raised without argument or citation to relevant authority].)
DISPOSITION
The orders of the juvenile court are affirmed.
HOCH , J.
We concur:
BLEASE , Acting P. J.
NICHOLSON , J.
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