In re J.R. CA4/1 ( 2014 )

Filed 1/15/14 In re J.R. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re J.R., a Person Coming Under the
Juvenile Court Law.
D064189
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. NJ014746)
Plaintiff and Respondent,
v.
MARIA R.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Michael J.
Imhoff, Commissioner. Affirmed.
Valerie N. Lankford, under appointment by the Court of Appeal, for Defendant
and Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, and Patrice Plattner-Grainger, Deputy County Counsel, for Plaintiff and
Respondent.
Jamie A. Moran, under appointment by the Court of Appeal, for Minor.
Maria R. appeals the juvenile court's order placing her minor son, J., with his
father, William S., and terminating the court's jurisdiction after a contested disposition
hearing. Maria complains the evidence was insufficient to support the court's
jurisdictional finding that she inflicted severe physical abuse on J. We affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
The San Diego County Health and Human Services Agency (the Agency) filed
a petition in the juvenile court on behalf of then-four-month-old J. under Welfare and
Institutions Code section 300, subdivision (e),1 alleging that Maria so severely
physically abused him that he suffered a skull fracture with associated hemorrhage
and multiple fractures of the long bones of his extremities. The Agency learned of
these injuries one week earlier, when Maria noticed swelling on the side of J.'s head
and took him to a hospital where a CT scan and skeletal survey were done. Because
Maria had sole custody of J. but no satisfactory explanation for the multiple fractures,
and a child abuse specialist concluded the fractures were consistent with abuse, the
Agency detained J. and placed him in a foster home.
1 Subsequent undesignated section references are to the Welfare and Institutions
Code.
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At the detention hearing, the juvenile court found, based on the social worker's
detention report, that the Agency had made a prima facie showing that J. was a person
described by section 300, subdivision (e); that continued care of J. in Maria's home was
contrary to his welfare; and that removing J. from her custody was necessary to protect
his health. The court ordered J. detained at a foster home and set the matter for contested
jurisdictional and dispositional hearings.
At the jurisdictional hearing, the Agency offered into evidence the detention
report, the jurisdiction/disposition report, and an addendum report prepared by social
workers. The juvenile court admitted the reports.
The detention report contained summaries of a social worker's interviews of
Maria, William, and J.'s babysitter, Whitney Lynd, and a telephone call with a nurse who
saw J. for a follow-up visit after his hospitalization. Maria denied causing J.'s injuries
and said she was unaware of any accidents that could have caused them. Maria said the
only other person who took care of J. was Lynd, who was babysitting J. for about two-
and-a-half months and about whom Maria had no concerns. According to Maria, when
she picked up J. at Lynd's house on the day she took him to the hospital, Lynd told her he
had been spitting up all day. Lynd, however, reported that she had cared for J. for only
about one month; and on the day Maria took him to the hospital, J. " 'was not fussy' " and
" 'slept the whole day.' " Lynd also denied J. suffered any physical trauma while under
her care. William said he chose to have limited contact with J. to avoid conflict with
Maria, whose "thyroid condition 'gives her attitude' " and who will not let William be
alone with J. William also reported that Maria is " 'rough' " with J. Finally, the nurse
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reported that Maria "was 'very disruptive' at [J.'s follow-up] visit," " 'slamming in and out
of the [examination] room . . . [and] saying "F" this and "F" that.' " The nurse described
Maria as " 'irrational and illogical' " and as " 'not able to communicate her concerns.' "
The jurisdiction/disposition report summarized a social worker's interviews of
Maria and William. Maria again denied abusing J. The only explanation she offered for
his multiple bone fractures was brittle bone disease. William described Maria as " 'crazy
as hell,' " and stated that after living with her for two months he learned she was an
"habitual liar." When the social worker asked William if he believed Maria had abused
J., William replied, " 'Hell yes I do.' " On further questioning, William reported he once
saw Maria " 'rolling [J.] over' in a 'quick and rough' manner" while she was changing
him. William also stated he learned not to question or challenge Maria on any subject in
the presence of J. "because of her propensity to escalate and 'start yelling.' "
The addendum report attached a physician's consultation report that stated that J.
did not have brittle bone disease or other metabolic bone disease. The consultation report
also stated that J. had sustained no additional fractures after he was placed in foster care.
At the jurisdictional hearing, the Agency called two physicians to testify about J.'s
injuries: Sarah Villarroel, a pediatrician certified in child abuse, and Richard Campin, a
pediatric radiologist.
Dr. Villarroel examined J. after Maria took him to the hospital for the skull
fracture and associated hemorrhage. Dr. Villarroel ordered a skeletal survey (a series of
radiographs of the bones), which revealed that the long bones of J.'s upper and lower
extremities had multiple fractures in various stages of healing. She explained that the
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type of fractures seen commonly results from "a forceful twisting or pulling of [the]
extremity." According to Dr. Villarroel, J.'s fractures were "highly specific for inflicted
injury," and she was "very certain" that J.'s injuries were "more likely than not" the result
of "nonaccidental trauma."
Dr. Campin reviewed the skeletal survey ordered by Dr. Villarroel, as well as a
follow-up survey taken two weeks later. He observed the skull fracture and multiple
fractures of the long bones of J.'s extremities in various stages of healing. In
Dr. Campin's opinion, the skull fracture occurred more recently than the fractures in J.'s
extremities; the extremity fractures occurred on at least two occasions within six weeks
of the date the follow-up survey was taken; and the extremity fractures were consistent
with "someone violently shaking [J.]"
Maria introduced testimony from a pediatric orthopedic surgeon, Thomas Grogan,
who disagreed with Drs. Villarroel and Campin. When Dr. Grogan reviewed J.'s skeletal
surveys, he observed the skull fracture and "evidence of calcification adjacent to . . . the
end[s] of the long bones" of J.'s extremities. In Dr. Grogan's opinion, however, it was
"highly unlikely those [calcifications] were fractures." Rather, they were probably
merely "projections" of the bones that resulted from the positioning of the radiographic
equipment relative to J.'s extremities when the skeletal survey was done.
After the medical experts testified, the Agency called the social worker who
interviewed Lynd. She described Lynd as "very credible." The social worker also
testified that she asked Lynd to have a skeletal survey done on her infant daughter, Lynd
did so, and the survey "came back negative."
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After receiving the evidence described above and hearing argument from counsel,
the juvenile court found the Agency proved J. was a person described by section 300,
subdivision (e). Specifically, the court found that J. suffered bone fractures on multiple
occasions and that Maria inflicted those injuries.
At a subsequent dispositional hearing at which no additional evidence was
presented, the court removed J. from Maria's custody, finding by clear and convincing
evidence that based on J.'s injuries he could not safely be left with her (§ 361,
subd. (c)(1)); granted William sole legal and physical custody of J. (§ 361.2, subds. (a),
(b)(1), (e)(1)); granted Maria supervised visitation with J. once per week (§ 361.2,
subd. (b)(1)); and terminated jurisdiction (ibid.).
II.
DISCUSSION
Maria argues the juvenile court did not have jurisdiction under section 300,
subdivision (e) because the evidence did not establish either the identity of the perpetrator
of J.'s injuries or that she knew or should have known that J. was severely injured before
she noticed his swollen head and took him to the hospital. We disagree. As we shall
explain, sufficient evidence showed that Maria inflicted J.'s injuries.
A. Standard of Review
A juvenile court's jurisdictional findings are reviewable on appeal from the
dispositional order. (In re Jennifer V. (1988) 197 Cal. App. 3d 1206, 1209.) We review
jurisdictional findings to determine whether they are supported by substantial evidence,
i.e., evidence that is reasonable, credible, and of solid value such that a reasonable trier of
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fact could make the findings. (In re E. H. (2003) 108 Cal. App. 4th 659, 669 (E. H.).) We
neither reweigh the evidence nor exercise independent judgment, but merely determine
whether sufficient facts support the findings. (In re I.J. (2013) 56 Cal. 4th 766, 773.) In
doing so, we review the whole record in the light most favorable to the findings,
resolving all conflicts and drawing all reasonable inference in support of them. (Ibid.)
B. Analysis
A child "is within the jurisdiction of the juvenile court" if "[t]he child is under the
age of five years and has suffered severe physical abuse by a parent, or by any person
known by the parent, if the parent knew or reasonably should have known that the person
was physically abusing the child. For the purposes of this subdivision, 'severe physical
abuse' means any of the following: . . . more than one act of physical abuse, each of
which causes bleeding, deep bruising, significant external or internal swelling, bone
fracture, or unconsciousness . . . ." (§ 300, subd. (e).) This language "impose[s] three
requirements on the [Agency] to establish jurisdiction under this subdivision: (1) there is
a minor under the age of five; (2) who has suffered severe physical abuse as defined in
section 300, subdivision (e); (3) by a parent or any person known to the parent if the
parent knew or reasonably should have known that the person was physically abusing the
minor." (E. H., supra, 108 Cal.App.4th at p. 668.) The Agency presented evidence
sufficient to establish each of these three requirements.
First, there is no dispute that J. "is under the age of five years." (§ 300, subd. (e).)
Separate questionnaires signed by Maria and William state that J. was born in 2012.
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Second, the Agency presented sufficient evidence that J. "suffered severe physical
abuse," which includes "more than one act of physical abuse, each of which
causes . . . bone fracture." (§ 300, subd. (e).) Dr. Villarroel testified the type of long
bone fracture J. suffered was "nonaccidental" and "highly specific for inflicted injury."
Dr. Campin testified J.'s skeletal surveys revealed multiple fractures that occurred on at
least three separate occasions and that could have been caused by violent shaking.
Although Dr. Grogan testified he saw no evidence of bone fractures on J.'s skeletal
surveys, the juvenile court expressly found "Dr. Campin's opinion [was] the more
credible on this record." On appeal, we "do not reassess the credibility of witnesses" (In
re Nada R. (2001) 89 Cal. App. 4th 1166, 1177), and "must accept the evidence most
favorable to the order as true and discard the unfavorable evidence as not having
sufficient verity to be accepted by the trier of fact" (In re Casey D. (1999) 70 Cal. App. 4th
38, 53). Under these deferential standards, the Agency's evidence was sufficient to
establish that J. suffered severe physical abuse.
Maria states in her reply brief that she "does not disagree" that "substantial
evidence supported the finding that J. sustained severe physical abuse." She suggests in
her opening brief, however, that to establish the "severe physical abuse" element of
jurisdiction under section 300, subdivision (e), the Agency also had to prove that Maria
knew or should have known that J. had been severely injured before she noticed the
swelling on his head for which she took him to the hospital. We reject this suggestion.
"The subdivision does not require the parent's actual or constructive knowledge that the
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minor in fact suffered severe physical abuse within the statutory definition." (In re
Joshua H. (1993) 13 Cal. App. 4th 1718, 1729.)
Third, the Agency presented sufficient evidence that the severe physical abuse J.
suffered was perpetrated "by a parent." (§ 300, subd. (e).) Maria told the social worker
who interviewed her that she and Lynd were the only two people who took care of J., and
Maria admitted she had no concerns about Lynd. Although Maria repeatedly denied
abusing J., she had no satisfactory explanation for how he fractured his skull or long
bones. Maria's credibility was called into question by inconsistencies between what she
and Lynd told the social worker about how long Lynd had been caring for J. and his
behavior on the day Maria took him to the hospital for the skull fracture. Further,
William, who lived with Maria for approximately two months, described her as an
"habitual liar." The social workers' reports also documented Maria's poor impulse
control. A nurse complained that during a follow-up visit after J.'s hospitalization, Maria
directed obscene language at her and " 'slamm[ed] in an out of the [examination] room.' "
William reported that Maria had a "propensity to escalate and 'start yelling' " whenever
she was questioned or challenged and that he saw her handling J. in a " 'rough' " manner.
Also significant were the facts that J. suffered no additional bone fractures after he was
removed from Maria's physical custody, and that a skeletal survey of Lynd's infant
daughter revealed no fractures. "While the evidence of parental [abuse] is in part
'circumstantial,' in the sense that there is little direct evidence of what went on in the
home before [J.] was removed from it, that does not render such evidence
insubstantial . . . ." (In re Robert J. (1982) 129 Cal. App. 3d 894, 901.) "A finding may be
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supported by circumstantial evidence as it is here." (E. H., supra, 108 Cal.App.4th at
p. 670.) We thus conclude that based on the evidence presented at the jurisdictional
hearing, the juvenile court reasonably could find, as it did, that Maria inflicted J.'s
injuries.
Maria argues it was not reasonable for the juvenile court to find she abused J.
because there was no direct evidence she inflicted his injuries or had any idea J. was
injured before she noticed his head was swollen and then took him to the hospital. Maria
points out that on the day J.'s injuries were discovered, he had been under Lynd's care for
12 hours; and during the time period those injuries were inflicted, both Maria and Lynd
cared for him. Maria thus contends the petition was not sustainable under section 300,
subdivision (e), and the juvenile court should have dismissed it under In re Roberto C.
(2012) 209 Cal. App. 4th 1241 (Roberto C.). We disagree.
Maria's argument proceeds from the false premise that the Agency presented no
evidence that she caused J.'s injuries. Although there was no direct evidence that Maria
broke J.'s skull or long bones, as we have explained, there was ample circumstantial
evidence to support the juvenile court's finding that she did. That circumstantial evidence
distinguishes this case from Roberto C., supra, 209 Cal. App. 4th 1241, where the court
found "no evidence linking the parents to the infliction of the injuries" and "no evidence
that provide[d] any basis to attribute knowledge to [the] parents that [their child] was
being abused, much less severely abused within the meaning of the statute." (Id. at
p. 1254.) Dismissal of the allegations under section 300, subdivision (e) was thus proper
in Roberto C., because "in the absence of evidence of actual abuse . . . by the parent,
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there must be a showing that the parent knew or had reason to know that another person
to whom the child was exposed was engaging in conduct resulting in abuse or injury."
(Id. at p. 1255, italics added.) No such showing was required in this case, however,
because the Agency presented evidence, albeit circumstantial, of actual abuse "by a
parent." (§ 300, subd. (e).)
DISPOSITION
The order is affirmed.
IRION, J.
WE CONCUR:
BENKE, Acting P. J.
AARON, J.
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