S.E. v. Superior Court CA4/2

Filed 9/26/14 S.E. v. Superior Court CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
S.E. et al.,
Petitioners, E061265
v. (Super.Ct.Nos. J252040 & J252041)
THE SUPERIOR COURT OF OPINION
SAN BERNARDINO COUNTY,
Respondent;
SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES,
Real Party in Interest.
ORIGINAL PROCEEDINGS; petition for extraordinary writ. Cheryl C. Kersey,
Judge. Petition denied.
Michael J. LaCilento, for Petitioner S.E.
David M. Levy, for Petitioner L.M.
Christine R. Sabans, for Minors.
1
Jean-Rene Basle, County Counsel, and Dawn M. Messer, Deputy County Counsel,
for Real Party in Interest.
No appearance for Respondent.
Real Party in Interest, San Bernardino Children and Family Services (the
department), filed juvenile dependency petitions pursuant to Welfare and Institutions
Code section 3001 alleging, among other things, that H.M. (born 2013), the child of
petitioners L.M. (father) and S.E. (mother) (collectively, parents) had died from unknown
causes after she was found to have suffered seven fractures to her ribs and a broken arm
(f-1 & f-2); parents’ child A.M. (born 2012) had sustained serious and potentially life
threatening injuries including, but not limited to, a spiral fracture of his leg (e-1 & e-2);
and parents’ had failed to protect minor C.E. (born 2004) from physical abuse.2 The
juvenile court dismissed dependency proceedings as to minor C.E. and entered family
law orders placing him with his father, J.J.,3 permitting visitation with mother. The
juvenile court found the remaining allegations true; removed A.M. from parents’ custody;
denied parents reunification services pursuant to sections 361.5, subdivisions (b)(5), (6),
and (12); and scheduled the section 366.26 hearing.
In his petition, father contends the court erred in prohibiting Dr. Charles Hyman
from testifying that minors suffered from Temporary Brittle Bone Disease (TBBD).
1 All further statutory references are to the Welfare and Institutions Code.
2 The “f” allegations were later dismissed.{2RT 406; 3CT 617-618}
3 J.J. is not a party to this petition.
2
Mother joins this argument, but additionally maintains the juvenile court erred in
declining her request for bifurcation of the jurisdictional and dispositional hearings, erred
in finding the e-5 allegation true, and abused its discretion by denying her reunification
services. We deny the petitions.
FACTS AND PROCEDURAL HISTORY
On September 25, 2013, the department received an immediate response referral
when H.M. stopped breathing. Father called the paramedics. Medical personnel were
unable to revive her. H.M. had no signs of outward trauma, but X-rays revealed the
infant had a broken arm and several fractures at various stages of healing, which doctors
believed were the result of squeezing. The coroner discovered seven healing rib
fractures, which he opined occurred between seven and 21 days prior to her death.
The social worker made a safety plan with mother, who was at work at the time of
H.M.’s death. The plan allowed mother, C.E., and A.M. to stay with their maternal
grandmother (MGM) pending further investigation. On October 2, 2013, C.E. and A.M
were brought to the Children’s Assessment Center (CAC). Mother brought previous X-
rays of A.M.’s leg taken in July 2012. Mother said she was initially informed A.M. had a
fracture, but was later told his leg pain was due to a viral infection. Dr. Mark Massi at
CAC reviewed the X-rays and said the then five-month-old A.M. had a spiral fracture of
his right femur (thigh bone) which Massi believed was the result of abuse.
C.E. had a big red spot in his eye caused by a broken blood vessel. No
explanation for the injury was provided. Dr. Massi believed the injury was caused by a
poke to the eye. C.E. also had scars on his back, which were of concern to Dr. Massi.
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C.E. said the scars were the result of sliding down the wall while doing wall sits as
punishment: “Wall sits were described as sitting against the wall with no support of the
child’s buttocks while holding his arms in the air. The parents stated they use this form
of punishment as they were advised by a prior social worker not to use corporal
punishment.” “According to Dr. Massi, regarding [C.E.], ‘The child has three (3) notable
findings—subconjunctival hemorrhage and two (2) areas of scarring—two (2) of which
have no clear explanations.’”
Mother reported that H.M was born with the umbilical cord wrapped around her
neck and she had read on the internet this could cause fractures. “The doctors stated age
of the fractures did not coincide with these injuries happening at birth.” Detectives said
parents had passed polygraph tests and the detectives did not believe parents were
responsible for H.M.’s death. Mother was told she and minors could move back into the
family home on November 4, 2013.
At a multidisciplinary team meeting held on November 7, 2013, Doctors May
Young and Mark Massi of CAC expressed grave concerns minors were back in the
family home. Additional findings were made by Dr. Young regarding A.M., including
two rib fractures and fractures to the right forearm (radius and ulna). Both doctors
believed the injuries to H.M. and A.M. were intentionally inflicted. They said it was not
possible for a viral infection to have caused A.M.’s fractures.
At a contested detention hearing on November 14, 2013, the social worker
testified parents denied abusing minors. The department had already placed minors in
protective custody. The juvenile court formally detained minors.
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In the jurisdictional and dispositional report filed December 2, 2013, the social
worker reported mother had provided A.M.’s medical records, which reflected no
symptoms of abuse. Nonetheless, none of the medical records supported mother’s
contention a viral infection was responsible for A.M.’s fractures. H.M.’s cause of death
was not able to be determined from the autopsy. H.M.’s broken arm was determined to
be newer than six weeks, so it could not be medically associated with birth trauma.
The autopsy protocol released March 27, 2014, authored by pathologist Dr. Steven
Trenkle, left the cause and manner of H.M.’s death undetermined. Dr. Trenkle noted
that, “Although this young infant had at least one and possibly more episodes of inflicted
trauma leading to bilateral multiple rib fractures which are now healing, as well as a
fracture of the left mid humerus which is now healing, no fatal trauma was noted at the
autopsy. . . . [¶] The multiple rib fractures may have occurred in one instance or may
have occurred over a several day period of time. The infant would have likely been in
pain, particularly with the fracture of the left arm . . . . [¶] Although there is no definite
fatal injury, the presence of previous inflicted injuries is quite concerning.” The fractures
were observable only under microscopic examination.
At a pretrial hearing on April 25, 2014, mother’s counsel requested bifurcation of
the jurisdictional and dispositional hearings: “I’m also going to request a bifurcation of
the juris[dictional] and dispo[sitional] issues on this case due to the fact there’s different
burdens of proof. Obviously, juris[dicition] is the burden of proof of the county and [on]
the dispo[sition], the burden shifts to us. So I am going to have some requests to
bifurcate.” The juvenile court asked if there was any objection. No party objected. The
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court then noted, “So that should shorten things a bit. So I will order the case be severed
and the hearing on Wednesday will be a trial management conference for jurisdiction.
The Court at that time will set a new hearing date for jurisdiction and also for this
disposition.”
On April 30, 2014, a different judge noted, “Also there was a request to bifurcate
the proceedings. I wasn’t here for that, but at this time, the Court will deny that request
to bifurcate as all the parties are getting an extra six weeks to prepare based on their
availability and witnesses. I will not be setting aside time again for all of you.” Mother’s
counsel stated, “Just for the record, I want to say I was requesting a bifurcation.” The
court responded, “Go ahead and give your authority for your request for bifurcation.”
Mother’s counsel replied, “Based on a different standard of proof, burden of proof. The
burden of proof is clear and convincing on the juris[dictional] issue. The burden shift[s]
on the dispo[sitional hearing] if found true to our burden of proof. I’ll be happy to
provide [points and authorities] at a later date . . . .” The court concluded, “No need for
points and authorities. I’m aware of the burden of proof. [¶] There is also no need for
bifurcation. The minors were detained in, it looks like, November of 2013. The case
now, based on your request, the fact you were retained after another attorney was
assigned, will now be, let’s see, give or take, eight months old. No need for bifurcation.”
On May 21, 2014, the department filed a motion in limine to exclude evidence and
opinions by father’s retained medical expert, Dr. Hyman, regarding evidence or opinions
on TBBD, metabolic bone disease, or pediatric fragility disorder. C.E. was placed with
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J.J. on May 16, 2014. On May 29, 2014, father’s counsel filed a response to the
department’s motion to exclude.
The combined, contested jurisdictional and dispositional hearing began on June 2,
2014. Dr. Trenkle testified consistently with his autopsy protocol. He observed that,
“you can get fractures accidentally or nonaccidentally.” “The fractures themselves don’t
tell me. Typically, in accidental injuries there is a history of some traumatic event that
occurred that would explain multiple fractures. In this case, there wasn’t such a history.”
“[T]here was no history of a significant traumatic event, so in that case, I thought they
were more likely inflicted injuries.” “There would have been some pain when the
fractures initially occurred. . . . I think that the fractured arm would have been more
painful than typical[] rib fractures. [¶] . . . [¶] . . . I would expect a caretaker to know if
the child had a fractured arm. With the rib fractures, that is another story. The caretakers
might not notice that.”
Dr. Trenkle testified TBBD is not a diagnosis generally accepted by the medical
community and that its progenitor had been discredited. Osetogeneses Imperfecta (OI) is
a genetic disease of the bones, which makes them more prone to fracture. Dr. Trenkle
did not run any tests to determine whether H.M. had OI; however, he was not aware of
any tests that could be run for OI on deceased individuals. Living tissue is necessary to
run such tests. Dr. Trenkle observed that although Dr. Hyman’s report speculated the
trauma to H.M. could be from OI, Dr. Trenkle disagreed with Dr. Hyman’s conclusions.
Rather, Dr. Trenkle opined that H.M.’s rib fractures were caused by the squeezing of her
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chest or the result of a blow or fall. He opined her arm fracture was caused by
“[m]aniputlation of the arm or a blow.”
Dr. Massi testified he examined A.M. and C.E. at CAC. Dr. Massi reviewed X-
rays taken of A.M. on July 18 and 23, 2012. He found a fracture of the right femur. The
skeletal survey of A.M. revealed fractures of the right eighth rib, the radius, and ulna. A
viral syndrome would not cause a fracture. Dr. Massi suspected physical abuse in the
past: “Any fractures in a nonambulatory child without a history of trauma would be
concerning for physical abuse.” C.E. had a subconjuctival hemorrhage on his eye,
scarring on his upper back on both sides, and a curvilinear scar on his side. Dr. Massi did
not perform tests for OI; he did not suspect either minor had OI.
Mother’s friend testified she had observed mother on numerous occasions with
minors. She never saw any abuse. Mother was caring and loving with minors. Parents’
friend testified minors were well cared for. The social worker testified mother’s
psychological reported reflected mother would benefit from services. Visitation with
parents went well. Parents were participating in services. The social worker
recommended denying parents reunification services due to the severity of injuries
sustained by minors with no explanation for how they occurred.
Dr. Karmel Azmy, the pediatrician who treated A.M. four to five times, testified
he had diagnosed A.M. with a viral infection on July 18, 2012. Azmy requested an X-ray
because mother said she noted A.M. was having pain in his right leg. The radiologist
report of the X-ray came back reading, “‘Normal, right tibia.’” Azmy did not suspect
child abuse. Azmy noted A.M. was “‘skeletally immature,’” which “means all his
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ossification centers are not closed . . . .” Azmy asked for a second X-ray and skeletal
survey on July 23, 2013, because of an irregularity in the first X-ray. The findings from
the skeletal survey were normal; no fractures were found.
Mother testified she never abused minors. She never observed father abuse
minors. Parents would have C.E. conduct wall sits as discipline. C.E. asked on one
occasion to take his shirt off while doing so. He then said his back hurt. There appeared
to be a rug burn on his back. The next day or two, he had light scabbing on his back.
Mother took A.M. to Azmy because he was not moving his leg. Azmy told her
A.M. had a viral infection. Azmy ordered X-rays and a skeletal survey. The results came
back indicating nothing was wrong with A.M.’s leg; he simply had a viral infection.
A.M.’s leg improved thereafter. Mother believed the injuries to H.M. could have
occurred when she fell off the couch when with father, or due to her birth with the
umbilical cord wrapped around her neck.
Father testified sometime between September 10, and 12, 2013, H.M. fell off his
chest while they were both sleeping on the couch. She fell two feet off the couch onto
the carpet. She cried, he held her, she stopped crying, he put her to bed, and she fell
asleep. On September 25, 2013, H.M. was lying face down. He picked her up. She was
lifeless and not breathing. He gave her CPR. She threw up milk. He called 911.
Paramedics came into the house and began giving her CPR. They took her to the
hospital. Father admitted requiring C.E. to do wall sits as discipline. Father admitted a
criminal conviction for robbery. Father denied having anything to do with the injuries to
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minors. He believed H.M.’s injuries were caused when she was born with the umbilical
cord wrapped around her neck.
Prior to Dr. Hyman’s testimony the juvenile court noted it had “reviewed the
Points and Authorities, Motion in Limine from [the department]. [Father’s counsel], you
did respond. The Court indicated off the record that the Court will be allowing Dr.
Hyman to testify. He appears, from the documents I received, that he will qualify as an
expert in pediatrics. [¶] However, the request, and really the motion in limine, is not so
much as whether he qualifies as an expert, it is the area he will testify—the area he will
be allowed to testify regarding his analysis, examination of all of the records that were
provided to him from [father’s counsel], and in his preparation of his report.”
The court ruled Dr. Hyman’s “experience in radiology will be allowed, along with
the X-rays that were provided to him.” “What will not be allowed is any posturing or
theorizing, speculation regarding Temporary Brittle Bone Disease. The Court, after
reviewing the brief filed by [the department], agrees with the position of the Department
in that it lacks sufficient [re]liability, and Dr. Hyman will not be able to meet
requirements for scientific reliability and admissibility to posit a theory of Temporary
Brittle Bone Disease in this case. [¶] [Father’s counsel], you will be able to ask Dr.
Hyman anything that you have heard already in this Court. Dr. Trenkle and Dr. Massi
have rendered opinions, so you will be able to ask Dr. Hyman whether or not he agrees or
disagrees with their analysis and conclusions because that is further foundation for Dr.
Hyman’s opinions.”
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Dr. Hyman testified he had reviewed the records in this case, including the X-rays
of A.M. Dr. Hyman noted fractures to A.M.’s femur and eighth rib. Dr. Hyman opined
that Dr. Massi had mischaracterized the fracture to A.M.’s femur as a spiral fracture: “I
think it better fits to be a longitudinal fracture because a spiral fracture wraps around the
bone. This doesn’t wrap around the bone here.” “This is [a] very mild type of fracture,
nondisplaced. That is why it was hard to be seen. Three doctors and X-rays—they didn’t
see it initially. It was the family’s advocacy to say, ‘Something is wrong with my baby’s
right leg’ that kept bringing things to the doctor’s attention.” With a nondisplaced
fracture, “the bones aren’t separated. It heals itself.”
Dr. Hyman noted that it is the type of fracture which occurs when children utilize
walkers. He further observed, “Children with bone fragility or adults with bone
fragility—they can be microfractures which progress.” Dr. Hyman characterized the rib
fracture as not a severe injury. Contrary to Dr. Massi’s finding, Dr. Hyman did not see
any fracture to the ulna or radius. Dr. Hyman opined the fractures were not the result of
result of abuse.
Dr. Hyman reviewed the X-rays of H.M. He observed only one rib fracture from
the X-ray. That injury could have occurred by rolling off a couch. The humeral fracture
could have been caused by a fall. Rib fractures can be caused by CPR. The rib fractures
noted by Dr. Trenkle were so small most of them did not appear on the X-ray. Dr.
Hyman opined the fractures did not cause H.M.’s death.
Regarding the injuries to both minors, Dr. Hyman noted, “They’re not high-force
injuries. The fact that two siblings had fractures makes me think, somebody involved in
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bone science, that there is some genetic—some minor genetic association that could be.”
“Two and a half percent of a normal population have bone fragility, and they have
multiple single-nucleotide polymorphism, so there’s probably hundreds of genetic things
that would make bones more fragile from different aspects of the physiology of the bone.
So we’re not talking about—OI has not been ruled out. I don’t think the children have or
had OI, but there are certainly other things associated with bone fragility.” “The clinical
diagnosis of fragile bones in bone science is fracturing with low force regardless of how
bones look on plane films or on DEXA evaluation.” There is evidence H.M. had fragile
bones: “The child had evidence of increased bone turnover on X-ray and had evidence of
diminished mineralization, less-than-ideal mineralization.”
Dr. Thomas Grogan, an orthopedic surgeon specializing in children’s sports
traumas, reviewed the medical records of A.M. and H.M. He observed that A.M. had a
spiral fracture, which is cause by rotation or torque motion. Dr. Grogan noted that Dr.
Trenkle had utilized microscopic analysis of H.M.’s bones when conducting the autopsy
in order to observe seven rib fractures. The fractures were not otherwise visible on an X-
ray. “[T]hey’re microscopic, if that helps. So they’re very minimal and certainly not [of]
any clinical significance.” The fractures would not require treatment. It is not possible
the rib fractures were cause by CPR. Dr. Grogan could not opine whether child abuse
was a cause of the injuries. When evaluating such cases, “[he] always think[s] about is it
a pattern for abuse, and I don’t see that here.”
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DISCUSSION
A. Bifurcation of the Jurisdictional and Dispositional Hearings.
Mother contends the juvenile court violated her right to due process by denying
her request for bifurcated jurisdictional and dispositional hearings. We hold the court
erred by denying mother’s request. However, we hold the error was harmless.
“A dependency proceeding under section 300 is essentially a bifurcated
proceeding. The court first determines whether the minor is a dependent child subject to
the jurisdiction of the court within the description set out in section 300.” (In re Jamie
M. (1982) 134 Cal.App.3d 530, 535.) “Once the court has determined the minor is a
person described by section 300 and has assumed jurisdiction it ‘shall then proceed to
hear evidence on the question of the proper disposition to be made of the minor . . . .’
(§ 356.)” (Ibid., italics added.) In stating the rule, the Jaime court relied on a previous
version of section 356 which expressly required separate proceedings as indicated by the
italicized language ante. The language reading “to be made” following the “proper
disposition” was deleted by amendment in 1982. However, the language “shall then
proceed to hear evidence on the proper disposition” remained. (Amended by Stats.1982,
c. 978, § 18, eff. Sept. 13, 1982, operative July 1, 1982.) A 1986 amendment rewrote the
section to delete the phrase “and then shall proceed to hear evidence on the question of
the proper disposition of the minor.” (Stats.1986, c. 1122, § 9.) It is unclear why this
language was deleted.
Nevertheless, section 358, subdivision (b), regarding the disposition reads, “After
finding that a child is a person described in Section 300, the court shall hear evidence on
13
the question of the proper disposition to be made of the child. Prior to making a finding
required by this section, the court may continue the hearing on its own motion, the
motion of the parent or guardian, or the motion of the child.” (Italics added.)
Subsequent to the amendment of section 356, courts have continued to construe
the statutory language as requiring separate jurisdictional and dispositional hearings,
though they may occur on the same day: “‘A section 300 dependency hearing is
bifurcated to address two distinct issues. First, at the jurisdictional hearing, the court
determines whether the child falls within any of the categories set forth in section 300. If
so, the court may declare the minor a dependent child of the court. [Citation.] Then, at
the dispositional hearing, the court must decide where the child will live while under its
supervision, with the paramount concern being the child’s best interest. [Citation.]’
[Citation.]” (In re Michael D. (1996) 51 Cal.App.4th 1074, 1082, quoting In re Corey A.
(1991) 227 Cal.App.3d 339, 346; In re Alicia O. (1995) 33 Cal.App.4th 176, 182 [same];
In re Heather B. (1992) 9 Cal.App.4th 535, 543 [“Juvenile court proceedings are
bifurcated, as they were under prior law. Under this procedure the jurisdictional hearing
addresses the question whether the child is described by section 300, and the question
whether the child should be adjudged a dependent child is not determined until the
dispositional hearing. [Citations.]”]; In re Corey A., at pp. 345-346; In re Marquis H.
(2013) 212 Cal.App.4th 718, 724; In re A.S. (2011) 202 Cal.App.4th 237, 243-244.)
“Although the dispositional hearing often follows immediately after the
jurisdiction hearing, and in some counties the social worker prepares a combined
jurisdictional and dispositional court report or social study, the dispositional hearing is
14
considered a separate and distinct hearing. [Citations.]” (1 Cal. Juvenile Dependency
Practice (Cont.Ed.Bar 2002) Nature of Dispositional Hearing, § 5.1, p. 263.) “The
dispositional hearing has been compared with sentencing in a criminal proceeding
[citation] . . . .” (Id. at pp. 263-264, citing In re Jennifer V. (1988) 197 Cal.App.3d 1206,
1209.)
California Rules of Court, rule 5.682(g)4 explains that after the jurisdictional
hearing, “the court must proceed to a disposition hearing . . . .” Rule 5.684(f)(4)
explains, “After making the [jurisdictional] findings . . ., the court must proceed to a
disposition hearing . . . .” (Italics added.) Rule 5.686(b) provides, “If petitioner alleges
that [Welfare and Institutions Code] section 361.5 [subdivision] (b) is applicable, the
court must continue the proceedings not more than 30 calendar days.” (Italics added.)
Nonetheless, we note that joint jurisdictional and dispositional hearings are
frequently, if not, typically held. (In re A.S., supra, 202 Cal.App.4th at p. 241 [joint]; In
re N.M. (2011) 197 Cal.App.4th 159, 171 [same]; In re David H. (2008) 165 Cal.App.4th
1626, 1644 [same]; San Diego County Dept. of Social Services v. Superior Court (1996)
13 Cal.4th 882, 886 [same]; In re Ricky H. (1992) 10 Cal.App.4th 552, 556 [Fourth Dist.,
Div. Two] [same]; In re G.B. (2014) 227 Cal.App.4th 1147, 1152 [combined hearing]; In
re G.P. (2014) 227 Cal.App.4th 1180, 1191 [same]; In re M.V. (2014) 225 Cal.App.4th
1495, 1504 [same]; In re Ashly F. (2014) 225 Cal.App.4th 803, 805, 807 [same]; Tonya
M. v. Superior Court (2007) 42 Cal.4th 836, 840-841 [same]; but see In re A.M. (2010)
4 All further rule references are to the California Rules of Court.
15
187 Cal.App.4th 1380, 1386 [juvenile court grants department’s request to bifurcate
hearings].)
On the other hand, in dependency cases wherein a supplemental petition is filed,
“‘a bifurcated hearing is required. [Citations.]’” (In re Javier G. (2005) 130 Cal.App.4th
1195, 1200, citing In re Jonique W. (1994) 26 Cal.App.4th 685, 691 [“The bifurcated
procedures for original petitions (§ 300) and supplemental petitions (§ 387) are
conceptually identical”]; In re A.O. (2004) 120 Cal.App.4th 1054, 1061, fn. 4 [“A
bifurcated hearing is required in proceedings on a supplemental section 387 petition.
[Citation.] Here, although the court did not bifurcate the hearing, [the mother] did not
ask for the hearing to be bifurcated, or object when it was not. Accordingly, she has
[forfeited] her right to contest it as error here”]; In re Joe A. (1986) 183 Cal.App.3d 11,
24 [“The quoted rule makes clear that a bifurcated hearing is required. The first part of
the hearing, equivalent to the jurisdictional hearing in an original juvenile proceeding
focuses on the truth of the factual allegation(s) in the supplemental petition and the truth
of the allegation that the existing disposition is ineffective in rehabilitating the minor.
Only after both of these findings have been made does the court proceed to the second
part of the hearing, equivalent to the dispositional hearing in the original proceeding”].)
In juvenile delinquency proceedings, bifurcated jurisdictional and dispositional
hearings are likewise required. (In re Julian R. (2009) 47 Cal.4th 487, 495 [“A
bifurcated hearing is then held. At the first phase—the jurisdictional hearing—‘the
juvenile court decides whether the petition concerns a person described in section 602.’
[Citation.] . . . [¶] At the second phase—the dispositional hearing—the juvenile court
16
hears ‘evidence on the question of the proper disposition to be made of the minor.’
[Citation.]”]; In re James B. (2003) 109 Cal.App.4th 862, 874 [Fourth Dist., Div. Two]
[“The bifurcated juvenile court procedure prescribed in [] sections 701, 702, and 706 . . .
[citations] is designed to provide a jurisdictional hearing at which competent evidence is
adduced, and to make certain the jurisdictional order is made before the social study
report containing material irrelevant to the issue of guilt is considered. [Citation.]’
[Citation.]”]; In re Christopher S. (1992) 10 Cal.App.4th 1337, 1343 [same].)
“[T]he Legislature intended to create a bifurcated juvenile court procedure in
which the court would first determine whether the facts of the case would support the
jurisdiction of the court in declaring a wardship and thereafter would consider the social
study report at a hearing on the appropriate disposition of that ward. This procedure
affords a necessary protection against the premature resolution of the jurisdictional issue
on the basis of legally incompetent material in the social report.” (In re Gladys R. (1970)
1 Cal.3d 855, 859-860, fn. omitted [juvenile delinquency proceedings].)
Although the policy reasons for requiring bifurcated jurisdictional and
dispositional hearings in section 300 proceedings are not expressly stated in either the
statutes or case law, the apparent purpose can be gleaned from case law as an attempt to
prevent prejudice to the defendant by prohibiting a juvenile court from either
simultaneously considering jurisdictional and dispositional findings or even considering
dispositional findings prior to jurisdictional findings in joint hearings based on evidence
that would have been excluded from a separate jurisdictional hearing if the court had
bifurcated the proceedings. Thus, we hold that parents have a statutory right to bifurcated
17
jurisdictional and dispositional hearings. The court erred in denying mother’s request for
bifurcation of the hearings.
As did the court below, the department mischaracterizes a request for bifurcation
of the proceedings as a request for a continuance. However, as noted above, a separate
dispositional hearing can be held immediately after the jurisdictional hearing without a
continuance. Indeed, the hearings can often be held on the same day.
Nonetheless, mother does not identify any specific constitutional right to a
bifurcated hearing that would implicate deprivation of her due process rights. Indeed,
here, mother was first given notice of a combined jurisdictional and dispositional hearing
on December 2, 2013, when the department filed its first report. The department filed a
combined, addendum report on January 16, 2014. Mother did not request bifurcated
hearings until April 25, 2014, after she had already been granted a continuance.
Although the original court before which she made her bifurcation request granted the
request, the subsequent, hearing court denied that request on April 30, 2014. The
contested hearing did not begin until June 2, 2014. Thus, mother had plenty of notice of
the hearing.
Moreover, mother fails to identify any prejudice she suffered regarding the stated
basis for her motion to bifurcate the proceedings. Her motion was based on the differing
burdens of proof at jurisdictional and dispositional hearings, not any difference in the
evidence that would not have been admissible at the jurisdictional hearing, but would
have been admissible at the dispositional hearing. Indeed, in denying the motion the
court noted it was aware of the differing burdens of proof. At the completion of the three
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day hearing, the court noted that it did not need the parties to address the differences
between the burdens of proof for jurisdiction and disposition. When the court announced
each of its findings, the court identified the correct, differing burdens of proof. Thus,
mother has failed to identify how she was prejudiced and the error was, therefore,
harmless. It was not reasonably probable the juvenile court would have rendered
different findings and rulings had it bifurcated the proceedings. (In re A.M. (2008) 164
Cal.App.4th 914, 928 [the violation of a statutory, rather than a constitutional, right is
reviewed under the Watson5 standard under which “we ascertain whether it appears
reasonably probable [parents] would have obtained a more favorable result if the juvenile
court had granted [their] requests . . . .”].)
B. Jurisdictional Finding.
Mother contends the court’s jurisdictional finding as to the e-5 allegation was not
supported by substantial evidence. We disagree.
“‘When a dependency petition alleges multiple grounds for its assertion that a
minor comes within the dependency court’s jurisdiction, a reviewing court can affirm the
[trial] court’s finding of jurisdiction over the minor if any one of the statutory bases for
jurisdiction that are enumerated in the petition is supported by substantial evidence. In
such a case, the reviewing court need not consider whether any or all of the other alleged
statutory grounds for jurisdiction are supported by the evidence.’ [Citation.] However,
we generally will exercise our discretion and reach the merits of a challenge to any
5 People v. Watson (1956) 46 Cal.2d 818.
19
jurisdictional finding when the finding (1) serves as the basis for dispositional orders that
are also challenged on appeal [citation]; (2) could be prejudicial to the appellant or could
potentially impact the current or future dependency proceedings [citations].” (In re
Drake M. (2012) 211 Cal.App.4th 754, 762-763.)
“In dependency proceedings, the social services agency has the burden to prove by
a preponderance of the evidence that the minor who is the subject of the dependency
petition comes under the juvenile court’s jurisdiction. [Citations.] We review the
jurisdictional findings for substantial evidence. [Citation.] We consider the entire
record, drawing all reasonable inferences in support of the juvenile court’s findings and
affirming the order even if other evidence supports a different finding. [Citation.] We do
not consider the credibility of witnesses or reweigh the evidence. [Citation.] Substantial
evidence does not mean ‘any evidence,’ however, and we ultimately consider whether a
reasonable trier of fact would make the challenged ruling in light of the entire record.
[Citation.] The parent has the burden on appeal of showing there is insufficient evidence
to support the juvenile court’s order. [Citation.]” (In re Isabella F. (2014) 226
Cal.App.4th 128, 137-138.)
The juvenile court may adjudge a minor to be a dependent of the court when “[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: any single act of abuse which causes
physical trauma of sufficient severity that, if left untreated, would cause permanent
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physical disfigurement, permanent physical disability, or death; . . . or 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), italics
added.)
Here, mother fails to challenge any of the other allegations that the court
sustained.6 Thus, she cannot challenge the court’s finding of jurisdiction on those other
bases. However, because the juvenile court’s finding regarding the e-5 allegation was the
basis for its dispositional finding to deny mother reunification services, we will exercise
our jurisdiction to address the merits of her claim.
Here, a reasonable finder of fact could have found that mother either inflicted or
reasonably knew someone else had inflicted severe physical abuse on A.M., which could
have caused permanent disability, or that more than one act of physical abuse causing
bone fractures had occurred. Doctors Massi and Young believed the fractures to A.M.’s
thigh bone and ribs were the result of physical abuse. MGM was concerned that parents
had abused minors. Parents posited no plausible explanation for the injuries. Especially
when viewed in context with the evidence of multiple rib fractures sustained by H.M. and
the physical injuries inflicted upon C.E., substantial evidence was adduced to support the
court’s finding.
6 The operative juvenile dependency petition made additional allegations that
A.M. suffered serious physical injury due to abuse while in mother’s care (a-1); that
mother failed to protect C.E. and A.M. from physical abuse (b-1); and that minors’
sibling, H.M., had suffered abuse placing minors at risk of similar abuse (j-1).{1CT 215-
219} The juvenile court found all these additional allegations true (although the minute
order misidentifies the j-1 allegation as a “g” allegation).{2RT 427-428; 3CT 617-618}
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C. Dr. Hyman’s Testimony Regarding TBBD.
Parents contend the juvenile court abused its discretion by excluding from
evidence testimony from Dr. Hyman regarding TBBD on a Kelly/Frye7 basis. We agree
the court erred in excluding the evidence, but find the error harmless.
“‘The trial court has broad discretion in deciding whether to admit or exclude
expert testimony [citation], and its decision as to whether expert testimony meets the
standard for admissibility is subject to review for abuse of discretion.’ [Citation.]”
(People v. Brown (2014) 59 Cal.4th 86, 101.) “[A]bsent some special feature which
effectively blindsides the [fact finder], expert opinion testimony is not subject to Kelly[.]”
(People v. Stoll (1989) 49 Cal.3d 1136, 1157.) A testimonial opinion regarding a medical
diagnosis is not subject “to the special restrictions governing admission of new, novel, or
experimental scientific techniques not previously accepted in the courts. [Citations.]”
(Id. at pp. 1140-1141 [reversing as prejudicial error the trial court’s exclusion of medical
diagnoses on Kelly/Frye grounds].)
“‘“We have never applied the Kelly[] rule to expert medical testimony, even when
the [testimony] is . . . as esoteric as the reconstitution of a past state of mind or the
prediction of future dangerousness, or even the diagnosis of an unusual form of mental
illness not listed in the diagnostic manual of the American Psychiatric Association.”’
[Citation.] Our conclusion in Stoll applies fully to this case: ‘The psychological
testimony proffered here raises none of the concerns addressed by Kelly[]. The methods
7 People v. Kelly (1976) 17 Cal.3d 24; Frye v. United States (D.C. Cir. 1923) 293
F. 1013.
22
employed are not new to psychology or the law, and they carry no misleading aura of
scientific infallibility.’ [Citation.]” (People v. Jones (2013) 57 Cal.4th 899, 953, quoting
People v. Stoll, supra, 49 Cal.3d at p. 1157.)
“It is important to distinguish in this regard between expert testimony and
scientific evidence. When a witness gives his personal opinion on the stand—even if he
qualifies as an expert—the jurors may temper their acceptance of his testimony with a
healthy skepticism born of their knowledge that all human beings are fallible. But the
opposite may be true when the evidence is produced by a machine: like many laypersons,
jurors tend to ascribe an inordinately high degree of certainty to proof derived from an
apparently ‘scientific’ mechanism, instrument, or procedure. Yet the aura of infallibility
that often surrounds such evidence may well conceal the fact that it remains experimental
and tentative.” (People v. McDonald (1984) 37 Cal.3d 351, 372-373 overruled on
another ground in People v. Mendoza (2000) 23 Cal.4th 896, 912-925.)
Here, any testimony proffered by Dr. Hyman regarding a diagnosis of TBBD,
whether accepted in the medical community or not, did not involve the use of a scientific
mechanism, instrument, or procedure, which differed from accepted methods such that
his opinion should have been excluded. Nevertheless, the error was harmless. (In re
Madison T. (2013) 213 Cal.App.4th 1506, 1510; In re Jordan R. (2012) 205 Cal.App.4th
111, 134 [“To the extent an alleged error violates state evidentiary law, ‘even where
evidence is improperly excluded, the error is not reversible unless “‘it is reasonably
probable a result more favorable to the appellant would have been reached absent the
error.’”’ [Citations.]”].)
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Here, even if Dr. Hyman had been allowed to opine that H.M or A.M had TBBD,
it is obvious the juvenile court would not have given his testimony any credence.
Medical Doctors Trenkle and Massi testified TBBD is not a condition generally accepted
by the medical community. Dr. Massi testified its progenitor had been discredited. The
juvenile court itself stated it “easily disregards the argument of weak bone fragility or
fragile bones or brittle bones. There is no medical evidence to support the evidence, and
the evidence is contrary to weak bone structure in that [A.M.] and [C.E.], neither have
had any medical issues, fractures, or any type of medical type abuse incidents since they
were removed from the mother and father.” Thus, it is not reasonably probable the
juvenile court would have issued differing rulings or findings, had Dr. Hyman been
permitted to testify regarding TBBD.
D. Reunification Services for Mother.
Mother contends insufficient evidence supports the juvenile court’s ruling denying
her reunification services. We disagree.
“When a ‘child [is] brought within the jurisdiction of the court under subdivision
(e) of Section 300 because of the conduct of that parent or guardian,’ the court may
decline to provide reunification services. (§ 361.5, subd. (b)(5).) A child who ‘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’ comes within the reach of section 300, subdivision (e).
Severe physical abuse is defined to include more than one act of abuse where each act
causes a bone fracture. (§ 300, subd. (e).) When the [department] ‘proves by clear and
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convincing evidence that a dependent minor falls under subdivision (e) of section 300,
the general rule favoring reunification services no longer applies; it is replaced by a
legislative assumption that offering services would be an unwise use of governmental
resources.’ [Citation.] We review the court’s decision to deny reunification services
under the substantial evidence test to determine whether it is supported by evidence that
is reasonable, credible, and of solid value. [Citation.] ‘We do not reweigh the evidence,
nor do we consider matters of credibility.’ [Citation.]” (L.Z. v. Superior Court (2010)
188 Cal.App.4th 1285, 1291-1292.)
As discussed above, Doctors Massi and Young believed the fractures to A.M.’s
thigh bone and ribs were the result of physical abuse. MGM was concerned parents had
abused minors. Parents posited no plausible explanation for the injuries. Especially
when viewed in context with the evidence of multiple rib fractures sustained by H.M. and
the physical injuries inflicted upon C.E., substantial evidence was adduced to support the
court’s finding.
DISPOSITION
The petitions are denied.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
McKINSTER
Acting P.J.
RICHLI
J.
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