In re Damien O.
Filed 2/6/13
In re Damien O. CA2/2
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
TWO
In re DAMIEN O., a Person Coming Under the Juvenile Court
Law.
B241794
(Los
Angeles County
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY
SERVICES,
Plaintiff
and Respondent.
v.
DIANA M.,
Defendant
and Appellant.
Super. Ct.
No. CK86653)
APPEAL
from a judgment of the Superior Court
of
County. Veronica S.
McBeth, Judge. Affirmed.
Janette
Freeman Cochran, under appointment by the Court of Appeal, for Defendant and
Appellant.
John
F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and Kim
Nemoy, Deputy County Counsel for Plaintiff and Respondent.
Diana
M. (mother) appeals from a judgment declaring her son Damien O. (born December
2010) a dependent of the juvenile court pursuant to Welfare & Institutions
Code section 360, subdivision (d).
name="_ftnref1" title="">[1] Specifically, mother argues that there was no
substantial evidence to support the findings
as to mother under section 300. In
addition, mother argues that the trial court abused its discretion when it
required that mother remain in her sister’s home as a condition of its home of
parent order. We find no error and affirm the judgment in full.
1. Initiation of dependency
proceedings
On
February 14, 2011, the
family came to the attention of the Los Angeles
Department of Children and Family
Services (DCFS) after Damien’s half-brother, three-year-old Isiah (born
April 2007), was rushed to the hospital with brain swelling that required
surgery. During surgery, doctors
discovered massive bleeding and swelling in the brain, as well as retinal
hemorrhages. Isiah died from his
injuries on February 17, 2011,
and is not a subject of this appeal.
Isiah’s
injury occurred at the home of mother’s boyfriend, Jose O. (father), who is the
father of Damien.
title="">[3] Mother stated that she, Damien and Isiah were
living at father’s home. At the time
that Isiah was injured, mother had left to get food for the family. She took Damien with her, but left Isiah in
father’s care. While she was out, father
called her and told her to return quickly because something had happened to Isiah. When she arrived home, Isiah was in the
driveway, lying on the concrete. After a
few minutes, paramedics arrived. They
would not allow her to ride in the ambulance with the child, but relatives took
her to the hospital.
When
asked what father had told her about the incident, mother stated that father
said that Isiah had been jumping on the bed.
Father stepped out to use the bathroom, and when he returned, Isiah was
lying on the floor and “acting weird.â€
Mother denied that anything like this had ever happened before. She denied any other accidents, injuries, or
trips to the hospital. She stated that
Isiah was a healthy child and that the parents did not use physical discipline.
Father
was also interviewed. Father was
described as a very large man with many tattoos, including a tattoo that says
“5150†over his left eyebrow. He stated
that he is employed as a merchandiser for the Coca Cola Company and that he
works various shifts. Father explained
that he arrived home from work and mother went to get some food. Isiah woke up from a nap and the two started
watching a DVD. When Isiah was playing
on the bed, father stepped out to use the bathroom. When he returned to the bedroom, the child
was lying on the floor, crying softly and “twitching.†Father panicked, picked up the child and ran
to the kitchen, where he handed the child to his father. He attempted to call 911 but could not get
any reception in the house. He went
outside and called again, then handed the phone to his sister, Jessica O. (age
19), who spoke with the 911 operator.
The family took the child outside because they have a neighbor who knows
CPR. The neighbor advised them that the
child was breathing. A few minutes later
the paramedics came and took Isiah to the hospital.
Father
denied ever physically disciplining Isiah, except for spanking him once. He described the child as “hyper.†Father denied engaging in any domestic
violence, having any mental health issues, or using drugs. He admitted he was arrested when he was 18 years
old for possession of a firearm, but denied that there were any weapons in his
home. Father stated that the “5150â€
tattoo on his forehead meant “psycho.â€
hand.
Isiah’s
attending physician in the pediatric
intensive care unit stated that Isiah had a severe brain hemorrhage, brain
swelling, and massive bleeding in the brain.
At the time of the interview, Isiah had almost no brain
functioning. There was soft tissue
swelling in the back of Isiah’s head, which suggested blunt force trauma. Isiah also had retinal bleeding in both
eyes. Dr. Markovitz stated that he could
not determine when the injury had occurred, but that it was very rare to see
retinal bleeding in children who have fallen and hit their heads. Dr. Markovitz opined that the explanation
given by father was not consistent with the injuries, and that he was highly
suspicious of physical abuse.
Damien
was examined and found to be in good health with no signs of abuse or
neglect. A full skeletal survey was
performed, and the results were normal.
While
the investigation was pending, DCFS placed Damien in the temporary custody of
maternal aunt, Rodsana D., who lived with her husband and 12-year-old son.
Detective
Castillo of the Los Angeles Police Department interviewed some family members
who were present at the time of Isiah’s injuries, and no one reported hearing
anything from the bedroom. When the
detective scanned the bedroom, he saw nothing out of place. He did take some weights that were on the
floor, and stated that he would have them tested for the possibility that the
child hit his head on the weights.
When
the DCFS social worker viewed the home, she noted it was clean and well kept,
except that the bedroom shared by mother, father and the children had walls and
furniture covered with graffiti or “tagging.â€
The bed was only three feet from the thinly carpeted floor. Damien slept in a crib in the bedroom.
On
February 17, 2011, DCFS filed a section 300 petition on behalf of Isiah and
Damien. However, Isiah died the same
day. DCFS amended the petition, naming
only Damien. At the detention hearing,
the court detained Damien with the maternal aunt and ordered monitored visits
for both parents. Mother was ordered to
enroll in parenting classes and individual
counseling.
2. Jurisdiction/disposition
DCFS
submitted a jurisdiction/disposition report on March 21, 2011. Damien remained placed with maternal
aunt. The parties had been
re-interviewed. Mother reiterated what
she previously stated. Even though she
had been informed that Isiah’s injuries could not have been the result of a
fall, mother insisted that the injuries must have been accidental and could not
have been the result of abuse. Mother
explained that she was very close with Isiah, and he would tell her if father
hit him. She described Isiah as “hyper,
a dare devil, he would jump off things.â€
Mother insisted that father had a good relationship with Isiah, and when
father would get frustrated with the child, he would leave the room.
Dr.
Michelle Elmore performed a bone survey of Isiah and found an “[e]xtremely
large right frontoparietal craniotomy with marked soft tissue swelling.†A medical report verified by Dr. John Grimm
indicated that there were “[b]ilateral frontal subdural hematomas,†along with
a [l]eft parietal scalp hematoma with a likely underlying nondisplaced fracture
of the left parietal bone.†An
ophthalmology consultation revealed diffuse intraretinal hemorrhages in both
eyes. The “Brain Death Exam Reportâ€
indicated that the child “suffered a closed head injury resulting in a
nondisplaced skull fracture and severe intracranial hemorrhage.â€
A
supplemental police report described a follow up investigation that took place
on February 15, 2011. It was confirmed
that Isiah’s head injuries were very severe, were inconsistent with father’s
account of events, and appeared to be nonaccidental. Police conducted a follow up at father’s home
residence. Police observed the “enormous
amount of graffiti across the walls, dressers, and closet doors†in the
parents’ bedroom. They also observed “several
holes in the walls and the entrance door, which appeared to be made with a fist
or foot.â€
Surveillance
tapes confirmed mother’s presence at the two restaurants from which mother
stated that she bought food. Mother
explained that she and father’s sister Jessica took Damien and Jessica’s
five-month-old son Anthony to Yoshinoya.
Mother had an EBT card for Yoshinoya.
Father told mother that he did not want Yoshinoya, and she offered to
get him some Burger King. Mother told
Isiah that it was nap time and Isiah went down without resisting. She placed him on a blanket on the floor in
the parents’ bedroom. Father was on the
bed. As she was leaving, mother noted
that Isiah was lying down but was not sleeping.
Mother
and Jessica and the babies then went to Yoshinoya. They took the babies out of the car and
ordered food, but then mother realized that she forgot her EBT card. She told the cashier she was sorry and they
walked out of Yoshinoya. When she
arrived home to retrieve her EBT card, she noticed that Isiah was
sleeping. She stated that he was
breathing normally and looked fine.
Father was in the same spot on the bed.
Mother
took Damien back to Yoshinoya. Jessica
decided to remain at home. Mother went
into the restaurant and ordered the food.
As she was heading out the door from Yoshinoya, father called her and
asked her where she was. She informed
him that she was headed home. The call
lasted about nine seconds. Father then
called a second time and told mother to hurry up because something had happened
to Isiah. She told him she was
hurrying. Father sounded worried and
panicked. Mother missed another call
from father, and he called her a fourth time as she was pulling up to the
house. She observed Isiah lying in the
driveway, with their neighbor, Jessica and father. Mother did not notice any injuries to Isiah’s
head or body.
Mother
stated that she would never cover for father if he had done something to her
son. When asked about the holes in the
wall of the bedroom, mother stated that the holes were there before she moved
in.
Mother
informed DCFS that she ended her relationship with father after Isiah’s death
and wanted to reunify with Damien.
Mother had enrolled in parenting classes and had made an appointment for
individual counseling. Mother was
visiting Damien daily and the visits were appropriate.
At
the March 30, 2011 hearing, DCFS requested more time to make a recommendation
regarding the case. The court continued
the matter as father needed an attorney appointed for him. The court denied mother’s request that Damien
be released to her, but permitted unmonitored visits in the home of the
caretaker, with overnight visits permitted.
The court ordered DCFS to provide a supplemental report addressing the
release of the child to mother.
On
May 10, 2011, DCFS reported that mother was now residing with a cousin. Mother stated that she had not had contact
with father since two days after Isiah’s death.
She stated that she would do anything to have Damien returned to her and
would abide by all court orders, including restrictions regarding father’s visits. Mother attended eight parenting classes and
began individual therapy in June 2011.
DCFS did not recommend returning Damien to mother because it lacked
information from her therapist. In
addition, DCFS was waiting for the coroner’s report, which would take eight
weeks. On May 11, 2011, the court set
trial for July 27, 2011. Mother again
asked for the court to release Damien to her custody, but the court denied the
request, stating that the prior orders would stand with DCFS discretion to
liberalize.
In
a report submitted on July 27, 2011, DCFS described the results of Isiah’s
autopsy, conducted by Dr. Whiteman. Dr.
Whiteman stated that Isiah’s head trauma was inconsistent with a fall from a
bed, even onto a concrete floor or a dumbbell.
Just by looking at the head, Dr. Whiteman believed that Isiah was likely
thrown, punched, or kicked, and that the injury was caused by blunt force
trauma. The head injury was so severe,
the doctor had only seen similar injuries from car accidents or falls from a two-
or three-story building -- and even those were not as severe as the injuries
Isiah suffered. Isiah also sustained
hemorrhaging on the optic nerve, likely caused by violent shaking or being
violently thrown. Dr. Whiteman concluded
that the injuries were nonaccidental trauma, and the mode of death was
homicide.
Medical
expert Dr. Imagawa indicated that the head injury was likely acute and could
have occurred when mother was out buying food.
The child’s symptoms would have been immediate. Another expert, Dr. Heger, agreed, stating
that Isiah suffered two types of injuries:
a contact injury, which caused the hematomas in his head; and a
rotational/shaking injury which caused the eye bleeds, rapid onset of symptoms,
and death.
On
October 20, 2011, mother’s therapist confirmed by letter that mother had
attended all of her therapy sessions and was processing her grief and loss
issues related to her child. The
therapist was confident that mother had had no contact with father. Mother admitted that Isiah had been harmed
while in father’s care but could not yet articulate what caused the death of
Isiah.
Maternal
aunt confirmed that mother spent a lot of time with Damien. Mother stayed with Damien and attended to him
every evening, and spent every other night with Damien at her home. Visits between mother and Damien were
positive. Eventually, mother moved into
the aunt’s home and was granted unmonitored contact with Damien both in and out
of the home.
On
November 29, 2011, father was charged with one count of murder and one count of
assault on a child causing death. On
December 8, 2011, father was arrested for these crimes.
3. Adjudication
On
May 3, 2012, the juvenile court adjudicated the matter. It received into evidence the DCFS reports as
well as mother’s therapist’s report.
Mother moved to dismiss the allegations against her for lack of
sufficient evidence. Damien’s attorney
joined mother’s arguments and asked that the court strike mother from the
petition. Damien’s attorney argued that
the court had sufficient evidence to sustain the petition against father. DCFS asked that the court sustain the
petition as written.
The
court sustained an amended petition under section 300, subdivisions (a), (b),
(f), and (j), finding that Isiah died from suspicious injuries while in
father’s custody, the types of injuries sustained were inconsistent with
father’s explanation of how the child was harmed and were consistent with
nonaccidental trauma, and mother knew or should have known that father posed a
risk to the child. The court made
reference to father’s tattoos and stated “everybody understands certain
things.†The court indicated that it had
read through the evidence several times and believed mother “knew exactly the
person she was living with.†While the
court did not believe that mother herself was a safety risk to her child, the
court did not feel it was appropriate to strike mother from the petition.
The
court released Damien to mother’s custody on the condition that mother reside
with the child in the aunt’s home, and ordered that DCFS provide services to
the family. Mother made no objection to
the order; the only objection was from DCFS, which favored retaining the
child’s current placement with the aunt and permitting mother to have unlimited
access to the child. The court ordered
no reunification services for father.
Mother
filed a timely notice of appeal on May 18, 2012.
I. Jurisdiction is proper
Mother
argues that the court lacked sufficient evidence to support its findings under
section 300 as to mother. However,
mother does not challenge the findings that the court made under section 300 as
to father.
The
sustained allegations against father bring Damien within the jurisdiction of
the juvenile court. As long as there is
one unassailable jurisdictional finding, it is immaterial that another might be
inappropriate. (Randi R. v. Superior Court (1998) 64 Cal.App.4th 67, 72;
873, 875-876 (Jonathan B.).)
As
set forth in In re Alexis E. (2009)
171 Cal.App.4th 438, 451:
“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 juvenile 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. [Citations.]â€
We
will not reverse for error unless it appears reasonably probable that, absent
the error, the appellant would have obtained a more favorable result. (Jonathan
B., supra, 5 Cal.App.4th at p. 876.)
Because jurisdiction was proper on other grounds, mother cannot expect a
more favorable result, and we need not consider her appeal.
II. Substantial evidence
supports the juvenile court’s decision to sustain counts (a), (b), (f), and (j)
as written
We
need not consider mother’s arguments as to the propriety of her inclusion in
these counts, since jurisdiction of Damien was properly established. However, even if we were to consider mother’s
arguments, they would fail.
The court’s
jurisdictional findings are reviewed for substantial evidence. (In re
Matthew S. (1996) 41 Cal.App.4th 1311, 1318-1319.) Evidence is substantial if it is reasonable,
credible, and of solid value. (
179, 185.) We must examine the entire record, resolve all evidentiary conflicts
in favor of the judgment and draw all reasonable inferences in support of the
judgment. (Ibid.)
Mother challenges
the juvenile court’s finding that mother “knew or should have known that the
child’s father presented a risk of harm to the child’s sibling.†In addition, mother contests the finding that
“mother’s neglectful act of leaving the child’s sibling with the father
endangers the child [Damien’s] physical and emotional health and safety,
placing the child at risk of physical
and emotional harm, damage, danger and death.â€
Mother
acknowledges that in the recent case In
re Ethan C. (2012) 54 Cal.4th 610 (Ethan
C.), the California Supreme Court held that section 300, subdivision (f)
allows the juvenile court to adjudge a child a dependent if it finds that the
want of ordinary care by the child’s parent caused a child’s death. The father in that case, who failed to secure
his daughter in a child seat, argued that section 300, subdivision (f) required
a finding of criminal negligence. The
Supreme Court disagreed, concluding that “when a parent’s . . . negligence has
led to the tragedy of a child’s death,
the dependency court should have the power to intervene for the safety and
protection of children remaining in the parent’s or guardian’s custody, even if
the parent’s lethal carelessness cannot necessarily be characterized as
sufficiently ‘gross,’ reckless, or culpable to be labeled ‘criminal.’†(Ethan
C., supra, at p. 636.) The Ethan
C. court cited In re A.M. (2010)
187 Cal.App.4th 1380, in which the court discussed a father’s negligence when a
child suffocated while sleeping between his parents. The Court of Appeal held that the juvenile
court could properly have found that the father caused the baby’s death through
ordinary neglect. (Ethan C., at p. 631, citing In
re A.M., supra, at p. 1388.)
Mother
attempts to distinguish these cases, arguing that they are not factually
similar to the matter before us. She
argues that her conduct was leaving Isiah with father and several paternal
relatives when she left to get food for the family. She claims there is insufficient evidence to
support a finding that she knew or should have known that leaving Isiah with
father presented a risk of harm, or that leaving Isiah with father was
neglectful. Mother claims she did not
know of the risk of leaving Isiah with father.
The
juvenile court appears to have considered mother’s position very carefully,
noting that it read the evidence “over and over to try to ascertain what mother
knew or should have known.†The court
mentioned that it considered the tattoo that father had on his face that read
“5150.†Father also had a tattoo on his
hand that read “sick.†While father had
no formal history of domestic violence or mental health issues, the juvenile
court did not find the lack of official records of such incidents to excuse
mother from an awareness of the type of behavior those tattoos suggested. In addition, there were holes in the walls
and door of the parents’ bedroom, which father admitted to making with his fist
after he had a bad day. One of the holes
was covered with a picture, but the other was visible. While mother claimed she did not witness
father’s violent acts of punching the walls, the juvenile court did not find
this to be a satisfactory explanation of mother’s decision to ignore these
clear signs of father’s propensity for violence. And finally, mother could not have been unaware
of the graffiti or “tagging†covering the walls in father’s bedroom. Such symbols can also suggest a propensity
for violence.
A
mother who is criminally innocent in causing the death of a child may properly
be found to have failed to protect the child under section 300. (In re
Ethan N. (2004) 122 Cal.App.4th 55, 61-62, 69.) Substantial evidence existed to support the
juvenile court’s finding that mother knew, or should have known, that father
presented a risk to Isiah.
III. The juvenile court did not
err by requiring that mother remain in the home of her sister as a condition of
its home of parent order
Although
the court ordered Damien placed with mother, it conditioned that order on
mother remaining in her sister’s home.
Mother argues that such an order was error, since it required mother to
remain in her sister’s home. In other
words, mother argues, if mother moved out of her sister’s home, DCFS could
detain Damien from mother.
Mother
has forfeited this argument by failing to raise it in the trial court. “[A] reviewing court ordinarily will not
consider a challenge to a ruling if an objection could have been but was not
raised in the trial court.
[Citation].†(
fn. omitted.) Dependency matters are not
exempt from this rule. (
The record reveals that mother did not object to the court’s
dispositional order. The only objection
came from DCFS, which objected to the “court making home of parent motherâ€
order, and asked that the child remain suitably placed. Because mother failed to object to the order
in the juvenile court, she may not present this issue on appeal. (See In
re Dakota S. (2000) 85 Cal.App.4th 494, 502.)
In
addition, mother has failed to convince us that the juvenile court erred. Disposition orders are generally reviewed for
abuse of discretion. (See
470, 474.) “‘The court has broad
discretion to determine what would best serve and protect the child’s interests
and to fashion a dispositional order in accord with this discretion. [Citations.]’†(In re
Alexis E., supra, 171 Cal.App.4th at p. 454.) The court may make “any and all reasonable
orders†to ameliorate the conditions that made the child subject to the court’s
jurisdiction. (§ 362, subd. (a).) This provision and others in the Welfare
& Institutions Code “have been broadly interpreted to authorize a wide
variety of remedial orders intended to protect the safety and well-being of
dependent children [citation].†(
478, 486.) The juvenile court must keep
in mind the purpose of juvenile dependency law, which is “the preservation of
the family as well as the safety, protection, and physical and emotional
well-being of the child.â€
(§ 300.2.)
At a disposition
hearing, the juvenile court has specific authority to declare dependency yet
permit the child to remain at home with a parent, with limitations on the
parent’s control and a requirement that services be provided. (Cal. Rules of Court, rule 5.695(a)(5) &
(a)(6).)
Mother
points to In re Damonte A. (1997) 57
Cal.App.4th 894 (Damonte). In that case, the mother challenged an order
removing her children from her custody but allowing them to remain with her in
a temporary placement. Mother contended
that the order was invalid, as it permitted the Department of Health and Human
Services (DHHS) to circumvent the requirements of section 361 and constituted
improper delegation of the decision to remove the minors from the court to
DHHS. The Court of Appeal agreed. After reviewing the statutory procedure for
disposition of a dependent minor, the court stated that “[n]owhere in the
statutes or rules is there authorization for the court to declare a dependency,
order the dependent child removed from the physical custody of its parents,
order the care, custody, control and conduct of the minor to be under the
supervision of the probation officer and then direct the probation officer to
temporarily place the minor back into the home from which it was removed.†(Damonte,
supra, at p. 899.)
In
contrast, here, Damien was not removed from mother. The court stated that its intention was “to
remove from the father and we will place in the home of the mother as long as
she resides with the maternal aunt.†The
court also required “family preservation†in the form of “individual
counseling†and “child protective issues.â€
Unlike the circumstances in Damonte,
DCFS had no discretion to remove Damien from mother’s custody without
petitioning the court to take such action.
No
error occurred.
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________________,
J.
CHAVEZ
We concur:
_____________________________, P. J.
BOREN
_____________________________, J.
ASHMANN-GERST
name="_ftn1" title="">[1] All further statutory references are to the Welfare &
Institutions Code unless otherwise noted.
name="_ftn2" title="">[2] Isiah’s father lives in the Sacramento area and had very
little contact with the family. He is
not a party to this matter.
