In re Gracie R.

Filed 8/26/08 In re Gracie R. CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from orders of the Superior Court of Los Angeles County. Marilyn H. Mackel, Juvenile Court Referee. Affirmed.

Darlene Azevedo Kelly, under appointment by the Court of Appeal, for Defendant and Appellant Veronica R.

Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant Jorge R.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and William D. Thetford, Principal Deputy County Counsel, for Plaintiff and Respondent.

___________________________

Veronica R. and Jorge R. (the parents) appeal the orders declaring their daughter Gracie R. a dependent of the juvenile court, pursuant to Welfare and Institutions Code^[1]section 300, subdivisions (a), (b) and (j) and the findings under section 361 that substantial danger existed to the physical and emotional well-being of Gracie R., and no reasonable means existed to protect the minor without her removal from parental custody. The parents claim sufficient evidence did not support the courts jurisdictional findings and dispositional orders, and that the court erred in failing to consider alternatives other than removal from the family home. As we shall explain, the court did not err in concluding the parents engaged in abuse and neglect in finding that they intentionally failed to seek medical attention for the newborn who suffered injuries as a result of the manner in which she was placed in the car seat and that the evidence was therefore sufficient to support an exercise of jurisdiction under section 300, subdivision (b). In addition, the court did not err in removing the minor under section 361. Sufficient evidence existed to support the courts finding the parents posed a substantial risk of harm to the child based on the jurisdictional findings. Consequently, we affirm.

FACTUAL AND PROCEDURAL HISTORY

Gracie R., born in late November 2006, is the daughter of Jorge R. and Veronica R. The hospital records from Gracie R.s birth describe the newborn as normal and healthy and do not disclose any abnormalities in her appearance.

On December 18, 2006, Veronica R. took Gracie to the doctor because she had a rash on her lower back that Veronica R. believed was caused by the car seat and her diaper. She also reported that the infant had been vomiting her formula and was not gaining weight. Veronica R. was given ointment for the rash and instructions on the proper use of the car seat. Other than the rash on her lower back, the medical records from the visit do not indicate that the baby had any other bruises or marks on her body.

According to the parents, later in the evening on December 18, the parents and a friend who was helping with the care of the infant took a one and one-half hour car trip to Fontana. The parents rode in the front seat of their van while the infant sat in a rear-facing infant car seat in the back seat and the friend sat next to her. According to Veronica R., before they left she had folded a thick blanket a number of times and placed it in the bottom of the car seat. Veronica R. then wrapped the baby in another blanket and placed the baby in the car seat and strapped her in with the cars straps; even with the large blanket under the baby folded, the blanket came out the sides of the car seat.^[2] Veronica R. said the straps of the car seat were not pulled tight. She conceded she was never instructed that she should or could place a folded blanket in the bottom of a car seat under the baby. During the ride to Fontana the parents did not check on Gracie R., but the infant was quiet and they believed she was sleeping. It also appeared to the friend (in the backseat) that the baby was asleep.

When they arrived at their destination, a car dealership, Veronica R. and the friend got out of the van to speak to a salesperson and Jorge R. remained in the car with the baby. After about ten minutes, Jorge R. came to get Veronica R. because he thought something was wrong with the babyher entire face was swollen, her lips and cheeks looked blue and she could not open her eyes. When Veronica R. saw her, she thought the baby was dead. She took her out of the car seat and then the baby began to cry. Veronica R. gave the baby some formula. The parents were frightened by the childs appearance, and Jorge R. claims he urged Veronica R. to take the child to the hospital. However, Veronica R. was fearful that the authorities would not believe her and they would take the child away from her, as they had taken away her daughter Isabel several years before. They decided against seeking immediate medical attention for the baby. They drove back home. By the end of the evening, the facial swelling had gone down, but the babys face was purple and looked bruised and her eyes were red. When the paternal grandmother saw the infant later in the evening, she told the parents to seek medical attention for her.

A week later, Gracie R. had bruises on her cheeks and blood in the whites of her eyes. According to Jorge R., Veronica R. ultimately took the baby to the doctor because the marks on her face had not gone away. On December 28, Veronica R. took Gracie R. to the follow-up (to the December 18) medical appointment. The notes from the visit indicate the baby had hemorrhages in both eyes, a yellowish bruise on one cheek and a purple bruise on her other cheek. She also had a scar on her lower back. Veronica R. explained to the nurse practioner that the scar was the diaper rash area and that the other injuries were caused during the December 18 car trip; she told the nurse that the child was injured because she had been swaddled too tightly; she also told the nurse that the baby was alone in the back seat when the injuries occurred. The nurse did not think the injuries were consistent with the mothers description and suspected child abuse. Consequently, she was referred to the childrens hospital. The nurse did not tell Veronica R. that she suspected abuse. Instead she told her that the baby needed to be seen because she was not feeding properly or gaining sufficient weight. Although Veronica R. took the child to the hospital, after being seen in the initial triage, she took the baby home because, according to Veronica R. she was told there was nothing wrong with the infant.

On January 7, 2007, Gracie R. was taken to County-USC for a Suspected Child Abuse and Neglect (SCAN) examination. By the date of the examination, the babys eyes still showed the hemorrhages, but the facial bruises were gone and the scar on her back was found to be a resolved rash. According to the medical records, Veronica R. told the examiner that Gracies R.s eyes had been red since birth, and thus the report noted the hemorrhages were possible birth injuries. According to the records, Veronica R. also stated that after the car ride the child had two small blue marks on both cheeks. The examination found no evidence of abuse or neglect; Veronica R. was instructed on how to use a car seat and told to change her laundry detergent.

The records indicate that Veronica R. had a follow-up scheduled at County-USC for January 11, but she did not attend the appointment.

On January 24, 2007, after the birth records were received that showed no hemorrhages to the eyes at birth, Gracie R. was reassessed at County-USC for suspected abuse. The examiner who saw the child this time did not believe the scar on the back was a diaper rash exacerbated by a car seat. The exam also noted a small mark on her leg near her ankle. According to the medical records, Veronica R. told the examiner that she drove the car on December 18 and the baby sustained the injuries after the car seat somehow turned over on the child. After consulting with Dr. Ticson, the director of the assessment center, Gracie R. was admitted to the pediatric unit of the hospital to undergo a more thorough examination including a skeletal survey, an MRI and CAT scan of her head.

When interviewed by the Department of Children and Family Services (DCFS), Veronica R. explained that the facial injuries and the back injuries were caused by the use of the car seat. She indicated that she had folded the large blanket and placed it behind the child during the use of the car seat to prevent further irritation of the diaper rash. She maintained that the facial injuries resulted from the child being wrapped too tightly and conceded that she did not seek immediate treatment for the child because she feared DCFS would get involved and take the baby away.

Thereafter X-rays taken of the child on January 24, 2007, revealed that the baby had two posterior rib fractures on the right side that were several weeks old and a fracture to her right leg. A cast was put on the babys leg.

On January 29, 2007, DCFS filed a dependency petition alleging the child was a person described under section 300. Specifically the petition contained allegations under subdivision (b) Failure to Protect, that: (1) Gracie suffered from medical neglect as a result of her parents failing to seek treatment for her after the December 18 car trip during which she suffered injuries (allegation b-1); and (2) Veronica R. had a history of substance abuse which placed the minor at risk (allegation b-2).

The petition was supported by the detention report that disclosed Veronica R. had lost her parental rights to another child, Isabel, in 2005 and during those proceedings Veronica had abducted Isabel from DCFS custody.

On January 29, 2007, the juvenile dependency court found a prima facie case that the child was a person described under section 300 and ordered the child detained in the hospital. In early February, the court ordered the baby detained with the paternal grandmother and allowed visitation for the parents.

On March 1, 2007, the DCFS filed an amended petition containing the following allegations under section 300, subdivisions (a), (b), (e) and (j).^[3]

The March 1, 2007, jurisdictional/dispositional report disclosed additional information about Veronica R.s prior DCFS case involving Gracies sibling, Isabel. The report indicated that in June of 2001, Veronica R. had left her young daughter Isabel with her parents and that Veronica R. had substance abuse problems. Thereafter, a DCFS petition was filed containing allegations concerning Isabels father and other allegations against Veronica R.specifically concerning her substance abuse and that she had abandoned the child with no means of support. In the fall of 2001, Veronica R. abducted Isabel from the DCFS placement (i.e., the maternal grandmothers house) and was out of contact with the DCFS until Veronica R. was arrested on March 2003. When Veronica R. and Isabel were found, the child was placed back into DCFS custody. It was also discovered Isabel had genital wartsa condition that she did not have prior to Veronica R. abducting the child, and that Veronica R. knew about the condition but she did not obtain medical treatment. An amended petition in the case alleged Veronica R. had abducted Isabel and had failed to obtain medical treatment for her. Veronica R.s parental rights to Isabel were ultimately terminated. The report further noted Veronica R. suffered a drug related conviction and a conviction for kidnapping.

The jurisdictional report also indicated that Veronica R. had been arrested on an outstanding warrant on February 8, 2007, and was then in custody. Veronica R. stated that she had been arrested because she had failed to report to her probation officer. She further stated that she stopped using drugs in February 2006 when she became pregnant with Gracie, but that she had never completed the drug programs she had been ordered to complete in connection with Isabels case. The report further disclosed that neither parent nor any of the other caretakers had any explanation for Gracies fractures. The report recommended that given the injuries and the mothers history, that the family be denied reunification services.

The jurisdictional/dispositional proceedings were continued a number of times for various reasons in the spring and summer of 2007. The hearing began in mid-October 2007. At the outset, the court received into evidence without any objection or argument, the detention report, the jurisdictional reports and addendums and other documents.

Veronica R. and Jorge R. both testified the facial injuries and eye redness were caused by the car seat and they were afraid to seek medical treatment. Veronica R. admitted that the decision to not seek treatment was a mistake. They both stated they did not know how the ribs became fractured.

Dr. Ticson, a pediatrician with a sub-specialty in child abuse and the director of the child abuse assessment center at County-USC, also testified at the hearing. She testified that the injuries Gracie R. suffered were pathognomonic of abuse. Dr. Ticson testified that the facial injuries and eye hemorrhaging reported were consistent with suffocation, head trauma, covering the babys face and restricting chest movement. Dr. Ticson opined that such injuries would not occur if the child were properly wrapped. Dr. Ticson testified that lack of oxygen could have caused the injuries, and that the injuries could not be caused by the mechanisms described by Veronica R. (wrapping the child), unless the child was so tightly wrapped she could not breathe and her chest movement was constricted. The doctor further testified that the facial and eye injuries resolve themselves without treatment. Dr. Ticson testified that the rib fractures could not have been caused by the way the baby was wrapped and that usually such injuries are the result of a direct blow or by squeezing the baby. She also told the court that while the fractures could be caused accidentally, the fractures could not be explained by the statements concerning the use of the car seat, and thus in this case were not the result of an accident. She also testified that it appeared the fractures were four to six weeks old when the x-rays were taken on January 24, 2007. She further testified that rib fractures are only treated for pain, and that she did not know whether Gracie had experienced pain. Dr. Ticson also testified that the x-rays showed a possible fracture to the babys right ankle which could not be self-inflicted, that was about one week old as of January 24, 2007.

The parents presented evidence from their expert orthopedic pediatric surgeon, Dr. Grogan. He agreed with Dr. Ticson that the x-rays showed two rib fractures on the right side. He opined the fractures were caused by pushing or squeezing on the childs chest; he had observed similar fractures when an adult carries a baby like a football and the adult stumbles or falls and in so doing squeezes the child. Dr. Grogan did not agree that they were pathognomonic of abuse, but were suggestive of child abuse. Dr. Grogan, did not agree that Gracie had a fractured ankle. He believed that Dr. Ticson and the County-USC doctors had over read the x-rays and presumed a fracture.

After the DCFS and the parents presented all of the evidence, the court expressed some concern that it did not have enough information about the car seat, the blanket and how the child had been placed in it, and thus the court re-opened the case and heard additional testimony and evidence on the matter. Veronica R. described the car seat and how she had folded the large (4 foot square) blanket four times and placed it under the baby. She stated that she was instructed at the hospital in how to use the car seat, but was never told how to place a blanket on the seat under the baby; she stated that the car trip on December 18 was the first time she had placed the blanket under the baby in this manner. She testified that adjustable straps secured the baby in the car seat and that on the day of the incident she had no trouble securing the straps around the baby. When the hearing resumed the next day, the court presented the parties with pictures of car seats it had located on the Internet in order to better determine the nature of the seat.^[4] The court gave the parties an additional opportunity to argue. The parents asked the court to dismiss the petition and argued that all of the injuries were accidentally caused by the car seat. Gracie R.s counsel and the DCFS asked the court to sustain the petition.

The court sustained counts a-1, b-1 and j as pled in the amended petition and struck count e-1 and b-2. The court specifically found as follows:

The child is described in subdivisions a, b and j regarding the facts that have been presented. [] The evidence that has been presented to this court and the issue of the court [sic] seat causing the fractures and the medical testimony, the court finds that the department has met its burden to show number one, that the parents acted inappropriately, not seeking medical assistance after observing the childs face was blue and swollen; [] Number two, when this occurred apparently on the 18th of December and after driving to Fontana to their home and the child having been strapped into a car seat where the child may have in fact shifted because the testimony is that the car seat didnt require any the buckles did not require any extra pressure to hold the child in there and that was pretty telling information. [] Some shifting may have occurred that resulted in the

childs suffocation which according to Dr. Ticson could have resulted in the swelling of the face and the hemorrhages that occurred. . . . [] There is a prima facie showing that this certainly resulted in medical neglect of the child, etc. Also conceivable that given how the fractures are described . . . . [] All of these are indications that something did occur on the 18th that may have been that and was not likely intentional abuse of the child, but not resulting in the courts ability to sustain by a preponderance of the evidence e-one[^[5]] which the court has stricken.

However, neglect of the child, nave parenting of the child and failure to follow the procedures that would indicative of mature and responsible parenting and more concerned about the fear of the child abuse versus the prior lost [sic] of the child versus the health of the child which could have resulted ultimately in the demise of the child indicates that this is abuse caused by parental neglect;

And so I believe that the findings of the court and the facts presented to the court do support finding a-one and b-one as well as the historical as appropriate findings.

Veronica R.s counsel then asked the court in view of its comments to alter/amend the allegations: The way its drafted which says such physical abuse and what the court has described shows more like neglect in handling this, which is more suggestive of intentional abuse. [] And I would ask the court to change physical abuse and negligence [sic] handling or parenting of the child and resulting in the . . . injuries.

To which the court responded: The reason that the court is not inclined to change that because the actions of the parents and the possible awareness of something seriously being wrong, that is negligent and that is an abusive parent to not take the child for a medical examination immediately, but rather acting on the fear of the prior matters that occurred.

Its not this courts position that physical abuse that is sustainable under subdivision a requires the action of the parent to a child as a direct hit, if you will, but rather it reads that the child suffered or there is substantial risk that the child will suffer serious physical harm inflicted non-accidental to be denied medical treatment.

Its not an accident to not go to the medical clinic that was intentional on their part or the part of the parents;

That inflictional [sic] act flowed from what may have been negligent handling of the child which could have resulted in the actual death of the child and thats why we are sustaining subdivision a . . . . The court did, however, strike the findings in the petition concerning the ankle fracture; the court agreed with Dr. Grogan that the fracture was not shown to have occurred. The court immediately proceeded to the disposition without additional argument or discussion by counsel. The court found:

The court declares the child under subdivisions a, b and j and the court finds by clear and convincing evidence that return of the child to the care and custody of the parents would pose substantial risk and detriment. [] Reasonable efforts have been made by the department. The child is ordered suitably placed in the care and custody of the [DCFS] in the home of the maternal [sic] grandmother with reunification services . . . . The court thereafter ordered parenting classes, individual counseling, conjoint counseling and monitored visits. Neither parent argued that the court should consider alternatives to removal. Veronica R.s counsel did object when the minors counsel asserted that she wanted the mother to undergo drug testing. The court agreed with Veronica R. that drug testing was not warranted based on the sustained allegations.

The parents timely appeal.^[6]

DISCUSSION

A parent may seek review of both the jurisdictional and dispositional findings on an appeal from the dispositional order. (In re Cynthia D. (1993) 5 Cal.4th 242, 249.)

At the jurisdictional hearing the juvenile court determines whether the allegations in the petition that the minor comes within section 300 (and therefore within the juvenile courts jurisdiction) are true. The courts jurisdictional findings must be based on a preponderance of the evidence. (Id. at p. 248; see 355.) If the court finds jurisdiction under section 300, it declares the child a dependent of the juvenile court and proceeds to the disposition phase, where the court considers whether the child should be removed from the parents.

The guidelines and limitations for removal of a child from the custody of the parents are set forth in section 361. Section 361 provides, in pertinent part:

(c) A dependent child may not be taken from the physical custody of his or her parents . . . whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence of any of the following circumstances listed in paragraphs (1) to (5) . . . :

(1) There is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minors physical health can be protected without removing the minor from the minors parents or guardians physical custody. . . . ( 361, subd. (c).)

At the dispositional phase of dependency proceedings the burden of proof is clear and convincing evidence. (See 361; In re Sheila S. (2000) 84 Cal.App.4th 872, 881.)

On appeal, the substantial evidence test is the appropriate standard of review for both the jurisdictional and dispositional findings. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654; In re P.A. (2006) 144 Cal.App.4th 1339, 1344.) Under the substantial evidence test, appellate review is circumscribed. (In re Tania S. (1992) 5 Cal.App.4th 728, 733-734 [appellate court must examine the whole record in a light most favorable to the findings and conclusions of the juvenile court and defers to the lower court on issues of credibility of the evidence and witnesses].) It is our duty to determine whether the courts dispositional order is supported by substantial evidence. The term substantial evidence means such relevant evidence as a reasonable mind would accept as adequate to support a conclusion; it is evidence which is reasonable in nature, credible, and of solid value. (See In re Jerry M. (1997) 59 Cal.App.4th 289, 298.) If there is any substantial evidence, contradicted or uncontradicted, which will support the judgment, we must affirm. With these principles in mind, we examine appellants contentions.

On appeal, the parents argue that neither the juvenile courts jurisdictional findings^[7]nor the dispositional orders are supported by sufficient evidence. In addition they argue that the court erred in failing to consider alternatives to removal of the child. As we shall explain, none of these claims has merit.

I. Jurisdictional Findings:

The court determined Gracie R. was a person described under section 300, subdivisions (a), (b) and (j).

The court determined Gracie R. was a person described under section 300, sustaining virtually identical findings under subdivisions (a)^[8]and (b) asserting that when Gracie R. was 3 weeks old she suffered swelling and bruises to her face, bruises and blood in the childs eyes and her parents failed to obtain timely necessary medical treatment for her. It was further alleged that in mid-January the child was medically examined and found to have a hypopigmented area to the childs flank and bilateral Scleral hemorrhages to the childs eyes and about 6 weeks old right 6th and 7th posterior rib fractures. While the allegation under subdivision (a) concludes with such physical abuse of the child . . . endangers the childs physical and emotional health and safety and places the child at risk of physical and emotional harm, damage and danger, the last sentence of the b-1 allegation characterizes the abuse as medical neglect. The juvenile dependency court also sustained the allegations in the amended petition asserted under section 300, subdivision (j)^[9]which alleged that Veronica R. failed to reunify with Gracie R.s sibling, Isabel and that that such negligent conduct by the childs mother endangers the child Gracie R.s physical and emotional health and safety and places the child at serious risk of harm.

Before this court the parents contend that the court committed legal error with respect to section 300, subdivision (a). They further assert the evidence presented was insufficient to demonstrate the incidents alleged resulted in serious physical harm or caused a substantial risk of serious harm as required by section 300, subdivision (a) or (b) because no medical attention was necessary for the injuries. The parents also assail the courts exercise of jurisdiction under subdivision (j) for two reasons, arguing: (1) the court did not have the appropriate evidence before it to find that Isabel had been abused; and (2) the circumstances of Isabels case are so dissimilar to this one that it would not support a finding of jurisdiction here.

Turning to the exercise of jurisdiction under section 300, subdivision (b), section 300 provides in pertinent part:

Any child who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court. . . . []:

(b) The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child, or the willful or negligent failure of the childs parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left, or by the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent or guardian to provide regular care for the child due to the parents or guardians mental illness, developmental disability, or substance abuse. . . . Whenever it is alleged that a child comes within the jurisdiction of the court on the basis of the parents or guardians willful failure to provide adequate medical treatment or specific decision to provide spiritual treatment through prayer, the court shall give deference to the parents or guardians medical treatment, nontreatment, or spiritual treatment through prayer alone in accordance with the tenets and practices of a recognized church or religious denomination, by an accredited practitioner thereof, and shall not assume jurisdiction unless necessary to protect the child from suffering serious physical harm or illness. In making its determination, the court shall consider (1) the nature of the treatment proposed by the parent or guardian, (2) the risks to the child posed by the course of treatment or nontreatment proposed by the parent or guardian, (3) the risk, if any, of the course of treatment being proposed by the petitioning agency, and (4) the likely success of the courses of treatment or nontreatment proposed by the parent or guardian and agency. The child shall continue to be a dependent child pursuant to this subdivision only so long as is necessary to protect the child from risk of suffering serious physical harm or illness. ( 300, subds. (a) & (b).)

Subdivision (b) consists of three elements: (1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) serious physical harm or illness to the minor, or a substantial risk of such harm or illness. (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.) We note that section 300 subdivision (b) specifically applies to the willful or negligent failure of the parent or guardian to provide the child with . . . medical treatment. Such is this case. As the court made clear the conduct herespecifically the failure to seek immediate medical treatment was not an accident. The parents intentionally avoided seeking immediate aid for the child even though both Jorge R. and the paternal grandmother thought the infant should have been taken to the hospital on December 18. The parents have not presented any legal authority, nor have we found any that would preclude a juvenile dependency court from finding jurisdiction under subdivision (b) based on a factual finding that a parent intentionally failed to seek immediate medical treatment for a child.

Furthermore, we do not agree with the parents contention that the jurisdictional finding under subdivision (b) is infirm because no medical attention was actually necessary for Gracie R. Parents rely on In re Petra B. (1989) 216 Cal.App.3d 1163, 1171-1172 and In re Phillip B. (1979) 92 Cal.App.3d 796, 802 for the proposition that to justify intervention in a case where the parents have failed to obtain medical treatment for a child the state must demonstrate the child has suffered a serious harm or is at risk of harm, and there is a reasonable treatment for the injury. Here they point out that the medical experts agreed that Gracie R.s injuries would all resolve themselves on their own without medical intervention. Thus, they argue that their failure to seek medical treatment, for whatever reason, does not rise to the level where state intervention was legally warranted.

Parents reliance on PetraB. and Phillip B. and the considerations for state intervention described therein are inapt. In Petra B. the child suffered accidental burns on her body. The parents assessed her condition, but did not think it was serious enough to seek medical treatment or intervention. Instead they treated it with various home remedies. The burns did not heal; they became infected and eventually the injuries had to be treated in the hospital. (In re Petra B., supra, 216 Cal.App.3d at pp. 1167-1169.) A dependency petition alleging the child was a person described under section 300, subdivision (a) based on the failure of the parents to seek timely medical treatment was filed. The petition was sustained and the courts jurisdictional findings were upheld on appeal based on the courts assessment that notwithstanding the parents views about the necessity for treatment, without medical intervention the child suffered a risk of harm from infection and the medical treatment was not high risk or opposed by the parents. (Id. at p. 1172.)

In Phillip B.,the minor, who lived in a residential care facility since birth, suffered from Down Syndrome and a congenital heart defect. The juvenile probation department filed a dependency petition under section 300, subdivision (d) requesting that the child be declared a dependent because the parents had refused to consent to the minor receiving a heart operation to correct the heart defect. (In re Phillip B., supra, 92 Cal.App.3d at pp. 799-800.) The court of appeal affirmed the exercise of jurisdiction in that case and in so doing set forth the considerations (the parents here rely upon) before the state can intervene in parental decisions involving medical treatment: Several relevant factors must be taken into consideration before a state insists upon medical treatment rejected by the parents. The state should examine the seriousness of the harm the child is suffering or the substantial likelihood that he will suffer serious harm; the evaluation for the treatment by the medical profession; the risks involved in medically treating the child; and the expressed preferences of the child. Of course, the underlying consideration is the childs welfare and whether his best interests will be served by the medical treatment. (Id. at p. 802.)

In both Petra B. and PhillipB. the parents considered but ultimately rejected medical intervention. The parents in Petra B. did not seek treatment based on their belief that it was not necessary--that the childs wounds were not serious. The opinion in Phillip B. does not disclose the parents reasons for rejecting the treatment for their son, but the opinion indicates the surgery posed substantial risks for the child, made more significant by his Down Syndrome. In addition, the considerations outlined in Phillip B. and applied in Petra B. also presuppose that the parents have actually, and knowingly considered, but rejected medical treatment based on a reason related to the proposed treatment, as implied in Phillip B. or the childs condition as in Petra B.

This case stands in stark contrast to Petra B. and PhillipB. Here on December 18, when Gracie R. was removed from the car seat the parents actually believed Gracie R.s condition was grave and that she was in need of medical attention. Veronica R. admitted that she thought the child might be dead and that it was a mistake to not have taken her to the hospital. Jorge R. thought the child should be taken to the hospital. But the parents failed to seek immediate medical help, not based on a reasonable (or even unreasonable) belief that the child was fine, that her condition would resolve itself, or could be treated at home. Nor did their decision involve any religious or cultural considerations or other objection to medical treatment. Instead, they were motivated to do nothing based on their fear that they would be caught by the authorities and that the child might be taken away from them. At the time of her injuries, the parents had no idea that the injuries would not have long lasting effects on the child. Their decision-making process did not reflect any concern for the health of the child whatsoever. Rather the parents decisions showed a clear lack of judgment, which given Veronica R.s history in failing to obtain medical attention with her other child, posed a future risk of harm for Gracie R., not withstanding the fact that these injuries resolved themselves over time and may not have long-lasting effects. Finally, the fact that these injuries resolved on their own does not mean that the injuries were not serious and could not have been treated at the time they were sustained. Indeed, even the parents medical expert explained that Gracie R. could have been treated for the symptoms of these injuries, including for pain.

Thus, we do not agree with the parents that dependency jurisdiction was unwarranted because medical intervention was ultimately unnecessary. The record contains sufficient evidence that Gracie R. suffered injuries alleged in the petition as sustained by the lower court, that the parents failed to seek timely medical treatment for the child and that their failure to act out of concern for themselves rather than the health and welfare of the baby supported a finding that Gracie R. was at a risk of harm warranting state intervention. In view of all of the evidence, we cannot say the court erred in its jurisdictional findings as to the minor under section 300, subdivisions (b).

In light of our conclusion that the juvenile court properly exercised dependency jurisdiction under section 300, subdivision (b) we do not examine whether jurisdiction was also proper under subdivision (a) or (j). (In re Athena P. (2002) 103 Cal. App.4th 617, 630; In re Shelley J. (1998) 68 Cal.App.4th 322, 330 [jurisdiction may be based on a single subdivision].) Even if we agreed with the parents arguments with respect to the allegations under section 300, subdivision (a) and (j), we would nonetheless conclude that jurisdiction was proper based on subdivision (b).

II.                Dispositional Order

The parents claim that even if this court determines the juvenile dependency courts exercise of jurisdiction was proper the courts dispositional order cannot stand because it was not supported by sufficient evidence and because the court failed to consider other reasonable means of protecting the minor other than asserting jurisdiction, including those outlined in section 360, subdivision (b).

After the court stated its jurisdictional findings it proceeded immediately to the dispositional phase, stating [t]he court declares the child under subdivisions (a), (b) and (j) and the court finds by clear and convincing evidence that return of the child to the care and custody of the parents would pose a substantial risk and detriment. Reasonable efforts have been made by the department. The child is ordered suitably placed in the care and custody of the [DCFS] in the home of the maternal [sic] grandmother with reunification services. . . . The court thereafter ordered parenting classes, individual counseling, conjoint counseling and monitored visits. Neither parent objected to the order or argued that the court should consider alternatives to removal. Veronica R.s counsel did object, however, when the minors counsel asserted that she wanted the mother to undergo drug testing. The court agreed with Veronica R. that drug testing was not warranted based on the sustained allegations.

The DCFS responds that the parents failure to object to the dispositional order constitutes a waiver of these claims on appeal. The waiver doctrine has been repeatedly and consistently applied in dependency cases. (In re S.B. (2004) 32 Cal.4th 1287, 1293 [[A] reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court. . . . [] Dependency matters are not exempt from this rule; see e.g., In re Daniel D. (1994) 24 Cal.App.4th 1823, 1831 [by only seeking placement with herself in superior court, mother waived right on appeal to contend child should be placed with grandmother]; In re Kevin S. (1996) 41 Cal.App.4th 882, 885 [mother waived the right to contest finding of reasonable reunification efforts by not objecting in trial court].) In In re Richard K. (1994) 25 Cal.App.4th 580, 587 the court concluded that by submitting on the agencys recommendation, the mother waived any objection to the juvenile courts dispositional orders. Here, although the parents strenuously objected to jurisdiction, they did not appear to contest the removal, asking only that the family be given family reunification services. Thus, they failed to preserve their arguments against the disposition order on appeal. In any event, even assuming that the parents objection to removal is not waived,^[10]they have not carried the burden of demonstrating a basis for reversal.

The record supports the courts finding. By statute, there must be clear and convincing evidence that there are no reasonable means by which the minors physical health can be protected short of removal. ( 361, subd. (c)(1).) Here, the juvenile courts formal disposition order reflects the requisite determination, explicitly referencing the lack of reasonable means by which the minors physical health can be protected without removing the minor from the parents physical custody. The record developed in this case during the jurisdictional proceeding provides sufficient evidentiary support for that determination. We thus conclude that the parents failed to carry their burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order.

We acknowledge that the court did not mention the existence of alternatives to out-of-home placement in its remarks at the hearing. (In re Henry V. (2004) 119 Cal.App.4th 522, 529.) Nonetheless, in finding the return of Gracie R. to her parents custody posed a substantial risk of harm and that the baby should remain with her grandmother where she had been placed in February 2007, the court necessarily considered but rejected the alternative of placing Gracie R. with her parents and ordering services. In addition, there is some evidence that the court considered the evidence pertaining to alternatives to removal. At the hearing, the court stated that it had reviewed all of the documents in evidence which included the DCFS reports. Specifically the matter is addressed in the DCFS detention report. While the DCFS report is not a model of clarity or thoroughness on the subject of alternatives to removal, it supports the courts finding, which in turn supports its order. (In re Stephen W. (1990) 221 Cal.App.3d 629, 645.) The detention report clearly implies no reasonable alternatives to removal existed given Veronica R. admitted failure to participate in the programs and services offered in connection with the prior dependency proceeding involving her daughter Isabel.

In any event, failure to articulate alternatives to removal does not require reversal where the error is harmless. Although the court did not state a factual basis for its removal order, any error is harmless because it is not reasonably probable such findings, if made, would have been in favor of continued parental custody. (E.g., In re Jason L. (1990) 222 Cal.App.3d 1206, 1218, and cases cited therein; cf. In re Basilio T. (1992) 4 Cal.App.4th 155, 171 [error cannot be deemed harmless because there were less drastic alternatives to removal].)

Here, any error in failing to explicitly articulate and reject less drastic options is harmless. The juvenile court implicitly determined that the risk of physical harm to Gracie R. was too great to leave her in her parents custody with in-home services, a determination that finds adequate support in this record. In view of the evidence in the record before this court, we find no error.

DISPOSITION

The juvenile courts orders are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WOODS, J.

We concur:

PERLUSS, P.J. ZELON, J.

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^[1] All statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] As reflected in the jurisdictional/dispositional report, Jorge R. originally stated that Veronica R. did not use the belt on the seat because it would not fit with the blanket folded underneath.

^[3] The allegations under subdivisions (a) and (e) were identical. They alleged:

On 12/19/07, the child, Gracie [R.] age then 3 weeks old, was found to be suffering from swelling to the childs face, bruises to the childs face and blood in the childs eyes. Further, the childs mother, Veronica [R.] and the childs father, Jorge [R.] failed to obtain timely necessary medical treatment for the child for 10 days. On 12/28/07, the child was medically examined and found to be suffering from Scleral hemorrhages to the childs eyes and bruises to the childs face and hypopigmented area to the childs left flank. Further, the childs mother failed to keep a medical appointment for the child on 1/11/07. On 1/24/07, the child was medically examined and found to have a hypopigmented area to the childs flank and bilateral Scleral hemorrhages to the childs eyes and a bruise to the childs leg, right distal tibial torus fracture, and about 6 weeks old right 6th and 7th posterior rib fractures. Further, the child was hospitalized on 1/24/07. Such physical abuse of the child by the childs mother and father endangers the childs physical and emotional health and safety and places the child at risk of physical and emotional harm, damage and danger.

The allegation under subdivision (b), specifically b-1 was nearly identical to that alleged under (a) and (e), except that the last sentence asserted: Such medical neglect of the child by the childs mother and father endangers the childs physical and emotional health and safety and places the child at risk of physical and emotional harm, damage and danger. (Emphasis added.)

Allegation b-2 provided: The child, Gracie [R.]s mother, Veronica [R.] has a history of substance abuse, which renders the childs mother incapable of providing regular care for the child. Further, the childs mothers substance abuse endangers the childs physical and emotional health, safety and well being and places the child at risk of physical and emotional harm and damage.

The allegation under subdivision (j) alleged as follows: The child, Gracie [R.]s mother, Veronica [R.], has failed to reunify with the child Gracie [R.s] sibling, Isabel [P.R.]. Such negligent conduct by the childs mother endangers the child, Gracie [R.s] physical and emotional health and safety and places the child at serious risk of harm.

^[4] The parents could not produce the actual car seat. Apparently, the car seat they used on December 18 had been stolen from the grandmothers car.

^[5] Section 300, subdivision (e) provides in pertinent part:

(e) The 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 physical disfigurement, permanent physical disability, or death; any single act of sexual abuse which causes significant bleeding, deep bruising, or significant external or internal swelling; or more than one act of physical abuse, each of which causes bleeding, deep bruising, significant external or internal swelling, bone fracture, or unconsciousness; or the willful, prolonged failure to provide adequate food. ( 300, subd. (e).)

^[6] Veronica R.s notice of appeal indicates her appeal from the jurisdictional findings only and contains no reference to the dispositional orders. This notwithstanding, Veronica R. challenged both on appeal. In view of the preference for broad construction of notices of appeal in general and specifically in dependency matters, we construe her notice of appeal liberally in favor of its sufficiency as properly incorporating an appealable judgment including both the jurisdictional findings and the dispositional orders. (In re Tracy Z. (1987) 195 Cal.App.3d 107, 112.)

^[7] Initially, on appeal Jorge R. did not contest the courts exercise of jurisdiction. However, after Veronica R. filed her brief, Jorge R. changed his position and joined in Veronica R.s appellate arguments; he filed a letter of errata in which he deleted all concessions in his opening brief concerning the propriety of the courts jurisdictional findings.

^[8] Under section 300, subdivision (a), child is a person described therein where: The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm inflicted nonaccidentally upon the child by the childs parent or guardian. For the purposes of this subdivision, a court may find there is a substantial risk of serious future injury based on the manner in which a less serious injury was inflicted, a history of repeated inflictions of injuries on the child or the childs siblings, or a combination of these and other actions by the parent or guardian which indicate the child is at risk of serious physical harm. . . .

^[9] Section 300, subdivision (j) provides in pertinent part:

The childs sibling has been abused or neglected, as defined in subdivisions (a), (b), (d), (e), or (i), and there is a substantial risk that the child will be abused or neglected, as defined in those subdivisions. The court shall consider the circumstances surrounding the abuse or neglect of the sibling, the age and gender of each child, the nature of the abuse or neglect of the sibling, the mental condition of the parent or guardian, and any other factors the court considers probative in determining whether there is a substantial risk to the child.

^[10] While [t]he loss of the right to challenge a ruling on appeal because of the failure to object in the trial court is often referred to as a waiver, the correct legal term for the loss of a right based on failure to timely assert it is forfeiture, because a person who fails to preserve a claim forfeits that claim. In contrast, a waiver is the intentional relinquishment or abandonment of a known right. (In re S.B. (2004) 32 Cal.4th at p. 1293 n. 2 [Citations omitted.]) Here, however, we use the term waiver because the circumstancescounsel objecting to certain aspects of the dispositional order which would have required the mother to undergo drug testingcreate an inference of the relinquishment of a known right.