In re Isabel M.
Filed 9/18/13 In re Isabel M. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL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opinion has not been certified for publication or ordered published for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 FOUR
In re ISABEL M. et al.,
Persons Coming Under the Juvenile Court Law.
B244431
(Los Angeles County
Super. Ct. No. CK51337)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
ROBERT M.,
Defendant and Appellant.
APPEAL from an
order of the Superior Court of
County, Jacqueline Lewis, Juvenile Court Referee. Affirmed.
Christopher
Blake, under appointment by the Court of Appeal, for Defendant and Appellant.
John F.
Krattli, Office of the County Counsel, James M. Owens, Assistant County Counsel
and Navid Nakhjavani, Deputy County Counsel, for Plaintiff and Respondent.
Appellant
Robert M. (Father) appeals the juvenile court’s summary denial of his
and Institutions Code section 388.
name="_ftnref1" title="">[1] We affirm.
The expert testimony Father sought to present in his petition nine months
after the jurisdictional/dispositional hearing was based on evidence available
at the time of the hearing. Accordingly,
the court was not compelled to grant a hearing.
(In re H.S. (2010) 188
Cal.App.4th 103.)
A. Prior
Proceeding
Father is the
presumed father of Isabel M., now 11, and Moses M., now 10. In 2003 and 2004, Isabel and an older
sibling, Sergio Y., were the subject of dependency proceedings based on their
mother’s substance abuse. Moses was born
during the pendency of those proceedings.
When the proceedings terminated in May 2004, the children were returned
to their parents and eventually to Father’s sole custody, after their mother
resumed abusing drugs and was incarcerated.
B. Adjudication
In 2005 or
2006, Father began living with Fatima D., who had three minor children, Amanda,
Melissa and Jennifer C. Amanda died at
home on November 27, 2010, when she was ten years old,
apparently from heart failure. Amanda
suffered from leukodystrophy, a progressive neurodegenerative disorder, and at
the time of her death, was severely disabled and had a greatly enlarged heart.
and redness†in the girl’s vaginal and rectal areas. Doctors who examined her in the emergency
room and a coroner’s investigator concluded she had been sexually abused within
hours of her death, and also appeared to have been the victim of continuous
sexual abuse.
title="">[4] The caseworker discovered there had been a prior
referral when Amanda was 7 years old.
Services (DCFS) filed a petition alleging that Amanda had been seriously
physically harmed and sexually abused, and that Father and Fatima “knew or
reasonably should have known†of the physical and sexual abuse and failed to
protect her.
title="">[6]
The four
remaining children, Isabel, then 8, Moses, then 7, Melissa, then 14, and
Jennifer, then 8, denied having been sexually abused.
abused at any time. The family members
reported that Amanda had shown signs of illness in the days before her death,
including nausea, a stomach ache, vomiting, and general weakness. They further reported that on the night
before her death, Fatima
had slept with Amanda in one of their home’s bedrooms while Father slept on the
couch. During the early morning hours, Fatima reported taking the girl to the
bathroom and wiping her, as she typically did, and returning to bed.
her body was cold.
The caseworker
interviewed a number of additional witnesses, including Fatima’s adult sons, Steven and Jonathan,
who had previously lived with her and Father.
Steven reported that he had seen Father masturbating while spying on
Steven’s sister Valerie in the shower.
When Steven reported the incident to Fatima, she slapped him and told him it was
none of his business. He confronted
Father as well, and received a beating from Father and Fatima. On several occasions, Steven observed Father
coming out of the girls’ bedroom in the morning. When he reported this to Fatima, she again slapped him and told him
it was none of his business.
name="_ftnref9" title="">[9] Jonathan reported that Father had touched his
sisters on their buttocks underneath their clothes.
In August
2011, Father was arrested after the autopsy report and DNA testing were
completed. The jurisdictional hearing
took place over several days in December 2011.
At the
hearing, Dr. Ruey-Kang Chang, a pediatric cardiologist, testified that Amanda’s
symptoms on the day before her death -- tiredness, nausea, vomiting, etc. --
indicated impending heart failure. If
Amanda had been receiving regular medical treatment, such as diuretics and
blood pressure medication to relieve the strain on her heart, she would likely
have responded and might still be alive.
Asked if being taken to an emergency room three hours before her death
would have prevented her death, he responded:
“I would say it’s possible,†and that there would have been a “better
chance†if she had received medical treatment 12 or 24 hours earlier.
Dr. James
Ribe, the coroner who examined Amanda’s body, was qualified as an expert in
child fatalities.
name="_ftnref11" title="">[11] He testified that he found fresh-appearing
traumatic injuries on the genitalia, including a long abrasion apparently
caused by a fingernail, 14 bright red punctuate or point-like abrasions, and “a
complete transection of the hymen at the [top] and other complete transections
at the sides of the hymen.â€
name="_ftnref12" title="">[12] Dr. Ribe concluded that these physical
findings were indicative of sexual trauma.
He further opined that the injuries he observed had occurred within
minutes or hours of Amanda’s death, noting that the injuries were bright red
and showed “vital reaction,†or bleeding into skin tissue. He further stated that the rough and ragged
nature of the tears in the hymen was indicative of recent injury. He concluded:
“[I]t was clear to me that [Amanda] had suffered blunt force injury to
her genital organs close to the time of death, or possibly at the time of
death.â€
Dr. Ribe was
unable to identify the cause of death with medical certainty, but proposed
three potential causes: (1) Amanda might
have died from sudden cardiac arrest due to her greatly enlarged heart; (2) she
might have suffered physiological stress, such as pain or fear resulting from
blunt force sexual trauma, which caused her to suffer a fatal cardiac
arrhythmia; or (3) she might have been suffocated with a pillow. He was unable to say which of these causes
was most likely.
Dr. Astrid
Heger was a professor of clinical pediatrics at the University of Southern
California and a qualified expert in child sexual abuse.
case. She testified “to a reasonable
degree of medical certainty†that Amanda was the victim of sexual abuse. Dr. Heger observed that Amanda had “a number
of recent acute injuries to the genital area, including to the hymen, that are
diagnostic of blunt force penetrating trauma.â€
She observed “a through-and-through tear to the base of the hymen†which
she described as “an acute, freshly bleeding tear,†indicative of recent
penetrating injury. She opined that
Amanda had been sexually abused six to 12 hours prior to her death. When asked whether it was possible that the
trauma might have been caused by cleaning the child, she answered “[n]o.â€
The
criminalist testified that DNA tests indicated Amanda’s DNA appeared on a
sample taken from Father’s penile shaft.
through bodily fluids. Father presented
no evidence.
After hearing
the evidence, the court sustained the following allegation: “[Father] caused [Amanda’s] death by repeated
sexual abuse. At the time of death
[Amanda] was suffering from an untreated heart condition which may have
contributed to her death. Further[,] the
coroner concluded that the child suffered a fatal cardiac arrhythmia while
being sexually abused. Physical findings
on autopsy are also consistent with the child being suffocated during the sexual
assault. [Father] caused or contributed
to the death of the child Amanda through abuse or neglect by sexually
assaulting Amanda . . . on the date of her death.â€
allegations, Father was not provided reunification services per section 361.5,
subdivision (b)(4) and (b)(6), and the court scheduled a section 366.26
hearing.
title="">[16]
On April 17,
2012, the court continued the section 366.26 hearing for an assessment of the
proposed guardianship. In June 2012, six
months after the adjudication, counsel for Father moved to continue the section
366.26 hearing, informing the court that the criminal case against Father had
been dismissed and that she anticipated filing a section 388 motion. The court granted a 90-day continuance.
C. Father’s
Section 388 Petition
On September
19, 2012, Father filed a section 388 petition.
The petition stated that the district attorney’s office had dismissed
the criminal case in May 2012. The
petition further indicated that in February 2012, the Sheriff’s Department had
sent the DNA evidence provided by Father on the day of Amanda’s death to the
Serological Research Institute (the Institute) for additional testing at the
request of the Alternate Public Defender’s Office. In April, the Institute prepared its report
stating that Amanda could not have been the source of any of the DNA found on
Father’s penis.
In addition,
the petition stated that the Alternate Public Defender’s Office hired a
pediatric forensic pathologist, Dr. Janice Ophoven, to review the medical
records and autopsy report. Dr. Ophoven
prepared two reports, one dated February 22, 2012 and one dated April 13, 2012.
the bruising and trauma to the genital and rectal area reportedly observed by
first responders and emergency personnel was likely normal postmortem
phenomena.
With respect
to the other reported injuries, Dr. Ophoven stated that these types of injuries
“do not fulfill any known diagnostic criteria for sexual injury.†She further stated that in her opinion,
neither the photographs nor the tissue indicated the presence of acute or
chronic trauma. With respect to the
presence of recent injuries, Dr. Ophoven stated: “My review of the photos indicates venous
engorgement of the tissues in this area consistent with the typical settling of
blood into the dependent tissues after death. . . . There is no
tissue confirmation of a recent laceration.â€
Dr. Ophoven found “no scientific basis for the conclusion that
[Amanda’s] death was in any way associated with sexual assault†as there was
“no confirmatory evidence this child was the victim of a recent sexual
assault.â€
Father also
submitted a lengthy report by a clinical psychologist, Martha L. Rogers, Ph.D.,
dated September 18, 2012. Dr. Rogers
reported that she had interviewed Father and submitted him to psychological
testing and concluded that nothing in his profile suggested sexual interest in
children.
The court
summarily denied the section 388 petition, stating in the order that the
request did not “state new evidence or a change of circumstances.†At the September 19, 2012 continued section
366.26 hearing, the court further explained that the evidence submitted
represented “new opinions based on the evidence available at the time of the
adjudication.†Father appealed.
DISCUSSION
“Section
388 permits ‘[a]ny parent or other person having an interest in a child who is
a dependent child of the juvenile court’ to petition ‘for a hearing to change,
modify, or set aside any order of court previously made or to terminate the
jurisdiction of the court’ on grounds of ‘change of circumstance or new
evidence.’ (§ 388, subd. (a).)†(In re
Lesly G. (2008) 162 Cal.App.4th 904, 912.)
On receipt of a section 388 petition, the court has two choices: “(1) summarily deny the petition or (2) hold
a hearing.†(In re Lesly G., supra, at
p. 912.) “In order to avoid summary
denial, the petitioner must make a ‘prima facie’ showing of ‘facts which will
sustain a favorable decision if the evidence submitted in support of the
allegations by the petitioner is credited.’â€
(Ibid., quoting
584, 593.) The petition must be
liberally construed in favor of its sufficiency. (In re
Marilyn H. (1993) 5 Cal.4th 295, 309; California Rules of Court, rule
5.570(a).) Generally speaking, “[i]f the
petition presents ‘any evidence’ that a hearing would promote the best
interests of the child, the court must order a hearing.†(In re
Hirenia C. (1993) 18 Cal.App.4th 504, 516.)
As the primary
requirement of section 388 is proof of a “‘change of circumstance[s]’†or “new
evidence,†the court does not abuse its discretion when it denies a section 388
petition supported solely by the opinion of an expert who had reexamined evidence
previously submitted. (
the minor had suffered injuries which a medical assessment concluded had been
deliberately inflicted. Three months
after the jurisdictional hearing, the parents submitted an opinion by an expert
who had reviewed the medical records and concluded there were other
explanations for the injuries.
Discussing authorities interpreting Code of Civil Procedure sections 657
and 1008, the appellate court stated that parties seeking reconsideration are
generally required to “‘“provide not only new evidence but also a satisfactory
explanation for the failure to produce that evidence at an earlier time,â€â€™â€ and
to state why they could not “‘with reasonable diligence, have discovered and
produced [the evidence] at the trial.’â€
(188 Cal.App.4th at p. 108, quoting Baldwin
v. Home Savings of America (1997) 59 Cal.App.4th 1192, 1198, italics
omitted.) Accordingly, “the term ‘new
evidence’ in section 388 must be construed to include the three requirements of
new evidence, reasonable diligence, and materiality found in sections 675 and
1008 of the Code of Civil Procedure.â€
(188 Cal.App.4th at pp. 108-109.)
Because the expert “reached his opinion based on the same evidence
available to the experts who testified at trial and simply came to a different
conclusion than theirs,†the parents did not act with the requisite “due
diligence.†(Id. at p. 109, italics omitted.)
The bulk of
the evidence submitted by Father was precisely the type the court found to be
insufficient to trigger the right to a hearing in H.S. Dr. Rogers could have
examined Father and expressed her opinion concerning his psychological state at
any time. Dr. Ophoven’s report was based
on the interpretation of pre-existing evidence available at the time of the
jurisdictional hearing. Moreover, she
did not irrefutably establish that sexual abuse had not occurred, but simply
disagreed with Dr. Ribe and Dr. Heger that the physical phenomena they observed
when they examined Amanda’s body indicated recent sexual abuse. As the H.S.
court observed, “[t]he fact that the new expert interprets the evidence
differently than did the medical doctors who testified at the jurisdiction
hearing . . . does not make [such] expert opinion ‘new evidence’
within the meaning of section 388.†(
109.)
Neither with
respect to the medical experts’ opinions nor the DNA evidence did Father seek
additional testing or the appointment of other experts. Nor do we view the DNA evidence as unduly
significant. The original report stated
only that Amanda was a “possible contributor†to the DNA collected from
Father. The juvenile court did not
mention the DNA evidence when making its findings, and there was other evidence
of Father’s sexual misbehavior, including masturbating while spying on Amanda’s
older sister in the shower, engaging in sex with Fatima in front of Amanda, and
touching the girls on their buttocks. As
the testimony Father sought to present was based on evidence available at the
time of the jurisdictional hearing nine months earlier, the juvenile court did
not err in determining that he had failed to make a prima facie case of “‘new
evidence’†showing that “‘the best interests of the child[ren] may be promoted
by the proposed change of order.’†(
The order
summarily denying the section 388 petition is affirmed.
NOT TO BE PUBLISHED
IN THE OFFICIAL REPORTS
MANELLA,
J.
We concur:
WILLHITE, Acting P. J.
SUZUKAWA, J.
Undesignated statutory
references are to the Welfare and Institutions Code.
The eldest child, Sergio, had
been living with his maternal grandmother for some time and was never made the
subject of these proceedings. The
children’s mother, Delilah Y., remained imprisoned throughout the proceedings
and is not a party to this appeal.
