In re Laci L.

Filed 8/7/09 In re Laci L. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

Rochelle P. appeals from orders of the juvenile court declaring her children, Laci L. and Ty L., dependents of the court and removing them from her custody. She contends the principles of res judicata and collateral estoppel should have barred relitigation of issues involved in prior proceedings regarding her older daughter, Sierra L., and the evidence was insufficient to support detention, jurisdiction, or out-of-home placement at disposition. We affirm the jurisdiction order, but reverse the disposition order and remand for further proceedings.

STATEMENT OF THE CASE AND FACTS

Rochelle and Anthony L. are the parents of Sierra, born in 2001, Laci, born in 2006, and Ty, born in 2008. In August 2001, Sierra suffered extreme injuries that left her legally blind, brain damaged, unable to speak or feed herself, and in need of various services. The parents maintained that the injuries were due to a brain infection and an incident in which Rochelle, suffering an epileptic seizure, dropped the baby and fell on top of her. Dependency proceedings were ultimately dismissed after a legal guardianship was established with Sierras maternal great grandparents.[1] Criminal prosecution of the parents concluded with Anthony pleading guilty under People v. West[2]to felony child endangerment (Pen. Code,  273a, subd. (a)).[3] Anthony was placed on five years probation, and the case against Rochelle was dismissed.[4] Anthonys subsequent attempt to withdraw his plea was denied.

In March 2006, Rochelles mother obtained a temporary restraining order (TRO) against Anthony, after a February 28, 2006 incident in which she sustained injuries after he pushed her. She did not pursue the matter and on April 3 the TRO was dissolved.

Laci was born in August 2006. The record reflects no indication of any problems with the parents care of her.

The current dependency proceedings were instituted in January 2008, shortly after Ty was born, when Laci was 16 months old. The petition, filed by the Lake County Department of Social Services (Department) on January 11, 2008, alleged Laci and Ty came within the provisions of Welfare and Institutions Code section 300, subdivisions (a), (b), and (j).[5] Specifically, it was alleged under section 300, subdivision (a), that the children were at substantial risk of suffering serious physical harm inflicted nonaccidentally by their father, Anthony L., in that Anthony had a history of physical violence evidenced by his having pled guilty on October 15, 2002, to Willful Harm or Injury to a Child regarding multiple injuries inflicted upon his newborn daughter, Sierra [L.], including at least 18 bone fractures as well as head trauma that consisted of hemorrhaging, bruising and atrophy of the brain and resulting in permanent disabilities including blindness and mental retardation; and by a TRO issued against Anthony on March 20, 2006, for physically assaulting the maternal grandmother, who required hospital treatment for injuries including bruising on her wrist, shoulder and back and lumps on her head. Under section 300, subdivision (b), the petition alleged that the children were at substantial risk of suffering serious physical harm or illness as a result of Rochelle P.s self-medication with Marijuana to control her epileptic seizures rather than taking her doctor prescribed medication, which was of particular concern because Rochelle contended that her seizures caused Sierras 2001 injuries, and as a result of Anthonys use of controlled substances including marijuana. Finally, it was alleged under section 300, subdivision (j), that the children were at risk of being abused or neglected in that Anthony had severely abused Sierra; Rochelle had failed to protect Sierra from Anthonys physical abuse; and both parents had a history of failing to seek necessary and immediate medical treatment for Sierra, including failing to seek treatment in July 2001 despite the newborn being unresponsive and hypothermic for 2 days.

Also on January 11, 2008, the Department obtained an ex parte warrant for protective custody ( 340), representing that it had recently received a report that the parents had had the two subject children, its investigation revealed that the parents were moving out of the home they shared with numerous supervising adults to one in which they would live alone with the young children, and removal of the children was necessary and appropriate because of Rochelles untreated medical needs and substance abuse issues, Anthonys history of violence and the parents significant CPS history.

An amended petition was filed on January 14, adding an allegation under section 300, subdivision (b), that the injuries to Sierra occurred while the parents were living together and Rochelle supported Anthonys explanation denying culpability in Sierras dependency case. The detention order was filed after a hearing on January 17, 2008, and the children were placed in a foster home.

The jurisdiction report was filed on February 8, 2008, with supplemental reports filed on February 13 and May 19, 2008; the jurisdiction hearing began on February 8, and continued with intermittent hearings until June 11, 2008.

Rochelle was 18 years old and Anthony 20 years old when Sierra was born, several weeks premature, in June 2001. Rochelle testified that the baby was born with a brain infection caused by the hospital withholding her labor too long. Sierra was hospitalized until June 25, then went home for only 12 days before the parents brought her to Redbud Hospital on July 7, lethargic and hypothermic, with a rectal temperature of 95.6 degrees. She was transferred the same day to Santa Rosa Memorial Hospital (SRMH). Medical records reflect that the parents said Sierra had been in this condition for two days, with decreasing response to stimuli. A CT scan showed a subarachnoid hemorrhage (bleeding around the brain), and Sierra had healing abrasions on her nose and chin, bruises on her right temple and around her genitalia and rectum, and a possible bruise on her left cheek. A report by Dr. Philip Riedel, of SRMH, stated the baby had suffered  possible child abuse  and was also being evaluated for possible sepsis and viral meningoencephalitis. Hospital records stated that when possible abuse was discussed, Anthony said he might have  bruised her butt while grabbing her to go to the hospital and that he  freaked out cause she wasnt moving. 

Rochelle testified that a red mark on Sierras buttocks observed during this hospitalization was where Anthony pinched her, trying to get a response, and that the bruising on Sierras face was due to her brain infection. Rochelle testified that neither she nor Anthony did anything to physically harm the baby. They took her to the clinic for a follow up visit after her initial hospital discharge and she appeared to be fine; then a day or so later they took her to the hospital because she stopped breathing. Rochelle testified that Sierra had not shown signs of illness before they took her to the hospital and denied that the baby had been unresponsive for two days.

Sierra was transferred to University of California San Francisco (UCSF), where the medical team concluded her symptoms were more consistent with an infection in the brain than with child abuse, although they were not able to identify an organism that caused the infection.[6] Sierra improved and was discharged on July 31, alert and active. In a letter to Child Protective Services (CPS), however, a UCSF social worker noted that nurses had commented on the parents general rough handling of the baby and Anthonys rather aggressive demonstrations of affection. The social worker stated, Had Sierra come to UCSF under different circumstances, the parental behaviors described above may have been attributed to young, unsophisticated parents with no parenting experience. However, given the history, it seems appropriate that there be some CPS follow up after discharge.

Only a week later, on August 7, Sierra was back in the hospital with severe injuries. In medical records from Redbud Hospital, Dr. David Racker reported that Sierra had suffered a fractured humerus, fractures of ribs 6 through 9, significant collapse of her left lung, and [b]ilateral probable subdural fluid collections not having a typical appearance for acute hemorrhage but developing since the earlier study of 07 July 01. A scan of Sierras head showed an area of shrinking or dead tissue that was distinctly unusual for a 2 month old patient but appear to have developed largely since the exam of one month ago. She was transferred to Oakland Childrens Hospital.

Lake County Sheriffs Department reports related that Dr. James Crawford, of Oakland Childrens Hospital, was not convinced Sierras old injuries were caused by infection. He characterized Sierras injuries as  a horrific level of skeletal trauma  that he felt was caused by child abuse and described Sierra as a  neurological devastated child with a brain that looked like Swiss cheese.  Dr. Crawford was suspicious of Rochelles explanation that Sierra was injured when Rochelle had an epileptic seizure, dropped the baby, and fell on top of her, finding it unusual that Rochelle appeared  completely neurologically awake  after having had a seizure. Rochelle had said she was taking her seizure medication when the accident occurred, but reportedly there were no signs of medication in her blood. Crawford believed the injuries were caused by  really dramatic, violent forces similar to a horrific car crash or a violent squeezing and grabbing,  consistent with a severe form of child abuse and not consistent with Rochelles explanation. Among the 18 new and old fractures Crawford found were two old ones on Sierras ankles. Anthony said he must have caused these when he grabbed the babys ankles, held her upside down and shook her in an incident when she was bathing and began to choke on milk. Crawford said this would not have caused the type of fractures Sierra sustained, which were  classic shaken baby fractures.  When he explained to the parents that sometimes someone snaps and hurts a baby without meaning to, Anthony, crying, responded,  Yeah, but the cops dont care if thats why something happened.  Crawford also stated that Dr. Poulain, who treated Sierra at UCSF, had told him the UCSF neurologist believed Sierras MRI was conclusive for an infection but the Infectious Disease Department disagreed, having found no evidence of an infection after multiple aggressive studies. Sierra had been treated for an infection and released from UCSF on July 31 completely well.

Rochelle testified that the injuries Sierra sustained in August 2001 occurred when she had a seizure and Sierra got stuck between the waterbed mattress and frame; that Sierra did not have shaken baby syndrome; and that Anthony did not hurt Sierra while he was in an uncontrolled emotional state or by handling her inappropriately. Rochelle disagreed with Dr. Crawfords assessment that her description of what happened the night Sierra was injured was not consistent with the babys injuries.

Asked about the report of Anthonys statements to the doctor concerning Sierras ankle fractures, Rochelle believed the doctors had mixed up the information that they received from Anthony. Rochelle said Anthony held the baby face down toward the floor, with one hand under her chest and the other, higher, holding her ankles, but did not shake her. She remembered the doctor talking about shaken baby fractures happening when the aggressor did not mean to hurt the baby but stated that to her knowledge Anthony did not make the statement attributed to him about the police not caring why something happened.

Anthony testified that, when Sierra spit up her formula, he flipped her around with her ankles below her head not above her head just to make sure the milk got out of her using gravity alone, and did not hit or shake her. He did not believe Sierra ever had fractured ankles, and stated that the medical records showed no doctor other than Crawford ever made such a finding. He acknowledged that he probably made a statement along the lines of what Crawford reported, saying, I was probably pretending, just how this case happened there was no actual investigation. They dont care how anything happens. They are just going to go through their system with it truthful or nontruthful, factual or nonfactual, evidence or nonevidence. It wasnt of any guilt. Anthony felt the police had their minds made up of what happened. Thats pretty much why I think they pulled us out of visiting with our daughter when we didnt know if she was going to live or not. They interrogated us for three and a half hours. We were basically denied to be with her at those critical points in time. He believed the doctors, too, made up their minds about what happened based on Sierras injuries before asking the parents about the incident.

Rochelle had suffered from seizure disorder all her life. She believed marijuana was more effective at controlling her seizures than the Depakote she was taking the night Sierra was injured. She was aware the blood tests did not find Depakote in her system that night and suggested this could have been because she threw up during the seizure. At the time of the hearing, she was using only marijuana because the anti-seizure medications were causing her to have different types of seizures. She had been taken off a prescription medication during her pregnancy with Laci because it causes birth defects. She had a medical marijuana card that was prescribed for vomiting during her pregnancy and for seizure disorder and, pursuant to her doctors recommendation, had used only marijuana to control her seizures during her pregnancies with Laci and Ty. She had used a different prescription seizure medication briefly in February 2008, but stopped after only about four days because it caused her to have seizures and other side effects. Rochelle testified that, although she had seizures while smoking marijuana, they were not as violent and she would see flashing lights within about 15 minutes before the onset of a seizure, a warning sign she did not get while taking traditional seizure medication. She also did not suffer multiple side effects that she had when taking traditional medication. She testified that she smoked about half a joint of marijuana each morning and another half each evening, but estimated that she used a total of about four joints a week.

Rochelles medical records reflected that she used medical marijuana and not anti-seizure medication during her pregnancies and did not have seizures during the pregnancies, was started on Tegretol on January 16, 2008, at the behest of Child Protective Services, had seizures within four days of beginning the medication, including a large one in which she fell in the shower, and stopped taking the medication, pursuant to medical advice, on January 26, 2008.

Rochelle testified that she would protect her children from being harmed while she had a seizure by putting them down in a safe place and that Anthony helped her by taking the children away from her during a seizure and calling 911 for her. At the time Laci and Ty were detained, Rochelle and her family were living in a house with Gary S. and Cherie H., both of whom were also aware of Rochelles medical condition and able to help her. Since the detention, however, Rochelle and Anthony were not living with friends or relatives.

With respect to Rochelles drug use, the jurisdictional report related that on Sierras July 31, 2001 hospital discharge, Dr. Poulain reported Rochelle had a history of grand mal seizures  well controlled by Depakote.  In a January 4, 2008 interview, Rochelles physician, Dr. Shepherd, stated he would require Rochelle to resume taking the prescription seizure medication she had stopped taking while she was pregnant; on the same date Rochelle told the social worker she was self-medicating with marijuana because she believed she had more control over her epileptic condition this way. Rochelle told the social worker that she and Anthony both had current medical marijuana cards. When the social worker told Rochelle it was detrimental to Ty for her to be smoking marijuana when she was breastfeeding and supplying the Department with frozen breast milk, she began to cry and asked,  Do you want me to have a seizure?  Anthony told the social worker that he and Rochelle had been smoking marijuana for a long time without negative effects and he would bet  the social workers could not tell that they had been high during their visit with the children. The report noted that Anthony had accepted a prescription for marijuana in August 2004 and registered to grow cannabis for personal medical use despite the fact that the terms of his probation from the section 273a conviction required that he not possess or use marijuana. Social worker Melinda Lahr testified that the Department does not condone marijuana use under any circumstances, including medicinal use with a physicians prescription.

Since Sierras dependency proceedings, Rochelle had taken classes in parenting, anger management and early childhood education, and she had become CPR certified for adults and infants. She visited Sierra at her grandparents home at least five times a week. Rochelle was employed working with disabled adults. Rochelle testified that Anthony also took the anger management and parenting classes, and was currently enrolled in a class relating to domestic violence that was required for his probation. He had previously tried to sign up for the class he was directed to take but found it was not offered in Lake County; the current class was an alternative approved by probation. She testified that Anthony used marijuana for pain, that she knew this violated a condition of his probation but that he had a prescription for it, they had both talked to his probation officer about it and the probation officer had indicated Anthonys marijuana use would not be a violation of his probation because of the medical prescription.

Rochelle testified that Anthony accepted the plea deal in order to save her from being prosecuted, although neither of them had done anything wrong. She stated she would absolutely not try to help Anthony cover it up if he had hurt the baby. Rochelle felt Laci and Ty were completely safe with Anthony and she would have no reservation about leaving them alone with him. She testified that Anthony was able to control his anger and was patient, and she had many times seen him able to handle an extremely stressful situation calmly. This was not the case when the children were detained but, Rochelle commented, If you have kids and your kids get taken away for no reason, arent you going to cry and show emotions?

Anthony testified that he had a medical marijuana card for relief of pain and severe migraines after a workplace accident in 2003. His first medical marijuana prescription was in 2005, after other medications failed to work for him; medical marijuana made him feel like a regular person and allowed him to function.

Anthony testified that he was completely innocent of hurting Sierra. He explained that he entered his guilty plea under the assumption that a plea under People v. West did not mean he was guilty, that Judge Herrick had told him he was not pleading guilty to any specifics of the crime but only getting the case over with, and that he entered the plea because he was under duress and facing 18 years in prison. He tried to withdraw the plea shortly after entering it, when he learned he had pleaded guilty to a crime he did not commit. Anthony testified that he did not know why he was not permitted to withdraw his plea and that the judge stated, at sentencing, that there was no evidence in the case. He testified that neither Laci nor Ty was in any danger in his or Rochelles care.[7]

The incident underlying the 2006 TRO occurred on February 28, 2006. The report of the police officer who responded to Kathy P.s home states that Kathy was crying and unable to respond to questions and her neighbor reported Kathy having said that Anthony threw her into a table. The neighbor apparently supplied an incorrect last name for Anthony. According to the police report, Rochelle came to the police department on March 2 and reported that she and her boyfriend had been staying at her mothers house, her mother attacked her during a verbal argument, and Anthony pushed her mother off her because Rochelle was pregnant and he was afraid Kathy would kill the baby. Repeated attempts to contact Kathy had been unsuccessful and it appeared none of the parties wanted prosecution on the matter.

Kathy P. filed a request for a TRO on March 20, 2006, stating that she and Anthony had gotten into a verbal disagreement because she asked him to stop smoking marijuana at her house; he shoved her, she hit him back, he shoved her into the closet doors. Kathy came to and heard Rochelle saying get out or my mom will call the cops on you. Anthony left, Kathys neighbor called the police and Kathy was taken to the hospital by ambulance. She had bruising on her right wrist and upper shoulder, lumps on her head and a bruise on her back. The TRO was granted on March 20, and a hearing set for April 3. Neither party appeared for the hearing, however, and the judge ordered the TRO dissolved and the matter dropped from calendar.

At the outset of the jurisdiction hearing on February 8, 2008, Anthonys attorney offered a notarized typewritten statement by Kathy P. dated January 17, 2008, in which she stated that she did not recall signing a restraining order against Anthony regarding the 2006 incident, but remembered Anthony and Rochelle had been staying with her and she was not myself . . . due to me being put on several new meds for my medical disorder (bi-polar disorder). According to the statement, Kathy got angry when Anthony and Rochelle said they could not give her a ride to a medical appointment and Rochelle shut the door to the bedroom and I wound up pushing my pregnant daughter into the closet doors that are located in the hallway of my apartment. Anthony said what are you doing Kathy your daughter is pregnant Anthony pushed me off my daughter I tripped over the chair I had in my living room and hurt myself on the door frame of my apartment. The statement continued that Anthony and Rochelle asked if Kathy wanted to go to the hospital and she told them to get out of the house, reiterated that she did not recall signing a restraining order, and concluded, I honestly believe Anthony was protecting his girlfriend and his unborn child. I honestly believe Rochelle and Anthony are loving and caring providers for all three of their children.

Later in the jurisdiction hearing, Kathy P. testified that she had never lied to a court or signed a document that was untruthful under penalty of perjury. She testified that at the time she wrote the January 17, 2008 letter, she was off her medications and had no idea what she was doing.[8] Kathy testified, If Im not [sic] off my Paxil, I flip out. Even when taking the Paxil, she sometimes became angry or confused, but it was worse when she did not take the medication. Kathy testified that Rochelle typed the letter for her and she glanced at it but could not make it out, so she just signed it. She testified that she typically did not read things before signing them, stating, [b]ecause I cant comprehend when its reading, but in my mind I do. But its totally different when I read it. Kathy stated that she knew how to read [s]omewhat. Shown the letter at the hearing, Kathy did not recall signing it or having seen it before, and did not know whether the document she was shown in court looked like what she had signed.

Kathy testified that the February 28 incident was her fault because she started the physical fight: Angry that Anthony was smoking marijuana in the bedroom, she kicked open the bedroom door and pushed Rochelle, then Anthony pushed Kathy, telling her to stop because Rochelle was pregnant; Kathy lost her footing, then tried to hit Anthony, he pushed her again and she fell into the desk. Kathy stated that she was unstable on her legs due to nerve problems, so anybody could push me and Ill fall, that she had never seen Anthony have outbursts of anger, and that he was angry on this occasion because she pushed Rochelle and kept pushing him. She said Anthony was trying to protect Rochelle. Kathy testified that she got the restraining order because she did not like Anthony pushing her, even though it was her fault, and she did not like his smoking pot and saying things that offended her. The day she had the TRO request filed she was kind of afraid of Anthony and said she was abused, but the next day she dropped the restraining order because she knew the incident was her fault. Nothing in the restraining order request was false. Kathy testified that she had no fear that Anthony or Rochelle would injure their children.

Rochelles description of the incident tracked that of the January 17 statement: Kathy was angry about the ride to the medical appointment and pushed Rochelle into the closet doors in the hallway; Anthony grabbed Kathy to protect Rochelle and the unborn baby; Kathy pushed Anthony and he pushed back; and Kathy tripped over a chair and hit her head against a stud. Kathy declined going to the hospital and told them to leave the house. Rochelle testified that she and Anthony went from Kathys house to the police station to make a report; she insisted that the police report indicating she was at the station on March 2 was wrong. Asked about the police report reflecting an incorrect last name and birth date for Anthony, Rochelle said that the name was given to the police by Kathys neighbor. Rochelle knew Anthony had already been through a probation revocation hearing and might be sent to prison if he had another violation; she testified that they told the police about the felony probation and denied that she would lie to keep Anthony out of prison.

Rochelle testified that she typed the January 17, 2008 letter on Kathys computer, with Kathys wording, then went with Kathy to have it notarized. Kathy had testified that she did not have an apparatus at her home that could generate a document like this and print it. Asked why she had her mother write this letter, Rochelle explained, Just to basically cover her butt because she filed a temporary restraining order, and basically she wanted to tell the truth about what happened that day, and she didnt know how to go about doing that and didnt know she was going to be subpoenaed in the courtroom for that issue, so we wrote that letter, basically to provea character reference letter I guess you would call it. Kathy brought up the subject because she was worried about having a false report and wanted the truth to come out. Rochelle testified, It wasnt to cover my butt. It wasnt to cover Anthonys butt. It was to cover her own butt for making a false report . . . .

Several witnesses testified at the jurisdictional hearing about Anthonys conduct around the time Laci and Ty were detained. Social worker Susan Harrison testified that she first met with the parents on January 4, with Rochelle at the hospital after Tys birth and with Anthony at home with Laci. Harrison did not know the basis of the referral to the Department; as far as she knew, there had been no reports of problems with the family in the preceding 18 months. Anthony was pretty angry and very eager to explain the past history of Sierras injuries, ranting for about 20 minutes, saying he had done nothing and becoming increasingly agitated.

On January 14, after the Department had been investigating the case and trying to locate the family, Harrison spoke with Anthony by telephone. He was furious and hostile, asking why CPS was involved and saying that if they detained the children again that Rochelle couldnt handle it and that her life would be in danger and she would leave him. The conversation ended with him crying and saying he would not let CPS take the children. Unlike most parents, who would be upset but generally wanted to do what they needed to do to work with CPS, Anthonys anger was completely off the map and explosive.

On January 15, the parents and other relatives brought the children to the office. Initially Anthony was talking nonstop, seemingly trying to persuade Harrison to give the children to one of the relatives, but when it became clear Harrison was going to detain the children, he became very agitated and angry. Harrison was concerned about returning the children to Anthony because she did not feel he could control his emotions around them. She acknowledged that she had seen no sign of physical abuse with Laci or Ty, that Rochelle was appropriate and affectionate with Ty, that Anthony acted appropriately with the children, and that Laci seemed attached to him.

Sara Buske, Harrisons supervisor, joined the meeting because Anthonys behavior had gotten a little explosive and out of control. Anthony had been yelling in the lobby about feeling the detention was unfair and wanting to sue the Department; he yelled at Buske, very agitated, and pointed his finger repeatedly at her. Buske testified that Anthonys reaction was beyond what we normally see in parents whose children are detained. She felt Anthony was attempting to manipulate her by alternating between anger and attempting to evoke empathy by crying, and commented that his behavior was similar to what she had seen in men who had been involved in domestic violence relationships. Laci did not seem at all phased by her fathers display of emotion.

CPS officer John Griffith heard loud voices from the room where the family was meeting with Department workers and observed as Anthony stormed out of the room, crying loudly, slammed out the building, and paced frantically in the parking lot. Griffith prepared himself to clear the lobby and lock off access to the rest of the building, but did not do so because Anthony seemed calmer when he returned, although still noticeably crying and upset. Griffith had not previously seen anyone at the office upset at even close to that level, and had never before been close to clearing the lobby and locking the security door.

Gary Shawl, a friend of Anthonys family, testified that Anthony had lived with him for at least 11 years, and Rochelle for about seven years, including the time they had their children with them. He had never seen Anthony lose his temper around the children or seen either parent abuse the children. He described Anthony as an excellent father and noted that Laci was really happy and Anthony was probably one of her favorites. Rochelle treated Laci [j]ust excellent, like a mom should treat a kid and had a good relationship with her.

Cherie Hammack, who lived with Shawl, testified that she thought Anthony and Rochelle were very good parents and very protective of their children, not allowing Cherie to babysit until they observed her with the children even though they had known her for a long time. She had never seen Anthony be abusive toward the children or lose his temper with them.

The record includes many letters attesting to Rochelle and Anthonys character, reliability, responsibility and loving care of their children from medical professionals, Lacis daycare providers, employers and customers, friends and relatives.

On May 19, 2008, the Department filed a supplement to the jurisdiction report stating that Laci and Ty, who had been placed with their great-grandparents on March 11, had been returned to their previous foster home after the great-grandparents requested they be moved because their presence in the home was having a negative effect on Sierra. The report also described a number of concerns: The parents refused to participate in substance abuse treatment and parenting classes or submit to drug testing and remained uncooperative and contentious with Department staff; and problems occurred at several visits, including the parents arguing continually in front of the children, the parents asking Laci, when she went to a CPS worker for comfort during a visit, How could you do this to us?, Rochelle responding to Lacis attempt to bite her by telling the child she would pop you in the mouth if she bit her, and Rochelle slapping Lacis hand when the child grabbed the dog by its fur. The report also expressed concern about the parents and other relatives hostility toward the Department and how this would affect a  family placement.

On the last day of the jurisdiction hearing, June 11, 2008, county counsel argued that the Department did not feel Laci and Ty were safe with their parents because of the nature of the injuries Sierra had suffered and facts that the parents had not taken responsibility for those injuries and believed Dr. Crawford was wrong to reject their explanation of how they occurred, and that Anthony had not acknowledged his anger issues or made any effort to treat them. Counsel argued that the January 2008 letter from Kathy P. was clearly fabricated and the parents willingness to engage in such fabrication contributed to the Departments belief that the children were not safe with them. The Department acknowledged there were no signs of physical or emotional abuse of Laci or Ty.

The court stated it agreed Sierra had been abused, but questioned what current risk there was to Laci and Ty. On the other hand, the court expressed concerns about Rochelles marijuana use and seizures, and about Anthonys ability to control his emotions.

Anthonys attorney referred the court to the transcript of the sentencing hearing in the criminal case, in which Judge Herrick, who had presided over Sierras dependency proceedings as well as the criminal case, expressed that he was not convinced Anthony had intentionally injured Sierra, and gave him probation because of his doubts about what happened. Counsel argued there was no evidence of any problem in parenting Laci and Ty and substantial evidence to the contrary, and urged that the Department was relying on post-hoc justifications for removing the children from the parents custody, pointing out that the children were removed before the parents refused to accept responsibility for Sierras injuries and the Department was attempting to use Anthonys anger after the children were detained as a justification for detaining them. Counsel portrayed the Departments use of the TRO incident as a desperate attempt to portray Anthony as a violent person.

Rochelles attorney argued Kathy was not a credible witness, given her disjointed testimony, memory lapses, and the multitude of medications she was taking; that there was no evidence all of Sierras injuries were caused by Anthony and not by the brain infection, and Judge Herrick was not convinced about how Sierra was injured; and that there had been no problems with the parents care of Laci, teachers and health professionals who knew the family thought the parents were doing well with Laci, both parents had taken parenting and anger management classes, and Rochelle was under medical treatment for her seizures. Counsel noted that Rochelles 2008 seizure, which the court had asked about, occurred while she was taking prescription anti-seizure medication. Counsel also argued the Department was taking inconsistent positions, contending that Anthony was responsible for Sierras injuries, but also contending Rochelle presented a risk to the children because her seizure caused the injuries.

Counsel for the children was convinced Anthony was responsible for Sierras injuries, but questioned whether there was evidence of a substantial risk to the younger children, although he was worried about the future because of the extreme harm to Sierra and absence of change since then.

The court observed that Anthonys behavior in court fit the pattern the Department alleged to pose a risk: On the first day in court he was inconsolable and basically out of control, then he was totally calm until just a few minutes ago.

The court found not true the allegation that the children were at risk due to Anthonys marijuana use, but otherwise sustained the petition. It modified the allegations under section 300, subdivision (a), to state that Anthony pled guilty to willful harm to a child and the injuries were caused nonaccidentally by at least one of the parents while in the parents joint care. Regarding the allegation that Sierra was injured while the parents were living together and Rochelle supported Anthonys explanation denying culpability, the court found that the injuries were caused intentionally (recognizing that a parent could take intentional action not knowing how harmful it could be) and neither parent had adequately explained how the injuries occurred. The court modified the allegations under section 300, subdivision (j), to state that one of the parents (rather than just Anthony) severely physically abused Sierra and that both parents (rather than just Rochelle) failed to protect Sierra from injury.

Having found jurisdiction, and stating that because of medical problems he might not be available for disposition, Judge Lechowick strongly urge[d] the Department to establish a family maintenance plan as soon as possible, subject to the conditions that Rochelle supply the Department with a medical update concerning her treatment and medication, and that Anthony obtain a psychological evaluation before being in the home with the children. Noting that the latter condition would take longer to satisfy, the court stated it hoped the case could be moved to family maintenance relatively quickly with respect to Rochelle. Disposition was set for June 23, just less than two weeks ahead.

The Departments disposition report, filed on June 27, 2008, recommended that the children remain in out-of-home placement with reunification services to the parents. The report noted that the parents had refused to accept a voluntary case plan in January 2008, and had refused to sign reunification case plans presented to them in February and June. It stated that Rochelle had acted appropriately during most of her visits with the children, but both parents admitted they used controlled substances prior to the visits. Anthony had become increasingly hostile in contacts with the Department, often confronted CPS staff in front of the children, and had begun to direct anger at Rochelle and the children. At a June 2 visit, Anthony became angry when Laci would not allow him to change her diaper and, despite efforts from Rochelle and an aide to calm him, he kicked Rochelle in the leg. Both parents drug tests in January through March were positive for THC and both refused further drug testing. Anthonys psychological evaluation was scheduled for July 7, 2008. Stating that the parents had not yet complied with the courts June 11 conditions for family maintenance, the Department recommended out-of-home placement and reunification services pending completion of the conditions and the Departments review.

The disposition hearing was held on June 30, 2008, before Judge Freeborn. Rochelles attorney argued that the recommendation for reunification in the face of Judge Lechowicks clear statements about family maintenance reinforces some of the mistrust that the parents have towards CPS, and that Rochelle had provided her medical records. Anthonys attorney agreed and urged that Judge Lechowick had wanted the children placed with Rochelle pending Anthonys psychological evaluation. Counsel for the children agreed that Judge Lechowick wanted family maintenance and noted that with the parents resentful of the situation and the Department maintaining it only wanted an obvious danger addressed, a case where there should not be a problem with the parents reunifying seems like its jumping the rails. Counsel for the Department argued that the parents had not discussed with the Department where Anthony was going to live if the children were returned to Rochelle. Rochelles and the Departments attorneys disagreed about whether Rochelle had supplied the medical information Judge Lechowick had wanted as a condition to family maintenance, and whether his condition included Rochelle having a new EEG performed. Judge Freeborn concluded the case should be continued with present orders in effect until September, when it was hoped Judge Lechowick would be able to conclude it, over the objections of the parents attorneys that putting the case over so long was tantamount to ordering reunification rather than family maintenance. Judge Freeborn then signed the disposition orders prepared by the Department, which declared Laci and Ty dependent children, removed them from parental custody pending compliance with the conditions set forth on June 11, transferred the case to family reunification pending compliance with those conditions and at that time to be transferred to family maintenance, and continued the matter to September 15, 2008, for a six-month review hearing.

On August 15, 2008, county counsel filed a request for Judge Lechowick to sign proposed Jurisdiction Findings and Orders regarding the June 11 jurisdiction hearing. The Findings and Orders were subsequently signed by the judge and filed on September 3, 2008.

On August 18, 2008, Rochelle filed a timely notice of appeal from the detention, jurisdiction and disposition orders.

DISCUSSION

I.

Rochelle argues that the juvenile court erroneously permitted the Department to relitigate Sierras case, and made findings regarding the cause of Sierras injuries, in violation of the doctrine of res judicata. Asking how many times she and Anthony were . . . supposed to defend Sierras injuries before they could stop being stigmatized in their parenting of subsequent children, she cites Roos v. Red (2005) 130 Cal.App.4th 870, 879, for the principle that  [p]ublic policy and the interest of litigants alike require that there be an end to litigation. 

 The doctrine of res judicata rests upon the ground that the party to be affected, or some other with whom he is in privity, has litigated, or had an opportunity to litigate the same matter in a former action in a court of competent jurisdiction, and should not be permitted to litigate it again to the harassment and vexation of his opponent. . . . (Citizens for Open Access Etc. Tide, Inc. v. Seadrift Assn. (1998) 60 Cal. App. 4th 1053, 1065.) The doctrine precludes parties or their privies from relitigating a cause of action that has been finally determined by a court of competent jurisdiction. (Roos v. Red, supra, 130 Cal.App.4th at p. 879.) Under the principle of collateral estoppel, the doctrine also precludes a party to prior litigation from redisputing issues therein decided against him, even when those issues bear on different claims raised in a later case. . . . [] Collateral estoppel applies when (1) the party against whom the plea is raised was a party or was in privity with a party to the prior adjudication, (2) there was a final judgment on the merits in the prior action and (3) the issue necessarily decided in the prior adjudication is identical to the one that is sought to be relitigated. (Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1201.) (Roos v. Red, at p. 879.)

Here, neither res judicata nor collateral estoppel arises from Sierras dependency proceedings because those proceedings resulted in no final judgment adjudicating any issue: The case was dismissed, and dependency terminated, before the conclusion of the jurisdiction hearing, when the great-grandparents assumed guardianship. There was no impediment to the trial court considering evidence related to Sierras injuries for its relevance to the question of risk posed to Laci and Ty.

The criminal prosecution concluded with Anthonys guilty plea, which necessarily constituted an admission of every element of the offense. (People v. Hoffard (1995) 10 Cal.4th 1170, 1177-1078.) [9] Rochelle asserts that relitigation of Sierras case undermined the plea, arguing that People v. West allowed [Anthony] to plead nolo contendere to the charges and had the legal effect of a guilty plea, but the plea could not be used against the defendant as an admission in any civil suit based upon or growing out of the act upon which the criminal prosecution is based. (People v. West, supra, 3 Cal.3d 595, 601.) The language quoted (inaccurately) from West was, in West, quoted from Penal Code section 1016, which at that time provided, as to a plea of nolo contendere, that [t]he legal effect of such plea shall be the same as that of a plea of guilty, but the plea may not be used against the defendant as an admission in any civil suit based upon or growing out of the act upon which the criminal prosecution is based.  (People v. West, supra, 3 Cal.3d at p. 601.) Penal Code section 1016 was amended in 1982 to make the limitation in use of a plea of nolo contendere applicable only to offenses not punishable as felonies: The legal effect of such a plea, to a crime punishable as a felony, shall be the same as that of a plea of guilty for all purposes. In cases other than those punishable as felonies, the plea and any admissions required by the court during any inquiry it makes as to the voluntariness of, and factual basis for, the plea may not be used against the defendant as an admission in any civil suit based upon or growing out of the act upon which the criminal prosecution is based. (Stats. 1982, ch. 390,  3, p. 1725.)

Aside from the fact that the limitation Rochelle suggests does not apply to a felony conviction, Anthonys plea was guilty not nolo contendere.  A plea of guilty is admissible in a subsequent civil action on the independent ground that it is an admission.  (Pease v. Pease (1988) 201 Cal.App.3d 29, 33, quoting Teitelbaum Furs, Inc. v. Dominion Ins. Co., Ltd. (1962) 58 Cal.2d 601, 605-606.) A guilty plea does not have collateral estoppel effect in a subsequent civil action, however, because a guilty plea does not involve full litigation of the issues. (Ibid.)

There was nothing to prevent the juvenile court from viewing Anthonys guilty plea as establishing that he willfully injured Sierra. Nor was the court precluded from considering evidence of the extent and cause of Sierras injuries. Rochelle complains that relitigation of Sierras case permitted the Department to establish risk based on the fact that presently the parents could no more explain the injuries to Sierra than they could in 2001. But the issue in the present proceedings was not that the parents could not explain Sierras injuries; it was that those injuries were inflicted nonaccidentally and the parents refused to accept responsibility for them.

II.

Rochelle argues the evidence was insufficient to support the juvenile courts detention, jurisdiction and disposition orders. Her fundamental position is that there was no proof of risk to Laci and Ty, as to whom there was no evidence of any kind of abuse. Rochelle argues there was no nexus between the events in 2001 and the current situation of Laci and Ty. She stresses that even the judge who presided over Sierras dependency proceedings and the criminal case was not convinced about how Sierra was injured and felt the parents explanation was as plausible as the explanation that the baby was abused. She urges that there was no evidence to support the courts conclusion that she might have intentionally injured Sierra, or that her seizures and marijuana use posed any risk to Laci and Ty. As for the other evidence of Anthonys alleged emotional volatility, Rochelle urges that Kathy P. abandoned the TRO because she was at fault, that Anthonys distraught state when Laci and Ty were detained was understandable, that there was no evidence Anthony had ever reacted to the children in anger, and that numerous witnesses attested to the parents good care of the two younger children.

At the detention hearing, the court shall order the release of the child from custody unless a prima facie showing has been made that the child comes within Section 300, the court finds that continuance in the parents or guardians home is contrary to the childs welfare, and any of the following circumstances exist: [] (1) There is a substantial danger to the physical health of the child or the child is suffering severe emotional damage, and there are no reasonable means by which the childs physical or emotional health may be protected without removing the child from the parents or guardians physical custody. . . . ( 319, subd. (b)(1).) The court is also required to determine whether reasonable efforts were made to prevent or eliminate the need for removal of the child from his or her home, pursuant to subdivision (b) of Section 306, and whether there are available services that would prevent the need for further detention. ( 319, subd. (d)(1).)

Rochelle urges that the detention here was based on unsubstantiated suppositions regarding Sierras dismissed dependency case, unfounded suppositions about Rochelles marijuana use, and the dismissed TRO from before Laci or Tys birth. The most significant factor, of course, was the degree of Sierras injuries. Rochelles position centers on the assumption that she and Anthony were in no way at fault for those injuries and, therefore, that they presented no risk to their younger children. The court, however, was faced with the information that Sierra had been grievously injured, non-accidentally, while in the parents care, that Kathy P. had obtained a TRO against Anthony, that there were questions about the treatment of Rochelles medical issues, which might have played a role in Sierras injuries, and that the parents were moving out of a home in which other adults were present to one where they would be alone with the children. This information amply supported the courts conclusion that a prima facie case had been made.

To establish jurisdiction, the juvenile court must find by a preponderance of the evidence that the child is a person described by section 300. ( 355, subd. (a).) We review the juvenile courts jurisdictional findings for sufficiency of the evidence. (In re Heather A. (1996) 52 Cal.App.4th 183, 193; In re Kristin H. (1996) 46 Cal.App.4th 1635, 1649.) We review the record to determine whether there is any substantial evidence to support the juvenile courts conclusions, and we resolve all conflicts and make all reasonable inferences from the evidence to uphold the courts orders, if possible. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393.) (In re David M. (2005) 134 Cal.App.4th 822, 828.)

Rochelle argues that Anthonys guilty plea, without more, did not prove a substantial risk to Laci and Ty. One prong of this argument is that there was no proof Anthony (or Rochelle) in fact intentionally injured Sierra. As stated above, Rochelle relies heavily on the fact that Judge Herrick, after hearing evidence in Sierras dependency proceedings and accepting Anthonys guilty plea in the criminal case, harbored serious doubts about what happened to Sierra. The record of Anthonys sentencing hearing reflects that Judge Herrick was not completely convinced Sierras injuries were inflicted intentionally rather than accidentally. Judge Herrick accepted that the injuries occurred during Rochelles seizure, stating he did not know of any other opportunity for them to have occurred, and expressed that he found this explanation at least as plausible as deliberate injury because he found it difficult to conceive of the scenario under which the parents intentionally inflicted the injuries.[10] The transcript of Judge Herricks remarks, as well as all the evidence contained in the medical records and testimony from the earlier dependency proceedings, was before the court in the present case. Plainly there was substantial evidence to support the courts conclusion that Sierras injuries were not inflicted accidentally.

The second, and critical, prong of Rochelles argument is that Sierras case does not prove a substantial risk to Laci and Ty years later.  While evidence of past conduct may be probative of current conditions, the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm. [Citations.] (In re Rocco M. [(1991)] 1 Cal.App.4th [814,] 824.) [P]revious acts of neglect, standing alone, do not establish a substantial risk of harm; there must be some reason beyond mere speculation to believe they will reoccur. [Citations.] (In re Ricardo L. (2003) 109 Cal.App.4th 552, 565.) (In re David M., supra, 134 Cal.App.4th at pp. 831-832.)

In David M., an older child had previously been declared a dependent child because the mother used marijuana during her pregnancy, was incarcerated at the time of the childs birth, and was unable to care for the child. The court found insufficient evidence to support jurisdiction over a two-year-old, as to whom no problems had been demonstrated, and a newborn taken from parental custody at birth. The alleged basis for jurisdiction was the mothers use of marijuana and mental health problems, as shown by an evaluation during the earlier dependency case, and the fathers mental health problems. The court stated, however, that the evidence of mothers mental and substance abuse problems and fathers mental problems was never tied to any actual harm to [the younger children], or to a substantial risk of serious harm. (In re David M., supra, 134 Cal.App.4th at p. 829.) Accepting that both parents had mental health issues and that the mother had a limited substance abuse problem, the court stated, [The Department] offered no evidence that these problems caused, or created a substantial risk of causing, serious harm to David or A. [The Department] has the burden of showing specifically how the minors have been or will be harmed and harm may not be presumed from the mere fact of mental illness of a parent. [Citations.] [Citations.] . . . The record on appeal lacks any evidence of a specific, defined risk of harm to either [child] resulting from mothers or fathers mental illness, or mothers substance abuse. (Id. at p. 830.)

Here, jurisdiction was not based on Sierras injuries alone, although the extreme nature of those injuries was obviously an important aspect of the courts decision. The 2006 TRO incident, while not pursued further by Kathy P., was evidence from which the court could reasonably infer, at least, that Anthony could be provoked to violence in a domestic situation. The court specifically held that despite the problems with Kathy P.s testimony, the incident appeared to have occurred as she originally described it. Clearly, the court did not accept the parents and Kathy P.s attempt to portray Kathy P. as the aggressor in that incident, and its refusal to do so is amply supported.[11]

Anthonys conduct around the time the children were detained provided further evidence of his emotional volatility. While no one suggested a parent should not be upset at having his children detained, several Department witnesses testified that Anthonys response went far beyond what they saw in other cases, describing him as explosive, off the map and out of control. One Department witness believed he would have to take security precautions against Anthony, although Anthony calmed down sufficiently for him to avoid actually doing so. We recognize that none of the evidence showed Anthony turning his anger toward Laci or Ty. The court is not required to wait until a child is seriously injured to assume jurisdiction and act to protect the child. (In re Heather A., supra, 52 Cal.App.4th 183, 194-196.) In light of the horrific injuries to Sierra, for which Anthony accepted legal responsibility, the evidence of Anthonys continued inability to control his emotions and anger provided substantial evidence for the courts conclusion that there was a substantial risk of serious physical injury to the children.

Additionally, the evidence demonstrated that neither parent believed Anthony had done anything wrong with respect to Sierra, that Rochelle did not believe Anthony had anger issues, and that both parents felt the children were completely safe in Anthonys care. This attitude, rejecting the significance of what had happened to Sierra and the risk posed by Anthonys volatility, further supported the conclusion that Laci and Ty were at risk.

Rochelle also contends there was no evidence to support the courts finding that she might have intentionally caused Sierras injuries. The petition alleged that Laci and Ty were at substantial risk of suffering serious physical harm inflicted nonaccidentally by the father as evidenced, in part, by his guilty plea in Sierras case. The court found, however, that Sierras injuries were caused non-accidentally by at least one of the parents while in the parents joint care. Rochelle urges that the evidence shows only that her epileptic seizurea non-intentional event beyond her controlcaused Sierras injuries. The courts finding reflects a conclusion, supported by the evidence, that this explanation of Sierras injuries was not adequate and, as stated by Sierras treating physicians, the babys injuries resulted from abuse. While Anthonys guilty plea serves to place legal blame for the injuries upon him, and this was the basis upon which the Department p