M.L. v. Superior Court
Filed 8/3/12 M.L. v. Superior Court CA2/8
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
M.L. et al.,
Petitioners,
v.
THE SUPERIOR
COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS
ANGELES,
Respondent;
LOS ANGELES
COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Real Party in Interest.
B240587
(Los Angeles
County
Super. Ct.
No. CK88841)
ORIGINAL
PROCEEDING. Petitions for
Law Offices of
Alex Iglesias, Steven Shenfeld and David Alaynick for petitioner M.L.
Los Angeles
Dependency Lawyers, Inc., Law Office of Marlene Furth and Danielle Butler
Vappie for petitioner S.O.
John F. Krattli,
Acting County
Counsel, James M. Owens, Assistant County
Counsel, and Kim Nemoy, Deputy County Counsel, for Real Party in Interest Los
Angeles County Department of Children and Family Services.
Petitioners
M.L. (father) and S.O. (mother) are the parents of D.L., a
two-and-one-half-year-old girl who was detained from the home of her parents by
the Los Angeles County Department of Children and Family Services (Department)
after her two-month-old sister was declared dead under suspicious
circumstances. After an autopsy report
concluded that homicidal suffocation was strongly suspected, the juvenile court
sustained various dependency petition allegations, including an allegation that
the parents likely caused the death of the deceased child through physical
abuse. The court denied reunification
services to both parents and scheduled a hearing for the selection and
implementation of a permanent plan (Welf. & Inst. Code, § 366.26) for D.L.
The parents filed separate writ
petitions challenging the juvenile court’s decision to schedule a permanent
plan hearing. (Cal. Rules of Court, rule
8.452.) They claim substantial evidence
does not support (1) the juvenile court’s jurisdictional findings, and (2) the
juvenile court’s decision to deny them reunification
services. We disagree with both
contentions, and deny the petitions.
FACTUAL
AND PROCEDURAL BACKGROUND
The family
came to the Department’s attention on July
5, 2011, one day after an ambulance transported D.L.’s
two-month-old sister from the family home to a hospital, where she was declared
dead.
The parents
did not know what caused the baby’s death.
Mother stated that she placed the baby in her crib on the night of July
3 before going to sleep next to D.L.
Mother was awakened at approximately 6:00
a.m. the following morning when father, who had come to check on
mother and the children, found the baby unresponsive and began screaming. Father ran to the main house and called 911.
911 operator, father performed CPR on the baby.
Paramedics arrived and transported the baby to the hospital, where she
was pronounced dead upon arrival.
In response
to Department inquiries, Deputy Coroner Denise Bertone advised that the baby
had bruises above her eye, on both cheeks, in the left temple area and on the
jaw. Bertone stated the bruises could
not have been caused by CPR. According
to Bertone, the cause of death was undetermined, but was classified as
“suspicious” pending a final autopsy report.
Both
parents denied causing the baby’s injuries.
They claimed the baby had no bruises when mother put her to bed on the
night of July 3. According to a
Sheriff’s Department homicide detective, the parents claimed the bruises may
have been caused when D.L. accidentally hit the baby with a baby bottle. However, Deputy Coroner Bertone asserted that
the baby’s facial injuries were not caused by a baby bottle. She also advised that Dr. Ribe, who performed
an autopsy, stated that the baby’s injuries were the result of a “high impact
punch or slap.”
D.L. was
clean and appeared well cared for. She
was disrobed and showed no signs of physical
abuse or neglect.
The
Department detained D.L., placed her in foster care, and filed a dependency
petition on her behalf. The dependency
petition alleged that mother and father had physically abused the deceased
child and that D.L. was therefore at risk.
At the
conclusion of the detention hearing, the juvenile court found a prima facie
case for detaining D.L. and ordered that the parents’ visits with her be
monitored.
In a
jurisdictional report filed in August 2011, the Department reported on
additional interviews conducted with the parents. According to mother, after feeding the baby
and putting her to sleep at about 10:00 p.m.,
she woke up at the baby’s usual 3:00 a.m.
feeding time, but the baby was asleep and she did not want to wake her. Mother claimed the baby was breathing at the
time because the blanket was moving up and down.
Mother
explained that father said something was wrong with the baby when he came to
check on the girls in the morning.
Mother believed her sister tried calling 911, but an English-speaking
neighbor who heard the yelling talked to the 911 operator and relayed
instructions to father, who performed CPR.
He was still performing CPR when paramedics arrived. The parents followed the ambulance to the
hospital, where they were told the baby had been dead for several hours. Mother stated she did not understand how this
could be the case because father claimed the baby was still breathing when he
handed her to the paramedics.
Father told
a Department social worker that when he came to check on his daughters, the
baby was having difficulty breathing. He
claimed the baby was still breathing when he handed her to paramedics because
he felt a little warm air coming from her nose.
He claimed her body was still warm.
directly into the ambulance without administering first aid.
A Sheriff’s
Department detective advised the Department that an unspecified doctor stated
the baby’s death was consistent with SIDS (sudden infant death syndrome), but
the unexplained bruising was a concern.
The
Department’s report noted that both Deputy Coroner Bertone and Dr. Ribe who
performed the autopsy stated they could not provide additional information
until the autopsy report was completed, which was estimated to take anywhere
from two to six months.
The
Department recommended that the parents receive reunification services “pending
the full autopsy report.”
The
adjudication was continued several times for receipt of the autopsy
report.
In late
November, the Department advised that the parents had completed parenting
classes and were on the waiting list for individual therapy. Their visits with D.L. were being monitored
by the maternal grandparents and no problems were reported.
After the
autopsy report was received in early December, the court scheduled a contested
adjudication for early February. The
court directed the Department to provide a supplemental report, including any
change in recommendations, based on the results of the autopsy report.
Senior
Deputy Medical Examiner, Dr. James Ribe, performed the autopsy one day after
the baby’s death and signed the autopsy report at the end of November. He noted that the baby had a total of 25
bruises on her face – including on both eyes, cheeks and temples – copious
thymic petechiae (small, pinpoint hemorrhages ), and possible healing
fractures. X-rays of the rib cage
revealed multiple healing fractures which were most likely two-to-four weeks
old. The radiology consultant stated
that “[t]rauma resulting in rib fractures in a full term infant of the stated
age . . . and with otherwise normal appearing skeletal
structures may be associated with abusive inflicted trauma and is a possibility
which should be considered.”
The autopsy
report opined as follows: “The autopsy
did not demonstrate the cause of [the baby’s] sudden unexpected death with
medical certainty. However, we strongly
suspect homicidal suffocation. The
reasons include numerous bruises on [the baby’s] face which were clearly inflicted,
multiple rib fractures and bony injuries of the rib cage, and petechiae of the
thymus gland, plus the totality of the autopsy findings and the
circumstances. At the very least, [the
baby] was a victim of physical abuse by his caregiver.”
In early
January 2012, the Department filed a first amended
dependency petition. In addition to
the allegations contained in the original petition, the amended petition
contained an allegation under subdivision (f) – causing the death of a child
through abuse or neglect.
Concurrently,
the Department advised the court and the parties that it was now recommending
that reunification services be denied.
The
adjudication took place in early February.
After the court admitted the detention and jurisdictional reports, as
well as several other documents , the Department called its only witness,
Senior Deputy Medical Examiner, Dr. James Ribe.
Dr. Ribe, who has served as a senior deputy medical examiner with the
Los Angeles County Coroner’s Office since 1993 and specializes in the diagnosis
of child death, performed the autopsy on the baby. Dr. Ribe observed 25 bruises on the baby’s
face. He could not say precisely how old
they were, but they “appear[ed] to be very recent, meaning minutes to a day or
so before death.” Dr. Ribe opined the
bruises were caused by blunt force trauma, “most likely the human hand.” Based on the location of the bruises and the
fact that CPR is usually administered post-mortem and therefore does not leave
bruises, Dr. Ribe opined that the bruising on the baby’s face was not the type
of bruising consistent with the administration of CPR.
Dr. Ribe
observed bruising to the baby’s nose, which was “suspicious for inflicted
closure of the nose, which can cause death.”
According to Dr. Ribe, the numerous petechiae on the thymus gland are
not natural. He conceded that such
petechiae can be found in SIDS cases, as well as in suffocation cases, “either
accidental or imposed.” Dr. Ribe stated
he has not ruled out SIDS as the cause of death. He added, however, that this statement
“should be strongly qualified. Most
pathologists would not diagnose sudden infant death syndrome in this situation
with these findings.”
The baby’s
stomach contained about one ounce of milk curd, which means the baby died a
short time after being fed, “less than 30 minutes, approximately.” If the baby was fed at 10:00 p.m., she could
not have suffered bruising from CPR administered at 6:00 a.m. the following
morning. Dr. Ribe opined that if the
baby was fed at 10:00 p.m., she died between 10:00 and 10:30 p.m. The baby could have sustained bruises to the
face due to the administration of CPR at 6:00 a.m. only if the baby was alive
at that time and for several hours thereafter.
Dr. Ribe
testified that the baby’s ribs contained one definite healing fracture, and
possible healing fractures to several other ribs. He could not say for certain whether they
were intentionally inflicted or accidental, but he determined they were caused
by the hands of an adult. Dr. Ribe
opined the healing fractures were approximately two-to-four weeks old. He explained that a baby with healing
fractures can be fussy, may have trouble sleeping and may experience other
problems. However, such a baby may
experience no symptoms at all. Such
fractures would not likely be identified during a routine doctor’s visit. The fractures did not play a role in the
baby’s death. The existence of the
fractures was confirmed by x-rays.
Dr. Ribe
explained that he strongly suspected homicidal suffocation based on a host of
factors, namely that (1) the baby was healthy and did not have physical
injuries – such as a skull fracture or fatal blunt force trauma – that would be
expected to cause death, (2) the baby’s death was unexplained, (3) the baby had
multiple bruises to her face, including nose, (4) the baby had copious
petechiae of the thymus gland, which is seen in cases of suffocation, (5) there
was post-mortem fluidity in the blood, which is a feature of death by asphyxia,
and (6) the baby had healing rib fractures, which indicated there had been a
violent event to the baby’s chest by an adult.
One of the
documents admitted into evidence was a letter written by Dr. Carol Berkowitz, a
professor of clinical pediatrics at UCLA, who concurred with Dr. Ribe’s opinion
that the findings are “highly suspicious of homicidal (intentional)
suffocation.” She also concurred that
the baby’s rib fractures “are indicative of physical abuse.”
After Dr.
Ribe testified, counsel for the parties offered closing arguments. Counsel for the Department urged the court to
sustain the allegations, including the allegation under subdivision (f). Counsel for D.L. joined in the arguments of
counsel for the Department, except that she asked the court to dismiss certain
allegations under subdivisions (a) and (b) which alleged that a specific parent
physically abused the baby because there was insufficient evidence that a
specific parent inflicted the injuries.
Counsel for D.L. argued there was enough evidence that the parents’
actions caused the death of their baby, who was under their exclusive
control. Counsel for the parents each
argued there was insufficient evidence to support the allegations.
After
hearing argument, the juvenile court stated it was “obvious that this child
died non-accidentally at someone’s hands.”
The child died while under the care of her parents, though the court
could not say whether it was the mother or father who inflicted the fatal
injury. The court then sustained various
allegations under subdivisions (a), (b) and (j) – all of which alleged the
parents more than likely caused the baby’s physical injuries – as well as the
allegation under subdivision (f). The
court dismissed several allegations under subdivisions (a), (b) and (j), which
had alleged that a specific parent caused the baby’s injuries.
The
contested disposition took place in April.
After admitting various exhibits and taking judicial notice of the
sustained petition, mother called two witnesses. First, the Department social worker who had
been assigned to the case for approximately two months testified that the
Department had received no prior referrals regarding the parents and that there
were no indications D.L. had been abused.
The parents had completed parenting classes and were on the waiting list
for individual therapy. The parents appeared willing to participate
in services.
The social
worker had not observed any of the parents’ monitored visits with D.L., but the
foster father who had monitored recent visits reported that D.L. sometimes acts
aggressively towards her parents.
D.L.’s
maternal grandfather testified that he had been present for most of D.L.’s
visits with her parents. He testified
that D.L. hugs mother and calls her “Ma Ma.”
He has never seen D.L. act aggressively towards mother during these
visits.
Counsel for
the Department and counsel for D.L. argued against reunification services for
the parents, claiming the parents had not demonstrated services would be in
D.L.’s best interests. Counsel for the
parents asked the court to order services.
The court declined to order reunification services because
“[t]his is [a subdivision (f)] case.”
interests to not order reunification services, the court scheduled a hearing
for the selection and implementation of a permanent plan for D.L.
Mother and
father filed separate writ petitions challenging the juvenile court’s
decision. They each claim that
substantial evidence does not support (1) the juvenile court’s jurisdictional
findings, and (2) the juvenile court’s decision to deny them reunification
services. The Department filed an answer
opposing the granting of relief.
DISCUSSION
1. The
Standard of Review.
We review
the juvenile court’s findings of fact under the substantial evidence test,
which requires us to determine whether there is reasonable, credible evidence
of solid value to support the order. (
1398; Curtis F. v. Superior Court
(2000) 80 Cal.App.4th 470.) In so doing,
we must resolve all conflicts in support of the court’s determination and
indulge all legitimate inferences to uphold the court’s order. If substantial evidence exists, we must
affirm. (James B. v. Superior Court (1995) 35 Cal.App.4th 1014, 1020-1021;
820; In re Katrina C. (1988) 201
Cal.App.3d 540, 547; In re Tracy Z.
(1987) 195 Cal.App.3d 107, 113.)
Whether the
court made the correct decision based upon its findings of fact is reviewed
under the abuse of discretion standard.
(In re Brian M., supra, 82
Cal.App.4th at p. 1401, fn. 4; In re
Brequia Y. (1997) 57 Cal.App.4th 1060, 1068.)
2. Substantial
Evidence Supports The Juvenile Court’s Jurisdictional Findings.
The
juvenile court found that D.L. was a child as described in subdivisions (a),
(b), (f) and (j).
title="">[6] Both parents claim
the findings under either of these subdivisions.
a. Subdivision
(f) – Death of Another Child.
We begin
with subdivision (f) because the juvenile court’s decision to deny
reunification services hinged on its finding that D.L. came within the juvenile
court’s jurisdiction under that subdivision.
This requires us to determine whether there is substantial evidence to
support the finding that the parent’s “caused” the baby’s death “through abuse
or neglect.”
title="">[7]
Both
parents argue the juvenile court’s finding is unsupported. Father argues that the phrase “neglect” in
the statute requires criminal negligence, not merely the type of negligence
that would support civil liability. This
contention lacks merit. First, the
Department’s evidence tended to show that the baby’s death was due to
intentional suffocation, not merely the result of neglect. The Department focused on the abuse prong of
subdivision (f), not the neglect prong.
Second, in In re Ethan C., supra,
___ Cal.4th ___ [2012 Cal. Lexis 6358, pp. *27 to *55], our Supreme Court
rejected this very contention. The court
found “nothing in section 300(f)’s language, history, or policies” requiring “a
higher degree of negligence than is required to establish negligent default on
a mere civil issue.” (
*27.) The court observed “the Legislature
could rationally conclude that when a parent’s or guardian’s negligence has led
to the tragedy of a child’s death, the dependency court should have the power
to intervene for the safety and protection of children remaining in the
parent’s or guardian’s custody, even if the parent’s lethal carelessness cannot
necessarily be characterized as sufficiently ‘gross,’ reckless, or culpable to
be labeled ‘criminal.’ ” (
*52].) The court then held that, “for
purposes of a dependency adjudication under section 300(f), the neglect by
which a parent or guardian ‘caused the death of another child’ may include the
parent’s or guardian’s breach of ordinary care, and need not amount to criminal
negligence.” (Id. at p. ___ [2012 Cal. Lexis 6358, p. *54].)
Turning to
the meaning of the term “caused” in subdivision (f), the Supreme Court found
“no indication that the word ‘caused,’ which has a commonly understood meaning
in both criminal and civil law, was used in a special or different sense in
section 300(f).” (In re Ethan C., supra, ___ Cal.4th at p. ___ [2012 Cal. Lexis 6358,
p. *60].) The court held that “[o]ne’s
wrongful acts or omissions are a legal cause of injury if they were a
substantial factor in bringing it about.”
(In re Ethan C., supra, ___
Cal.4th at p. ___ [2012 Cal. Lexis 6358, p. *60].)
The court
also held that under subdivision (f), the juvenile court is not required to
find based on independent evidence that the child is currently at risk arising
from the parents having caused the death of a child. (See In
re Ethan C., supra, ___ Cal.4th at p. ___ [2012 Cal. Lexis 6358, pp. *55 to
*61].)
In this
case, there is substantial evidence to support the juvenile court’s finding
that the parents “caused” the baby’s death by abuse or neglect. Although the report stated that the autopsy
did not establish the cause of the baby’s death “with medical certainty,” such
certainty is not required. The autopsy
report stated that homicidal suffocation was “strongly suspect[ed].” In his testimony at the adjudication, Dr.
Ribe stated that there was a “strong suspicion of homicidal suffocation.” Dr. Dr. Carol Berkowitz, the UCLA professor
of clinical pediatrics, also opined that the autopsy findings were “highly
suspicious of homicidal (intentional) suffocation.” The only alternative theory for the baby’s
death was the one suggested by the defense – SIDS. However, Dr. Ribe opined that most pathologists
would not conclude the baby died as a result of SIDS.
When one
adds the undisputed evidence that the baby was physically abused and was in the
parents’ exclusive care at all relevant times, as well as the parents’
questionable claim that the baby was alive on the morning of July 5, we cannot
say the juvenile court had no basis to conclude the parents likely caused the
baby’s death.
b. Subdivisions
(a), (b) & (j) – Substantial Risk of Harm.
The
juvenile court’s findings under subdivisions (a), (b) and (j) are also
supported by substantial evidence. Even
if the cause of the baby’s death could not be established with absolute
certainty, there was substantial evidence that the baby had been physically
abused. Both Dr. Ribe and Dr. Berkowitz
claimed the baby’s rib fractures were indicative of physical abuse. Dr. Ribe also opined that the multiple
bruises on the baby’s face were caused by blunt force trauma – most likely the
human hand – and he rejected the notion that the bruises could have been caused
by the CPR father administered on the morning of July 5. The possibility that the baby could have
sustained bruises when she was hit by a baby bottle was also rejected.
Even though
there was no evidence that D.L. had been abused, there was sufficient evidence
to support the juvenile court’s finding that there was a substantial risk she
would suffer serious physical harm based on the physical abuse inflicted on her
deceased sibling. Subdivision (j)
specifically requires a finding of risk based on past abuse of a sibling, while
subdivision (a) permits such a finding.
And although subdivision (b) does not expressly reference abuse to a
sibling, it authorizes juvenile court jurisdiction where there is a future risk
of serious physical harm. As the Court
of Appeal stated in In re Diamond H.
(2000) 82 Cal.App.4th 1127, 1135 (disapproved on another point as stated in
Cal.4th 735, 748, fn. 6) while discussing subdivision (b), “[i]n determining
whether the child is in present need of the juvenile court’s protection, the
court may consider past events.” (
1163, 1169.)
Thus,
substantial evidence supports the juvenile court’s jurisdictional findings
under subdivision (a), (b) and (j).
3. Substantial
Evidence Supports The Juvenile Court’s Decision to Deny
Reunification
Services.
Under
section 361.5, subdivision (b)(4), reunification services need not be provided
when the juvenile court finds by clear and convincing evidence that “the parent
or guardian of the child has caused the death of another child through abuse or
neglect.” Indeed, where such a finding
is made, the court is precluded from ordering reunification services unless it
“finds, by clear and convincing evidence, that reunification is in the best
interest of the child.” (§ 361.5, subd.
(c); see also In re Ethan C., supra,
___ Cal.4th at p. ___ [2012 Cal. Lexis 6358, p. *39].)
Even though
the juvenile court must make its determination based on clear and convincing
evidence, appellate courts ignore that standard when deciding whether there is
sufficient evidence to support the juvenile court’s finding. “ ‘ “ ‘The sufficiency of evidence to
establish a given fact, where the law requires proof of the fact to be clear
and convincing, is primarily a question for the trial court to determine, and
if there is substantial evidence to support its conclusion, the determination
is not open to review on appeal.’
[Citations.]” [Citation.] Thus, on appeal from a judgment required to
be based upon clear and convincing evidence, “the clear and convincing test
disappears . . . [and] the usual rule of conflicting evidence is
applied, giving full effect to the respondent’s evidence, however slight, and
disregarding the appellant’s evidence, however strong.” [Citation.]’ ” (In re
Mark L. (2001) 94 Cal.App.4th 573, 580-581, quoting Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 880-881,
brackets and ellipsis in original.)
In this
case, the juvenile court found at the adjudication that the parents had caused
the baby’s death through abuse and, as discussed above, substantial evidence
supports that finding. In light of this
finding, the court reasonably could have denied reunification services.
Disposition
The writ
petitions are denied on the merits. This
opinion is final forthwith as to this court.
(Rule 8.490(b)(3).)
NOT TO BE PUBLISHED
IN THE OFFICIAL REPORTS
RUBIN,
J.
We concur:
BIGELOW,
P. J. FLIER,
J.
name="_ftn1" title="">[1]
are to the Welfare and Institutions Code and all undesignated references to
statutory subdivisions are to the subdivisions of section 300.
name="_ftn2" title="">[2] Because
the two-year-old girl who is the subject of the dependency proceeding and her
deceased sibling share the same initials, we will refer to the former as D.L.
and to the latter as the baby or deceased child.
