Superior Court
Filed 6/18/13 Regina C. v. Superior Court CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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as specified by rule 8.1115(b). This
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purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF
FIFTH APPELLATE DISTRICT
REGINA
C.,
Petitioner,
v.
THE SUPERIOR
COURT OF STANISLAUS
COUNTY,
Respondent;
STANISLAUS COUNTY COMMUNITY
SERVICES AGENCY,
Real Party in Interest.
F066920
(Super.
Ct. No. 516468)
THE COURT
name="_ftnref1" title="">*
ORIGINAL PROCEEDINGS; petition for
Robert D. Chase, for Petitioner.
No appearance for Respondent.
John P.
Doering, County Counsel, and Robin Gozzo, Deputy County Counsel, for Real Party
in Interest.
-ooOoo-
Regina C.
(mother) seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from a
March 2013 juvenile court order setting a Welfare and Institutions Code section
366.26
plan for her seven-month-old son, Joshua.
The court reached its decision having denied the parents services to
reunify with Joshua, who suffered repeated physical abuse at the hands of his
father. The court found mother, by her
omission, also inflicted severe physical harm on Joshua and that it would not
benefit the infant to pursue reunification
services with mother. (§ 361.5,
subd. (b)(6).) We agree with the
juvenile court and deny this petition.
FACTUAL AND PROCEDURAL HISTORY
November 2 and 8, 2012
On November 2, 12-week-old Joshua
had a scheduled well-baby check with his pediatrician, Dr. Jonas Bernal. When Dr. Bernal entered the examination room,
he was immediately struck by the appearance of Joshua’s head. The frontal area of the infant’s head was
very prominent. In addition, Joshua’s
anterior fontanelle or soft spot was open and full. Joshua’s head was obviously misshapen. These were new and unusual findings that
concerned the doctor.
The circumference of Joshua’s head
that day measured 15.5 inches or 39.3 centimeters, which placed him in the
“high normal†range for his chronological age.
The circumference of Joshua’s head, when last measured in late August,
was 12.25 inches or 31.1 centimeters placing him at the 10th percentile for his
age. This head circumference increase
also concerned the pediatrician.
Dr. Bernal expected the parents
would have been concerned by the shape of Joshua’s head. The pediatrician asked the parents if they
noticed Joshua’s head size or head shape and were they concerned. Mother reported she had noticed it but she
attributed it to the head size in the father’s family. The father said nothing.
The pediatrician asked the parents
if they had any concerns and if Joshua had exhibited symptoms, such as
irritability, increased sleepiness, projectile vomiting, changes in the baby’s
activity or any abnormal activities. The
parents only mentioned Joshua spit up sometimes, but there was no
vomiting. The parents had no other
complaints or concerns to report.
According to the parents, Joshua seemed to be doing well.
Dr. Bernal ordered a cranial
ultrasound to check the infant’s brain structures. He did not consider it an emergency at that
time because Joshua did not have any symptoms, either reported by the parents
or based on the doctor’s physical examination, of increased intracranial
pressure. Symptoms of increased
intracranial pressure in an infant usually include projectile vomiting, a
change in behavior, either the baby would be very irritable or very lethargic,
and in extreme cases “sunsetting eyes†or eyes with a downward gaze.
The ultrasound, conducted on
November 7, revealed a large collection of fluid in Joshua’s brain. Once the pediatrician received the results of
Joshua’s ultrasound, he had the parents return on November 8. At that appointment, the parents stated Joshua
had two vomiting episodes during the past two days. This caused the pediatrician increased
concern. Also, the circumference of
Joshua’s head on November 8, measured at 16 inches or 40.6 centimeters. The one-half inch increase in less than a
week’s time was significant to the pediatrician.
Dr. Bernal arranged for the parents
to immediately take Joshua to Children’s Hospital in Madera.
Joshua’s Multiple Injuries
On November 8, Joshua was admitted
to the hospital for an urgent MRI, which uncovered there was bleeding in more
than one area of his brain.
Specifically, there were large, bilateral subdural hematomas in the
cerebral hemispheres with evidence of prior brain injury in the right parietal
and frontal region. Due to the large
fluid collection on Joshua’s brain, he was taken to surgery to evaluate the
subdural hematomas and to insert a drain.
He was then admitted to the hospital’s pediatric intensive care unit.
On November 10, a chest x-ray
revealed Joshua had eight healing bilateral rib fractures. They appeared to be similar in age. These findings led to a medical consultation
for possible nonaccidental trauma to the infant.
According to Dr. Philip Hyden, the
hospital’s child advocacy attending physician, each parent claimed no recall of
any trauma which could have resulted in Joshua’s brain and rib injuries. They did provide, however, additional
information about the infant’s history.
Joshua’s Prior Hospitalization
Joshua had been hospitalized
between September 13 and 15 for what medical professionals termed an apparent
life-altering episode or ALTE. The infant
was alone with his father on September 13.
The father purportedly fed Joshua and placed him in his crib. The father later checked on Joshua, who
appeared to have difficulty breathing and was not moving his extremities. The father “‘freaked out’†and called
911. When paramedics arrived, Joshua was
bradypneic, lethargic and dusky.
name="_ftnref4" title="">[3] He was held upright and burped, which
resulted in a large amount of emesis or vomit.
Joshua then became responsive and began crying. At a hospital emergency department, Joshua
was much improved, yet he still had a moderate amount of non-forceful
emesis. No apnea or hypoxia was
noted. He was admitted to the hospital
with an apnea monitor but had no apnea events.
Joshua’s Symptoms Prior to His November Hospitalization
Over a few days, before his
November hospitalization, Joshua had episodes of projectile vomiting. The parents and maternal grandmother also
noted Joshua’s eyes were looking downward or “sunsetting.†This was first observed on October 22, and
occurred intermittently since then.
According to his parents, Joshua did not seem to be in any pain and had
been growing, despite the frequent vomiting.
Dr. Hyden informed detectives from
Stanislaus County Sheriff’s Department of Joshua’s injuries. On November 14, detectives and social workers
from Stanislaus County visited with the parents, as well as Dr. Hyden, at the
hospital. The detectives and social
workers met first with mother.
Mother described herself as a
stay-at-home mom and primary caregiver for Joshua. Joshua was a good baby and did not fuss too
much. She did not have an explanation
for Joshua’s injuries. She claimed she
did not know how it was possible that Joshua was “injured.â€
When one detective advised mother
that Joshua’s injuries were consistent with shaken baby syndrome, mother had
little reaction. She reported she had
not shaken him. She added when they, an
apparent reference to her and the father, got upset or frustrated, they would
put Joshua down and walk away. She also
reported there were concerns about Joshua’s head being oddly shaped since
September or October. During the
interview, mother had a flat affect and did not show any emotion.
Joshua’s Injuries Resulted from Child Abuse
On November 15, Dr. Hyden reported
to a social worker and a detective that Joshua’s injuries were the result of
and at the location of the old blood there was a hole in the brain from the
injury. Joshua also had a retinal
hemorrhage in his left eye and possible old hemorrhages that had healed. The bilateral rib fractures were old. In addition, he showed signs of “sunsettingâ€
eyes for some time.
A social worker informed the
parents on November 15 that Joshua would be taken into protective custody. Mother became upset and wanted to know how
that could be. During her conversation
with the social worker, mother “wanted to know who was on her side and if she
could get the police on her side.†When
the social worker explained the juvenile court process, mother again wanted to
know who was on her side and stated that everyone was against them. During the conversation, mother did not talk
about Joshua’s well-being or safety. She
only spoke of herself and how this was affecting her.
The Father’s Confession
Later on, on November 15, the
father asked to meet with Dr. Hyden and explain how Joshua was injured. The father stated he had considerable
apprehension when caring for the infant, and would become frustrated when
Joshua would cry or be fussy. He
frequently shook the baby back and forth, very hard. The father knew that it would hurt the child.
The father specifically recalled
the day in September when he was left alone with Joshua. He fed and burped the infant, but when Joshua
would not stop crying, the father burped him “‘really hard, then shook
him.’†He later noticed the child was
having difficulty breathing, and his legs were limp. The father then stated that he performed CPR
on the baby, and called 911. He did not
inform the paramedics or admit to the hospital emergency department what had
transpired. He claimed no one asked him
if he had injured the infant. As a
result, the father felt that he may have not harmed Joshua.
After Joshua returned home from the
hospital in September, and the father was alone with the child, he would
continue to become frustrated when Joshua would cry, and shake him, with short,
rapid but forceful, back-and-forth movement.
The father recalled that Joshua’s head would go forward and
backward. The father began counting the
days between shaking events, to see if he could prevent himself from doing
recurrent harm to his son. He said that
he was afraid to tell his wife because she was critical of him.
When the
father confessed his actions to a Stanislaus County detective, the father said
he had shaken Joshua “about seven to eight times.†To Dr. Hyden, the father said he did so “ten
or eleven times, maybe more.†The father
counted the days when the father had not hurt Joshua because he was shaking the
infant so often.
In Dr.
Hyden’s opinion, the event which created the September ALTE was most likely the
episode that caused Joshua’s intracranial injuries and rib fractures.
Mother’s Response
Mother later spoke privately with
Dr. Hyden. Mother was calm and
objective, stating that she was surprised that her husband could hurt Joshua,
and wondered if she had been “‘too hard’†on the father, not realizing that he
was dealing with so much stress. She
acknowledged that they had recently obtained a new home, had a new baby, and
her husband was dealing with too many issues at once. Mother also recalled that she had observed
the father “‘jolting’†the infant by grabbing him forcibly on one occasion, but
she intervened, and did not believe the father meant to cause Joshua harm.
During a
November 16 conversation with one of the social workers, mother again mentioned
seeing the father “‘jolt’†Joshua.
According to mother, this occurred one time when Joshua was very
little. She claimed she did not think it
was a big deal at the time because Joshua was swaddled and his head did not
flop around. The father had been burping
Joshua. She described the jolt as a
“‘tremor of [the father’s] hand.’†She
reported that afterwards she told the father they “‘could not take it out on
him’†when they were frustrated with Joshua because he was just a baby and did
not know any better. Mother claimed she
just recently remembered this event.
Mother also
reported that Joshua’s head began to become enlarged around September or
October and they were not really concerned about it based on conversations with
family and friends. She also noticed
Joshua’s head “‘felt heavy’†but did not think anything of it. As for the infant’s prominent forehead,
mother thought he was going to have a big forehead because of the father’s
family. She also claimed for the first
time that she had asked the pediatrician about Joshua’s head at the infant’s
regular check-up. While others stated it was obvious Joshua’s head was
abnormally large and misshapen, mother reported she had worked with older
children but did not have experience with babies and did not know any
different. The agency later learned that
mother had six years of experience as a child care provider and more
specifically worked in an infant class for approximately two years.
Juvenile Dependency Proceedings
While Joshua remained hospitalized,
real party in interest Stanislaus County Community Services Agency (agency)
petitioned the juvenile court to exercise its dependency jurisdiction over the
infant. Based on the foregoing facts,
the agency alleged Joshua came within the juvenile court’s jurisdiction under
section 300, subdivisions (a) [serious physical harm inflicted nonaccidentally
by the child’s parent], (b) [serious physical harm as a result of parental
neglect], and (e) [severe physical abuse of a child under the age of five by a
parent or anyone known by the parent who knew or reasonably should have known
the person was physically abusing the child].
The agency later recommended the court also remove Joshua from parental
custody and deny each parent reunification services. The agency argued the parents should be
denied services because Joshua came within the court’s jurisdiction under
section 300, subdivision (e) due to the parent’s conduct (§ 361.5, subd.
(b)(5)) and because Joshua should be adjudged a dependent pursuant to any
subdivision of section 300 as a result of the infliction of severe physical
harm to him by a parent, and it would not benefit Joshua to pursue
reunification services with the offending parent (§ 361.5, subd.
(b)(6)).
Contested Evidentiary Hearing
Over several days in February and
March 2013, the juvenile court held a contested jurisdictional/dispositional
hearing. By this time, Joshua was out of
the hospital and making progress.
However, he had clearly suffered permanent brain damage and was
exhibiting some developmental delays. In
addition to the hole in his brain,
Joshua was missing approximately 10 percent of his brain, which would never
grow back.
At the beginning of the
jurisdictional/dispositional hearing, the father waived his rights, pled no
contest to the dependency petition’s allegations, and waived his right to
custody and reunification services.
Dr. Husam Abdulnour, a pediatrician
who cared for Joshua during his September hospitalization, testified that
Joshua’s symptoms were most consistent with gastro-esophageal reflux. Upon Joshua’s September hospital discharge,
Dr. Abdulnour advised mother that if the baby continued vomiting he needed to
be returned to the clinic.
Melissa Hale, a mental health
clinician, testified about a clinical assessment she recently conducted of
mother. Based on her assessment, Hale
recommended mother be psychologically evaluated in order to explain her
apparent lack of insight. It did not
appear that mother accepted any responsibility for what happened to Joshua. According to Hale, during the assessment,
mother claimed she became concerned a couple of days prior to Joshua’s doctor
appointment when he began vomiting.
When mother took the witness stand,
she confirmed that at some point in late October she noticed Joshua did
vomit. She also vividly remembered that
on October 31, Joshua vomited and it was a “grave concern†to her. However, she did not take Joshua to the
doctor that night. Mother claimed when
she took Joshua for his November 2 check-up, she reported her concerns about
Joshua’s vomiting to Dr. Bernal. Mother
did not have an explanation however for why, if she told Dr. Bernal on November
2 about Joshua’s vomiting, she did not seek medical attention for Joshua sooner
than just waiting for his next appointment.
Dr. Bernal testified there was no
mention at the November 2 appointment of Joshua vomiting. Had he been informed that on October 31
Joshua had “vomiting of grave concern,†Dr. Bernal would have most likely sent
Joshua to the emergency room.
Mother admitted she had used the
word “jolt†to describe the father’s conduct on one occasion. His conduct and her conversation with him
about dealing with frustration occurred sometime in September. However, “jolt†was not the proper word to describe
what she actually saw.
She denied knowing anything about
sunsetting eyes before her conversation with Dr. Hyden. At most, the maternal grandmother did mention
to her at the end of October that Joshua’s eyes might look a little funny. Mother, however, did not take any action in
response to the grandmother’s observation.
Mother did not think Joshua’s eyes were abnormal during the two months
prior to his removal.
Mother also denied believing
Joshua’s head looked either inappropriately large or misshapen during the two
months prior to his removal. She denied
telling the social worker in November that Joshua’s head began to be large
around September or October or that his head was large and misshapen. Mother did admit saying Joshua’s head did feel
heavy when she held him.
Mother admitted she did not take any
responsibility for what happened to Joshua while he was in her care and
custody. She also did not believe that
there was anything she could have done differently. If he were returned to her care, she would
look for honesty in people to ensure Joshua’s safety.
Dr. Angela Rosas, an expert in
child abuse, testified on mother’s behalf.
In the doctor’s opinion, there was no significant enlargement of
Joshua’s head size until the week before his November admission to the
hospital. However, Dr. Rosas could not
completely rule out any pattern of abnormal head growth in September or October
because there was no measurement of Joshua’s head circumference in those
months. Mother would not have recognized the child’s head was misshapen. Also, in the doctor’s view, Joshua’s symptoms
were slowly progressing. Before November
8, a caregiver would not be able to recognize symptoms “specifically of child
abuse.â€
Photographs submitted by mother did
show that starting in October, Joshua had a downward gaze. However, according to Dr. Rosas, there was
nothing specific in the photographs that would make nonaccidental trauma
obvious. On the other hand, photographs
of Joshua starting on October 24 showed his head was misshapen, as well as the
prominence of his forehead.
Dr. Rosas also testified about the
age of Joshua’s injuries. In her
opinion, the rib fractures were two to four weeks old from when the November
x-rays were taken. Some of the brain injuries
could have been months old, as in September or even earlier. The older brain injury was a hole in Joshua’s
brain. Dr. Rosas agreed with Dr. Hyden’s
opinion that the September ALTE event was the most likely episode to have
caused the older brain injury and would explain the older rib fractures. The
clinical symptoms that Joshua exhibited in September were consistent with
abusive head trauma.
However, at least one brain injury
occurred probably within a few days of November 8. That injury would have contributed to the
increase in the volume of subdural fluid.
Also, there was quite a bit of fluid, indicating an injury that was
several weeks to a month old.
Joshua’s maternal grandmother
testified about Joshua’s eyes not focusing.
She noticed this on October 18, as she changed his diaper. However, she did not mention it to
mother. The maternal grandmother, who
acknowledged she was concerned, instead “looked into it†by searching baby
ocular development on the internet. When
she saw Joshua between October 18 and November 8, his eyes were not focusing
approximately 60 percent of the time.
The maternal grandmother mentioned Joshua’s eyes looking downward to
mother toward the end of October. The
maternal grandmother did so because it had been a concern of hers and to see if
mother agreed. They did not agree.
Court’s Ruling
Following closing arguments, the
court exercised its jurisdiction over Joshua under section 300, subdivisions
(a), (b), and (e). It also adjudged
Joshua a dependent child and removed him from
The court could not find by clear
and convincing evidence that mother abused Joshua or that she knew he was being
abused. Therefore, it would not deny her
reunification services under section 361.5, subdivision (b)(5). However, it did deny mother reunification
services under section 361.5, subdivision (b)(6) based on the severe physical
harm Joshua suffered.
The court did not find mother
credible. As examples, the court noted
it did not accept mother’s testimony that:
she never thought Joshua’s head was misshapen; she told Dr. Bernal on
November 2 that Joshua had been vomiting, or that she used the word “joltâ€
incorrectly to describe what the father did to Joshua when he was very
young. Another credibility issue for the
court arose based on mother’s early statement that she had no experience with
babies when later it turned out that she did.
The court found Joshua had
observable signs for quite some time that something was wrong with him. The court did not believe mother could have
missed knowing something was wrong with Joshua.
Someone, namely mother, should have taken the baby to the doctor earlier
to assure prompt medical attention. The
court was “flabbergasted†that mother would not rush Joshua to the emergency
room. In particular, it found Joshua’s
vomiting on October 31 gave mother her “grave concern,†but she did
nothing. She still did nothing after the
November 2 appointment despite his ongoing vomiting.
DISCUSSION
statutory right to counsel or due process.
At a November 26 detention hearing
for Joshua, the juvenile court did not appoint counsel for either of the
parents. As a preliminary matter, mother
contends the juvenile court consequently denied her statutory right to have
counsel at the detention hearing (§ 317, subd. (d)) and her constitutional
right to due process. We disagree.
A juvenile detention hearing is the
first hearing conducted once a child has been taken into temporary custody and
a petition is filed with the juvenile court to exercise its dependency
jurisdiction. (§§ 309; 319.) The social worker must make a prima facie
showing that the child comes within section 300 (the grounds for jurisdiction),
as well as that continuance in the parent’s home is contrary to the child’s
welfare. (§ 319, subd. (b).) Assuming there is a prima facie showing, the
court issues a detention order and sets a jurisdictional hearing at which the
social worker must show by a preponderance of the evidence that the child comes
within section 300. (§ 355, subd.
(a).) Once the court exercises its
jurisdiction, the social worker must show, by clear and convincing evidence,
that there exists the requisite risk of harm to warrant the court removing a
child from parental custody. (§ 361.)
At a
detention hearing, the court shall appoint counsel for the parent “[w]hen it
appears to the court that [the parent] is presently financially unable to
afford and cannot for that reason employ counsel .…†(§ 317, subd. (b).)
In this
case, the juvenile court did not appoint counsel for either parent at the
November detention hearing because neither appeared to qualify. The couple was married, the father had a
fulltime job making in excess of $40,000 a year and they recently bought a
house. Although both parents said they
could not afford counsel, neither parent had even spoken to any attorneys and
mother in particular did not know how much an attorney would cost. The court urged the parents to speak with
attorneys and made clear the parents could come back and renew their requests
once they spoke with some attorneys about fees and could show they could not
afford those fees.
The court could have continued the
detention hearing for one day. (§§ 319,
subd. (c); 322.) However, the court did
not abuse its discretion by not granting a one-day continuance. By this point, Joshua had been in protective
custody for many days and still the parents had done nothing so far as seeking
counsel was concerned. One day in all
likelihood would not have made a difference.
Instead, the court briefly trailed the hearing for the parents to review
the petition and the social worker’s report.
Mother then told the court she underlined “a few things that I didn’t
say or are not correct.†Yet, when the
court gave her the chance to cross-examine the social worker who wrote the
report, mother did not pose any questions.
The court then found a prima facie showing, and set the jurisdictional
hearing.
A few days later, mother returned
to juvenile court and persuaded another judge to appoint counsel for her. That judge reserved the ability-to-pay issue.
On this
record, we conclude the evidence did not compel the juvenile court to appoint
counsel for mother on November 26, nor did it violate mother’s statutory right
to have counsel at the detention hearing.
In any event, mother makes no showing that any statutory error was
prejudicial. She overlooks the low
evidentiary standard of a prima facie showing at the detention hearing compared
to the higher evidentiary standards the juvenile court must apply at the
jurisdiction hearing and to warrant removal from parental custody. She also does not contest in this writ proceeding
the sufficiency of the evidence to support the juvenile court’s multiple
jurisdictional findings or its removal order.
Therefore, we conclude any statutory error related to the detention
hearing was harmless.
We likewise
reject mother’s due process claim. Her
constitutional argument is meritless in that it is little more than a
conclusional statement that her due process rights were violated. (People
v. Wharton (1991) 53 Cal.3d 522, 563 [bare mention of a due process claim
on appeal does not merit a reviewing court’s consideration].) In any event, she appears to assume her due
process claim amounts to structural error and therefore she is entitled to
reversal per se. However, she cites no
authority to support such an assumption.
She also overlooks the state supreme court’s decision in
917 in which the court questioned whether the structural error doctrine,
established for certain errors in criminal
proceedings, has any place in the quite different context of juvenile
dependency proceedings. The court also
observed the question of prejudice is relevant in a dependency proceeding when
the child’s welfare is at issue. (
Given mother’s failure to demonstrate any resulting prejudice from the
juvenile court’s initial decision not to appoint her counsel and to proceed
with the detention hearing, we conclude mother is not entitled to any
relief.
by her omission, inflicted severe physical harm on Joshua.
Mother also
challenges the order denying her reunification services under section 361.5,
subdivision (b)(6). Claiming there was
insufficient evidence that she knew the father was abusing their child, mother
contends the court erred by denying her services under section 361.5,
subdivision (b)(6). We disagree.
As a general rule, reunification services are offered to
parents whose children are removed from their custody, in an effort to
eliminate the conditions leading to loss of custody and to facilitate reunification
of parent and child. This furthers the
goal of preservation of family, whenever possible. (Raymond
C. v. Superior Court (1997) 55 Cal.App.4th 159, 163.) But recognizing that it may be fruitless to
provide reunification services, the Legislature has enacted provisions for
“fast-track†permanency planning under certain circumstances. (In re
Baby Boy H. (1998) 63 Cal.App.4th 470, 478.) We review the juvenile court’s order denying
reunification services under section 361.5, subdivision (b) for substantial
evidence. (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96.)
The governing provision in this case, section 361.5,
subdivision (b)(6), provides in relevant part:
need not be provided to a parent ... when the court finds, by clear and
convincing evidence, any of the following:
[¶] ... [¶] (6) That the child
has been adjudicated a dependent pursuant to any subdivision of Section 300 as
a result of ... the infliction of severe physical harm to the child ... by a
parent ..., and the court makes a factual finding that it would not benefit the
child to pursue reunification services with the offending parent ....â€
A finding of the infliction of
severe physical harm for purposes of section 361.5, subdivision (b)(6) “may be
based on, but is not limited to, deliberate and serious injury inflicted to or
on a child’s body or the body of a sibling or half sibling of the child by an
act or omission of the parent
....†(§ 361.5, subd. (b)(6);
italics added.) Section 361.5, subdivision (b)(6) “is not limited to the parent or parents whose act
directly caused the child’s
injury.†(Tyrone W. v. Superior Court
(2007) 151 Cal.App.4th 839, 851.) For example, where parents were aware
of their child’s pain and disfigurement resulting from an accidentally broken
leg, their failure to seek medical attention for two months was deemed
infliction of severe physical
injury by omission.
S. v. Superior Court (2002) 98 Cal.App.4th 292, 301.)
By arguing there was insufficient
proof that she knew Joshua was suffering severe physical abuse, mother ignores
the juvenile court’s findings. As
mentioned above, the juvenile court acknowledged it could not find clear and
convincing evidence that mother did know the father was severely abusing Joshua. If it had, it would have denied mother
reunification services on the alternative ground of section 361.5, subdivision
(b)(5). Section 361.5, subdivision
(b)(5) essentially prohibits services when a child under the age of five has
suffered severe physical abuse by a parent or by any person known by the
parent, if the parent knew or reasonably should know the person was physically
abusing the child (§ 300, subd. (e)).
On the other hand, the court did
find that: Joshua had observable signs
for quite some time that something was physically wrong with him and mother
could not have missed them; and mother should have taken the baby to the doctor
earlier to assure prompt medical attention.
It was on this basis, distinct from whether mother knew Joshua was suffering
abuse, that the court denied her services under section 361.5, subdivision
(b)(6).
Over the space of approximately six
weeks, mother observed Joshua’s head had become misshapen and enlarged, his
gaze had changed and he frequently vomited, including projectile vomiting to
the point that she claimed it was of “grave concern.†Yet, as Joshua’s primary caregiver, mother
failed to seek medical care for him.
This was despite the fact that she had been specifically told in
September by the hospital pediatrician that she should bring Joshua in if he
continued vomiting.
There was also evidence that
Joshua’s injuries occurred over a period well beyond the September ALTE
episode. The rib fractures were two to
four weeks old from when the November x-rays were taken. One brain injury was several weeks to a month
old as of the November 8 hospital MRI.
There was also at least one brain injury, which occurred probably within
a few days of that MRI. In other words,
had mother alerted doctors to Joshua’s vomiting or downcast gaze before
November 8, she could have prevented at least one or more of his serious
injuries. For example, we know from Dr.
Bernal’s testimony that had he been alerted to either Joshua’s recurrent
downward gaze or his vomiting on October 31 that was of grave concern to
mother, the pediatrician would have arranged for an earlier ultrasound or most
likely sent Joshua to the emergency room on November 2.
Even if mother did not know the
father was abusing Joshua, we conclude there
was substantial evidence to support a finding that mother’s conduct amounted to
“infliction of severe physical harm†by “omission†for purposes of section
361.5, subdivision (b)(6).
The petition for extraordinary writ is denied. This opinion
is final forthwith as to this court.
name="_ftn1" title="">* Before
Gomes, Acting P.J., Franson, J. and Peña, J.
name="_ftn2" title="">[1] All further statutory references are to the
Welfare and Institutions Code unless otherwise indicated.
