In re Owen C.

Filed 1/6/10 In re Owen C. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEALS from a judgment of the Superior Court of San Diego County, Blaine K. Bowman, Judge. Affirmed in part, reversed in part and remanded with directions.

In May 2009 the juvenile court entered a jurisdictional finding (Welf. & Inst. Code,   300, subd. (e));[1] removed seven-month-old Owen C. from the custody of his father, James C.; and placed Owen with his mother, Megan C. The court found the San Diego County Health and Human Services Agency (the Agency) had satisfied its obligation to "investigate the circumstances leading to [Owen's removal] and advise the court whether . . . reunification [was] likely to be successful" ( 361.5, subd. (c)). The court ordered family maintenance services ( 362, subd. (b),  364, subds. (b), (c)) for Megan and denied reunification services for James ( 361.5, subd. (b)(5), (b)(6)). James and Owen appeal.

James contends the jurisdictional finding is not supported by substantial evidence, the Agency failed to meet its investigatory obligation and the court abused its discretion by denying him reunification services. Owen contends reunification services were not at issue because he was not removed from both parents' custody and that it was in Owen's best interests for James to receive family maintenance services. We reverse the order denying James reunification services and remand so that the juvenile court may exercise its discretion to determine whether it is in Owen's best interests for James to receive family maintenance services. In all other respects we affirm the judgment.

I. BACKGROUND

A. THE PETITION

Megan became pregnant shortly after she and James began dating and just before James began a six-month military deployment to Iraq. In September 2008, one month after James returned, he married Megan and Owen was born. James had a difficult time readjusting to civilian life.

In December 2008 the Agency filed a dependency petition and Owen was detained in foster care. The petition alleged Owen "suffered severe physical abuse, including a skull fracture, intra cranial hemorrhage, retinal hemorrhage, and a fractured finger inflicted by [James]." In January 2009 the Agency filed an amended petition adding an allegation that Megan "knew or reasonably should have known [James] was physically abusing [Owen]." We describe the underlying evidence and proceedings below.

B. THE JURISDICTIONAL HEARING

In October 2008, when Owen was two weeks old, James took him to the pediatrician. James told the doctor Owen had begun to roll off a bed and James grabbed him to prevent a fall. There were bruises on Owen's trunk and back that might have resulted from this incident. There were also unexplained pinpoint hemorrhages on Owen's right eyelid and around his right ear.

In early December 2008 Owen became more lethargic and irritable. His sleeping and eating habits changed. His right eye deviated. On December 16 the pediatrician noted Owen's head circumference had increased dramatically. On December 17 an ultrasound revealed large fluid collections in Owen's head. On December 18 an MRI and a CT scan revealed a right parietal skull fracture, an intracranial hemorrhage and a large amount of subdural or subarachnoid fluid creating pressure on the brain. Owen also had a fracture of the right pinkie finger that was less than two weeks old, multiple retinal hemorrhages and a vitreous hemorrhage. He had recently suffered at least one episode of head trauma. On December 19 shunts were surgically inserted in his head to relieve the life-threatening pressure. The surgery clarified that the fluids were in the subdural space, not the subarachnoid space.

The only people who cared for Owen were Megan, James and two relatives. There was no evidence the relatives caused Owen's injuries. On December 19, 2008, an Agency social worker interviewed James and Megan. James gave three possible explanations for Owen's injuries. First, James put Owen on the floor to play and "a couple of times . . . put him down too hard" and heard "his head make a sound." Second, on November 29 James "jogged down [a] mountain too fast" with Owen strapped to his chest by a bungee. Third, the finger fracture might have occurred when James removed Owen from his car seat. Megan related two incidents that might have caused Owen's head injuries. First, "a week and a half ago" James tried to place Owen on all fours and Owen's head hit the carpeted floor, bruising the left side of his face. Second, James ran with Owen in a carrier on his chest and Megan then hit Owen's head on the car seat when changing his diaper. [2]

On December 20, 2008, James told police detectives that on December 5 he had picked up Owen from his crib and unintentionally dropped him four or four and one-half feet to the laminate floor. Owen landed on the back of his head. James said he had not told the Agency social worker about this incident because he did not want to be arrested. On December 22 James told a hospital social worker he had unintentionally dropped Owen "two weeks ago on the hard wood floor"[3] and Owen's injuries had resulted when James dropped him on another occasion. James also acknowledged he had shaken Owen a few times. Megan said James was "abrasive" with Owen, demonstrating with a "shaking motion."

On December 29, 2008, James admitted to the Agency social worker that he had injured Owen on the following occasions. In early October James grabbed Owen to keep him from falling off the bed. On October 17 and November 15 James was aggressive with Owen. On November 1 James shook Owen. On November 22 James was aggressive with Owen and shook him. On November 29 James ran down a mountain with Owen. On December 5 James dropped Owen from a height of four to five feet. On December 13 James was aggressive with Owen and came close to shaking him and Owen received a bump on the eye.

James was arrested on December 29, 2008, and charged with four counts of child cruelty and one count of inflicting injury on a child. James admitted to a police detective that he had dropped Owen 30 times, including five times when he was angry at Owen, and that he had shaken him twice. James said he had difficulty managing his anger and took full responsibility for Owen's injuries. James said he knew shaking Owen was wrong and that shaking and dropping could hurt him.

In January 2009 the criminal court ordered that James have no contact with Owen. In February a developmental evaluation revealed Owen had gross motor delays. In March a blood clot was surgically removed from Owen's right eye. The surgeon reported the clot likely resulted from the brain hemorrhage and intentional injury and it was unlikely Owen would be able to read with that eye.

Child abuse expert and physician Premi Suresh examined Owen, reviewed his medical records and interviewed James and Megan. James and Megan did not report any history of trauma and Dr. Suresh concluded Owen's condition was consistent with inflicted injury. Dr. Suresh believed shaking and an impact to the head could explain the hemorrhages in Owen's eyes and head. Shaking or a fall from a significant height could cause retinal hemorrhaging. If Megan hit Owen's head on the car seat with enough force, it could have caused a skull fracture. Injuries such as Owen's could result from being thrown and typically occurred after severe accidents, inflicted trauma or physical abuse. Such injuries could be caused by forceful or violent shaking, except the skull fracture, which required an impact to the skull, and the finger fracture, which required torquing or direct trauma to the finger. Owen's skull fracture, intracranial bleeding and pressure could have all been caused by one incident.

Dr. Suresh testified cranial and retinal hemorrhages would not result if James had jogged downhill with Owen. If an infant was placed on all fours, fell and hit the side of his face, a skull fracture would not typically result. Owen could not have almost rolled off a bed because two-week-old infants cannot roll. A linear fall of three to five feet could cause a skull fracture, a small intracranial hemorrhage directly under the fracture, and minimal retinal hemorrhages, but not the large fluid collections, extremely elevated intracranial pressure, extensive vitreous and retinal hemorrhages or subdural hemorrhage Owen sustained. A subdural hemorrhage such as Owen's was not usually seen after a linear fall or an accidental fall, but typically occurred after a motor vehicle accident or a fall from a significant height, such as a two-story window.

At trial James argued Owen's injuries were caused by accidental trauma when he jogged down the mountain with Owen, shook him twice when frustrated, set him on the wood floor and dropped him twice from a distance of four feet. James also suggested the injuries were caused by a preexisting condition, hydrocephalus.[4] Neither James nor Megan had told Dr. Suresh that Owen had hydrocephalus, although they spoke in depth about his medical history. Dr. Suresh testified the dramatic increase in Owen's head circumference over the course of a month was not consistent with hydrocephalus, his medical records contained no report of that condition and hydrocephalus would not explain his fractured skull and retinal hemorrhaging.

C. THE DISPOSITIONAL HEARING

James testified that through the military, he had participated in and learned from services relating to stress and anger management and parenting. He had attended one therapy session and was willing to do anything the Agency asked. James's parenting instructor testified James had "actively and enthusiastically" completed 11 two-hour sessions of the 12-session course. The paternal grandmother testified that in October 2008 Owen smiled at James "all the time" and did not seem afraid and James acted appropriately; in January 2009 James was extremely concerned about Owen's injuries. The social worker testified regarding the Agency's investigation and recommendation that James be denied reunification services.

The court found it would be in Owen's best interests to be placed with Megan and noted it could not find by clear and convincing evidence that returning Owen to her would present a substantial danger ( 361, subd. (c)(1)). It removed Owen from James's custody (ibid.), placed Owen with Megan on condition that James have no contact with Owen and ordered family maintenance services for Megan. Citing section 361.5, subdivision (b)(5) and (b)(6), the court denied James's request for services.

II. DISCUSSION

A. THE JURISDICTIONAL FINDING

Section 300, subdivision (e) allows a dependency for a child younger than five years old when "[t]he child . . . has suffered severe physical abuse by a parent . . . ." "[S]evere physical abuse" exists where "any single act of abuse . . . causes physical trauma of sufficient severity that, if left untreated, would cause permanent physical disfigurement, permanent physical disability, or death . . . or more than one act of physical abuse, each of which causes bleeding, deep bruising, significant external or internal swelling, bone fracture, or unconsciousness . . . ." (Ibid.)

In the juvenile court, the Agency had the burden of proving the allegations of the amended petition by a preponderance of the evidence. (In re Matthew S. (1996) 41 Cal.App.4th 1311, 1318; 355, subd. (a).) On appeal, James has the burden of showing the jurisdictional finding is not supported by substantial evidence. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1135, disapproved on another ground by Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.)

The court found the allegations of the amended petition true, not just by a preponderance of the evidence, but by clear and convincing evidence. The court cited the following circumstances. Owen suffered life threatening physical injuries. James took full responsibility for the injuries. He acknowledged he was aggressive with Owen; shook him twice, knowing it was wrong; dropped him 30 times, including five times when he was angry, knowing it could hurt Owen; and ran down the mountain with him. Dr. Suresh gave her expert opinion that Owen's injuries were caused by abuse. James's claim he caught Owen before he hit the floor, causing bruising, was not credible in light of Dr. Suresh's testimony that such a young infant would be unable to roll. Aside from Megan's statement she hit Owen's head on a car seat, she did not personally inflict any injuries.

"We do not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts. [Citation.] The judgment will be upheld if it is supported by substantial evidence, even though substantial evidence to the contrary also exists and the trial court might have reached a different result had it believed other evidence." (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) "Our circumscribed role on appeal and limited vantage point require that we draw all inferences and resolve any evidentiary conflicts in favor of the juvenile court's order." (In re Y.R. (2007) 152 Cal.App.4th 99, 112, disapproved on another ground by In re S.B. (2009) 46 Cal.4th 529.) Viewed under this standard, there is ample evidence to support the conclusion that James inflicted severe physical abuse on Owen.[5]

B. THE DENIAL OF SERVICES

James contends reunification services would likely prevent further abuse of Owen, denial of services would be detrimental to him and services would benefit him ( 361.5, subds. (b)(5), (b)(6), (c)).[6] Owen contends it was in his best interests for James to receive family maintenance services ( 362, subd. (b), 364, subds. (b), (c)); reunification services ( 361.5) were inapplicable because Owen was not removed from both parents' custody. The Agency contends the court correctly denied reunification services under section 361.5, subdivision (b)(5) and (b)(6).[7] As we shall explain, section 361.5 does not apply here.[8]

Generally, when a child is removed from the parents' custody, the juvenile court orders reunification services for the parents, unless specified exceptions apply. ( 361.5, subds. (a)-(c), 16501, subd. (h), 16507, subd. (b).) When, however, "the court orders that a parent . . .  shall retain custody of the child subject to the supervision of the social worker, the parents . . . shall be required to participate in child welfare services or services provided by an appropriate agency designated by the court." ( 362, subd. (b); see also  364, subds. (b), (c).) Such services are family maintenance services. ( 16501, subd. (g), 16506.)

Where a child is removed from the custody of one parent at the dispositional hearing and the other parent retains custody, the court has discretion to provide services to the former parent if doing so serves the child's best interests. (See In re N.S., supra, 97 Cal.App.4th at p. 171-172; see In re Gabriel L. (2009) 172 Cal.App.4th 644, 652.) Because the child is in the custody of one parent, family reunification is unnecessary and the services for the other parent are family maintenance services. (See In re Gabriel L., supra, 172 Cal.App.4th at p. 649; In re A.C. (2008) 169 Cal.App.4th 636, 649.)[9]

Because Owen was not removed from Megan's custody, the court was required to determine whether James should receive family maintenance services. Instead, the court denied James reunification services, believing it was constrained by section 361.5 and unaware of its discretion to grant James family maintenance services. The Agency argues substantial evidence supports an implied finding that James should be denied services. We decline to infer such a finding. Given the court's statement it was "reluctantly" denying James reunification services, "we believe the better practice is to remand the matter to the trial court where that court has not considered the facts within the appropriate statutory provision." (In re V.F. (2007) 157 Cal.App.4th 962, 973; see also In re Albert T. (2006) 144 Cal.App.4th 207, 219.) The juvenile court, not this court, is the finder of fact. (In re V.F.,supra, at p. 973.)

We reverse the order denying James reunification services and remand so that the court may exercise its discretion to determine whether it is in Owen's best interests for James to receive family maintenance services.

C. THE AGENCY'S INVESTIGATORY OBLIGATION

James contends the Agency did not meet its obligation to "investigate the circumstances leading to [Owen's removal] and advise the court whether . . . reunification [was] likely to be successful . . . and whether failure to order reunification [was] likely to be detrimental to [Owen]." ( 361.5, subd. (c).) James concludes the order denying reunification services must be reversed and the case must be remanded for a proper investigation and a new hearing. In light of our reversal of the order denying James reunification services, we need not address this contention.

DISPOSITION

The judgment denying James reunification services is reversed. The case is remanded for a new dispositional hearing regarding family maintenance services for James; at the hearing the court shall determine Owen's best interests and exercise its discretion accordingly. In all other respects the judgment is affirmed.

HUFFMAN, J.

WE CONCUR:

McCONNELL, P. J.

McINTYRE, J.

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[1] All statutory references are to the Welfare and Institutions Code.

[2] One of the relatives reported Megan had told her that James had tripped while holding Owen and Owen had hit his head on a picture on the wall.

[3] James did not take Owen to the pediatrician after dropping Owen on the wood floor.

[4] James described Owen's condition as internal hydrocephalus, an accumulation of fluid in the ventricles of the brain, and distinguished it from external hydrocephalus, an accumulation of fluid in the brain's cavities. Dr. Suresh described hydrocephalus as an accumulation of fluid in the ventricles or cavities.

[5] For the first time in his reply brief, James argues his participation in a parenting course and therapy shows he would not abuse Owen in the future and concludes this undermines the jurisdictional finding. We need not discuss an argument first raised in a reply brief. (In re Tiffany Y. (1990) 223 Cal.App.3d 298, 301.)

[6] James joins in Owen's contentions.

[7] The Agency also contends Owen may not challenge the applicability of section 361.5 because he did not do so at trial. Although Owen's trial counsel did not argue that section 361.5 was inapplicable, she did request family maintenance services for James. There was no forfeiture.

[8] Owen's contends "[t]he court's order removing Owen from [James] was incompatible with its order not removing Owen from [Megan]" and this "set the stage for the court to mistakenly employ the bypass provisions of section 361.5, subdivision (b) to deny [James] reunification services." Whatever the reason underlying the court's erroneous reliance on section 361.5, subdivision (b), we need not discuss the placement and removal order in depth. The order placing Owen with Megan on condition that James have no contact with Owen was the functional equivalent of removing James from the family home or allowing Megan to retain physical custody of Owen with a plan to protect him. These are statutorily permitted options. ( 361, subd. (c)(1), 362, subd. (b), 364; In re N.S. (2002) 97 Cal.App.4th 167, 172, fn. 5.) Moreover, while the minute order shows the court gave custody of Owen to the Agency "for suitable placement pursuant to [s]ection 361.2, subdivision (e)," the reporter's transcript does not reflect such an order. Section 361.2 governs placement with a parent with whom the child did not reside at the time of the events underlying the dependency. That section does not apply here.

[9] While "[p]roviding family maintenance services for one parent and reunification services for the other can be appropriate in certain situations" (In re Calvin P. (2009) 178 Cal.App.4th 958, 963), this is not such a situation.