In re Madison S.
I. BACKGROUND
On September 23, 2014, the Alameda County Social Services Agency (Agency) filed a juvenile dependency petition pursuant to subdivisions (a), (b), (e), and (j) of
The parents reported that the minor was not left alone or around other caretakers and that they did not know how the injuries occurred. They did state that they noticed a bump on Andrew‘s head on September 18, along with a rash and some missing hair. In addition, they saw some bruising behind the minor‘s ear the next morning. The parents
Also on September 24, mother informed the Agency that she had separated from father and was living elsewhere.2 On September 26, 2014, mother further reported to the Agency that father had confessed to her that he physically abused Andrew, apparently by expressing feelings of remorse about ” ‘what happened’ ” to the minor. Specifically, on the previous day—September 25, 2014—mother had cooperated with the police in making and recording a telephone call to father in an attempt to get him to elaborate on the abuse incident (Pretext Phone Call). During the Pretext Phone Call, father told mother: “You have to decide whether or not you think you can forgive me. . . . [Y]ou have to decide whether or not I‘m an evil person at heart or whether or not people make mistakes and those mistakes are forgivable.” He elaborated: “I think I need to fully explain to you what happened and—and show you what I think happened and show you what I did and show you why I did what I did and . . . the pieces of the puzzle will all come together and everything will make sense and you‘ll say okay, now I see why that happened.” Indeed, father offered repeatedly to “demonstrate what happened,” even offering to show mother “the exact motion” that caused Andrew‘s injuries. When mother asked whether father was sleep deprived or stressed or whether she was not helping enough, father replied: “[M]aybe it was the stress, maybe it was his crying, maybe it was, um, mostly the sleep deprivation.” With respect to the earlier injuries to Andrew‘s ribs, in contrast, father stated: “[T]hat part I don‘t understand . . . . I don‘t understand how—how it was just more than once.” He confirmed: “[E]verything else was an
As a result of the Pretext Phone Call, father was arrested on September 26, 2014, for violation of
In its initial jurisdictional and dispositional report filed on October 8, the Agency recommended that both mother and father be offered reunification services with respect to Andrew. In contrast, it was recommended that Madison be placed with Jesse under a family maintenance plan. However, the matter was continued multiple times, and in an Addendum Report filed on December 3, 2014, the Agency changed its position with respect to Andrew, recommending that both parents be denied reunification services pursuant to subdivisions (b)(5) and (b)(6) of
Dr. Barnes—a Stanford-based pediatric radiologist and pediatric neuroradiologist—testified at mother‘s request that there could be a number of explanations for Andrew‘s injuries other than abuse, including birth trauma, vitamin D deficiency, or vascular or bone fragility disorders such as Ehlers Danlos syndrome (EDS).4 Based on the imaging, Dr. Barnes found birth injury to be the most likely explanation, along with some type of vascular or bone fragility disorder, but he could not rule out child abuse as a possible cause. He explained the different ages of bleeding found in Andrew‘s brain by hypothesizing that there could be rehemorrhage on top of an older injury. However, Dr. Barnes testified without reviewing the minor‘s medical records, other than certain select radiology reports, without viewing images of the infant‘s external injuries (in particular the bruising that could be used to help date the skull fracture), and without access to any follow-up testing, including the second skeletal survey of the minor. In addition, Dr. Barnes indicated that it is rare to make a determination of child abuse based on review of imaging alone. Rather, a finding of child abuse is a “more holistic determination” made by all of the relevant experts coming together, including those involved in the social aspects of a case.
Dr. Hyman—a pediatrician who has studied bone science and has testified for the defense in child abuse cases for the last 14 years—also testified, opining that Andrew was not a victim of child abuse.5 Rather, he stated that the minor could have unrelated
Finally, Dr. Albin—a pediatric intensive care physician and child abuse expert for Kaiser—consulted on Andrew‘s case at the request of his attending physician and testified that nothing other than nonaccidental trauma could be responsible for Andrew‘s collection of injuries. Preliminarily, it was Dr. Albin‘s opinion that Andrew‘s head trauma and the injury to his ribs arose from different incidents, based on the acute nature of the head trauma in contrast to the more advanced level of healing found in the ribs. There was also evidence of older brain bleeding, possibly dating to the same time as the rib fractures, that, in Dr. Albin‘s opinion, was consistent with the “same mechanism” that caused the newer head injuries. Further, she found evidence that Andrew‘s more recent trauma—an “acceleration-deceleration” injury that occurs when the brain slams into the skull—was unlikely to have been caused by a fall. Rather, in her opinion, “somebody hit [the minor] and resulted in the acceleration-deceleration injury which injured his brain and his bones and his skin.” Since no one had offered any plausible explanation as to how this may have occurred accidentally, Dr. Albin concluded the injury was nonaccidental, even if the person or persons who did it may not have meant to harm the baby.
In addition, Dr. Albin specifically addressed and rejected the idea that Andrew‘s fractures were the result of birth trauma. In this regard, she testified that the collarbone is the most frequently fractured bone during birth and that it would be extremely unlikely
Dr. Albin also ruled out underlying bone, metabolic, or genetic disorders. In particular, according to Dr. Albin, Andrew had a second skeletal survey that showed “normal bones, normal density of bones, normal alignment of bones, and resolution and healing of the fractures.” Moreover, the minor had metabolic screening, including review of his electrolytes, calcium levels, vitamin D levels, phosphorous levels, and alkaline phosphatase level that showed no evidence of ongoing bone disease. In addition, Dr. Albin‘s own physical exam showed none of the physical findings associated with the bone disease osteogenesis imperfecta. Further, although EDS involving lax joints is not a condition diagnosable in infants, Dr. Albin noted that Andrew had none of the “very recognizable physical findings” associated with many forms of EDS. Indeed, in her opinion, none of Andrew‘s injuries were associated with EDS, even if it were to manifest itself in the minor at a later age. Bleeding disorders were also ruled out through standard testing.
Based on all of these findings, Dr. Albin expressly rejected the “defense scenario” in this case—that Andrew had unusually fragile bones that fractured during the birth process and that mother rubbing cradle cap off his scalp subsequently caused renewed injury and bleeding. In particular, Dr. Albin pointed out that Andrew had been growing well over time with no further fractures; that any vitamin D deficiency at birth would not have resolved without medical intervention; that external rubbing of the head would be insufficient to cause internal bleeding or bruising; that Andrew‘s bruising in a protected area behind the ear was “very typical,” indeed “classic,” of bruises that are associated with impact injuries; and that the skull fracture was not a spreading or growing fracture because it had, in fact, healed on its own. Under all of these circumstances—and after
In addition to the expert testimony, the Pretext Phone Call was introduced into evidence at the hearing. Mother also testified, attributing Andrew‘s injuries to birth trauma or a genetic condition. Father invoked his Fifth Amendment right against self-incrimination and so did not offer any evidence. The social worker then testified, explaining her recommendation that neither parent receive reunification services. Specifically, she stated that her recommendation changed from offering reunification to reunification bypass because the “level of cooperation” of the parents changed such that services, in her opinion, would not be likely to prevent reabuse. The social worker believed that mother‘s decision to reconcile with father undermined her ability to protect Andrew without a safety plan, which mother showed no interest in developing.
At the conclusion of the hearing, the juvenile court found the allegations in the amended petition true, stating that Andrew was a minor described by subdivisions (a), (b), and (e) of
II. DISCUSSION
A. Jurisdictional Finding Under Subdivision (e) of Section 300
Father first challenges the juvenile court‘s finding in Andrew‘s case that ” ‘there is clear and convincing evidence that the child comes within the jurisdiction of the court under subdivision (e) of section 300 because of the conduct of the father.’ ”6 A child is described by subdivision (e) Section 300 for purposes of juvenile court jurisdiction if “[t]he child is under the age of five years and has suffered severe physical abuse by a parent, or by any person known by the parent, if the parent knew or reasonably should have known that the person was physically abusing the child.”7 Under subdivision (e), so
On appeal, “[a] dependency court‘s jurisdictional findings are reviewed under the substantial evidence test. [Citation.] Under this test, we resolve all conflicts in the evidence, and indulge all reasonable inferences that may be derived from the evidence, in favor of the court‘s findings.” (In re Mia Z. (2016) 246 Cal.App.4th 883, 891.) “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 (Dakota H.).) Importantly, issues of credibility in this context are questions for the trier of fact. (In re Cole Y. (2015) 233 Cal.App.4th 1444, 1451-1452 (Cole Y.).) Substantial evidence may include inferences, so long as any such inferences are based on logic and reason and rest on the evidence. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393.)
In this case, in order to make its subdivision (e) finding, the juvenile court first had to determine whether Andrew‘s serious physical injuries were the result of abuse or some other circumstance. It then had to assign culpability, if possible. We find the juvenile court‘s analysis on both points instructive, and thus set it out at some length.
With respect to the conflicting testimony on the issue of abuse, the court initially found all three experts to be credible witnesses, noting that “all three have images, facts and figures on which to support their positions.” However, the court ultimately found Dr.
The juvenile court found Dr. Albin‘s testimony even more persuasive in light of father‘s statements in the Pretext Phone Call. Indeed, with respect to culpability for the abuse, the juvenile court declared: “In that phone call, in the Court‘s opinion, the father virtually admits that Andrew‘s injuries were caused by his actions. Throughout the phone call, the father makes statements such as, ‘If you let me demonstrate what happened, you‘ll see,’ and statements such as how the accident happened and, ‘Did you think I did it on purpose.’ Then he goes on to say, that‘s one of the arguments that was made in court today, that he needed to beg for the forgiveness of both the mother and Andrew, pray to God for forgiveness, and he needed to get on his knees to beg for forgiveness. [¶] If the father was not responsible for Andrew‘s injuries, one would expect that even in an unguarded moment or in an unguarded situation, a complete and
Father, however, while acknowledging this court‘s standard of review, argues at some length that the juvenile court‘s jurisdictional finding under subdivision (e)—specifically, the court‘s conclusion that he was the cause of Andrew‘s injuries—was not supported by substantial evidence. Instead, father posits, substantial evidence shows that both the perpetrator and the cause of Andrew‘s injuries are unascertainable. Father relies on a number of different arguments in support of his position, none of which we find persuasive.
For instance, father contends that the juvenile court improperly relied on the Pretext Phone Call in finding him culpable under subdivision (e) for causing Andrew‘s injuries because, throughout that call, father never admitted to any intentional act, but instead consistently referred to the incident in which Andrew was most recently injured as an “accident.” In addition, father stresses, the Pretext Phone Call makes clear that he was completely unaware of any prior injuries to Andrew. We believe, however, that the Pretext Phone Call—including father‘s repeated use of the term “accident“—is entirely consistent with a situation where father committed multiple intentional acts of abuse, but perhaps did not necessarily intend to harm the child, was not able or willing to accept full responsibility, and/or did not initially understand the severity of some or all of the
Father also highlights the evidence in the record that could support a finding that mother was actually the perpetrator of the abuse. For instance, it is undisputed that Andrew was in the sole care of his parents since his hospital discharge following his birth. Father, however, argues that mother was Andrew‘s primary caretaker; that she only left the baby alone with father on one occasion, when she went to Madison‘s back-to-school night; and that, although father took over watching Andrew for mother in the evenings while she napped, mother never heard the baby crying abnormally. Thus, according to father, his opportunity to inflict injury as compared to mother was extremely low. And, father notes, mother is the only parent mentioned in the petition as having questionable discipline or parenting practices, due to her spanking of Madison with a spoon and belt. In addition, father points out that mother declined mental health services both at Andrew‘s birth and at the time of his subsequent hospitalization, despite the fact that she apparently had a history of major depression. According to Dr. Albin, untreated
None of the circumstances father emphasizes, however, are necessarily inconsistent with the juvenile court‘s finding that father was the perpetrator of Andrew‘s injuries, especially if one considers the court‘s additional, unchallenged finding that mother knew or should have known that father was abusing the minor. Moreover, while father can certainly highlight evidence tending to paint mother as the potential bad actor in this case, he declines to mention the other evidence, even beyond the Pretext Phone Call, which could be viewed as further implicating him.11 Regardless, in the end, it was
We are similarly unimpressed by father‘s attempt to implicate Madison in Andrew‘s abuse. It is true that the initial petition in this matter contained the following allegation: “[M]other stated that approximately two weeks ago she left Andrew on her bed cushioned with pillows and when she returned, Madison was holding Andrew, cradled in her arms. Mother stated that Madison said ‘I made a mistake’ and that she should not have picked up the baby.” However, Dr. Albin testified that Andrew‘s injuries would not have been caused by a fall, nor would a child have had sufficient power to cause them. Thus, it was proper for the juvenile court to discount this red herring in its analysis. And, indeed, the court struck the allegation at the end of the hearing in response to the Agency‘s motion to conform to proof.
Father next asserts that the juvenile court‘s subdivision (e) finding is somehow fatally flawed because the “devastating and irreversible injury(s) theory” issued by Andrew‘s treating physician, Dr. Yered, has been “virtually debunked” by Andrew‘s subsequent positive health reports. The petition in this matter contains the following statement from Dr. Yered: “[T]he MRI conducted on 09/22/2014, shows that the minor, Andrew [C.], has incurred devastating and irreversible injuries to his brain as there are areas of his brain that are ‘dark,’ there was a lack of oxygen, and a lack of blood supply as well. The injuries were caused by ‘a lot of force.’ ” It is true that, at a follow up appointment on January 20, 2015, Andrew‘s pediatric neurologist stated in regards to the
Again, we are not convinced. First, the minor‘s condition was, unfortunately, not as positive as father suggests. Specifically, while acknowledging that Andrew‘s pediatric neurologist was “optimistic” about his outcome, Dr. Albin testified that Andrew had been having some abnormal movements in his legs that could indicate long-term neurologic problems. More importantly, Dr. Albin also testified that Andrew‘s current condition did not alter her original findings in his case in any way, because the injury to the infant‘s brain had been so diffuse. Specifically, she opined: “If he had had a stroke or a ruptured blood vessel or if he had a brain tumor or some metabolic disorder, I would expect him to have very focal neurologic abnormalities. A metabolic disease that causes brain hemorrhages, basically over time, children tend to get worse. They tend to have other neurologic symptoms. In my opinion, having a normal neurologic examination at four months of age are good prognostic findings. They are hopeful. They are consistent with the level of injury that we see which we hope is reversible, but, again, I cannot guarantee that as the neurologic exam becomes more sophisticated, as we ask whether or not he can do arithmetic or multiplication or have good memory or to solve problems, I can‘t guarantee that those cognitive functions are not affected by this diffuse brain injury.” We join in the fervent hope that Andrew will continue to progress positively as he grows older. The dispute among the experts in this case, however, was not over whether Andrew was seriously injured, but instead focused on the cause of those serious injuries. If anything, Dr. Albin‘s testimony appears consistent with her opinion that Andrew was
In a final attempt to avoid the juvenile court‘s culpability finding under subdivision (e), father argues that the juvenile court erred in this case by not following the reasoning of L.Z. v. Superior Court (2010) 188 Cal.App.4th 1285 (L.Z.) and In re E.H. (2003) 108 Cal.App.4th 659 (E.H.), which allow for jurisdiction pursuant to subdivision (e) and the possibility of reunification services when the perpetrator of the abuse cannot be ascertained. In L.Z., the appellate court acknowledged that
While we do not disagree with the holdings in L.Z. and E.H., we find them completely irrelevant to the case at hand. In short, father overlooks the crucial distinction that, in the instant matter, the juvenile court did specifically identify father as the perpetrator of the minor‘s abuse and, as we have found, substantial evidence supports that determination. Thus, as much as father would like to live in the world of L.Z. and E.H. in order to avoid some of the harsher consequences resulting from the juvenile court‘s subdivision (e) finding, he plainly resides elsewhere.
In sum, we do not believe that any of father‘s myriad of allegations are sufficient to fatally undercut the substantial evidence supporting the juvenile court‘s true finding with respect to the subdivision (e) allegation in this case, including the court‘s conclusion that father was the perpetrator of the abuse. Rather, father has, in essence, repeatedly asked us to reweigh the evidence, discard the juvenile court‘s thoughtful credibility determinations, and blatantly disregard our appellate standard of review. This we decline to do.
Father also challenges the juvenile court‘s dispositional order denying him reunification services pursuant to subdivisions (b)(5) and (b)(6) of
As discussed at length above, the juvenile court in this case made the express finding, by clear and convincing evidence, that Andrew was brought within the jurisdiction of the juvenile court under subdivision (e) of
With respect to father‘s last argument—that the court should have granted reunification services to father because mother was granted services and they were an intact couple—it is clear that father has misapprehended the juvenile court‘s discretion to grant or deny reunification services under the circumstances of this case. Indeed, father seems to suggest that, in ordering reunification services for mother, the court somehow found that those services would be in the minor‘s best interest, or at the very least, not detrimental to the minor. Thus, he argues, supporting mother‘s efforts through services to father was also warranted. To the contrary, the juvenile court granted mother services in this case because it was statutorily obligated to do so once it concluded that it had no grounds for bypass pursuant to
The social worker further indicated that she switched her recommendation from reunification to no reunification because the parents’ level of cooperation changed such that she did not think services would be likely to prevent reabuse. In particular, mother had initially identified father as the perpetrator and had taken steps that indicated she might be able to keep her children safe. But, after mother reconciled with father, she did not discuss with the social worker what her safety plan would be. Moreover, she denied Andrew‘s injuries were nonaccidental, which reflected on mother‘s “ability to protect the child from anyone.” The social worker also indicated that father‘s statements in the Pretext Phone Call caused her concern with respect to Andrew‘s possible reabuse. She additionally noted as a risk factor father‘s lack of any support system, as he had only limited contact with his family. Finally, she testified that, even if the parents were to change their position and acknowledge some involvement in causing Andrew‘s injuries, there would be “more work needed to be done” and she found it unlikely that this
This leaves father‘s argument, based on Blanca P., that it was improper to condition his reunification services on either he or mother accepting responsibility for Andrew‘s injuries. In Blanca P., the appellate court was faced with a situation where significant evidence indicated that the father had been falsely accused of sexual molestation; the juvenile court had failed to consider seriously the allegation in finding jurisdiction on a subsequent petition; and the father‘s continued denials negatively impacted his ability to reunify. (Id. at pp. 1741-1747.) Under such circumstances, the Blanca P. court stressed the “critical importance” of jurisdictional hearings under the juvenile court law: “The hearing on a contested petition alleging child sexual abuse is thus, to repeat, extraordinarily important. It is not the sort of thing to be rushed, or taken routinely. Allegations of child molestation are serious; they merit more than a rubber stamp.” (Id. at pp. 1752, 1754.) Since the sexual abuse allegation had not been properly considered by the juvenile court, the Blanca P. court remanded the matter so that the issue could be ”fully explored and resolved.” (Id. at p. 1759.) Here, in obvious contrast, the issue of father‘s culpability was extensively and thoughtfully explored by the juvenile court, and the court expressly found that Andrew was the victim of nonaccidental injury at the hands of father. It is possible that services for father might have been appropriate without an unequivocal admission of guilt on his part, if, for example, mother was willing to take affirmative steps to keep the child safe and/or both parents agreed that Andrew was a victim of abuse and should be treated as such. Here, however, neither parent was even willing to acknowledge that nonaccidental injury occurred, conduct amounting to “a willful denial of the injuries themselves.” (See A.M., supra, 217 Cal.App.4th at p. 1078.) On these facts, it is difficult to imagine how any services would have been likely to prevent reabuse. (See ibid.) Moreover, father certainly did not provide any evidence on this point, and it was his burden to do so. (See In re William B. (2008) 163 Cal.App.4th 1220, 1227 [once conditions for bypass are established it is assumed that offering reunification services would be an unwise use of governmental resources; burden is on parent to change that assumption].) We thus find no cause to disturb the juvenile court‘s dispositional order in this case.
C. Mother‘s Jurisdictional Challenge: Justiciability
In addition to joining in certain of father‘s appellate arguments as stated above, mother has separately appealed challenging another of the juvenile court‘s jurisdictional determinations, its finding under subdivision (b) of
Although mother asks us to reverse the juvenile court‘s “true finding” with respect to this spanking allegation, she does not assert on appeal that the allegation is factually incorrect or somehow unsupported by substantial evidence.14 Instead, mother devotes her entire appellate argument to the premise that the b-4 allegation is insufficient, standing
Pursuant to the doctrine of justiciability, ” ’ “[a] judicial tribunal ordinarily may consider and determine only an existing controversy, and not a moot question or abstract proposition.” ’ ” (In re I.A. (2011) 201 Cal.App.4th 1484, 1490 (I.A.).) Application of the doctrine of justiciability in the dependency context leads to the conclusion that “[w]hen a dependency petition alleges multiple grounds for its assertion that a minor comes within the dependency court‘s jurisdiction, a reviewing court can affirm the juvenile court‘s finding of jurisdiction over the minor if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence. In such a case, the reviewing court need not consider whether any or all of the other alleged statutory grounds for jurisdiction are supported by the evidence.” (Alexis E., supra, 171 Cal.App.4th at p. 451.) This is true because no effective relief could be granted in such a situation, as jurisdiction would be established regardless of the appellate court‘s conclusions with respect to any such additional jurisdictional grounds. (See I.A., supra, 201 Cal.App.4th at p. 1490 [“[a]n important requirement for justiciability is the availability of ‘effective’ relief—that is, the prospect of a remedy that can have a practical, tangible impact on the parties’ conduct or legal status“].) Here, as stated above, mother does not challenge the juvenile court‘s finding that Madison is a minor described by subdivision (j) of
Rather, we find mother‘s failure to argue on appeal that the b-4 allegation is untrue, or at least unsupported by the evidence, fatal to her position. Under such circumstances, it is purely an academic question whether such an allegation, standing alone, is sufficient to support dependency jurisdiction under subdivision (b). Indeed, in this case, the determination mother requests is even more divorced from reality because the allegation she challenges is not the only allegation supporting the juvenile court‘s subdivision (b) finding, and she finds no fault with the other two. Moreover, the substance of the spanking allegation would almost certainly be available in any future dependency or family court proceeding, regardless of any determination on our part as to whether it formed an independent basis for juvenile court jurisdiction. In short, on these
III. DISPOSITION
The juvenile courts jurisdictional findings and dispositional orders with respect to both minors are affirmed.
REARDON, J.
We concur:
RUVOLO, P. J.
RIVERA, J.
CERTIFIED FOR PUBLICATION
COURT OF APPEAL FIRST APPELLATE DISTRICT DIVISION 4
In re Madison S. et al., Persons Coming Under the Juvenile Court Law.
ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. MARINA F. et al., Defendants and Appellants.
A144936 & A145352 Alameda County No. SJ14023569, Alameda County No. SJ14023570
BY THE COURT:
The two requests for publication-from the Alameda County Social Services Agency and from the California State Association of Counties-are each granted.
The written opinion which was filed on August 15, 2017, has now been certified for publication pursuant to rule 8.1105(b) of the California Rules of Court, and it is ordered published in the official reports.
(Ruvolo, P.J., Reardon, J. and Rivera, J. participated in the decision.)
Date: September 13, 2017 Ruvolo, P.J.
Trial Judge: Hon. Willie Lott, Jr.
Counsel for Appellants: The Law Offices of Johnson & Johnson Carin L. Johnson (Mother) Christopher Booth (Father)
Counsel for Respondent: Office of the Alameda County Counsel Deputy County Counsel Donna R. Ziegler Samantha N. Stonework-Hand