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 section 300, alleging that one-month-old Andrew and his
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 emailed a photograph of the minor's head to Andrew's pediatrician later that day, but did not receive a reply. Mother finally brought Andrew to the hospital on September 20. The minor was taken into protective custody while hospitalized on September 21, 2014, and Madison was taken into protective custody on September 23. Both children were formally detained at the detention hearing on September 24, 2014. Ultimately, Andrew was placed with his maternal great-grandparents and Madison was placed with her presumed father, Jesse S. (Jesse).
Also on September 24, mother informed the Agency that she had separated from father and was living elsewhere.
As a result of the Pretext Phone Call, father was arrested on September 26, 2014, for violation of Penal Code section 273d, willful injury to a child. An amended petition was filed on October 7, 2014, adding, among other things, an allegation detailing this arrest. Nevertheless, both parents continued to deny causing Andrew's injuries.
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 section 361.5.
As stated above, the contested jurisdictional and dispositional hearing finally began
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.
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
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 that Andrew's ribs would be fractured without having a collarbone fracture at the same time. Dr. Albin also reviewed the minor's birth records, which indicated a vaginal delivery with no extraordinary complications, the obstetrician's note that the baby was easily delivered without trauma, and Andrew's low birth weight (which made skeletal injury less likely). In sum, Dr. Albin opined that skeletal injuries in vaginal births are rare and that Andrew had none of the generally accepted risk factors for such injuries.
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
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
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 section 300 and that Madison was described by subdivisions (b) and (j). In particular, the juvenile court found Dr. Albin's testimony to be the most credible of the medical experts. In addition, the court found that father "virtually" admitted that Andrew's injuries were caused by his actions during the Pretext Phone Call, and that the father's statements during that conversation demonstrated a "consciousness of guilt." It therefore concluded by clear and convincing evidence that Andrew had suffered severe physical abuse by father for purposes of subdivision (e) of section 300, and denied father reunification services. In contrast, the court was only able to make a finding under subdivision (e) with respect to mother's conduct-that she knew or should have known of the abuse-by a preponderance of the evidence. It therefore ordered that reunification services be provided to mother in Andrew's case. As for Madison, she was placed in the home of Jesse, her previously noncustodial parent, with a plan to dismiss dependency once an appropriate custody and visitation order could be crafted. At the continued hearing on May 27, 2015, Madison's dependency was dismissed, with joint legal custody of the minor awarded to both parents and physical custody granted to Jesse.
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.' "
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)
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. Albin's testimony to be "the most persuasive and the most credible." It stated the reasoning underlying this credibility determination in detail: "Unlike Drs. Hyman and Barnes, Dr. Albin had the benefit of hands-on examinations, face-to-face examinations of Andrew, she had the
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 unequivocal denial would have been made by the father. The Court believes that the father's comments and statements during the course of that pretext phone call demonstrates a consciousness of guilt on the part of the father ... [¶] ... [¶] As far as the Court is concerned, it's the Court's opinion that there's clear and convincing evidence as to the father and the allegations of [300] (e) in that the Court finds by clear and convincing evidence that the child was under the age of five and has suffered severe physical abuse by the parent, that parent being the father."
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.
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 depression is a
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.
Father next asserts that the juvenile court's subdivision (e) finding is somehow fatally flawed because the "devastating
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
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)
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.
B. Dispositional Bypass Order
Father also challenges the juvenile court's dispositional order denying him reunification services pursuant to subdivisions (b)(5) and (b)(6) of section 361.5. As only one valid ground is necessary to support a juvenile court's decision to bypass a parent for reunification services, we will focus here on the court's bypass determination
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 section 300 due to the conduct of father, a finding which we uphold on appeal. Thus, on its face, subdivision (b)(5) applies and supports the court's resulting denial of reunification services. Father, however, makes a number of diffuse and inter-related arguments that, despite the subdivision (e) finding, he still should have been offered a reunification plan. For example, father makes much of the Agency's change of recommendation in this case-from offering reunification services to both parents to bypassing both parents for reunification. Specifically, he argues that the Agency impermissibly based its change in recommendation on the fact that neither parent would admit to causing Andrew's injuries, a so-called " 'confession dilemma.' " (See Blanca P. v. Superior Court (1996)
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 section 361.5, subdivision (b). (See § 361.5, subd. (a) ["[e]xcept as provided in subdivision (b), ... whenever a child is removed from a parent's ... custody, the juvenile court shall order the social worker to provide child welfare services to the child and the child's mother," italics added].) It was not a discretionary act. Similarly, once the juvenile court found subdivision (b)(5) applicable with respect to father, it was prohibited from ordering reunification services
Father, however, also argues that the social worker in this case failed in her statutory mandate to advise the court whether reunification services should properly have been ordered. Specifically, subdivision (c)(3) of section 361.5 provides that, where circumstances exist justifying (b)(5) bypass, "[t]he social worker shall investigate the circumstances leading to the removal of the child and advise the court whether there are circumstances that indicate that reunification is likely to be successful or unsuccessful and whether failure to order reunification is likely to be detrimental to the child." (§ 361.5, subd. (c)(3).) Here, the social worker did advise the court that she did not believe services would be likely to protect Andrew. Specifically, she stated that she was recommending that reunification services not be provided "because the nature of the injuries that this very young child sustained, that to date, I haven't gotten a reasonable explanation, any explanation from the caretakers, the sole caretakers of this young child. So reunification without some kind of indication of the cause, reason, how it's going to be prevented in the future, I don't know. [¶] So going to parenting classes, being involved in counseling, visiting, does not give me a lot of confidence about the future safety of Andrew if he's reunified with both of the parents."
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
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
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
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)
Anticipating this result, mother asserts that we should nevertheless address the propriety of the spanking allegation. It is true that a reviewing court does have the discretion to consider the adequacy of additional jurisdictional grounds if it so desires. ( I. A. , supra ,
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
III. DISPOSITION
The juvenile courts jurisdictional findings and dispositional orders with respect to both minors are affirmed.
We concur:
RUVOLO, P.J.
RIVERA, J.
Notes
All statutory references are to the Welfare and Institutions Code unless otherwise specified.
Mother and father are not married. Father, however, has been declared the presumed father of Andrew, and the two were cohabiting at the time of the incident.
According to subdivision (b)(5), bypass of reunification is permitted where the minor was brought within the jurisdiction of the juvenile court under subdivision (e) of section 300 due to the conduct of the parent. (§ 361.5, subd. (b)(5).) Subdivision (b)(6) provides for reunification bypass if the child has been adjudicated a juvenile court dependent due to the infliction of severe physical harm and "the court makes a factual finding that it would not benefit the child to pursue reunification services with the offending parent." (§ 361.5, subd. (b)(6).)
Mother testified that she had recently been clinically diagnosed with EDS. However, she had not provided any documentation supporting her assertion and apparently had not had a confirmatory DNA test.
Although a board-certified pediatrician, Dr. Hyman is not board-certified in the specialty of child abuse because he disagrees with the required testing on things that are diagnostic of child abuse, especially in the area of bones. Dr. Hyman acknowledged that the established child abuse community "[p]robably" does not currently accept his theories. Nevertheless, over the objection of the Agency and minors' counsel, the court qualified Dr. Hyman as an expert in pediatrics, pediatric bone injury, and child abuse pediatrics.
Mother has joined in father's challenge to subdivision (e) jurisdiction based on father's conduct and the resulting denial of reunification services to father, with the caveat that her joinder does not extend to "any insinuation or suggestion set forth by father that mother might somehow have caused Andrew's injuries." The Agency, in contrast, argues that father's claims are not justiciable because he did not challenge all of the juvenile courts jurisdictional findings, in particular the finding under subdivision (a) based on the same circumstances. We discuss justiciability at length below in connection with mother's independent jurisdictional challenge. With respect to father's claim of error, while the better course would clearly have been to appeal from all of the jurisdictional findings, we will nevertheless reach the merits, as the juvenile court's identification of father as the perpetrator of the abuse is central to this case and, not only serves as the basis for dispositional orders that are also challenged on appeal, but also could clearly impact father in current or future dependency proceedings. (See In re D.M. (2015)
Pursuant to subdivision (e), severe physical abuse is defined as including, among other things, "any single act of abuse which 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." (§ 300, subd. (e).) Assuming they were not birth-related, no party here contests the fact that Andrew's injuries meet the definition of "severe physical abuse" for purposes of subdivision (e).
The juvenile court also found by a preponderance of the evidence that mother knew or should have known that Andrew was being abused by father for purposes of subdivision (e) jurisdiction, a finding that no party has challenged on appeal.
That father would even say this much is somewhat remarkable, as he was clearly worried he was being recorded and that mother was cooperating with the police. When mother went to the house before the Pretext Phone Call, father made her take off all of her clothes to prove that she was not wearing a wire. And he refused to discuss any specifics over the phone, stating that any further conversation needed to be in a controlled situation. It is reasonable to infer that father would not have been so concerned about being recorded if he had no culpability for Andrew's injuries.
Presumably to mitigate any fault ascribed to him, given his statements in the Pretext Phone Call, father hypothesizes that Andrew's last injury-whether accidental or not-might have been made more severe by the fact that multiple injuries (arguably caused by mother) preceded it.
For instance, both the maternal great-grandmother and father's ex-wife independently reported that father called Madison the " 'devil-child.' " Father's ex-wife additionally indicated that father had not seen his own eight-year-old daughter for eight months, although she did not stop him from doing so. According to the ex-wife, she divorced father because he was having sex with prostitutes. When she confronted father about his relationship with mother-because he was 41 and mother was 24-father reportedly told her that he was only with mother so that he wouldn't need to pay prostitutes for sex. He did not introduce mother to his family until she was nine months pregnant. Father also admitted to being under stress because he was changing jobs and had to care for Andrew while preparing for his new job. After the incident, he actively tried to discourage mother from taking Andrew to the hospital, did not accompany mother when she finally went, and did not visit Andrew after he was admitted. And, when mother mentioned during the Pretest Phone Call that Andrew had stopped breathing, father did not act surprised by this information.
Services can also be ordered in these circumstances if "failure to try reunification will be detrimental to the child because the child is closely and positively attached to that parent." (§ 361.5, subd. (c)(3).) No party has argued that there is any evidence of a close and positive attachment between father and Andrew, who was removed from father when he was not even one month old.
The b-4 allegation states in full as follows: "On or about September 23, 2014, a forensic interview was conducted with the minor, Madison [S.], who stated that her mother told her to 'shut up' and told the minor Andrew [C.] to 'shut up'; Madison also stated that the mother has disciplined her with a spoon and a belt."
Indeed, it would be difficult for mother to do so, as the juvenile court impliedly found Madison credible after viewing her taped interview. (In re Alexis E. (2009)
While we have chosen to analyze this issue in terms of justiciability, we note that both mother and the Agency refer to justiciability and mootness with regards to this question, and precedent with respect to mootness in the dependency context is both instructive and supportive of our result. In particular, "the critical factor in considering whether a dependency appeal is moot is whether the appellate court can provide any effective relief if it finds reversible error." (In re N.S. (2016)