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N.M. v. Superior Court of Fresno Cnty.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Dec 14, 2012
F065555 (Cal. Ct. App. Dec. 14, 2012)

Opinion

F065555

12-14-2012

N.M., Petitioner, v. THE SUPERIOR COURT OF FRESNO COUNTY, Respondent; FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Real Party in Interest.

Kenneth K. Taniguchi, Public Defender, and Cheryl Kay Turner, Deputy Public Defender, for Petitioner. No appearance for Respondent. Kevin Briggs, County Counsel, and William G. Smith, Deputy County Counsel, for Real Party in Interest.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 12CEJ300093)


OPINION


THE COURT

Before Levy, Acting P.J., Gomes, J., and Kane, J.

ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Mary Dolas, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)

Kenneth K. Taniguchi, Public Defender, and Cheryl Kay Turner, Deputy Public Defender, for Petitioner.

No appearance for Respondent.

Kevin Briggs, County Counsel, and William G. Smith, Deputy County Counsel, for Real Party in Interest.

N.M. is the mother of eight-year-old A.M. and two-year-old Brian M. In August 2012, at a contested dispositional hearing, the juvenile court denied N.M. reunification services under Welfare and Institutions Code, section 361.5, subdivision (b)(6) and set a section 366.26 hearing to implement a permanent plan of adoption. N.M. contends the juvenile court erred. We concur and grant the petition.

Petitioner and her daughter, A.M., will be referred to by their first and last initials because of the uniqueness of their names. (Cal. Rules of Court, rule 8.401(a)(2).)

All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
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PROCEDURAL AND FACTUAL SUMMARY

N.M. is the mother of three children, A.M. and Brian, the subjects of this writ petition, and Jonathan Q., Jr. (Jonathan, Jr.). N.M. (hereafter "mother") shared custody of Jonathan, Jr. with his father Jonathan Q., Sr. (Jonathan, Sr.). When Jonathan, Sr. picked up Jonathan, Jr. for visitation, he also took Brian.

On April 6, 2012, Jonathan, Sr. contacted the Fresno Police Department to report his suspicion that mother physically abused then 20-month-old Brian. The police, in turn, contacted the Fresno County Department of Social Services (department). Jonathan, Sr. stated that he picked up Jonathan Jr., and Brian for a visit and noticed that Brian had multiple bruises. He said it was not the first time he observed bruises on the boys and he was concerned for their safety. He said when he asked mother about the bruises, she said that the children fell down. He said he was granted 53 percent custody of Jonathan, Jr. instead of full custody because he had a criminal record of domestic violence involving mother. Social worker Lorraine Ramirez examined Brian and noted that he had several bumps on the back of his head and multiple bruises and marks on both sides of his face. Police Officer Henry Garcia issued an emergency protective order and Ms. Ramirez took Brian into protective custody. Jonathan, Jr. was allowed to remain in his father's custody.

Social workers Ramirez and Staci Moffatt examined Brian and reported that he had many marks and bruises on both sides of his face. He had large purple and green bruises on the left side of his face and cuts on his face. He also had red bruises on his inner and outer ear, marks on his neck and bumps on his head. Brian had a rash on the front of his body and his right nipple was red and missing some skin. Brian had abrasions on his back and a bruise on the back of his right arm. Social workers Enrique Robledo and Alejandro Farias transported Brian to the emergency room.

Police Officers Henry Garcia and Sylvia Martinez went to mother's home to investigate. Mother said that Brian fell from a tricycle and injured himself. She said he fell often and bruised easily. She denied spanking any of her children and refused to answer any further questions. A.M., then seven years old, told Garcia that her mother only spanked her on the "butt" and she had not seen her mother spank the children anywhere else. She said that Brian injured himself from falling because he fell a lot. During the course of their investigation, the officers found methamphetamine, paraphernalia and packaging material. Mother admitted selling the drug out of her home to support her own methamphetamine habit. The officers arrested her on drug charges and A.M. was taken into protective custody. In his report, Garcia stated that he spoke to social worker Ramirez who told him that Brian sustained two skull fractures, brain hemorrhaging and liver problems.

Meanwhile, Brian was evaluated in the emergency room and admitted to the hospital early the next morning. The emergency room staff documented that mother "was caught by authorities in the act of hitting [Brian]." They also reported that he had multiple bruises in various stages on his face, scalp, back and ears consistent with nonaccidental trauma. In fact, the statement that mother was caught in the act of hitting Brian was false and the record does not reflect the source of that information. However, this false statement was adopted as a fact by multiple healthcare providers who evaluated Brian.

Brian remained hospitalized for three days. During his hospital stay, Brian underwent a bone survey, abdominal sonogram and a noncontrast head computerized tomography (CT) to evaluate Brian for the presence of fracture, abdominal hemorrhage/fluid and intracranial hemorrhage. The bone survey was negative and the abdominal sonogram was "unremarkable." The CT scan raised a "[q]uestion of subtle subdural hemorrhage ...." However, it was not definitive and the CT scan was otherwise negative. The images were sent to Dr. Igor Zaytsev via teleradiology who preliminarily reported, "Cannot completely rule out small traces of subdural blood .... MRI [magnetic resonance imaging] may be helpful for further characterization if clinically indicated." Brian also underwent an ophthalmological exam which was negative for retinal hemorrhaging.

Brian was also evaluated in the Child Advocacy Service and a summary of his hospital treatment and diagnostic results was documented by a nurse practitioner who reported, "These bruises are highly concerning for non accidental trauma and consistent with history of mother hitting child." Dr. Phillip Hayden, Child Advocacy Medical Director, examined Brian and found residual bruising on his face and torso with scattered abrasions, "consistent with the description of [the] injuries." He reported, "These injuries were apparently witnessed when the child was being disciplined by the mother, and are highly suspicious for nonaccidental trauma." He stated they were awaiting the results of an MRI to determine whether there was hemorrhaging present. An MRI was performed on April 10 and the results were reported the following day as "Normal MR brain."

The department filed an original dependency petition on behalf of A.M. and Brian, alleging under section 300, subdivision (a) (serious physical harm) that Brian suffered serious physical harm inflicted nonaccidentally by mother while in her care. Specifically, the petition alleged that "Brian sustained injuries at various stages of healing, which included but were not limited to possible bleeding in the brain, multiple bruises on both sides of his face and right arm, and several bumps on the back of his head" for which mother had no reasonable explanation. A second count under subdivision (a) alleged that A.M. was at substantial risk of suffering serious physical harm by her mother because of Brian's injuries which included "increased liver function caused by blunt force trauma." The petition further alleged under section 300, subdivision (b) (failure to protect) that mother's substance abuse negatively affected her ability to provide regular care and supervision for A.M. and Brian and placed them at risk of suffering serious physical harm or illness if left in her care. Finally, the petition alleged under section 300, subdivision (e) (severe physical abuse) that mother caused Brian to suffer severe physical abuse as evidenced by "injuries at various stages of healing, ... possible bleeding in the brain, multiple bruises on both sides of his face and right arm and several bumps on the back of his head." The petition also listed the whereabouts of A.M. and Brian's fathers as unknown.

The juvenile court ordered A.M. and Brian detained pursuant to the original petition and ordered the department to offer mother parenting classes, substance abuse, mental health and domestic violence evaluations and random drug testing. The juvenile court set the next hearing in May 2012 for jurisdiction and disposition. The department placed the children together in foster care.

On April 19, 2012, Officer Nora Fuentes, was assigned Brian's case for follow-up investigation. In reviewing the case, she found that mother did not have any criminal history or history of child neglect. She also reviewed Officer Garcia's report, noting his statement that Brian had two skull fractures, liver damage and hemorrhaging. She requested and reviewed Brian's medical report and noted that it was negative for skull fractures or damage to internal organs. She contacted social worker Kristen Arnold who stated that the hospital provided the report of another child and had given the wrong information for Brian. Fuentes was assured that Brian did not have a skull fracture and that bruising was his only injury.

Fuentes interviewed A.M. at school. A.M. told Fuentes that her mother had a boyfriend named Pablo who hit her brothers with a belt, a shoe and a white hanger and that her mother would tell him to stop. She said that Pablo had two guns and she had seen them. She said he shot at a Black man and the shot broke a window, but she could not provide any further detail.

In May 2012, Fuentes interviewed mother at the police station. Mother said that Jonathan, Sr. picked up Jonathan, Jr. and Brian around 3:30 on the afternoon of April 6, 2012. At that time, the only bruise she noted was a greenish one on the side of Brian's face that he sustained from falling from his tricycle. She said Jonathan, Sr. could have injured Brian since Brian was not his biological son. She said she and Jonathan, Sr. lived together from June 2010 but severed their relationship in January 2011 because of domestic violence. She said Pablo was a friend but denied ever leaving the children alone in his care. She said Pablo was in her apartment at approximately 3:00 p.m. on the afternoon of April 6, 2012, but was adamant that the children were not left alone with him and refused to provide any additional information about him.

The hearing set for May 2012 was continued at the department's request. The department explained that it needed additional medical reports and the police report in order to prepare its report for the jurisdictional/dispositional hearing.

In June 2012, the department filed a first amended petition in which it revised the allegations under section 300, subdivisions (a) and (e) concerning Brian's injuries, eliminating any mention of cerebral bleeding and blunt force trauma and characterizing his injuries as "injuries at various stages of healing, which included but were not limited to multiple bruises on both sides of his face and right arm, and several bumps on the back of his head." That same month, the juvenile court detained A.M. and Brian on the amended petition and set a contested jurisdictional/dispositional hearing.

In its report for the hearing, the department informed the juvenile court that mother "has a history of severely abusing her son, [Brian], and/or failing to protect Brian from severe physical abuse." In the same report, the department informed the juvenile court that mother's prior child welfare history consisted of three unfounded allegations, two for general neglect in June and October of 2011, and one for physical abuse of Jonathan, Jr. in October 2011. According to the October 2011 report, Jonathan, Sr. reported seeing mother bite Jonathan, Jr. on the side of the face leaving marks and a red spot. It was also alleged that Jonathan, Jr. had marks and bruises on his back. Police officers responded and were unable to see any teeth marks, but mother admitted biting Jonathan, Jr. out of frustration. She said Jonathan, Jr. was crying and pulling away from her and it appeared he wanted to be with his father who had just dropped him off. The department also reported an allegation of physical abuse received in January 2012 that Jonathan, Sr. hit Jonathan, Jr.; however, no marks or bruises were found on Jonathan, Jr. and the allegation was determined to be unfounded.

The department also reported that mother completed a substance abuse evaluation and was referred for intensive outpatient substance abuse treatment, a domestic violence inventory and a mental health assessment. She also enrolled in random drug testing. However, mother refused to drug test or participate in any of her services, claiming that her rights were being violated. She said she would not participate in her services until she received permission from her attorney.

The department recommended that the juvenile court exercise its dependency jurisdiction and deny mother reunification services under section 361.5, subdivision (b)(5) and (6) because of the severe physical harm she inflicted on Brian. The department also informed the juvenile court that no relatives had requested placement of A.M. and Brian and that the foster parents were unable to commit to providing the children a permanent home. The children, meanwhile, were happy to visit their mother but also happily transitioned to the care of their foster parents.

In August 2012, the juvenile court conducted a contested jurisdictional/dispositional hearing. Mother did not appear but was represented by counsel. County counsel advised the juvenile court that while she believed Brian's injuries were severe, she did not believe the evidence would support a true finding under subdivision (e) of section 300 and asked to withdraw that allegation and proceed as to the section 300, subdivisions (a) and (b) allegations as a basis for jurisdiction. County counsel also advised the juvenile court that, since denial of services under section 361.5, subdivision (b)(5) required a true finding under subdivision (e), that it was also withdrawing its recommendation to deny mother services under that subdivision and would ask the court to deny her services under section 361.5, subdivision (b)(6). County counsel also asked to call social worker Shayla Smith as a witness to make a record of the fact that no one witnessed mother strike Brian as had been reported in the medical records.

Shayla Smith testified that she did not prepare the jurisdictional/dispositional report for the department and had just been assigned the case. She also stated that she reviewed the medical records attached to the report, including the child advocacy consult indicating that mother was seen disciplining Brian. However, after reviewing the other medical reports and the police reports, she found no indication that anyone actually saw mother injure Brian. County counsel then asked Ms. Smith what evidence supported her opinion that the juvenile court should find the section 300, subdivisions (a) and (b) counts true. Ms. Smith stated that her opinion was based on the "numerous amount of bruises, the stages of healing and the nature of the bruises," along with mother's inability to reasonably explain them. She further testified that in her expert opinion the bruises appeared to be nonaccidental. She said she was not basing her opinion on any statement in the medical records that somebody actually witnessed mother cause Brian's injuries. There was no further questioning of Ms. Smith and no other witnesses were called.

County counsel argued that Brian sustained very serious nonaccidental injuries while in mother's care which either she or Pablo inflicted. County counsel asked the juvenile court to deny mother reunification services under section 361.5, subdivision (b)(6) based on the nature of Brian's injuries and the department's analysis contained in its report that services would not benefit the children. Minor's counsel joined in county counsel's arguments.

Mother's counsel advised the juvenile court that mother did not object to the juvenile court exercising its dependency jurisdiction under section 300, subdivision (b). However, her attorney argued that Brian's injuries were not severe and therefore denial of reunification services to her was not warranted under section 361.5, subdivision (b)(6).

In ruling, the juvenile court sustained the section 300, subdivisions (a) and (b) allegations and denied mother reunification services under section 361.5, subdivision (b)(6). In denying mother services, the juvenile court explained:

"[Mother's] been able to offer no explanation or any reasonable explanation, and she's not present today to offer any testimony or evidence as to any reasonable explanation to account for the numerous physical injuries, marks and bruises that were found on the minor, and according to medical documentation, is consistent with non-accidental trauma. There's been no evidence to show that that's not accurate or the correct analysis in spite of the fact that there is no information necessarily that mother inflicted all these injuries. Given the information that the minors were primarily in her care, and that she was the primary caretaker, they either occurred at the result of her actions or her failing to act in protecting these children. What's notable about this case is the -- to some extent the indifference mother has in regards to the number of injuries that were so noticeable by other adults and medical professionals who were in contact with Brian. That, I think, shows the minor would be [at] risk of harm in mother's care.
So I do find 361.5(b)(6) to be applicable in this case as it pertains to the mother given all the evidence presented ...."

The juvenile court also denied reunification services for the fathers of A.M. and Brian and set a section 366.26 hearing. This petition ensued.

DISCUSSION

Mother contends that the juvenile court erred in denying her reunification services under section 361.5, subdivision (b)(6) which provides, in part:

"(b) Reunification services need not be provided to a parent ... described in this subdivision when the court finds, by clear and convincing evidence, ... [¶] ... [¶] (6) [t]hat 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, a sibling, or a half sibling by a parent ..., as defined in this subdivision, and the court makes a factual finding that it would not benefit the child to pursue reunification services with the offending parent .... [¶] ... [¶]
"A finding of the infliction of severe physical harm, for the purposes of this subdivision, 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 ...."

Thus, in order to deny mother reunification services under section 361.5, subdivision (b)(6), the juvenile court had to find by clear and convincing evidence that: (1) mother seriously injured Brian by a deliberate act or omission to act, and (2) it would not benefit the children to pursue reunification services with her.

On appeal, we review the juvenile court's order denying reunification services under the substantial evidence test, bearing in mind that clear and convincing evidence requires a heightened burden of proof. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.) In so doing, we determine whether the evidence is "reasonable, credible, and of solid value, such that a reasonable trier of fact could find the court's order was proper based on clear and convincing evidence. [Citation.]" (Curtis F. v. Superior Court (2000) 80 Cal.App.4th 470, 474.) In this case, we conclude substantial evidence does not support the juvenile court's denial order under section 361.5, subdivision (b)(6).

Essentially, there is insufficient evidence that Brian suffered "severe physical harm." In other words, there is insufficient evidence that he suffered serious injury by a deliberate act. After an extensive medical evaluation, the doctors found no evidence of brain injury, skull or other bone fractures, or abdominal or retinal hemorrhaging. Rather, Brian's injuries, as described by Dr. Hayden, consisted of "residual bruising on the face and torso with scattered abrasions." That is not to say that bruising and abrasions could not constitute severe physical harm, however, in this case, the department did not introduce sufficient evidence that Brian's injuries were severe.

The department introduced Brian's inpatient medical records which included multiple entries by medical providers that Brian's injuries were nonaccidental. The medical records also included Dr. Hayden's opinion that Brian's injuries were highly suspicious for nonaccidental trauma. The problem, however, is that someone falsely reported to the emergency room staff that mother was seen hitting Brian and that statement was not corrected. Consequently, it was adopted as the cause of Brian's injuries throughout his course of treatment and undoubtedly influenced the ultimate opinion that Brian's injuries were nonaccidental. Thus, it raises the question, "Would Dr. Hayden's opinion that Brian's injuries were highly suspicious for nonaccidental trauma change if he knew that mother was not seen hitting Brian as was originally reported?"

Instead of addressing that question and the issue of serious injury directly, county counsel attempted to substitute the opinion of Ms. Smith that Brian's injuries were serious and nonaccidental based on the number of bruises and their stages of healing. However, in our view, this case required a medical opinion identifying Brian's injuries as serious and connecting them to a nonaccidental cause, especially in light of the negative diagnostic findings. Instead of calling Ms. Smith to testify, the department could have asked Dr. Hayden to reconsider his opinion in light of the new information and provide a written statement. Having failed to clarify Dr. Hayden's opinion, the department failed to meet its burden of proving that Brian suffered severe physical harm under section 361.5, subdivision (b)(6). On that basis, we grant writ relief.

Though we grant the petition and direct the juvenile court to conduct a new dispositional hearing, nothing in this opinion precludes the department from seeking denial of reunification services under section 361.5, subdivision (b)(6) should evidence exist to support such a denial.

DISPOSITION

Let an extraordinary writ issue directing respondent court to vacate its order of August 8, 2012, denying mother reunification services pursuant to Welfare and Institutions Code section 361.5, subdivision (b)(6) and setting a Welfare and Institutions Code section 366.26 hearing. Respondent court is further directed to conduct a new dispositional hearing, and after taking into consideration any new evidence or change in circumstances, make any appropriate orders. This opinion is final forthwith as to this court.


Summaries of

N.M. v. Superior Court of Fresno Cnty.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Dec 14, 2012
F065555 (Cal. Ct. App. Dec. 14, 2012)
Case details for

N.M. v. Superior Court of Fresno Cnty.

Case Details

Full title:N.M., Petitioner, v. THE SUPERIOR COURT OF FRESNO COUNTY, Respondent…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Date published: Dec 14, 2012

Citations

F065555 (Cal. Ct. App. Dec. 14, 2012)