In re Dominic C.

Filed 2/27/07 In re Dominic C. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Appellant Sandra L. (mother) appeals from an order declaring her minor son, Dominic C., a dependent child of the juvenile court under Welfare and Institutions Code section 300, subdivisions (a) and (b).[1] She contends the juvenile court erred in (1) finding clear and convincing evidence that Dominics removal was necessary because remaining in the home would subject him to a substantial risk of danger and (2) ordering compliance with an unreasonable reunification plan. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The Petition.

On February 3, 2006, the Alameda County Social Services Agency (agency) filed a petition under section 300, subdivisions (a) and (e), alleging Dominic, born prematurely in November 2005, had (1) suffered, or was at substantial risk of suffering, serious physical harm inflicted non-accidentally by his parent or guardian, and (2) suffered severe physical abuse by a parent or by a person whom the parent knew or reasonably should have known was physically abusing him. On March 21, 2006, the agency amended the petition to include an allegation under section 300, subdivision (b) that Dominic had suffered, or was at substantial risk of suffering, serious physical harm as a result of his parents failure or inability to adequately supervise or protect him, or as a result of his parents willful or negligent failure to adequately supervise or protect him from the conduct of the custodian with whom he was left.

The allegations stemmed from two hospital visits Dominic made in January 2006. On January 22, mother and father, Jose C. (father), took Dominic to the hospital after he spit up blood while being bathed. During the visit, hospital staff observed one mark on Dominics cheek and another on his abdomen. When asked about the marks, mother falsely indicated they were birthmarks. Doctors diagnosed Dominic as having gastritis.

On January 30, mother and father (collectively, parents) took Dominic to the hospital for cough, congestion, decreased appetite and stomach discomfort. While treating Dominic, hospital staff observed the marks on his cheek and abdomen had disappeared, and thus must have been bruises rather than birthmarks. Suspecting possible child abuse, hospital staff performed x-rays on Dominic that revealed two actual and five possible broken ribs.

On February 1, 2006, Drs. Jim Crawford and Rachel Gilgoff, specialists in child abuse and neglect, met with parents and other family members. At the meeting, parents were shocked by news of Dominics broken ribs, and had no knowledge of what caused them. Mother informed the doctors Dominic, since birth, had been cared for only by family members, including parents, maternal grandparents, paternal grandmother, and a maternal aunt and uncle. Mother questioned whether Dominics ribs had been broken by hospital staff rather than by his caregivers. She claimed the bruises on Dominics cheek and abdomen were likely caused by father, who often kisses him hard because he loves him so much. She explained that she previously told hospital staff the bruises were birthmarks because she feared child protective services would be called.

Drs. Crawford and Gilgoff suspected Dominic had been non-accidentally injured, and reported his case to the agency. On February 3, 2006, Dominic was detained and placed in the relative foster home of his paternal aunt and grandmother. The agencys section 300 petition followed.

The Agencys Status Reports and Reunification Plan.

On February 15 and March 9, 2006, the agency filed case status reports with the juvenile court. The reports stated that Dominic, then 3 months old, was living with his paternal aunt and grandmother, and that parents visited frequently. It recommended keeping Dominic in foster care to ensure his safety since it is unknown who caused the rib fractures. It further recommended parents receive reunification services. It noted parents had been cooperative and had complied with all supervision requirements during visitations. Hospital staff had observed parents were appropriate and ask[ed] good questions during Dominics treatment.

The agencys investigations revealed parents had no history of involvement with child protective services, and mother had no criminal record. Father had a prior conviction in 1995 for a Vehicle Code violation, and had faced a drug-related charge in 1993 that was dismissed after he completed a drug diversion program. The maternal grandmother had lost a baby to crib death in 1975 when mother was 2 years old, but an investigation found no one at fault.

The agency thereafter submitted a reunification plan, which parents signed, calling on them to, among other things, attend a parenting education class and not allow any contact between the abuser and [Dominic].

The Hearing.

A contested hearing in this matter began February 27, 2006. Witnesses testifying at the hearing included parents, Dr. Gilgoff, and social worker Krystal Fortner.

All parties stipulated that Dr. Gilgoff was an expert in the fields of pediatric medicine and child abuse and neglect. Based on Dominics examination and medical records, Dr. Gilgoff opined his broken ribs occurred sometime in January and were likely caused by a compressive force, such as somebody holding the baby underneath the armpits with the thumbs usually on the front of the baby and then squeezing. Rib fractures are not common in babies, and cannot be caused by someone accidentally holding them too hard. As such, unexplained rib fractures like Dominics are highly suspicious for non-accidental trauma.

Dr. Gilgoff made clear Dominics caregiver at the time he broke his ribs must have known something had happened because, due to the intense pain, he would have been very upset and difficult to console. A person, including his mother, who did not see Dominic until several hours after the injury may not have realized he was hurt.

Dr. Gilgoff opined Dominics facial bruise was caused sometime during January by a blunt impact force to the face and was highly suspicious for child abuse. She referred to a study showing that bruises appear on infants under six months old less than point six percent of the time.

With respect to Dominics spitting of blood, Dr. Gilgoff opined it could have been caused by a traumatic force and, particularly in light of his other unexplained injuries, was highly suspicious for child abuse.

Dr. Gilgoff was very concerned about Dominics safety because of his unusual and unexplained injuries. She was also concerned about mothers false statement to hospital staff that Dominics bruises were birthmarks. Had doctors been aware of the suspicious bruises on January 23, they may have requested x-rays that would have identified his broken ribs on that day, rather than a week later on January 30.

Mother testified she and father were Dominics primary caregivers, but that on several occasions other family members had cared for him. When mother returned to work full-time on January 18, 2006, father became the primary daytime caregiver. Dominics maternal aunt cared for him on January 22 and 28, and reported nothing unusual had occurred.

Mother reiterated her belief that Dominics facial bruise was caused by fathers unusually hard, but loving, kisses. She admitted misleading hospital staff about the nature of the bruises, and explained she did so out of fear they would call child protective services, who would not believe fathers kisses had caused the bruises.

Mother also testified she had no idea how Dominics ribs were broken, but acknowledged the agency had valid concerns about his injuries. She insisted no changes to Dominics childcare arrangements were necessary based on his injuries, but then agreed to do whatever the court or [the agency] asks, including disallowing unsupervised contact between Dominic and father, to secure Dominics return to their home.

Like Dr. Gilgoff, social worker Fortner expressed concern that parents had no information regarding the cause of Dominics rib fractures, and that mother had misled hospital staff regarding his bruises. Because of her concerns, Fortner believed Dominic should remain out of the home while parents received reunification services. She acknowledged parents appeared to behave appropriately with Dominic, and that they have a good family support system in place. She did not believe either parent posed a danger to Dominic, and was unaware of any case where kissing had bruised a two month old child. She believed, however, parenting education classes could teach parents to be more aware of Dominics health and safety, and of potential problems that may occur when others care for him. She recommended parents adopt a safety plan to prevent and address situations where Dominic is placed in potentially dangerous situations.

Father testified, among other things, he did not know what or who caused Dominics broken ribs, and had no concerns about any of Dominics caregivers because all the family members around the child we all love the child so much.

The Dispositional Order.

On March 30, 2006, the juvenile court sustained the petitions allegations under section 300, subdivisions (a) and (b), but dismissed the allegation under subdivision (e). Specifically, the juvenile court found, among other things, clear and convincing evidence that Dominics removal was necessary because returning him to his parents home would pose a substantial risk of danger to his physical health, safety, protection or physical or emotional well-being, and that no reasonable alternative means were available to protect him. The juvenile court further found the agency had complied with the case reunification plan by making reasonable efforts to return Dominic to a safe home. Dominic was thus adjudged a dependent child and his removal from parents physical custody was continued. This appeal followed.

DISCUSSION

Mother challenges the juvenile courts dispositional order on two grounds: the order (1) was not supported by clear and convincing evidence that Dominics removal was necessary because remaining in the home would subject him to a substantial risk of danger and (2) required compliance with an unreasonable reunification plan.

The juvenile court has broad discretion to issue a dispositional order it determines would best serve and protect the childs interest. (In re Jose M. (1988) 206 Cal.App.3d 1098, 1104.) [W]hen a court has made a custody determination in a dependency proceeding, a reviewing court will not disturb that decision unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations]. [Citations.] (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)

A juvenile courts dispositional order to remove a child from his or her parents custody must be supported by clear and convincing evidence. (In re Katrina C. (1988) 201 Cal.App.3d 540, 548; In re Maria S. (2000) 82 Cal.App.4th 1032, 1039.) On appeal, the standard of review is the substantial evidence test. (In re Maria S. at p. 1039.) Under that test, we must determine whether any substantial evidence, contradicted or uncontradicted, supports the juvenile courts order. (Ibid.) We must resolve all conflicts in support of the juvenile courts order, and indulge in all legitimate inferences to uphold it. (Ibid.) We may not merely substitute our deductions for those of the juvenile court. (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.)

In reviewing the sufficiency of evidence supporting the juvenile courts adoption of the agencys reunification plan, we must determine whether the plan and the services provided pursuant to it were reasonable and appropriate under the circumstances. (Elijah R. v. Superior Court,supra, 66 Cal.App.4th at p. 969.) We need not, however, determine the services were the best that might have been provided. (Ibid.) Rather, dependency law requires only that the agency made a   good faith effort to provide reasonable reunification services responding to the unique needs of each family. [Citation.]  (In re Maria S., supra, 82 Cal.App.4th at p. 1039.)

A. Clear and Convincing Evidence Supported the Juvenile Courts Dispositional Finding that Dominics Removal Was Necessary.

Mother claims no clear and convincing evidence supported the juvenile courts finding that Dominics removal was necessary because he faced a substantial risk of danger to his physical or emotional health or well-being were he to remain in his parents custody. We disagree.

While in his parents custody, Dominic sustained numerous severe injuries, most of which were very unusual for babies his age. He sustained at least two broken ribs, likely caused by a non-accidental compressive force such as somebody holding the baby underneath the armpits and squeezing. He sustained bruises to his face and abdomen, likely caused by non-accidental blunt impact force. He had at least one episode of spitting up blood. Considered together, Dominics injuries were highly suspicious for child abuse. His parents were unable to provide an alternative explanation for the broken ribs, and failed to detect on their own that Dominic had even sustained them.[2] Mother initially misled hospital staff to believe Dominics bruises were birthmarks. She later admitted the truth, but her explanation for the bruises fathers overly hard kisses was deemed unrealistic by both Dr. Gilgoff and Fortner.

Based on this substantial evidence, we conclude the juvenile court acted within its discretion in finding that returning Dominic to his parents custody would impose a substantial risk of danger to his physical or emotional well-being. ( 300, subds. (a), (b).) After all, [a] primary purpose of the juvenile law is protection of the child. (In re Jose M., supra, 206 Cal.App.3d at p. 1104.) And given present circumstances, including Dominics recurring serious injuries and parents inability to identify his abuser or prevent his abuse, the juvenile court had legitimate concerns for Dominics future health and safety. (In re Christina T. (1986) 184 Cal.App.3d 630, 640 [minor could properly be adjudged a dependent child of the court under section 300 where she was physically abused by somebody, even though her abusers identity was unknown].)

B. The Agencys Reunification Plan Was Reasonable.

Mother further claims the juvenile court erred in ordering parents to comply with an unreasonable reunification plan. The agencys plan called for Dominics out-of-home placement while parents participated in a parenting program, known as the SEED program, and met other objectives such as preventing contact between Dominic and his abuser. Mother contends the juvenile court should have instead ordered an in-home family maintenance plan for Dominic. She further contends preventing contact between Dominic and his abuser was an unreasonable objective because parents did not know the abusers identity, and thus could not comply with it. We again disagree.

In certain cases where a child is removed from the home, section 361.5 requires the juvenile court to order the agency to provide parents with child welfare services to facilitate family reunification. Section 361.5 has been construed to require [a] good faith effort to provide reasonable services responding to the unique needs of each family. (In re Maria S., supra, 82 Cal.App.4th at p. 1039.) Further, section 366.21, subdivision (g)(3) requires clear and convincing evidence that such services have been offered to the parents. (In re Monica C. (1995) 31 Cal.App.4th 296, 306.)

As an initial matter, mother admits she failed to challenge the reasonableness of the agencys reunification plan or services in the juvenile court. She nonetheless contends she did not waive the right to challenge them on appeal because (1) the agency has a statutory duty to provide reasonable services, regardless of whether a parent objects to them; (2) father, with whom mothers interests are aligned, argued below for in-home rather than out-of-home services; and (3) mothers timely appeal from the dispositional order preserved her challenge.

We conclude mother has waived the right to challenge on appeal the reasonableness of the agencys reunification efforts. In dependency proceedings such as these, a parents failure to object below to a juvenile courts dispositional finding that reunification services were reasonable may constitute a waiver of the right to object to it on appeal.[3] (In re Crystal J. (1993) 12 Cal.App.4th 407, 411-412; Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 810; In re Jasmin C. (2003) 106 Cal.App.4th 177, 182 fn. 5.) And in any event, waiver aside, our review of the evidence reveals no abuse of discretion by the juvenile court in finding the agencys reunification plan and services reasonable. As set forth in detail above, Dominic sustained numerous, severe and unusual injuries, which, considered together, were highly suspicious for child abuse. Parents failed to provide a rational explanation for any of Dominics injuries, and, indeed, initially lied about his bruises. Based on this evidence, the agency recommended out-of-home placement for Dominic and parenting classes, including the hands-on SEED program, to be completed by parents before it would consider Dominics return. The agency also recommended parents adopt a safety plan to better detect and prevent any future abuse of Dominic.

Mother complains the agency should have helped parents enter the SEED program earlier. At the time of the hearing, the agency had referred parents to the SEED program and had met with the SEED supervisor regarding the case, but SEED had not yet performed its initial assessment to determine which specific parenting program would best serve parents needs. Social worker Fortner testified that several of her and her colleagues phone calls to SEED regarding parents initial assessment had gone unanswered, but noted parents had a meeting scheduled that day with the SEED employee responsible for the assessment. Fortner admitted in some cases, but not in this one, the parents had been able to enter the SEED program before the dispositional hearing.

As the agency points out, statutory law only required it to complete a written case plan within a maximum of 60 days of the initial removal of the child . . . or by the date of the dispositional hearing pursuant to Section 358, whichever occurs first. ( 16501.1, subd. (d).) Here, Dominic was initially removed February 3, 2006, and the agency submitted its initial case plan on February 15, 2006. There thus is no evidence the agency failed to meet its statutory duty.

Moreover, as one court has aptly stated: In almost all cases it will be true that more services could have been provided more frequently and that the services provided were imperfect. The standard is not whether the services provided were the best that might be provided in an ideal world, but whether the services were reasonable under the circumstances. (In re Misako R. (1991) 2 Cal.App.4th 538, 547.) Here, while perhaps the agency could have taken additional steps to enable parents to more promptly begin participating in the SEED program, we conclude it did not act in bad faith or provide services that were unreasonable under the circumstances. (In re Maria S., supra, 82 Cal.App.4th at p. 1039 [the agency need only make [a] good faith effort to provide reasonable services responding to the unique needs of each family].)

Finally, we disagree with mother that, because parents do not know the identity of Dominics abuser, it would be impossible for them to comply with the reunification objective that they prevent contact between Dominic and his abuser. As Fortner testified, before Dominic can safely be returned to parents custody, parents must learn what precautionary measures they can adopt to prevent Dominics future abuse. To accomplish that, parents do not necessarily need to know Dominics abusers identity. They must, however, be better attuned to Dominics mental and physical health and well-being. We share the juvenile courts hope that, by following the reunification plan and successfully completing the SEED program, parents will gain those vital parenting skills.[4]

Accordingly, we conclude under the circumstances of this case that substantial evidence existed in the record to support the juvenile courts determination that the reunification plan and services provided to mother were reasonable.

DISPOSITION

The juvenile courts dispositional order is affirmed.

_________________________

Parrilli, J.

We concur:

_________________________

McGuiness, P. J.

_________________________

Siggins, J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line Lawyers.

[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

[2] Dr. Gilgoff testified an infant who sustained broken ribs would be in considerable pain and would thus be hard to console. She further testified Dominics caregiver when his injury occurred should have noticed his pain and discomfort.

[3] Even assuming, as mother contends, that father objected below to the reasonableness of the reunification plan and services, she identifies no authority holding that one parents objection below is sufficient to preserve an issue for purposes of the other parents appeal.

[4]We, like Dr. Gilgoff and Fortner, express concern that parents have been unable to identify Dominics abuser or abusers. By mothers own testimony, only a handful of individuals all family members cared for Dominic during the month of January, when his injuries likely occurred. While we understand parents hesitancy to accuse a family member of child abuse, identifying the abuser and preventing his or her future contact with Dominic is the best way to preclude further abuse. Perhaps, as the agency suggests, the juvenile courts order to prevent contact between Dominic and his abuser will motivate them to seek out that important information.