In re E.R.

Filed 8/4/06 In re E.R. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEALS from orders of the Superior Court of San Diego County. Petition for a writ of habeas corpus. Julia Craig Kelety, Judge. Petition granted. Appeals dismissed.

Jeffrey R. and Victoria R. appeal orders made at a jurisdictional and dispositional hearing in which the juvenile court declared their daughter, E.R., a dependent child of the court under Welfare and Institutions Code section 300, subdivision (e).^[1] They contend the evidence was insufficient to support the findings, and the court erred in removing E. from their care. They argue there was no evidence she was at risk and less drastic alternatives were available. Jeffrey petitions for a writ of habeas corpus, asserting he was denied his right to effective assistance of counsel because his counsel did not adequately investigate the facts of the case before providing legal advice on how to proceed at the jurisdictional/dispositional hearing. We hold Jeffrey was denied his right to effective assistance of counsel and grant the petition. We dismiss the appeals.

FACTUAL AND PROCEDURAL BACKGROUND

On July 28, 2005, Jeffrey and Victoria took six-week-old E. to Balboa Naval Medical Center (The Medical Center) because she appeared unwell and had bruising on her body. Victoria had had a difficult pregnancy with E. and after the birth, she and E. had remained in the hospital for several days.

Jeffrey is in the United States Marine Corps and had been deployed twice to Iraq. He provided much of E.'s care after she came home from the hospital. In trying to explain how E. might have been bruised, he described an incident that took place on July 24, 2005, when he was bathing her in a baby bathtub set on a bathroom counter. He said he turned to grab something, the bathtub began to slip, and he grabbed E. at the level of his knees. Victoria and Jeffrey said E. did not cry after the incident, but since that time had been fussy, screamed before she was fed, ate more frequently, and had not had a bowel movement for two days.

A CT scan did not show E. had any intracranial bleeding. Ophthalmologic tests showed no sign of retinal hemorrhage. But, a skeletal survey showed corner fractures of the bones of both of E.'s legs and indications of healing fractures of both of her arms. A skin biopsy was taken to determine whether E. has Osteogenesis Imperfecta (OI), also known as brittle bone disease.

Dr. James Chun, chairman of the pediatrics department at the Medical Center, opined the fractures and bruising indicated it was more likely than not the injuries were inflicted. He stated: "There is no plausible explanation provided by the caregiver which can explain the presence of these injuries."

Jeffrey told the San Diego County Health and Human Services Agency's (The Agency) social worker of the bathtub incident, but had no other explanation for E.'s injuries. The Agency petitioned on E.'s behalf under section 300, subdivision (e), alleging she had suffered "severe physical abuse including corner fractures of the right and left distal femurs, proximal and distal right and left tibia and healing fractures of the left distal radius and along the shaft of the right humerus. In addition, the child had multiple bruises on her arms, back and abdomen inflicted by, her parents, and the child is in need of the protection of the Juvenile Court."

Police met with Dr. Chun, who told them the injuries were classic abuse-related fractures caused by the force of an automobile accident or by shaking a baby. Victoria told police she could not understand how E. could have been shaken. She said only she and Jeffrey cared for E., and they had viewed a film about shaken babies before taking her home from the hospital. She said there was no domestic violence in their family. She recently had arranged family counseling because of the stress of Jeffrey again being deployed to Iraq. She said Jeffrey took care of E. at night and when he was not at work.

Jeffrey told the police detectives about the bathtub incident. He said he might sometimes be a little rough with E. The detectives said they were concerned about the bruising and fractures. Jeffrey began to cry and said, "I didn't mean to hurt her." He said he shook E. just one time to try to get her to stop crying. Demonstrating, he held a doll in both arms, protecting the doll's head with his hands, and quickly shook the doll back and forth. He said he was under tremendous pressure from being a new father and facing another deployment to Iraq. Victoria came into the room and Jeffrey explained what he had done. They both cried for E.'s injuries.

Later, at police headquarters, Jeffrey confirmed his earlier statement. He said, "She wouldn't stop crying. She was holding her breath and her face was turning deep red." He said he shook her for two to three seconds. When the detective said the fact there were fractures at different stages of healing indicated there was more than one incident of shaking, Jeffrey admitted shaking E. on three occasions. He said he did not shake her very hard and did not mean to hurt her. Police arrested him and charged him with abusing E.

Victoria denied knowing anything about the shaking. A polygraph test indicated she was deceptive in answering three questions: Whether she had shaken E., had seen Jeffrey shake E. or knew Jeffrey had shaken E. The detective told Victoria if she were not truthful, the Agency might place E. for adoption.

At the detention hearing on August 2, 2005, the court found a prima facie showing had been made on the allegations. It ordered E. detained and ordered supervised visits for the parents. E. was detained in the home of the maternal grandparents.

On August 23, 2005, the Agency recommended no reunification services be offered. The matter was set for a settlement conference and a contested jurisdictional/dispositional hearing. On September 15, the hearing date was rescheduled because Jeffrey was having difficulty obtaining the medical records from the Medical Center. On September 22, the court set a further settlement conference for Jeffrey's counsel to review the medical records. In the September 29 report, the social worker recommended services for Victoria, but not for Jeffrey. At a settlement conference on September 29, the court continued the hearing date for time to obtain the medical test results.

In late September 2005, the genetics laboratory that had performed the genetic screening test for E. informed Dr. Chun that the test was positive for OI. Dr. Chun requested further testing to confirm the diagnosis. At a settlement conference on October 27, the court was informed the medical test results were not yet available and a date was confirmed for a contested jurisdictional/dispositional hearing. A new skeletal survey performed on November 2 showed the original fractures had healed, but E. had three new rib fractures and a new pelvic fracture. Dr. Chun opined although the OI diagnosis complicated the case, the original findings of suspicious bruising, multiple corner fractures of E.'s extremities and Jeffrey's admission to shaking her on more than one occasion confirmed the diagnosis of nonaccidental trauma. He said the new fractures could be caused by normal handling of an OI baby. The Agency changed its earlier recommendation and recommended services for Jeffrey.

On November 10, 2005, in criminal court, Jeffrey entered a plea of guilty to count 4, Penal Code section 273a, subdivision (b), a misdemeanor. The plea stated the he admitted he was guilty of the following charge: "any person who, under circumstances other than those likely to produce great bodily harm, places a child in a situation where her health may be endangered is guilty of 273[a,] (b)." The plea bargain provided that the People would move to dismiss the entire complaint on the date of sentencing, which was to be held 15 months from the date of the guilty plea, if Jeffrey violated no laws and completed a 52-session parenting program by the date of sentencing.

At the December 20, 2005 jurisdictional/dispositional hearing, Jeffrey pleaded no contest and Victoria submitted on the basis of the social worker's reports. The court found the allegations of the petition true, declared E. a dependent child, removed her from her parents' care and placed her with relatives. It ordered the parents to comply with their reunification plans.

DISCUSSION

In his petition for a writ of habeas corpus, Jeffrey contends his criminal plea did not negate a defense to the allegation under section 300, subdivision (e). He asserts Michael Wagner, the attorney who represented him in the dependency proceedings until the day of the jurisdictional/dispositional hearing, did not provide effective assistance because, before advising him to plead no contest to the allegations of the petition, Attorney Wagner did not adequately investigate the nature of the admission in criminal court. Jeffrey contends his second attorney, Florence Cannata, who specially appeared for him at the jurisdictional/dispositional hearing, also was ineffective because she did not explain to him that a no contest plea was equivalent to admitting the allegations of the petition. He claims if the juvenile court were aware of the evidence, which exonerated him and provided a reasonable explanation for E.'s bruises, it is likely the court would have made a different finding. Our review of the record leads us to conclude that Jeffrey's position has merit.

Section 317.5, subdivision (a), provides, "[a]ll parties who are represented by counsel at dependency proceedings shall be entitled to competent counsel." In order to establish that his counsel in a dependency proceedings was ineffective a parent " 'must demonstrate both that: (1) his appointed counsel failed to act in a manner expected of reasonably competent attorneys acting as diligent advocates; and that (2) this failure made a determinative difference in the outcome, rendering the proceedings fundamentally unfair in that it is reasonably probable that but for such failure, a determination more favorable for [the parent's] interests would have resulted.' [Citations.]" (In re Dennis H. (2001) 88 Cal.App.4th 94, 98.) The petitioner ". . . 'must prove, by a preponderance of the evidence, facts that establish a basis for relief on habeas corpus. [Citation.]' [Citation.]" (In re Vargas (2000) 83 Cal.App.4th 1125, 1132.)

The allegation in the dependency case under section 300, subdivision (e) to which Jeffrey pleaded no contest was more serious than the charge to which he pleaded guilty in criminal court. In the criminal case, the plea form describes the crime as follows: "Any person who, under circumstances other than those likely to produce great bodily harm, places a child in a situation where her health may be endangered is guilty of [Penal Code section] 273a [, subdivision] (b). (Italics added.) By contrast, the allegation to which he pleaded no contest in the dependency case states in part: "the child . . . suffered severe physical abuse . . . . In addition the child had multiple bruises . . . inflicted by, her parents . . . ." (Italics added.) The distinction between these two pleas is significant. In the criminal case, Jeffrey admitted only that he placed E. in a situation, other than one likely to produce great bodily harm, where her health might be in danger. In the dependency case, he pleaded no contest to an allegation that he and/or Victoria inflicted severe physical abuse. The record indicates Attorney Wagner may not have reviewed the criminal plea. In his declaration, he states: "I was finally told by the criminal attorney the client admitted to a misdemeanor. I call[ed] the criminal attorney to discuss the plea. I was told [Jeffrey] admitted to handling the minor in a rough way." Attorney Wagner does not state he actually viewed the plea form or knew exactly what Jeffrey had admitted by his plea. He does not say that he counseled Jeffrey about the discrepancy before Jeffrey entered his plea of no contest in the dependency case.

The Agency argues the exact nature of the plea in criminal court was not essential because Jeffrey had confessed to detectives that due to the pressure he felt from being a new father and his impending deployment to Iraq, he lost control and shook E. on three occasions. We disagree with this assertion. Jeffrey's admission that he briefly shook E. is not the same as admitting that she suffered severe physical abuse inflicted by her parents. The discrepancies in the two pleas bring into question whether Jeffrey's attorneys performed as reasonably competent attorneys acting as diligent advocates.

Further, Attorney Wagner does not indicate in his declaration that he asked a medical expert to review either E.'s medical records or Dr. Chun's letter, where he opined the medical records showed a likelihood of abuse. Attorney Wagner states he talked to "a doctor about taking the case and I even set about getting funding for the evaluations of the reports." He also says he talked to the "criminal group" about getting funding for expert evaluation. But, importantly, he does not say he attempted to procure funding or presented the documents to an expert for review. Because of the OI diagnosis and the fact that Dr. Chun based his opinion of abuse in part on the fact that E. had unexplained bruises, a condition which is to be expected in a child with OI, review of the medical records by an expert was essential to Jeffrey's defense in the dependency case. Attorney Wagner says only that he talked with "a doctor." He does not indicate he went any further in investigating a defense to the allegation based on expert review of the medical records. Attorney Wagner's declaration does not indicate he made sufficient efforts to secure a medical expert to examine and evaluate the evidence.

Attorney Wagner declares his goal as Jeffrey's counsel was to have the section 300, subdivision (e) petition dismissed or reduced and to get services ordered. He does not explain what benefit Jeffrey obtained by pleading no contest to the allegation. It does not appear that services for Jeffrey were conditioned on him pleading no contest. The Agency recommended on November 9, 2005, that services be offered to Jeffrey. He pleaded no contest on December 20. The record does not reveal an advantage to Jeffrey of the no contest plea.

Jeffrey has shown the assistance of his second attorney also fell below the standard of adequate representation. Attorney Cannata declares that before the jurisdictional/dispositional hearing, when she specially appeared for Attorney Wagner, she met with Jeffrey for about 20 minutes and explained his trial rights to him. She states she explained the difference between pleading "no contest" and "submitting on the reports" and also says she explained his appellate rights would be limited by the no contest plea. However, she does not say she told him his appeal rights would be completely eliminated if he pleaded no contest. (In re Troy Z. (1992) 3 Cal.4th 1170, 1181-1182 [Pleas of no contest rendered the parents' challenge to section 300, subdivision (e) findings not cognizable on appeal].) This omission was exacerbated by the court's inaccurate statement to Jeffrey that "[t]he practical effects of [a submission on the social worker's reports and a no contest plea] are the same." The practical effects are not the same. Victoria's appeal rights were preserved when she submitted on the basis of the reports, Jeffrey's were eliminated by his plea. Jeffrey has made the requisite showing that his attorneys' assistance fell below the standard of reasonably competent attorneys acting as diligent advocates.

Jeffrey also has shown a reasonable probability that had he exercised his right to a hearing on the section 300, subdivision (e) allegation the outcome would have been more favorable to him. The Agency argues it is not reasonably probable the court would have dismissed the petition given the father's admission to shaking E. on three occasions and the expert opinion that the fractures of her arms and legs were caused by the shaking, not by OI. But the record does not show whether Jeffrey's counsel presented E.'s medical records to another expert for review. Thus, we cannot know if a different medical expert might have refuted Dr. Chun's opinion at a contested hearing. Had such an expert done so, the results of a hearing might have been more favorable to Jeffrey.

The Agency also argues because of Jeffrey's admission to shaking E., the court likely would not have returned her to the parents outright. However, Jeffrey and Victoria had begun services and were learning how to be better parents and to care for their very fragile child. There were other vehicles for the Agency to use in order to provide services that would not require the harsh finding under section 300, subdivision (e) that the parents had abused their infant daughter, causing severe injury.

The Agency additionally claims there may have been other facts damaging to the parents that would have come out had there been a hearing. But because there was no hearing, we cannot know what the state of the evidence would have been had Jeffrey elected to exercise his right to have a contested hearing. Jeffrey has shown a sufficient likelihood of a different result. He has shown by a preponderance of the evidence that he was denied his right to effective assistance of counsel.

Because we grant the petition for a writ of habeas corpus and vacate the orders made at the jurisdictional/dispositional hearing on Jeffrey's showing of ineffective assistance of counsel, we do not discuss Jeffrey and Victoria's contentions the court's findings and orders were not supported by substantial evidence.

DISPOSITION

The jurisdictional and dispositional orders entered on December 20, 2005, are vacated, and the matter is remanded to the superior court with directions to appoint new counsel for Jeffrey and to permit Jeffrey to withdraw his no contest plea. This opinion is final as to this court 10 days after the filing date. (Cal. Rules of Court, rule 24(b), (c).) The appeals are dismissed.

O'ROURKE, J.

WE CONCUR:

McCONNELL, P. J.

IRION, J.

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