Filed 10/19/17 J.C. v. Superior Court CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
| J.C. et al.,
Petitioners,
v.
THE SUPERIOR COURT OF RIVERSIDE COUNTY,
Respondent;
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES,
Real Party in Interest.
|
E068655
(Super.Ct.No. SWJ1600765)
O P I N I O N
|
ORIGINAL PROCEEDINGS; petition for extraordinary writ. Timothy F. Freer, Judge. Petition denied.
Brandon Burns for Petitioner J.C.
Karl Fuller for Petitioner R.C.
No appearance for Respondent.
Gregory P. Priamos, County Counsel, and Julie Koons Jarvi, Deputy County Counsel, for Real Party in Interest.
I. Introduction
Petitioner J.C. is the mother (mother) and petitioner R.C. is the father (father) (collectively, parents) of two children, S.C. and A.C. (collectively, the children) who were ages three and one, respectively, on the date of the challenged orders. Each parent asks this court to direct the juvenile court to vacate its orders of June 27, 2017, denying them reunification services under Welfare and Institutions Code section 361.5, subdivision (b)(4)[1] (the parent caused the death of another child through abuse or neglect) and setting a hearing under section 366.26 for October 23, 2017. We conclude the court’s true finding that the parents caused the death of another child through abuse or neglect is supported by substantial evidence. We also affirm the dispositional orders because we cannot say the juvenile court abused its discretion when it determined the parents did not make the required showing by clear and convincing evidence that providing them with reunification services would be in the children’s best interest.
II. Roadmap
This is a case in which the parents took foster placement of father’s two young nephews in early September 2016, readily adding them to a family that already included
their two young children. Before the end of the year, the youngest cousin, A.C.-G., would be dead before he could turn two, the parents accused of fatal child abuse, and the parents’ own children removed from their home and placed in what would become a series of foster care homes.
In the intervening months, and as late as November 28, 2016, the social workers who interacted with the family had seen no problems with the parents and wrote glowingly of their calm and loving parenting style. In the weeks before A.C.-G.’s death, the parents’ infant daughter was diagnosed with Kawasaki disease and spent four days in the hospital, leading the father later to tell a social worker that he felt “overwhelmed” by the diagnosis. A.C.-G. was healthy on November 18, 2016, his last checkup. On November 22, A.C.-G., was seen in the emergency room for a fracture of the lower portion of the forearm and no issues were noted. The parents did not schedule a follow-up appointment with their pediatrician for the arm, but did obtain a referral to an orthopedic specialist. Three days before he died at the hospital, A.C.-G. stopped breathing at home and was taken to the hospital by ambulance. The parents stated A.C.-G. had fallen twice that morning and hit his head. They also stated that previously A.C.-G. had fallen off the toilet and hit his head—mother said it was two weeks before, father said it was two to three days before. Finally, the parents stated that A.C.-G. had very recently exhibited symptoms that included cold, stiff, red legs and feet, lethargy, loss of appetite, and vomiting. For these symptoms, the parents pursued home remedies rather than seeking medical attention. These events took place while the parents were potty training A.C.-G.
The child abuse and neglect (CAN) report concluded the child died of nonaccidental traumatic brain injury. For five months, real party in interest, Riverside County Department of Social Services (DPSS), recommended no reunification services. The jurisdictional and dispositional hearing was postponed several times pending the autopsy report. In late May, the forensic pathologist disagreed with the forensic pediatrician and concluded in the autopsy report that A.C.-G. died from complications of previously undiagnosed diabetes, called ketoacidosis. DPSS then changed its recommendation to include reunification services and a batterer’s program. Over five court days, the court heard extensive testimony from the forensic pediatrician who prepared the CAN report and the forensic pathologist who prepared the autopsy report. Each doctor explained in detail why their conclusion was correct and the other incorrect. The court ultimately credited the testimony of the forensic pediatrician and found that the parents caused A.C.-G.’s death through physical abuse. The court then denied reunification services as not in the children’s best interest.
A detailed account of the facts and procedure is set forth immediately post.
III. Statement of Facts and Procedure
A. Cousins are Placed With the Family
A.C.-G. and his older brother, Al.C.-G. (collectively, the cousins) are the children of father’s sister. They were in an open dependency case and were placed with father and his girlfriend, the children’s mother, in early September 2016. At that time, the cousins were ages 17 months and two years, respectively. The parents’ biological children, S.C. and A.C., were at that time ages three years and 11 months, respectively. A.C.-G. had initially been placed in a medically fragile foster placement after being discharged from the neonatal intensive care unit because of maternal drug use. The parents were planning to adopt the two cousins; DPSS had completed a preliminary adoption assessment by early October and a section 366.26 hearing for the cousins had been calendared for November 28, 2016.
B. A.C.-G. Is Admitted to the Hospital
On December 17, 2016, paramedics responded to the parents’ home. A.C.-G. was not breathing. Upon arrival at Hemet Valley Medical Center (HVMC), he was hypothermic, with his temperature at 93.8 degrees. A.C.-G. had to be intubated because he was nonresponsive. He did have a heartbeat. A.C.-G.’s blood sugar was 600, but he had no history of diabetes. Medical personnel noted that A.C.-G. was born premature and drug exposed and had lung problems at birth, as well as sleep apnea. A CT scan showed swelling of the brain; “recovery was not looking good.” That same day, A.C.-G. was transported to Loma Linda University Medical Center (LLUMC) and admitted to the pediatric intensive care unit.
C. Social Worker Interviews Parents
The social worker interviewed the parents. They indicated each watched the children and cousins while the other was working.[2] The paternal grandmother had been helping with childcare until she returned to Mexico three days prior. Their infant daughter, A.C., had recently been diagnosed with Kawasaki disease[3] and spent four days in the hospital. Father expressed being overwhelmed because of A.C.’s illness. Father, as the parent who took the cousins to their medical appointments, discussed the cousins’ medical issues and doctor appointments. He stated both cousins had a checkup about two months prior and were current on their immunizations. Father stated A.C.-G. had been set to have a follow-up appointment for his lung issues, but when Father called to confirm two days before the appointment, the medical office told him the paperwork had the prior foster parent’s name on it and so A.C.-G. could not be seen. The next available appointment was not until February. Both parents expressed frustration with trying to reach social workers and with the processes required to obtain medical care for the cousins.
Mother explained A.C.-G. was born at 31 weeks with chronic lung disease and was deemed medically fragile. His mother was incarcerated at the time, and A.C.-G. tested positive for drugs. Mother stated that about one week prior to A.C.-G.’s hospital admission, he had become lethargic, was not eating well, would gag or vomit when he did eat, and his legs were regularly cold from the shin down. Mother noticed A.C.-G.’s legs were often stiff. She would move the legs in a bicycling motion to warm them up, and both parents would wrap his feet in socks and slippers to keep them warm. The previous week, father had taken A.C.-G. for a walk and told mother he was “‘really lazy’” during the walk and father had to hold his hand. The parents noticed A.C.-G. had begun to hold his urine, and when they placed him in a diaper, it would be saturated with urine. For this reason, they had begun to potty train him.
Mother described the morning of December 17, 2016, as follows: She woke up about 4:00 a.m. to feed the infant, A.C. A.C.-G. got up to go to the bathroom and fell to the floor. She picked him up and noticed his legs were cold, and so began rubbing his legs and feet. Father was present in the doorway. A.C.-G. was wincing while she touched his legs, then they started to warm up. She decided to get a blow dryer to help warm his feet, which resulted in him moving his feet and smiling. A.C.-G. urinated in the toilet and returned to bed. Mother wrapped him in some blankets and went back to bed.
Mother stated she woke up around 8:00 a.m. to hear A.C.-G. screaming. She went to his room. Father was asleep, but mother called him to come see A.C.-G. because he was cold. Mother suggested giving A.C.-G. a warm bath; this caused him to move his arms and legs. Mother showered and got ready for work while father gave A.C.-G. a bath. Mother stated she believed father took A.C.-G. out of the tub, wrapped him in blankets and put him in bed. Father left to go to Walmart to exchange gifts after mother got out of the shower. Mother called father on the telephone to find out if father had put pajamas on the child. She then got A.C.-G. out of bed to put some pants on him. A.C.-G. fell down. She helped him back up but he fell again, hitting the back of his head on the tile floor. Mother noticed he was not breathing, so she slapped his face, but saw no movement from his stomach. Mother stated she performed cardiopulmonary resuscitation (CPR) and vomit came from A.C.-G.’s mouth and nose. She called paramedics and then father.
Father described the events of that morning as follows: During the night before, mother told father that A.C.-G.’s legs were cold so she had wrapped him in blankets. Around 6:00 a.m., mother told father that A.C.-G. was cold. Father saw that A.C.-G.’s feet were red and hard, and he was not moving his toes. Father saw mother set the hair dryer to “warm” and blow it on A.C.-G.’s feet. This caused him to start moving his feet. Mother put socks and slippers on his feet. Father left the room to make a bottle for A.C. When he returned, A.C.-G. was sitting on the side of the bed. Mother said his feet were cold again, so father gave him a warm bath. Father got A.C.-G. out of the bathtub, put pajamas and socks on him, wrapped him in a blanket and placed him back in bed. He then went to Walmart to exchange gifts. While he was in line, mother called and told him she had called 911. Father said mother told him A.C.-G. fell and hit his head on the tile floor when she attempted to put pants on him. Father returned home and rode with A.C.-G. in the ambulance.
During the social worker’s first contact with the parents at the hospital, mother asked if one of them could spend the night at the child’s bedside. The social worker stated they could have only supervised visits and were not allowed to have updates on A.C.-G.’s medical condition because of Health Insurance Profitability and Accountability Act laws. The social worker escorted the parents to the child’s bedside for a supervised visit.
D. A.C.-G. Dies; Section 300 Petition Filed
On December 20, 2016, DPSS filed a petition under section 300, alleging under subdivision (b)(1): “While in the care and custody of the parents, the children’s paternal cousin, [A.C.-G.], was severely abused and neglected, resulting in non-accidental trauma, the child being brain dead and on life support; such conditions place these children at substantial risk of serious physical harm in the continued care of the parents.”
A.C.-G. was transferred to LLUMC a few hours after arriving at HVMC on December 17. On December 20, doctors pronounced A.C.-G. brain dead and removed him from life support. Dr. Melissa Siccama, a forensic pediatrician at LLUMC, told the social worker that A.C.-G. had the following injuries: a subdural hematoma, brain tissue swelling, retinal bleeding behind both eyes, two bruises on the forehead, grab marks on his upper arms, legs, and right thigh, fingertip marks on his chest, injuries on his inner and upper lips, and blood in his nose. Dr. Siccama stated the injuries were consistent with shaking/grabbing/pounding A.C.-G.’s head into something, which was a concern for inflicted injury.
E. Parents Explain A.C.-G.’s Injuries
Mother’s explanation for the injuries to A.C.-G. was as follows. She described the injury to his arm bone as a splinter fracture of his wrist. She stated she was not home when it occurred, and that father had taken the child to the hospital. She stated that a cast was not put on the arm. Regarding the bruises on A.C.-G.’s forehead, about two weeks prior the child had fallen forward off the toilet when she left the room because she heard A.C. crying. Mother heard the noise from the fall. She believed A.C.-G. fell because he was tired or had fallen asleep. Mother stated she had noticed the bruising on A.C.-G.’s leg the day before, the same day father had noticed the bruising to the arm and told her about it. She stated A.C.-G. was unstable and fell a lot because of his cold feet and legs. For the previous week to 10 days, the child’s legs were red and his feet were swollen, and his mobility was impaired. When she would press his feet, the fingerprints remained. When asked why she did not take A.C.-G. to the doctor, she indicated she was trying to wait until a follow-up appointment father had made. Mother explained that father normally took the cousins to doctor appointments because she was not on the paperwork, and was unable to get a “referral” for their medical care because the social worker would not provide her with any information. She was told this was because father had a biological connection to the cousins and she did not. Mother voluntarily submitted to a drug test, which was negative.
Father’s explanation for A.C.-G.’s injuries was as follows: The child injured his wrist about one month prior while playing outside with the other two boys early one evening. All three boys collided while driving big wheel bikes/trucks. Father saw A.C.-G. fall off the bike and put out his arm to break the fall. The children continued to play after he warned them to be more careful. In the middle of the night, A.C.-G. woke up in pain, so father took him to the emergency room. The diagnosis was a “‘splinter’” fracture, and the doctor placed “‘a thing on it and wrapped it,’” and told him the child would be fine in one to two weeks. Father stated he had just received a referral to an orthopedic doctor the previous week.[4] Regarding the bruises on A.C.-G.’s forehead, father stated they resulted from an incident two to three days before. Father was outside, but heard the commotion when the child fell off the toilet. Father believed A.C.-G. had fallen asleep while mother went to check on the infant, A.C., who was crying. Father did not know if the child fell forward or to the side because he was not there, but said he saw
a bump on his forehead that eventually turned purple. Father stated the bruising on A.C.-G.’s arm was from pulling him up out of his crib.
F. Children Removed and Detained; First Amended Petition; CAN Report
The children were removed from the parents’ care on December 21, 2016.
On December 23, DPSS amended the original petition to reflect that A.C.-G. subsequently died from his injuries on December 20, after being removed from life support.
At the detention hearing held on December 27, 2016, the court found a prima facie case and ordered the children detained. The parents were granted supervised visits twice per week.
The CAN report (CalEMA form 2-900) was dated December 19, 2016, based on an examination of A.C.-G. on December 19, 2016. The examination was conducted and the report authored by Melissa Siccama, M.D., Pediatrician and Fellow, Division of Forensic Pediatrics, Loma Linda University Children’s Hospital. The report was reviewed by Dr. Amy Young, who discussed it with Dr. Siccama and agreed with its findings. The report indicated A.C.-G. was admitted to the pediatric intensive care unit because of “respiratory failure, cerebral edema, concern for subarachnoid hemorrhage, hyperglycemia, severe hypothermia and electrolyte imbalance.” The “review of systems” section listed hypothermia, head trauma, vomiting, change in mental status, and respiratory failure. “On admission, bruising was noted on his forehead, under left eye, on right side of chest, right flank, on right upper arm, right outer thigh and lower leg.” The report also noted that “[h]yperglycemia was noted on admission for [A.C.-G.], suspected secondary to stress response. [A.C.-G.] was started on an insulin drip to maintain normal glucose levels and HgbAIC was 5.7. There was not a true anion gap metabolic acidosis.” “Forensics was consulted during this admission for suspected non-accident trauma as the ultimate cause of [A.C.-G.’s] current state. Ophthalmology was also consulted who visualized bilateral retinal hemorrhages, worse in the left eye.”
As relevant to the medical testimony at the jurisdictional and dispositional hearing, the CAN report shows A.C.-G. arrived at HVMC just before 11:00 a.m., A.C.-G.’s blood glucose levels were: 221 at 11:20 a.m.; 626 at 11:28 a.m.; and 622 at 11:37 a.m.[5] Urine glucose level was 500 at 11:39 a.m. At LLUMC, after being placed on an insulin drip on the ambulance ride over, A.C.-G.’s glucose levels beginning at 4:06 p.m. and throughout the evening of December 17 were measured at 192, 185, 203, 146, 73, and 136. His levels for the following two days ranged from 84 to 143. At HVMC, A.C.-G.’s ketones measured at 80 at 11:39 a.m., but were negative, or zero, at 4:06 p.m. at LLUMC. Dr. Siccama’s recommendations included: “If able discontinue insulin infusion to see if normoglycemia is maintained.”
Dr. Siccama’s opinion in the CAN report as to the cause of A.C.-G.’s injuries is set out in full: “[A.C.-G.’s] cutaneous injuries are consistent with child physical abuse.
In addition, the history provided to explain the prior radial fracture is not consistent with the injury. This injury is thus most consistent with inflicted trauma. In regards to the explanation for his recent severe compromise, there is currently no reasonable accidental or medical explanation. He presented with hyperglycemia, however did not have any other criteria to meet the diagnosis of diabetic ketoacidosis [(DKA)]. The hyperglycemia was likely sequela of the catastrophic brain injury. [A.C.-G.’s] oral injuries raise the suspicion of suffocation. His presentation coupled with the findings of retinal hemorrhages is highly suspicious for inflicted head trauma. [A.C.-G.] is critically ill and his prognosis is grim, he is expected to progress to brain death.”
G. Jurisdiction and Disposition Postponements; Reports; No Family Reunification Recommendation
In the initial jurisdictional and dispositional report filed on January 13, 2017, DPSS recommended the parents be denied reunification services under section 361.5, subdivision (b)(4), because they had caused the death of another child through abuse or neglect. Neither parent had a criminal history. Father reported he had been arrested for driving under the influence 10 years prior. Both parents tested negative for drugs. The children underwent CAN exams, which were negative. A.C. was determined to be medically fragile because of her Kawasaki disease diagnosis. The supervised visits were going well, although mother was emotional during the visits and three-year-old S.C. had a difficult time ending the visits, took a long time to get into the car, and would cry during the drive back to the caregiver’s home. S.C. was noted to be very attached to his parents. The children were in different foster homes because A.C. needed a caregiver qualified for medically fragile children. On January 11, the social worker advised the parents DPSS was recommending denial of reunification services. Both parents stated they would engage in services anyway to prove they were good parents.
In January 2017, the children were placed together in the same foster home. A.C. was deemed no longer medically fragile. As of February, the visits were going well and the children were able to separate from the parents after a five-minute warning without crying.
The jurisdictional and dispositional hearing was postponed several times because the autopsy report was not yet completed. The forensic pathologist was waiting on lab results and the cause of death was still pending. As late as the addendum report filed on May 3, 2017, DPSS was recommending no reunification services. The parents engaged in services anyway, including counseling and parenting. Visits were going well. The social worker commented the parents actively engaged in following up on the children’s plentiful medical issues, including those resulting from accidental injuries, and doctor visits while their children were in foster care, but had not displayed equal dedication to A.C.-G.’s medical care when he was placed with them. The following is summarized from the May 3 addendum, which contains a time line of medical and social worker contacts for A.C.-G. while in the parents’ care prior to December 17, 2016:
September 1, 2016—A.C.-G. was placed with the parents.
September 21, 2016—a social worker met with A.C.-G. at the DPSS office. He had a cut on his lower lip. No medical concerns were noted. He was no longer receiving services from the Inland Regional Center because at his August assessment he was meeting his developmental guidelines. A pediatric neurology appointment was made for October 5, but he did not show.[6]
October 6, 2016—a social worker conducted home visit. The parents noted no concerns regarding A.C.-G.’s health.
October 7 and 26, 2016—A.C.-G. did not show for appointments with his pediatrician.
November 18, 2016—well child appointment with pediatrician. Father noted A.C.-G. would not eat unless someone sits with him. If A.C.-G. is left to eat alone, he would binge eat, stuff his mouth, and swallow food whole. Father was directed to return in three months and to follow-up with specialist appointments.
November 22, 2016—emergency room visit for “right Torus fracture.” Father reported A.C.-G. fell off a toy car, was not in pain initially, but began to moan while in
his crib that night. A splint was applied and father was directed to follow-up with the pediatrician in one to two days. Father did not follow-up.[7]
November 23, 2016—Father called social worker to inquire if he could take the cousins to see their father in prison.
November 28, 2016—a social worker met with the parents and all three boys in the DPSS office. The parents noted A.C.-G.’s only problem is he does not want to chew his food. The injury to his arm was discussed, and the parents explained that he was outside playing and that he fell.[8] The child was not on any medication for his lung problems and had no trouble breathing. An appointment with the lung specialist was set for February 2017.
H. Pathology Versus CAN Reports; Competing Explanations; Changed Family Reunification Recommendation
In an addendum report filed on May 26, 2017, DPSS changed its recommendation regarding reunification services. DPSS asked the court to find true the allegations in the amended petition, offer reunification services to both parents, and order each of them to complete a 52-week child abuse batterer’s class and a psychological evaluation. The following summarizes the social worker’s descriptions of her vastly different telephone conversations with the forensic pathologist, Dr. Leticia Schuman, and the forensic pediatrician, Dr. Siccama, as follows.
May 19, 2017—Dr. Siccama stated she had talked to Dr. Schuman in February and explained her own findings. She explained A.C.-G.’s high blood sugar was caused by the catastrophic brain injury that caused an imbalance in his electrolytes. The forehead bruising was consistent with physical abuse. The mouth injuries were consistent with physical abuse and suffocation. The retinal hemorrhages were caused by inflicted head trauma.
May 22, 2017—Dr. Schuman was awaiting the neuropathology report. No skull fractures were noted. She stated: “‘nless I get any information from the neuro report, no real trauma to his body was noted.’” “‘I saw scattered bruises to the face, chest, legs that were non specific. They are from some kind of blunt force either by falling or by someone inflicting them, I can’t say how he got them.’” Dr. Schuman did state that some of A.C.-G.’s bruises would have begun to heal while he was on life support on December 17 through 20. She did not observe any subdural hemorrhaging, and stated it would still be there. Regarding the report of retinal hemorrhaging, Dr. Schuman stated the pattern described by the eye doctor is usually not seen in abusive head trauma, and that she noted only the left side with a few hemorrhages, not all over both eyes. Regarding the brain swelling, Dr. Schuman stated: “‘[T]hat can be caused by a lot of things, such as a lack of
oxygen, diabetes, it is very non specific no matter how they die.’” Dr. Schuman stated the high blood glucose levels may have been undiagnosed diabetes. “‘I am not saying that he was not abused, I just don’t have the evidence that a homicide has occurred.’” She stated a diagnosis of abusive head trauma requires three factors, not all of which are present here: (1) brain swelling; (2) hemorrhages; and (3) subdural hemorrhage. “‘I am not giving a final cause of death yet until I receive the neuro pathology report.’” Dr. Schuman reported having communicated with Dr. Siccama, whom she stated is convinced that A.C.-G. has abusive head trauma. “‘I cannot call it abusive head trauma’ . . . ‘if the [neuropathology] results come back negative, will see the cause being natural [DKA], unless it comes back with evidence of trauma, [I] will then have to reassess [my] findings.”
May 23, 2017—the social worker asked Dr. Schuman whether A.C.-G. would have died if the parents had sought medical attention sooner, given their description of his cold feet and their efforts to warm him in the bathtub and with a blow dryer. Dr. Schuman stated she did not know if the parents would have thought A.C.-G. was severely ill, but that “‘[i]f he had a diagnosis then likely there would have been a different outcome.’” When asked the symptoms of high glucose levels/ketoacidosis, she stated the child would have experienced increased urination, lethargy, feeling worn down and sluggish, and may be more irritable.
May 24, 2017—Dr. Schuman received the neuropathology report, and it indicated a minimal amount of subdural hemorrhage. This led to her finding that the cause of death was 100 percent ketoacidosis. Regarding the subdural hemorrhage, first, was it significant? In an adult, this amount of hemorrhage would not be, but in a young child it may or may not have contributed to his death, she cannot rule that out. Second, how did he get the injury? Dr. Schuman cannot say either way if it was from a fall or intentionally inflicted. The explanation given by the parents could be consistent with the small amount of subdural hemorrhage.
May 25, 2017—the social worker informed Dr. Siccama regarding the autopsy report. Dr. Siccama stated her assessment remains the same. A.C.-G. did not present as acidosis. The hemoglobin A1C test, which goes back three months, had normal levels and thus it is not possible to say the child had diabetes at the time of death. Ketoacidosis can be caused by blunt head trauma. The child’s injuries were consistent with inflicted trauma. Whether or not A.C.-G. had undiagnosed diabetes, the patterned bruises found on his body, specifically the handprint on his leg, nail marks on his chest, and blood in his nose and mouth were consistent with smothering or some kind of trauma. The retinal bleeding and subdural hematoma cannot be explained by diabetes. The injuries have no reasonable accidental or medical explanation, only abuse. The parents’ explanations do not line up with the child’s symptoms and injuries. Even if A.C.-G. had untreated diabetes (and this was not possible), the delay in obtaining treatment in favor of the home remedies the parents described is consistent with medical neglect.
At the end of May 2017, the children were removed from their foster home because of a medical condition or emergency not involving the children. They were placed together in a new home on or about June 1. At that time, A.C. was noted to have a purplish bruise on her forehead the size of a quarter, redness to her lower left eye, and a scrape on her right elbow. It was reported that A.C. was walking and fell. On the first day of the jurisdictional and dispositional hearing, county counsel informed the court that the children were being moved to yet another placement the following day, and that a CAN report was being prepared for one of the children.
In the final addendum report filed on June 7, 2017, the DPSS recommendation included the following:
“[DPSS] is requesting to provide Family Reunification Services as there is not enough evidence that they caused the death and the specific cause of death is not conclusively linked to [father] and [mother]. The parents are still at an age that they can have children as both the mother and father are young and can still learn and rehabilitate. They have been reported to attend to their children[’s] needs during visits and have always attended the family visits and have been reported to be caring and nurturing to their children.
“Additionally, [DPSS] requests that the parents complete a 52 week child abuse batterer’s class. Although the parents have reported to have completed a parenting class, and given the extent of the significant extensive injur[ies] that the child had, the 10 week parenting class does not encompass what a 52 week child batterer’s class would as a general parenting class does not address the dynamics of physical abuse and child neglect. It does not teach the coping skills and identification of crisis warning signs when a perpetrator is becoming overwhelmed and at risk of perpetrating physical abuse and or neglect.”
I.[i] Jurisdictional and Dispositional Hearing
The contested jurisdictional and dispositional hearing was held on June 12, 13, 14, 20, 21, and 27, 2017. The court noted it had previously issued a tentative ruling in the case—that if it made a true finding on jurisdiction, it would not follow the DPSS recommendation to order reunification services.
J. Testimony of Forensic Pathologist—Dr. Schuman[9]
Dr. Schuman is a forensic pathologist at the Riverside County Coroner’s Office. She has a bachelor of science degree in forensic science from Baylor University; a medical degree from the University of Texas, where she also did a four-year anatomic and clinical pathology residency; and she completed a one-year forensic pathology fellowship at the Bexar County Medical Examiner’s Office in San Antonio, Texas. Her training during the fellowship included determining child abuse, but her residency did not.[10] She had completed 1,146 autopsies; of the cases involving death by natural causes, one-quarter to one-third had a diabetes diagnosis. She had declared the cause of death to be from DKA about 20 or so times. She had performed autopsies on 20 to 30 children under the age of two; in one of these cases she concluded the cause of death was abusive head trauma, or shaken baby syndrome. Dr. Schuman had previously worked on approximately five to 10 cases involving abusive head trauma; worked on cases involving child abuse; testified in court regarding autopsies she had performed; and testified in court regarding things one would normally see in child abuse cases, including those involving head trauma, such as subdural and subarachnoid hemorrhaging. However, Dr. Schuman had not previously testified in court on autopsies she herself had performed involving child abuse or abusive head trauma, as she was doing in this case. Dr. Schuman later clarified that she had determined abusive head trauma on two or three child abuse cases on which she had done the autopsy, one of which had been in Riverside County, and had observed up to 10 autopsies in which that determination was made.
Dr. Schuman reviewed the results of the autopsy with her supervisor before she completed the report. When the report was finished, she reviewed the findings at a round table meeting with four other forensic pathologists. This is normally done in homicide cases or those involving children or infants. Dr. Schuman presented the case, including all reports and medical records. None of the pathologists disagreed with the findings. Two of the four initially believed it was not necessary to include blunt force head trauma as “another significant condition” because the indications of trauma were so minimal. However, the panel agreed to include trauma because the most experienced pathologist convinced the panel that “theoretically any amount of subdural hemorrhage no matter how minimal could have a negative effect.” None of the pathologists, including Dr. Schuman, had any specialized certification in the field of child abuse.
Dr. Schuman explained the basis for her conclusion that A.C.-G. died from DKA. His glucose level was extremely elevated—up to 626. This was so high that the glucose spilled over into the urine, resulting in a urine glucose level of 500. Dr. Schuman clarified that “[t]he only way that there would be glucose present in the urine is if the glucose in the blood was so high that the glucose spilled over into the urine.” Traumatic brain injury would not cause this. The increased glucose caused the child’s brain to swell.[11] A normal glucose level is under 126. A physical injury can cause a 100- or 200-point transient increase in the glucose level, as much as 300 rarely “n the literature,” but not up to the 600’s. DKA is the only explanation for a blood glucose level in the 600’s. Symptoms of diabetes include “weakness, lethargy, mood changes, confusion, increased hunger, increased thirst, increased urination. There might be vision changes, and there could also be tingling or numbness of the extremities.” However, there are no visual signs that could cause a doctor to check for diabetes.
A.C.-G.’s urine also had ketones, which are acidic molecules. Normally there should be no ketones in the urine, but A.C.-G.’s level was about 80, which is characteristic of DKA. A ketone level of 80 from fasting or starvation would require a
prolonged period of multiple days to weeks, not just an overnight fast. A.C.-G. had an electrolyte imbalance, also seen in DKA. He had an increased anion gap, which is characteristic of DKA. The anion gap is the calculated difference between positively and negatively charged molecules in the body. Ketone molecules are negatively charged. So an increased anion gap means an increase in negatively charged ketone molecules. Physical injury would not cause ketones nor the consequent increase in the anion gap.
A diagnosis of DKA requires a glucose level higher than 250, at which point the blood becomes acidic from the ketones building up. DKA is a complication of diabetes, and happens either when a person has not yet been diagnosed with diabetes and allows their glucose level to climb, or are not being treated or not taking their medication properly. Dr. Schuman later clarified that the 250 number “is classically assigned to adults. . . . [¶] A glucose of 200 or greater is abnormal in a child.” A diagnosis of DKA in a child can be made with a glucose of 200 if the other laboratory results and symptoms, “the whole clinical picture,” are consistent.[12] Dr. Schuman explained that A.C.-G.’s body could have continued making insulin for the 14 or 15 hours between when the insulin drip was removed and the time of death. This is because insulin can take 12 to 24 hours to clear from the body. In addition, A.C.-G.’s laboratory results showed liver dysfunction, and about 60 percent of insulin is broken down in the liver, thus contributing to his lower glucose levels even after removal of the insulin drip. Dr. Schuman did not think it surprising that A.C.-G.’s blood glucose had been reduced so quickly from the 600’s to 192 after being given an insulin drip during transport to LLUMC. This is because some people respond more quickly to insulin than others. She stated a similar opinion regarding why A.C.-G.’s urine tested at a level of 80 for ketones at HVMC, but zero four hours later at LLUMC. Dr. Schuman also explained: “[A] urine test only is able to identify one ketone. And DKA there are three main types of ketones that are produced. The ketone that is detected in the urine test is not the ketone that is produced the most in DKA. So the urine test is limited in the fact that it does underestimate the total ketones that are present. The only way to detect the other two ketones are to do specific tests in the blood to look for them . . . . I didn’t see that that was done. [¶] . . . [¶] . . . So there may be more. There may be more ketones than it’s showing, but it’s only representing one ketone.”
In young children, the first diagnosis of diabetes is often when they present with DKA. “[T]he symptoms might be hard to recognize, or the child might not be able to express that they are having these symptoms.” The jump from diabetes to DKA cannot be caused by trauma, only from lack of treatment. Dr. Schuman testified that “[i]t’s not debatable [that blunt force trauma can cause DKA]. There is no evidence of that that’s ever been shown. There’s no biochemical pathway that exists to explain how stress or trauma causes [DKA].” The deputy coroner’s report indicated that the investigating detective said the parents saw A.C.-G. exhibiting symptoms 30 days prior to his death that included weakness, lethargy, not wanting to play, and episodes of cold feet.
A hemoglobin A1C blood test is an average number of glucose attached to hemoglobin over a three-month period. A.C.-G.’s AIC level at the hospital was at the very high end of the normal range. Blood drawn during the autopsy was in the normal range. This is not conclusive that A.C.-G. did not have diabetes in the month prior to his death, because the A1C number reflects a three-month average, which could include two months of normal glucose levels.
Dr. Schuman testified that the clinical setting at the LLUMC pediatric intensive care unit was not an appropriate clinical setting in which to evaluate whether A.C.-G. had diabetes. This is because “[h]e’s had treatment for three days. Organs are damaged. He’s not getting glucose normally. It’s being maintained with these maintenance fluids.” The maintenance fluids are an intravenous drip intended to maintain a stable amount of electrolytes, and includes a small amount of glucose.
Dr. Schuman testified that the damage to A.C.-G.’s liver and the organ shutdown was caused by the brain swelling, which was in turn caused by DKA.
Dr. Schuman discussed the various bruises on A.C.-G. noted in the CAN report. In the autopsy she did not note any abrasions on the lips and gums. She viewed the photographs of the child’s mouth from the CAN report, which included a plastic tube protruding from the mouth, medical tape over the upper lip, and some discolored areas around the tube. Dr. Schuman testified the abrasions could have come from the intubation process, and that she sees such abrasions fairly frequently on persons who are forcefully intubated. The two or three bruises on A.C.-G.’s forehead could have been caused by him falling twice on the tile floor, as claimed by the parents. The falling could have been caused by A.C.-G.’s diabetes symptoms as described by the parents.
The autopsy showed no evidence of abusive head trauma. The subdural hemorrhaging (between the brain and a thin membrane called the dura) was thin and patchy. Normally in abusive head trauma, the subdural hemorrhage is much more substantial. Typically one would also see a subarachnoid hemorrhage (between the brain and a membrane directly atop the brain) and contusions on the surface of the brain. A.C.-G. did not have these, and had no skull fractures. The conclusions of the neuropathology report played an important role in the conclusions of the autopsy report. The neuropathology report dated the subdural hemorrhage to be three to five days prior to A.C.-G.’s death on December 20, 2016. Dr. Schuman did list “blunt force head trauma” as an “other significant condition” in the autopsy report. This meant that such trauma “may have been contributory to the person’s health in a negative way. It’s not what killed him. It’s not the cause of death, but it did have a negative impact on the person.”
Dr. Schuman testified that the minimal to moderate hemorrhaging on A.C.-G.’s retinas did not indicate abusive head trauma. Relying on the examination performed by the ophthalmologist in the hospital, Dr. Schuman described the hemorrhages as, on the right eye, very few and confined to the back of the eye, and on the left eye, few to moderate and confined to the back of the eye. Normally in abusive head trauma the hemorrhages of both eyes are either numerous or too numerous to count, and would extend beyond the back of the eye to the sides. Also absent were splitting and folding of the retinal layers and retinal detachment, which are usually present in abusive head trauma. “[T]he retinal hemorrhages that were there are not characteristic of what is the pattern, the number, the distribution that is described in abusive head trauma.” Retinal hemorrhaging on the posterior pole is more consistent with accidental trauma. The amount and extent of retinal hemorrhaging that A.C.-G. suffered can be caused by brain swelling. Brain swelling is a well-known complication of DKA. In Dr. Schuman’s opinion, the retinal hemorrhages that A.C.-G. suffered were in fact caused by DKA.
Dr. Schuman testified she found four small bruises on A.C.-G.’s chest during the external examination, but no internal injuries. The bruises were nonspecific, so she could not say one way or the other whether they were evidence of abusive trauma. CPR could have caused the bruising. The bruises were not on the center of the chest, but in children, the larger hands of an adult performing CPR on the child’s smaller chest can result in bruises not in the center of the chest. Dr. Schuman testified that, after she performed the autopsy on December 21, 2016, “what stood out was the lack of injuries that would be more consistent, more characteristic of . . . nonaccidental trauma or abusive head trauma.”
Dr. Schuman testified that the radial fracture to A.C.-G.’s wrist was most commonly caused by falling on an outstretched hand.
Dr. Schuman testified regarding each of the CAN report’s conclusions. She disagreed with the statement in the CAN report that “‘[A.C.-G.’s] cutaneous injuries are consistent with child physical abuse.’” Dr. Schuman stated her opinion that “the cutaneous injuries or bruises on the skin cannot be called child abuse versus accidental injury versus medical intervention.” She also disagreed with the statement “‘the history provided to explain the prior radial fracture is not consistent with the injury.’” Her opinion was that the transverse radial fracture “meaning straight across—there’s no misalignment at all,” could be consistent with falling off a small bicycle-type toy and so one could not determine whether the injury was caused by physical abuse. Dr. Schuman disagreed with the statement that “‘there is currently no reasonable, accidental, or medical explanation’” for A.C.-G.’s “‘recent severe compromise.’” This is because, in her opinion, “the medical records, all the laboratory findings, they are consistent with the diagnostic of [DKA].” The supporting lab findings include “[t]he severity of the hyperglycemia, the glucose present in the urine, the ketones present in the urine, the low sodium, potassium, chloride, bicarbonate, the metabolic acidosis, the elevated anion gap.” She disagreed with the statement that “‘[h]e presented with hyperglycemia, however did not have any other criteria to meet the diagnosis of [DKA].’” Specifically, “[h]is laboratory findings all meet the criteria for diagnosis of [DKA].” Dr. Schuman partially disagreed with the sentence that “‘[t]he hyperglycemia was likely sequela of the catastrophic brain injury.’” She explained: “I can’t say that the—he didn’t have some component of stress hyperglycemia. However, again, it wouldn’t elevate the glucose up to 626, and he wouldn’t have all of the other lab findings that are diagnostic of [DKA].” Regarding the sentence that “‘[A.C.-G.’s] oral injuries raise the suspicion of suffocation,’” Dr. Schuman responded that she did not see any oral injuries during the autopsy, but based on the photograph included in the CAN report, the discolorations or injuries surrounding the tube in his mouth “would be consistent with intubation trauma.”
K.[i] Testimony of Forensic Pediatrician—Dr. Siccama
Dr. Siccama testified that she has been a forensic pediatrics fellow at LLUMC since September 1, 2016. After medical school, she did a three-year pediatric residency at LLUMC, and then worked there as a pediatrician for nine years. As a pediatrician, she saw many abused children, both inpatient and outpatient. For two years prior to the fellowship, she worked once per week with a child abuse team at the Children’s Assessment Center as part of her clinical work. The pediatric forensics fellowship is three years of further training in the area of child abuse or pediatric forensics, and consists of two years of clinical training and one year of research. Dr. Siccama has taken care of hundreds of children in the hospital with a DKA diagnosis. She has authored about 100 to 150 CAN reports. These are reviewed by another, more experienced, child abuse doctor. In this case, a board certified forensic pediatrician, Dr. Amy Young, also examined the child and reviewed the CAN report. Dr. Young was in agreement with the report. In preparing the CAN report, Dr. Siccama spoke with the pediatric intensive care staff and with the ophthalmologist regarding the photographs of A.C.-G.’s retinas. She also discussed her findings at a multidisciplinary team meeting with law enforcement and DPSS workers, none of which expressed disagreement with the CAN report.
A diagnosis of DKA includes several facets. One is hyperglycemia. Another is anion gap acidosis. Another is a hemoglobin A1C above 6.5,[13] a body PH less than 7.3, and the presence of persistent ketones in the blood and urine. She typically sees DKA in children with type 1 diabetes. Symptoms in young children typically include vomiting, dehydration, weight loss, excessive hunger and thirst, and lethargy. The primary symptom in young children is vomiting. Symptoms typically appear over a period of weeks, not a few hours. Most diabetics Dr. Siccama has seen have hemoglobin A1C levels greater than nine. If a patient has normal blood glucose of 100 for two months, then elevated glucose at 300 to 400 for just the last month, the A1C would still be over 6.5, because that corresponds to an average glucose level of about 200 to 250. Dr. Siccama defended her statement in the CAN report that “‘[t]here was not a true anion gap metabolic acidosis.’” The initial blood tests at HVMC showed an anion gap of 13. An anion gap of 14 and above would be concerning, or in the grey zone. With DKA, a gap of 16 or greater is more typical. The first chem stick that was done when A.C.-G. entered the emergency room showed a glucose level of 250. He also had a comprehensive metabolic panel that showed a glucose level of 221 and no anion gap. The two basic metabolic panels that showed glucose in the 600’s are typically done by a pinprick in the finger or toe, which yields a smaller sample of blood, and run on a machine at bedside. These are called point of care tests and are not as accurate as the comprehensive metabolic panel, which is an intravenous sample that is sent to a laboratory. A glucose level greater than 250 is needed to diagnose DKA. Dr. Siccama testified that the glucose level of 221 when A.C.-G. was first seen at HVMC could be explained by his catastrophic brain injury, not by DKA. She also explained that the two glucose levels in the 600’s both were done using the less accurate bedside pinprick method, and “were not consistent with his clinical picture.”[14]
Regarding the ketone level of 80 in A.C.-G.’s urine, the normal is to not have any ketones in a well-hydrated person. Dr. Siccama had seen ketone levels greater than 80 in children who have come into the hospital dehydrated after not having eaten or having vomited for 12 or 24 hours. The ketones had disappeared from A.C.-G.’s urine after a second test four hours later at LLUMC, after only 40 minutes of being on the insulin drip on the ambulance ride over. Dr. Siccama testified that children with DKA have ketones in their urine for “days and days and days, even after starting insulin treatment.”
An elevated sugar level of 200 is consistent with a catastrophic brain injury. A.C.-G. was placed on an insulin drip when the LLUMC transport team came to HVMC around 3:20 p.m. This was to maintain his sugars, to help healing, and to prevent further damage to his brain. A.C.-G. was taken off the insulin drip about 15 hours prior to his death, and he was able to maintain his low glucose levels of between 90 and 120. If he had diabetes, his glucose levels would have gone up without the insulin. Once A.C.-G. got to LLUMC, medical personnel considered the hemoglobin A1C level of 5.7, saw how his sugars were responding to the insulin drip, and rechecked his urine to find no ketones in it. Because of this, they were no longer considering a diagnosis of DKA or diabetes. After looking at the X-rays, imaging of A.C.-G.’s head, the laboratory results, and the examination of A.C.-G., and even keeping in mind the history that was provided by the parents through the investigating detective, “[t]he diagnosis of diabetes or DKA did not make sense.” Dr. Siccama stated there was no medical diagnosis, including diabetes, that made sense from the parents’ description of A.C.-G. being lethargic and having cold feet, but having a renewed sense of energy when his feet were warmed.
Dr. Siccama testified that the emergency room physician who had treated A.C.-G.’s wrist facture on November 22 had misinterpreted the X-ray as showing a buckle fracture. However, the radiologist who reviewed the X-ray identified it as a transverse fracture. A buckle fracture usually comes from a person falling and putting out their arm to catch themselves. This compresses the bone on one side, rather than causing a fracture all the way through the bone. A transverse fracture goes all the way through the bone. It is typically caused by “a direct force, so some sort of blunt force directly to the bone or a forceful, violent jerking of the wrist bending, so a bending of the wrist.” Falling off a small bicycle toy would not have generated enough force to cause such a fracture.
Dr. Siccama testified that A.C.-G.’s retinal hemorrhages were not caused by diabetes. There can be retinal hemorrhages in children caused by diabetes, but they do not look like those here. The hemorrhages would not be so widespread as here. In addition, they are more typical in the adult population of diabetics, not often in children. In addition, studies have shown that brain swelling “cannot cause hemorrhages like this.” In Dr. Siccama’s opinion, the retinal hemorrhages were caused by trauma.
Dr. Siccama testified that A.C.-G. had a bruise on his left cheek or chin and another on the right side of his chin. They are consistent with someone grabbing the child’s face. Studies show that bruises on the jaw or cheek are usually associated with physical abuse and it is “a very rare area to bruise accidentally.”
Dr. Siccama testified that A.C.-G.’s “brain was very, very swollen,” so that it was “hard to tell . . . how much bleeding we would have seen had he not had the swelling, but there was blood there, and that indicates some sort of significant trauma.” In addition, a brain injury can be present without a skull fracture.
L. Testimony of Social Workers—Live and Stipulated
The supervising social worker testified that, even if the court were to find the parents caused A.C.-G.’s death, DPSS believed it would be in the best interests of the children to provide the parents with reunification services, specifically including a 52-week batterer program. This is because: (1) the children showed no signs of abuse; (2) the parents were still young enough to have more children; (3) the parents were doing well with the children during supervised visits; (4) the children were positively attached to their parents; (5) the parents had the ability to benefit from services and immediately engaged in the services when they were offered; (6) the parents were cooperative with DPSS; and (7) the parents diligently followed up regarding the children’s medical care while they were in foster care.
The court also had before it the stipulated testimony of three social workers. Ms. Emily Gumucio testified that she first met with the parents, the two cousins, and S.C. in the DPSS offices on November 28, 2016, just three weeks before A.C.-G. stopped breathing. She conducted a “diaper check” of A.C.-G. and saw no marks or bruises. The family was affectionate and comfortable with one another, and mother properly intervened when one child pushed another and soothed the pushed child. The parents were appropriately informed about the children’s medical needs, and provided her with medical paperwork regarding A.C.-G.’s fractured arm and an appointment with a specialist for his lungs. The children were dressed appropriately. Ms. Gumucio did not observe any indications that the family required services.
Ms. Lizette Maciel, a supervising social worker, testified that she had participated in a Team Decision Making (TDM) meeting with the parents regarding placement of the two cousins. The parents expressed their desire to have the cousins grow up with their own children, and stated that family is very important to them. The parents remained polite despite their frustration with delays in placing the cousins with them. None of the TDM participants thought the parents required supportive services because their own children appeared to be bonded with them and doing well in their care.
Ms. Gloria Gutierrez testified that she went to the family’s home on August 23, 2016, before the cousins were placed with the parents. The cousins had begun making unsupervised visits to the home and had progressed to overnight and weekend visits. Ms. Gutierrez observed the parents sharing parenting duties for their infant daughter, A.C., while interacting with her during the interview. They expressed their desire to provide the cousins with a loving and stable home. The parents appeared to be responsible and loving, and Ms. Gutierrez had no concerns regarding the placement or the home, and described the home as “a calm household.” She saw that the parents had a healthy relationship with each other, appropriate parenting skills, and were honest and forthcoming in their communications with her. Ms. Gutierrez again visited the home on September 21, 2016, when all three boys were home, and noted the parents redirected a dispute between two of the boys over an item so that they shared. Ms. Gutierrez had multiple contacts with the parents regarding visitation, health, and doctor visits for A.C.-G., and had no concerns.
M. Second Amended Petition
On June 27, 2017, DPSS filed a second amended petition, slightly changing the b-1 allegation, adding a b-2 allegation that the parents had neglected A.C.-G.’s medical needs and caused his death from DKA, and adding an f-1 allegation stating: “The children’s parents caused the death of another child—the paternal cousin, [A.C.-G.] through abuse or neglect.”
N. The Jurisdictional and Dispositional Rulings
At the conclusion of testimony, and after hearing extensive argument from counsel for each of the parties, the court found by clear and convincing evidence that A.C.-G. did not die from DKA, but rather from “significant physical abuse [that] occurred while mother and father were attempting to potty train [A.C.-G.].” The court found true the allegation under section 300, subdivision (b)(1), that the parents caused the death of A.C.-G. by blunt force trauma. The court found not true the allegation under section 300, subdivision (b)(1), that the parents neglected A.C.-G.’s medical needs, which resulted in his death from DKA. The court found true the allegation under section 300, subdivision (f), that the parents caused A.C.-G.’s death through abuse or neglect.
The court then heard argument from the parties regarding disposition. In explaining its order, the court stated it took into consideration the following factors favorable to the parents: their willingness and ability to benefit from reunification services, and their prior history. However, the court found overwhelming the factors unfavorable to the parents: the gravity of the offense, the young age and consequent defenselessness of the children, and the parents’ failure to admit to medical personnel that they caused A.C.-G.’s injuries, which the court said reflected a lack of courage and a failure to “risk their life to save someone else’s life, they didn’t do that.” The court concluded the parents had not met their burden to establish by clear and convincing evidence that providing them with reunification services would be in the children’s best interest. The court denied reunification services and set a section 366.26 hearing for October 23, 2017. Visitation was to remain as previously ordered.
This writ proceeding followed.
IV. Discussion
Mother and father both argue the court erred when it: (1) found true the allegation that they caused A.C.-G.’s death; and (2) given the true finding on the section 300, subdivision (f), allegation, denied them reunification services under section 361.5, subdivisions (b)(4) and (c), because reunification services would have been in the children’s best interests.
A. The Jurisdictional Finding
Here, the court found true the allegation in the second amended petition that “[t]he children’s parents caused the death of another child—the paternal cousin, [A.C.-G.] through abuse or neglect.” Section 300, subdivision (f), provides: “A child who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court: [¶] . . . [¶] . . . The child’s parent or guardian caused the death of another child through abuse or neglect.” This jurisdictional finding must be made by a preponderance of the evidence. (Los Angeles County Dept. of Children & Family Services v. Superior Court (2012) 211 Cal.App.4th 13, 20.)
The jurisdictional finding was also the basis for the juvenile court’s finding under section 361.5, subdivision (b)(4), which states: “Reunification services need not be provided to a parent or guardian described in this subdivision when the court finds, by clear and convincing evidence, any of the following: [¶] . . . [¶] . . . That the parent or guardian of the child has caused the death of another child through abuse or neglect.” As the statute provides, the juvenile court must make this finding by clear and convincing evidence.
The parents argue sufficient evidence does not support the court’s finding that it need not provide reunification services under section 361.5, subdivision (b)(4), because the finding is not supported by sufficient evidence—specifically, the autopsy report and testimony by Dr. Schuman, the forensic pathologist, are more credible than the CAN report and testimony by Dr. Siccama, the forensic pediatrician.
We are guided by the following rule: “The issue of sufficiency of the evidence in dependency cases is governed by the same rules that apply to all appeals. If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we uphold these findings. [Citation.] We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or evaluate the weight of the evidence. Rather, we draw all reasonable inferences in support of the findings, view the record most favorably to the juvenile court’s order, and affirm the order even if other evidence supports a contrary conclusion. [Citations.]” (In re Christopher L. (2006) 143 Cal.App.4th 1326, 1333.)
Here, the court had before it the testimony of two physicians, each qualified to provide expert testimony in their own field of practice, who emphatically disagreed on the cause of A.C.-G.’s death. Each supported their conclusions with scientific evidence and similarly disputed the conclusions of the other. In explaining its decision, the court noted that it considered more than which physician was more credible. It also considered the following. First, the court found the photograph of the bruises on A.C.-G.’s forehead “very, very disturbing,” and noted that it clearly appeared to be three separate bruises, with different colors, aspects and locations. Second, other than the parents’ own descriptions, there is no evidence that A.C.-G. showed symptoms of diabetes prior to December 17. Specifically, at his well child checkup on November 18, A.C.-G. showed no signs of diabetes symptoms, and father did not describe any. Neither did A.C.-G. show any signs of physical abuse. Further, at the social worker appointment on November 28, father again described some eating issues A.C.-G. was having, but not any symptoms of diabetes. Third, the court took issue with what it described as the parents’ changing description of how A.C.-G. fractured his arm. The delivered service log for A.C.-G.’s last in-person visit with the social worker, Ms. Gumucio, states that “the foster parents explained that he was outside playing and that he fell.” The court compared this with the explanation the parents gave later to the social worker, after A.C.-G. was admitted to the hospital, that A.C.-G. had fallen off a tricycle. The court believed that the report of falling outside while playing is inconsistent with the report of falling off a tricycle. Fourth, the neuropathology report dates the “[a]cute subdural hemorrhage” at three to five days prior to death, which would put it right on the day A.C.-G. was admitted to the hospital. Fifth, the court considered the family’s overwhelming situation, in that the parents took placement of two small children when they already had two small children; that A.C.-G. was somewhat delayed because he was born addicted to methamphetamine; and that potty training can be a risky time for child abuse.
Sixth, although both physicians presented well, the court considered that Dr. Schuman had made a diagnosis of abusive head trauma in only two or three cases, only one of which was in Riverside County, and had never testified in court as to abusive head trauma. The court considered that Dr. Siccama had much more experience in determining whether head trauma was accidental or inflicted, including her practice as a pediatrician, and had testified in court as to such matters. Seventh, Dr. Siccama was emphatic that A.C.-G. did not die of DKA, but instead died of abusive head trauma that caused brain swelling. In comparison, Dr. Schuman, stated she could not rule out that abusive head trauma occurred. The court believed Dr. Schuman may have adjusted her testimony to include that possibility only because the two most senior pathologists at the round table suggested abusive head trauma could have had an impact. In addition, he believed Dr. Schuman may have “paint[ed] herself into a corner.” Dr. Schuman first testified that she relied on the laboratory reports for two key indicators of DKA: the ketone level of 80 and the glucose levels of 600. However, at the end of her testimony she stated that, even if these high glucose levels were inaccurate, she would stick with the conclusion that A.C.-G. had died of DKA. The court found that the two elevated glucose readings were consistent with each other only, but not with “every other reasoning.”
Eighth, the court took into account that the 600-level glucose readings significantly declined and the 80 ketone reading disappeared just a few hours after those laboratory tests were taken, combined with the reports that A.C.-G. simply had no history of diabetes symptoms up until about one week before his death. Ninth, the court considered that A.C.-G. suffered a transverse fracture rather than a buckle fracture, which supports the physical abuse scenario rather than the accidental fall scenario. Finally, the court stated that Dr. Schuman simply accepted as true the problematic and inconsistent history given by the parents and gave it undue weight in determining the cause of death.
In sum, the court ultimately accepted Dr. Siccama’s testimony as “the more logical, more reasoned, and the better-explained analyses and opinion as to how the child dies.” The juvenile court is the trier of fact; it, not the appellate court, determines the credibility of witnesses, resolves conflicts in the evidence, and evaluates the weight of the evidence. (In re Christopher L., supra, 143 Cal.App.4th at p. 1333; see also In re Sheila B. (1993) 19 Cal.App.4th 187, 199.) The juvenile court’s determination that the parents caused A.C.-G.’s death by abuse or neglect is amply supported by substantial evidence.
B. Reunification Services
We now turn to the more difficult determination on the trial court’s plate. Each parent argues the court abused its discretion when it denied them reunification services and set a section 366.26 hearing, despite the finding that they caused A.C.-G.’s death. This is because, the parents argue, they presented clear and convincing evidence that it is in the children’s best interest for their parents to receive services and the opportunity to bring the children back into the family home from yet another in a series of foster care placements.
Whenever a child is removed from the custody of a parent or guardian, subdivision (a) of section 361.5 directs that the court “shall” offer the parent or guardian reunification services, unless it finds by clear and convincing evidence that one or more exceptions or bypass provisions described in subdivision (b) apply. (In re Ethan N. (2004) 122 Cal.App.4th 55, 63-64 (Ethan N.); In re Angelique C. (2003) 113 Cal.App.4th 509, 516.) The juvenile court here found that mother and father were each a parent described in subdivision (b)(4). This exception applies when the parent or guardian seeking reunification services has “caused the death of another child through abuse or neglect.” (§ 361.5, subd. (b)(4).) As discussed ante, the court specifically found that mother and father caused the death of A.C.-G.
Section 361.5, subdivision (b)(4), “evidences the Legislature’s recognition that some situations are so extreme as to require extraordinary caution in recognizing and giving weight to the usually desirable objective of family preservation. . . .when child abuse results in the death of a child, such abuse ‘is simply too shocking to ignore’ in determining whether the offending parent should be offered services aimed at reunification with a surviving child. ‘The fact of a death and a subsequent petition . . . arising out of that death simply obliterates almost any possibility of reunification . . . .’” (Ethan N., supra, 122 Cal.App.4th at p. 65, citing In re Alexis M. (1997) 54 Cal.App.4th 848, 850-851.)
“The Legislature has, nevertheless, left open a ‘tiny crack’ to the parent who has been responsible for the death of his or her child. [Citation.] Subdivision (b)(4) of section 361.5 can be overcome by a showing, made with clear and convincing evidence, that reunification would be in a surviving child’s best interest. [Citation.]” (Ethan N., supra, 122 Cal.App.4th at p. 65.)
When, as here, the court finds that a parent or guardian is described in section 361.5, subdivision (b)(4), the parent or guardian has the burden of affirmatively demonstrating that reunification with the child—and therefore offering reunification services to the parent or guardian—would be in the child’s best interest. (Ethan N., supra, 122 Cal.App.4th at p. 66; § 361.5, subd. (c).) When the party with the burden of proof appeals, contending the trier of fact erred in concluding that party failed to meet his or her burden, the question on appeal “becomes whether the evidence compels a finding in favor of the appellant as a matter of law.” (In re I.W. (2009) 180 Cal.App.4th 1517, 1528.)
The court in Ethan N. listed four factors it said juvenile courts should consider in determining whether reunification would serve a child’s best interest, particularly when the court has found that the parent seeking reunification has caused the death of another child through abuse or neglect. (§ 361.5, subds. (b)(4), (c).) These are: (1) the “parent’s current efforts and fitness as well as the parent’s history,” (2) the gravity of the problem that led to the dependency, (3) the strength of the relative bonds between the child and the parent and the child and his or her caretakers, and (4) the child’s need for stability and continuity. (Ethan N., supra, 122 Cal.App.4th at pp. 66-67.)
It should be noted, however, that the factors listed in Ethan N. are not exhaustive. It has long been recognized that the concept of a child’s best interest “is an elusive guideline that belies rigid definition. Its purpose is to maximize a child’s opportunity to develop into a stable, well-adjusted adult.” (Adoption of Michelle T. (1975) 44 Cal.App.3d 699, 704.) Thus, additional factors may bear upon the court’s best interest finding, depending upon the circumstances of the case.
The court has broad discretion in determining whether the parent or guardian has met this burden and therefore whether to offer the parent or guardian reunification services under section 361.5, subdivision (c). (In re Angelique C., supra, 113 Cal.App.4th at p. 523.) An appellate court may not disturb the court’s best interest determination absent a showing of an abuse of discretion. (Id. at pp. 523-524.) An abuse of discretion is shown when there is no substantial evidence to uphold the findings. (Ethan N., supra, 122 Cal.App.4th at pp. 64-65.)
C. Parents’ Current Efforts/Fitness and History
This portion of the Ethan N. analysis leans in the parents’ favor. Both parents have regularly visited the children and actively participated in their medical care. Both are voluntarily engaging in reunification services. In fact, the social worker testified that both parents followed up and began engaging in the parenting classes and counseling without delay once DPSS decided to provide them. The social worker recalled that, although at first “the parents really weren’t sure why they were in counseling,” they participated regularly and she had received reports that father was benefiting from counseling. Both have tested negative for drugs and neither has a criminal history, other than father having a 10-year-old arrest for driving under the influence. The social worker testified that, based on her review of the case and consultation with the other social workers involved, there had been no concern whatsoever about the state of the parents’ home, or their physical or emotional treatment of the cousins or the children. The stipulated testimonies of three of those social workers contain descriptions of the parents as devoted to family, responsible, loving, having appropriate parenting skills, and maintaining a “calm household.” Once the children entered foster care, both parents were avidly engaged with their children’s health and medical treatment. The social worker described the parents as “zealous” in following up to make sure the children received the medical treatment they needed. S.C. had issues with regard to an injury to his penis caused by a zipper, a rash, and a bruise to the left side of his eye. A.C. entered foster care while still suffering from Kawasaki disease, which was later resolved, and initially was considered to be medically fragile. A.C. required treatment with aspirin and a follow-up echocardiogram. She also received a bruise on her forehead and a body rash, both of which the parents discovered during a visit and caused the visit to end early so the foster parent could take A.C. to the emergency room. There were a number of incidents in which A.C. had bruises, including a bruise on the left side of her forehead and underneath her left eye that the social worker discovered when removing her from a foster placement. The social worker described the parents as concerned, even impatient, in urging medical care for A.C. When counsel asked the social worker whether she would have concerns that the parents would not follow-up with the children’s medical care if they regained custody, she testified: “Based on their promptness and their calling me to address these issues, no.”
D. Gravity of the Problem Leading to the Dependency
This factor of course is the overarching reason for denying reunification services. The evidence credited by the trial court establishes that one or both parents physically abused A.C.-G. and caused his death.
E. Strength of Child/Parent Bond Versus Child/Caretaker Bond
This factor leans heavily in the parents’ favor. The few reports describing the regular visits show the parents attended all twice-weekly supervised visits, were caring and nurturing to the children, acted appropriately, and attended to the children’s needs. S.C. was noted to be very attached to his parents and initially had a difficult time ending the visits; mother was noted to be emotional at the end of the visits, but the family eventually learned to separate peacefully with a five-minute warning. The social worker testified that by all reports the parents were bonded with the children and the children were bonded with the parents.
At the time of the disposition hearing, the children had no bond with any caretaker to speak of. The record indicates the two children had been in a total of six placements between them—two separate placements at the start of the dependency, a third placement together from January 17 to May 22, respite care from May 22 to about June 1, a fifth placement from about June 1 to June 12 (which resulted in a child abuse investigation), and a sixth placement beginning on June 12, the first day of the jurisdictional and dispositional hearing.
F. Children’s Need for Stability and Continuity
This factor weighs in the parents’ favor, as the children had gained zero stability and continuity in foster care, but had previously experienced that in their parents’ home, as evidenced by the social workers’ reports, in the delivered service logs, and in their stipulated testimony. The children had been well taken care of, A.C.’s medical needs had been attended to, the children were well-bonded to their parents, and no problems had been noted in the glowing reports of the family’s life. However, as the court pointed out, these very young children have a right to be protected from the potential of abuse and neglect that the parents displayed in their care of A.C.-G. This is especially so as A.C. approaches the age at which potty training becomes necessary.
G. The Final Analysis
As the court noted when it explained the rationale for its decision to deny reunification services, it had no doubt that the parents love their children and had been good parents up until the events that caused this dependency. The court noted the parents’ amenability to undertaking reunification services, their youth and apparent ability to complete the services, and the lack of any negative factors in their history. However, the court stated it could not overlook the gravity of the offense, the explosive anger that must have caused the injuries to A.C.-G., and the fact that these young children were by their nature bound to “do stuff,” “create problems all of the time,” cry, “defecate and urinate all over the place where they are not supposed to,” and were at an age where they would create frustrating situations for the parents. The court considered the children’s young ages in terms of their defenselessness and inability to report both future abuse and any past abuse that may have occurred in the home of which DPSS was unaware.
The court also stated that it took into consideration its belief that the parents tried to protect themselves by failing to confess to what actually happened to A.C.-G. when questioned by medical personnel. The court considered that the parents placed their fear of arrest over their duty as parents to accurately describe the events leading up to A.C.-G.’s hospital admission.
Finally, the court explained that, while it might be true that the parents would benefit from reunification services such that they would never lose their temper and explosively abuse their own children, it could not find so by clear and convincing evidence.
After a thorough review of the record, we conclude that the evidence would have supported a decision by the juvenile court to either grant or deny reunification services to the parents. The parents’ positive history and the obviously bonded relationship between the parents and the children, the parents’ willingness and apparent ability to benefit from reunification services, the fact that they can have more children, the lack of any alternative bond between the children and their latest in a series of caregivers, and the parents’ attentiveness to the medical needs of their children all point in favor of reunification services. Had the juvenile court chosen to grant services, it appears to us that it would not have been an abuse of discretion. However, the decision that the court did make on this issue is supported by substantial evidence and cannot be said to be an abuse of discretion. This is because the parents did in fact cause the death of A.C.-G. through abuse, their own children are still very young and vulnerable to similar abuse, and in fact A.C. will herself be approaching the age of potty training that could have sparked the abuse that A.C.-G. suffered. As stated in the case law cited ante, the Legislature left open a very tiny crack to these parents to show the court by clear and convincing evidence that their children’s best interest would be served by granting the parents reunification services and potentially the opportunity to bring the children back into their home. We cannot say the court abused its discretion when it determined the parents did not meet this heavy burden. We cannot say that “the evidence compels a finding in favor of the [parents] as a matter of law.” (In re I.W., supra, 180 Cal.App.4th at p. 1528.) For these reasons, we affirm the court’s order denying reunification services and setting a section 366.26 hearing at which it will consider terminating their parental rights.
V. Disposition
The petition is denied.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
[u]RAMIREZ
P. J.
We concur:
SLOUGH
J.
FIELDS
J.
[1] Section references are to the Welfare and Institutions Code except where indicated otherwise.
[2] Father later disclosed to law enforcement that he had quit his job about one month prior to care for the cousins and children.
[3] Hospital records show A.C. was diagnosed on December 2, 2016. “Kawasaki disease causes inflammation in the walls of medium-sized arteries throughout the body. It primarily affects children. The inflammation tends to affect the coronary arteries, which supply blood to the heart muscle.” <http://www.mayoclinic.org/diseases-conditions/kawasaki-disease/home/ovc-20259782>(as of Oct. ___, 2017). It is a “leading cause of acquired heart disease in children, but with effective treatment, only a small percentage of children have lasting damage.” “For a very small percentage of children who develop coronary artery problems, Kawasaki disease is fatal, even with treatment.” <http://www.mayoclinic.org/diseases-conditions/kawasaki-disease/symptoms-causes/dxc-20259787>(as of Oct. ___, 2017).
[4] The social worker reported that the parents “self-reported that the child was supposed to have a follow up appointment and never did.” The visit summary from the emergency room, dated November 22, 2016, recommended keeping a splint on the arm for three weeks and following up with the pediatrician in the next one or two days. The printed form also advised: “Follow Up with your doctor in one week, or as advised by our staff, to be sure the bone is healing properly.”
[5] Dr. Siccama testified that a chem stick was also done in the emergency room and it showed a glucose level of 250.
[6] Father stated he had to take A.C. to an appointment that same day. On September 21, one of the parents told the social worker that they were unable to schedule a medical appointment for A.C.-G. because the provider did not accept Medi-Cal.
[7] Father stated the emergency room doctor told him A.C.-G. would be referred to a “‘bone doctor’” for follow-up. Father stated he had just the previous week received authorization for a referral for an orthopedic appointment.
[8] The record indicates the social worker noted A.C.-G. was wearing a cast at this meeting, but it appears the child was actually wearing a splint. The parents had removed the splint at some point prior to December 17, in accordance with the discharge instructions to remove the splint after three weeks.
[9] Dr. Schuman initially testified on June 12 and 13, and was recalled on June 20 and 21. For the most part, her testimony from all four days is combined in a single narrative.
[10] Dr. Schuman testified she also studied the topic in preparation for the forensic pathology board examination.
[11] In later testimony, Dr. Schuman stated: “[I]n children any amount of subdural hemorrhage can cause the brain to swell.”
[12] At the end of her four partial days of testimony, Dr. Schuman defended her diagnosis of DKA, even assuming the two glucose tests over 600 were eliminated as inaccurate. She based this on A.C.-G.’s symptoms and the other laboratory findings—the 221 blood glucose level, the 80 level of ketones in the urine, the 500 glucose level in the urine, the metabolic acidosis, the anion gap, and the electrolyte disturbances.
[13] According to the CAN report, A.C.-G.’s A1C was measured at 5.7.
[14] The forensic pathologist, Dr. Schuman, testified when recalled to the witness stand that point of care devices are not always precise regarding glucose levels. However, it has been shown in studies and is accepted in the field of laboratory science that the point of care devices, which include the Accu-Chek tests made for people to use at home, vary only about 10 percent from values obtained in a laboratory. Dr. Schuman testified that the single test sent to the laboratory showing the glucose at 221, and the two point of care tests showing the glucose at 626 and 622, were nearly identical for the other values tested, except for the glucose. She stated there was no way to tell whether the single laboratory result or the two point of care results for glucose was correct.
