Jacqueline N. v. Superior Court

Filed 4/27/06 Jacqueline N. v. Superior Court CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

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

Jacqueline N., in pro. per., for Petitioner.

No appearance for Respondent.

Dennis A. Marshall, County Counsel, and Howard K. Watkins, Deputy County Counsel, for Real Party In Interest.

-ooOoo-

Petitioner, in pro. per., seeks an extraordinary writ (Cal. Rules of Court, rule 38) to vacate the orders of the juvenile court denying her reunification services and setting a Welfare and Institutions Code section 366.26^[1] hearing as to her children, C., A. and D. We will deny the petition.

STATEMENT OF THE CASE AND FACTS

Dependency proceedings were initiated in June 2005 by the Fresno County Department of Children and Family Services (department). At the time, petitioner and her boyfriend David^[2] were living together with petitioner and David's four-month-old son D. and petitioner's two-year-old son A. by another relationship. Family circumstances were strained by petitioner and David's drug and alcohol abuse, domestic violence and David's unemployment. The home environment was so volatile petitioner sent her four-year-old daughter C. to stay with C.'s maternal grandmother in Long Beach.

On June 3, 2005, D. was rushed to the children's hospital emergency room where he was diagnosed with massive facial petechiae (small red spots) and bilateral scleral hemorrhages (bleeding in the white tissue covering the eyeball). Dr. B., the examining physician and an expert in child abuse, concluded D.'s symptoms were consistent with a strangulation-type injury. Further medical evaluation revealed that D. also had a significant left subdural hematoma.^[3]

Even though petitioner and David were D.'s sole care providers, neither one could account for D.'s injuries. Suspecting D. was a victim of child abuse, the department took D. and A. into protective custody and arranged with Los Angeles County to have C. returned to Fresno and placed in foster care with her siblings. Further, because the department did not know who abused D. or how the injuries occurred, the department filed an original dependency petition on behalf of all three children alleging that D. was the victim of petitioner and David's intentional infliction of serious physical harm and/or that petitioner and David failed to protect D. from the physical abuse of the other. (§ 300, subds. (a) (serious physical harm) & (b) (failure to protect).)

Petitioner and David appeared at the detention hearing and denied the allegations. The court ordered the children detained and ordered the department to refer the parents for parenting, substance abuse and mental health evaluations and any recommended treatment and random drug testing. Despite the court's offer of services, petitioner and David continued to abuse drugs and alcohol.

In September 2005, Dr. B. reported that he could not determine with medical certainty that the facial petechiae and scleral hemorrhages were accidental or intentionally inflicted. However, he determined with a high degree of certainty that the subdural hematoma was intentionally inflicted. In light of this new evidence, the department filed a second amended petition alleging, under section 300, subdivision (e) (severe physical abuse), that D. suffered strangulation or suffocation and a subdural hematoma consistent with nonaccidental trauma and physical abuse while in petitioner and David's care and custody and that neither parent could provide a reasonable explanation for D.'s injuries.

Petitioner disputed the department's allegations that she physically abused D. or had reason to know that he would be physically abused. The matter was litigated at a contested jurisdictional hearing conducted in September and October 2005.

Dr. B. testified that the subdural hematoma was a separate injury, which was most likely intentionally inflicted and which required adult force. In addition to the subdural hematoma, Dr. B. also considered other factors in determining that D. had been physically abused. For example, he considered the fact that neither petitioner nor David could explain how D.'s head injury occurred and that they had a history of domestic violence. He also considered two suspicious injuries for which A. was evaluated in the emergency room. The first occurred in July 2004, when then 13-month-old A. was brought in because he kept holding his breath. The examining physician noted that A. had a bruise on the tip of his penis. The explanation provided to the doctor was that A. got angry and pinched his penis. Dr. B. testified he had never heard of a 13-month-old doing that. More disturbing was that A. also had abrasions on his nose and a bruise on his cheek. Dr. B. also testified that in December 2004, then 18-month-old A. was evaluated at another hospital for a spiral fracture eight days after it occurred. The explanation was that A. caught his leg crawling out of the play pen. Dr. B. testified that delay in treatment was another â€