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In re A.R.

January 26, 2009

IN RE A.R., A PERSON COMING UNDER THE JUVENILE COURT LAW.
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, PLAINTIFF AND RESPONDENT,
v.
ROBERT R., DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of San Diego County, Michael J. Imhoff, Commissioner. Reversed and remanded. (Super. Ct. No. NJ13775).

The opinion of the court was delivered by: Aaron, J.

CERTIFIED FOR PUBLICATION

Robert R. appeals following the dispositional hearing in the dependency case of his daughter, A.R. Robert contends that the juvenile court erred by refusing to stay the proceedings pursuant to the Servicemembers Civil Relief Act (SCRA) (50 U.S.C. Appen. §§ 501-596), and proceeding with the contested jurisdictional hearing. He also contends that the court abused its discretion by denying his counsel's request for a continuance so that genetic testing of A.R. could be completed, and Robert could be present to testify. We agree with Robert's contention that the court erred in refusing to stay the proceedings pursuant to the SCRA, and reverse and remand the case for a new jurisdictional and dispositional hearing.

BACKGROUND

A.R. was born in September 2007, at 34 weeks' gestation, to Amy R. and Robert, Amy's husband. A.R. spent her first two weeks in the Naval Medical Center neonatal intensive care unit because she was experiencing problems involving "respiratory distress, apnea, feeding, and growing." A.R. was again placed in the neonatal intensive care unit six days after her discharge because she had "an apparent life threatening event when she grunted, stopped breathing and turned red." Medical personnel determined that the cause of this event was decreased temperature due to inadequate swaddling. A.R. had a well baby visit on October 11 and was reported to be healthy and developing normally.

In early November 2007, Amy took A.R. to the Naval Medical Center where she was diagnosed as having an ear infection. A day or two later, Amy took A.R. to Pomerado Hospital where A.R. was prescribed amoxicillin. When A.R. began vomiting later at home, Amy took her back to Pomerado Hospital. At the hospital, medical personnel observed bruises on A.R.'s body. More bruises appeared on A.R.'s body while she was at the hospital, wherever pressure was applied. Doctors became concerned that A.R. might have a blood disorder.

On November 15, 2007, A.R. was transported by ambulance to Rady Children's Hospital where an emergency room doctor examined her. She had linear bruises on her thighs and a small linear bruise on her right upper arm and left shoulder. A.R. was discharged because no more bruising occurred and bleeding studies were normal. Later that day, however, A.R. vomited again. Amy and Robert took her back to Rady Children's Hospital.

At Rady Children's Hospital, physician Cynthia Kuelbs questioned whether Pomerado Hospital personnel had checked A.R.'s entire body for bruising. Dr. Kuelbs believed that the bruising on A.R.'s shoulder "may have been an inflicted injury." Dr. Kuelbs acknowledged that she did not have complete records from the Naval Medical Center or Pomerado Hospital and was "at a loss to explain the bruises which appeared at Pomerado Hospital." She believed that the bruise on A.R.'s forearm might have been caused by a blood draw, and that what appeared to be bruises in A.R.'s groin area might actually be a rash. Dr. Kuelbs was concerned because A.R. was not tracking objects with her eyes.

Scans of A.R.'s head revealed both new and old*fn1 subdural hemorrhages, but skeletal surveys and retinal examinations were negative. Both a radiologist and Dr. Kuelbs expressed concern that the hemorrhages were caused by nonaccidental trauma. However, a neurosurgery resident was concerned that A.R.'s symptoms might have been the result of a bleeding disorder. Rady Children's Hospital began an "extensive work up for a bleeding problem." A metabolic screen was ordered to rule out an underlying metabolic problem. In addition, a further ophthalmologic evaluation was planned, and a hematological evaluation was scheduled for December.

On November 15, 2007, a hospital hold was placed on A.R. On November 17, she was detained in a foster home. On November 20, the San Diego County Health and Human Services Agency (the Agency) filed a dependency petition pursuant to Welfare and Institutions Code section 300, subdivision (a).*fn2 The petition alleged that on or about November 15, A.R. "was discovered to have a detrimental and traumatic condition, consisting of old and new subdural hemorrhages[, which] condition would not ordinarily be sustained except as a result of the unreasonable acts of the child's mother and/or father."

Both Robert and Amy appeared at the November 20, 2007 detention hearing. The court appointed counsel and set a jurisdictional hearing for December 11. On December 11, the court granted the joint request of Robert's and Amy's attorneys that a vial of blood be drawn from A.R. for independent testing. The court set a settlement conference for January 16, 2008, and a trial for February 1. On January 16, both counsel asked for a continuance of the trial. The court granted the request, citing the pending results of further medical testing that Dr. Kuelbs had ordered, and Amy's counsel's need for further investigation. The court continued the trial to March 7 and set a settlement conference for February 20.

On February 19, 2008, Dr. Kuelbs reported that metabolic test results obtained in late January were not completely normal and that the results did not explain A.R.'s symptoms. Dr. Kuelbs stated that the tests showed that it was unlikely that A.R. had a condition called glutaric acidemia, a genetic metabolic disorder, but recommended an evaluation by the metabolics team. Dr. Kuelbs believed that once the evaluation was complete, she would be able to say whether something other than trauma could have caused A.R.'s subdural hemorrhages.

On February 20, 2008, the court continued the trial to April 25 and set a further settlement conference for April 23, citing the fact that the metabolic evaluation would probably not occur until April 21, and that Robert's attorney needed time to provide the test results to her expert before trial. The court gave the Agency discretion to detain A.R. with Amy, with the concurrence of A.R.'s counsel.

On April 15, 2008, A.R. had an appointment with a metabolic specialist, who took blood and urine samples. The purpose of the testing was to determine whether A.R. had glutaric acidemia. Results from the urine test were expected in two weeks, and results from the blood test were ...


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