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In Re andrew L. et al., Persons Coming Under the Juvenile Court v. Michael L

February 8, 2011


Super. Ct. No. J516999 A-B APPEAL from orders of the Superior Court of San Diego County, Laura J. Birkmeyer, Judge. Affirmed.


M. Elizabeth Handy, under appointment by the Court of Appeal, for Minors.

Michael L. appeals orders made at the six-month juvenile dependency review hearing regarding his sons, Andrew L. and Matthew L., granting a motion by the San Diego County Health and Human Services Agency (the Agency) to dismiss count (a) of the Welfare and Institutions Code*fn1 section 300 petition regarding Matthew and to strike words from count (b) of Matthew's petition. We affirm the orders.


In February 2008 the Agency petitioned on behalf of infant Andrew on the ground that his mother, Darcy B., abused alcohol and prescription drugs. Darcy had been brought to a hospital just before Andrew was born after a domestic violence incident with Michael. She tested positive for benzodiazepines, her blood alcohol level was 0.25 percent, and she admitted drinking a pint and a half of vodka. After Andrew's birth, the court ordered him detained in foster care. In June it found the allegations true, ordered Michael and Darcy to comply with their case plans and ordered Andrew placed with Michael and that Darcy would have supervised visits.

Matthew was born prematurely to Darcy and Michael one year later in February 2009. He spent one month in a Neonatal Intensive Care Unit (NICU) before going home. Darcy had not complied with her services plan regarding Andrew, and in March 2009 the court terminated her reunification services in Andrew's case and continued his placement with Michael.

On July 26, 2009, Michael took five-month-old Matthew to a hospital because he was lethargic, had a fever and had blood in his nose. Michael had not taken Matthew for any follow-up pediatric care or immunizations after his discharge from the NICU. Matthew was filthy when he was admitted to the hospital and appeared not to have been receiving adequate care. Dr. Cynthia Kuelbs, M.D., Medical Director of the Chadwick Center at Rady Children's Hospital, opined he was at risk as a medically fragile infant who had suffered medical neglect.

On July 27, 2009, the social worker went to Michael's home and discovered Darcy with Andrew. Andrew was temporarily removed, but then returned to Michael. Michael later told the social worker that Darcy had cared for Andrew and Matthew about 25 times.

On August 5, 2009, the Agency petitioned on Matthew's behalf under section 300, subdivision (b), alleging he was at substantial risk of serious harm or illness in that he: " . . . was discovered to have a detrimental condition consisting of, but not limited to, pneumonia, dehydration, an elevated white count, and a fluid collection in the right front [parietal] lobe, which detrimental condition is of such a nature as would ordinarily not be sustained except as the result of the unreasonable or neglectful acts or omissions of the parent of the child; the father allowed the mother to care for the child unsupervised while knowing there was a court order for an older sibling, ANDREW, forbidding such contact; the child was filthy and had [a] diaper rash upon admittance to the hospital; the father took the child off an apnea monitor without medical input, and failed to provide follow up medical care for the premature birth and there is substantial risk that the child will suffer serious physical harm or illness."

The court also petitioned on Andrew's behalf under section 387, alleging Michael had violated court orders by allowing Darcy to have unsupervised contact with Andrew on 25 occasions. Both children were detained in foster care.

Dr. Kuelbs reported tests showed Matthew had a subdural fluid collection, which was not present at the time of his birth.*fn2 She said he may have a metabolic defect, but the hematoma is not related to this disorder and indicates prior trauma. She stated, " . . . Matthew is a fragile infant with multiple medical problems and an unexplained subdural hematoma who has been neglected medically and from a care standpoint given the filthy nature in which he presented to the emergency department. Should he return to an environment which is unchanged and which does not guarantee that he will have regular and judicious health care, Matthew is at risk for further illness and metabolic crisis which could result in death were he to not be brought to health care immediately."

On August 25, 2009, the Agency filed an amended petition on Matthew's behalf, alleging under section 300, subdivision (a), that he had been discovered to have a subdural fluid collection or hematoma in the right front parietal area which medical providers had stated was indicative of trauma.

On October 29, 2009, the court found the allegations of the petitions true, continued removal from parental custody and ordered reunification services.

Subsequently, because Matthew was not growing normally and magnetic imaging indicated an underlying metabolic disorder, Dr. Kuelbs became less certain that his ...

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