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In Re A.S., A Person Coming Under the Juvenile Court Law. v. Mary M. et al

December 22, 2011


APPEAL from a judgment of the Superior Court of San Diego County, David B. Oberholtzer, Judge. Affirmed. (Super. Ct. No. J518062)

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


Mary M. and Paul S. appeal the juvenile court's jurisdiction and disposition findings under Welfare and Institutions Code section 300, subdivision (b).*fn1 They challenge the sufficiency of the evidence to show their daughter, A.S., was at substantial risk of harm, and that removal from the home was the only reasonable means of protecting her. We affirm the judgment.


Because of the parents' work schedules, they left A.S. at the home of the paternal grandfather (the grandfather) and the paternal great aunt (the aunt) between Tuesdays and Thursdays. On a Wednesday in March 2011, the grandfather, who had been home alone with eight-month-old A.S., took her to a hospital. When she arrived, she was limp, pale, and non-responsive. CPR was administered and she was transferred to Rady Children's Hospital, where testing "showed presence of a right subdural hematoma which was mixed density, acute or acute and chronic," and bilateral retinol hemorrhages "most consistent with subacute."

The parents told the attending physician, Marilyn Kaufhold, that A.S. was healthy when they left her with the grandfather the previous day and they were unaware of any traumatic event. The parents reported that the grandfather told them he walked away from A.S. when she was lying down drinking a bottle. He heard her begin to choke and returned to her, finding her limp.

The San Diego County Health and Human Services Agency (the Agency) took A.S. into protective custody and filed a petition on her behalf under section 300, subdivision (b).*fn2 The petition alleges that A.S.'s injuries "would ordinarily not be sustained except as the result of the unreasonable or neglectful acts or omissions of the parents of the child and there is substantial risk that the child will suffer serious physical harm or illness." (See § 355.1, subd. (a).)

The Agency's report for the detention hearing notes that none of the caretakers had an explanation as to a possible cause of the injury. The grandfather denied dropping A.S. or that she fell. He said he was attentive to her and watched her closely. The aunt reported that when the parents delivered A.S. the previous day, she was breathing through her mouth. The aunt spoke to the parents about calling a doctor, but instead Mary left a suction device with the aunt and she and the grandfather removed mucus from A.S.'s nose a few times. The aunt denied that she or the grandfather ever got frustrated or angry with A.S.

The parents denied that A.S. had a cold or any difficulty breathing the day before the incident. Paul denied ever seeing the grandfather lose patience with A.S. Mary reported that the grandfather took good care of A.S. and they were bonded. Mary said Paul was attentive to A.S., but at times he got frustrated with her and yelled her name before calming down.

Dr. Kaufhold advised the Agency that A.S.'s "injury was not sustained by falling and is consistent with being shaken or a slam to a soft surface." Dr. Kaufhold considered A.S.'s injury nonaccidental because none of the caretakers had any explanation for it. As to the timing, Dr. Kaufhold advised that she "cannot give an exact time or date." She stated that while A.S.'s symptoms were "classic to the injury just [having] occurr[ed]," the injury "could have been as old as one week."

Dr. Kaufhold issued a report, which states: "Inflicted trauma is strongly associated with [A.S.'s] findings. These findings are most often caused by rapid acceleration and deceleration, beyond any activity involved in the normal care of a child." The report also states test results from the hospital that first treated A.S. "showed no xanthochromia which would be consistent with a more recent event." The report does not, however, rule out the possibility the injury occurred when A.S. was in her parents' care.

The Agency's report for the joint jurisdiction and disposition hearing notes there was still no information on a possible cause of A.S.'s injury. The hearing proceeded on this report and the Agency's report for the detention hearing. The parents offered no evidence.

The court disagreed with Dr. Kaufhold's expert opinion as to the nonaccidental nature of A.S.'s injury. The court offered its personal opinions on the matter. For instance, the court stated "an acute subdural hematoma, that's only on one side of the head, is exactly the sort of thing that could result from a fall, in my limited knowledge." The court added: "[W]ith respect to the evidence that . . . [k]ids don't ordinarily wind up with this unless somebody shook them or was otherwise rough with them, . . . that it cannot be from some other source is unsupported by the evidence. It's just a conclusion." The court also stated, "Dr. [Kaufhold] just isn't up to date on her physics. Because to say that you couldn't drop a child and have the same sort of deceleration when the child's head hits the ground as would be apparent in a shaking, I'd need--I need some calculations to prove that. And I don't think it's possible without bruises, unless they--unless somebody, you know, wrapped the child in cotton." The court also stated, "There is one way it can happen without trauma, and that's an infant stroke, which often mimics these symptoms. It's very rare, and there has not been a workup to determine if that's possible."

The court nonetheless sustained the petition, finding "by clear and convincing evidence that it is appropriate to remove the child from the home at this point because of the lack of an explanation as to how this happened." It explained, "[I]f I were to accept the fact, and I will at this point, that an accident is the same thing as neglect, and for the purposes of this hearing, I will, I think it's sufficient." The court ...

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