APPEAL from an order of the Superior Court of Los Angeles County. Donna Levin, Juvenile Court Referee. (Los Angeles County Super. Ct. No. CK36175)
The opinion of the court was delivered by: Zelon, J.
CERTIFIED FOR PUBLICATION
The Los Angeles County Department of Children and Family Services appeals the dismissal of a Welfare and Institutions Code section 300 petition with respect to the child Roberto C. After a two-day evidentiary hearing, the juvenile court determined that the evidence was insufficient to sustain the petition. Finding no abuse of discretion, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On September 23, 2011, while in the care of his babysitter, then nine month old Roberto C. fell unconscious. The paramedics were called, and transported him to Harbor-UCLA Medical Center; a referral for neglect was made.
On September 30, 2011, while Roberto remained hospitalized, the Department of Children and Family Services (DCFS) filed an application for an order of removal from the parents. The application cited medical conclusions that the child had suffered a brain bleed and that nonaccidental trauma was possible. The application also referred to mother's prior history with DCFS in 1998. Shaken baby syndrome was suspected, and the social worker concluded that "the act leading up to the injury most likely occurred while the child was in the care, custody and control of the parents or a person known by the parents."
DCFS filed a petition under Welfare and Institutions Code section 300 on October 5, 2011.*fn1 The petition alleged serious injury to Roberto due to acts by his parents, their failure to obtain necessary medical treatment, and their failure to protect him from further abuse.*fn2
The detention report cited interviews with both parents, with the baby sitter, and with responding officers and members of the medical team. On October 5, 2011, the court ordered Roberto detained, and ordered reunification services and monitored visitation for the parents.
The Jurisdiction/Disposition Report filed on November 3, 2011, indicated that Roberto had been transferred to Rancho Los Amigos Hospital for rehabilitation, and included detailed witness statements from: Mother; Father; the father of Mother's other children (involved in the 1998 proceedings) and those children; Roberto's treating physician; the medical social worker; the babysitter, Maria Navarro; Navarro's adult daughter; and the co-worker who had recommended Navarro to Mother. The report indicated that further investigation was needed to determine who had been involved in the acts leading to Roberto's injuries, but raised questions as to the credibility of parents based on their statements and Mother's prior history with DCFS, erroneously identified in the report as having occurred in 2008 rather than in 1998. On November 7, 2011, the juvenile court set the matter for adjudication on January 25, 2012, as a contested hearing, and ordered the exchange of witness and document lists and a pretrial conference.
The juvenile court held the adjudication hearing on January 25-26, 2012. The court admitted exhibits, and heard the testimony of four witnesses.
Maria Elena Natividad (Maria Navarro)
Navarro testified that she had cared for Roberto for three weeks prior to his hospitalization, from 6:30 a.m. to 4 p.m., Monday through Friday. Other than an incident of vomiting, for which Mother had sought medical attention, he was never sick and was not a difficult child. She noticed a bruise only once, when he hit his head on his walker while in her care; the mark was small. He was not hurt at any other time while in her care.
On Friday, September 23, Roberto was not sick when he was dropped off, and she noticed no bruises on his face. In the afternoon, she took him out to pick up other children at school; she initially had him in a stroller, but was carrying him in her arms when some dogs jumped up behind a fence. Roberto became upset, but then calmed down; as she arrived home, he fell over in her arms. She could not awaken him, called for help, and received assistance from a neighbor until the police arrived.*fn3 Roberto was taken to the hospital, but she did not go because she had other children in her care. She denied shaking or hurting Roberto at any time while he was in her care.
Dr. Stewart is the Medical Director of the Child Crisis Center and Associate Professor of Pediatrics at Harbor U.C.L.A. Medical Center, and serves as a member of the S.C.A.N. (Suspected Child Abuse and Neglect) Team. She has testified as an expert in dependency court, and was offered as an expert in this case. After objection by counsel for parents that her expertise needed to be determined on an issue by issue basis, the parties examined her with respect to her qualifications. She testified that she had not completed residencies in ophthalmology, radiology, or neurology, but that her subspecialty of child abuse pediatrics encompasses the field of head trauma and other pediatric injuries. She had received training in, diagnosed and testified as an expert with respect to child head trauma. At the conclusion of this testimony, the court ruled that further objections by counsel should be on a question-by-question basis.
Dr. Stewart first saw Roberto on September 26, and was asked to consult based on a concern that inflicted trauma could be involved in his injuries. She reviewed his records, and evaluated him along with other doctors. She found bruising on his ear, retinal hemorrhages, and subdural fluid and hemorrhage. She found the bruising of the ear unusual; she found no other bruises. As to the subdural blood, the injury could have occurred three to seven days prior to his admission; she could not date the other injuries.
Dr. Stewart was asked whether the injuries were accidental or nonaccidental. Parents' counsel objected, and conducted further voir dire concerning her background, experience, and publications; the court heard argument from counsel. Counsel for DCFS conceded they did not establish Dr. Stewart as an expert, and the Court agreed, finding she was not an expert as to shaken baby syndrome. Counsel for Roberto conducted further voir dire examination, after which the court found that Dr. Stewart was an expert in child abuse, but not shaken baby syndrome, and sustained the objection as to the single question whether the injuries were accidental or nonaccidental.
Dr. Stewart's direct testimony continued with respect to her experience observing children with both accidental and nonaccidental injuries, and her training in assessing such injuries. She testified that following her evaluation of Roberto she agreed with the other doctors that his injuries were due to inflicted trauma. She explained that the babysitter's explanations for the injury did not in fact explain the injuries. She also described her evaluation of the biomechanics of such injuries, and concluded that Roberto could not have sustained his injuries through a simple fall. She believed that angular acceleration--shaking--was probably a component of at least some of the injury.
On cross-examination, Dr. Stewart testified that there were no fractures or bruising observed on Roberto. She was questioned concerning hemorrhage in non-abuse situations, and the opinion of another consulting physician that Roberto suffered from benign external hydrocephalus, a condition that can put children at risk for retinal hemorrhages. Based on the information that she had at that time, she expressed the opinion that Roberto's injuries were due to inflicted trauma. She further testified as to mechanisms for Roberto's injuries. She did not know who might have caused those injuries, and stated that she did not have all of the information as to what had actually happened to Roberto during the 72 hours before he came to the hospital.
Ms. Lima, a DCFS employee, testified that Roberto was currently placed with his aunt, after rehabilitation treatment at Rancho Los Amigos hospital. He continued to suffer some visual and hearing impairment. She had interviewed both the babysitter and the parents; the babysitter had not indicated that Roberto had fallen from or while in his walker; ...