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K.F. v. Superior Court (San Diego County Health and Human Services Agency)

California Court of Appeals, Fourth District, First Division

March 25, 2014

K.F. et al., Petitioners,
v.
THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Real Party in Interest.

PROCEEDINGS in mandate after referral to a Welfare and Institutions Code section 366.26 hearing. Harry M. Elias, Judge. San Diego County Super. Ct. No. NJ14792

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COUNSEL

Julie E. Braden for Petitioner K.F.

John P. McCurley, under appointment by the Court of Appeal, for Petitioner M.M.

No appearance for Respondent.

Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Paula J. Roach, Deputy County Counsel, for Real Party in Interest.

Jessica B. Smith, under appointment by the Court of Appeal, for Minor.

OPINION

HALLER, J.

At age three months, S.F. was removed from the custody of her parents, K.F. (Father) and M.M. (Mother) and declared a dependent of the court after her parents brought her to the emergency room and she was found to have suffered two subdural hematomas, numerous rib fractures, an elbow fracture, and bruising. After a jurisdictional hearing, the juvenile court found that (1) the parents committed, knew about, or reasonably should have known about severe abuse to a child under age five (Welf. & Inst. Code, [1] § 300, subd. (e) (hereafter section 300(e)), and (2) the parents failed or were unable to protect the child from serious physical harm (§ 300, subd. (b) (hereafter,

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Section 300(b)). The court stated its section 300(e) abuse finding was based on a preponderance of the evidence, and its section 300(b) failure-to-protect finding was based on clear and convincing evidence. The court thereafter decided to bypass reunification services under (1) section 361.5, subdivision (b)(5) (section 361.5(b)(5) based on its section 300(e) abuse finding, and (2) section 361.5, subdivision (b)(6) (section 361.5(b)(6) based on its section 300(b) failure-to-protect finding.

In the mandate proceedings before us, Father contends the record does not support the section 300(e) abuse finding as to him. Both parents challenge the denial of reunification services.

We conclude there is sufficient evidence to support the court's section 300(e) abuse finding as to Father. However, we hold the court erred in denying reunification services to the parents. Denial of reunification services requires findings based on clear and convincing evidence. Because the court's section 300(e) abuse finding was based on a preponderance of the evidence, this finding cannot support denial of services under section 361.5(b)(5). Further, although the court's section 300(b) failure-to-protect finding was made by clear and convincing evidence, the record shows that the infliction-of-harm finding required to bypass reunification services under section 361.5(b)(6) was predicated on the same facts as the section 300(e) abuse finding, which was established only by a preponderance of the evidence. Accordingly, the denial of reunification services under section 361.5(b)(6) is likewise unsupported.

We also reject the San Diego County Health and Human Services Agency's argument that the mere existence of a section 300(e) abuse finding satisfies the clear and convincing evidence showing needed to trigger application of the section 361.5(b)(5) reunification services bypass provision. Instead, we hold the facts underlying the section 300(e) abuse finding must be established by clear and convincing evidence.

Father's petition is denied as to the challenge to the sufficiency of the evidence on the section 300(e) abuse finding. Father's and Mother's petitions are granted as to the challenge to the denial of reunification services.

FACTUAL AND PROCEDURAL BACKGROUND

I. Overview

S.F. was born in December 2012, when Mother and Father were 19 and 20 years old, respectively. Mother lived with her parents and two siblings, and

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Father lived with his grandmother. As we detail below, on numerous occasions Mother and Father cared for S.F. together. S.F. was also cared for by Mother alone, by Mother's parents, and, occasionally, by Father's grandmother.

On several occasions in December 2012 and January and February 2013, S.F. was examined by a pediatrician. At a visit on January 21, 2013, the pediatrician observed that she was "well appearing." At a visit on February 21, Mother was noted to be "feeling sad" and was referred to mental health services. At this visit, the parents reported that S.F. had been throwing up four times a day for two weeks, and the doctor diagnosed a reflux condition and prescribed medication. The parents reported that S.F. stopped vomiting about one or two weeks after starting the medication. About one month later, on March 17, Mother took S.F. to the emergency room because she was eating less, had not urinated for almost 24 hours, and had "red material" (apparently blood) in her diaper. S.F. was tested for a urinary tract infection and was again prescribed medication for a reflux condition.

Five days later, on the morning of March 22, the parents took S.F. to the emergency room. Medical personnel noted that she was having "periods of apnea" and she had an "[i]rritable cry" when moved. The parents reported that they stayed at Father's house the night of March 20. S.F. slept more than usual and did not wake up at her usual time on the morning of March 21. She initially would not eat but eventually drank two ounces from her bottle. They noticed her chest was "moving strangely." Father believed S.F. had a " 'mini seizure' "; she looked at Father but was not focusing; and Father "patted her to resuscitate her." Father acknowledged that his resuscitation efforts bruised S.F. The parents said that S.F. had another episode later in the afternoon, but seemed fine by the evening. However, on the morning of March 22, S.F. was "fussy." When she vomited blood, the parents drove her to the emergency room.

During their examinations, the doctors determined that S.F. had bruises on her thigh, buttocks, and flank; numerous rib fractures; an elbow fracture; and two subdural hematomas.[2] A shunt was inserted to drain " 'the cerebrospinal fluid from [her] head to her abdomen.' " She had 14 rib fractures, six on one side and eight on the other.

The San Diego County Health and Human Services Agency (Agency) detained S.F. in protective custody and filed a petition alleging section 300(e) severe physical abuse on a child under age five by a parent, or by a person known to the parent if the parent knew or reasonably should have known

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about the abuse. The Agency placed S.F. in the care of her paternal grandfather and his wife, and provided notice it intended to ask the juvenile court to bypass reunification services and set a section 366.26 permanency planning hearing.

The jurisdictional and dispositional hearings were held in July and August 2013. After hearing the evidence, the court (1) found true by a preponderance of the evidence the section 300(e) abuse count, and (2) amended the petition to add a section 300(b) failure-to-protect count and found this count true by clear and convincing evidence. At the disposition hearing, the court declared S.F. a dependent, denied reunification services under section 361.5, and scheduled a permanency planning hearing.

II. Evidence Presented at the Jurisdictional Hearing

Several medical experts (Drs. Thomas Grogan, Cynthia Kuelbs, and Mark Nunes) testified at the jurisdictional hearing regarding the causes, timing, and detectability of S.F.'s injuries. Additional witnesses included Father and his grandmother, Mother and her parents, the Agency's social worker, and a psychologist called by Father.

A. Expert Testimony

According to the expert testimony, S.F. suffered more than one episode of nonaccidental trauma resulting in the subdural hematomas, rib fractures, elbow fracture, and bruising. Two separate events caused her subdural hematomas; the initial event would have been "very severe and noticeable, " and the second event caused a "second bleed... that... layer[ed] on top" of the first bleed. The hematomas could have been caused by an impact, shaking, or a fall "with some rotation to it." S.F.'s rib fractures could have been caused by someone grabbing her and compressing her rib cage. Her bruises were likely caused by some sort of rough handling.

As to the timing of her injuries, the experts stated it was difficult to determine with precision when the subdural hematomas occurred. The doctors opined the head injury causing the first subdural hematoma could have occurred around the time of the February 21 pediatrician visit when the parents reported vomiting and irritability. However, Dr. Kuelbs could not determine how far in advance of the February 21 pediatrician visit the trauma may have occurred. Further, Dr. Kuelbs acknowledged S.F.'s symptoms in February could have been related solely to the reflux condition and unrelated to the head injury, and it was not possible to say absolutely when the head injury occurred. Dr. Kuelbs believed a second head injury resulted in the symptoms that occurred on March 21, the day before she was admitted to the

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hospital on March 22. Dr. Kuelbs also opined that at the time of her admission on March 22, S.F. had "symptoms of a diffused brain injury" but not a lot of blood in her head; her symptoms would not have been explained solely by a re-bleed of the original hematoma; and this suggested that she suffered "an injury to her brain and the bleeding was a marker to it." Dr. Grogan testified that S.F.'s March 22 CT scan showed no evidence of soft tissue swelling; it takes about three to five days for soft tissue swelling to dissipate; and thus it would be unlikely that S.F. had suffered a head injury within three days of March 22.

Dr. Grogan estimated that on March 22 S.F.'s rib fractures were 10 to 14 days old, and her elbow fracture was three to five days old. Dr. Kuelbs generally agreed, but explained it was not possible to determine exactly when the injuries occurred. Dr. Nunes estimated the rib fractures occurred about seven to 21 days before March 22, and emphasized the time calculations were "by no means a precise science." According to Dr. Grogan, the rib fractures could have been caused at the same time or sequentially within a short period of time. Dr. Kuelbs believed the rib fractures were inflicted at different times because they were in different stages of healing.

As to detectability of S.F.'s injuries, Dr. Kuelbs testified it would be difficult for a parent who did not cause or see the infliction of the head injury to know that a subdural hematoma had occurred. The parent might see a change in the baby, such as irritability, vomiting, and abnormal sleeping, but the parent and doctor might reasonably think the baby had a viral illness or reflux disease. Similarly, Drs. Kuelbs and Nunes testified that rib and elbow fractures might not be apparent to parents who did not cause or witness the infliction of the injuries. Rib fractures are generally painful for a day or two, but unless the baby screamed when picked up, a parent might think ...


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