L.A., Petitioner, v. THE SUPERIOR COURT OF KERN COUNTY, Respondent, KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Real Party in Interest.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from the juvenile court's orders issued at a contested dispositional hearing denying him reunification services and setting a Welfare and Institutions Code section 366.26 1 hearing as to his four children. We will grant the petition.
STATEMENT OF THE CASE AND FACTS
Petitioner and his girlfriend, Lisa, are the parents of six children; the youngest four are the subjects of this writ petition. When these proceedings were initiated in January 2011, the oldest two (sons) had been freed for adoption, the youngest (also a son) was not yet born and the remaining three were daughters, U.A.,2 L.A. and Emma, who ranged in age from 2 years to 14 months respectively. This case arose from the physical abuse of Emma, the 14 month old. Lisa also has five older children ranging in age from 17 to 10 years, who live with relatives.
On January 5, 2011, at approximately 4:56 p.m., Lisa arrived at Kern Medical Center (KMC) Emergency Room with Emma who was burned while bathing. Emma was given morphine for pain and transferred by ambulance to the San Joaquin Community Hospital (SJCH) where she was admitted to the burn unit.
In relaying the history of Emma's burns to the SJCH medical staff, the KMC medical staff reported that, according to Lisa, Emma was burned that morning in bath water when suddenly the water got hot and burned her buttocks and perineal area. Lisa said she was the only one with Emma when she was burned.
SJCH physicians' assistant Stephen Hanson completed a history and physical examination of Emma. He observed second degree burns of her genitalia, buttocks and left thigh covering approximately 10.5 percent of her total body surface area. He reported that the “burns appear[ed] much older than the history would indicate.”
Dr. Ronald Peterson, emergency room physician at SJCH, reported that Emma had broken blisters on both sides of her buttocks area that appeared “somewhat dry.” He further described the burns as extending into the perineal area and to the proximal aspect of the left thigh. He reported: “This wound clinically appears to be older than what would've occurred this morning.”
The police and child protective services were contacted to investigate the possibility of child abuse. Over the course of the next several days, Emma was provided wound treatment and underwent debridement and grafting.
Bakersfield Police Officer Sims was dispatched to SJCH. There he spoke to Thomas Baca, social service supervisor, who stated that petitioner and Lisa's sons were removed because they were born drug-exposed. However, Mr. Baca said there had not been any contact with petitioner and Lisa since the children had been taken. Officer Sims conducted a records check of petitioner and Lisa and found no record of them being on probation or parole or of the police being contacted for child abuse.
Officer Sims spoke to Dr. Peterson who described Emma's burns as “very severe.” He said in his many years of practice, hers were one of the worst that he had seen. He believed that Emma had been dipped into hot water because her burn lines were straight and she did not have “splash burns.” He also believed that her burns were older than 24 hours.
Stephen Hanson, the physicians' assistant, also believed Emma's burns were more than 24 hours old. Officer Sims asked him how long it would take to burn a child and how hot the water would have to be. Hanson said that a child's skin would burn if submerged in water measuring 120 degrees Fahrenheit for 30 to 50 seconds. Hanson said a child's skin would burn immediately if submerged in 140–degree water.
Officer Sims also interviewed Lisa who stated that at approximately 4:00 p.m., she began to run the water in the bathroom sink to bathe Emma. She and Emma were alone as petitioner and the other children had gone to the grocery store. Lisa did not plug the drain because the water in the sink drains slowly. She said the water was lukewarm when she placed Emma in it. Lisa left the water on as she bathed Emma. The water flowed down Emma's chest, over her stomach, and onto her vaginal area. Lisa said she placed her left hand behind Emma to support her and washed her with her other hand for about five minutes. She then reached over to unscrew the shampoo bottle. As she did, she heard Emma scream. Lisa looked down and saw steam coming off of Emma. She said her hand was still on Emma's back and she did not feel the water get hot. Lisa said she lifted Emma straight up and out of the water, placed her on the bed and got a towel to dry her off. As she dried Emma's vaginal area, she saw blood and blisters and Emma's skin peeling off. She said she called her mother immediately and they went to the emergency room.
Bakersfield Police Detective Caldas took over the investigation and interviewed Lisa in the early morning of January 6, 2011. She recounted the same story she told Officer Sims. She added that the water at the apartment gets hot all of a sudden when someone flushes the toilet or takes a shower in any of the other apartments. She believed that is what happened while Emma was bathing.
Detective Caldas interviewed petitioner who stated that on January 5, 2011, he woke up sometime between 9:30 and 11:00 a.m. and changed Emma's diapers. Lisa went to get pizza. Petitioner said that Emma fell asleep in her bed, L.A. was with him and U.A. was with his father. Sometime in the afternoon, between 2:30 and 3:00 p.m., Lisa went with her son to court and after that petitioner went to the home of his friend, Sal. He left Sal's house about 3:15 p.m. and when he returned, he saw Lisa and her mother leaving. That is when he learned what happened to Emma.
Detective Caldas also interviewed petitioner's mother, Rosa. Rosa said that she saw Emma on January 4, 2011, around 6 or 7 p.m. and that Emma had not been injured. The next day, in the afternoon, she saw petitioner playing with the two older girls. A short time later, petitioner entered her home excited and stated that Emma was burned in the sink while Lisa was “taking a pee” and needed to go to the hospital.
After speaking to Rosa, Detective Caldas detained petitioner and took him to the police station. He also conducted a second interview with Lisa and confronted her about the inconsistencies in her story. Lisa stated that she left Emma unattended with the water running while she went into the bedroom across the hallway to get a towel. As she was looking for a towel, she heard Emma scream. She immediately returned to Emma, discovered that she had been burned and called her mother for a ride to the hospital. She then gave a third version of the events. Lisa said she left Emma unattended in the sink with the hot water running while she (Lisa) went to defecate. Lisa said she suffers from constipation and when she saw the steam coming out of the sink and heard Emma screaming, she did not want to get up without cleaning herself. So she cleaned herself, flushed the toilet and retrieved Emma. Based on her admission, Detective Caldas charged Lisa with child endangerment, causing great bodily injury. (Pen.Code, § 273a, subd. (a).) Detective Caldas believed petitioner lied about the incident but did not have evidence to arrest him.
Using the internet, Detective Caldas researched the time it takes at various temperatures for a child to sustain second and third degree burns and reported his findings in his investigative report. According to the website he consulted, it takes 10 minutes for a child to sustain second and third degree burns in water measuring 120 degrees Fahrenheit, 2 minutes to sustain the burns in 125 degrees, 6 seconds in 140 degrees and 2 seconds in 150 degrees. Detective Caldas also reviewed the pictures of Emma's burns taken in the emergency room. Based on the pattern of the burns, he did not believe she was immersed in hot water. He believed that she was burned while left unattended in the running and pooling hot bath water.
Detective Eddy conducted a second interview with petitioner who admitted that he lied about not being home when Emma was burned. He said he was scared but that he never bathed Emma. He said he was outside when Emma was burned. He said he thought Lisa may have been in the bedroom while Emma was in the sink. He first told Detective Eddy that he told his mother that Emma was burned while Lisa was giving her a bath. Then he admitted telling his mother that Lisa was using the toilet.
The officers obtained a search warrant to enter petitioner's apartment and discovered that the hot water heater was set to the hottest setting and was shared with another apartment. They conducted testing of the water temperature in the sink where Emma was bathed and observed that after 45 seconds, the water temperature was 126.1 degrees Fahrenheit and after 5 minutes, it was 151.2 degrees.
On January 6, 2011, the Kern County Department of Human Services (department) detained Emma at the hospital. On that same date, Detective Caldas took U.A. and L.A., both two years of age, into protective custody. The department filed a dependency petition alleging counts pursuant to section 300, subdivisions (a) (serious physical harm), (b) (failure to protect) and (j) (abuse of sibling) as to the three girls. The single count under subdivision (a) alleged that Lisa nonaccidentally caused Emma to suffer serious physical harm by allowing her to burn in the hot water. The subdivision (b) counts alleged that Lisa and petitioner willfully or negligently failed to provide Emma adequate medical treatment, causing her to suffer serious physical harm. The subdivision (b) counts further alleged that Lisa and petitioner knew or reasonably should have known that Emma was injured and failed to obtain medical treatment for her, resulting in her suffering for at least 24 hours before obtaining treatment. The subdivision (j) counts alleged that Lisa's and petitioner's two sons were adjudged dependents of the court because of petitioner's and Lisa's domestic violence and substance abuse and were freed for adoption in 2006 and 2007.
On January 11, 2011, the juvenile court ordered the children detained and set the jurisdictional/dispositional hearing for February 2011. Petitioner and Lisa submitted to drug testing and tested negative. The February hearing was continued and rescheduled for May 2011.
Meanwhile, the department prepared jurisdictional and dispositional reports for the February 2011 hearing. In its dispositional report, it recommended the court deny petitioner and Lisa reunification services pursuant to section 361.5, subdivision (b)(10) and (11) because their sons were adopted and they failed to make progress in the court-ordered treatment plan. The department also reported that petitioner and Lisa pled nolo contendere, in 2008, to a misdemeanor assault with a deadly weapon other than a firearm charge. (Pen.Code, § 245, subd. (A)(1).) In addition, Lisa pled guilty to felony possession of a controlled substance in 2005 and vehicular violations in 2003 and 2005.
In March 2011, Lisa gave birth to a son, L.N. The department detained him at the hospital and filed a dependency petition alleging, pursuant to subdivisions (a) and (b), that Lisa caused Emma to suffer second degree burns which placed L.N. at risk of suffering serious physical harm. The petition contained the subdivision (j) counts as to Lisa and petitioner's sons (L.N.'s brothers), with an additional count alleging that Lisa and petitioner physically and medically abused L.N.'s siblings (U.A., L.A., and Emma). In late March, the juvenile court ordered L.N. detained.
On May 11, 2011, the juvenile court conducted a contested jurisdictional hearing as to U.A., L.A., L.N. and Emma. Petitioner's mother, Rosa, testified that she and her husband live next door to petitioner and Lisa. On January 5, 2011, between 3 and 3:30 p.m., she, her husband and U.A. were returning home and Lisa and her mother were in a car behind them. Lisa had gone to court that day with her son. Rosa saw petitioner coming out of his apartment with L.A. and Emma. She said Emma was dressed in a T-shirt and diaper with sweatpants or something similar. She said Emma was happy and laughing. She did not appear to be in any distress. Rosa went into her home and about half an hour later petitioner came to tell her that Emma was burned in the sink while Lisa was “taking a pee.” Rosa went outside to see where Emma was burned.
Rosa also testified that petitioner, Lisa, U.A., L.A. and Emma had dinner with her the night before. They were at her home from approximately 5:00 to 9:00 p.m. She went to bed around 8:30 p.m. At no time did Emma appear to be injured. She did not act fussy or injured. Rosa said she and her husband were picking Emma up and her sisters were playing with her. Emma was crawling and playing with her toys.
On cross-examination, Rosa testified that Emma was not upset when she saw her before Emma went to the hospital. She said she and petitioner share the same water heater. She also said she did not believe petitioner was involved in Emma's burns.
Petitioner testified that he did not change Emma's diapers during the evening of January 4, 2011, and did not see her without her diapers. There were not any marks on her legs. After he and Lisa left his mother's apartment that evening with the children, he carried Emma home. She was straddling his side. She did not react in pain. After they returned home, Emma was not bathed and her diapers were not changed because Lisa changed them before they left his mother's house. The next morning, Lisa left the apartment around 12:30 p.m. to take her son to court, leaving the children in petitioner's care. Before she left, she changed Emma in their bedroom and Emma fell asleep. Petitioner was in the living room with U.A. and L.A. Emma slept until about 20 minutes before Lisa returned. When Emma woke up, petitioner felt her diaper to see if she was wet. She did not flinch when he touched her diaper and she was not wet. He took her into the living room and she played on the floor with her sister. Emma also tried to walk by holding onto the couch. She fell on her bottom but did not indicate she was in pain.
Petitioner further testified that when Lisa and her mother returned, he met them with the children. They went inside and he put a pizza in the microwave and went outside with U.A. and L.A., while Lisa prepared to give Emma a bath. Before he exited the apartment, he saw Lisa undressing Emma. After about 10 to 15 minutes, Lisa called him and he went in the apartment. Lisa told him she was bathing Emma in the sink and Emma was burned. He denied being present when Emma was being bathed. He stated that was the first time he learned that Emma was burned. At no time prior to that did he see Emma's body or see Emma react in a way that would indicate she had been burned.
Petitioner testified he told the police officers he was outside with U.A. and L.A. when Emma was burned. He denied telling the officer, during his second interview, that he was scared so he said he was not there when Emma was burned. He said the officer asked him where he was an hour before that and he told the officer he was not there. He had just gotten home.
Petitioner was also asked about the dependency cases involving his sons. He said the last time he used drugs was in December of 2007. He said he stopped using drugs because he did not want to lose his children again. He also said there had been no instances of domestic violence since the prior dependency cases. He said he completed parenting and substance abuse classes and had been participating in domestic violence counseling since January 2011. He said he had no reason to believe that Lisa would intentionally hurt Emma.
On cross-examination, petitioner denied observing the water in the sink before Emma was placed there, hearing Emma scream when she was hurt, or seeing steam or anything like steam coming from the bathroom. He testified that Sal is his cousin and denied telling Detective Caldas that he saw Lisa and her mother when he returned from Sal's house. He said he returned from Sal's house an hour before they arrived home. He also denied initially telling Detective Eddy that he thought Lisa was in the bedroom while Emma was in the sink.
Lisa testified that she ran the hot water in the sink for about four or five minutes and then adjusted it with cold water before she put Emma in. She said she went to the bathroom quickly and could see and touch Emma from the toilet. After she flushed the toilet and as she was pulling up her pants, she heard Emma scream. She grabbed Emma and took her to the bedroom. Emma was red and crying. Lisa covered Emma with a towel and called her mother. She then called out to petitioner. She denied ever telling anyone that Emma was burned in the morning. However, she admitted not initially disclosing that it happened while she was going to the bathroom because she was scared and embarrassed.
On cross-examination, Lisa testified that she pled nolo contendere to felony willful cruelty to a child and was sentenced to two years in prison. She said she was told if she fought the charge, she would be sentenced to nine years because of her criminal history. She admitted lying when she told Officer Sims that petitioner was at the grocery store with U.A. and L.A. She denied that Emma was burned the day before and that she waited a day to take Emma to the hospital.
Following argument, the court commented on the credibility of the witnesses: “Basically, what I need to do is decide on the credibility of the three witnesses that have testified, two of which acknowledge they are not truthful, against the weight of the opinions of Dr. Hansen 3 and Dr. Peterson. [¶] Dr. Peterson says that he does not believe the burns were accidental. He also concurs with Dr. Hansen, these burns appeared to have occurred before the a.m. and approximately about 24 hours old.” The court then sustained the subdivision (a) and (b) allegations only and found that the subdivision (j) allegations had not been proven. The court set a contested dispositional hearing for June 8, 2011.
The court also advised county counsel to reconsider its recommendation with respect to reunification services since the court's dismissal of the section 300, subdivision (j) allegations eliminated a factual basis for denying petitioner and Lisa services under section 361.5, subdivisions (b)(10) and (11).
In its report for the dispositional hearing, the department recommended that the juvenile court deny Lisa services pursuant to section 361.5, subdivision (e)(1) because her incarceration prevented her from completing reunification services within the statutory timeframe. The department also recommended the court deny Lisa and petitioner reunification services pursuant to section 361.5, subdivision (b)(6) because Lisa inflicted severe physical harm on Emma, petitioner extended Emma's suffering by failing to obtain medical treatment for at least a 24–hour period and because it would not benefit the children to pursue reunification with their parents.
In addition, the department reported that petitioner and Lisa regularly visited the children and actively participated in their services plans. Petitioner completed a level–3 substance abuse treatment program in May 2011 and tested negative for drugs in January through May 2011. In addition, he completed 54 hours of parenting and neglect education and enrolled in counseling for domestic violence as a perpetrator. As to the children, all four were placed together in foster care and all were deemed appropriate for adoption.
In June 2011, the juvenile court conducted a contested dispositional hearing. County counsel submitted the matter on its reports. Petitioner's attorney argued there was insufficient evidence to support a denial under subdivision (b)(6) of section 361.5; namely there was no evidence petitioner injured Emma and no evidence that he knew she was injured until she went to the hospital.
At the conclusion of the hearing, the juvenile court ordered the children removed from petitioner's and Lisa's custody, denied petitioner and Lisa reunification services, as recommended by the department, and set a section 366.26 hearing to implement a permanent plan for the children. This petition ensued.4
As a general rule, reunification services are offered to parents whose children are removed from their custody, in an effort to eliminate the conditions leading to loss of custody and to facilitate reunification of parent and child. This furthers the goal of preservation of family, whenever possible. (Raymond C. v. Superior Court (1997) 55 Cal.App.4th 159, 163.) But recognizing that it may be fruitless to provide reunification services, the Legislature has enacted provisions for “fast-track” permanency planning under certain circumstances. (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478.) One such circumstance is where the child has suffered the infliction of severe physical harm. The governing statute, section 361.5, subdivision (b)(6), provides in relevant part:
“(b) Reunification services need not be provided to a parent ․ when the court finds, by clear and convincing evidence, any of the following: [¶] ․ [¶] (6) That the child has been adjudicated a dependent pursuant to any subdivision of Section 300 as a result of ․ the infliction of severe physical harm to the child, ․ by a parent ․, and the court makes a factual finding that it would not benefit the child to pursue reunification services with the offending parent․”
A finding of the infliction of severe physical harm for purposes of subdivision (b)(6) “may be based on, but is not limited to, deliberate and serious injury inflicted to or on a child's body or the body of a sibling or half sibling of the child by an act or omission of the parent ․“ (§ 361.5, subd. (b)(6).)
We review the juvenile court's order denying reunification services under section 361.5, subdivision (b) for substantial evidence. (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96.) In doing so, we determine whether the evidence is “reasonable, credible, and of solid value, such that a reasonable trier of fact could find the court's order was proper based on clear and convincing evidence. [Citation.]” (Curtis F. v. Superior Court (2000) 80 Cal.App.4th 470, 474.)
Petitioner contends that section 361.5, subdivision (b)(6) does not apply to him because he was not aware of Emma's injuries until just before she was taken to the hospital. Real party in interest contends that petitioner's failure to obtain medical treatment for Emma constitutes the infliction of serious injury by omission. For that proposition, real party in interest cites Pablo S. v. Superior Court (2002) 98 Cal.App.4th 292 (Pablo S.).
Pablo S. presents a very striking example of severe injury caused by omission. In that case, six-year-old Pablo fell and broke his left femur. (Pablo S., supra, 98 Cal.App.4th at p. 294.) For nearly two months, his parents failed to seek medical treatment for him. (Id.) During that time, Pablo crawled with his arms to pull himself along the floor because he could not walk and a neighbor heard him crying and screaming. (Id.) His leg healed in a rotated position and was shorter than the other leg. (Id.) One day while his parents were at work, a neighbor took Pablo to the hospital. (Id.) The neighbor told the social worker that Pablo “hopped to her car with a cane, held onto her and said, ‘Please don't leave me.’ ” (Id.) Pablo told the emergency room physician that he was afraid to go home because his mother threatened to hit him with a stick. (Id. at p. 295.) Pablo told the social worker that he cried every day after the injury and that his parents called him “ ‘dummy’ ” and “ ‘stupid’ ” because he could not walk. (Id.) He also said his mother hit his left leg and picked him up by the hands, made him walk and then dropped him on the floor. (Id.) The orthopedic surgeon treating Pablo said that Pablo would have “ ‘hurt all the time.’ ” (Id.) The doctor also said that Pablo would be able to walk in another month but would require major surgery after another year in order to realign the leg. (Id.) He said that early medical treatment would have avoided the need for surgery. (Id. at pp. 296–297.)
Pablo's father admitted that Pablo complained of pain “ ‘all the time’ ” but said he had never seen a broken bone and thought it could be observed. (Pablo S., supra, 98 Cal.App.4th at p. 297.) He said he did not have bad motives, he was just ignorant. (Id.) Pablo's mother denied that he complained of pain and said he never cried. (Id. at p. 296.) She said she did not notice that his leg was deformed because it was covered all the time. (Id.) At the dispositional hearing, the juvenile court denied both parents reunification services pursuant to section 361.5, subdivision (b)(6). (Id. at p. 299.)
On appeal, the Pablo S. court affirmed the juvenile court's denial order, stating:
“In light of Pablo's constant pain and the disfigurement that resulted from the broken leg, the parents' failure to provide medical attention constituted the infliction of serious injury by omission․ Their neglect caused Pablo to suffer unreasonably and unnecessarily for two months and continues to harm Pablo who, in all probability, will have to undergo major corrective surgery. Instead of taking Pablo to see a doctor, father and mother physically and emotionally abused the child, forcing him to walk and throwing him around “ ‘like ․ a pillow.’ ” (Pablo S., supra, 98 Cal.App.4th at p. 301.)
Thus, Pablo S. stands for the proposition that failure to provide medical attention constitutes infliction of serious injury by omission under section 361.5, subdivision (b)(6) where the failure to provide medical attention is a deliberate act which causes serious injury.
In this case, petitioner testified that he did not know that Emma was burned until Lisa was preparing to take her to the hospital. However, the juvenile court did not find petitioner credible given his conflicting accounts of where he was and what he was doing on January 5th. Moreover, the court believed Dr. Peterson and Stephen Hanson that Emma sustained her burns before the morning of January 5th, up to approximately 24 hours before she was examined. Further, there is some evidence that petitioner knew that Emma was burned hours before he claims to have known. According to his statement to Detective Caldas, he changed Emma's diaper on the morning of January 5th, though he testified differently at the hearing. However, if petitioner changed Emma's diaper that morning, given the medical estimate of her burn, then he knew she was injured. Having viewed the photographs in the appellate record, we have no doubt petitioner would also have known that Emma required medical treatment.
However, even assuming petitioner knew that Emma was burned up to 24 hours before she was medically examined, any delay on his part in obtaining medical treatment does not constitute an omission under section 361.5, subdivision (b)(6) because, unlike the parents in Pablo S., there is no evidence that petitioner's delay caused Emma to suffer a serious injury. According to the evidence, her injury was serious the moment it was sustained. Further, there is no evidence that petitioner's delay caused Emma's burns to worsen or that immediate treatment would have improved her recovery. At most, the evidence paints petitioner as a negligent parent. However, the “Legislature did not intend the court to apply a standard of negligence when considering whether to deny reunification services to a parent under subdivision (b)(6).” (Tyrone W. v. Superior Court (2007) 151 Cal.App.4th 839, 850.) Rather, section 361.5, subdivision (b)(6) applies to “the parent ․ who inflicted severe physical harm to the child whether by act, omission or consent․” (Id. at 851.)
For the reasons stated above, we conclude substantial evidence does not support the juvenile court's finding that petitioner inflicted severe physical harm to Emma by omission. Therefore, we further conclude the juvenile court erred in denying petitioner reunification services pursuant to section 361.5, subdivision (b)(6). Having so concluded, we need not address petitioner's alternative argument that the court erred in finding that providing him reunification services would not benefit Emma.
Let an extraordinary writ issue directing respondent court to vacate its order of June 8, 2011, denying petitioner reunification services pursuant to section 361.5, subdivision (b)(6) and setting a section 366.26 hearing. Respondent court is further directed to conduct a new dispositional hearing, and after taking into consideration any new evidence or change in circumstances, make any appropriate orders. This opinion is final forthwith as to this court.
FN1. All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.. FN1. All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FN2. In order to protect anonymity, we refer to the children with unique names by their first and last initials. (Cal. Rules of Court, rule 8.401(a)(2).). FN2. In order to protect anonymity, we refer to the children with unique names by their first and last initials. (Cal. Rules of Court, rule 8.401(a)(2).)
FN3. Here, the juvenile court was undoubtedly referring to physicians' assistant Stephen Hanson who does not carry the title of medical doctor in the record.. FN3. Here, the juvenile court was undoubtedly referring to physicians' assistant Stephen Hanson who does not carry the title of medical doctor in the record.
FN4. Lisa did not file a writ petition.. FN4. Lisa did not file a writ petition.