KARINA v. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Karina G. (mother) has filed a petition pursuant to California Rules of Court, rule 8.452, challenging the juvenile court's order terminating family reunification services with her child Alex G. (Alex)and setting the underlying proceeding for a hearing to consider the termination of mother's parental rights (Welf. & Inst.Code, § 366.26).¹  We deny mother's petition.

BACKGROUND

Mother is the biological mother of Alex and Laylanee R. (Laylanee).  At all relevant times, Mother, Alex, and Laylanee lived in the same home with maternal grandmother (grandmother), maternal aunt (Gabby), and maternal uncle.

On October 17, 2009, Laylanee, six months old at the time, was found face down and motionless in her crib.   Paramedics pronounced her dead shortly thereafter.   Based on the circumstances of Laylanee's death, the Los Angeles Police Department (LAPD) made a referral to the Los Angeles County Department of Children and Family Services (DCFS) regarding possible abuse of Alex by mother.   Mother agreed to voluntary family maintenance services.   DCFS provided mother with bereavement counseling, but mother attended only one session.

On May 18, 2010, LAPD's Abused Child Unit took two-year-old Alex into police custody after a report by the Los Angeles County Coroner's Office (Coroner's Office) deemed Laylanee's death “suspicious.”   At the time LAPD took him into custody, Alex had body odor, his diaper was soaked with urine, his clothes were stained and dirty, and he was in need of bathing.

On the same date, mother and maternal grandmother agreed to interviews with LAPD. They were placed in the same room together without police officers present.   Their conversation, however, was monitored.   During their conversation, grandmother warned mother not to change her “story,” and they both agreed that they needed to talk to Gabby before police investigators had the opportunity to do so.

LAPD officers interviewed Gabby later that evening.   Gabby told them that mother was responsible for Laylanee's injuries and that grandmother was present when mother inflicted the injuries.   In a subsequent interview, Gabby stated that she had never seen mother hit Laylanee, but that she believed mother could “have done something” to Laylanee.   Gabby recalled two instances in which Laylanee rolled off the couch.   Gabby, and not mother, was the person to pick Laylanee up and comfort her.   In a third interview, Gabby told LAPD officers that mother considered Laylanee a burden, and resented Laylanee because mother viewed Laylanee's birth as the reason why Laylanee's biological father abandoned mother.   When asked how Laylanee was injured, Gabby replied that mother was responsible for the injuries and likely caused them by hitting Laylanee in the head.   Gabby stated that mother had frequent outbursts during which mother would lock herself in a room with Laylanee, and recounted one incident during which mother “snatched” Laylanee out of Gabby's arms.

LAPD placed mother and grandmother under arrest for child abuse.²  DCFS assumed custody of Alex from LAPD and filed a dependency petition under section 300, alleging that Laylanee had suffered traumatic brain injures while in mother's care, that Alex was at risk of similar harm, and that Alex's biological father, whose whereabouts were unknown, had failed to provide Alex with the necessities of life (e.g., food, clothing, shelter, and medical care).

Children's Social Worker (CSW) Robert King interviewed mother.   Mother told King that on the morning of Laylanee's death, she fed and changed Laylanee, and then placed Laylanee in her crib.   Mother, maternal grandmother, and Alex left to go shopping and Gabby stayed to babysit Laylanee.   Mother maintained that Laylanee was alive and well when she left her.   When asked whether Laylanee had ever suffered a head trauma prior to her death, mother described an incident during which Laylanee accidentally rolled off the couch and onto the floor while mother was in the kitchen preparing her bottle.   According to mother, because Laylanee was not bleeding and had stopped crying when mother picked her up, mother believed it was unnecessary to seek medical attention for Laylanee.   Although mother could not recall when this incident occurred, she insisted it was the only incident during which Laylanee could have suffered a head trauma.

Attached to the detention report was an autopsy report prepared by Dr. Lisa Scheinin, a deputy medical examiner with the Coroner's Office.   The autopsy report, dated May 2, 2010, noted the following:  According to Laylanee's family, Laylanee had been unable to turn her head to the left starting at four months of age, and approximately two weeks before her death, Laylanee began spitting up large amounts of food, and displayed a fever, vomiting, and increased fussiness.   After performing an autopsy on Laylanee, Dr. Scheinin concluded:

“This infant has multiple brain malformations.   Although no acute trauma was present, the subacute hemorrhage and dural neomembranes indicate prior head trauma.   The age of the neomembrane is less than a month;  thus, there is a possible temporal correction with the age of the neomembrane and the observed increased fussiness, crying, and spitting up.   No information about any previous head trauma is available, so the nature of the injury remains unknown.   For this reason, the cause and manner of death are undetermined.   The focal cortical necrosis ․ may indicate more recent trauma.”

The juvenile court sustained the allegations of endangerment against mother and father, and detained Alex. As to mother, the juvenile court ordered reunification services in the form of anger management classes, parenting classes, and individual counseling.   As to father, the juvenile court ordered DCFS to present evidence of due diligence in attempting to locate father.   The court also permitted monitored visitations by both mother and father.³  At a subsequent hearing, the juvenile court postponed making any jurisdictional findings until the parties had an opportunity to mediate.

An interim review report filed by DCFS on July 27, 2010, reported the following:  Mother admitted during a subsequent interview with law enforcement officials that approximately one month before Laylanee's death (i.e., when Laylanee was five months old), mother had thrown Laylanee up into the air and did not catch her.   Laylanee landed on her head when she hit the floor.   Mother did not seek any medical attention for Laylanee.

The interim report also included a follow-up autopsy report authored by Dr. James Ribe, a senior medical examiner at the Coroner's Office.   After examining Laylanee's file and Dr. Scheinin's case notes, Dr. Ribe concluded:

“The autopsy showed evidence of three different head injuries occurring at different times.   All three of them could have been inflicted, and no non-inflicted explanation has come forward.   The aunt states that the mother had injured decedent.   Therefore, the medical evidence indicates with reasonable medical probability that this is a case of battered child syndrome, diagnosed by multiple inflicted injuries of different ages.”

“In my opinion, the autopsy and the newly developed historical information taken together are diagnostic of physical abuse.   It is not diagnostic of physical abuse having caused the death, but that possibility remains open.   The likelihood of imposed suffocation as the case of death remains open.”

“With a diagnosis of physical abuse having been established, I recommend that the death certificate be amended by adding the words ‘abusive head trauma’ under ‘other conditions contributing but not necessarily related to the immediate cause of death’ (line 112), and that the manner of death be changed to ‘homicide.’ ”

In light of Dr. Ribe's follow-up report, the mediation was not successful and the juvenile court continued the matter.

In anticipation of the jurisdictional hearing, DCFS reported that mother was attending counseling regularly, was “motivated to work on her goals,” and was “responsive to feedback and interventions.”   Additionally, mother had completed seven parenting classes, 10 academic and life skills classes, and had enrolled in an anger management program.

At the jurisdictional hearing, DCFS called mother to testify.   Mother declined to answer any question posed by DCFS, including whether she was Alex's mother, based on her Fifth Amendment right against self-incrimination.

Dr. Hideo H. Itabashi, a neuropathologist for the Coroner's Officer, testified.   In the course of examining Laylanee's brain, Dr. Itabashi observed three injuries on Laylanee's brain:  a small area of dead tissue on the cerebral cortex (i.e., “cerebral cortical necrosis”), an unusually thin layer of cells covering the surface of the cerebellum (i.e., “deficient external granule cell layer”), and a hematoma on a layer of brain tissue (i.e., “subdural hematoma”).   Dr. Itabashi explained that the cerebral cortical necrosis was due to a lack of oxygen to the brain, which likely occurred during a partial loss of cardiac function.   Likewise, the deficient external granule cell layer was due to a lack of oxygen, possibly due to cardiac failure, a temporarily impaired airway, or repeated episodes of temporary suffocation.   Finally, the subdural hematoma was likely caused by some sort of trauma to Laylanee's head.

Dr. Itabashi testified that he could not, based on his examination of Laylanee's brain alone, determine the cause of Laylanee's death.   Nonetheless, Dr. Itabashi testified that based on what he observed during his examination, he was inclined to agree with

Dr. Ribe's conclusion that Laylanee was a victim of battered child syndrome.

Dr. Lisa Scheinin, the medical examiner who performed the autopsy on Laylanee, testified.   Dr. Scheinin observed that Laylanee's body showed no signs of bruising or skeletal fractures.   Her brain, however, contained a hemorrhage that appeared to have occurred more than 24 hours before her death.   Laylanee's brain appeared enlarged and somewhat triangular, which did not seem “completely normal” to Dr. Scheinin.

Dr. Scheinin also observed that Laylanee's eyes were abnormally spaced and that she had no olfactory nerves.   Neither of these anomalies, however, would have been a direct cause of Laylanee's death.   Dr. Scheinin testified that in light of additional evidence regarding mother's abuse of Laylanee, she agreed with Dr. Ribe's conclusion that “abusive head trauma” had contributed to Laylanee's death in some fashion.

Dr. Marvin Pietruszka, a board certified anatomic and clinical pathologist, testified as a defense expert.   After reviewing the arrest report, the reports by Drs. Scheinin, Ribe, and Itabashi, and the autopsy photographs, Dr. Pietruszka was of the opinion that Laylanee died of an acute brain bleed that was likely due to existing brain malformations that made Laylanee more susceptible to bleeding.   Dr. Pietruszka further opined that the hematoma observed on Laylanee's brain was possibly a result of her falling off the couch, but was more likely a result of her head hitting the floor after mother tossed her in the air but failed to catch her.   According to Dr. Pietruszka, there was “absolutely no[ ]” evidence to support the Coroner's Office's conclusion that Laylanee died as a result of homicide.

Maternal aunt, Gabby, testified that mother was a “good mother” to both Laylanee and Alex. According to Gabby, on the day of Laylanee's death, Gabby saw mother and maternal grandmother go into Laylanee's room to feed and bathe Laylanee.   When they were done, they left with Alex to go shopping.   Gabby checked on Laylanee approximately 15 minutes later and found Laylanee face down on the crib mattress.   She turned Laylanee over and saw that she had a white complexion and was not moving.   Gabby called maternal uncle and he called 9-1-1.

When asked why she implicated mother in Laylanee's death to police investigators, Gabby initially testified that she had never implicated mother.   When pressed further, Gabby maintained that LAPD detectives had subjected her to aggressive questioning and basically forced her to falsely implicate mother in Laylanee's death.   Gabby maintained that neither mother nor maternal grandmother had ever been violent toward Laylanee or Alex.

At the close of evidence and after providing counsel with the opportunity for argument, the juvenile court assumed jurisdiction over Alex and declared him a dependent of the court based on section 300, subdivisions (a), (b), (f), and (j).⁴

The juvenile court proceeded directly to disposition.   DCFS called mother to testify about her progress with reunification services and whether she wanted additional reunification services with Alex. Mother, however, refused to answer any questions, citing her Fifth Amendment right against self-incrimination.

Melissa Aguilar, an investigator for DCFS, testified to the following:  Mother had been attending counseling on a weekly basis, and her therapist described her as motivated and responsive to feedback and interventions.   Mother also participated in some parenting and anger management courses.   There were no reports that mother behaved inappropriately toward Alex during her visits with him.   Counsel stipulated that if Alex's foster mother were called to testify, she would testify that mother consistently visited Alex, and that Alex asked about mother in between visits.

At the close of evidence, Alex's counsel joined in DCFS's recommendation that the juvenile court order no further reunification services.

The juvenile court found by clear and convincing evidence that mother caused Laylanee's death by abuse and neglect, and that it would not be in Alex's best interest to be reunified with mother.   The juvenile court further found that Alex was similarly situated to Laylanee, and that additional reunification services would not improve the situation.

The juvenile court ordered the termination of reunification services and scheduled a hearing to consider the termination of parental rights for April 12, 2010.

DISCUSSION

We review the juvenile court's order under the substantial evidence standard, viewing the evidence in a light most favorable to the dependency court's findings.

(In re Misako R. (1991) 2 Cal.App.4th 538, 545.)   Substantial evidence is evidence that is “ ‘reasonable, credible and of solid value’ ” that would allow a reasonable trier of fact to reach the same conclusion as the juvenile court.  (In re Christina A. (1989)

213 Cal.App.3d 1073, 1080.)   Where there is any substantial evidence to support the court's order, contradicted or not, we must affirm the dependency court's decision.  (In re Tracy Z. (1987) 195 Cal.App.3d 107, 113.)

Mother argues that substantial evidence does not support the juvenile court's findings that:  (1) there was a history of repeated inflictions of injuries on Laylanee, and (2) that mother caused the death of Laylanee through abuse or neglect.   Mother's argument is without merit.   There was ample evidence to support both findings.

We turn first to the juvenile court's finding that there was a history of repeated inflictions of injuries on Laylanee. (§ 300, subd. (a).)  Mother admitted to two instances in which Laylanee sustained head trauma under her care.   In the first instance, Laylanee rolled off a couch and hit her head on the floor after mother left her unsupervised.   In the second instance, a far more severe instance, Laylanee hit her head on the floor after being tossed in the air by mother.   In both instances, mother did not seek medical attention for Laylanee.   Furthermore, Gabby, the maternal aunt, told police investigators that she believed mother was responsible for Laylanee's multiple injuries and that mother likely hit Laylanee in the head.   Although Gabby retreated from these statements at the jurisdictional hearing, the juvenile court was entitled to believe what Gabby initially told police investigators, especially in light of the monitored conversation between mother and maternal grandmother wherein they voiced concerns about what Gabby would say to the police.

Dr. James Ribe, a senior medical examiner at the Coroner's Office, revisited Laylanee's autopsy and concluded that there was physical evidence of three different head injuries occurring at three different times.   This evidence, coupled with the statements made by mother and Gabby, indicated with “reasonable medical probability” that this was a case of “battered child syndrome.”   Additionally, Dr. Ribe concluded that it was possible that physical abuse or suffocation contributed in some fashion to Laylanee's death, and accordingly recommended that her death certificate reflect “homicide” as the manner of death.   Dr. Ribe's conclusion was bolstered by Dr. Itabashi, who testified that based on what he observed during his examination, he was inclined to agree with Dr. Ribe's conclusion that Laylanee suffered from battered child syndrome.

We turn next to the juvenile court's finding that mother caused Laylanee's death through neglect or abuse. (§ 300, subd. (f).)  “Section 300, subdivision (f), requires a causal connection between the parent's acts or omissions and a child's death.   A cause is defined as ‘[s]omething that produces an effect or result.’  (Black's Law Dict.

(9th ed.2009) p.   250, col. 1.) Under both criminal and civil standards, a causal connection occurs when the acts of an individual are a substantial factor contributing to a death or injury.”  (In re A.M. (2010) 187 Cal.App.4th 1380, 1388.)   As noted above,

Dr. Ribe concluded that Laylanee's manner of death was by homicide, and he identified “abusive head trauma” as a ‘ “condition[ ] contributing but not necessarily related to the immediate cause of death.” ’   In other words, abusive head trauma, while perhaps not the immediate cause of death, contributed to Laylanee's death.   And there was ample evidence that mother caused abusive head trauma to Laylanee as a result of neglect or abuse.   Mother admitted that she had failed to seek medical attention for Laylanee after Laylanee rolled off the couch, and after she hit the ground from being tossed in the air.   Additionally, Gabby stated in police interviews that mother resented Laylanee, and had caused physical injuries to Laylanee, including hitting Laylanee in the head.   This evidence, when viewed according to the proper standard of review, was certainly sufficient to support the juvenile court's finding that mother caused Laylanee's death through neglect or abuse. (§ 300, subd. (f).)

In addition to challenging the juvenile court's jurisdictional findings, Mother also challenges the court's decision not to order additional reunification services.  “Reunification services need not be provided to a parent or guardian described in this subdivision when the court finds, by clear and convincing evidence, any of the following․  [¶] ․ [¶] That the parent or guardian of the child has caused the death of another child through abuse or neglect.” (§ 361.5, subd. (b)(4).)   Here, the juvenile court found by clear and convincing evidence that mother caused Laylanee's death through abuse and neglect, and this finding, as discussed above, was supported by substantial evidence.

In sum, we conclude the juvenile court properly terminated family reunification services and set the underlying proceeding for a hearing pursuant to section 366.26.

DISPOSITION

The petition for extraordinary writ is denied.   Pursuant to California Rules of Court, rule 8.264(B)(3), this opinion is made final forthwith.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

BOREN

We concur:

FOOTNOTES

FN1. All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.   All further rule references are to the California Rules of Court..  FN1. All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.   All further rule references are to the California Rules of Court.

FN2. In 1993, grandmother was convicted of felony child cruelty after inflicting burns on mother when mother was a young child.   Grandmother was sentenced to 90 days in jail and three years of probation..  FN2. In 1993, grandmother was convicted of felony child cruelty after inflicting burns on mother when mother was a young child.   Grandmother was sentenced to 90 days in jail and three years of probation.

FN3. Father is not a party to the present petition challenging the juvenile court's order setting a hearing for the termination of parental rights.   Accordingly, we will omit any further discussion in the case history as it pertains to father..  FN3. Father is not a party to the present petition challenging the juvenile court's order setting a hearing for the termination of parental rights.   Accordingly, we will omit any further discussion in the case history as it pertains to father.

FN4. Welfare and Institutions Code section 300 provides:  “Any child who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court:  [¶] (a) The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm inflicted nonaccidentally upon the child by the child's parent or guardian.   For the purposes of this subdivision, a court may find there is a substantial risk of serious future injury based on ․ a history of repeated inflictions of injuries on the child or the child's siblings, ․ [¶] (b) The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child, ․ [¶] ․ [¶] (f) The child's parent or guardian caused the death of another child through abuse or neglect ․ [¶] ․ [¶] (j) The child's sibling has been abused or neglected, as defined in subdivision (a), (b), (d), (e), or (i), and there is a substantial risk that the child will be abused or neglected, as defined in those subdivisions.”.  FN4. Welfare and Institutions Code section 300 provides:  “Any child who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court:  [¶] (a) The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm inflicted nonaccidentally upon the child by the child's parent or guardian.   For the purposes of this subdivision, a court may find there is a substantial risk of serious future injury based on ․ a history of repeated inflictions of injuries on the child or the child's siblings, ․ [¶] (b) The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child, ․ [¶] ․ [¶] (f) The child's parent or guardian caused the death of another child through abuse or neglect ․ [¶] ․ [¶] (j) The child's sibling has been abused or neglected, as defined in subdivision (a), (b), (d), (e), or (i), and there is a substantial risk that the child will be abused or neglected, as defined in those subdivisions.”

_, J. _, J. ASHMANN-GERST CHAVEZ