S.E. v. Superior Court CA4/2 (2014) · DecisionDepot
S.E. v. Superior Court CA4/2
California Court of Appeal Sep 26, 2014 No. E061265Unpublished
Filed 9/26/14 S.E. v. Superior Court CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
S.E. et al.,
Petitioners, E061265
v. (Super.Ct.Nos. J252040 & J252041)
THE SUPERIOR COURT OF OPINION SAN BERNARDINO COUNTY,
Respondent;
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES,
Real Party in Interest.
ORIGINAL PROCEEDINGS; petition for extraordinary writ. Cheryl C. Kersey,
Judge. Petition denied.
Michael J. LaCilento, for Petitioner S.E.
David M. Levy, for Petitioner L.M.
Christine R. Sabans, for Minors.
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Jean-Rene Basle, County Counsel, and Dawn M. Messer, Deputy County Counsel,
for Real Party in Interest.
No appearance for Respondent.
Real Party in Interest, San Bernardino Children and Family Services (the
department), filed juvenile dependency petitions pursuant to Welfare and Institutions
Code section 3001 alleging, among other things, that H.M. (born 2013), the child of
Although the policy reasons for requiring bifurcated jurisdictional and
dispositional hearings in section 300 proceedings are not expressly stated in either the
statutes or case law, the apparent purpose can be gleaned from case law as an attempt to
prevent prejudice to the defendant by prohibiting a juvenile court from either
simultaneously considering jurisdictional and dispositional findings or even considering
dispositional findings prior to jurisdictional findings in joint hearings based on evidence
that would have been excluded from a separate jurisdictional hearing if the court had
bifurcated the proceedings. Thus, we hold that parents have a statutory right to bifurcated
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jurisdictional and dispositional hearings. The court erred in denying mother’s request for
bifurcation of the hearings.
As did the court below, the department mischaracterizes a request for bifurcation
of the proceedings as a request for a continuance. However, as noted above, a separate
dispositional hearing can be held immediately after the jurisdictional hearing without a
continuance. Indeed, the hearings can often be held on the same day.
Nonetheless, mother does not identify any specific constitutional right to a
bifurcated hearing that would implicate deprivation of her due process rights. Indeed,
here, mother was first given notice of a combined jurisdictional and dispositional hearing
on December 2, 2013, when the department filed its first report. The department filed a
combined, addendum report on January 16, 2014. Mother did not request bifurcated
hearings until April 25, 2014, after she had already been granted a continuance.
Although the original court before which she made her bifurcation request granted the
request, the subsequent, hearing court denied that request on April 30, 2014. The
contested hearing did not begin until June 2, 2014. Thus, mother had plenty of notice of
the hearing.
Moreover, mother fails to identify any prejudice she suffered regarding the stated
basis for her motion to bifurcate the proceedings. Her motion was based on the differing
burdens of proof at jurisdictional and dispositional hearings, not any difference in the
evidence that would not have been admissible at the jurisdictional hearing, but would
have been admissible at the dispositional hearing. Indeed, in denying the motion the
court noted it was aware of the differing burdens of proof. At the completion of the three
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day hearing, the court noted that it did not need the parties to address the differences
between the burdens of proof for jurisdiction and disposition. When the court announced
each of its findings, the court identified the correct, differing burdens of proof. Thus,
mother has failed to identify how she was prejudiced and the error was, therefore,
harmless. It was not reasonably probable the juvenile court would have rendered
different findings and rulings had it bifurcated the proceedings. (In re A.M. (2008) 164
Cal.App.4th 914, 928 [the violation of a statutory, rather than a constitutional, right is
reviewed under the Watson5 standard under which “we ascertain whether it appears
reasonably probable [parents] would have obtained a more favorable result if the juvenile
court had granted [their] requests . . . .”].)
B. Jurisdictional Finding.
Mother contends the court’s jurisdictional finding as to the e-5 allegation was not
supported by substantial evidence. We disagree.
“‘When a dependency petition alleges multiple grounds for its assertion that a
minor comes within the dependency court’s jurisdiction, a reviewing court can affirm the
[trial] court’s finding of jurisdiction over the minor if any one of the statutory bases for
jurisdiction that are enumerated in the petition is supported by substantial evidence. In
such a case, the reviewing court need not consider whether any or all of the other alleged
statutory grounds for jurisdiction are supported by the evidence.’ [Citation.] However,
we generally will exercise our discretion and reach the merits of a challenge to any
5 People v. Watson (1956) 46 Cal.2d 818.
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jurisdictional finding when the finding (1) serves as the basis for dispositional orders that
are also challenged on appeal [citation]; (2) could be prejudicial to the appellant or could
potentially impact the current or future dependency proceedings [citations].” (In re
Drake M. (2012) 211 Cal.App.4th 754, 762-763.)
“In dependency proceedings, the social services agency has the burden to prove by
a preponderance of the evidence that the minor who is the subject of the dependency
petition comes under the juvenile court’s jurisdiction. [Citations.] We review the
jurisdictional findings for substantial evidence. [Citation.] We consider the entire
record, drawing all reasonable inferences in support of the juvenile court’s findings and
affirming the order even if other evidence supports a different finding. [Citation.] We do
not consider the credibility of witnesses or reweigh the evidence. [Citation.] Substantial
evidence does not mean ‘any evidence,’ however, and we ultimately consider whether a
reasonable trier of fact would make the challenged ruling in light of the entire record.
[Citation.] The parent has the burden on appeal of showing there is insufficient evidence
to support the juvenile court’s order. [Citation.]” (In re Isabella F. (2014) 226
Cal.App.4th 128, 137-138.)
The juvenile court may adjudge a minor to be a dependent of the court when “[t]he
child is under the age of five years and has suffered severe physical abuse by a parent, or
by any person known by the parent, if the parent knew or reasonably should have known
that the person was physically abusing the child. For the purposes of this subdivision,
‘severe physical abuse’ means any of the following: any single act of abuse which causes
physical trauma of sufficient severity that, if left untreated, would cause permanent
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physical disfigurement, permanent physical disability, or death; . . . or more than one act
of physical abuse, each of which causes bleeding, deep bruising, significant external or
internal swelling, bone fracture, or unconsciousness . . . .” (§ 300, subd. (e), italics
added.)
Here, mother fails to challenge any of the other allegations that the court
sustained.6 Thus, she cannot challenge the court’s finding of jurisdiction on those other
bases. However, because the juvenile court’s finding regarding the e-5 allegation was the
basis for its dispositional finding to deny mother reunification services, we will exercise
our jurisdiction to address the merits of her claim.
Here, a reasonable finder of fact could have found that mother either inflicted or
reasonably knew someone else had inflicted severe physical abuse on A.M., which could
have caused permanent disability, or that more than one act of physical abuse causing
bone fractures had occurred. Doctors Massi and Young believed the fractures to A.M.’s
thigh bone and ribs were the result of physical abuse. MGM was concerned that parents
had abused minors. Parents posited no plausible explanation for the injuries. Especially
when viewed in context with the evidence of multiple rib fractures sustained by H.M. and
the physical injuries inflicted upon C.E., substantial evidence was adduced to support the
court’s finding.
6 The operative juvenile dependency petition made additional allegations that A.M. suffered serious physical injury due to abuse while in mother’s care (a-1); that mother failed to protect C.E. and A.M. from physical abuse (b-1); and that minors’ sibling, H.M., had suffered abuse placing minors at risk of similar abuse (j-1).{1CT 215- 219} The juvenile court found all these additional allegations true (although the minute order misidentifies the j-1 allegation as a “g” allegation).{2RT 427-428; 3CT 617-618}
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C. Dr. Hyman’s Testimony Regarding TBBD.
Parents contend the juvenile court abused its discretion by excluding from
evidence testimony from Dr. Hyman regarding TBBD on a Kelly/Frye7 basis. We agree
the court erred in excluding the evidence, but find the error harmless.
“‘The trial court has broad discretion in deciding whether to admit or exclude
expert testimony [citation], and its decision as to whether expert testimony meets the
standard for admissibility is subject to review for abuse of discretion.’ [Citation.]”
(People v. Brown (2014) 59 Cal.4th 86, 101.) “[A]bsent some special feature which
effectively blindsides the [fact finder], expert opinion testimony is not subject to Kelly[.]”
(People v. Stoll (1989) 49 Cal.3d 1136, 1157.) A testimonial opinion regarding a medical
diagnosis is not subject “to the special restrictions governing admission of new, novel, or
experimental scientific techniques not previously accepted in the courts. [Citations.]”
(Id. at pp. 1140-1141 [reversing as prejudicial error the trial court’s exclusion of medical
diagnoses on Kelly/Frye grounds].)
“‘“We have never applied the Kelly[] rule to expert medical testimony, even when
the [testimony] is . . . as esoteric as the reconstitution of a past state of mind or the
prediction of future dangerousness, or even the diagnosis of an unusual form of mental
illness not listed in the diagnostic manual of the American Psychiatric Association.”’
[Citation.] Our conclusion in Stoll applies fully to this case: ‘The psychological
testimony proffered here raises none of the concerns addressed by Kelly[]. The methods
7 People v. Kelly (1976) 17 Cal.3d 24; Frye v. United States (D.C. Cir. 1923) 293 F. 1013.
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employed are not new to psychology or the law, and they carry no misleading aura of
scientific infallibility.’ [Citation.]” (People v. Jones (2013) 57 Cal.4th 899, 953, quoting
People v. Stoll, supra, 49 Cal.3d at p. 1157.)
“It is important to distinguish in this regard between expert testimony and
scientific evidence. When a witness gives his personal opinion on the stand—even if he
qualifies as an expert—the jurors may temper their acceptance of his testimony with a
healthy skepticism born of their knowledge that all human beings are fallible. But the
opposite may be true when the evidence is produced by a machine: like many laypersons,
jurors tend to ascribe an inordinately high degree of certainty to proof derived from an
apparently ‘scientific’ mechanism, instrument, or procedure. Yet the aura of infallibility
that often surrounds such evidence may well conceal the fact that it remains experimental
and tentative.” (People v. McDonald (1984) 37 Cal.3d 351, 372-373 overruled on
another ground in People v. Mendoza (2000) 23 Cal.4th 896, 912-925.)
Here, any testimony proffered by Dr. Hyman regarding a diagnosis of TBBD,
whether accepted in the medical community or not, did not involve the use of a scientific
mechanism, instrument, or procedure, which differed from accepted methods such that
his opinion should have been excluded. Nevertheless, the error was harmless. (In re
Madison T. (2013) 213 Cal.App.4th 1506, 1510; In re Jordan R. (2012) 205 Cal.App.4th
111, 134 [“To the extent an alleged error violates state evidentiary law, ‘even where
evidence is improperly excluded, the error is not reversible unless “‘it is reasonably
probable a result more favorable to the appellant would have been reached absent the
error.’”’ [Citations.]”].)
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Here, even if Dr. Hyman had been allowed to opine that H.M or A.M had TBBD,
it is obvious the juvenile court would not have given his testimony any credence.
Medical Doctors Trenkle and Massi testified TBBD is not a condition generally accepted
by the medical community. Dr. Massi testified its progenitor had been discredited. The
juvenile court itself stated it “easily disregards the argument of weak bone fragility or
fragile bones or brittle bones. There is no medical evidence to support the evidence, and
the evidence is contrary to weak bone structure in that [A.M.] and [C.E.], neither have
had any medical issues, fractures, or any type of medical type abuse incidents since they
were removed from the mother and father.” Thus, it is not reasonably probable the
juvenile court would have issued differing rulings or findings, had Dr. Hyman been
permitted to testify regarding TBBD.
D. Reunification Services for Mother.
Mother contends insufficient evidence supports the juvenile court’s ruling denying
her reunification services. We disagree.
“When a ‘child [is] brought within the jurisdiction of the court under subdivision
(e) of Section 300 because of the conduct of that parent or guardian,’ the court may
decline to provide reunification services. (§ 361.5, subd. (b)(5).) A child who ‘is under
the age of five years and has suffered severe physical abuse by a parent, or by any person
known by the parent, if the parent knew or reasonably should have known that the person
was physically abusing the child’ comes within the reach of section 300, subdivision (e).
Severe physical abuse is defined to include more than one act of abuse where each act
causes a bone fracture. (§ 300, subd. (e).) When the [department] ‘proves by clear and
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convincing evidence that a dependent minor falls under subdivision (e) of section 300,
the general rule favoring reunification services no longer applies; it is replaced by a
legislative assumption that offering services would be an unwise use of governmental
resources.’ [Citation.] We review the court’s decision to deny reunification services
under the substantial evidence test to determine whether it is supported by evidence that
is reasonable, credible, and of solid value. [Citation.] ‘We do not reweigh the evidence,
nor do we consider matters of credibility.’ [Citation.]” (L.Z. v. Superior Court (2010)
188 Cal.App.4th 1285, 1291-1292.)
As discussed above, Doctors Massi and Young believed the fractures to A.M.’s
thigh bone and ribs were the result of physical abuse. MGM was concerned parents had
abused minors. Parents posited no plausible explanation for the injuries. Especially
when viewed in context with the evidence of multiple rib fractures sustained by H.M. and
the physical injuries inflicted upon C.E., substantial evidence was adduced to support the
court’s finding.
DISPOSITION
The petitions are denied.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS CODRINGTON J. We concur:
McKINSTER Acting P.J.
RICHLI J.
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AI Brief
AI-generated · verify before citing
Holding. The juvenile court erred by denying the mother's request to bifurcate the jurisdictional and dispositional hearings, but the error was harmless.
Issues
Whether the juvenile court erred in prohibiting an expert witness from testifying about Temporary Brittle Bone Disease.
Whether the juvenile court erred in denying the mother's request to bifurcate the jurisdictional and dispositional hearings.
Whether the juvenile court erred in finding the e-5 allegation true and denying reunification services.
Disposition. denied
Quotations verified verbatim against the opinion
“We hold the court erred by denying mother’s request. However, we hold the error was harmless.”
“What will not be allowed is any posturing or theorizing, speculation regarding Temporary Brittle Bone Disease.”
“The Court, after reviewing the brief filed by [the department], agrees with the position of the Department in that it lacks sufficient [re]liability”