California Court of Appeal May 8, 2015 No. E061959Unpublished
Filed 5/8/15 In re M.G. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
In re M.G. et al., Persons Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, E061959
Plaintiff and Respondent, (Super.Ct.No. J253696)
v. OPINION
M.C.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Christopher B.
Marshall, Judge. Affirmed.
Daniel G. Rooney, under appointment by the Court of Appeal, for Defendant and
Appellant.
Jean-Rene Basle, County Counsel, Danielle E. Wuchenich, Deputy County
Counsel, for Plaintiff and Respondent.
1
The juvenile court removed Child 1 and Child 2 (twin boys born August 2013;
collectively, the children) from defendant and appellant M.G. (mother), denied mother
reunification services, and denied mother visitation with the children. On appeal, mother
contends the court abused its discretion when it denied mother visitation with the
while he was crying, making a sound like one’s voice “makes when you jump up and
down while you scream,” which he made a few times, and then went silent. The
description was consistent with Dr. Young’s explanation of what happens when a baby is
shaken. Mother’s boyfriend said mother turned toward him holding Child 1. Child 1 was
having difficulty breathing, was becoming limp, lethargic, unresponsive, and having
seizures, all symptoms consistent with what Dr. Young said happens when a child is
shaken. Mother’s boyfriend stated mother “had a scared look on her face and this led
him to believe that she had harmed [Child 1].” Mother said, “‘Nothing happened, I didn’t
do anything.’”
Mother’s boyfriend said he could see mother in his peripheral vision and said,
“‘Yeah, man she shook him.’” He “described it as a lot of movement and a fast paced
jerking motion. [Mother’s boyfriend] described the movement as being very aggressive
and stated that after [Child 1] stopped making any noises at all, [mother] stated, ‘Oh my
god’.” He said that on April 21, 2014, he asked mother how she could do what she did to
Child 1; mother “began to cry and told him that she did not mean to hurt [Child 1].
Mother stated that she was frustrated and then changed the subject and told [boyfriend] to
not talk to the police or anyone else about this case.” Mother asked him whether they
could have additional children if DPSS terminated her parental rights as to the children in
the instant case.
Mother had enrolled in counseling and a parenting class. Her counselor noted
mother was “attending individual therapy sessions . . . and has demonstrated a very high
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level of motivation to continue on her path of personal growth. [¶] [Mother] presents
with a sincere willingness to learn and gain insight into her current situation. Re-
unification services would benefit [mother] and her two sons.” Mother had no visitation
with the children between May 23, and July 5, 2014, so she was having make-up visits of
two hours each on weekends. The social worker observed mother “remains unable to
provide a plausible explanation as to how these innocent, little babies were so badly
injured. She also has yet to take any responsibility for her actions, show any emotion or
express any remorse.”
In a July 21, 2014, psychological assessment of mother, the psychologist noted,
“The results did not indicate she likely has overt psychopathology, a propensity to abuse
children, or to be physically aggressive.” Although he could not determine whether a
particular individual had committed a particular offense, the psychologist wrote that
mother was “inconsistent with a person who had or would harm a child intentionally.”
The psychologist opined mother would be amenable to and would benefit from
reunification services.
On July 24, 2014, the juvenile court held the contested jurisdiction and disposition
hearing. Mother took the stand and invoked her Fifth Amendment right, via the
Fourteenth Amendment, to remain silent. Father’s counsel argued mother’s invocation of
her right to remain silent must be considered in determining the validity of the allegations
with respect to father. Mother’s counsel observed, “Your Honor, respectfully, I do
understand [in a] civil proceeding that if the witness takes the Fifth Amendment, the
Court can take a negative inference, not an indication of guilt.”
8
Dr. Grogan testified he had reviewed the children’s medical records. Child 1 had
suffered a subdural hematoma, cerebral edema, brain infarction, and significant retinal
hemorrhaging in all four quadrants of both eyes. There was evidence of an older cerebral
hematoma which most likely occurred within a few weeks prior to Child 1’s presentation
at the hospital. Although he could not rule out the possibility of an accidental cause for
Child 1’s injuries, it was “Extremely unlikely” they were accidental. He opined that
“shaking back and forth . . . is the most likely” manner in which Child 1 was injured.
The factors for Shaken Baby Syndrome were present in Child 1.
Child 2 showed evidence of a healing torus fracture of the distal radius which was
about two weeks old. The fracture is typically, accidentally caused in an ambulatory
toddler by a fall in which the toddler puts his hands out and experiences compression. It
is quite common for there to be no explanation for how the injury was sustained in an
ambulatory child. The injury is very easy to miss by a parent and heals on its own.
However, Child 2 was five or six months old at the time he sustained the injury and not a
toddler. In infants younger than six months, injuries such as that sustained by Child 2 are
unusual.
With respect to the type of injuries sustained by the children, Dr. Young testified
consistent with her opinions expressed in the reports. She testified that it was possible for
someone to conclude from reviewing Child 1’s CTs that there was an older cerebral
bleed. Nevertheless, she disagreed with Dr. Grogan that there was an older injury to
Child 1. Rather, she believed the injuries were acute or recent and “immediately
symptomatic.” Dr. Young opined it would not be possible for Child 1 to have been
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injured during visitation with his father on March 6, 2014, and have no symptoms until
mother found him unresponsive on March 8, 2014. Dr. Cynthia Tinsley, who worked in
the pediatric intensive care unit at LLUMC, testified Child 1’s symptoms were indicative
of injuries that occurred within minutes of their onset, not hours or days. Dr. Young
testified Child 1 incurred the death of brain tissue, which would not regenerate, resulting
in long-term developmental delays and problems with motor functioning such as cerebral
palsy.
Dr. Young’s examination of Child 2’s medical records reflected a fracture, which
“look[ed] on the order of probably two to three weeks [old].” She noted that “fractures
like this one are very atypical in a young infant like this.” Dr. Young noted, “If you’re an
infant and you’re not walking and falling, and you don’t have the reflex to put your arms
out, then, when we see these injuries in an inflicted manner, it’s typically from a bending
on the arm, which causes one side of the bone to fail, but not the other side.” She opined
the fracture was a non-accidental, intentionally inflicted injury due to physical abuse.
The investigating officer testified he interviewed mother’s boyfriend three times.
During the first two interviews mother’s boyfriend never stated mother did anything to
intentionally injure the children. It was only in the third interview that he inculpated
mother. Mother’s boyfriend, who had also been charged with the injuries to Child 1,
invoked his Fifth Amendment right, via the Fourteenth Amendment, to remain silent
upon being called to the stand.
A social worker testified she believed mother’s boyfriend’s accusations in the
third interview because they were consistent with the doctors’ reports. She did not
10
believe mother could benefit from reunification services because she had never discussed
how the children were injured: “[I]f you don’t discuss or admit that you are culpable or
you’ve been involved in inflicting these injuries, there’s no place to start as far as services
are concerned. I mean, there’s no admission of culpability or being even involved or
having any acknowledge[ment] at all of how the children were injured.”
The juvenile court found the allegations against mother, as amended, true;
removed the children from mother’s custody; and denied mother reunification services.
The court found mother inflicted the injuries on the children. It found Child 1’s injuries
were inflicted in mother’s care and custody and would have been immediately
symptomatic. The court found the injuries “certainly did not happen when [Child 1] was
in the father’s custody.”
The court noted, however, it was “not making any negative inference from the
invoking [of] the right not to testify by the mother . . . .” Nevertheless, the court
observed, “There has been no explanation from the mother as to what happened to [Child
1].” The court further noted, “[M]other has not taken responsibility, . . . she has not
discussed how [Child 1] got these severe injuries.” Furthermore, the court found “that—
given the significance, the horrific significance of this injury, given that there is no
statement or indication of responsibility for this by [mother] or an explanation—that it
would be detrimental and not in the best interest of the children to visit with the mother.
[¶] [I]t’s simply not in the best interest of the children in the Court’s view to have visits
with the mother at the present time.” It found mother’s progress had been minimal
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“because there’s been no discussion or responsibility or explanation or really anything
that would allow Mother to proceed here.”
The court further explained, “Reunification services need not be provided to the
mother in that there is clear and convincing evidence that [Child 1] has been brought
within the jurisdiction of the Court under Section 300[, subdivision](e) because of the
conduct of the mother pursuant to Section 361.5[, subdivision] (b)(6); [Child 1] has been
adjudicated as a dependent of the Court pursuant to Section 300 as a result of severe
physical abuse by the mother to [Child 1].” “And lastly, according to [section] 361.5[,
subdivision] (b)(7), the mother is not receiving reunification services for a sibling to
[Child 1] pursuant to [section] 361.5[, subdivision] (b)(7).” “Mother’s visitation is found
to be detrimental and not in [Child 1’s] best interest for the reasons I have outlined.”
DISCUSSION
Mother contends the court abused its discretion when it denied her visitation with
the children. Mother takes issue with what she construes as the court’s consideration of
her invocation of her right to remain silent as one of the bases for denying visitation. We
disagree.
“Absent a showing of detriment caused by visitation, ordinarily it is improper to
suspend or halt visits even after the end of the reunification period. [Citations.]” (In re
Luke L. (1996) 44 Cal.App.4th 670, 679.) “[S]ection 361.5, subdivision (f) gives the
court discretion to allow the parent to continue visitation with his or her child unless it
finds that visitation would be detrimental to the child. In the latter event, subdivision (f)
provides that the court does not have discretion to continue to permit visitation.” (In re
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J.N. (2006) 138 Cal.App.4th 450, 457, second italics added.) “[V]isitation is not integral
to the overall plan when the parent is not participating in the reunification efforts.” (Id. at
pp. 458-459.) We review a juvenile court’s decision to deny visitation for abuse of
discretion. (Id. at p. 459.)
“California law offers a promise to a parent that his or her testimony in juvenile
dependency proceedings, as well as his or her statements made in therapy in furtherance
of the reunification process, will not be used against the parent in a subsequent criminal
prosecution. Thus, while the law may legitimately require a parent to admit
responsibility for wrongful acts as a condition to be fulfilled in therapy, and while the
parent has some protection if he or she chooses to testify, the consequences of the
parent's decision not to acknowledge his or her wrongdoing, or not to testify, must be
limited to the usual consequences occasioned by the lack of cooperation in the
reunification process, or by the failure to present evidence. The parent remains free to
refuse the law’s exclusionary offer, and to stand on the Fifth Amendment without other
sanction, both in court and in therapy.” (In re Mark A. (2007) 156 Cal.App.4th 1124,
1142, italics added.)
Here, the juvenile court expressly found it would be detrimental to grant mother
visitation with the children. Thus, the court did not have discretion to grant mother
visitation.
Nonetheless, assuming arguendo that it did, the court’s denial of visitation was
well within its discretion. Mother had made numerous statements about not wanting the
children. Child 1 incurred severe physical injuries, which a number of doctors testified
13
could only have occurred a short time before he was brought to the hospital, and were the
result of intentional physical abuse. The injuries occurred while Child 1 was in mother’s
care and custody. Mother’s boyfriend reported he witnessed mother aggressively shake
Child 1, after which he became listless.
The juvenile court found mother had intentionally inflicted the injuries on Child 1
while he was in her care and custody and that the symptoms of the injuries appeared
immediately. The court also found mother had inflicted injury on Child 2. Thus, to the
extent the juvenile court had discretion to grant mother visitation despite its finding of
detriment, the court acted within its discretion in denying visitation because mother posed
a danger to the children.
With respect to mother’s contention that the court erroneously made a negative
inference regarding mother’s silence concerning the case, it is clear that despite the
juvenile court’s insistence it was not making such an inference, it did exactly that. The
court noted several times that mother had not given any explanation for Child 1’s injuries
and had failed to take responsibility for the injuries. This is a negative inference from
mother’s silence. However, as noted by both father and mother’s counsel below, unlike a
criminal court, the juvenile court may make negative inferences from a parent’s refusal to
take responsibility or acknowledge her wrongdoing. (In re Mark A., supra, 156
Cal.App.4th at p. 1142.) Thus, the court acted appropriately in making such inferences
from mother’s silence regarding the injuries sustained by the children.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
HOLLENHORST Acting P. J.
MILLER J.
15
AI Brief
AI-generated · verify before citing
Holding. The juvenile court did not abuse its discretion in denying the mother visitation with her children after finding that such visitation would be detrimental to the children due to the mother's role in inflicting severe physical abuse.
Issues
Did the juvenile court abuse its discretion by denying the mother visitation with her children?
Did the juvenile court improperly draw a negative inference from the mother's invocation of her Fifth Amendment right to remain silent?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The juvenile court expressly found it would be detrimental to grant mother visitation with the children. Thus, the court did not have discretion to grant mother visitation.”
“the juvenile court may make negative inferences from a parent’s refusal to take responsibility or acknowledge her wrongdoing.”
“the court acted appropriately in making such inferences from mother’s silence regarding the injuries sustained by the children.”