California Court of Appeal Jun 9, 2023 No. E080657Unpublished
Filed 6/9/23 In re L.L. CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 L.L. et al., Persons Coming Under the Juvenile Court Law.
L.M. et al., E080657 Petitioners, (Super. Ct. No. RIJ1900326 ) v. OPINION THE SUPERIOR COURT OF RIVERSIDE COUNTY,
Respondent;
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES,
Real Party in Interest.
ORIGINAL PROCEEDINGS; petition for extraordinary writ. Mona Nemat,
Judge. Petition denied.
David Goldstein for Petitioner L.M.
Bryan Fazio for Petitioner M.L.
No appearance for Respondent.
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Minh C. Tran, County Counsel, Teresa K.B. Beecham and Larisa R-McKenna,
Deputy County Counsels, for Real Party in Interest.
Pauline Obata-Hirose and Laurie Burns, for minors.
I.
INTRODUCTION
Following a contested jurisdictional/dispositional hearing, the juvenile court
adjudged five-year-old Dev.L. (Dev.), four-year-old Dem.L. (Dem.) and two-year-old 1 L.L. dependent children under Welfare and Institutions Code section 300, subdivisions
(a) (severe physical harm), (b)(1) (failure to protect), (e) (severe physical abuse), and (j)
(abuse of sibling) because of severe physical abuse the children sustained in the care of 2 their parents, petitioners L.M. (Mother) and M.L. (Father). The juvenile court denied
the parents reunification services under section 361.5, subdivision (b)(3), (5), (6) and (7)
and set a section 366.26 hearing.
The parents seeks an extraordinary writ under California Rules of Court, rule
8.452 from the juvenile court’s order setting the section 366.26 hearing and a stay of the
section 366.26 hearing. Mother contends there was insufficient evidence to support the
allegations under subdivisions (a) and (e) and that bypassing reunification services was
not in the children’s best interest. Father argues there was insufficient evidence to
1 All future statutory references are to the Welfare and Institutions Code. 2 Mother’s older children (Da.C. and Do.C.) with a different father (D.C.) are not subjects of this appeal.
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support a denial of reunification services under either section 361.5, subdivision (b)(3),
(5) or (6) and that the court showed bias by believing one expert testimony over another
expert’s testimony. We deny the petitions and the parents’ request for a stay.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Initial Petition
The family came to the attention of the Riverside County Department of Public
Social Services (DPSS) on June 11, 2019, after an immediate response referral was
received with allegations of physical abuse to then one-month old Dem. Mother and
Father had brought Dem. to a hospital because the infant was vomiting, lethargic, and had
a seizure. The referral noted “the ophthalmology department found hemorrhages in his
eyes, which was reported as an indicator for Shaken Baby Syndrome. . . . Both parents
denied any falls or head trauma for Dem[.]”
The social worker attempted to contact the parents but was unsuccessful. The
social worker eventually contacted Mother on June 14, 2019 with the assistance of law
enforcement at the hospital. Mother did not know where the fathers or the other children
were. She denied any head trauma to Dem. or any accident in which he may have fallen,
but noted that he had a traumatic birth with the umbilical cord wrapped around his neck
twice. Mother explained that she had taken Dem. to the hospital on May 17, 2019
because he had thrown up his feeding at around 3 p.m. and it was green. The hospital,
however, cleared him to return home. On June 9, 2019, Mother stated her fiancée was
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feeding Dem. and his eyes rolled back, so they brought him to the hospital. Dem.’s
treating doctor indicated that Dem.’s bleeding in the eyes and the fluid in his brain were
“‘high indicators of shaken baby.’” The doctor also stated Dem. still had fluid on his
brain that was being drained and that there were no skull fractures or other fractures.
Dem. was diagnosed with subdural hematoma and retinal hemorrhages with concerns for
Shaken Baby Syndrome.
After Mother continued to deny having any information regarding the location of
Father or the older children, law enforcement arrested her for impeding an investigation.
Law enforcement eventually located Father. Father stated Da.C. was at a football
practice and the other two children were with the paternal grandmother at an unknown
location. Law enforcement detained Father for child endangerment. DPSS placed Dem.
and Da.C. in protective custody, and obtained protective custody warrants as to Dev. and
Do.C., however the paternal grandmother and the parents evaded efforts to execute the
warrants.
The parents had 12 prior child welfare referrals, commencing in March 2013, for
allegations relating to physical abuse and general neglect. The referrals were closed as
unfounded and/or inclusive or evaluated out.
On June 14, 2019, DPSS filed a petition on behalf of the children pursuant to
physical abuse), (g) (no provision for support), and (j) (abuse of sibling).
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At the June 17, 2019 detention hearing, the juvenile court formally detained the
children from parental custody, provided the parents with supervised visitation and pre-
dispositional services, and continued the matter for further investigation. Following
further investigation, DPSS amended the petition.
On June 21, 2019, a forensic medical examination was performed on then two-
month-old Dem. by Dr. Sophia Grant. Dr. Grant found a linear abrasion on Dem.’s right
upper leg and an erythematous bruise on the right side of his face which was uncommon
for his age, and determined Dem. sustained injuries that were concerning for non-
accidental trauma. Dr. Grant also observed Dem. had a lesion on the right tibia which
was consistent with an abusive injury. Dem.’s treating physician at the hospital
determined that there were concerns of Shaken Baby Syndrome, noting Dem. sustained
retinal hemorrhages in both eyes which was highly suspicious for traumatic injury. The
doctor further noted that Dem. had signs of old bleeding but no scalp contusions, “which
meant the injury could be due to acceleration/deceleration injury and that shaking was a
common mechanism of acceleration/deceleration.”
A July 24, 2019 forensic medical examination of Dem. confirmed he was a victim
of trauma including high velocity head injury with acceleration/deceleration and
rotational forces to his head. The abusive head trauma was not a singular event and had
occurred more than once “given the chronic nature of the subdurals.” The medical
examiner opined Dem. may suffer long term developmental consequence as a result of
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the trauma. Dem. continued to suffer seizure activity and was classified as a medically
fragile child, with possible developmental disability.
The parents’ supervised visitation with the older children went well. They
appropriately played with their boys and comforted them when they were upset.
However, there were concerns with Father being too rough with the boys. In July 2019,
DPSS provided the parents with referrals for services, and they indicated they would
enroll in individual therapy. As of August 2019, the parents were attending parenting
classes, but had not provided confirmation of being enrolled in counseling services.
The jurisdictional/dispositional hearing was held on October 16, 2019, over the
course of nine days. The juvenile court struck the subdivisions (a) and (e) allegations of
section 300, and found true the allegations under subdivisions (b) and (j). The court
declared the children dependents of the court, provided reunification services to Mother
and Father, and family maintenance services to father D.C.
On June 9, 2020, the court placed the children back in the parents’ care, and 3 terminated the dependency on December 9, 2020.
B. Reactivated Petition
A day after the dependency was terminated, on December 10, 2020, DPSS
received a referral that Dem. was admitted to the emergency room as a CT scan showed a
new acute subdural hemorrhage. The following day, the social worker confirmed that
Dem. was admitted due to acute subdural hemorrhage consistent with Shaken Baby
3 Mother’s older children were returned to the custody of their father D.C.
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Syndrome. The doctor noted the injury occurred within the last month, and the bleeding
was caused by “‘trauma acceleration and trauma deceleration.’” The doctor emphasized
that it was “‘a clear indication of physical abuse to the head.’”
Mother refused to speak with law enforcement and the social worker. However,
child abuse specialist Dr. Laura Jacobson stated Mother had informed medical staff that
the child had no trauma history, that he was rambunctious and that he hurts himself. Dr.
Jacobson noted that absent trauma history, the injuries were consistent with physical
abuse to the head. Dr. Jacobson also stated that Mother was attempting to leave the
hospital against medical advice. Dev. and Dem. were taken into protective custody.
On December 15, 2020, DPSS filed a reactivated petition alleging serious physical
harm, severe physical abuse and neglect of Dem. and neglect of Dev. (§ 300, subds. (a),
(b), (e), & (j)).
On December 16, 2020, DPSS filed an amended petition to include then three-
month-old sibling L.L., whom the parents had kept undisclosed to DPSS. On this same
day, the juvenile court formally removed the children from the physical custody of the
parents.
DPSS recommended the court find true the allegations in the amended petition,
that both parents be denied services pursuant to section 361.5 subdivision (b)(5) and
(b)(6), and that a section 366.26 hearing be set. Dev. exhibited aggressive behaviors in
his foster placement. He also disclosed to the foster parent that his parents would hit him
in the face and demonstrated it by slapping himself. The children’s forensic medical
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examinations revealed that Dev. and L.L. were determined to have experienced neglect.
L.L. had insufficient nutrition and growth, and Dev. had a previous tibia fracture
consistent with abusive injury. A subsequent examination of Dev. showed he had
sustained facial bruising and a fractured tibia that were suspicious for physical abuse.
Dem.’s forensic examination revealed his injuries were highly suspicious for physical
abuse.
DPSS noted that the parents had previously been offered parenting classes,
individual counseling and medically fragile training, yet this was the second time Dem.
had suffered a “‘brain bleed’” while in his parents’ care and the parents had failed to
provide a credible explanation for Dem.’s injuries. DPSS was concerned the parents may
be physically abusing the children based on prior history, the explanation of how the
injury likely occurred from medical professionals, as well as Mother refusing to speak
with law enforcement and DPSS.
In February, March and April 2021, DPSS filed second, third and fourth amended
petitions, respectively, correcting errors in the prior petition and adding allegations based
on Dev.’s tibia fracture and Mother’s child welfare history.
Dem. underwent a new MRI in late May 2021. The results of his new MRI
showed “‘[s]table extensive bi-lateral cervical micro hemorrhage concerning for acute
axonal injury.’” Dem. was assessed for and it was determined he had no bleeding
disease. Dem.’s addendum forensic medical examination showed that Dr. Grant had
specified the medical records she relied on to make her findings, further analyzed the
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basis for the determination that Dem. was a victim of abusive head trauma, and
confirmed her finding of physical abuse. Dr. Grant also explained Mother’s claim that
Dem. had Factor V Leidin mutation causing easy bruising was incorrect, as that condition
contributes to thrombotic events rather than bleeding or bruising. Dr. Grant also
expressed concern “‘about the back and forth between bio parents and resource parents.’”
The doctor explained: “‘This type of instability is detrimental to the mental health of this
child. Also concerning is the antisocial/aggressive behavior. I recommend trauma
counseling and educational/developmental evaluation.’”
The contested jurisdictional/dispositional hearing ultimately began on January 9,
2023. DPSS’s counsel submitted on the reports, evidence and extensive medical records
filed with court, requested the court take judicial notice of the case records dating back to
June 14, 2019, and asked the court to make findings pursuant to section 355.1 as
requested in its trial brief filed July 19, 2022. DPSS’s counsel also requested the court
find true the allegations in the fourth amended petition dated April 15, 2021, that the
parents be denied services pursuant to section 361.5, subdivisions (b)(3), (b)(5), and
(b)(6), and a section 366.26 hearing be set.
On January 9, 2023, the parents presented testimony from expert witness Dr.
Joseph Scheller, who appeared via zoom and had a private practice in neurology since
2014. Dr. Scheller had examined and reviewed the medical records and imaging in this
case. The court qualified Dr. Scheller as an expert in pediatric neurology, but not in
neuroimaging. Dr. Scheller testified that seizures “could be” caused by an infection and
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confirmed that Dem. was found to have a viral infection on June 9, 2019. The MRI from
June 10, 2019 showed evidence that Dem. had blood clots between the vessels in his
brain which indicated he had suffered small strokes which “could” happen to anyone at
any age, however tests to rule this out were not completed. Dr. Scheller also identified
evidence of trauma based on chronic fluid buildup in the brain shown by the MRI
conducted June 2019 and attributed it to childbirth as that was the only definite trauma
incurred since birth. He noted that in an abusive trauma, significant blood clots would
have shown up immediately on June 9, rather than gradually become more dramatic by 4 June 14, 2019.
Dr. Scheller further testified that the CT scan done on December 10, 2020 showed
a very healthy brain without atrophy, except for the small hematoma which could be
acute or chronic, and “could be” related to a prior condition. He explained that
rebleeding from a previous subdural hematoma is a well-known complication, that there
was no evidence Dem. had suffered a new head trauma, and that there was no evidence
Dem. suffered child abuse on or about December 10, 2020. Dr. Scheller further stated
that some people have venous strokes after head trauma with no long-term complications,
but others have very serious complications including seizures.
4 Counsels for DPSS and the children objected to evidence relating to June 19, 2019 based on res judicata as the injuries from June 2019 had already been substantiated as physical abuse. The court redirected counsel for the parents throughout the trial that the court will not relitigate injuries from 2019.
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On January 10, 2023, expert witness Dr. Daniel Kido, who was qualified in
neuroradiology, also testified on behalf of the parents. Dr. Kido testified that he had
reviewed Dem.’s MRI images completed on May 24, 2021 and that the images reflected