Los Angeles County Department of Children & Family Services v. Diamond P.

Opinion

Diamond P. (mother) challenges the juvenile’s court’s jurisdictional finding that her two-year-old daughter, D.P., suffered serious physical harm or was at substantial risk of suffering serious physical harm inflicted

FACTUAL AND PROCEDURAL BACKGROUND

D.P. was born in May 2011. Mother lived with Matthew F. (father) at the paternal great-grandmother’s house until D.P. was seven or eight months old. At that time, mother and father separated, but maintained joint custody of D.P. D.P. moved from one parent’s home to the other, staying with each parent for one to two weeks at a time.

On December 14, 2012, mother dropped D.P. off at father’s home after a two-week stay. When D.P.’s hat and jacket were removed, father and great-grandmother noticed that D.P. had braises on her face, braising and scab wounds that looked like bite marks on her shoulders and chest area, and a swollen eye. Father called the police and D.P. was taken to the hospital. D.P. was diagnosed as having a “scalp hematoma” that was “most likely caused by trauma.” Two doctors at the hospital said that the trauma was most likely nonaccidental.

The police reported the case to the Los Angeles County Department of Children and Family Services (Department), and the Department interviewed mother. Mother said she did not know how D.P. suffered the head injury, but denied that D.P. had fallen or hit her head against anything. She said the marks on D.P.’s body were caused by other small children who bit her at a party. Mother further stated that during the two weeks D.P. was with her, only mother and her roommate took care of the child.

The social worker also interviewed mother’s boyfriend, who lived with her, and mother’s cousin. The boyfriend denied having caused D.P.’s injuries, but admitted to using cocaine, marijuana and methamphetamines. Mother’s cousin said that both mother and her boyfriend smoked marijuana frequently. The cousin believed mother was also using other illicit drags because mother had recently “dramatically lost weight” and her behavior had changed: mother had recently stopped seeing her family, and mother’s boyfriend appeared to be “controlling her.” The cousin further said she had noticed that D.P.’s cheeks were bruised and her ears swollen, but when she asked mother what happened, mother ignored her questions.

1. Standard of Review

“We review the juvenile court’s jurisdictional findings for sufficiency of the evidence. [Citations.]” (In re David M. (2005) 134 Cal.App.4th 822 , 828 [ 36 Cal.Rptr.3d 411 ].) “In so doing, we consider the evidence favorably to the prevailing party and resolve all conflicts in support of the trial court’s order. [Citation.] ‘Substantial evidence’ means evidence that is reasonable, credible and of solid value; it must actually be substantial proof of the essentials that the law requires in a particular case. [Citation.]” (In re Yvonne W. (2008) 165 Cal.App.4th 1394 , 1401 [ 81 Cal.Rptr.3d 747 ].)

2. The Merits of Mother’s Appeal Should Be Addressed

Mother appeals the juvenile court’s finding under section 300, subdivision (a), and does not challenge the court’s alternative bases for jurisdiction under section 300, subdivision (b). The Department argues that the appeal is moot because “[a]s long as there is one unassailable jurisdictional finding, it is immaterial that another might be inappropriate. [Citations.]” (In re Ashley B. (2011) 202 Cal.App.4th 968 , 979 [ 135 Cal.Rptr.3d 659 ].)

“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 juvenile 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 re Alexis E. (2009) 171 Cal.App.4th 438 , 451 [ 90 Cal.Rptr.3d 44 ].) However, we may also exercise our discretion to reach the merits of a challenge to any jurisdictional finding when the finding may be prejudicial to the appellant, and here, the finding that mother intentionally hurt her daughter has the potential to impact future dependency proceedings. (In re D.C. (2011) 195 Cal.App.4th 1010 , 1015 [ 124 Cal.Rptr.3d 795 ].)

3. There Was Substantial Evidence That D.R Was a Child Described by Section 300, Subdivision (a)

Section 300, subdivision (a), provides for jurisdiction when the child suffered or is at substantial risk of suffering “serious physical harm inflicted nonaccidentally upon the child by the child’s parent or guardian.” Mother does not dispute that the evidence established that D.R’s injuries were nonaccidental, but contends that there was no substantial evidence that mother intentionally inflicted those injuries or would do so in the future.

Mother also had no plausible explanation for the bite marks on D.P.’s body. Although mother claimed that they were inflicted by other children, Dr. Clark found that the marks were consistent with adult bite marks. The undisputed evidence of nonaccidental trauma and mother’s failure to explain how D.P. was injured in her care constituted substantial evidence that mother was responsible for inflicting these injuries on D.P.

4. Section 355.1 Established a Presumption That D.P. Was a Minor Described Under Section 300, Subdivision (a)

Mother also argues that the court erred to the extent it applied the presumption under section 355.1 that D.P. was a minor described under section 300, subdivision (a). Mother argues that the application of section 355.1 violated her right to due process because she was never given notice that the Department intended to rely on this statute. Mother further argues that the presumption was rebutted by evidence in her favor.

Section 355.1 provides that “[w]here the court finds, based upon competent professional evidence, that an injury, injuries, or detrimental condition sustained by a minor is of a nature as would ordinarily not be sustained except as the result of the unreasonable or neglectful acts or omissions of either parent, the guardian, or other person who has the care or custody of the minor, that finding shall be prima facie evidence that the minor is a person described by subdivision (a), (b), or (d) of Section 300.” (§ 355.1, subd. (a).)

Once the petitioner establishes a prima facie case under section 355.1 the burden of producing evidence “shifts to the parents the obligation of raising an issue as to the actual cause of the injury or the fitness of the home.” (In re James B. (1985) 166 Cal.App.3d 934 , 937, fn. 2 [ 212 Cal.Rptr. 778 ].) “The effect of a presumption affecting the burden of producing evidence is to require the trier of fact to assume the existence of the

Although mother contends she was never given notice that the Department intended to rely on section 355.1, the petition’s allegations under section 300, subdivision (a) borrowed language from section 355.1: the petition alleged that D.P.’s injuries “would not ordinarily occur except as the result of deliberate^] unreasonable and neglectful acts by the mother.” Those allegations adequately gave mother notice that the Department was relying, at least in part, on the presumption created by section 355.1. (See Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure (2013) § 2.110[6], p. 2-287 [notice that the Department is relying on § 355.1 “can be accomplished by including the applicable language of Welf. & Inst. Code § 355.1 in the petition”].)

The court in In re A.S. (2011) 202 Cal.App.4th 237 [ 134 Cal.Rptr.3d 664 ] suggested, to the contrary, that a petition must specifically cite section 355.1 in order to give the parents sufficient notice of the Department’s reliance on the presumption. (See In re A.S., supra, 202 Cal.App.4th at p. 243 [“When the [petitioner] intends to rely on [section 355.1, subdivision (a)] to shift the burden of production to the parents to show that neither they nor other caretakers caused .the child’s injuries, it must do so in a clear-cut manner. It should, of course, cite section 355.1, subdivision (a) in the petition along with the applicable subdivision of section 300. [Citation.]” (italics omitted).)

We decline to follow the reasoning in In re A.S. Here, mother does not deny that she was represented by an attorney at all stages of the proceeding. The Department invoked section 355.1 by wording the petition’s charging allegations in the language of section 355.1. Mother was informed of the petition’s allegations and the evidence the Department intended to rely upon, including that multiple doctors had concluded that D.R’s trauma was nonaccidental. Thus, mother was given adequate notice that the Department intended to rely on section 355.1.

Mother also contends that the presumption was rebutted by evidence in her favor. Specifically, mother argues that evidence that certain relatives did not think mother would have deliberately hurt D.R was sufficient to rebut the presumption. Even if this evidence was sufficient, any application of the presumption was harmless error.

While the presumption under section 355.1 “disappears upon the introduction of evidence which would support a finding of its nonexistence (Evid.

DISPOSITION

The judgment is affirmed.

Klein, P. J., and Aldrich, J., concurred.