S.E. v. Superior Court of San Bernardino Cnty.

S.E. et al., Petitioners, v. THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent;SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Real Party in Interest.

E061265

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

September 26, 2014

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super.Ct.Nos. J252040 & J252041)

OPINION

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.

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 petitioners L.M. (father) and S.E. (mother) (collectively, parents) had died from unknown causes after she was found to have suffered seven fractures to her ribs and a broken arm (f-1 & f-2); parents' child A.M. (born 2012) had sustained serious and potentially life threatening injuries including, but not limited to, a spiral fracture of his leg (e-1 & e-2); and parents' had failed to protect minor C.E. (born 2004) from physical abuse.² The juvenile court dismissed dependency proceedings as to minor C.E. and entered family law orders placing him with his father, J.J.,³ permitting visitation with mother. The juvenile court found the remaining allegations true; removed A.M. from parents' custody; denied parents reunification services pursuant to sections 361.5, subdivisions (b)(5), (6), and (12); and scheduled the section 366.26 hearing.

In his petition, father contends the court erred in prohibiting Dr. Charles Hyman from testifying that minors suffered from Temporary Brittle Bone Disease (TBBD).Mother joins this argument, but additionally maintains the juvenile court erred in declining her request for bifurcation of the jurisdictional and dispositional hearings, erred in finding the e-5 allegation true, and abused its discretion by denying her reunification services. We deny the petitions.

FACTS AND PROCEDURAL HISTORY

On September 25, 2013, the department received an immediate response referral when H.M. stopped breathing. Father called the paramedics. Medical personnel were unable to revive her. H.M. had no signs of outward trauma, but X-rays revealed the infant had a broken arm and several fractures at various stages of healing, which doctors believed were the result of squeezing. The coroner discovered seven healing rib fractures, which he opined occurred between seven and 21 days prior to her death.

The social worker made a safety plan with mother, who was at work at the time of H.M.'s death. The plan allowed mother, C.E., and A.M. to stay with their maternal grandmother (MGM) pending further investigation. On October 2, 2013, C.E. and A.M were brought to the Children's Assessment Center (CAC). Mother brought previous X-rays of A.M.'s leg taken in July 2012. Mother said she was initially informed A.M. had a fracture, but was later told his leg pain was due to a viral infection. Dr. Mark Massi at CAC reviewed the X-rays and said the then five-month-old A.M. had a spiral fracture of his right femur (thigh bone) which Massi believed was the result of abuse.

C.E. had a big red spot in his eye caused by a broken blood vessel. No explanation for the injury was provided. Dr. Massi believed the injury was caused by a poke to the eye. C.E. also had scars on his back, which were of concern to Dr. Massi.C.E. said the scars were the result of sliding down the wall while doing wall sits as punishment: "Wall sits were described as sitting against the wall with no support of the child's buttocks while holding his arms in the air. The parents stated they use this form of punishment as they were advised by a prior social worker not to use corporal punishment." "According to Dr. Massi, regarding [C.E.], 'The child has three (3) notable findings—subconjunctival hemorrhage and two (2) areas of scarring—two (2) of which have no clear explanations.'"

Mother reported that H.M was born with the umbilical cord wrapped around her neck and she had read on the internet this could cause fractures. "The doctors stated age of the fractures did not coincide with these injuries happening at birth." Detectives said parents had passed polygraph tests and the detectives did not believe parents were responsible for H.M.'s death. Mother was told she and minors could move back into the family home on November 4, 2013.

At a multidisciplinary team meeting held on November 7, 2013, Doctors May Young and Mark Massi of CAC expressed grave concerns minors were back in the family home. Additional findings were made by Dr. Young regarding A.M., including two rib fractures and fractures to the right forearm (radius and ulna). Both doctors believed the injuries to H.M. and A.M. were intentionally inflicted. They said it was not possible for a viral infection to have caused A.M.'s fractures.

At a contested detention hearing on November 14, 2013, the social worker testified parents denied abusing minors. The department had already placed minors in protective custody. The juvenile court formally detained minors.

In the jurisdictional and dispositional report filed December 2, 2013, the social worker reported mother had provided A.M.'s medical records, which reflected no symptoms of abuse. Nonetheless, none of the medical records supported mother's contention a viral infection was responsible for A.M.'s fractures. H.M.'s cause of death was not able to be determined from the autopsy. H.M.'s broken arm was determined to be newer than six weeks, so it could not be medically associated with birth trauma.

The autopsy protocol released March 27, 2014, authored by pathologist Dr. Steven Trenkle, left the cause and manner of H.M.'s death undetermined. Dr. Trenkle noted that, "Although this young infant had at least one and possibly more episodes of inflicted trauma leading to bilateral multiple rib fractures which are now healing, as well as a fracture of the left mid humerus which is now healing, no fatal trauma was noted at the autopsy. . . . The multiple rib fractures may have occurred in one instance or may have occurred over a several day period of time. The infant would have likely been in pain, particularly with the fracture of the left arm . . . . [¶] Although there is no definite fatal injury, the presence of previous inflicted injuries is quite concerning." The fractures were observable only under microscopic examination.

At a pretrial hearing on April 25, 2014, mother's counsel requested bifurcation of the jurisdictional and dispositional hearings: "I'm also going to request a bifurcation of the juris[dictional] and dispo[sitional] issues on this case due to the fact there's different burdens of proof. Obviously, juris[dicition] is the burden of proof of the county and [on] the dispo[sition], the burden shifts to us. So I am going to have some requests to bifurcate." The juvenile court asked if there was any objection. No party objected. Thecourt then noted, "So that should shorten things a bit. So I will order the case be severed and the hearing on Wednesday will be a trial management conference for jurisdiction. The Court at that time will set a new hearing date for jurisdiction and also for this disposition."

On April 30, 2014, a different judge noted, "Also there was a request to bifurcate the proceedings. I wasn't here for that, but at this time, the Court will deny that request to bifurcate as all the parties are getting an extra six weeks to prepare based on their availability and witnesses. I will not be setting aside time again for all of you." Mother's counsel stated, "Just for the record, I want to say I was requesting a bifurcation." The court responded, "Go ahead and give your authority for your request for bifurcation." Mother's counsel replied, "Based on a different standard of proof, burden of proof. The burden of proof is clear and convincing on the juris[dictional] issue. The burden shift[s] on the dispo[sitional hearing] if found true to our burden of proof. I'll be happy to provide [points and authorities] at a later date . . . ." The court concluded, "No need for points and authorities. I'm aware of the burden of proof. [¶] There is also no need for bifurcation. The minors were detained in, it looks like, November of 2013. The case now, based on your request, the fact you were retained after another attorney was assigned, will now be, let's see, give or take, eight months old. No need for bifurcation."

On May 21, 2014, the department filed a motion in limine to exclude evidence and opinions by father's retained medical expert, Dr. Hyman, regarding evidence or opinions on TBBD, metabolic bone disease, or pediatric fragility disorder. C.E. was placed withJ.J. on May 16, 2014. On May 29, 2014, father's counsel filed a response to the department's motion to exclude.

The combined, contested jurisdictional and dispositional hearing began on June 2, 2014. Dr. Trenkle testified consistently with his autopsy protocol. He observed that, "you can get fractures accidentally or nonaccidentally." "The fractures themselves don't tell me. Typically, in accidental injuries there is a history of some traumatic event that occurred that would explain multiple fractures. In this case, there wasn't such a history." "[T]here was no history of a significant traumatic event, so in that case, I thought they were more likely inflicted injuries." "There...