Filed 7/19/16 C.T. 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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



C.T. et al.,

         Petitioners,                                                   E065579

v.                                                                      (Super.Ct.No. SWJ1300439)

THE SUPERIOR COURT OF                                                   OPINION
RIVERSIDE COUNTY,

         Respondent;

RIVERSIDE COUNTY DEPARTMENT
OF PUBLIC SOCIAL SERVICES,

         Real Party in Interest.




         ORIGINAL PROCEEDINGS; petition for extraordinary writ. Timothy F. Freer,

Judge. Petition denied.

         David A. Goldstein for Petitioners.

         No appearance for Respondent.




                                                             1
          Gregory P. Priamos, County Counsel, Carole Nunes Fong, Deputy County

Counsel, for Real Party in Interest.

          The juvenile court terminated the parents’1 parental rights on March 27, 2015. On

September 16, 2015, pursuant to a declaration for a warrant requested by personnel from

Real Party in Interest, Riverside County Department of Public Social Services

(Department), the juvenile court issued an order to remove Minor, R.W. (born in May

2013), from the home of petitioners, C.T. and J.T, the prospective adoptive parents

(PAPs).

          The PAPs filed an objection to the removal. After a hearing on the matter, the

juvenile court overruled the PAPs’ objection. In their petition, the PAPs contend the

court abused its discretion in overruling their objection because the Department adduced

insufficient evidence to support a finding that removal was in Minor’s best interest. The

petition is denied.

                            I. FACTS AND PROCEDURAL HISTORY

          The Department initially took Minor into protective custody from her parents on

June 26, 2013. The juvenile court detained Minor on July 8, 2013, but returned her to the

parents’ care on December 5, 2013. The Department again took Minor into protective

custody on March 17, 2014. The Department placed Minor in the PAPs’ home on

December 18, 2014. On March 27, 2015, the court terminated the parents’ parental

rights.

          1   The parents are not parties to this petition.


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       In the permanency status review report filed on September 2, 2015, the social

worker noted Minor “is an active and energetic two year old girl. [She] can run, jump[,]

and climb. She enjoys exploring her environment and social interactions. This summer

she has participated in swim lessons, t-ball, gymnastics, soccer[,] and dance.”

       The social worker further observed that Minor “has adjusted to the home setting

and established healthy attachments to her caregivers. She identifies her caregivers as her

parents. [She] appears happy and appropriately cared for in the home. Her ongoing

needs continue to be met by the caregivers. The caregivers have indicated their

commitment to adopt and provide [her] a stable and nurturing home.” The social worker

recommended Minor continue to remain in placement with the PAPs as it “remains the

most suitable to meet her needs.”

       On September 16, 2015, Department personnel filed a declaration in support of a

warrant to remove Minor from placement with the PAPs. The PAPs reported that on

September 7, 2015, Minor flinched and pulled her hand away when the prospective

adoptive father (PAF) attempted to wash her hand. The prospective adoptive mother

(PAM) took Minor to urgent care the next day, where Minor was diagnosed with an arm

fracture.

       The PAPs reported that Minor had fallen twice on their concrete patio on

September 6, 2016, but that she did not cry and continued to play. On September 14,

2015, Minor was examined by Dr. Mark Massi, who found two arm fractures. Dr. Massi

opined that “‘[t]he pattern of fractures in this case-radius more proximal than ulna-is



                                             3
atypical and would not be expected from such a small child falling while running. The

. . . team evaluation is “suspicious for physical abuse.”’” The juvenile court issued the

warrant on the same day it was requested.

       On September 17, 2015, the PAPs filed an objection to Minor’s removal. The

PAPs reported that Minor complained of pain on September 7, 2015; they took her to day

care the next day, during which nothing unusual was observed. The PAM took Minor out

of day care early to take her to the doctor, but the doctor found nothing wrong; he took

cautionary X-rays and sent Minor home.

       The doctor called back later to report the X-rays had revealed a fracture to the

right ulna.2 The PAPs took Minor back to the doctor’s office, where her arm was

splinted. The PAPS reported the injury to the Department.

       On September 11, 2015, the PAPs brought Minor to an orthopedist, who

performed additional X-rays and casted the arm.

       The PAPs posited four potential sources for Minor’s injuries. First, on August 30,

2015, Minor fell off their couch onto the laminate flooring after which she cried briefly

and developed a bump on her forehead the next day. The bump disappeared a few days

later. Second, on September 6, 2015, the PAM placed a flotation device on Minor




       2  The radiologist’s report reflected findings that Minor’s “ulna appears intact.
There is abnormal angulation of the proximal radial shaft. There appears to be faint
adjacent periosteal reaction.” The radiologist’s “impression” was that Minor suffered
from an “[a]cute-to-subacute appearing nondisplaced, mildly angulated proximal-third
radial shaft bowing fracture.”


                                             4
through her arms for purposes of swimming, after which Minor complained and asked

that it be taken off.

       Third, on the same date, while in the pool, the PAM threw Minor into the air

several times and caught her as she went underwater. Minor did not complain of any

pain and requested that the PAM repeat the activity. Fourth, again on the same date,

Minor fell twice while running on the concrete patio. Minor did not cry either time. On

September 23, 2015, the PAPs filed a request for de facto parent status.

       In an addendum report filed September 24, 2015, the social worker noted the

urgent care doctor who had originally treated Minor opined that the injury was

approximately two weeks old. During a home inspection on September 9, 2015, Minor

was seen “laughing and smiling at the caregivers . . . .” Minor “was seen with no visible

marks or bruises. Her right hand and arm [were] wrapped in an ace bandage to cover the

temporary cast. [Minor] was seen playing and was very active. She was also seen using

her right hand and moving her fingers. She appeared to be bonded with the caregivers, as

she wanted to be held by both [the PAPs]. [Minor] identified [the PAM] as ‘mommy’

and [the PAF] as ‘dada.’”

       Dr. Massi reported that due to the fractures being near the wrists and elbow and

the direction of the injuries, the injuries took place while Minor’s wrists were facing up,

which would be inconsistent with falling to the ground. He reported the injuries were

evidence that her arm may have been twisted and pulled and were suspicious for physical




                                             5
abuse. The social worker concluded that the PAPs “fail to acknowledge the severity of

the injuries and continue to minimize the concerns of questionable fractures.”

       In an addendum report filed December 10, 2015,3 the social worker noted the

PAPs had visited with Minor five times since removal. The social worker observed the

PAPs “were appropriate during the visit and provided [Minor] a number of gifts. [Minor]

appeared to enjoy her gifts and visit with the [the PAPs]. At the end of the visit, [Minor]

collected her gifts and hugged them goodbye with no display of emotion. [Minor]

appeared happy to return to her current placement and share her new belongings with her

foster mother.” Minor’s cast had been removed and no further treatment for her injuries

was necessary.

       On December 11, 2015, the contested hearing on removal began.4 Dr. Anthony

Nguyen, a board certified pediatrician, testified he was Minor’s treating physician on

September 8, 2015. He examined her arm, on which he found a bruise. Minor did not

appear to be in distress; she appeared playful. Dr. Nguyen had an X-ray taken of Minor’s

arm; he did not observe any injury so he sent her home. A radiologist who later

examined the X-ray noted an injury he diagnosed as a mild angulated fracture of the

radius with a callus or healing calcification.




       3   The juvenile court twice continued the hearing on the PAPs’ objection to
removal.

       4   The hearing was held on five separate days over the course of four months.


                                                 6
       Dr. Nguyen called the PAPs to have them return to the medical office. He placed

Minor’s arm in a splint and sling. Dr. Nguyen referred Minor to an orthopedist. He had

no concern that Minor had been abused. Dr. Nguyen noted that it is very common for

toddlers to incur fractures on the radius due to a fall.

       Dr. Mark Massi, a forensic and board certified child abuse pediatrician at Loma

Linda University Medical Center, testified that the most common fracture of the radial

forearm to a child one and a half to three years old is a fall with outstretched hands. Dr.

Massi examined Minor, reviewed Minor’s medical records and X-rays, and ordered a

skeletal survey, which involved additional X-rays. Other than Minor’s cast, she appeared

healthy.

       Dr. Massi noted two fractures, one on the radius and one on the ulna. He testified

that it is not unusual for there to be both a radial and ulnar fracture on a child. Dr. Massi

did not see a callus, which would indicate the injury was about two weeks old, on the X-

ray taken on September 8, 2014. He did see callus formation on the skeletal survey taken

on September 14, 2015. Thus, Dr. Massi agreed the fractures could be two or three

weeks old, occurring even prior to August 30, 2015. Nevertheless, he opined the injuries

occurred on September 7, 2015.

       Dr. Massi disagreed with the original radiologist’s impression of the injury. He

noted the fractures would have been painful and should have been noticeable to the

PAPs. Dr. Massi considered the bruise noted by Dr. Nguyen to be significant “because it

could indicate the location of a grab of the arm.” He did not believe the fractures were



                                               7
caused by a fall. Dr. Massi opined the injuries were more consistent with abuse because

a grab or jerk of the arm, rather than a fall, would explain all his findings and fit within

his opined time frame of the occurrence of the injuries.

       Dr. Thomas Grogan, a board certified pediatric surgeon, testified he reviewed

Minor’s medical records and films. He noted that the X-rays taken on September 8,

2015, reflected two forearm fractures which, due to visible callus formation, were at least

five days old at that time. Dr. Grogan testified there was no way the injury could have

been sustained on September 7, 2015.

       Dr. Grogan noted the injuries were caused by compression, which could have

occurred from a fall from a couch with an outstretched hand. He testified there was no

indication the injuries resulted from a blow, twist, or pull. The injuries would have

healed on their own even without a cast and were common for a 27-month-old child.

       A letter from Dr. Alfonso Carrillo, the radiologist who reviewed the skeletal

survey ordered by Dr. Massi, was admitted into evidence. Dr. Carrillo reviewed both the

X-rays taken on September 8 and 14, 2015. He agreed with the original radiologist report

“stating that there is a faint periosteal reaction, early callus formation at the proximal

radius and distal ulna.” He opined: “This is consistent with the fracture being subacute

and likely occurred greater than 24 [hours] earlier and possibly up to 14 days before the

radiograph was taken depending on variables . . . . According to Radiology references,

callus can generally be seen 10 to 14 days after the injury.”




                                               8
         The case social worker testified she was assigned to the case in March 2015.

Minor was considered medically fragile from birth to the time of her placement with the

PAPs. Minor “seemed happy in the home.” She appeared healthy and active. Minor was

thriving in the PAPs’ care. It appeared Minor and the PAPs were strongly bonded.

Minor showed affection for the PAPs, which was reciprocated. Minor referred to the

PAPs as “mommy” and “daddy.”

         The social worker saw Minor on September 10, 2015.5 Minor “was running

around actively, as usual. She didn’t want to have her arm in a sling so it was not on

her.” Minor did not appear to be in any discomfort. She “climbed up and down chairs.

She ate. And she was showing me toys, playing with toys and puzzles. Also, she’s right-

handed. So she continued to use that—that hand; although, it was in that soft cast.”

Minor referred to her injuries as an “owie.”

         The case social worker did not make the decision to remove Minor from the PAPs;

that decision was made by the investigating social worker. The case social worker had

observed Minor climb on top of the PAPs’ toilet and furniture; the PAPs failed to redirect

Minor.

         The PAPs interacted appropriately with Minor during visitation since removal.

Minor had asked to end visits with the PAPs. During the last visit, Minor asked to return

to the foster parents. Minor no longer referred to the PAPs as “mommy” and “daddy.”




         5   The case log reflects the date was September 9, 2015.


                                               9
Minor had adjusted to her new home and was doing well. She referred to her foster

parents as “mommy” and “daddy.”

       The investigating social worker testified Minor was an active child. Minor referred

to the PAPs as “Da da” and “Mommy.” On September 9, 2015, the investigating social

worker observed Minor climb a dining room chair in the PAPs home, which is typical

behavior for a child her age. However, the PAPs were not in the room with Minor the

entire time, did not redirect Minor when she was climbing the furniture, and the climbing

caused the investigating social worker to fear for Minor’s safety. Minor was also holding

a toy with her injured arm.

       The investigating social worker testified that after receiving Dr. Massi’s report

stating that Minor had incurred two unexplained fractures, a “severe injury,” her

supervisor requested a warrant for Minor’s removal from the PAPs’ home. Department

personnel had determined that the injuries were due either to abuse or neglect because no

incident described by the PAPs could account for Dr. Massi’s report of the injuries.

       The PAF’s mother testified she had witnessed Minor fall off the couch a couple

weeks before Labor Day. Minor stopped crying after a few minutes; no bruises or

bleeding were observed. The PAF’s mother also observed Minor cry when a flotation

device was placed on her on the day before Labor Day.

       The PAPs testified Minor is an active child. The PAF noted she climbs and jumps

on the couch. One day, Minor was on the couch and the PAF heard her start to cry and

found her face down on the laminate floor. Minor cried for about three to five minutes



                                            10
while the PAF comforted her. Afterward, he observed no visible injuries. She made no

complaints of pain. Minor had a bruise on her forehead the next day.

         Minor fell twice while running on the patio the day before Labor Day. She cried

briefly, but sustained no injuries. The PAF later attempted to clean Minor’s hands and

she winced, flinched, and turned away. The PAM felt a bump on her wrist.

         The next day the PAM took Minor to day care with instructions for the day care

workers to keep an eye on her arm. When she picked up Minor to take her to the doctor,

day care personnel expressed no concern regarding Minor’s arm. She was described as

normal and happy. The PAM waited a day to take Minor to the doctor because the

doctor’s office was closed on Labor Day.

         Minor still refers to the PAPs as “mommy” and “daddy.” They love Minor and

still wish to adopt her.

         Minor’s counsel argued consistently with the Department’s counsel that, at best,

the PAPs neglected Minor and, at worst, abused her. Minor’s counsel argued it was not

in Minor’s best interest to be returned to the PAPs.

         The juvenile court noted that if it credited Dr. Massi’s testimony, and discredited

Dr. Grogan’s testimony, the case was simple: Minor had sustained two severe injuries

for which the PAPs had provided insufficient explanation. Dr. Massi suspected the

injuries were caused by physical abuse. Thus, counsel for the Department had offered a

clear case by a preponderance of the evidence that the injuries were caused by physical

abuse.



                                              11
          The court found that the PAF’s mother’s testimony regarding Minor’s fall from

the couch was “inconceivable” and “defie[d] logic.” The court noted it further defied

logic that the PAPs did not take Minor to urgent care or the emergency room after she

had taken a “significant fall” or sustained “a significant injury.” The court found the

PAF’s reasoning for not taking Minor to the emergency room unreasonable. Thus, the

court noted that even if it assumed Dr. Massi was incorrect and Dr. Grogan was correct, it

would still conclude that Minor had sustained a significant fracture that required medical

attention due to the pain which Minor would have exhibited upon any manipulation of

her arm. Therefore, the court concluded it was unreasonable for the PAPs not to take

Minor immediately to the emergency room or urgent care and a clear case had been made

for severe neglect.

          The court found that under either analysis, the Department had met its burden for

removal. The court specifically found that the PAPs were afraid to take Minor for

medical attention as soon as the injury occurred because they were afraid Minor would be

removed from their custody. The court denied the PAPs’ request for de facto parent

status.

                                      II. DISCUSSION

          The PAPs contend the juvenile court abused its discretion in removing Minor from

their custody because substantial evidence did not support the contention that Minor’s

injuries were sustained through physical abuse or that Minor suffered injuries due to the




                                              12
PAPs’ purported neglect in failing to take her for immediate medical attention. We

disagree.

       “The juvenile court has the authority and responsibility to determine whether

removal from the home of a prospective adoptive parent is in the child’s best interests.

[Citation.] If a prospective adoptive parent objects to the child’s removal from the home,

the [Department] must prove by a preponderance of the evidence that removal from the

prospective adoptive parent is in the child’s best interests. This standard applies whether

the [Department] has filed a notice of intent to remove the child under [Welfare and

Institutions Code][6] section 366.26, subdivision (n)(3), and the child is still in the home

of the prospective adoptive parent, or the [Department] has removed the child from the

home on an emergency basis under [section] 366.26, subdivision (n)(4), as here. Under

either circumstance, the juvenile court determines whether the proposed removal of the

child from the home is in the child’s best interests, and the child may not be removed

from the home unless the court makes that finding. [Citation.]” (T.W. v. Superior Court

(2012) 203 Cal.App.4th 30, 45.)

       “A juvenile court’s decision to authorize a change in the minor’s placement is

reviewed for abuse of discretion. [Citation.] But we must also review the juvenile

court’s finding that the change is in the minor’s best interests to determine whether there

is substantial evidence in the record to support it. [Citations.]” (In re M.M. (2015) 235


       6 All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.


                                             13
Cal.App.4th 54, 64 [removal of minor from de facto parent at § 366.26 hearing reversed

where order was solely based on the availability of an approved relative placement].)

“‘We do not evaluate the credibility of witnesses, reweigh the evidence, or resolve

evidentiary conflicts. Rather, we draw all reasonable inferences in support of the

findings, consider the record most favorably to the juvenile court’s order, and affirm the

order if supported by substantial evidence even if other evidence supports a contrary

conclusion. [Citation.] The appellant has the burden of showing the finding or order is

not supported by substantial evidence.’ [Citation.]” (In re Liam L. (2015) 240

Cal.App.4th 1068, 1087.)

       The PAPs invite us to reweigh the evidence which is inconsistent with our

standard of review. Here, sufficient evidence supports the court’s ruling. The court

noted that “if” it credited Dr. Massi’s testimony, there was sufficient evidence for the

court to find physical abuse, for which removal would be supported. Indeed, Dr. Massi’s

report reflected that the location and direction of the fractures would not be supported by

an explanation that Minor sustained the injuries in a fall. This is because the wrists

would have had to be upright when the injuries were sustained. Dr. Massi indicated the

injuries were consistent with a twist or pull which was suspicious for physical abuse.

       Moreover, Dr. Nguyen’s testimony that Minor had a bruise on her arm conflicted

with the PAPs’ and the PAF’s mother’s testimony and reports that Minor had sustained

no visible injury. Furthermore, Dr. Massi testified the presence of the bruise was

significant “because it could indicate the location of a grab of the arm.” Thus, one



                                             14
alternative finding by the court, that the fractures were the result of physical abuse, finds

support in the record.

       Additionally, Dr. Massi testified the fractures would have been painful and should

have been noticeable to the caretakers. Thus, the court’s alternative finding, that the

PAPs’ failure to immediately take Minor for medical treatment constituted neglect, also

finds support in the record.

                                    III. DISPOSITION

       The petition is denied.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                                 McKINSTER
                                                                                            J.


We concur:

RAMIREZ
                         P. J.

CODRINGTON
                            J.




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