Opinion
F080414
07-06-2020
In re I.N., a Person Coming Under the Juvenile Court Law. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. E.R., Defendant and Appellant.
Susan M. O'Brien, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. 19CEJ300200-1)
OPINION
THE COURT APPEAL from orders of the Superior Court of Fresno County. Jonathan B. Conklin, Judge. Susan M. O'Brien, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Before Detjen, Acting P.J., Franson, J. and Smith, J.
-ooOoo-
E.R. (mother) appeals from the jurisdictional and dispositional orders in which the juvenile court ordered full legal and physical custody of her daughter I.N. to father, with restricted visits to mother. After reviewing the juvenile court record, mother's court-appointed counsel informed this court she could find no arguable issues to raise on mother's behalf. This court granted mother leave to personally file a letter setting forth a good cause showing that an arguable issue of reversible error exists. (In re Phoenix H. (2009) 47 Cal.4th 835, 844 (Phoenix H.).) Mother submitted a 10-page letter challenging the juvenile court's findings on grounds that no reasonable efforts were made to prevent removal of I.N. from mother's custody; the veracity of certain evidence admitted by the juvenile court; the denial of her request to submit other evidence; and the legality of the court's resultant findings, and asks that this court reconsider the court's decision and overturn its ruling.
We conclude mother failed to set forth a good cause showing that any arguable issues of reversible error arose from the disposition hearing. (Phoenix H., supra, 47 Cal.4th at p. 844.) Consequently, we dismiss the appeal.
PROCEDURAL AND FACTUAL SUMMARY
Eight-year-old I.N., in the full-time care of mother, came to the attention of the Fresno County Department of Social Services (department) in December of 2018. At the time, a referral of general neglect of medical care was received for I.N., who had numerous medical issues, including chronic gastrointestinal condition (GI), thyroid disorder, and had a spleen removed. The referral stated that I.N. experienced loss of ambulation and she functioned at a four to six-year-old level. The report noted that there appeared to be no medical issue for her loss of ambulation or cognitive delays. Instead, her condition appeared to be caused by her environment, including not attending school and being made to stay in bed all day.
After a subsequent February 2019 referral and investigation, the department filed a Welfare and Institutions Code section 300 petition on May 31, 2019, alleging that, based on mother's actions, I.N. was at risk of harm (§ 300, subds. (a), (b)(1), (c), and (i)). Each allegation alleged that I.N. was the victim of medical child abuse, inflicted by mother, her primary caregiver, in that she received unnecessary medical treatments as a result of mother's reports of I.N.'s medical conditions or symptoms.
All further statutory references are to the Welfare and Institutions Code.
Mother reported that she had Native American ancestry through the S'Kallam Tribe in Washington and notice to the associated tribes was sent on July 9, 2019. The juvenile court would later find that I.N. did not come within the provisions of the Indian Child Welfare Act.
On June 5, 2019, mother requested a combined detention/jurisdiction hearing, which began on July 16 and continued for eight nonconsecutive days. Evidence presented at the contested combined hearing, including testimony and social study reports, showed a long and complex medical history of I.N. which began shortly after her birth.
Mother was the primary reporter of I.N.'s medical history and testified that, at the time I.N. was born in June of 2010, she was covered by Kaiser Medical Insurance, but because of her medical complications, she was referred to Valley Children's Hospital for care. Her first surgery occurred in September of 2011 to correct a right aberrant subclavian artery, which was interfering with her ability to keep food down. The surgery was not successful and I.N. was released from the hospital with a central line catheter and a GJ tube inserted to provide nutrition. When the GJ tube did not work, she received Total Parenteral Nutrition (TPN) through an IV line. After it was inserted, there were four or five occasions when the central line had to be replaced.
According to mother, after I.N. was discharged from the hospital in November 2011, mother was trained on how to prepare and administer the TPN, the contents of which were ordered by I.N.'s gastroenterologist, based on weekly lab results. Mother prepared and administered the TPN daily except when I.N. was hospitalized.
Mother testified that, between November 2011 and 2013, I.N. appeared to be developing well. She learned to walk and was described as playful and happy. In mid-2013, I.N.'s gallbladder was removed after she suffered severe abdominal pain.
In late December 2013, the department received a referral alleging general neglect by mother, as it was reported that she had not followed through with I.N.'s gastroenterologist's recommendation that I.N. be hospitalized for observation. The referring party was concerned that, by keeping I.N. "sick", father was kept from custody or unsupervised visits. After seeking a second opinion, which agreed with the first, mother changed insurance companies, which allowed for a new medical team to provide I.N.'s care. The referral was determined to be 'unfounded."
Mother testified that, beginning in January 2014, I.N.'s care was provided by Dr. Robert Venick at UCLA. Dr. Venick had been recommended by a friend of mother's whose son was on TPN. Dr. Venick treated I.N. for severe constipation by manual disimpaction and, on occasion, replaced her GJ tube, both under general anesthesia.
Mother testified that, in June 2014, I.N. was hospitalized for two weeks with a fever. She received blood and platelet transfusions to combat severe anemia. Her diagnosis was unclear, but it was thought she possibly had Hemophagocytic Lymphhistiocytosis (HLH), a type of blood malignancy.
I.N. had several HLH-like episodes involving fevers and the need for blood and platelet transfusions, including in October 2014, and March, June, September and October 2015. As a result of these episodes, she was referred to Stanford for a possible bone marrow transplant. In September of 2015, I.N. and mother met with Dr. Michael Jeng, a hematologist at Stanford. Dr. Jeng monitored I.N. throughout 2016, but testified no definitive diagnosis of HLH had been made and he did not think I.N. actually had HLH.
According to mother, I.N. experienced multiple episodes of severe abdominal pain and was referred by her pediatrician to the Hinds Hospice concurrent care program for pain control. The program provided in-home nurse and social worker visits to assist with pain management, which included morphine for pain.
Mother testified that Dr. Jeng was concerned that I.N.'s pain was caused by an enlarged spleen, and referred her to a surgeon to have the spleen removed to ease her pain. Mother did not approve the surgery the first time, thinking it too invasive. The surgery was performed in February of 2017, but immediately after the surgery, I.N. experienced severe postsurgical pain and, when discharged, was on a "substantial[ly] higher amount of morphine" than she was prior to the surgery.
According to mother, I.N. began having nausea, vomiting, severe pain and diarrhea in June of 2017, which was diagnosed as Clostridium Difficile. The symptoms persisted and I.N. was hospitalized at UCLA for two weeks. The symptoms abated when she was given a fecal microbiotic transplant at Stanford in November 2017.
Mother testified that, despite large doses of pain medication, I.N. continued to have severe abdominal pain and was hospitalized at Stanford in May of 2018. Mother allowed placement of an ileostomy for I.N. to relive pain and the need for disimpaction. Around this same time, mother changed I.N.'s gastroenterologist to Dr. McCracken at UCSF. On July 30, 2018, mother and grandmother drove I.N. to Dr. McCracken's office in Fremont and, on the way home, I.N. began to complain that her legs hurt. Over the next four days, I.N. was unable to stand.
Mother testified that, on August 7, 2018, I.N. woke up bleeding from her mouth and GJ tube. Mother took her to the emergency room at Valley Children's Hospital, where she was found to be suffering from metabolic acidosis and placed in intensive care. She was then airlifted to Stanford, where it was determined that she had low levels of vitamin K. I.N. remained hospitalized for three weeks. While there, she suffered delirium and required psychiatric intervention. She was diagnosed with hyperthyroidism. When discharged, I.N. had severe leg contractures and required a wheelchair.
Once home, mother testified that she began weaning I.N. off of morphine, which was completed in December of 2018, after which I.N. complained less about pain. In December 2018, I.N. was admitted to Valley Children's Hospital physical rehabilitation center to address her leg pain and inability to ambulate. A physical therapist came to the house weekly.
It was at this point that the December 2018 referral was received by the department. The referral party indicated that mother was a nurse and "she definitely knows that healthcare language and how to manipulate the healthcare environment to get what she wants."
Mother testified that in February 2019 she noticed I.N.'s stoma had sunk below her skin, making attachment of the ostomy bag difficult. Mother took I.N. to Dr. Michael Allshouse, who had treated I.N. in the past. He recommended that the ileostomy be reversed. Mother disagreed with the recommendation and instead took I.N. to Stanford for testing, which led the surgeon there to conclude that the ileostomy should be repaired instead, which was done.
On February 26, 2019, after receiving another referral suspecting mother suffered from Munchausen Syndrome by Proxy, the department participated in a meeting with medical providers from Valley Children's Hospital and Stanford. Letters were also received from two doctors who had participated in the meeting. Dr. Victoria Acharya and Dr. Allshouse, both of Valley Children's Hospital. Both stated they had reviewed I.N.'s charts and medical records and expressed their strong suspicion that I.N. was the subject of factitious disorder by proxy or medical abuse.
Dr. Allshouse reported his concern that I.N.'s medical problems, which resulted in medical procedures and hospitalizations, were unusual and had no "logical diagnosis" to explain them. This included her anemia requiring transfusions, chronic pain requiring "inappropriately large dose[s]" of morphine, severe constipation requiring disimpaction and an ileostomy, and her continued need for TPN as opposed to oral feedings.
Dr. Achayra noted reports of medical issues from mother that were not verifiable or witnessed in a hospital or clinic setting. Dr. Achayra noted mother's "recurrent insistence" on using "the most invasive option, colonoscopy and manual disimpaction," while refusing other treatments for constipation, despite the fact that the GI doctor repeatedly documented I.N. had soft stools and was not "fecally impacted." Dr. Achayra concluded that the procedures were not medically necessary. She also noted mother "pursued" a splenectomy at an "outside hospital." At the hearing, Dr. Achayra opined that I.N. was not safe and that medical abuse was occurring. She also noted that I.N.'s genetic testing was normal and, if I.N. had mitochondrial disease, it would have shown up on the testing.
During I.N.'s hospitalization after being airlifted to Stanford, Dr. Christopher Stewart, a child abuse expert there reviewed over I.N.'s copious medical records and notes, and discussed the case with treating staff and social workers. He expressed concern and wrote that, if I.N. was placed in a protected caretaking environment with coordinated medical care and mental health care, she would likely improve in many aspects of her life, including pain, ability to eat, ambulation, social isolation, and constant need for medical attention and care. Dr. Stewart opined that, without intervention, I.N. was at risk for more serious harm from her caretaker's actions. At the hearing, Dr. Stewart testified that he was very convinced I.N.'s case was one of medical child abuse.
Dr. Stewart attributed I.N.'s low thiamine levels to the cause of her altered mental state. While her symptoms in August 2018 were very similar to her symptoms in April 2019, no one had tested her thiamine levels in August. Instead, she was put on a regular dose of vitamins, including thiamine, and her symptoms improved. According to Dr. Stewart, the only way to have low thiamine levels was for the vitamin not to have been added to her TPN.
Dr. Stewart was concerned that I.N.'s history showed that mother did not always follow medical advice, including bringing her into the ER when told to do so. Dr. Stewart was part of the consulting team in February of 2019. At that time, he was concerned, but not convinced that medical child abuse was involved, but the April admission convinced him that it was.
In June 2019, I.N. left Stanford for Santa Clara Medical Center Rehabilitation Hospital (rehabilitation facility). While there, the staff noted instances of mother's "medical interference during visits," herself emptying I.N.'s ostomy bag and interfering with I.N.'s central line dressing change. Mother denied performing a medical procedure on I.N., but instead insisted that she was helping to keep I.N. occupied while the procedure took place and that the nurse had told her she could help.
According to Dr. Roberta Wang, a physical medicine and rehabilitation specialist, when I.N. first arrived at the rehabilitation facility on June 13, 2019, she displayed a lack of verbal "output," poor eye contact, and anxious behaviors. She chose to wear a mask and gloves whenever she left the room, wore a hospital gown and diaper all day, she did not use the toilet, she ate nothing by mouth, and all nutrition and hydration was delivered via TPN. She would not socialize with other children in the playroom.
Within a few weeks at the rehabilitation facility, I.N. no longer wore a mask and gloves when she left the room, wore street clothes, and only wore a diaper at night. She interacted with others, made eye contact, smiled and was responsive to nursing staff. Her range of motion was improving and she was regaining her ability to walk. She was no longer fed through TPN, and was taking some food by mouth. She reported no pain after ingesting foods. She was completely weaned from TPN by June 28, 2019, her nutrition going into her stomach as opposed to bypassing her stomach and going into her small intestine, and she had not suffered constipation.
I.N. was also weaned off anti-anxiety drugs, and her anxious behaviors were gone. She was being weaned off anti-seizure drugs and had suffered no seizures since admission. She reported no pain or nausea and no pain medications were required.
I.N. was becoming more interested in other pediatric patients, and learning to parallel play. She was making progress in reading, cognition and communication, her progress was described by Dr. Wang as "[a]mazing."
Dr. Jeng testified in mother's defense that he did not consider medical child abuse to be an issue in I.N.'s case. However, towards the end of the hearing, Dr. Jeng telephoned from the East Coast to state that his previous opinion regarding medical child abuse had changed and "it could appear to be medical abuse." Dr. Jeng explained that his opinion had changed after a conversation with I.N.'s grandmother when he arrived at the earlier hearing and a telephone call from mother after the hearing, both asking if he remembered that I.N. did not respond to her vaccines and that was why she was kept out of school. Dr. Jeng thought mother and grandmother were trying to make him "remember things," and Dr. Jeng then recalled several instances in which mother's version of the events were not in line with his own. He recalled a conversation with mother after the first time he testified in which mother said she found an expert who had been "home genome testing and had discovered that [I.N.] had a mitochondrial disease ...." Dr. Jeng had previously seen two cases of medical child abuse and, in both cases, the parents claimed the child had mitochondrial disease.
Dr. Richard Shaw, the medical director of the pediatric psychiatry consult service at Stanford, testified that he saw I.N. 30 to 50 times, and mother was present about 75 percent of the time. Dr. Shaw found mother open to treatment recommendations, and he did not get the impression she sought out treatment that was not offered or suggested. Dr. Shaw did not contact Dr. Stewart and he was not aware that medical child abuse was being considered by the Stanford doctors.
Mother called Dr. Susan Napolitano, mother's treating therapist and a forensic psychologist, who testified that she began treating mother when she was under stress due to a 2013 custody battle, and then saw more irregularly. Dr. Napolitano saw no signs of deception on mother's part and no evidence that mother was receiving secondary gain from the medical situation I.N. was in. Dr. Napolitano thought mother deeply cared for and was committed to I.N., at a great personal sacrifice to mother.
Lindsay Sutherland, a nurse through Valley Children's Home Care who assisted I.N. weekly in her home for the past two years, testified that she was never concerned about the care mother provided I.N. and thought mother was appropriately administering TPN.
Mother called Dr. Richard Boles, a geneticist in private practice specializing in biochemical genetics, DNA sequencing and mitochondrial medicine, who testified that he reviewed I.N.'s medical records and opined that I.N. had either mitochondrial disease or dysfunction. In mild mitochondrial disease, a person may experience pain, fatigue, GI problems, anxiety, depression and dysautonomia, and I.N. had many GI related issues.
Dr. Boles disagreed with an earlier lab report which sequenced I.N.'s genes and concluded that there was no mitochondrial variance of clinical relevance and no large deletions in the mitochondrial gene. According to Dr. Boles, the lab report was "complete garbage." He acknowledged he was the only physician to have diagnosed I.N. with mitochondrial disease, and no one else had even considered it. Dr. Boles testified that I.N. had a variant in the TRAP1 gene, the gene which protects against mitochondrial dysfunction. I.N. displayed all of the TRAP1 symptoms: chronic pain, chronic fatigue, and chronic GI dysmotility.
According to Dr. Boles, I.N. experienced symptoms that suggested either mitochondrial disease or dysfunction: pancreatic issues, neurological issues, loss of ability to walk, blood abnormalities, recurrent fevers, chronic infection, central line infections, possible thyroid disease, GI issues, loss of energy, low muscle tone, and muscle weakness. He also thought I.N.'s issues of reflux, vomiting, and seizures together were also signs of the disease. He did not understand her low thiamine levels.
The department specifically argued that reasonable efforts to prevent removal of I.N. were shown by the
"multiple staffings with mother and previous medical providers, VFM, as well as trying to prevent more referrals by having that February 19, 2019, staffing where it was decided all care will be done by Stanford. [¶] Shortly thereafter, while that referral was actually being investigated, [the department] received another referral which led to another staffing where VFM ... short for voluntary family maintenance which were discussed and deemed inappropriate as there were safety concerns. And no safety plan could be made with child remaining in mother's custody."
On July 30, 2019, the juvenile court issued its ruling as to detention and jurisdiction. The juvenile court found that the evidence established that I.N. had undergone significant medical treatment and procedures based mainly upon mother's historical recording. The court noted I.N. had been treated by 22 doctors and been in four hospitals for treatment and surgery. The court found Dr. Stewart's testimony most impactful and credible. It found Dr. Wang's testimony about I.N.'s improved medical condition since her removal from mother significant. And it found significant that Dr. Jeng called in to report his changed opinion, noting the concern in his voice was "palpable."
I.N. was detained on all but the section 300, subdivision (i) allegation, emphasizing that mother's motivation was not one of cruelty. The juvenile court then assigned I.N.'s medical rights to father. Disposition was set for September 9, 2019.
At the time of the scheduled disposition hearing on September 9, 2019, I.N. was still in the rehabilitation facility and scheduled for release September 17, 2019. The department recommended that father receive custody of I.N. with family maintenance services. Mother was not present and counsel asked for a two-week continuance to allow mother to go over the report and recommendation. The hearing was rescheduled for October 7, 2019.
The report prepared for disposition recommended I.N. be placed with father under family maintenance services. On October 4, 2019, mother submitted a declaration in opposition, with attached exhibits consisting of I.N.'s copious medical records.
The hearing was again rescheduled and, at a November 4, 2019, settlement conference, the department announced it had changed its recommendation from placement of I.N. with father with the provision of family maintenance services to placement with father and termination of dependency.
On November 8, 2019, mother filed a motion for continuance, to provide her with more time to prepare. The motion was denied.
On December 5, 2019, mother's counsel filed a substitution of attorney, requesting, on mother's behalf, that he be relieved. Mother did not have a new attorney to represent her and was not seeking to represent herself. The juvenile court noted that it would have granted the substitution if mother had appeared with new counsel who was ready to proceed to trial in four days.
On December 9, 2019, the time set for the hearing, mother again asked that the juvenile court remove her attorney and, when the motion was denied, she renewed her request for a continuance. That was also denied.
At the hearing, the social worker testified that I.N. was doing well in her progress, she had met all of her physical therapy and occupational therapy goals, could bathe herself, change her own clothing, eat by mouth, and walk with the aid of a walker. She appeared happy at her father's, played with her chicken, rode horses, and liked fishing. I.N. had just recently started school and was being evaluated for appropriate special education services. The social worker had no concerns about the care I.N. was receiving in her father's home.
After three months without visits, mother was allowed supervised visits, which were going well. According to the social worker, I.N. never requested to go home or to see mother. The social worker was concerned about mother's lengthy Facebook posts, which she was ordered to remove, but which remained active, and she was concerned about mother "snooping" through I.N.'s medical records. The department recommended visits continue in a supervised agency setting with strict rules about physically touching I.N., in conformity with the recommendations of the hospital.
In lieu of mother's testimony, the juvenile court received mother's declaration filed October 4, 2019, in opposition to the disposition findings and recommendations. The court excluded the exhibits that mother attached to her declaration.
The department again stated that reasonable efforts to prevent removal of I.N. had been made, adding that mother had been offered visitation, which she refused until recently, and that her declaration filed for disposition revealed that mother was "still not accepting the reasons for the removal and the jurisdictional allegation."
The juvenile court adopted the recommendations of the department. In doing so, the court noted that it did not believe there was malice behind mother's actions, but that the "only common denominator to [I.N.'s] deterioration and what appeared to the ultimate demise was [mother]." The court went on to say that removing I.N. from mother's care resulted in "almost an immediate improvement of her condition to a state today that I don't think anybody could have thought would have happened." The juvenile court described the transformation of I.N. as "striking."
The juvenile court removed I.N. from mother and placed her with father, granting him sole legal and physical custody. Mother was granted one two-hour visit a month, to be supervised at a visitation center. At the visits, mother was limited to giving I.N. physical contact such as a hug at the beginning and end of each visit. Dependency was dismissed.
DISCUSSION
An appealed from judgment or order is presumed correct. (In re S.C. (2006) 138 Cal.App.4th 396, 408, citing Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) It is appellant's burden to raise claims of reversible error or other defect and present argument and authority on each point made. If appellant fails to do so, the appeal may be dismissed. (In re Sade C. (1996) 13 Cal.4th 952, 994.)
Mother's various claims all relate to whether evidence at jurisdiction and disposition was substantiated or not. Mother specifically notes the lack of "reliable evidence" and claims much of the admitted evidence contained "substantial exculpatory evidence." According to mother, these issues include unsubstantiated allegations of medical child abuse and Munchausen Syndrome by Proxy; the lack of medical records; the lack of adequate department records; the testimony of one of the social workers; Dr. Jeng's testimony allowed "under the guise of rebuttal testimony"; and the lack of evidence as it pertained to emotional abuse of I.N.
Mother, however, misconstrues what constitutes substantial evidence to support the jurisdictional and dispositional findings. We do not review these findings to see if substantial evidence would support findings in favor of mother, and we cannot reweigh the evidence as she suggests. Rather, "[i]f this 'substantial evidence' is present, no matter how slight it may appear in comparison with the contradictory evidence, the judgment must be upheld." (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 631.) " ' "Under this standard, we do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence, or reweigh the evidence. Instead, we draw all reasonable inferences in support of the findings, view the record favorably to the juvenile court's order and affirm the order even if there is other evidence supporting a contrary finding. [Citations.] The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the court's findings. [Citation.]" [Citation]' [Citation.]" (In re Alexandria P. (2016) 1 Cal.App.5th 331, 354.)
Here, the juvenile court carefully considered the argument as to whether reasonable efforts were made to prevent removal of I.N. And on the issue of whether I.N. suffered from medical child abuse, it expressly found Dr. Stewart and Dr. Wang's testimony impactful and credible, and it found Dr. Jeng's later testimony significant. The testimony was corroborated by numerous reports. Together this evidence supports the jurisdictional and dispositional findings. Therefore, we cannot entertain mother's "attempt to reargue on appeal those factual issues decided adversely to [her] contrary to established precepts of appellate review." (Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 398-399.)
We conclude mother failed to identify any arguable issues from the jurisdiction and disposition hearings that merit briefing and dismiss the appeal.
DISPOSITION
This appeal is dismissed.