In re A.H. CA4/1

Filed 7/11/14 In re A.H. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re A. H., a Person Coming Under the
Juvenile Court Law.
D065333
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. No. EJ3742)
Plaintiff and Respondent,

v.

J. H.,

Defendant and Appellant.

APPEAL from orders of the Superior Court of San Diego County, Carolyn Caietti,

Judge. Affirmed.

Christina Gabrielidis, under appointment by the Court of Appeal, for Defendant

and Appellant.

Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County

Counsel, and Dana C. Shoffner, Deputy County Counsel, for Plaintiff and Respondent.

Maria Diaz, under appointment by the Court of Appeal, for Minor.
 In this appeal from dependency orders, J.H. (Mother) challenges the sufficiency of

the evidence to support the trial court's jurisdictional and dispositional orders which

resulted in the removal of her infant daughter, A.H. (Baby), from her custody. We reject

her contentions of error and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Mother, age 25 at the time of Baby's birth, has a developmental delay and has been

a client of San Diego Regional Center (Regional Center) since age two. Mother has also

been diagnosed with depression, bipolar disorder, and anxiety; has had multiple

psychiatric admissions; is under the care of a psychiatrist; and has been prescribed

antidepressant and antipsychotic medications. Mother lives with her mother

(Grandmother), who is also believed to have a mild developmental delay. When seen by

medical health professionals in preparation for Baby's birth, Mother was characterized as

having "fairly good functional status as she is able to prepare her own meals and do her

own activities of daily living."

Baby was born in the summer of 2013. While Mother was still at the hospital after

Baby's birth, staff reported Mother was bonding with Baby, did well when Baby was put

in her arms, and followed directions. However, Mother was a slow learner, frequently

called the nurse, and was not aware when Baby was sucking on her nipple. The staff was

concerned Mother might be unable to care for Baby on her own and she was not

responsive to Baby's cues for feeding; accordingly, the hospital made a referral to the

Health and Human Services Agency (Agency). The Agency investigated the matter and

received information regarding the plans for Mother to receive assistance from

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Grandmother and the Independent Living Services (ILS) program. The Agency

determined the referral allegation was unfounded, with the understanding the hospital

social worker would notify the Agency if any further concerns arose.

While Mother and Baby were living at home with Grandmother, Mother received

various services to help her and Baby, including regular visits and assistance from ILS

workers and public health nurses.1 About two and one-half months after Baby's birth, on

October 25, 2013, the Agency received a referral alleging Mother was neglecting Baby.

A concern had developed about Baby's slow weight gain and Mother's care of Baby.

Baby had a low birth weight (five pounds, six ounces); in October she weighed eight

pounds, nine ounces; and she was in the second percentile for weight gain. According to

the referral, Mother struggled to wake up at night to feed Baby and was not following

instructions for using sterile bottles.

During a two-hour investigative visit to the residence on October 25, Agency

workers observed Baby and interviewed Mother, Grandmother, and Mother's ILS worker.

The Agency workers saw that Baby appeared to be "small and of little weight"; she had a

dirty neck and fingernails and a flat affect; and she was lethargic and did not cry or coo.

When an Agency worker held Baby, she appeared to be "staring out in space" and did not

respond to the worker's attempts to engage her. During the visit Mother made no effort to

interact with Baby and did not respond when Baby was fussing.

1 An Agency report states Mother was receiving about 40 hours per week of ILS
services and weekly visits from a college nursing student. Another document in the
record states Mother had an ILS worker assisting her three days per week.
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 Grandmother was adamant that Baby was fine, and said she and Mother fed Baby,

and Mother got up at night to feed Baby and did not miss a feeding. Grandmother

worked three-hour shifts three days a week; she helped take care of her own mother and

two other people; and when Grandmother was at work Mother was alone with Baby.

Mother said she fed Baby every two hours, including at night, and she gave her two or

four ounces of formula. At one point Mother said to the worker that she sometimes did

not " 'like to get up' " but when asked to explain, Mother became nervous and did not

elaborate.

When the Agency observed Mother making and giving Baby a bottle, Mother

appeared flustered and agitated, used a bottle that appeared to have milk residue, and did

not appear to be bonded to Baby or interested in holding her. Mother did not initially

notice when milk was coming out of Baby's mouth and dribbling down her chin and neck

at a steady pace; after a few minutes when Mother did notice, she panicked and did not

know what to do. After a few more minutes Mother cleaned Baby with a blanket and

burped Baby over Mother's shoulder, and while doing so Mother "had a look of disgust

on her face." When Mother returned to feeding Baby, Mother did not interact with Baby

and appeared to be agitated. Baby drank about 2.5 ounces of formula.

Mother's ILS worker reported to the Agency that she had concerns about Mother

not feeding Baby properly, especially when Grandmother was at work. Mother had told

the ILS worker that sometimes she does not feed Baby because she is too tired, and she is

not going to wake up in the middle of the night to feed Baby because she is tired. The

ILS worker said if Baby does not take the bottle right away Mother will not continue

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trying, and the visiting nurses have to give Mother the same information every time they

visit and have to "force" Mother to make the bottle and feed and hold Baby. On one

occasion when the ILS worker was going to take Mother and Baby to an appointment,

Mother panicked, put Baby down on the floor in her car seat, and ran away. The ILS

worker did not think Grandmother could take care of Baby full time because

Grandmother had to help her own mother.

During the visit on October 25 when an Agency worker told Mother it was

important to go to the hospital to get Baby checked, Mother became extremely agitated

and started screaming, saying " 'No! I stink my face.' " When the worker asked Mother

what she was worried about, Mother yelled, " 'I'm going to fucking kill you. I don't want

to go, not with my face like this.' " Mother continued to yell and threaten the worker, was

unable to calm down, and was "clawing at the walls." The police were summoned.

While waiting outside, the worker heard what appeared to be objects being thrown and

heard Mother screaming and yelling, " 'I'm not stupid' "; " 'I can't go with this face, stop

telling me to calm down.' " The ILS worker told the Agency workers that Grandmother

had described this behavior before, but it was the first time the ILS worker had seen it

firsthand. When the Agency worker reentered the home with the police, Mother had

locked herself in a room. Grandmother said Mother was experiencing rapid heartbeat and

could not breathe, and Grandmother pointed at the worker and yelled, " 'She did this.

This is all her fault.' "

At the conclusion of the visit on October 25, Baby was removed from Mother's

home and detained in a foster home. On October 28, Baby was examined by Dr. Jennifer

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Davis at a failure-to-thrive clinic. The foster mother told Dr. Davis that Baby had a

flattened head, seemed " 'floppier' " than most babies, and did not cry to show hunger.

The foster mother said baby ate four ounces of formula every three hours; it took her

about 45 minutes to finish a bottle; and she initially had a "good suck" but then lost

interest and fell asleep. Dr. Davis observed that Baby had a small head and "some facial

abnormalities," including a "slightly dysmorphic appearance with triangular facies with

narrow chin." (Boldface type omitted.) After receiving information from the foster

mother and an Agency worker, Dr. Davis diagnosed Baby with failure to thrive and

assessed: "Comprehensive evaluation reveals that infant has most likely not been fed

adequately, but she may also have an underlying disorder. [Her] microcephaly [small

head] is not well-explained by [failure to thrive], and given her family history of multiple

members with delay combined with her slightly dysmorphic features and decreased tone,

I am concerned about an underlying genetic condition. However, there is evidence that

this infant is not ideally nourished based on her thin appearance with minimal

subcutaneous fat." Dr. Davis made a recommendation concerning the amount of formula

Baby should drink for "catch up growth," and stated Baby may need to be admitted to the

hospital if the feeding went poorly. Dr. Davis also referred Baby for a cardiologic

evaluation for a heart murmur and a genetic evaluation to address the issue of

developmental delay, and stated Baby would benefit from a developmental services

evaluation and may need an occupational therapy referral.

In the dependency petition filed on October 29, 2013, the Agency alleged that due

to Mother's mental illness, including developmental delays, Mother was incapable of

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providing regular care for Baby as indicated by Mother's inability to recognize when

Baby needs feeding, her uncertainty on how much Baby should eat, her agitation when

tending to Baby, and her disinterest in holding her, which had caused Baby to be

underweight and which showed Baby had suffered or was at substantial risk of suffering

serious physical harm. Based on communications from Dr. Davis, the Agency reported

that although Baby was " 'not starving' " she was not feeding enough; she had "poor

feeding" in that she "will initially suck and then stop"; and if she did not gain weight in

seven to 10 days she should be admitted to the hospital. Also, the Agency noted Dr.

Davis's observations concerning Baby's abnormal face; the possibility of a genetic

component or organic condition that could be affecting Baby's ability to feed and the

need to investigate this further; and the need for more information about Mother's and

Grandmother's developmental delays. The Agency stated it was concerned that if Baby

remained in Mother's care she would not receive the proper amount of food; it was also

concerned about Baby's safety because of Mother's inability to regulate her reaction to

stress; the support services already being provided to Mother had not been effective in

preventing or eliminating the need for removal; Mother did not appear to have a good

support system to ensure Baby's safety; there was a concern Mother would not follow

through with the recommendations for genetic testing; and the hope was that with

Agency assistance Mother could gain support, stabilize her mental health, and provide a

safe environment for Baby.

At the detention hearing on October 30, 2013, the court ordered that Baby be

detained and reunification services and liberal supervised visitation be provided to

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Mother. That same date Baby was placed in a foster home designated as a medically

fragile home.

The foster mother for the medically fragile placement (who is a nurse) reported

Baby did not cry for two days; she did not smile, coo, reach for toys, or track across the

midline; and she acted like a six-week-old infant rather than a three-month-old. The back

of Baby's head was flattened; she was very thin and showed little affect; she had a weak

suck reflex and "low tone" muscles; it was difficult for her to move her left arm; and she

would lie on her back "with her extremities laid flat" and made little attempt to move.

Medical personnel determined she did not have fat tissue to keep her sufficiently warm;

there were pits under her arms due to atrophy; and she may have infantile depression.

During the first week in the medically fragile foster home, Baby did not cry to

indicate hunger at all. As of November 12, 2013, she was just beginning to cry at times

to show hunger. The foster mother had to use her fingers to provide chin and cheek

support during feedings. During a feeding by the foster mother observed by the Agency

social worker, Baby drank about two ounces of formula before she stopped sucking; the

foster mother then burped her and allowed her to rest for about five minutes; and the

foster mother then tried again with the last two ounces. The process took about 30

minutes and the foster mother repeated it every three hours. The Agency social worker

noted that Baby was unable to do many of the things expected for her age, including

lifting her head. Although Baby was able to wrap her hand around the worker's finger,

there was no strength to her grasp. The worker saw that Baby was now able to make eye

8
contact and was beginning to coo and smile, and she was just beginning to be able to

track an object with her eyes.

Pending the jurisdictional and dispositional hearing scheduled for December 2013,

the foster mother arranged for Baby's various medical appointments and evaluations,

including cardiology, radiology, ultrasound, and occupational and physical therapy. The

foster mother stated Baby's caregiver would need to follow up on all the recommended

services for Baby, including occupational and physical therapy, a cardiac ultrasound to

confirm her heart murmur was benign, and visits to medical professionals to evaluate her

weight. Also, Baby's caregiver would need to have a commitment to follow through with

the recommendations for feeding techniques and physical therapy exercises. On

December 4, 2013, the Agency requested that the foster mother be appointed as the

child's educational representative because Baby needed immediate therapy and services

since she was "severely at risk of cerebral palsy, has atrophy of her arm muscles from

being left in one position for so long and has been diagnosed with infantile depression."

On November 12, 2013, Baby weighed nine pounds, two ounces, and on

December 5 she weighed 10 pounds, 12.8 ounces. On December 12, 2013, the foster

mother reported that Baby was now smiling, cooing and responding. Feeding continued

to be difficult but was improving. Baby's "color ha[d] improved but her left hand [was]

still blue sometimes." Medical evaluators recommended that Baby receive physical and

occupational therapy twice per week, and a possible MRI in three months depending on

her progress. The Agency assessed Baby "continued to have difficulty gaining weight,

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feeding, and developing muscle tone, although she is making small steps toward

success."

When interviewed by the Agency on November 12, 2013, Mother claimed she was

feeding Baby enough and the information in the detention report was untrue, but she

understood that to have her daughter returned she needed " 'to feed her so she grows.' "

Supervised visitation with Mother occurred in November and arrangements were made

for continued visitation.

In its jurisdictional and dispositional reports submitted to the court, the Agency

recommended that Baby remain in the foster home, Mother be offered reunification

services and supervised visitation, and Mother be ordered to submit to a psychological

evaluation. The Agency assessed Mother "was able to follow directions with a service

provider present, but it appears when they [are] not present, [Mother] struggled [to] feed

the baby, especially during the night." Further, Baby "needs tremendous physical support

and patience for feedings which so far the mother has not shown she is able to provide."

The Agency explained that because of Baby's weak suck reflex, it takes considerable

focus and assistance for her to take in the amount of formula needed for her to grow and

develop. Her caregiver needs "to be able to pick up on subtle cues and show strict

commitment to providing her basic needs as she is able to take them."

The Agency stated that because of Mother's developmental delays and mental

health issues, there was a concern Mother would not feed Baby enough, and Baby would

continue to gain weight slowly or not at all which would affect her ability to develop her

muscles and brain. Further, there was a concern Mother would not interact with Baby

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and Baby would learn "not to cue her caregivers for her needs." The Agency noted

Mother defers to Grandmother, and Grandmother was not taking it upon herself to feed

Baby during the night even though Grandmother was aware Mother was not waking to

feed Baby. The Agency opined: "Although it appears [Baby] may have a biological

reason for a poor sucking reflex, it also appears the mother failed to wake during the

night to feed [Baby]. [Baby's] failure to cry when hungry, the flatness of the back of her

head, and her flat affect in response to others, indicate it is highly likely the basic needs

of this child were not being met. Although the mother appears to have good intentions

towards her daughter, the developmental delays, mental health history, and the mother's

inability to control her anger especially in relation to correcting her behavior inhibits the

mother from providing for [Baby's] basic needs."

The Agency stated Mother needed to participate in a psychological evaluation to

determine if she would benefit from services; she needed to participate in a parenting

education program with assistance from the Regional Center to ensure the information is

presented in a way she can understand; and her mental health symptoms needed to be

addressed with her psychiatrist. The Agency stated it would be working closely with the

Regional Center to ensure Mother is receiving services appropriate to her level of

functioning. In the case plan, the Agency set forth the goals Mother was to reach

(including feeding Baby consistently, taking Baby to her medical and developmental

appointments, interacting with Baby to ensure Baby's development, and controlling

Mother's anger) and specified the steps for Mother to achieve these goals, including the

development of a safety network.

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 At a hearing on December 12, 2013, the court ruled there was clear and

convincing evidence to support a jurisdictional finding under Welfare and Institutions

Code section 300, subdivision (b), as alleged by the Agency.2 In its dispositional order

that same date, the court ruled it was appropriate to remove Baby from Mother's custody

under section 361, subdivision (c)(1). In support, the court cited its clear and convincing

evidence finding on the Agency's allegations in the dependency petition. Further, the

court ordered that Mother be provided reunification services and supervised visits and

submit to a psychological evaluation. The court also ordered that educational rights be

assigned to the foster mother so Baby could receive the services she needed for her "acute

medical needs" and failure to thrive.

DISCUSSION

Mother asserts there is insufficient evidence to support the court's jurisdictional

order because the evidence showed it was likely Baby's failure to thrive was caused by a

genetic condition rather than neglect arising from Mother's developmental delay.

Additionally, she contends the record does not support the dispositional ruling to remove

Baby from her custody, and the court should have instead returned Baby to her with

provision of additional services.

When reviewing a challenge to the sufficiency of the evidence, we review the

court's rulings for substantial evidence, resolving all conflicts and drawing all reasonable

inferences in favor of the court's order. (In re Christopher R. (2014) 225 Cal.App.4th

2 Subsequent unspecified statutory references are to the Welfare and Institutions
Code.
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1210, 1216 & fn. 4.) " '[A]ll conflicts are to be resolved in favor of the prevailing party,

and issues of fact and credibility are questions for the trier of fact.' " (In re E.B. (2010)

184 Cal.App.4th 568, 575.) If the circumstances reasonably support the court's findings,

reversal is not warranted merely because the circumstances might also be reasonably

reconciled with a contrary finding. (In re L.K. (2011) 199 Cal.App.4th 1438, 1446.)

I. Challenge to Sufficiency of Evidence for Jurisdictional Finding

A jurisdictional order is proper when the court finds by a preponderance of the

evidence that the child "has suffered, or there is a substantial risk that the child will

suffer, serious physical harm or illness, as a result of the . . . inability of the parent or

guardian to provide regular care for the child due to the parent's or guardian's mental

illness, developmental disability, or substance abuse." (§ 300, subd. (b); In re

Christopher R., supra, 225 Cal.App.4th at pp. 1215-1216 & fn. 4.)

The record supports the court's finding that Baby had suffered or was at risk of

suffering serious harm due to Mother's inability to care for her. Even assuming Baby has

a genetic condition that is causing or contributing to her feeding difficulties and other

problems, the trial court could reasonably conclude Mother's developmental delays

caused Mother to be unable to recognize and respond to the problems in a manner that

ensured Baby would be able to grow and develop in a safe manner. When the Agency

received the second referral and conducted its investigation, Baby was in a precarious

state: she was very small and underweight; the back of her head was flattened; she had a

flat affect and did not cry or coo; she did not respond to attempts to engage her; her

armpits showed signs of atrophy and she made little attempt to move; and she was

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suffering from possible infantile depression. Also, possibly because of a genetic

condition, Baby had a poor suck reflex, which required a prolonged 30-minute feeding

period every three hours and the use of the caregiver's fingers to support Baby's face

during the feedings. Medical professionals who examined Baby advised that she needed

an extensive regimen of services, including a genetic evaluation, physical and

occupational therapy, and overall failure-to-thrive monitoring.

The record supports that Mother did not have the mental capacity and stability to

adequately respond to Baby's numerous challenges. Mother was observed to be agitated

while she was caring for Baby, unaware of what was occurring with Baby physically, and

uninterested in interacting with Baby. Also, when Mother became upset about the

Agency's suggestion to take Baby for an examination, Mother exhibited aggressive,

explosive behavior and the inability to control this behavior to such a degree that police

involvement was necessary. The trial court could reasonably conclude that due to

Mother's mental health issues and developmental delay, there was a substantial risk that

she would be unable to consistently engage in the slow and frequent feeding process that

Baby needed, to interact with Baby sufficiently to meet Baby's most basic developmental

needs, and to implement whatever therapeutic exercises were recommended for Baby.

The record supports the court's jurisdictional order.

II. Challenge to Dispositional Findings of Need for Removal and

No Reasonable Alternative for Removal

Challenging the court's dispositional order, Mother argues there was insufficient

evidence of a risk of harm to Baby if she were returned to Mother's care with support

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services in place. Further, she contends the record does not support that the court

considered alternatives to removal. She asserts Baby should have been returned to her

home under "stringent conditions" to ensure Baby's well-being, including, for example,

increased support services from the Regional Center, public health nurses, and

independent living services; unannounced visits from a social worker; and imposition of a

strict schedule for Mother to feed Baby and with involvement of Grandmother.

Removal of a child from a parent's physical custody is proper if the trial court

finds clear and convincing evidence that there is or would be a substantial danger to the

health, safety, or well-being of the child and there are no reasonable means of protecting

the child without removal. (§ 361, subd. (c)(1).) The court must determine whether

reasonable efforts were made to prevent or eliminate the need for removal and must state

the facts on which the removal decision is made. (§ 361, subd. (d).) Removal should

occur only in "extreme cases of parental abuse or neglect" and the court should consider

whether there are "less drastic measures than removal from parental custody." (In re

Basilio T. (1992) 4 Cal.App.4th 155, 171.)

There is substantial evidence to support that Baby would be at serious risk of harm

if returned to Mother's custody and that the court considered less drastic alternatives to

removal and reasonably found there were none. As set forth above, the court's decision

to remove Baby is supported by Baby's fragile, atrophied, and unresponsive condition;

her need for a high level of monitoring and interaction to ensure adequate feeding and

physical and mental development; and the limits on Mother's mental capacity that

showed she could not provide this degree of care. Although the court's statement of

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factual findings could have been more explicit, any error was harmless as the court was

aware from the Agency's reports that it did not believe Mother's receipt of services and

assistance from Grandmother were sufficient to protect Baby, and the court's rulings

implicitly reflect that it agreed with this conclusion. (See In re Jason L. (1990) 222

Cal.App.3d 1206, 1218 [failure to make required findings does not warrant reversal

absent reasonable probability of different outcome].)

Further, the conclusion not to return Baby to Mother is supported by the record.

The record shows Grandmother may likewise suffer from developmental delays, and that

Baby had reached her deteriorating state notwithstanding Grandmother's presence in the

home and the provision of ILS and public health nurse services to Mother. The court

could reasonably assess that although Mother had been provided with a full range of

supportive services, these had not prevented Baby's failure-to-thrive condition and, given

the level of care now needed by Baby, mere provision of increased services to Mother

would not suffice to ameliorate her condition if she was returned to Mother's custody.

The record supports that Baby needed ongoing monitoring and attention throughout the

day and night, numerous visits to medical professionals, and follow-up care in the home.

The court could properly conclude this level of care exceeded the capability of visiting

service providers and Mother's capacity to learn and implement caretaking instructions

even with Grandmother's assistance, and the only realistic way to protect Baby from

serious harm was to place her with a caretaker who would consistently be present to

provide and oversee Baby's care.

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 The record supports the trial court's decision to remove Baby from Mother's

custody.

As reflected in our above analysis, we are not persuaded by Mother's claim that

the court's orders must be reversed because her developmental delay was not shown to be

the cause of Baby's problems due to the possible genetic component of Baby's condition.

Regardless of the extent to which Baby's problems might be caused by a genetic

condition, Mother's mental limitations created the risk of serious harm to Baby because

Mother did not recognize Baby was not thriving and demonstrated that she lacked the

mental capacity and stability to adequately respond to Baby's failing condition and need

for a high level of intervention to restore and maintain Baby's health.3

DISPOSITION

The orders are affirmed.

HALLER, J.

WE CONCUR:

BENKE, Acting P. J.

MCINTYRE, J.

3 The Agency filed a motion to augment the record on appeal to include information
that was submitted to the trial court after the orders that are before us in this appeal. We
deny this motion.

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