Filed 7/19/21 In re D.G. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re D.G., et al., Persons Coming
Under the Juvenile Court Law.
D078326
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES
AGENCY, (Super. Ct. No. NJ15641 A-C)
Plaintiff and Respondent,
v.
M.G. et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of San Diego County,
Marian F. Gaston, Judge. Affirmed.
Marisa L. D. Conroy, under appointment by the Court of Appeal, for
Defendant and Appellant Mother.
Melissa A. Chaitin, under appointment by the Court of Appeal, for
Minors.
Office of County Counsel, Caitlin E. Rae, Chief Deputy and Tahra
Broderson, Senior Deputy, for Plaintiff and Respondent.
I
INTRODUCTION
The San Diego County Health and Human Services Agency (the
Agency) filed dependency proceedings on behalf of 16-year old D.G., 14-year
old I.G., and 8-year old K.G. (collectively, the Minors) after their 13-year old
autistic brother S.G. went into cardiac arrest and died. S.G. weighed a mere
37 pounds at the time of his death and had not received medical care, dental
care, or developmental services for at least three years prior to his death.
M.G. (Mother), D.G., and I.G. appeal a jurisdictional and dispositional
order in which the juvenile court asserted jurisdiction over the Minors
pursuant to Welfare and Institutions Code section 300, subdivision (b).1
Mother claims the juvenile court violated her due process rights by
conforming the Agency’s dependency petitions to proof. Mother, D.G., and
I.G. also contend the evidence was insufficient to support a finding that there
was a substantial risk the Minors would suffer serious physical harm or
illness due to Mother’s neglect.
Finding no merit to these arguments, we affirm.
II
BACKGROUND
A
Mother and J.G. (Father) have three biological children together,
including an adult daughter, D.G., and I.G. They fostered several children in
Arizona over the span of thirteen years and adopted two of their foster
children—K.G. and S.G. D.G., I.G., and K.G. are the Minors who are the
subjects of this dependency proceeding.
1 Further undesignated statutory references are to the Welfare and
Institutions Code.
2
According to Mother, she felt fatigued and lethargic while living in
Arizona. She consulted medical doctors, but they were unable to identify the
source of her symptoms. She then consulted a homeopathic provider, who
diagnosed her with an allergy to heat and advised her to move to a cooler
climate. On the advice of the homeopathic provider, Mother moved to
California with her children in 2016 or 2017. Father lived elsewhere for work
and periodically visited the family.
B
S.G., the Minors’ adopted brother, suffered from numerous medical
ailments and developmental disabilities during his short life. He had autism
spectrum disorder and chromosomal abnormalities. Further, an
electroencephalogram showed he had an elevated susceptibility to seizures.
S.G. had limited speech abilities and could say only three words by the
time he was three years old. He exhibited challenging behaviors as well.
When he was younger, he would scream for no apparent reason, throw
tantrums, and engage in repetitive behaviors. When he was older, he would
hit walls and defecate and urinate in his bedroom.
S.G. received physical therapy, occupational therapy, and speech
services in Arizona. He received at least some medical care from health care
professionals in Arizona, including from a developmental pediatrician and an
ophthalmologist. He also visited a neurologist nine times between the year
2009 (when he was three years old) and the year 2014 (when he was eight
years old). S.G. weighed 32 pounds when he was three years old, but he
became significantly underweight as he grew older. By the time he was eight
years old, S.G. weighed just 39 pounds.
Mother did not seek out medical care or dental care for any of her
children after the family moved to California. She homeschooled all of the
3
children and did not seek out physical therapy, occupational therapy, or
speech services for S.G. When a social worker later asked Mother why she
did not seek out medical care for her children, Mother expressed frustration
about her healthcare experiences and stated she preferred homeopathic
medicine. She also stated that she believed doctors do not really do anything.
C
The tragic events giving rise to these proceedings took place in the
early morning hours of August 4, 2019. The afternoon prior, S.G. felt weak
and unwell. Mother believed S.G. was dehydrated, so she bathed him and
gave him soup and juice. S.G. appeared to feel better for a short time, but he
became weak again and exhibited signs of heavy breathing. He seemed
“spaced out” and was unresponsive, even though his eyes were open. Mother
researched S.G.’s condition online and determined he may be suffering from
“nocturnal seizures.” She did not call 911; instead, she slapped S.G. in the
face to try to get a response from him, gave him another bath, gave him more
soup, and laid him down.
Mother and her adult daughter decided to take turns watching S.G.
through the night. Mother went to sleep and was awakened a half hour later
by her daughter. S.G. had stopped breathing. The daughter called 911 and
the responding medics administered cardiopulmonary resuscitation on S.G.
S.G. could not be resuscitated and was declared dead at the hospital a short
time later. The emergency department report described S.G.’s physical
appearance as “emaciated.”
The Agency received a referral in connection with S.G.’s death. The
medical examiner reported to the social worker that S.G. died due to sudden
cardiac arrest. He reported S.G. was undernourished, but he had “good fat
reserves” and was not malnourished. He added that the parents could have
4
“done better,” but S.G.’s death was “not necessarily preventable.” On an
amended death certificate, the medical examiner stated S.G. suffered a
sudden cardiac death accompanied by factors including probable seizure
disorder, anoxic encephalopathy (lack of oxygen to the brain), caloric
malnutrition, and failure to thrive.
The social worker requested well-child examinations for the Minors.
Mother—in accordance with her preference for homeopathy—took the Minors
to a naturopathic doctor for the examinations. According to the reports from
the examinations, the Minors were well-developed and well-nourished.
However, the reports noted I.G. and K.G. suffered from anxiety, K.G. had two
suspected cavities, and D.G. had a methylenetetrahydrofolate reductase
(MTHFR) gene mutation, a condition that can cause elevated enzyme levels.
Laboratory tests were also ordered to determine whether D.G. suffered from
an endocrine disorder called Addison’s disease.
D
On October 22, 2019, the Agency requested a paper consultation with
Dr. Shalon Nienow, a child abuse expert at the Chadwick Center for Children
and Families at the University of California San Diego. Dr. Nienow reviewed
a written narrative and photographic documentation from the medical
examiner, statements Mother made to law enforcement, S.G.’s medical
records from Arizona, the emergency department’s report from S.G.’s hospital
visit, and statements from the Minors. On January 23, 2020, Dr. Nienow
provided the Agency with a report of her impressions.
In her report, Dr. Nienow made three findings of relevance here. First,
she concluded S.G. suffered from malnourishment that was diagnostic of
starvation and the parents’ failure to seek medical care for S.G. was
diagnostic of medical neglect. She noted S.G. weighed a mere 37 pounds at
5
the time of his death—one-third the weight of an average child his age. She
noted S.G. had “no subcutaneous fat and markedly underdeveloped
musculature.” Further, she noted S.G. had consumed non-food items, such as
paint, plaster, and carpet, and opined that S.G.’s “starvation was so severe
that it would have caused [him] physical pain, and an uncontrollable drive to
obtain and consume calories in any form.”
Second, Dr. Nienow determined Mother’s failure to seek medical
attention in the hours preceding S.G.’s death was definitive evidence of
medical neglect. She noted S.G. was unconscious and exhibited signs of
respiratory distress, but no medical care was sought.
Third, Dr. Nienow concluded S.G.’s “case [met] the medical diagnostic
criteria for torture.” She opined that S.G.’s starvation “would have caused
him prolonged physical pain and emotional distress, and ultimately led to his
death.” She also found that S.G. “suffered numerous forms of psychological
maltreatment,” such as “isolation, terrorizing, and medical/educational
neglect.”
E
On February 10, 2020, the Agency filed petitions alleging the Minors
were within the jurisdiction of the juvenile court because their parents
caused the death of another child through abuse or neglect. (§ 300, subd. (f).)
They alleged Mother “caused the death of another minor, [S.G.] through
abuse or neglect in that at the time of his death [S.G.] was grossly
malnourished and weighed 37 pounds. He had been deprived of adequate
nourishment and medical care for at least three years preceding his death.
Further, despite the child’s obvious medical distress on the night of his death
… [M]other did not seek medical intervention until after the child was
deceased.” The petitions alleged Father “was sporadically present in the
6
family home and failed to take any action to provide for [S.G.’s] well-being
despite the child being visibly emaciated.”
In its detention report, the Agency recommended the Minors be
detained with the parents.2 Still, the Agency stated it was “concerned about
the health and safety of [the Minors] and [was] requesting that the court
monitor the children to ensure that their basic needs [were] met.” The
Agency appended documents to the detention report including Dr. Nienow’s
report, the amendment to the death certificate, the records from the Minors’
examinations with the naturopathic doctor, a law enforcement incident
report, and photographs from S.G.’s autopsy.
Counsel for Mother, counsel for Father, and counsel for D.G. and I.G.
agreed with the Agency’s detention recommendation. Counsel for K.G.
contested the detention recommendation.
At the contested detention hearing, K.G.’s counsel called Dr. Nienow to
testify. She discussed the basis for her report and the conclusions set forth in
the report. She opined K.G. would be at risk if left in Mother’s care given
that the removal of an index child—i.e., a child upon whom severe abuse or
neglect is inflicted—can create a substantial risk that another child in the
household will be chosen to take the place of the index child. She testified
K.G. suffered from emotional abuse to the extent she was forced to witness
S.G.’s starvation. Further, she testified K.G. suffered from potential medical
neglect because she had anxiety and bipolar disorder for which she was not
receiving psychiatric services.
The court found the Agency made a prima facie showing under
section 300, subdivision (f). It detained D.G. and I.G. with their parents on
the condition that the parents: (1) comply with voluntary services
2 Father moved back into the family home in August 2019.
7
recommended by the Agency, (2) ensure the children attended school and
therapy, and (3) make the children available to their legal counsel and the
Agency. The court did not detain K.G. with the parents; instead, it detained
her in the Polinsky Children’s Center or an adjunct or licensed foster care.
The court reasoned K.G. faced a higher risk of danger in the family home due
to her young age, her untreated bipolar disorder, and her status as an
adopted child.
F
In its jurisdiction and disposition report, the Agency recommended the
court make true findings on the petitions, declare the Minors dependents,
and provide services. It recommended that D.G. and I.G. be placed with the
parents and K.G. be placed outside the family home.
Although the report recommended that D.G. and I.G. be placed in the
family home, it stated “[t]he minors ha[d] suffered, or there [was] a
substantial risk that the minors [would] suffer, serious physical harm or
death by the [M]other’s unsafe and neglectful care ….” It stated Mother “still
[did] not appear to understand how her actions resulted in [S.G.’s] death,
even though he was extremely underweight, malnourished, and had not
received any medical care for the last 3 or more years.” Further, it stated the
parents needed to be “more transparent in the manner of care they [were]
providing their children … and display an understanding of safety risks in
regards to severe neglect, specifically failure to thrive, in order to be
confident that the family could function without Agency and Court
oversight.”
The Minors’ counsel submitted on the Agency’s recommendations.
However, the parents’ counsel requested that the court set the matter for
trial.
8
The Agency filed an addendum report in advance of the contested
jurisdiction and disposition hearing. It stated the parents completed a
parenting course, but on the advice of counsel had declined to participate in a
child abuse group. It stated the social worker tried “to discuss monthly with
the mother and the father the Agency’s concerns, ways in which the mother
and father could provide/have provided safety to the minors, and what the
mother and father could have done differently to prevent the death of the
minor [S.G.].” However, the parents reportedly were not transparent
concerning “how they plan[ned] to mitigate the dangers,” and stated they
were “advised by their attorneys not to answer questions pertaining to the
allegations.”
G
The jurisdiction and disposition hearing took place over five days on
August 14, August 21, August 28, September 24, and October 7. On the first
day of the hearing, the court received into evidence the detention report, the
amendment to the death certificate, the jurisdiction and disposition report,
and the addendum report.
Dr. Nienow testified on the first day of the hearing. She testified S.G.
was the victim of “profound starvation” and torture. She based her opinion
on S.G.’s “normal growth velocity for the first four years of his life” and his
“extreme state of malnutrition” at the time of his death. According to
Dr. Nienow, the starvation amounted to torture because it was a “prolonged
event that … cause[d] physical pain and emotional distress.” Dr. Nienow
testified it was “plausible” the “starvation played a role in his demise” and it
was “feasible that [S.G.] would be alive today” if Mother had sought medical
aid in the hours before he died.
9
Dr. Nienow testified about the Minors as well. She testified the Minors
were subject to psychological maltreatment because they were forced to
witness S.G.’s starvation and torture. Further, she testified “the children”
faced a “very real” risk of abuse or neglect due to the possibility that the
parents would select a new index child to starve or torture.3
Investigating social worker Jason Anthony testified on the first and
second days of the hearing. He testified S.G. did not receive services despite
his autism spectrum disorder diagnosis, none of the children received medical
care in California, and I.G. and K.G. did not receive mental health services
for their anxiety. Anthony testified he was concerned that S.G. did not
receive services and that the Minors did not receive medical care or mental
health services. However, he testified that, at least during the investigatory
stage of the case, he was not concerned the Minors were being neglected,
underfed, or targeted for abuse.
Social worker Krista Paddock testified on the second and fourth days of
the hearing. She testified about the services in which the parents were
engaged, among other topics. She testified Mother completed parenting
courses, but declined to participate in a child abuse group. Paddock testified
Mother, acting on the advice of counsel, would not speak to her about the
protective issues underlying the petitions. She testified the Agency was
therefore unable to work with Mother on any of the protective issues giving
rise to the proceedings.
Pathologist and toxicologist Dr. Marvin Pietruszka testified on the
second day of the hearing. Based on his review of the case files,
3 Dr. Nienow also testified in rebuttal to the testimony of Dr. Marvin
Pietruszka. Dr. Pietruszka’s testimony will be summarized later in the
opinion.
10
Dr. Pietruszka believed S.G. suffered seizures throughout his life resulting in
hypoxic encephalopathy, i.e., loss of oxygen to the brain. He testified he did
not believe S.G.’s death was preventable because S.G. had suffered hypoxic
changes to his brain over time which would have been very difficult for
Mother to identify. Further, he testified he did not believe S.G. was
intentionally starved; rather, he believed S.G. was undernourished because
he had anorexia nervosa, did not have an appetite, and suffered an
intolerance to certain foods.
At the end of the second hearing day, the court stated it did not want to
“take the parties by surprise” and, for that reason, it was notifying them that
at the close of evidence it might ask them to address whether jurisdiction was
proper under section 300, subdivision (b). The next hearing day, K.G.’s
counsel stated she was “putting all counsel and parties on notice that if
necessary [she would] be asking the court to conform to proof and sustain a
Welfare and Institutions Code [section] 300(b) or 300(j) count.” No party
objected or requested a continuance.
D.G. testified on the third day of the hearing. He testified he liked
living with his parents and felt safe living with them.
The parties presented closing arguments on the fourth and fifth days of
the hearing. The Agency’s counsel asked the court to make a true finding on
the petitions under section 300, subdivision (f). But she stated the Agency
did not believe section 300, subdivision (b) fit the facts of the case. She stated
it was “highly concerning” the Minors had not seen a medical professional for
so long, but the “Agency [did not] feel that [subdivision] (b) quite capture[d]
the factual background of [the] case” because the court could assume
jurisdiction under subdivision (b) only if it found “the children [were] at a
11
current risk of physical and not emotional harm based upon [the parents’]
failure to provide medical care.”
Counsel for D.G. and I.G. submitted on the Agency’s recommendations.
He stated he did not believe an assumption of jurisdiction was proper under
section 300, subdivision (b) because he “[didn’t] see any current substantial
risk of abuse or neglect to [D.G.] or [I.G.].”
Counsel for K.G. adopted the Agency’s arguments concerning
section 300, subdivision (f), and urged the court to sustain the petitions as
originally pleaded. However, K.G.’s counsel argued that, in the alternative,
the “facts [were] sufficient to conform the petition to [proof] and sustain a
[subdivision] (b) petition as to [S.G.]” and a “[subdivision] (j) petition” as to
the Minors.
Mother’s counsel argued the court should dismiss the petitions. In
relevant part, she argued a true finding under section 300, subdivision (b)
was unwarranted because the Minors did not face a substantial risk of
serious physical harm. Additionally, she stated that, “when lacking notice,
there are due process rights that would be violated for the Mother should the
court make a true finding on a 300(b).”
After closing arguments, the court found the “weight of the evidence
support[ed] the conclusion that [S.G.’s] death was triggered by a seizure.” It
noted the evidence was “too murky” to find that S.G.’s malnourishment
caused his death. It also found there was too much uncertainty concerning
whether S.G. could have been saved if Mother had sought prompt medical
12
intervention in the hours before his death. Therefore, the court declined to
assume jurisdiction under section 300, subdivision (f).4
Then, the court opined that it had authority to conform the petitions to
proof “so long as the variance between pleading[s] and proof [were] not so
wide that [they] would prejudice a party or violate due process to make the
amendment[s].” The court stated it had “put the parties on notice that they
should be prepared to answer the question of whether the facts as alleged
support[ed] a jurisdiction under 300(b).” It also stated the parents were not
“deprived of an opportunity to contest the allegation.”
The court then found the parents’ “obvious neglect” placed the Minors
at a substantial risk of serious physical harm and, therefore, the court would
assume jurisdiction under section 300, subdivision (b). The court stated
jurisdiction was based on “the exact facts alleged in the [section] 300(f)
petition[s],” namely that S.G. was “grossly malnourished,” weighed 37
pounds, and was deprived of adequate nourishment and medical care for at
least three years. The court noted Mother did not seek medical intervention
until S.G. was deceased despite his “obvious medical distress on the night of
his death ….” It found the Minors “suffered from minor issues that were not
being addressed,” but a “minor problem today, like a cavity can turn into
significant damage if not treated.” Further, it found Mother “demonstrated
such an extreme aversion to conventional medical and dental care” that she
was “unable to safely parent her children ….”
4 The court harshly critiqued the credibility of both testifying experts. It
found Dr. Nienow’s opinions concerning torture “strain[ed] credulity” and
conflicted with other evidence in the record. It also faulted Dr. Pietruszka for
downplaying S.G.’s “obvious deterioration.” According to the court, both
experts took “extreme and frankly unbelievable positions in this case on
issues that matter[ed].”
13
The court placed the Minors with the parents, ordered family
maintenance services, and scheduled a family maintenance review in six
months.
III
DISCUSSION
A
Overview of Dependency Proceedings
“ ‘Dependency proceedings in the juvenile court are special proceedings
with their own set of rules, governed, in general, by the Welfare and
Institutions Code.’ [Citation.] ‘Under section 300, a child who is neglected or
abused falls within the juvenile court’s protective jurisdiction as a “dependent
child of the court.” ’ ” (In re M.C. (2011) 199 Cal.App.4th 784, 790.) “ ‘ “The
objective of the dependency scheme is to protect abused or neglected children
and those at substantial risk thereof and to provide permanent, stable homes
if those children cannot be returned home within a prescribed period of
time.” ’ ” (In re Summer H. (2006) 139 Cal.App.4th 1315, 1324.)
“The basic pleading device in a dependency case is a petition. It may be
an original petition (§ 332), a subsequent petition for children who are
already dependents when there are ‘new facts or circumstances’ that bring
them within a category of section 300 ‘other than those under which the
original petition was sustained’ (§ 342), or a supplemental petition when
there are facts which indicate that a previous disposition is not appropriate.
(§ 387.)” (In re Jessica C. (2001) 93 Cal.App.4th 1027, 1035.) Section 332,
subdivision (f) governs the substantive requirements of an original petition
and mandates that the petition contain “[a] concise statement of facts,
separately stated, to support the conclusion that the child upon whose behalf
14
the petition is being brought is a person within the definition of each of the
sections and subdivisions under which the proceedings are being instituted.”
When dependency is contested, the county social services agency
typically commences the dependency proceeding by filing the petition with
the juvenile court. (§ 325 [“A proceeding in the juvenile court to declare a
child to be a dependent child of the court is commenced by the filing with the
court, by the social worker, of a petition ….”].) The social services agency
“ ‘serves an executive function when it acts as the prosecuting arm of the
state and initiates a juvenile dependency proceeding.’ ” (In re M.C., supra,
199 Cal.App.4th at p. 810.) “ ‘The same is true during the course of the
dependency proceeding, in which the social services agency bears the burden
of proof.’ ”5 (Ibid.) Meanwhile, “the juvenile court is authorized to make
orders pertaining to abused or neglected children who come within the court’s
jurisdiction. (§§ 361, 362.)” (In re Ashley M. (2003) 114 Cal.App.4th 1, 7.)
“In dependency proceedings, there are generally four phases:
(1) detention and jurisdiction; (2) disposition; (3) the provision of services for
reunification or family maintenance, accompanied by periodic review
hearings; and (4) either a permanent plan for the child’s placement outside of
the parent’s home or termination of the dependency.” (In re Paul W. (2007)
151 Cal.App.4th 37, 44.) “At the jurisdictional hearing the juvenile court
determines whether the allegations in the petition that the minor comes
within section 300 (and therefore within the juvenile court’s jurisdiction) are
true. The court’s jurisdictional findings must be based on a preponderance of
the evidence. (See § 355.)” (In re J.K. (2009) 174 Cal.App.4th 1426, 1432.)
5 The social services agency performs quasi-judicial functions as well,
such as when it provides statutorily-mandated social study reports and
recommendations to the court. (In re M.C., supra, 199 Cal.App.4th at p. 810.)
15
“Given the haste with which petitions are sometimes drafted, and
section 332’s statement that only a ‘concise statement of facts is required,’ the
ability to amend according to proof plays an important role in the overall
dependency scheme.” (In re Jessica C., supra, 93 Cal.App.4th at p. 1041.)
Section 348 “provides that provisions in the Code of Civil Procedure relating
to variance and amendment of pleadings in civil actions apply to juvenile
dependency petitions and proceedings.” (In re Andrew L. (2011) 192
Cal.App.4th 683, 688–689.) Amendments to conform to proof are favored so
long as the proposed amendment does not mislead an adversarial party to its
prejudice. (In re Jessica C., at p. 1042.) However, “[i]f a variance between
pleading and proof ... is so wide that it would, in effect, violate due process to
allow the amendment, the court should, of course, refuse any such
amendment.” (In re Andrew L., at p. 689.)
B
Mother Has Not Established a Due Process Violation
Mother contends the juvenile court violated her due process rights
when conforming the petitions to proof and assuming jurisdiction under
section 300, subdivision (b). Mother’s due process argument has two
components. First, she claims the court impermissibly acted as both advocate
and trier of fact when it conformed the petitions to proof. Second, she asserts
the court denied her adequate notice, and an opportunity to argue against,
the jurisdictional allegations.
During closing arguments, Mother’s counsel argued that a true finding
under section 300, subdivision (b) would violate Mother’s due process rights.
However, the sole basis for the objection was that Mother failed to receive
notice that jurisdiction would be asserted under subdivision (b); Mother’s
counsel never argued that Mother was deprived of an impartial arbiter. To
16
the extent Mother now claims the court impermissibly acted as both trier of
fact and advocate, Mother forfeited her argument by failing to raise it below.
(In re A.A. (2012) 203 Cal.App.4th 597, 606 [mother forfeited constitutional
challenges to placement order]; In re Wilford J. (2005) 131 Cal.App.4th 742,
754 [father forfeited argument he was deprived of due process right to notice
in dependency proceeding].)
As noted, Mother’s counsel stated Mother did not have adequate notice
the court might assume jurisdiction under section 300, subdivision (b). This
statement, although technically not phrased as an objection, was sufficient to
preserve Mother’s notice-based argument for appeal. It afforded the juvenile
court a chance to assess the issue of notice in the first instance. Indeed, the
court expressly discussed notice when rendering its jurisdictional findings.
Therefore, we turn to the merits of Mother’s notice-based argument.
“[P]arents in dependency proceedings are not generally entitled to the
same due process protections as criminal defendants. [Citation.]
Dependency proceedings are civil in nature and nonpunitive. [Citation.] In
the civil context, ‘ “ ‘[d]ue process requires only that the procedure adopted
comport with fundamental principles of fairness and decency.’ ” ’ ” (In re
William M.W. (2019) 43 Cal.App.5th 573, 587–588.) Even so, “a parent whose
child may be found subject to the dependency jurisdiction of the court enjoys
a due process right to be informed of the nature of the hearing, as well as the
allegations upon which the deprivation of custody is predicated, in order that
he or she may make an informed decision whether to appear and contest the
allegations.” (In re Wilford J., supra, 131 Cal.App.4th at p. 752.)
In the present case, the Agency filed petitions pursuant to section 300,
subdivision (f), which applies when a “child’s parent or guardian caused the
17
death of another child through abuse or neglect.”6 The petitions alleged in
relevant part that Mother caused S.G.’s death because 13-year-old S.G. was
“grossly malnourished and weighed 37 pounds” when he died, was “deprived
of adequate nourishment and medical care for at least three years preceding
his death,” and, “despite [S.G.’s] obvious medical distress on the night of his
death the mother did not seek intervention until after [S.G.] was deceased.”
If Mother had received no other notice that the juvenile court might assume
jurisdiction under section 300, subdivision (b), we would be inclined to agree
with her that she did not receive sufficient notice and an opportunity to be
heard, as due process demands.
But this was not the only notice Mother received concerning the legal
theories on which jurisdiction might be asserted. On August 21—nearly a
month and a half before the last day of the contested hearing—the court
instructed the parties to be prepared to argue whether the facts supported an
exercise of jurisdiction under section 300, subdivision (b). Then, on August
28—still more than a month prior to the last hearing day—K.G.’s counsel
stated she planned to ask the court to conform the petitions to proof and
sustain them under section 300, subdivisions (b) or (j). Mother was
represented by counsel at both the hearings during which these statements
were made. Further, there is no indication Mother was thereafter precluded
from opposing, or hindered in her ability to oppose, the exercise of jurisdiction
under section 300, subdivision (b).
6 Section 300, subdivision (f) reflects a legislative determination “that a
parent’s or guardian’s neglectful or abusive responsibility for a child fatality
may inherently give rise to a serious concern for the current safety and
welfare of living children under the parent’s or guardian’s care, and may
thereby justify the juvenile court’s intervention on their behalf without the
need for separate evidence or findings about the current risk of such harm.”
(In re Ethan C. (2012) 54 Cal.4th 610, 638.)
18
The basic facts underpinning the court’s assumption of jurisdiction
were also well-known. The issue of Mother’s years-long failure to procure
medical care for any of her children was central to the proceedings below. It
prompted the Agency to request well-child examinations for the Minors. The
issue—together with Mother’s aversion to medical care—was discussed
extensively in the detention report and in the jurisdiction and disposition
report, as well as during the jurisdiction and disposition hearing. Further,
the Agency on numerous occasions articulated its stance that the Minors
would face a substantial risk of physical harm if they were left in Mother’s
care.7
Mother disputed the Agency’s position and put on evidence at the
jurisdiction and disposition hearing to establish that the Minors were
physically healthy and well-nourished. But the fact Mother presented such
evidence suggests she had notice and an opportunity to contest the
jurisdictional allegations—an opportunity she fully exercised. Tellingly,
7 For example, the Agency stated the following in the jurisdiction and
disposition report: “The minors have suffered, or there is a substantial risk
that the minors will suffer, serious physical harm or death by the mother’s
unsafe and neglectful care resulting in the death of their sibling, [S.G.].
Returning [K.G.], who is now the only adopted child in the family and is at a
young age of eight, to an unchanged environment leaves her at continued risk
of harm due to mother’s neglect. In addition, the mother is unable to identify
how her own ideas of an appropriate diet for children and lack of medical care
could be extremely unsafe and possibly harmful.”
To take another example, the Agency stated the following in its
addendum report: “[S.G.’s] starvation did not occur overnight and was a
result of prolonged deprivation, which was entirely in the parents’ control
and with proper nutrition and/or medical care his life could have been saved.
The mother and father continue to display a lack of understanding of safety
risks in regards to severe neglect, specifically failure to thrive, and the
Agency is not confident that the mother and father would be able to safely
care for the minor’s [sic] without Agency and Court oversight.”
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Mother does not identify any additional or different evidence, witnesses, or
arguments she would have presented during the hearing if the original
petitions had been filed under section 300, subdivision (b).
Because Mother had notice and an opportunity to contest the
jurisdictional allegations, Mother has not established a violation of her due
process rights.
C
Substantial Evidence Supported the Jurisdictional Findings
Mother, D.G., and I.G. argue there was insufficient evidence to support
the jurisdictional findings under section 300, subdivision (b). They claim
there was not substantial evidence to establish that Mother’s conduct would
place the Minors at a substantial risk of serious physical harm or illness.
Section 300, subdivision (b)(1) provides in relevant part that a child
comes within the jurisdiction of the court if “[t]he child has suffered, or there
is a substantial risk that the child will suffer, serious physical harm or
illness, as a result of the failure or inability of his or her parent or guardian
to adequately supervise or protect the child … or by the willful or negligent
failure of the parent or guardian to provide the child with adequate food,
clothing, shelter, or medical treatment ….” The court found the Minors met
these criteria and thus assumed jurisdiction over the Minors.
We review the juvenile court’s jurisdictional findings for substantial
evidence. (In re Travis C. (2017) 13 Cal.App.5th 1219, 1225.) “ ‘We do not
reweigh the evidence, evaluate the credibility of witnesses, or resolve
evidentiary conflicts. [Citation.] The judgment will be upheld if it is
supported by substantial evidence, even though substantial evidence to the
contrary also exists and the trial court might have reached a different result
had it believed other evidence.’ ” (Ibid.) “The substantial evidence standard
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of review is generally considered the most difficult standard of review to
meet, as it should be, because it is not the function of the reviewing court to
determine the facts.” (In re Michael G. (2012) 203 Cal.App.4th 580, 589.)
Mother, D.G., and I.G. argue there was insufficient evidence of a
substantial risk of serious physical harm or illness because the Minors had
only relatively minor medical ailments, such as anxiety and cavities, at the
time of the jurisdiction and disposition hearing. Moreover, Mother claims
these issues were being treated by the time of the hearing. She emphasizes
the Minors were in therapy and had visited, or were scheduled to visit, a
dentist.
We are not persuaded that a substantial risk was absent merely
because the Minors were not suffering serious physical harm or illness at the
time of the hearing. “A dependency court is not required to ‘wait until a child
is seriously abused or injured to assume jurisdiction and take steps necessary
to protect the child.’ ” (In re J.M. (2019) 40 Cal.App.5th 913, 921; see In re
K.B. (2021) 59 Cal.App.5th 593, 603 [“The court need not wait for disaster to
strike before asserting jurisdiction. [Citation.] This is why the statute uses
the word ‘risk.’ ”]; accord In re Petra B. (1989) 216 Cal.App.3d 1163, 1169
[“The issue before the court … was not merely whether the wounds had
healed but whether [the minor’s] parents were capable and willing to exercise
proper medical care.”].) “The focus of section 300 is on averting harm to the
child.” (In re T.V. (2013) 217 Cal.App.4th 126, 133, italics added.)
Where, as here, “jurisdictional allegations are based solely on risk to
the child, and not on past injury, a juvenile court ordinarily determines
whether a substantial risk of harm exists at the time of the jurisdiction
hearing.” (In re J.M., supra, 40 Cal.App.5th at p. 921.) “ ‘Some risks may be
substantial even if they carry a low degree of probability because the
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magnitude of the harm is potentially great.... Conversely, a relatively high
probability that a very minor harm will occur probably does not involve a
“substantial” risk. Thus, in order to determine whether a risk is substantial,
the court must consider both the likelihood that harm will occur and the
magnitude of potential harm.’ ” (In re I.J. (2013) 56 Cal.4th 766, 778.)
It may be true, as Mother, D.G., and I.G. suggest, that there was a
relatively low probability the Minors would suffer serious physical harm or
injury due to the fact that they were, at least at the time of the hearing,
generally healthy and well-nourished. Nonetheless, we believe there was
substantial evidence to support a finding of substantial risk due to the great
magnitude of the potential harm they could suffer. (See In re S.R. (2020) 48
Cal.App.5th 204, 222 [“the record contains substantial evidence of a
substantial risk of great harm, even if the probability of that risk was low”].)
Ample evidence was introduced showing that Mother failed to seek out
any medical care for three or more years for S.G. as his state of gross
malnutrition tragically deteriorated from bad to worse to life-threatening. By
the time 13-year-old S.G. died, he weighed a mere 37 pounds—one third the
weight of an average child his age—and he was “emaciated,” as noted in the
report from the hospital emergency department. Our own review of the
photographs from S.G.’s autopsy corroborates the emergency department’s
description. From this evidence, we could not agree more with the juvenile
court in its assessment that S.G. was in a “wretched condition for a 13-year-
old boy,” and yet still Mother deprived him of any form of medical care.
Even in the hours preceding S.G.’s death, while he lay unresponsive
and struggling to breathe, Mother did not seek out potentially life-saving
medical care for him. The juvenile court found there was no guarantee that
prompt medical intervention would have saved his life. But it also noted that
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Mother “didn’t even try,” and the evidence in the record supports this finding.
Mother’s past failure to procure medical care or intervention for S.G.—either
in the prolonged period during which he became grossly malnourished, or in
the hours preceding his death while he lay in a state of obvious distress—are
probative of the current risks Mother’s neglectful conduct poses to the
Minors. (In re Yolanda L. (2017) 7 Cal.App.5th 987, 993 [“evidence of past
conduct may be probative of current conditions”]; accord § 300, subd. (j) [in
assessing whether there is a substantial risk that a child will be abused or
neglected, a court should consider the abuse or neglect of the child’s sibling].)
Further, we have no sound reason to believe Mother would be any more
willing to seek out essential medical care now if the Minors were in similar
life-threatening circumstances. The juvenile court found Mother harbored an
“extreme aversion to conventional medical and dental care,” a finding that is
amply supported by the record. There was also evidence in the record
suggesting that Mother’s aversion persisted even after S.G. died.
For instance, in the detention report, the Agency stated that Mother
told the social worker she was frustrated with medical professionals and
believed “doctors do not really do anything.” In the jurisdiction and
disposition report, the Agency noted that Mother refused to discuss the
Minors’ dietary habits or to grant the Agency access to information
concerning the Minors’ previous medical care. In the addendum report, the
Agency opined that Mother was not transparent about how she planned to
mitigate dangers that the Minors might face and, furthermore, Mother lacked
understanding regarding safety risks and severe neglect. And, at the
jurisdiction and disposition hearing, social worker Paddock testified that
Mother would not speak with the Agency about the protective issues
underpinning the case.
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Collectively, this evidence gives rise to a reasonable inference that at
the time of the hearing Mother continued to lack understanding concerning
risk assessment and the necessity of medical treatment. Together with the
evidence of Mother’s past neglectful conduct, it supported the juvenile court’s
finding of substantial risk and justified the assumption of jurisdiction over
the Minors. (See In re John M. (2012) 212 Cal.App.4th 1117, 1124–1125
[substantial evidence supported jurisdictional finding where mother’s
“subsequent comments and conduct offered no indication that [past conduct]
was a unique situation or that mother was unlikely to engage in similar
behavior in the future”]; In re Petra B., supra, 216 Cal.App.3d at p. 1170
[parents’ continuing “confusion about proper medical treatment posed a then
existing threat to [minor’s] well-being and justified the court’s assumption of
jurisdiction”].)
IV
DISPOSITION
The order is affirmed.
McCONNELL, P. J.
WE CONCUR:
HALLER, J.
IRION, J.
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