California Cases January 16, 2020: San Diego Cnty. Health & Human Servs. Agency v. B.H. (In re L.M.)

Case Description

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court , rule 8.1115(a) , prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published , except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. NJ13961)

APPEAL from an order of the Superior Court of San Diego County, Michael Imhoff, Commissioner. Affirmed.

Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and Appellant.

Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Lisa M. Maldonado, Senior Deputy County Counsel, for Plaintiff and Respondent.

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B.H. (Mother) appeals from an order of the juvenile court finding jurisdiction and declaring her 17-year-old son, L.M., a dependent of the court pursuant to Welfare and Institutions Code section 300, subdivision (b)(1) based on Mother's failure to provide adequate medical care. Mother contends the evidence was not sufficient to support a finding she caused or put L.M. at risk of serious physical harm. We disagree and affirm the order.

L.M. suffers from lumbar spina bifida and has also been diagnosed with several other medical conditions, including severe scoliosis, failure to thrive, and hydrocephalus. He is wheelchair bound and dependent on the care of others. Mother has been L.M.'s primary caregiver for most of his life, but L.M. was found to be a dependent of the juvenile court twice before—in 2004 and 2007—due to Mother's abuse of alcohol and related concerns regarding her care of L.M. Mother was able to reunify with L.M. in both cases.

The circumstances leading to the current dependency began in January 2018, when L.M. presented to his primary care physician with a pressure ulcer (commonly known as

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a bedsore) on his left hip. The physician referred him to the Plastic Surgery and Wound Care Clinic at Rady Children's Hospital (Rady's). Mother scheduled several appointments at Rady's over the next few months but did not take L.M. to any of them.

In March, L.M. saw Dr. Rosenfeld, an orthopedic specialist at Children's Hospital of Orange County (CHOC) who had previously performed an operation on L.M.'s spine. Dr. Rosenfeld recommended another spinal reconstruction surgery to address L.M.'s worsening scoliosis and prescribed medication for the ulcer.

The ulcer was not evaluated by another medical professional until September, when Mother took L.M. to urgent care for a wound check. The urgent care physician determined the ulcer was at stage 4 and again referred L.M. to Rady's. Mother made another appointment but then cancelled, stating L.M. was vomiting and had a fever. The clinic advised Mother L.M. needed to be seen immediately to ensure the wound was not infected, but Mother stated he was stable and being followed by CHOC.

On October 18, 2018, Mother informed Rady's L.M. would be pursuing care for the ulcer elsewhere. The San Diego County Health and Human Services Agency (Agency) received a referral that same day expressing concerns regarding the worsening condition of L.M.'s ulcer and the lack of care he was receiving. In addition, a hospital social worker reported L.M. was referred to a urologist for monitoring of a chronic condition in 2013, but L.M. failed to show up for several appointments, and there was no indication L.M. had seen a urologist since.

Dr. Rosenfeld saw L.M. later that month. He maintained L.M. was an excellent candidate for spinal surgery but stated they could not proceed until the ulcer healed.

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An Agency social worker made several attempts to interview Mother in October and November, but Mother consistently cancelled scheduled appointments and refused to allow the social worker into the home unannounced. In November, the Agency learned Mother had left voicemails for several departments at Rady's indicating L.M. would not be returning. The hospital social worker reported Mother had also "fired" L.M.'s primary care physician.

The Agency spoke to Dr. Rosenfeld again the following January. He indicated L.M. needed spinal surgery to reduce the risk of potentially life-threatening lung disease, but the surgery could not be performed due to the ulcer. He said the ulcer did not appear to be infected when he saw L.M. in October 2018, but it had gotten worse between March and October and was not healing. He also explained L.M. needed annual kidney assessments to rule out early onset kidney disease but said he did not believe that was happening. Finally, he noted L.M. had been bounced between Rady's and CHOC, resulting in inconsistent care.

Dr. Rosenfeld did not see L.M. again until February. Dr. Rosenfeld reported Mother was enthusiastic about moving all of L.M.'s care to CHOC but noted she often did not follow through with her stated intentions. He indicated she had canceled and rescheduled medical appointments for L.M. nearly every week between December 2018 and February 2019. He said L.M.'s pressure ulcer was large and was not getting better, reiterated he could not operate until it was healed, and expressed concern the lack of treatment and associated inability to operate could result in death for L.M.

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Around the same time, the Agency learned L.M. had not received physical or occupational therapy since April 2016. In March, Mother cancelled several urology appointments for L.M.

The Agency obtained L.M.'s medical records from CHOC and asked a Rady's child abuse expert, Dr. Neinow, to review them. Dr. Neinow expressed significant concerns regarding L.M.'s health and well-being due to inadequate medical treatment. She noted L.M. had a gastrostomy tube (g-tube) but had fallen off the growth curve in 2015 and suggested inadequate nutrition could be a reason the ulcer was not healing. Ultimately, she opined L.M. would be "at extreme risk of ongoing neglect and potentially death" if left in the current environment under Mother's care. Mother continued to refuse to speak with the Agency social worker or to allow the social worker into her home.

The Agency filed a juvenile dependency petition and a request for a protective custody warrant on L.M.'s behalf on April 25, 2019. The Agency alleged Mother failed to provide L.M. with adequate medical care and placed him at extreme risk of ongoing neglect or death. The court granted the protective custody warrant and L.M. was removed from Mother and taken to the hospital that evening. A wound care nurse informed the Agency L.M.'s ulcer was at stage 4 as there was "full muscle exposure" and would need close medical follow-up, but stated the wound was clean and there was no sign of infection. However, L.M. did have a urinary tract infection.

At the initial hearing the following day, the juvenile court found the Agency had made a prima facie showing that removal was necessary and ordered L.M. not be

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discharged from the hospital absent further orders of the court. Mother argued L.M. was not getting appropriate care at Rady's and stated she preferred to take him to CHOC. The court acknowledged Mother's concerns and stated the decision should be made in concert with both hospitals. Mother also indicated L.M. had been accepted to a program at the Kennedy Krieger Institute (Krieger) in Maryland, and stated she intended to take him there.

L.M.'s ulcer remained at a stage 4 and had tested positive for Methicillin-resistant Staphylococcus aureus (MRSA). L.M. also had bilateral posterior heal wounds, a smaller stage 2 ulcer, and folliculitis on his elbows. A physician from Rady's discussed the potential transfer with the Hospital Medicine Division Chief at CHOC. They both agreed CHOC could not offer L.M. any services he was not getting at Rady's and, thus, a lateral transfer would not be appropriate. The attending physician at Rady's also researched the program at Krieger and indicated it also was not appropriate for L.M. He explained Krieger "deals with neurogenetic muscular issues while L.M.'s condition is anatomical."

At the next hearing in early May, Mother maintained L.M. was enrolled in the program at Krieger but could not provide any documentation. The juvenile court ordered L.M. was to remain at Rady's.

By June, L.M. had been cleared for discharge, but the Agency was unable to find a suitable placement for his level of care, so he remained admitted at Rady's. His ulcer was getting better but remained at a stage 4 and was slow to heal. Rady's indicated L.M. might need surgery to address the wound but the surgery required significant aftercare

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and Rady's was unwilling to perform the surgery until there was an established plan for such care.

L.M. indicated the wound did not hurt and he wanted to go home with Mother. He said he was old enough to know if he was being neglected and he did not believe Mother was neglecting him. He was not aware of the number of appointments he had missed, though, and agreed that was a problem.

The Agency and the medical team at Rady's expressed concerns about Mother. She often did not show up for visits or showed up very late and did not follow through with other tasks, such as delivering personal belongings L.M. had requested to the hospital. In addition, Mother advocated for unsupervised visitation, but then only visited once in the week after her request was granted.

The juvenile court set the matter for a contested trial on jurisdiction and disposition. Thereafter, L.M. remained hospitalized and his treatment team remained concerned about his prognosis. Mother continued to visit sporadically and, when she did visit, she often interfered with treatment. She refused consent for simple procedures like measuring L.M. for a new wheelchair, refused to make decisions regarding his care, and threatened care providers. At times, L.M. would also refuse treatments after speaking with Mother. Mother told the social worker she had PTSD and thought she needed counseling, and the Agency provided referrals.

In July, L.M.'s wound finally began improving. The treatment team attributed the progress to closely monitoring L.M. and his compliance with wound care and, in

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particular, keeping pressure off the wound. The Agency noted Mother was also making increased efforts to follow through and to encourage L.M. Rady's anticipated the wound would be healed in three to four weeks but did not expect to discharge L.M. until that occurred as there were significant risks if it did not heal properly. On August 1, the Rady's social worker reported the wound was almost healed and L.M. would likely be ready for discharge in two weeks.

Before the contested jurisdiction hearing on August 16, Mother began seeing a therapist, got the supplies necessary for L.M. to return home, and agreed, in writing, to comply with all treatment plans and scheduled appointments for L.M. The Agency continued to express concerns about Mother's ability to follow through given her history of obstruction and noncompliance. The Agency noted, though, once Mother and L.M. became compliant and worked together with the hospital staff, the wound healed relatively quickly, and the immediate risk to L.M.'s health was reduced given that recent progress. The Agency recommended L.M. be placed at home with Mother but stated it would not hesitate to request a special hearing if Mother did not remain compliant with her agreement regarding L.M.'s care.

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The Agency relied upon its reports at the hearing. Mother presented no other affirmative evidence and none of the parties called any witnesses. The juvenile court concluded L.M. remained at risk, found jurisdiction over L.M. pursuant to section 300, subdivision (b), and followed the Agency's recommendation to place L.M. with Mother on the condition Mother complies with all of the provisions in the written agreement regarding L.M.'s care.

Mother appeals.

Mother contends the juvenile court's jurisdiction finding is not supported by substantial evidence because L.M. did not suffer and was not at risk of suffering serious physical harm.

We review challenges to the sufficiency of the evidence underlying jurisdictional or dispositional findings for substantial evidence. ( In re J . N . (2010) 181 Cal.App.4th 1010, 1022.) We affirm the order as long as there is substantial evidence in the record, viewed as a whole, from which a reasonable trier of fact could make the findings in question. ( Ibid .; In re Drake M . (2012) 211 Cal.App.4th 754, 763.) We do not reweigh the evidence or consider whether the court could have drawn a different conclusion. ( In re Dakota H . (2005) 132 Cal.App.4th 212, 228.) As the party challenging the order, Mother bears the burden of demonstrating a lack of sufficiently substantial evidence. ( Ibid .)

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The court may assert jurisdiction over a child pursuant to section 300, subdivision (b)(1), if it finds that the child has suffered, or is at substantial risk of suffering, serious physical harm or illness due to the parent's willful or negligent failure to provide the child with adequate medical treatment. (§ 355, subd. (a); § 300, subd. (b)(1).) To support a finding of jurisdiction based on inadequate medical care under this subdivision, the Agency must present evidence establishing: (1) one or more omissions in providing adequate medical care to the child; (2) causation; and (3) either serious physical harm or a substantial risk of serious physical harm to the child. (See In re Joaquin C . (2017) 15 Cal.App.5th 537, 561; In re R . T . (2017) 3 Cal.5th 622, 629-630.) The juvenile court may consider past events when determining whether there is presently a substantial risk of harm to the child. ( In re Petra B . (1989) 216 Cal.App.3d 1163, 1169 ( Petra B .).)

Here, although L.M.'s condition improved significantly by the jurisdiction hearing, the juvenile court concluded L.M. remained at risk of suffering serious physical harm or illness given the complexity of his condition and the dangers of regressing. Substantial evidence supports the juvenile court's findings.

First, there was substantial evidence L.M. suffered serious physical harm as a result of Mother's failure to seek medical attention for the ulcer. (See § 300, subd. (b)(1).) L.M. had the ulcer for well over a year before the Agency got involved, it was not healing and was instead getting worse, and it prevented L.M. from being able to undergo a potentially life-saving surgery. Despite this, Mother continually cancelled

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medical appointments for L.M., resulting in a lack of consistent medical treatment. In addition, L.M. showed signs of malnutrition and had not received adequate care from a urologist for many years. When L.M. was admitted to Rady's, the ulcer was at stage 4, tested positive for MRSA, and presented a serious risk to his life.

Mother contends she provided L.M. with adequate medical treatment and had plans to take him to Krieger. To the contrary, the evidence suggests L.M.'s pressure ulcer continued to worsen over the 18 months before he was removed from Mother's care and Mother continued to interfere with his care, causing the wound to heal slowly, even after L.M. was admitted to Rady's. In addition, Mother was unable to provide any proof L.M. had been accepted to the program at Krieger and the attending physician at Rady's concluded the program was not appropriate for L.M.'s condition in any event.

Further, while the ulcer had healed significantly by the contested jurisdiction hearing in August, substantial evidence also supports the juvenile court's finding L.M. remained at risk. The wound site was still delicate, and it was imperative L.M. and Mother follow the discharge instructions diligently to prevent a relapse. In addition, L.M. remained wheelchair bound, which put him at risk for developing additional pressure ulcers, and still had a number of other complex medical conditions requiring ongoing care. He needed to follow-up with a urologist regularly to ensure his kidneys were functioning properly and still needed spinal surgery to reduce his risk of life-

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threatening lung disease. If he were to relapse or develop another pressure ulcer, he would not be able to receive this critical and already delayed surgery.

We acknowledge Mother had agreed to follow the discharge instructions, but she had only recently begun to follow through on her commitments regarding L.M.'s care and, by contrast, had a long history of failing to provide adequate care for L.M. In 2004, the parents left L.M. in a car unattended during a dispute and an uncle took custody of L.M. after Mother became incapacitated while caring for him. In 2007, while intoxicated, Mother left L.M. in the care of a pre-teenage neighbor, L.M. reported he had not eaten, and he was found to have a urinary tract infection, dehydration, and an electrolyte imbalance. There was no evidence of alcohol abuse in the present case, but the evidence does indicate Mother allowed the ulcer to progress with minimal treatment for nearly 18 months. Considering these past issues, Mother's recent period of compliance was relatively short and was not sufficient to ensure she would continue to provide the ongoing medical care L.M. needed absent supervision from the juvenile court. (See Petra B ., supra , 216 Cal.App.3d at pp. 1169-1170.)

Finally, Mother argues this case is unlike In re Petra B ., supra , 216 Cal.App.3d 1163 and In re Eric B . (1987) 189 Cal.App.3d 996 ( Eric B .), in which the courts found substantial evidence supported the juvenile court's finding the parents' failed to provide adequate medical care. (See Petra B ., supra , at pp. 1169-1170; Eric B ., supra , at pp. 1004-1006.) We disagree. In Petra B . the parents agreed to seek medical care for their daughter's burns after the Agency became involved, but the court concluded Petra remained at risk based on the attitude and confusion regarding proper medical treatment

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the parents had previously demonstrated. ( Petra B ., supra , at p. 1171.) In Eric B ., the parents refused treatment for their son's cancer, and the court found the evidence supported continued jurisdiction even after Eric was treated to ensure the parents complied with medically necessary follow-up care and monitoring. ( Eric B ., supra , at pp. 1000-1001.) Similarly, here, there was substantial evidence of Mother's previous noncompliance with L.M.'s medical needs and L.M. continued to face significant risks if he did not receive the recommended follow-up care. (See Petra B ., supra , at p. 1170; Eric B ., supra , at pp. 1005-1006.)

Accordingly, we conclude substantial evidence supports the juvenile court's findings regarding jurisdiction.

The order of the juvenile court is affirmed.

McCONNELL, P. J.

WE CONCUR:

HALLER, J.

O'ROURKE, J.