Filed 8/17/15 In re Jackie S. CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

In re JACKIE S. et al, Persons Coming 

Under the Juvenile Court Law.

 B256912

 (Los Angeles County

 Super. Ct. No. CK97135)

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN AND 

FAMILY SERVICES,

Plaintiff and Respondent,

v.

GABRIELA S.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Annabelle 

Cortez, Judge. Affirmed.

Lori Siegel, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Mark J. Saladino, County Counsel, Dawyn R. Harrison, Assistant County Counsel, 

Jacklyn K. Louie, Principal Deputy County Counsel, for Plaintiff and Respondent.

____________
2

Gabriela S., the mother of four-year-old Jackie S., three-year-old Destiny S. and 

two-year-old K.Z., appeals from the jurisdiction findings and disposition order declaring 

her children dependents of the juvenile court and removing them from her custody after 

the court sustained an amended petition pursuant to Welfare and Institutions Code section 

300

1

alleging that K.Z. had suffered severe physical abuse by her father, Luis Z., and that 

Gabriela and Luis had failed to obtain timely and necessary medical care for K.Z., 

placing K.Z. and her siblings at substantial risk of harm. While acknowledging the 

propriety of dependency jurisdiction based on Luis’s physical abuse of K.Z., Gabriela 

contends there is insufficient evidence of her own medical neglect of K.Z. to support 

dependency jurisdiction on that ground and there were reasonable means to protect the 

children’s safety and well-being other than removing them from her custody. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Dependency Petition

On December 28, 2012 the Los Angeles County Department of Children and 

Family Services (Department) filed a petition under section 300 alleging then six-weekold K.Z. had been hospitalized on December 20, 2012 in critical condition with multiple 

rib, arm and leg fractures all at different stages of healing. K.Z. had also suffered 

bilateral subconjunctival hemorrhaging (bleeding in both eyes) and necrosis of the 

sternocleidomastoid muscle in the neck. She had undergone emergency surgery. The 

Department alleged K.Z.’s severe injuries were consistent with nonaccidental trauma and 

would not have occurred except as the result of deliberate and neglectful acts by both of 

K.Z.’s parents in whose care K.Z. had been since birth. In addition, the Department 

alleged Gabriela and Luis had failed to obtain timely and necessary medical care for K.Z.

following several of her injuries. The parents’ actions and neglect, the petition alleged, 

also put K.Z.’s siblings, then one-year-old Destiny and two-year-old Jackie, at substantial 

 

1 Statutory references are to this code.
3

risk of physical harm.

2

 Following a hearing, the court found prima facie evidence that the 

three children were persons described by section 300 and ordered K.Z. and her siblings 

immediately detained in shelter care. The Department later placed them with their 

paternal grandparents.

2. The Contested Jurisdiction Hearing

Both parents denied the allegations in the petition. The contested jurisdiction 

hearing, originally scheduled for April 12, 2013, was continued several times for various 

reasons, including the appointment of a guardian ad litem for then 24-year-old Gabriella,

who is developmentally disabled with the cognitive abilities of a seven-year-old child.

By the time the hearing began in November 2013, Luis, pursuant to a negotiated plea 

agreement, had been convicted of felony child abuse and sentenced to an aggregate state 

prison term of six years. Luis appeared at the jurisdiction hearing in custody and, when 

asked to testify about his care of K.Z., asserted his rights under the Fifth Amendment.

According to the evidence at the jurisdiction hearing, Luis and Gabriella lived 

with K.Z., Destiny and Jackie in a room they had rented in a house.

3

 Gabriela’s brother 

also rented a room in the same house but did not help with K.Z.’s care. On December 9, 

2012 Luis took K.Z. to the doctor because she was suffering from constipation and 

vomiting. Luis did not inform the doctor K.Z. was injured or that he had done anything 

to cause K.Z. pain or discomfort. No X-rays were taken, and no physical injuries were 

observed. K.Z.’s treating physician on December 9, 2012 diagnosed her with abdominal 

colic, directed Luis to replace her formula with Pedialyte for two weeks and sent them 

home. After returning home K.Z.’s constipation improved, but her crying substantially 

increased. A maternal uncle reported the only time K.Z. appeared not to cry was when 

she was sleeping. On December 20, 2012, while Gabriela was feeding K.Z., the baby’s 

 

2 Luis and Gabriela are not married; Luis was found to be the presumed father of 

Destiny and K.Z., but not Jackie. 

3 K.Z.’s maternal relatives told social workers Jackie mostly lived with her maternal 

grandmother at her grandmother’s residence. Gabriela explained Jackie lived with their 

family but frequently visited her grandmother. 
4

eyes “started to roll around,” and her head moved back and forth. K.Z. became rigid, and 

her lips turned blue; it appeared she was not breathing. Luis, along with Gabriela’s 

father, brought K.Z. to the hospital while Gabriela stayed home with her other daughters. 

Dr. Janet Arnold-Clark, a board-certified pediatric physician and certified forensic 

specialist on child abuse, was one of K.Z.’s treating physicians when she arrived at the 

hospital on December 20, 2012. K.Z. presented with six separate posterior rib fractures, 

a fracture of her right forearm and fractures to her right and left tibias; her fractures were 

at different stages of healing. In addition, K.Z. suffered from a firm necrotic mass in her 

neck that likely began as a benign fibromatosis colli tumor (a slowing growing tumor of 

infancy that generally resolves without treatment) but had become necrotic most likely 

due to trauma or strangulation, requiring emergency surgery to save K.Z.’s life. K.Z. also 

presented with bilateral subconjunctival hemorrhages that Dr. Arnold-Clark explained 

were the result of increased vascular pressure in the eyes. Dr. Arnold-Clark testified with 

a six-week-old infant, birth-related trauma for subconjunctival hemorrhaging can be ruled 

out; such hemorrhages are typically caused by direct blunt force trauma, strangulation or 

smothering. 

Luis and Gabriel initially denied knowing how K.Z. had been hurt. Later, Luis

offered several possible explanations for K.Z.’s injuries: He had rolled on top of her one 

time when he was sleeping and awoke to hear a cracking sound and K.Z. gasping for air; 

he tripped with K.Z. in his arms and dropped her, causing her to fly in the air and land 

with her side hitting the sofa; he had been holding K.Z. while arguing with Gabriela and 

got so angry that he squeezed K.Z. really hard; and he had dropped K.Z. in her infant 

carrier after the handle broke. Dr. Arnold-Clark found Luis’s proffered explanations for 

K.Z.’s injuries failed to adequately explain the nature and extent of the harm K.Z. had 

suffered. Dr. Arnold-Clark opined that K.Z.’s injuries were the result of deliberately 

inflicted forcible trauma and “there’s not a plausible way” that Luis and Gabriela could 

have taken care of K.Z. and not been aware of her substantial injuries.

Gabriela testified she and Luis were K.Z.’s sole caretakers. She bathed K.Z. every 

other day, but had not noticed a lump on the side of her neck. She did see a rash on 
5

K.Z.’s neck a few days before K.Z. was hospitalized on December 20, 2012. In addition, 

in an interview with detectives investigating the abuse, Gabriela acknowledged having 

also seen blood in K.Z.’s eyes on December 12, 2012, but she did not take her to the 

doctor at that time. At the hearing Gabriela said she saw redness in K.Z.’s eyes before 

Luis had taken her to the doctor on December 9, 2012 as well as in the days after that 

appointment, although K.Z.’s December 9, 2012 medical records made no mention of 

subconjunctival hemorrhaging.

4

K.Z.’s maternal uncle told social workers that Gabriela routinely neglected the 

children. Luis left the children in Gabriela’s custody all day while he went to look for 

work. Although Gabriela plainly loved her children, she seemed unable because of her 

cognitive disabilities to care for them or uninterested in doing so. K.Z. frequently 

remained in soiled diapers until the maternal uncle’s girlfriend changed them. Even the 

most minimal care for the children was provided by Luis, rather than Gabriela. The 

maternal uncle’s girlfriend confirmed his account, telling social workers Gabriela did not 

recognize her children’s basic needs; she needed to be told when to feed the children and 

when to change their diapers. Gabriela often appeared frustrated at the care the children 

required, asking “she peed again?” 

After K.Z. had been crying incessantly a few days before December 20, 2012 and 

appeared to be in pain, the maternal uncle urged Gabriela to take her to the doctor; but 

Gabriela became defensive and refused. Luis explained he had taken K.Z. to the doctor 

on December 9, 2012 and thought “that was enough.”

Dr. Thomas J. Grogan, a pediatric orthopedist called by Gabriela, agreed with 

Dr. Arnold-Clark that several of K.Z.’s injuries looked suspicious for child abuse, but 

found many, if not all, of the fractures K.Z. had sustained would have been imperceptible 

to a nonabusing caregiver. It would have been reasonable, he explained, for Gabriela to 

 

4 After Gabriela testified, the guardian ad litem requested to be relieved on the 

ground Gabriela appeared to understand the proceedings and the questions posed to her, 

if explained simply, and did not require a guardian ad litem to protect her interests. The 

court agreed and granted the appointed guardian ad litem’s request to be relieved. 
6

attribute K.Z.’s obvious distress to the diagnosed colic. As for the subconjunctival 

hemorrhaging, Dr. Grogan stated it can occur from injuries sustained during birth as well 

as from abuse and was not life-threatening. Like K.Z.’s fractures, he explained, the 

hemorrhaging in K.Z.’s eyes would have resolved on its own. He opined none of K.Z.’s 

injuries was sufficient to put Gabriela on notice that K.Z. had been abused. 

Gabriela’s regional center caseworker, Efraim Wong, reported that Gabriela had 

been accepted for regional center services in February 2013 but appeared unmotivated to 

utilize them, having waited until May 2013 to appear at the regional center. Wong stated 

the regional center offered a training program that involved teaching parents to maintain 

a clean household and shop for groceries and basic essentials, but the program would 

only be able to offer services for two or three hours a week. At this point, in Wong’s 

view, Gabriela lacked the necessary constant support and supervision at home that would 

enable her to successfully care for her children and keep them safe from harm.

5

 

At the end of the multi-day jurisdiction hearing the court directed counsel to 

submit their respective closing arguments in writing. All counsel agreed the evidence of 

Luis’s abuse of K.Z. was sufficient to support jurisdiction over all three children. As to 

Gabriela, the Department argued Gabriela either inflicted the abuse or knew or should 

have known of Luis’s physical abuse of K.Z. and failed to protect K.Z. and seek 

necessary medical treatment for her. Gabriela’s counsel and counsel for the children, on 

the other hand, argued the evidence was insufficient to support allegations against 

Gabriela of abuse, failure to protect and medical neglect. However, the children’s 

counsel urged the court to modify the petition according to proof and to sustain an 

 

5 A preliminary psychological evaluation conducted in December 2013 pursuant to 

Evidence Code section 730 concluded that Gabriela lacked the cognitive ability to 

determine when her children were in medical distress or when they were being mistreated 

or neglected. The evaluation was never completed because Gabriela failed to appear for 

her follow-up appointments. On April 28, 2013, citing the passage of time since the 

December 28, 2012 petition and finding any further delay would not be in K.Z.’s best 

interests, the court refused the Department’s request to continue the matter for 

completion of those evaluations and excluded any evidence relating to them for purposes 

of its jurisdiction findings and disposition order. 
7

allegation that Gabriela’s inability to recognize her children’s basic needs created a 

substantial risk of harm. 

On April 29, 2014 the court sustained all allegations involving Luis (§ 300, 

subds. (a), (b), (e), & (j)). As to Gabriela, the court found the Department had failed to 

prove Gabriela had physically abused K.Z. or knew of Luis’s abuse and had failed to 

protect K.Z. In addition, taking into account Gabriela’s intellectual disabilities, the court 

concluded Gabriela did not know and had no reason to suspect K.Z.’s crying and obvious 

discomfort were the result of physical abuse rather than abdominal colic. However, the 

court sustained the allegation of medical neglect as to Gabriela (§ 300, subd. (b)), 

concluding that K.Z. had shown symptoms of subconjunctival hemorrhaging as early as 

December 12, 2012 that were obviously independent of K.Z.’s stomach issues and,

despite K.Z.’s apparent and increasing discomfort in the days before December 20, 2012,

Gabriela had ignored K.Z.’s cries and her brother’s entreaties and did not take K.Z. to the 

doctor until K.Z. stopped breathing. By the time the parents sought medical care for 

K.Z., her condition had become critical and emergency surgery was necessary to save her 

life. The court found Gabriela’s neglect of K.Z. and inability to recognize her medical 

needs also placed Destiny and Jackie at substantial risk of abuse and neglect (§ 300, subd. 

(j)).

At the April 30, 2014 disposition hearing the court declared K.Z. and her siblings 

dependent children of the juvenile court and found there were no reasonable means to 

protect them from harm other than removing them from Gabriela’s and Luis’s custody. 

The court denied Luis reunification services pursuant to section 365.1, 

subdivisions (b)(5), (b)(6), (b)(12) and (e)(1). The court granted Gabriela reunification 

services, ordered her to participate in regional center services and directed the 

Department to facilitate those services while taking into account Gabriela’s transportation 

needs and unfamiliarity with the public transportation system.

6

 

 

6 In ordering reunification services for Gabriela, the court implicitly found 

Gabriela’s mental disabilities did not “render her incapable of utilizing those services.” 
8

DISCUSSION

1. Standard of Review

We review the juvenile court’s jurisdiction findings and disposition orders for 

substantial evidence. (Los Angeles County Dept. of Children & Family Services v. 

Superior Court (2013) 215 Cal.App.4th 962, 966; In re R.C. (2012) 210 Cal.App.4th 930, 

940.) Under this standard “[w]e review the record to determine whether there is any 

substantial evidence to support the juvenile court’s conclusions, and we resolve all 

conflicts and make all reasonable inferences from the evidence to uphold the court’s 

orders, if possible.” (In re David M. (2005) 134 Cal.App.4th 822, 828; accord, In re 

Drake M. (2012) 211 Cal.App.4th 754, 763.)

2. Substantial Evidence Supports the Juvenile Court’s Jurisdiction Finding and 

Disposition Order 

a. Jurisdiction

Gabriela contends the court’s jurisdiction finding of medical neglect was not 

supported by substantial evidence.

7

 After all, she argues, having been given a colic 

diagnosis for K.Z. on December 9, 2012, it was reasonable for her to believe K.Z.’s pain 

and discomfort were due to abdominal colic and the redness in her eyes was the result of 

 

(See § 361.5, subd. (b)(2) [reunification need not be provided to parent suffering from a 

mental disability that renders him or her incapable of utilizing those services].) 

7 The Department urges this court to refrain from considering Gabriela’s challenge 

to the court’s findings of medical neglect because dependency jurisdiction over K.Z. and 

her siblings is proper based on Luis’s misconduct. (See In re I.A. (2011) 201 Cal.App.4th 

1484, 1492 [jurisdiction finding involving one parent is good against both; “‘“the minor 

is a dependent if the actions of either parent bring [him or her] within one of the statutory 

definitions of a dependent”’”]; In re Alexis E. (2009) 171 Cal.App.4th 438, 451 [same].) 

However, when, as here, the outcome of the appeal could be “the difference between 

[mother]’s being an ‘offending’ parent versus a ‘non-offending’ parent,” a finding that 

could result in far-reaching consequences with respect to these and future dependency 

proceedings, it is appropriate to exercise our discretion to consider the appeal on the 

merits. (In re Drake M., supra, 211 Cal.App.4th at pp. 762-763; accord, In re D.P. 

(2015) 237 Cal.App.4th 911, 917; In re D.P. (2014) 225 Cal.App.4th 898, 902; I.A., at 

p. 1494.)
9

crying. While Gabriela suggests a plausible inference from the evidence, it was by no 

means the only reasonable conclusion. As the juvenile court observed, Gabriela noticed 

bleeding in K.Z.’s eyes as early as December 12, 2012, two days after she had taken K.Z.

to the doctor, but waited 12 more days to obtain medical care, during which time K.Z.’s 

condition continued to deteriorate. The maternal uncle reported K.Z.’s distress had 

become so apparent in the days leading up to K.Z.’s emergency hospitalization that he 

had implored Gabriela and Luis to take K.Z. to the hospital but they either ignored or 

refused those requests. By the time they did seek treatment for K.Z., she required 

emergency surgery to save her life. Had she been left untreated any longer, Dr. ArnoldClark testified, she would have died. Dr. Arnold-Clark also explained the 

subconjunctival hemorrhaging—the result of strangulation, smothering or a direct blow 

to the child—would have been obvious to the parents, as would the firm necrotic mass on 

the side of K.Z.’s neck, which Dr. Arnold-Clark explained was plainly distinguishable 

from a rash, even to one without any medical training. Presented with conflicting expert 

opinions on whether Gabriela knew or should have known that K.Z. was in distress

requiring necessary medical treatment, the court carefully weighed the evidence and 

sided with Dr. Arnold-Clark on this question (while rejecting Dr. Arnold-Clark’s opinion 

on Gabriela’s knowledge that K.Z.’s injuries were the result of abuse). Substantial 

evidence supports that finding. 

Gabriela’s reliance on L.Z. v. Superior Court (2010) 188 Cal.App.4th 1285 is 

misplaced. There, the juvenile court sustained a petition under section 300, 

subdivisions (b) and (e), alleging that an infant in her parents’ care had sustained multiple 

rib fractures and a fracture to her arm from nonaccidental trauma and that the parents had 

inflicted the injuries and failed to protect her from harm. The juvenile court, troubled by 

its inability to determine which parent had inflicted the abuse, denied both parents 

reunification services pursuant to section 361.5, subdivision (b)(5), which authorizes the 

court to decline to provide reunification services because of the parent or guardian’s 

severe physical abuse of a child younger than five, and set the matter for a section 366.26 

hearing to consider terminating parental rights. The mother sought writ review, asserting 
10

there was insufficient evidence to support the denial of reunification services to her. The 

Court of Appeal agreed. Although it found sufficient evidence to support dependency 

jurisdiction, the appellate court concluded there was no evidence mother had inflicted the 

abuse and little, if any, evidence she knew or should have known the baby had been

abused. On that record, the court held the evidence was insufficient to support the denial 

of reunification services to the mother. (L.Z., at p. 1294 [“the statutes do not permit the 

court to deny a parent reunification services simply because it cannot determine who 

inflicted the abuse unless it is proven that the parent knew or should have known the baby

had been abused”].) 

In contrast to the L.Z. court, the juvenile court in the instant matter dismissed the 

allegation against Gabriela under section 300, subdivision (e), and ordered reunification 

services, finding insufficient evidence that Gabriela either abused K.Z. or knew of the 

abuse to support a denial of reunification services. Rather than assist Gabriela in her 

challenge to the court’s jurisdiction findings under section 300, subdivision (b), L.Z. 

reinforces the propriety of the court’s careful jurisdiction finding and order. 

b. Disposition 

Section 361, subdivision (c)(1), permits removal of a child from his or her parent’s 

custody only if the juvenile court finds by clear and convincing evidence that “[t]here is 

or would be a substantial danger to the physical health, safety, protection, or physical or 

emotional well-being” of the child if the child were returned home and that “there are no 

reasonable means by which the [child]’s physical health can be protected without 

removing” the child from his or her parent’s custody. “The parent need not be dangerous 

and the child need not have been actually harmed for removal to be appropriate. The 

focus of the statute is on averting harm to the child. [Citations.] In this regard, the court 

may consider the parent’s past conduct as well as present circumstances.” (In re Cole C. 

(2009) 174 Cal.App.4th 900, 917.) 

Gabriela contends there was insufficient evidence to support the removal order, 

asserting there were less drastic means to protect the children than removing them from 

her custody. She emphasizes that Luis was out of the house (in prison) and no longer 
11

placed K.Z. at risk. While true, Luis’s abuse was not the only threat to the children’s 

safety and well being. According to Gabriela’s regional center caseworker, Gabriela was 

unable to recognize her children’s basic needs and protect them from harm absent 

supervision or familial support in the home; without Luis, she had neither. Regional 

center services, even if ultimately helpful in assisting Gabriela in this regard, would take 

time. Coupled with evidence of Gabriela’s inability to recognize K.Z.’s medical needs, 

this evidence was more than sufficient to support the court’s removal order. 

DISPOSITION

The jurisdiction findings and disposition order are affirmed. 

PERLUSS, P. J.

We concur:

SEGAL, J. 

STROBEL, J.

*

 

* Judge of the Los Angeles County Superior Court, assigned by the Chief Justice 

pursuant to article VI, section 6 of the California Constitution.