IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

IN RE DEPENDENCY OF D.P., ) No. 73918-2-1 CD DOB: 09/02/2014, O STATE OF WASHINGTON, ] ——4 DEPARTMENT OF SOCIAL & HEALTH ] QPRX/IPPQ 70s OCrwIOtO, t DIVISION ONE 

## s Respondents, ST

v. UNPUBLISHED OPINION 

## SAMIRAMALJANOVICH, | Appellant. ] FILED: October 24, 2016 Spearman, J. — Samira Maljanovich is the mother of P.D., who was born


### on September2, 2014.1 P.D. was hospitalized at six months old withbleeding in her brain, seizures, and failure to thrive. She was removed from her parents'
care. The State filed a dependency petition, which both parents contested. The matterwas tried overeightdays inJuly 2015 and concluded with the trial court entering an order ofdependency. The mother appeals this order claiming a lack of substantial evidence that P.D. was abused, neglected, and had no adequate parent. Finding no error, we affirm.

1Although the caption refers to the child in this proceeding as D.P., in their briefs the parties correctly use the initials P.D. We do likewise in the body of this opinion.No. 73918-2-1/2
FACTS As a newborn, P.D.'s parents cared for hertogether. Their relationship
was volatile. Both parents alleged domestic abuse, and the father was alcohol dependent. In November 2014, the mother moved out ofthe family home and the parents agreed to equally divide P.D.'s care. During this time, P.D. was observed
as a normal butfussy baby. On December 24, 2014, the father took P.D. into his sole care. Police made a welfare check shortly after and observed that P.D. was "doing O.K." 

### Verbatim Report ofProceedings (VRP) at 198, 509. On January 9, 2015, the mother served the fatherwith a domestic violence protection order and took P.D. 

### into her sole custody. The mother immediately brought P.D. to the emergency
room. P.D. had a cough and diaper rash but appeared well and normal. The mother had P.D. in her sole care and custody afterJanuary 9, 2015. 

### The father had no contactwiththe baby. From November2014 to early February 2015, P.D. attended a daycare where she appeared to be healthy and no injuries
were reported. Similarly, there were no injury reports while P.D. was inthe daycare at her mother's gym in February 2015. 

### On February 27, 2015, the mothertook P.D. to the emergency room at Auburn Medical Center. P.D. was treated for a urinary tract infection, fever, and 

### vomiting. She was prescribed medications and discharged to her mother, who
was instructed to bring P.D. to her primary care provider the next day due to potential kidney infection. The motherdid not do so.No. 73918-2-1/3 P.D. did not improve. She was increasingly lethargic and unresponsive, and stopped moving her right eye. On March 4, 2015, the mother brought herto the emergency department at Mary Bridge Hospital. A computerized tomography (CT) scan revealed that P.D. had chronic and acute subdural hematomas (bleeding in the brain). P.D. started seizing and was transferred to intensive care. She was examined and treated by a multi-specialty team ofphysicians. After ruling out diagnoses such as a bleeding disorder, the team concluded that P.D.'s condition was caused by nonaccidental head trauma. Herdiagnoses included: 

### kidney infection, dehydration, failure to thrive, anemia, seizure, intracranial hemorrhage, subdural hemorrhage, and retinal hemorrhage. P.D. also appeared malnourished. While always a small baby who had 

### difficultyfeeding, her pace ofweight gain dropped while she was inher mother's sole care. The amountthat P.D. ate was variable, but at times she consumed as little as a third ofthe calories that she needed. 

### The hospital contacted the Department ofSocial and Health Services and law enforcement, which both opened investigations. The State filed a 

### dependency petition and P.D. was discharged fromthe hospital to licensed foster
care. Atthe time of trial, P.D. was nine months old. Her gross and fine motor 

### skillswere significantlydelayed, but her health had improved and she had gained
a significant amount ofweight. 

### At trial, the motherdid not dispute that P.D.'s medical condition included 

### subdural hemorrhages, retinalhemorrhages, and seizures. The primary points ofNo. 73918-2-1/4 contention were whetherthe hemorrhages were the result ofnonaccidental trauma and, ifso, who or what caused it. The State presented the expert medical testimony ofphysicians who treated or evaluated P.D.'s hemorrhagic injuries during her hospitalization at Mary Bridge. Dr. Robin Rogers, a pediatric hospitalist, examined P.D. when she


### was initially admitted to Mary Bridge. Dr. Rodgers testified that P.D.'s primary 

### diagnosis was abusive head trauma based on bleeds inthe brain, increased pressure inher brain, seizures, rapid clinical deterioration, and negative tests for infections or bleeding problems. She explained that infants who have been abused often feed poorly, have poorgrowth, and can be lethargic and irritable, so P.D.'s failure to thrive and irritabilityhelps support an abusive head trauma 

### diagnosis. Dr. Rogers testified that inher clinical opinion, abuse was the most likelyexplanation of P.D.'s condition. 

### Dr.Thomas Grondin, pediatric neurosurgeon, testified that P.D.'s acute subdural hematomas were a couple ofdays old and herchronic subdural hematomas were at least three weeks old, but not so old as to be an injury from 

### P.D.'s birth. He also testified that a fairly strong acceleration/deceleration kind of 

### force is necessaryto cause a hematoma in the brain, such as a fall from a height of four or five feet. But no one had provided information that P.D. had had such
an event and there were no obvious signs ofexternal injury such as bruises. Dr. 

### Grondin concluded that P.D.'s injuries were the resultofnonaccidental trauma. He testified that he considered but ruled outother possible causes ofthe injuries.No. 73918-2-1/5 A magnetic resonance imaging (MRI)test showed that in addition to the hematomas, P.D. also had restricted diffusion in the white matter ofher brain. According to Dr. Yolande Duralde, the medical director ofthe Child Abuse Intervention Department at Mary Bridge, the most likelycause ofthis condition
was a "shearing force" such as shaking or "some sort of acceleration/deceleration injury"which occurred a few days before P.D. was admitted to the hospital. RP 890, 892. She also testified that she could not 

### discern the specific cause ofthe injurybutthat it could be the result ofshaking or being thrown up against a wall. 

### Dr. Clark Deem, an ophthalmologist, examined P.D. and found over 100 retinal hemorrhages ineach eye. He testified that "the hemorrhages looked quite 

### bright red and recent" and estimated thatthey were at mostten days old. VRP (07/09/15) at 469-70. He also concluded thatthe appearance ofthe injuries was "classic for infant-shaking." jd. at469. 

### Dr. George Makari, a pediatric neurologist, also examined P.D. and reviewed her CT and MRIscans. He testified to a reasonable degree ofmedical 

### certainty that P.D.'s injuries were caused bynonaccidental trauma. He testified thatthe injuries could be caused "[ejithera blunttrauma or a whiplash. Andsince
we don't have evidence of blunt trauma, a whiplash would be more likely." VRP (07/14/15) at 665. 

### The motheroffered experttestimony by Dr. Ronald Uscinski, who disputed the abusive head trauma diagnosis. Dr. Uscinski testified that animal studies showthat before shaking can create enough force to cause a subduralNo. 73918-2-1/6 

### hemorrhage, a child would first suffera neck injury. And because there was no evidence that P.D. had suffered any injuries to her neck, he opined that shaking
was not the source ofP.D.'s hemorrhages. He attributed P.D.'s chronic subdural 

### hemorrhaging to birthtrauma, and P.D.'s acute subdural hemorrhaging to a rebleed ofthe chronic blood from an event as minor as vomiting. The trial courtdid not find this testimony credible. 

### The trial courtfound that P.D.'s injuries and her otherhealth conditions
arose while she was in "her mother's exclusive care." Clerk's Papers (CP) at 554. Itentered an orderfinding that P.D. was a dependent child because she was 

### abused and/or neglected and had no parentcapable ofmeeting her needs.2 The motherappeals. DISCUSSION Inevaluating a claim of insufficiency ofthe evidence in a dependency proceeding, this courtdetermines whether substantial evidence supports the trial court's findings offact and whetherthose findings offact supportthe trial court's conclusions of law. In re Dependency of CM., 118 Wn. App. 643, 78 P.3d 191 

### (2003). Evidence is substantial if, viewed inthe lightmostfavorable to the 

### prevailing party, a rational trier of fact could findthe fact by a preponderance of the evidence. In re Dependency of E.L.F.. 117 Wn. App. 241, 245, 70 P.3d 163 

### (2003). The legislature has determined that inbalancing the legal rights of parents againstthe rights ofthe child, the rights and safety ofthe child shall be
2The court also found P.D. dependent as to the father, but only on the latterground.No. 73918-2-1/7 the paramount concern. RCW 13.34.020; Inre Dependency ofSchermer, 161 Wn.2d 927, 942, 169 P.2d 452 (2007). Thus, when a child's best interests conflict with the parent's interests, the child's interests must prevail. In re Dependency of J.B.S.. 123 Wn.2d 1, 8-10, 863 P.2d 1344 (1993). The deference paid to the trial judge's advantage in having the witnesses before him or her is particularly important inthis context, and this court does not reweigh the evidence or evaluate witness credibility. In re Aschauer's Welfare. 93 Wn.2d 689, 695, 611 P.2d 1245 (1980); In re E.L.F.. 117 Wn. App. at 245 (citing Inre Seqo. 82 Wn.2d 736, 739-40, 513 P.2d 831 (1973)). The mother argues there is not substantial evidence ofabuse or neglectto 

### sustain the finding ofdependency. She rests her argument on the testimony of Dr. Uscinski, who disputes that abuse caused P.D.'s injuries. She argues thatthe trial court erred in finding that P.D. is dependentdue to abuse or neglect and due 

### to having no adequate parent. She also contends the court erred in finding that P.D. cannotbe placed with her motherdue to manifestdanger. Insupportof her 

### argument, the motherassigns errorto multiple findings of fact. Finally, the mother argues that even ifP.D.'s injuries are nonaccidental, anotherperson must have
inflicted them. 

### Parents have a fundamental libertyinterest inthe care and welfare of their children, and State interference is neverto be taken lightly. In re Schermer. 161 

### Wn.2d at 941 (citing Inre Welfare ofSumev. 94 Wn.2d 757, 762, 621 P.2d 108 (1980)). But the State has an interestin protecting the physical, mental, and emotional health of children. In re Schermer. 161 Wn.2d at 941. A dependency isNo. 73918-2-1/8 

### a preliminaryproceeding thatdoes not permanently deprive a parentof rights. In re Welfare of Key. 119 Wn.2d 600, 609, 836 P.2d 200 (1992) (citingInreA.W.. 53 Wn. App. 22, 30, 765 P.2d 207 (1988)). Dependency proceedings are designed to protectchildren from abuse and neglect, help parents alleviate problems that led to State intervention, and reunite families ifappropriate. In re 

### Schermer, 161 Wn.2d at 943; Inre InterestofJ.F.. 109 Wn. App. 718, 728, 37 P.3d 1227(2001). 

### To find a childdependent, the State must prove by a preponderance of the evidence thatthe child meets a statutory definition ofdependency. RCW 13.34.110(1). Inthis case, the trial courtfound P.D. dependent under both RCW 13.34.030(6)(b) and (c). Subsection (b) provides that a child is dependentwhere she is abused or neglected, by a person legally responsible for hercare. RCW 

### 13.34.030(6)(b). Abuse or neglect is "injury of a child by any person under circumstances which cause harm to the child's health, welfare, or safety ... or the negligenttreatment or maltreatment of a child by a person responsible for or providing care to the child." RCW 26.44.020(1). Subsection (c) provides that a child is dependentwhere the child "[h]as no parent, guardian, orcustodian capable ofadequately caring for the child, such thatthe child is in circumstances which constitute a danger of substantial damage to the child's psychological or physical development." RCW 13.34.030(6)(c). The mother argues thatthere is not substantial evidence that she abused P.D. She assigns errorto findings offact 2.2(jj) and (II), that

8No. 73918-2-1/9 [P.D.] sustained both acute and chronic injuries to her brain while under her mother's exclusive care. The mother either physically abused and/or neglected [P.D.]. [P.D.] had gained less than one pound and a halfinthe two months after she had been returned home to her mother. The explanations by the mother as to what happened to [P.D.] were not credible. The state has proved by a preponderance ofthe evidence that while on the mother's watch, [P.D.] had an acute injury as defined variously by the Mary Bridge team ofphysicians as being within a week ortwo old coupled with a chronic injury probably occurring after she was inthe mother's care. CP at 554. At trial, the mothertestified that P.D.'s acute hematoma was caused by driving over speed bumps or slamming on the brakes. She argued thatthe chronic hematoma could have been a birth injury or could have occurred while in the care ofanother person. The trial courtfound that these explanations were not 

### credible, a finding which is not reviewed by this court. Inre Aschauer, 93 Wn.2d
at 695.

### The State presented evidence that P.D. was abused while inhermother's
care. When P.D. left herfather's care on January 9, 2015, she had a normal 

### medical exam. By March 4, 2015, she was lethargic and unresponsive. Her right 

### eye did not track and she began to have seizures in the hospital. She had chronic and acute hematomas indicative of multiple head injuries. Coupled with retinal hematomas and brain swelling, P.D. was diagnosed with abusive head trauma, which is often referred to as "shaken baby syndrome." P.D. was most 

### recently injured within twoweeks of her hospitalization. Inspite ofcontroversy surrounding shaken baby syndrome, the trialcourtfound persuasive the 

### testimony of the Mary Bridgephysicians that P.D. suffered nonaccidental traumaNo. 73918-2-1/10 while in her mother's care. We conclude that substantial evidence supports the trial court's finding that P.D. is dependent due to abuse. The mother assigns errorto finding offact 2.2(ii), that "[tjestimony by Dr. Duralde and other Mary Bridge physicians indicated thatthis was a result of a shearing force and was a result of a relatively recent nonaccidental force. The courtfound this testimony to be credible." CP at 554. She also assigns errorto finding offact 2.2(gg), that [t]he mother offered experttestimony by Dr. Ronald Uscinski. He disputed the diagnosis of shaken baby syndrome and abusive head trauma. He testified that there have been animal studies conducted which show that before a person can apply enough force for abusive head trauma or head trauma or 

### symptoms that [P.D.] exhibited, a child would have to suffera neck injury first. The court did not find Dr. Uscinski's testimony credible. 

### The record shows thatthese two findings offact are accurate summaries ofthe medical expertwitness testimony and thus, they are supported by substantial evidence. We do not review the trial court's finding ofcredibility. In re Aschauer, 93 Wn.2d at 695. The trial courtdid noterr inentering findings 2.2(ii) and (gg). 

### The mother also challenges the finding ofneglect. Negligenttreatment or maltreatment is defined as "an act or a failure to act, orthe cumulative effects of 

### a pattern ofconduct, behavior, or inaction, that evidences a serious disregard of consequences ofsuch magnitude as to constitute a clear and present dangerto
a child's health, welfare, or safety. . . ." RCW 26.44.020(16). Achild's failure to 

### gain weight and a parent's failure to follow up with medical care is evidence of neglect. Inre E.L.F., 117Wn. App. at 243.

10No. 73918-2-1/11 

### The State presented evidence thatthe motherengaged in a pattern of 

### failing to act on P.D.'s medical needs. She did nottake P.D. to a primary care providerwhile in herexclusive care, even though P.D. was due for herfour 

### month checkup and she was instructed to do so when P.D. was discharged from the emergency room for a urinary tract infection. Inthe five days prior to 

### admission at Mary Bridge, the mother noticed that P.D. was lethargic and her righteye was not tracking well. There was an hour-long period where P.D. was unresponsive but breathing. Despite these alarming signs, the motherdid not immediately take P.D. to the emergency room. Upon admission to Mary Bridge, P.D. was chronically malnourished and diagnosed with failure to thrive. P.D.'s slow weight gain is evidence ofneglect. Medical records showthat P.D. gained one pound, three ounces between January 9, 2015 and March 4, 2015. P.D. appeared malnourished when admitted to the hospital, and the mother reported feeding herfar less formula than was required to maintain a healthy weight. P.D.'s failure to thrive appears to be the cumulative effect ofthe mother's behaviorthatwas a cleardangerto P.D.'s health by the time she entered the hospital. The finding of neglect is supported by substantial evidence. The mother assigns errorto several additional findings offact that do not impactthe trial court's dependency order. She assigns errorto finding offact 2.2(a), that "[i]n November 2014, mother moved out ofthe home and left [P.D.] with the father. . . ." CP at 549. The mother is correct that substantial evidence 

### does not supportthis finding. When the mother left home in November, she and the father shared care for P.D.

11No. 73918-2-1/12 The mother also assigns errorto finding offact 2.2(v), that "[t]he mother 

### did not explain how [P.D.] came to have the head injury." CP at 552. The mother cites herexplanation that P.D. may have hit her head while the motherwas driving over a speed bump or when the mother slammed on her brakes at a four way stop. As discussed above, these explanations are not consistentwith the severity of P.D.'s injuries and the trial court did not find them credible. 

### The mother assigns errorto finding offact 2.2(bb) that "based on his investigation, [Detective Rob Jones] had no reason to believe that [P.D.] suffered any injuries atthe daycare." CP at 553. Detective Jones testified about his investigation into whether P.D. suffered injuries atthe daycare, which provided substantial evidence to supportthis finding. 

### The mother assigns errorto finding 2.2(mm), that "[t]he child should 

### remain inout-of-home placement" and finding of fact 2.5 that "[t]hehealth, safety, and welfare ofthe child cannotbe adequately protected inthe home." Substantial evidence ofabuse and neglectdemonstrates that P.D. cannot be adequately 

### protected at home and should remain inan out-of-home placement. While the mother also assigns errorto the dependency finding made 

### under RCW 13.34.030(6)(c), that P.D. lacks an adequate parentcapable of 

### caring for her, herchallenge was notsupported byargument. "A partyabandons assignments of error to findings of fact ifitfails to arguethem in itsbrief." Valley View Indus. Park v. City ofRedmond, 107 Wn.2d 621, 630, 733 P.2d 182 (1987) 

### (citing Seattle Sch. Dist. v. State. 90 Wn.2d 476, 585 P.2d 71 (1978)). The

12No. 73918-2-1/13 

### mother therefore abandons her challengeto the finding ofdependency on this ground, and it is a verity on appeal. Affirm.

WE CONCUR: 

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