Imperial Cnty. Dep't of Soc. Servs. v. M.G. (In re J.G.)

228 Cal. Rptr. 3d 787, 20 Cal. App. 5th 173
CourtCalifornia Court of Appeal, 5th District
DecidedFebruary 2, 2018
DocketD072293
StatusPublished

This text of 228 Cal. Rptr. 3d 787 (Imperial Cnty. Dep't of Soc. Servs. v. M.G. (In re J.G.)) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Imperial Cnty. Dep't of Soc. Servs. v. M.G. (In re J.G.), 228 Cal. Rptr. 3d 787, 20 Cal. App. 5th 173 (Cal. Ct. App. 2018).

Opinion

AARON, J.

*176Minors N.C., P.G., J.G., and D.G. appeal from orders denying the Imperial County Department of Social Services' petition to remove them from the care of their paternal aunt under Welfare and Institutions Code sections 387 and 361.3.1 Minors contend that in view of the court's finding that the three youngest children were diagnosed with nonorganic failure to thrive while in their aunt's care, the court erred in determining that continued placement with their aunt was appropriate and in their best interests. We agree and conclude that the court abused its discretion in ordering the children to remain with a caregiver who failed to provide adequate food to them, causing serious injury to the health and well-being of the three youngest children. We therefore reverse the findings and orders of the juvenile court.2

*789FACTUAL AND PROCEDURAL BACKGROUND

In November 2014, the Imperial County Department of Social Services (the Department) detained N.C.,3 P.G., J.G., and D.G. (collectively, the children) in protective custody after their father, Jose G., ran over their mother, D.H., with his car when she tried to prevent him from leaving with the children. The children were present and witnessed this incident. N.C. was four years old, P.G. was 22 months old, and twins J.G. and D.G. were 10 months old. D.H. died from her injuries a few days later. Jose was sentenced to seven years in prison.

*177Jose's sister, M.G. (Aunt), who had adult children and grandchildren of her own, immediately requested placement of all four children. The three youngest children were placed with Aunt in February 2015. N.C. was initially placed with her maternal relatives but joined her siblings in Aunt's home approximately six months later. One of Aunt's daughters, U.W., lived with her and helped care for the children. The court ordered a monthly weekend visit for the children with their maternal relatives.

At the beginning of the case, the social worker was concerned about four-year-old N.C.'s emotional stability. N.C. described the events leading to her mother's fatal injury and other incidents in which Jose had hit her mother and all of the children. The social worker referred N.C. to therapeutic services. There were no other concerns about her health or development.

P.G. had Down syndrome. She had low muscle tone and was not yet walking. Her immune system was fragile and she was susceptible to respiratory illnesses. In March 2015, shortly after she was placed in Aunt's care, P.G. measured close to the 90th percentile for weight on a pediatric growth chart for Down syndrome children.

J.G. and D.G. were diagnosed with developmental delays but there were no concerns about their physical health. At a pediatric checkup in December 2014, when the boys were 10 months old, the doctor noted that D.G. was overweight at 23.3 pounds. J.G. weighed 26.8 pounds. At a medical checkup in August 2015, the service provider noted that J.G. was overweight. He weighed 24 pounds.

In September 2015, at a hearing, the children's maternal grandmother told the court that the children were thin and malnourished in Aunt's care. Aunt complained that the maternal relatives were improperly feeding the children by allowing them to eat too much food and junk food. The social worker addressed the issue with the maternal relatives.

P.G. continued to suffer from respiratory problems, including pneumonia. In June 2016, she was determined to have severe pharyngeal phase deficits and was aspirating thin liquids. Doctors recommended that Aunt give only thickened liquids to P.G., to prevent aspiration. Aunt did not follow this medical advice. At a physical therapy session, Aunt complained that P.G. had gained four pounds in a 48-hour visit with her maternal relatives and that her stomach was "very extended," saying, "food is a part of her addiction." Aunt took P.G. to the emergency room for treatment for constipation.

In July 2016, the court terminated parental rights. Aunt wanted to adopt the children and initiated a home study. The social worker reported that P.G., D.G., *178and J.G. (collectively, the younger children) were making developmental progress. *790Aunt was attentive and proactive, and she had obtained needed services for the children.

In September 2016, the Department reported that P.G. had more control over her movements and was walking. She continued to have respiratory problems. Aunt had been diligent in securing needed services for P.G., including teaching her how to swallow without aspirating food and liquid into her lungs. Aunt closely monitored P.G. during meals. The other three children were in good health. D.G. and J.G. were making developmental progress. The social worker said that the children showed signs of having secure and positive attachments to Aunt. After the court terminated parental rights, Aunt had stopped the children's visits with their maternal relatives.

On October 17, 2016, a San Bernardino County social worker and public health nurse (PHN) investigated a child abuse referral that alleged that P.G. had bruises on her forehead, rib, and lower back, and that her right knee was pink and swollen. Aunt and teachers at P.G.'s day care reported that P.G. frequently fell down. A bus driver confirmed Aunt's report that P.G. fell on the morning of October 17 when she stepped off the curb to board the school bus. On examination, P.G.'s abdomen was determined to be grossly distended. Her arms, legs, and ribs were visibly bony, and the skin on her buttocks was sagging. She was very lethargic. P.G. was hospitalized to evaluate the cause of her apparent failure to thrive.

The social worker and PHN examined the other children. D.G. was thin but not bony. Both D.G. and J.G. were nonverbal. Six-year-old N.C. said that they ate chicken, rice, beans, and eggs, and that there was always food in the home. Nevertheless, D.G. weighed only a pound more than he had weighed at age 10 months, almost two years earlier, and J.G. weighed less than he had weighed at 10 months. A preschool teacher reported that Aunt had restricted P.G.'s diet at preschool to mainly fruits and vegetables, and had limited the number of goldfish crackers that P.G. could have as a reward for her accomplishments. Aunt explained that the diet was designed to prevent P.G. from aspirating her food.

The Department filed a supplemental petition on behalf of the children under section 387, alleging that placement with Aunt had not been effective in protecting them. The petition stated that Amy Young, M.D., had diagnosed the younger children with failure to thrive. P.G. was hospitalized with severe malnutrition. N.C.'s safety and well-being were at risk because of the inadequate care of her siblings. With the court's approval, the Department detained the children in protective custody in the care of Aunt's adult daughter, U.W. The court ordered reasonable visitation with Aunt.

*179

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Bluebook (online)
228 Cal. Rptr. 3d 787, 20 Cal. App. 5th 173, Counsel Stack Legal Research, https://law.counselstack.com/opinion/imperial-cnty-dept-of-soc-servs-v-mg-in-re-jg-calctapp5d-2018.