In Re The Dependency Of: P.d. Samira Maljanovich, App. v. State Of Wa., Dshs, Res.

• Court: Court of Appeals of Washington
• Decided: October 24, 2016
• Docket: 73918-2
• Status: Unpublished

Opinion

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

——4

STATE OF WASHINGTON, ] DEPARTMENT OF SOCIAL & HEALTH ] 70s QPRX/IPPQ OCrwIOtO, t DIVISION ONE s Respondents, ST

v.

UNPUBLISHED OPINION SAMIRA MALJANOVICH, | Appellant. ] FILED: October 24, 2016

Spearman, J. — Samira Maljanovich is the mother of P.D., who was born

on September 2, 2014.1 P.D. was hospitalized at six months old with bleeding 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

matter was tried over eight days in July 2015 and concluded with the trial court

entering an order of dependency. 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.

1 Although 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 her together. Their relationship

was volatile. Both parents alleged domestic abuse, and the father was alcohol

dependent. In November 2014, the mother moved out of the family home and the

parents agreed to equally divide P.D.'s care. During this time, P.D. was observed

as a normal but fussy 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 of Proceedings (VRP) at 198, 509. On January 9, 2015, the

mother served the father with 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 after January 9, 2015.

The father had no contact with the baby. From November 2014 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 in the

daycare at her mother's gym in February 2015.

On February 27, 2015, the mother took 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 mother did 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 her to

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 of physicians. After

ruling out diagnoses such as a bleeding disorder, the team concluded that P.D.'s

condition was caused by nonaccidental head trauma. Her diagnoses 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

difficulty feeding, her pace of weight gain dropped while she was in her mother's

sole care. The amount that P.D. ate was variable, but at times she consumed as

little as a third of the calories that she needed.

The hospital contacted the Department of Social and Health Services and

law enforcement, which both opened investigations. The State filed a

dependency petition and P.D. was discharged from the hospital to licensed foster

care. At the time of trial, P.D. was nine months old. Her gross and fine motor

skills were significantly delayed, but her health had improved and she had gained

a significant amount of weight.

At trial, the mother did not dispute that P.D.'s medical condition included

subdural hemorrhages, retinal hemorrhages, and seizures. The primary points of No. 73918-2-1/4

contention were whether the hemorrhages were the result of nonaccidental

trauma and, if so, who or what caused it.

The State presented the expert medical testimony of physicians 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 in the brain, increased

pressure in her 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 poor growth, and can be lethargic and irritable, so

P.D.'s failure to thrive and irritability helps support an abusive head trauma

diagnosis. Dr. Rogers testified that in her clinical opinion, abuse was the most

likely explanation of P.D.'s condition.

Dr. Thomas Grondin, pediatric neurosurgeon, testified that P.D.'s acute

subdural hematomas were a couple of days old and her chronic 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 necessary to 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 of external injury such as bruises. Dr.

Grondin concluded that P.D.'s injuries were the result of nonaccidental trauma.

He testified that he considered but ruled out other possible causes of the 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 of her brain.

According to Dr. Yolande Duralde, the medical director of the Child Abuse

Intervention Department at Mary Bridge, the most likely cause of this 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 of the injury but that it could be the result of shaking or

being thrown up against a wall.

Dr. Clark Deem, an ophthalmologist, examined P.D. and found over 100

retinal hemorrhages in each eye. He testified that "the hemorrhages looked quite

bright red and recent" and estimated that they were at most ten days old. VRP

(07/09/15) at 469-70. He also concluded that the appearance of the injuries was

"classic for infant-shaking." jd. at 469.

Dr. George Makari, a pediatric neurologist, also examined P.D. and

reviewed her CT and MRI scans. He testified to a reasonable degree of medical

certainty that P.D.'s injuries were caused by nonaccidental trauma. He testified

that the injuries could be caused "[ejither a blunt trauma or a whiplash. And since

we don't have evidence of blunt trauma, a whiplash would be more likely." VRP

(07/14/15) at 665.

The mother offered expert testimony by Dr. Ronald Uscinski, who disputed

the abusive head trauma diagnosis. Dr. Uscinski testified that animal studies

show that before shaking can create enough force to cause a subdural No. 73918-2-1/6

hemorrhage, a child would first suffer a 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 of P.D.'s hemorrhages. He attributed P.D.'s chronic subdural

hemorrhaging to birth trauma, and P.D.'s acute subdural hemorrhaging to a re-

bleed of the chronic blood from an event as minor as vomiting. The trial court did

not find this testimony credible.

The trial court found that P.D.'s injuries and her other health conditions

arose while she was in "her mother's exclusive care." Clerk's Papers (CP) at 554.

It entered an order finding that P.D. was a dependent child because she was

abused and/or neglected and had no parent capable of meeting her needs.2 The

mother appeals.

DISCUSSION

In evaluating a claim of insufficiency of the evidence in a dependency

proceeding, this court determines whether substantial evidence supports the trial

court's findings of fact and whether those findings of fact support the 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 in the light most favorable to the

prevailing party, a rational trier of fact could find the 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 in balancing the legal rights of

parents against the rights of the child, the rights and safety of the child shall be

2 The court also found P.D. dependent as to the father, but only on the latter ground. No. 73918-2-1/7

the paramount concern. RCW 13.34.020; In re Dependency of Schermer, 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 in this 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 In re Seqo. 82 Wn.2d

736, 739-40, 513 P.2d 831 (1973)).

The mother argues there is not substantial evidence of abuse or neglect to

sustain the finding of dependency. She rests her argument on the testimony of

Dr. Uscinski, who disputes that abuse caused P.D.'s injuries. She argues that the

trial court erred in finding that P.D. is dependent due to abuse or neglect and due

to having no adequate parent. She also contends the court erred in finding that

P.D. cannot be placed with her mother due to manifest danger. In support of her

argument, the mother assigns error to multiple findings of fact. Finally, the mother

argues that even if P.D.'s injuries are nonaccidental, another person must have

inflicted them.

Parents have a fundamental liberty interest in the care and welfare of their

children, and State interference is never to be taken lightly. In re Schermer. 161

Wn.2d at 941 (citing In re Welfare of Sumev. 94 Wn.2d 757, 762, 621 P.2d 108

(1980)). But the State has an interest in protecting the physical, mental, and

emotional health of children. In re Schermer. 161 Wn.2d at 941. A dependency is No. 73918-2-1/8

a preliminary proceeding that does not permanently deprive a parent of rights. In

re Welfare of Key. 119 Wn.2d 600, 609, 836 P.2d 200 (1992) (citing In re A.W..

53 Wn. App. 22, 30, 765 P.2d 207 (1988)). Dependency proceedings are

designed to protect children from abuse and neglect, help parents alleviate

problems that led to State intervention, and reunite families if appropriate. In re

Schermer, 161 Wn.2d at 943; In re Interest of J.F.. 109 Wn. App. 718, 728, 37

P.3d 1227(2001).

To find a child dependent, the State must prove by a preponderance of the

evidence that the child meets a statutory definition of dependency. RCW

13.34.110(1). In this case, the trial court found P.D. dependent under both RCW

13.34.030(6)(b) and (c). Subsection (b) provides that a child is dependent where

she is abused or neglected, by a person legally responsible for her care. 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

negligent treatment 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 dependent where the child "[h]as no parent, guardian, or custodian

capable of adequately caring for the child, such that the 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 that there is not substantial evidence that she abused

P.D. She assigns error to findings of fact 2.2(jj) and (II), that

8 No. 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 half in the 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 of the evidence that while on the mother's watch, [P.D.] had an acute injury as defined variously by the Mary Bridge team of physicians as being within a week or two old coupled with a chronic injury probably occurring after she was in the mother's care.

CP at 554. At trial, the mother testified that P.D.'s acute hematoma was caused

by driving over speed bumps or slamming on the brakes. She argued that the

chronic hematoma could have been a birth injury or could have occurred while in

the care of another person. The trial court found that these explanations were not

credible, a finding which is not reviewed by this court. In re Aschauer, 93 Wn.2d

at 695.

The State presented evidence that P.D. was abused while in her mother's

care. When P.D. left her father'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 two weeks of her hospitalization. In spite of controversy

surrounding shaken baby syndrome, the trial court found persuasive the

testimony of the Mary Bridge physicians that P.D. suffered nonaccidental trauma No. 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 error to finding of fact 2.2(ii), that "[tjestimony by Dr.

Duralde and other Mary Bridge physicians indicated that this was a result of a

shearing force and was a result of a relatively recent nonaccidental force. The

court found this testimony to be credible." CP at 554. She also assigns error to

finding of fact 2.2(gg), that

[t]he mother offered expert testimony 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 suffer a neck injury first. The court did not find Dr. Uscinski's testimony credible.

The record shows that these two findings of fact are accurate summaries of the

medical expert witness testimony and thus, they are supported by substantial

evidence. We do not review the trial court's finding of credibility. In re Aschauer,

93 Wn.2d at 695. The trial court did not err in entering findings 2.2(ii) and (gg).

The mother also challenges the finding of neglect. Negligent treatment or

maltreatment is defined as "an act or a failure to act, or the cumulative effects of

a pattern of conduct, behavior, or inaction, that evidences a serious disregard of

consequences of such magnitude as to constitute a clear and present danger to

a child's health, welfare, or safety. . . ." RCW 26.44.020(16). A child's failure to

gain weight and a parent's failure to follow up with medical care is evidence of

neglect. In re E.L.F., 117 Wn. App. at 243.

10 No. 73918-2-1/11

The State presented evidence that the mother engaged in a pattern of

failing to act on P.D.'s medical needs. She did not take P.D. to a primary care

provider while in her exclusive care, even though P.D. was due for her four

month checkup and she was instructed to do so when P.D. was discharged from

the emergency room for a urinary tract infection. In the five days prior to

admission at Mary Bridge, the mother noticed that P.D. was lethargic and her

right eye was not tracking well. There was an hour-long period where P.D. was

unresponsive but breathing. Despite these alarming signs, the mother did 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 of neglect. Medical records show that

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 her far less formula than was required to maintain a

healthy weight. P.D.'s failure to thrive appears to be the cumulative effect of the

mother's behavior that was a clear danger to P.D.'s health by the time she

entered the hospital. The finding of neglect is supported by substantial evidence.

The mother assigns error to several additional findings of fact that do not

impact the trial court's dependency order. She assigns error to finding of fact

2.2(a), that "[i]n November 2014, mother moved out of the home and left [P.D.]

with the father. . . ." CP at 549. The mother is correct that substantial evidence

does not support this finding. When the mother left home in November, she and

the father shared care for P.D.

11 No. 73918-2-1/12

The mother also assigns error to finding of fact 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 her explanation that P.D. may have hit her head while the mother was

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 consistent with the

severity of P.D.'s injuries and the trial court did not find them credible.

The mother assigns error to finding of fact 2.2(bb) that "based on his

investigation, [Detective Rob Jones] had no reason to believe that [P.D.] suffered

any injuries at the daycare." CP at 553. Detective Jones testified about his

investigation into whether P.D. suffered injuries at the daycare, which provided

substantial evidence to support this finding.

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

remain in out-of-home placement" and finding of fact 2.5 that "[t]he health, safety,

and welfare of the child cannot be adequately protected in the home." Substantial

evidence of abuse and neglect demonstrates that P.D. cannot be adequately

protected at home and should remain in an out-of-home placement.

While the mother also assigns error to the dependency finding made

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

caring for her, her challenge was not supported by argument. "A party abandons

assignments of error to findings of fact if it fails to argue them in its brief." Valley

View Indus. Park v. City of Redmond, 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

12 No. 73918-2-1/13

mother therefore abandons her challenge to the finding of dependency on this

ground, and it is a verity on appeal.

Affirm.

WE CONCUR: y-f^V ^Oy /-•>

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