In re M.R. CA5 ( 2021 )

Filed 2/26/21 In re M.R. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re M.R., a Person Coming Under the
Juvenile Court Law.
FRESNO COUNTY DEPARTMENT OF F080694
SOCIAL SERVICES,
(Super. Ct. No. 19CEJ300085-1)
Plaintiff and Appellant,
v. OPINION
A.H. et al.,
Defendants and Respondents.
APPEAL from orders of the Superior Court of Fresno County. John F. Vogt,
Judge.
Daniel C. Cederborg, County Counsel, and Kevin A. Stimmel, Deputy County
Counsel, for Plaintiff and Appellant.
Melissa A. Chaitin, under appointment by the Court of Appeal, for Defendant and
Respondent, A.H.
Gino de Solenni, under appointment by the Court of Appeal, for Defendant and
Respondent, M.R.
-ooOoo-
The Fresno County Department of Social Services (department) filed a juvenile
dependency petition on behalf of then one-month-old M.R., who had suffered multiple
fractures for which his parents, A.H. (mother) and M.R. (father) (collectively, the
parents), had no explanation, alleging he came within the juvenile court’s jurisdiction
under Welfare and Institutions Code1 section 300, subdivisions (a), (b), (e), and (i). The
juvenile court found the subdivision (b) allegations true but found the department had not
proven the section 300, subdivision (a), (e), or (i) allegations. Both parents were ordered
to receive reunification services.
The department appeals the juvenile court’s dispositional order, contending the
court erred by finding that the section 300, subdivision (e) allegation had not been proven
and, accordingly, that the section 361.5, subdivision (b)(5) bypass provision, which
requires a finding the child came within the court’s jurisdiction under section 300,
subdivision (e), did not apply. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND2
In February 2019, the parents took M.R. to his pediatrician because he was being
fussy and not drinking as much as usual. M.R.’s pediatrician had M.R. transferred to the
hospital. M.R. was diagnosed with bilateral fluid in his chest and was admitted to the
hospital for one week. Approximately two to three weeks later, the parents took M.R. to
the hospital again because he had exhibited similar symptoms. X-rays and a “CAT” scan
revealed that M.R. had multiple rib fractures on both sides in various stages of healing
and multiple leg fractures. The doctor who reviewed the X-rays observed the parents
appeared surprised to find out about the fractures. He also observed that mother had been
at the hospital all day and had been appropriate. The parents reported to hospital staff
1 All further undesignated statutory references are to the Welfare and Institutions
Code.
2 For reasons unknown to us, the department’s jurisdiction/disposition report and an
addendum report were not included in the record on appeal. On May 29, 2020, the
department requested we take judicial notice of these reports. On June 10, 2020, this
court deferred ruling on the department’s motion pending consideration of the appeal on
its merits. The parents did not object to the court’s taking judicial notice of the
documents. We hereby grant the department’s request.
2.
they sometimes hold M.R. up by his armpits but otherwise had no explanation for how he
sustained the injuries. Doctors at the hospital opined that M.R.’s injuries were
nonaccidental unless a cause could be demonstrated by a major bone structural disease.
A referral was made to the department, who in turn contacted the police
department. The investigating social worker and the responding police officer
interviewed the parents individually at the hospital. Each parent told the social worker
and police officer they did not know what happened to M.R. and that they and M.R. are
the only three people in their home, with the exception of a short period of time when the
maternal grandmother visited to help with M.R. Mother worked full time, and father
would watch M.R. while mother worked.
M.R.’s parathyroid hormone (PTH) level was elevated at 90.7, with a normal
range of 14-64, and his vitamin D level was 18, with insufficiency being defined as 30 or
lower. It was reported by hospital staff M.R. possibly had rickets (softening or
weakening of bones) or osteogenesis imperfecta (brittle bone disease).
The department filed a first amended petition on behalf of M.R., alleging he came
within the juvenile court’s jurisdiction under section 300, subdivisions (a) (serious
physical harm), (b) (failure to protect), (e) (severe physical abuse on a child under five),
and (i) (cruelty). The allegations under section 300, subdivision (b) alleged that M.R. had
suffered serious physical harm due to the parents’ failure to provide adequate care,
supervision, and protection for M.R. The allegations under section 300, subdivisions (a),
(e), and (i) included allegations that both parents inflicted M.R.’s injuries.
M.R. was ordered detained from the parents. Subsequently, one of M.R.’s lab
results came back with an “unusual organism,” and he was transferred to the University
of California San Francisco (UCSF) Benioff Children’s Hospital for further testing.
Upon discharge from the hospital a few days later, M.R. was placed with his maternal
great-grandmother. A follow-up appointment indicated most of M.R.’s fractures had
healed.
3.
In the department’s combined jurisdiction/disposition report, it was reported the
parents had no criminal or prior child welfare history. The department recommended the
allegations in the first amended petition be found true and that mother and father be
denied reunification services pursuant to section 361.5, subdivision (b)(5) and (b)(6).3
The parents requested a contested hearing. Father’s statement of contested issues
indicated his position was M.R.’s fractures were sustained due to a bone condition
unknown to the parents at the time the fractures occurred. In mother’s statement of
contested issues, she argued M.R.’s low vitamin D levels coupled with the stages of
healing of the fractures, indicated the injuries appeared to be from a vitamin deficiency or
genetic defect that had not yet been discovered.
After multiple continuances in order to allow time for M.R.’s test results to be
completed and because mother received new counsel, a combined jurisdiction/disposition
hearing was held over three days, October 8 through 10, 2019.
The department called Emily Spieren, M.D., UCSF neonatalist, who was certified
as an expert in neonatology and pediatrics. Dr. Spieren was the attending neonatologist
while M.R. was in the intensive care nursery at UCSF. Dr. Spieren testified M.R.’s leg
fractures were “bucket handle” fractures commonly caused by tension along the long axis
of the bone like pulling with force or when a child is shaken. In her opinion, M.R.’s
injuries were caused by nonaccidental trauma. The mechanism for the types of injuries
3 Section 361.5, subdivision (b) provides in pertinent part that: “Reunification
services need not be provided to a parent … when the court finds, by clear and
convincing evidence[:] [¶] … [¶]
“(5) That the child was brought within the jurisdiction of the court under
subdivision (e) of Section 300 because of the conduct of that parent[; or]
“(6) That the child has been adjudicated a dependent pursuant to any subdivision
of Section 300 as a result of severe sexual abuse or the infliction of severe physical harm
to the child … by a parent … and the court makes a factual finding that it would not
benefit the child to pursue reunification services with the offending parent.” (§ 361.5,
subd. (b)(5) & (b)(6).)
4.
M.R. received were not the type that occur in an accident like a fall, and no traumatic
event or accident was reported. Further, there was no report of a family history with
higher incidence of fractures, and the fractures were in different stages of healing.
Dr. Spieren consulted with endocrinology, infectious disease, neurology, and
gastroenterology, and none of these departments found a cause for M.R.’s fractures.
None of the consultants Dr. Spieren talked to thought M.R.’s vitamin D level was low
enough to lead to increased risk of fractures.
On cross-examination, Dr. Spieren testified she was not an expert in determining
whether an injury was caused by accidental or nonaccidental trauma, and she did not
speak with the child abuse expert who evaluated the case directly. Dr. Spieren did not
have specialized training in diagnosing metabolic bone disease. Dr. Spieren testified that
brittle bones can be caused by osteogenesis imperfecta or nutritional or genetic rickets,
but Dr. Spieren stated she was not an expert in that field and does not know of other
disorders that could cause brittle bones.
Dr. Spieren testified that M.R. did not have damage to his internal organs, external
bruising, or any outward signs of trauma. There were no hemorrhages or hematomas
found in M.R.’s brain and no hemorrhages found in M.R.’s eyes. Dr. Spieren was not
aware of the frequency of bleeding in the eyes or brain in infants who are shaken, and
although the fractures sustained by M.R. are seen in infants who are shaken, they are also
seen in infants who are not shaken.
Dr. Spieren testified that M.R.’s X-rays did not show he had decreased bone
density, but she was not aware of any specific bone density test that was done.
Dr. Spieren also testified she would be concerned about a child who had fractures and an
abnormal PTH level, as PTH is important for bone mineralization and formation.
Though M.R.’s PTH was high at one point, it was normal when Dr. Spieren had him
tested again.
5.
The department called Joseph Shen, M.D., who was certified as an expert in
pediatric genetics. Dr. Shen testified he had conducted genetic testing on M.R. on four
genes known to cause osteogenesis imperfecta, a bone fragility syndrome. M.R. tested
positive for an inconclusive “change” in one of the genes, but Dr. Shen concluded it was
not clinically meaningful and did not tend to show it was a cause for osteogenesis
imperfecta because there was no family history of bone fragility reported. Based on this
testing, Dr. Shen concluded it did not appear that M.R. had osteogenesis imperfecta.
Though further testing was requested, Dr. Shen chose to see how M.R. did with his care
provider before ordering. That no further fractures were reported while M.R. was in the
care of his care provider supported Dr. Shen’s opinion that M.R. did not have a bone
fragility syndrome.
Dr. Shen admitted there were numerous bone fragility syndromes, but he only
tested for osteogenesis imperfecta. The current testing can confirm osteogenesis
imperfecta in 70 to 90 percent of cases, but a clinical diagnosis could be made where the
patient continues to receive fractures.
Mother called maternal great-grandmother and care provider of M.R., Eloise H.
Eloise testified she was the third-party supervisor of visits between the parents and M.R.
She had never seen mother squeeze or play rough with M.R. and had no concerns with
visits. Eloise did not know father very well and did not get along very well with him
when she first met him. Eloise was skeptical of father being able to take care of M.R.
because she did not know whether he knew how to care for M.R. or change a diaper.
Eloise had since gotten to know father better and she has seen him mature and make more
of a fatherly connection with M.R. Father appeared very happy and excited around M.R.
and Eloise had never seen father get frustrated with M.R. When asked if either parent
would intentionally hurt M.R., Eloise responded, “No, with a capital N and a capital O.”
Though doctors had told her the injuries were likely nonaccidental, Eloise believed the
injuries were accidental and caused by the parents not knowing how to handle the baby;
6.
her opinion was based on her own experience and not on anything a doctor had told her.
M.R. had not had any new fractures since being placed with her, but his last X-ray was in
March or April 2019.
Mother called maternal grandmother, Nicole F. Nicole testified she visited the
family from Sacramento every other week after M.R. was born. She generally saw
nothing concerning about how the parents handled M.R., but on one occasion, she saw
father pick M.R. up by his armpits and walk around with him in that position. That
evening, M.R.’s breathing became labored so she suggested the parents take him to the
hospital. Nicole testified M.R. is always happy when he sees mother. When asked if she
thought father could have been capable of hurting M.R., she responded, “I don’t know.”
She said father may have unintentionally hurt M.R. by being too rough. Nicole testified
she thinks father loves M.R. and was excited to have a son.
Mother testified on her own behalf. She testified she never saw father get
frustrated with M.R. and that father and M.R. had a good relationship. She said she was
not currently in a relationship with father because M.R.’s removal “pretty much killed
everything.” She never squeezed M.R. or saw father squeeze him. When asked what
happened to M.R., mother responded, “I don’t know.” When asked if she thought father
did something, she said, “I really don’t know what happened to my son.” She went on to
say, “I think it’s something medical, but I don’t know.” She had never seen father lose
his temper with any child or do anything that seemed to hurt M.R. Both parents were
completely shocked when they were told M.R. had fractures.
After hearing the evidence presented, the court stated it wanted to “go back
through this documentation in more detail. The specific types of questions asked and the
cross-examination of … Dr. Spieren, I think compel me to take a closer look at the details
involved here.” The court ordered briefing from the parties on what they felt were the
pertinent factual issues of the case.
7.
In its briefing on section 300, subdivision (e), the department argued the case was
“identical to In re E.H. (2003) 108 Cal.App.4th 659, 667–670 [(E.H.)],” and because both
parents maintained they did not cause the injuries and were the only caretakers of M.R.,
the court should sustain the section 300, subdivision (e) allegations despite the “fact that
the injuries were not visible and there is no identified perpetrator.”
In M.R.’s briefing, M.R.’s counsel argued the court should follow the
department’s recommendations. As to section 300, subdivision (e), M.R., through
counsel, argued the court did not need to identify a perpetrator, citing E.H., and that
section 300, subdivision (e) did not require the parents’ “ ‘actual or constructive
knowledge’ ” of the abuse, citing In re Joshua H. (1993) 13 Cal.App.4th 1718, 1729.
As to section 300, subdivision (e), father argued a reasonable conclusion could not
be drawn from the evidence “that the parents caused the injuries or reasonably should
have known that [M.R.] was being physically harmed by someone in the house.” Father
argued there was no evidence produced that the specific types of fractures suffered by
M.R. were abuse and that Drs. Spieren and Shen could not rule out nutritional rickets nor
osteogenesis imperfecta.
At a continued hearing, the court found the section 300, subdivision (b) allegations
true and that the department had not proven the section 300, subdivision (a), (e), or (i)
allegations. The court accordingly found the bypass provisions under section 361.5,
subdivision (b)(5) and (b)(6) did not apply. The court went on to explain that even if the
court found the bypass provisions did apply, the court would have found that ordering
reunification services for the parents was in M.R.’s best interest. The court noted that
M.R.’s maternal great-grandmother was in her 70’s and that the parents, particularly
mother, had demonstrated bonding with M.R.
The court ordered the parents to participate in parenting classes, a domestic
violence evaluation, a substance abuse assessment, a mental health evaluation, random
drug testing, and a risk assessment.
8.
DISCUSSION
I. Mootness
The parents argue we need not address the merits of the department’s appeal
because the issues the department raises are moot.4
“An appellate court will not review questions which are moot and only of
academic importance, nor will it determine abstract questions of law at the request of a
party who shows no substantial rights can be affected by the decision either way.
[Citation.] An appeal becomes moot when, through no fault of the respondent, the
occurrence of an event renders it impossible for the appellate court to grant the appellant
effective relief. [Citations.] On a case-by-case basis, the reviewing court decides
whether subsequent events in a dependency case have rendered the appeal moot and
whether its decision would affect the outcome of the case in a subsequent proceeding.”
(In re Esperanza C. (2008) 165 Cal.App.4th 1042, 1054–1055.)
As to the department’s appeal of the court’s jurisdictional findings, the parents
argue the issue is moot because the juvenile court took jurisdiction over M.R. under
section 300, subdivision (b) (an order which is not a subject of this or any other appeal),
and M.R. would remain a dependent regardless of any decision we make regarding the
section 300, subdivision (e) findings.
As to the department’s appeal of the juvenile court’s grant of reunification
services, the parents argue the issue is moot because, while the present appeal was
4 On August 28, 2020, prior to filing respondents’ briefs, both parents filed motions
to dismiss the appeal as moot. On September 21, 2020, this court deferred ruling on
these motions pending consideration of the appeal on its merits. The parents
subsequently addressed the mootness issue in their briefs. We hereby deny the parents’
motions and address the parents’ arguments on mootness within this opinion.
9.
pending, the parents have completed reunification services, and M.R. has been placed
with them on family maintenance services at the recommendation of the department.5
The department disagrees that its challenge to the court’s jurisdictional findings is
moot. The department argues this court should consider the merits of its appeal because
the outcome could affect whether the parents would be subject to the bypass provision in
section 361.5, subdivision (b)(3) in the event M.R. was subject to a future dependency
proceeding and removed from the parents due to abuse. Section 361.5, subdivision (b)(3)
provides that reunification services need not be provided to a parent when “the child or a
sibling of the child has been previously adjudicated a dependent pursuant to any
subdivision of Section 300 as a result of physical or sexual abuse, that following that
adjudication the child had been removed from the custody of the child’s parent or
guardian pursuant to Section 361, that the child has been returned to the custody of the
parent or guardian from whom the child had been taken originally, and that the child is
being removed pursuant to Section 361, due to additional physical or sexual abuse.”
Here, if we were not to address the merits of the department’s jurisdictional
appeal, and if M.R. were to be removed in the future from the parents due to physical
abuse, it does not appear any bypass provision would apply, and the parents would likely
receive reunification services by default. The purpose of bypass provisions is that they
“exempt[] from reunification services ‘those parents who are unlikely to benefit’
5 On August 28, 2020, mother filed a motion requesting we take judicial notice of
three documents filed in the underlying matter: (1) the May 20, 2020 minute order for
the combined six- and 12-month status review hearing indicating the court continued both
parents’ family reunification services; (2) the department’s status review report, dated
July 31, 2020, wherein the department recommended family maintenance services be
ordered; and (3) the August 12, 2020 minute order for the 18-month status review hearing
indicating the court terminated family reunification services and ordered family
maintenance services. The department has filed no objection to our taking judicial notice
of these documents. On September 21, 2020, this court deferred ruling on this request
pending consideration of the appeal on its merits. We hereby grant mother’s motion for
judicial notice.
10.
[citation] from such services or for whom reunification efforts are likely to be ‘fruitless.’
[Citation.] Once the juvenile court concludes reunification efforts should not be made in
a particular case, it ‘ “fast-tracks” ’ the dependent minor to permanency planning so that a
permanent out-of-home placement can be developed.” (Jennifer S. v. Superior Court
(2017) 15 Cal.App.5th 1113, 1120–1121.) If the challenged finding was erroneous, and
M.R. were to be removed in the future due to abuse, M.R.’s interest in permanence and
stability could be affected by the inapplicability of the section 361.5, subdivision (b)(3)
bypass provision. For these reasons, we will review the department’s appeal to the
court’s jurisdictional findings.
As to the juvenile court’s order granting reunification services to the parents,
however, we agree with the parents that this court could make no disposition that would
have a practical effect on the underlying or future dependency proceedings. The
department makes no argument as to why the court’s granting of reunification services is
not moot in light of the parents receiving and completing reunification services and
reunifying with M.R. on family maintenance services. We will not address the court’s
dispositional finding that the section 361.5, subdivision (b)(5) bypass provision did not
apply, as the issue is moot.
II. Jurisdiction
A. Section 300, Subdivision (e)
A child comes within the jurisdiction of the juvenile court under section 300,
subdivision (e) when “[t]he child is under the age of five years and has suffered severe
physical abuse by a parent, or by any person known by the parent, if the parent knew or
reasonably should have known that the person was physically abusing the child.” (§ 300,
subd. (e).) The definition of “severe physical abuse” relevant to this case is “more than
one act of physical abuse, each of which causes bleeding, deep bruising, significant
external or internal swelling, bone fracture, or unconsciousness ….” (Ibid.)
11.
B. Allegations
The allegations under section 300, subdivision (e) in the first amended petition
read as follows:
“[e-1]: [M.R.], a one-month-old child, has suffered severe physical abuse
by [mother]. On or about March 10, 2019, while in the care and custody of
[mother], [M.R.] sustained serious physical injuries and was hospitalized.
Such injuries include, but are not limited to, multiple bilateral rib fractures,
in addition to fractures to his left femur and on the right and left distal tibia
and fibula. According to medical professionals, the injuries appeared to be
non-accidental and appear to be in various stages of the healing process.
[Mother] has no reasonable explanation as to how [M.R.] sustained his
injuries.
“[e-2]: [M.R.] is under the age of five and has suffered severe physical
abuse due to negligence by [mother]. On or about March 10, 2019, while
[M.R.] was in [the parents’] care, [M.R.] was found to have multiple
bilateral rib fractures, in addition to fractures to his left femur and on the
right and left distal tibia and fibula, which were all in various stages of
healing. The injuries to [M.R.] were caused by [father], and [mother] knew
or reasonably should have known that [M.R.] was at risk of physical abuse
by [father]; however, she failed to protect [M.R.] from further abuse by
[father].
“[e-3]: [M.R.], a one-month-old child, has suffered severe physical abuse
by [father]. On or about March 10, 2019, while in the care and custody of
[father], [M.R.] sustained serious physical injuries and was hospitalized.
Such injuries include, but are not limited to, multiple bilateral rib fractures,
in addition to fractures to his left femur and on the right and left distal tibia
and fibula. According to medical professionals, the injuries appeared to be
non-accidental and appear to be in various stages of the healing process.
[Father] has no reasonable explanation as to how [M.R.] sustained his
injuries.
“[e-4]: [M.R.] is under the age of five and has suffered severe physical
abuse due to negligence by [father]. On or about March 10, 2019, while
[M.R.] was in [the parents’] care, [M.R.] was found to have multiple
bilateral rib fractures, in addition to fractures to his left femur and on the
right and left distal tibia and fibula, which were all in various stages of
healing. The injuries to [M.R.] were caused by [mother] and [father] knew
or reasonably should have known [M.R.] was at risk of physical abuse by
12.
[mother]; however, he failed to protect [M.R.] from further abuse by
[mother].”
C. The Court’s Ruling
We transcribe the entirety of the court’s ruling so the department’s points can be
placed in context:
“… Let me just state that there is no doubt that [M.R.] has suffered
severe and major physical injuries and they happened while in the custody
and care of [the parents].
“Now, the parents have consistently denied any knowledge how the
minor was or could have been so injured. And the evidence is that except
for a brief period in which the maternal grandmother was present in the
household, there were no other adults around the child who could have
been responsible for the injuries.
“Now, the evidence and testimony of medical professionals
consistently supports findings that the injuries were consistent with
nonaccidental trauma. Investigation and testing for possible genetic or
other organic causes for the injuries have not supported such other benign
explanation for the injuries. It’s also noted that the minor has suffered no
new injuries since being placed with the maternal great grandmother back
in March of 2019.
“In their final briefings, I note that the parents failed to address the
application of section 355.1 and its presumption regarding these factual
findings. It is clear to this court that the nature of the injuries is such that
they would ordinarily not be sustained, except as a result of unreasonable or
neglectful acts or omissions. That finding shall be prima facie evidence
that the minor is a person as described in sections 300(a), (b), or (d). And
it’s a presumption that shifts the burden of proof to the parents.
“As I’ve already noted, the parents don’t really have any other
explanations for how the injuries were sustained. The Court is obviously
very concerned about the severity of the injuries and the fact that the
injuries are multiple, discovered in varying states of healing. The Court
agrees with the Department that without a definitive, thoroughly,
substantiated explanation for the injuries, the only place for responsibility
must be on the parents, who had exclusive care and custody of the child.
“That being said, the Court is also very cognizant of the parents’
behavior and actions throughout the documented and charted history of this
13.
case after its filing. Their interactions with the medical teams from the very
first emergency room visit and forward do not impress this Court as
behaviors of willful child abusers. Their involvement with the caretaker,
the maternal grandmother of the mother, and the grandmother’s recounting
of their visits and interactions with [M.R.] do not raise further suspicions or
doubts about their caring for the child.
“Furthermore, the Court notes that there have not been any criminal
referrals or investigations along that path have been closed without filings
against either parent. Notwithstanding the results of the medical and
genetic testing so far, the parents strike me as genuinely convinced that
those are a key to the issues for [M.R.], and none of this adds up to any
kind of apparent mens rea on their part.
“The specific allegations as set forth in the (a) counts, the (e) counts,
and the (i) counts are troubling to the Court in their presumptive
conclusions. Quite frankly, these allegations call for inferences from the
circumstantial evidence that exceed the specific evidence in the record. In
fact, the allegations are in conflict with each other in many respects.
“The Court does find as follows: As to the 300(b) counts, 1 and 2, it
would be a dereliction of duty by this court to not find these counts to be
proven by clear and convincing evidence and not merely by a
preponderance of the evidence. This child has suffered serious physical
harm as a result of the failure or inability of the parents to adequately
supervise and protect the child. But as to the (a) count, the Court cannot
find sufficient evidence to support a finding of serious physical harm,
quote, ‘inflicted nonaccidentally by either the mother or the father.’ The
facts and evidence don’t substantiate a finding of specific infliction of
injuries by either party.
“As to the 300(e) counts, the Court cannot agree with the
Department’s allegations and arguments on these issues. Yes, it is true the
child is under five years of age. Yes, the child has suffered severe physical
harm that fits that definition within the statute, but the (e) counts require
proof of the parents inflicting abuse or ignoring the infliction of abuse by
some other person. There is no evidence of that.
“Notwithstanding the authority cited by the Department and not
ignoring the reasonable inferences to be drawn from the circumstantial
evidence of exclusive access to the child, this court is not willing to
construe an element of willfulness or knowingly inflicting to this situation
14.
based on the proof and the specific wording of the allegations as to either
parent as these counts allege.
“Similarly, as to the 300(i) counts, this court refers back to these
other factual determinations already stated and cannot find facts sufficient
to fit the, quote, ‘subjected to acts of cruelty allegations.’ As to the
pleadings and how they are framed in this case, the Court takes very
seriously the very specific language used in each of these allegations.
“As I alluded to previously, the J.H. case states that and instructs us
that in dependency litigation, the concept of due process focuses on the
right to notice and the right to be heard. Except for the (b) counts, the
allegations overreach to prove specifics as established in the evidence.
Therefore, I am finding the (b) count to be proven true as to both mother
and father. And I’m finding the (a) counts, the (e) counts, and the (i) counts
not to be proven.”
The court went on to advise the parents: “This child was seriously hurt and it’s only
because, quite frankly, that I was so specific and particular in assessing the specific
allegations made that I made the findings I made. You don’t get around the (b) count at
all. This happened on your watch. Do you two know how seriously your son is hurt? [¶]
This would have been an entirely different case if there had been a criminal referral in
this matter. These were felonious injuries to that child.”
D. Standard of Review
As the issue on appeal “turns on a failure of proof at trial,” the question on review
is “whether the evidence compels a finding in favor of the appellant as a matter of law.”
(In re I.W. (2009) 180 Cal.App.4th 1517, 1528, disapproved on other grounds by
Conservatorship of O.B. (2020) 9 Cal.5th 989, 1010, fn. 7.) The specific question is
“whether the appellant’s evidence was (1) ‘uncontradicted and unimpeached’ and (2) ‘of
such a character and weight as to leave no room for a judicial determination that it was
insufficient to support a finding.’ ” (Ibid.)
E. Analysis
The department argues the juvenile court was compelled by the evidence to find
the section 300, subdivision (e) allegations true. In the department’s view, the juvenile
15.
court explicitly found both that M.R. (1) was a child under five years of age and
(2) sustained severe physical abuse. The department contends that, having made these
findings, the juvenile court erroneously concluded that M.R. did not come within the
court’s jurisdiction under section 300, subdivision (e) because it did not properly consider
whether the parents “reasonably should have known” M.R. was being abused by the other
parent. That the parents “reasonably should have known” M.R. was being abused by the
other parent, the department argues, was a finding compelled by the evidence.
We do not find the court displayed any misunderstanding with regard to its option
of sustaining the allegations based on the fact the parents “reasonably should have
known” of the abuse. Rather, we agree with the parents that the department has
misinterpreted comments made by the court during its ruling, and that the court did not
find M.R’s injuries were caused by abuse and therefore did not reach the question of
whether they “reasonably should have known” the other was abusing M.R.
The department’s basis for contending the juvenile court found that M.R.’s
injuries were caused by abuse is the court’s comment that “[M.R.] has suffered severe
physical harm that fits th[e] definition within the statute.” We do not find this comment
represents a finding of abuse by the parents. Notably, the court used the word “harm”
rather than “abuse,” and the very next words the court said were “but the (e) counts
require proof of the parents inflicting abuse or ignoring the infliction of abuse by some
other person. There is no evidence of that.” In context, it appears that by saying the
injuries “fit[] th[e] definition within the statute,” the court was referring to the types of
injuries listed within section 300, subdivision (e), and was not making an explicit finding
regarding whether the parents inflicted abuse upon M.R. Rather, the court clearly stated
when discussing the section 300, subdivision (a) allegations: “The facts and evidence
don’t substantiate a finding of specific infliction of injuries by either party.” We presume
had the court been convinced by a preponderance of the evidence that one or both of the
parents had inflicted abuse upon M.R., as the department suggests, it would have found
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the section 300, subdivision (a) allegation true.6 As it is clear the court found the
evidence was not adequate to prove the parents inflicted abuse, it necessarily did not
reach the question of whether they reasonably should have known of the abuse.
The court’s conclusion the department had not proven the parents abused M.R.
was not unreasonable; the court acknowledged the department presented evidence that
the injuries were nonaccidental, but in weighing it against the other evidence, found the
department had not met its burden of proof. The court pointed to several pieces of
evidence that supported its finding that the department’s burden had not been met with
regard to whether the injuries were abusive in nature. First, the court discussed the
parents’ behavior throughout the proceedings and described them as “genuinely”
convinced there was a medical reason behind M.R.’s injuries. Second, the court noted
the maternal great-grandmother’s testimony regarding the parents’ visits and interactions
with M.R. “do not raise further suspicions or doubts about their caring for the child.”
Third, the court noted there had been no criminal referral despite law enforcement
initiating an investigation; the court raised this point again following explaining its
ruling, and suggested to the parents that the court would have sustained the abuse
allegations had there been a criminal referral. Though a criminal proceeding is not a
prerequisite to a true section 300, subdivision (e) finding, the court was not unreasonable
in giving weight to law enforcement’s decision not to follow up with the matter, as it
could infer from that decision that the facts did not rise to the level of “probable cause”
an officer would be required to have in order to arrest an individual for a crime. Probable
cause is “ ‘when the facts known to the arresting officer would persuade someone of
6 We note the court’s finding as to section 300, subdivision (a) is not challenged by
the department.
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“reasonable caution” that the person to be arrested has committed a crime.’ ” (People v.
Scott (2011) 52 Cal.4th 452, 474.)7
Further, Dr. Spieren’s opinion that the injuries were caused by nonaccidental
trauma, while likely enough to constitute substantial evidence to support a different order,
was not dispositive under the standard of I.W., which requires evidence to be
“ ‘unimpeached and uncontradicted’ ” and “ ‘of such a character and weight as to leave
no room for a judicial determination that it was insufficient to support a finding.’ ” (I.W.,
supra, 180 Cal.App.4th at p. 1528.) Dr. Spieren was subject to rigorous cross-
examination of the other types of causes for the types of injuries sustained and admitted
she was not an expert on determining whether an injury was accidental or nonaccidental.
Dr. Shen testified he only tested for osteogenesis imperfecta, and that current testing only
confirmed the disorder in 70 to 90 percent of cases. Further, the parents presented
evidence that they did not inflict the injuries through mother’s, Eloise’s, and Nicole’s
testimony.
We conclude the department’s focus on whether the parents “reasonably should
have known” of the abuse is misplaced, as the court did not find the evidence
substantiated that either parent inflicted abusive injuries onto M.R. and therefore did not
have to decide that either parent knew or should have known of the abuse by the other.
Still, assuming for the sake of the department’s argument, the court had found M.R. had
suffered abusive injuries, the evidence does not compel a finding that either parent
reasonably should have known of the abuse by the other parent. There was no evidence
that M.R. displayed symptoms that should have alerted the other parent to abuse, which
7 This standard is arguably lower than the preponderance of the evidence standard
required to make jurisdictional findings. “ ‘Finely tuned standards such as proof beyond
a reasonable doubt or by a preponderance of the evidence … have no place in the
[probable-cause] decision.’ [Citation.] All we have required is the kind of ‘fair
probability’ on which ‘reasonable and prudent [people,] not legal technicians, act.’ ”
(Florida v. Harris (2013) 568 U.S. 237, 243–244.)
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would have been key evidence to support an inference that each parent “reasonably
should have known” of the abuse by the other parent.
E.H., supra, 108 Cal.App.4th 659, relied on by the department on appeal and
below, is distinguishable. In E.H., an infant sustained multiple rib, wrist, femur, feet,
hands, and hip fractures at different stages of healing ranging from one to six weeks old.
(Id. at p. 661.) The child welfare department filed a dependency petition alleging the
minor came within the juvenile court’s jurisdiction under section 300, subdivisions (a),
(b), (e), (i), and (j). (E.H., at p. 661.) A doctor who examined the minor diagnosed her
with mild osteopenia, which is a slight lack of bone density, but concluded the condition
would not have caused the fractures that were likely nonaccidental. (Id. at pp. 661–662.)
The mother lived with several family members and denied that anyone in her household
would hurt the minor. (Id. at p. 662.) The court found the injuries were intentionally
inflicted and were caused by someone in the household, but there was no evidence
establishing who injured the minor or that anyone knew anything was happening to the
minor. The court sustained the petition as to section 300, subdivisions (a), (b), and (j),
but dismissed the allegations under subdivisions (e) and (i). (E.H., at p. 667.)
The department appealed, arguing the court erred in dismissing the section 300,
subdivision (e) allegation because there was no identified perpetrator. (E.H., supra,
108 Cal.App.4th at p. 667.) The appellate court reversed, finding “the only reasonable
conclusion which may be drawn from the evidence is that [the parents] reasonably should
have known [the minor] was being physically harmed by someone in the house … []since
they lived there[].” (Id. at p. 670.) The appellate court pointed out the evidence showed
the minor was “never alone,” and that the parents never followed up on the fact that the
minor cried whenever she was handled. (Ibid.) The appellate court found the juvenile
court erroneously concluded the statute required actual knowledge. (Ibid.)
Here, as discussed, the juvenile court did not make a finding the injuries were
inflicted by abuse and, unlike in E.H., there was no evidence that M.R. had any injuries
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that would have alerted the parents to abuse by the other. There is no evidence the
parents ignored symptoms like in E.H.; rather, they responded to any symptom M.R.
suffered by bringing him in for care. As the same court who decided E.H. later stated in
In re Roberto C. (2012) 209 Cal.App.4th 1241: “The recognition that circumstantial
evidence may support a finding despite the inability to identify the perpetrator does not,
however, lead to the conclusion that a court may presume both that the parents knew, or
should have known that the child was injured, and knew, or should have known who the
perpetrator was, to support a finding against the parents.” (Id. at p. 1255.)
Neither a finding that M.R.’s injuries were inflicted by abuse nor that the parents
reasonably should have known the other parent was abusing M.R. by way of them living
in the same home is compelled by the evidence on this record. We find no error.
As we have discussed, we do not reach the department’s argument that the court
erred by failing to apply the section 361.5, subdivision (b)(5) bypass provision because,
as the parents have since completed services and M.R. had been returned to them, there is
no practical relief we could grant, and the issue is now moot.
DISPOSITION
The juvenile court’s findings and orders at the combined jurisdiction/disposition
hearing are affirmed.
DE SANTOS, J.
WE CONCUR:
POOCHIGIAN, Acting P.J.
MEEHAN, J.
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