B.A. v. Superior Court CA4/2 (2023) · DecisionDepot
B.A. v. Superior Court CA4/2
California Court of Appeal Sep 12, 2023 No. E080951Unpublished
Filed 9/12/23 B.A. v. Superior Court CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
B.A. et al.,
Petitioners, E080951
v. (Super.Ct.No. SWJ2200291)
THE SUPERIOR COURT OF OPINION RIVERSIDE COUNTY,
Respondent;
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES,
Real Party in Interest.
ORIGINAL PROCEEDINGS; petitions for extraordinary writ. Kelly L. Hansen,
Judge. Petitions denied.
Donna P. Chirco for Petitioner B.A.
James W. Tritt for Petitioner R.A.
No appearance for Respondent.
1
Minh C. Tran, County Counsel, Teresa K.B. Beecham and Prabhath Shettigar,
Deputy County Counsel for Real Party in Interest.
Petitioners B.A. (Mother) and R.A. (Father; collectively, Parents) are the parents
of C.A. (male, born 2018), and A.A. (female, born 2022; collectively, the children).
Parents have filed petitions for extraordinary writ pursuant to California Rules of Court,
rule 8.452. For the reasons set forth post, we deny both writ petitions.
FACTUAL AND PROCEDURAL HISTORY
On June 28, 2022, the Riverside County Department of Public Social Services (the
Department) filed section 300 petitions on behalf of three-year-old C.A. and two-month-
old A.A. The Department alleged that the children came within section 300, subdivisions
(a), (b)(1), (e), and (j).
On the same date, the Department filed its detention report. In the report, a social
worker reported that the Department received an immediate response referral with
allegations of physical abuse and general neglect. On June 14, 2022, Parents noticed that
A.A. “was ‘twitching’ and ‘jolting.’ ” The next day, Mother took A.A. to Loma Linda
Medical Center—Murrieta Emergency Room. The doctors diagnosed A.A. with “mild
chronic jerking.” A.A. “was discharged home and the mother was told to follow up with
the child’s pediatrician.” On June 17, when Mother took A.A. to her pediatrician, the
doctor observed that A.A. “was twitching on the right side of her body, which included
her eye, arm and leg.” The pediatrician told Mother to take A.A. to the emergency room
immediately. Mother took A.A. to the emergency room where a CT scan revealed that
A.A. had “a minimally displaced left parietal skull fracture and a complex right parietal
2
skull fracture with slight bleeding. She did not have any visible injuries and was
described as alert and responsive.” A.A. was admitted to the pediatric intensive care unit
that same day. Mother stated that she did not know how the fractures could have
occurred because she was “a stay-at-home mother and the father ha[d] been on paternity
leave since [A.A.] was born.” Mother indicated that the only other people who
sometimes cared for the children were the maternal grandparents (MGPs).
The next day, on June 18, 2022, Parents told the social worker that the MGPs were
caring for the children on June 14, 2022, when they noticed that A.A.’s wrist was
“flickering.” The MGPs took a video of A.A.’s wrist for Parents; Parents took A.A. to
the hospital. Parents denied that anyone had dropped A.A. or had been rough with her.
They denied having any criminal history, substance abuse issues, domestic violence in
their relationship, or mental health concerns. Parents also denied using corporal
punishment. Following the interview, the social worker went to the family home to
complete a home assessment and to see C.A.; C.A. was found free of any visible bruises
or injuries.
On the same day, law enforcement interviewed Parents and MGPs. Law
enforcement did not suspect that MGPs caused the injuries to A.A. Parents provided
identical statements to the investigator. They agreed to drug test and to submit to
polygraphs. They also agreed to allow C.A. to remain with maternal relatives.
On June 20, 2022, Dr. Jacobson, a Loma Linda Forensic Pediatrician, told the
social worker that A.A.’s injuries were “unique in the severity of findings.” Dr. Jacobson
stated that A.A. “suffered a hit to her brain and she has a complex left and right skull
3
fracture. The skull fracture on the right [had] multiple breaks. [¶] Dr. Jacobson further
explained, [A.A.] suffered a hit to her brain and has a condition called Cystic
Encephalomalacia in which the brain has cavities, cysts and hemorrhaging, and parts of
her brain have died.” Although it was difficult to date the injuries, the doctor stated it
would be rare for A.A.’s injuries to have occurred at birth. Dr. Jacobson also stated that
it was “also unknown if the injury was caused from one episode or if there have been
ongoing episodes. However, the type of injuries that the child has are typically caused by
blunt trauma.”
The neurology department informed Parents that A.A. would have long-term
development consequences that could include developmental delays and cerebral palsy.
Moreover, the forensic team reported that A.A.’s “injuries are highly suspicious for
physical abuse although she does not have other injuries.”
On June 23, 2022, the Department obtained protective custody warrants and
placed the children into protective custody. C.A. was placed with the paternal
grandparents (PGPs) and A.A. remained in the hospital.
In the detention report, the social worked noted that on June 24, 2022, C.A. had a
forensic examination and the results were pending. A.A. had a “PHN assessment” and
was assessed “as medical fragile due to her need for further neurological observation and
her being prescribed seizure medication.”
At the detention hearing on June 29, 2022, the juvenile court found that a prima
facie showing had been made and detained the children from Parents. The court ordered
supervised visitation for Parents at a minimum of two hours twice a week.
4
On July 15, 2022, the juvenile court removed the children from the PGPs.1 A.A.
was placed in a medically fragile resource family home, and C.A. was to be placed in
foster care.
On July 18, 2022, the Department filed its jurisdiction and disposition report. In
the report, the Department asked the juvenile court to (1) find true the allegations in the
petition; (2) deny reunification services to parents under section 361.5, subdivision
(b)(6); (3) reduce parents’ visitation to one time per month; and (4) set a section 366.26
hearing.
The social worker reported that she spoke with Detective Martinez of the
Riverside County Sheriff’s Department. The detective “indicated there is an active and
open law enforcement investigation regarding the non-accidental trauma suspected
physical abuse of the infant, [A.A.].” Although Parents continued to state that there was
no plausible explanation for the injuries, “[t]hey have declined to complete the
polygraphs and have obtained counsel regarding the criminal matter. . . . The criminal
case remains active and there is reason to believe at this time that the perpetrators that
caused the injuries to [A.A.] are the parents.”
The Department received a forensic medical examination report completed by Dr.
Jacobson on July 13, 2022. The social worker summarized the medical report findings:
“1. Right complex, compound parietal skull fractures which are diastatic and extend to
the sagittal, coronal and occipital sutures. Left parietal skull fracture extending laterally
1 A.A. was placed with PGPs when she was released from the hospital on June 29, 2022.
5
from the sagittal suture with mild biparietal scalp swelling near the vertex. 2. Evolving
intraparenchymal hemorrhages along the bilateral frontal and parietal cortex with
probably cystic encephalomalacia. Additional small hemorrhages noted along bilateral
cerebellum. Probable small foci of extra- axial hemorrhage along tentorium, bilateral
frontal and right temporal lobes. 3. Normocytic Anemia.”
The social worker summarized medical opinions: “ ‘[A.A.] is a non-mobile infant
who presents with head injury as evidenced by complex bilateral skull fractures,
intraparenchymal hemorrhage with cystic encephalomalacia, hemorrhage along bilateral
cerebellum, extra-axial hemorrhage along the tentorium, bilateral frontal, and right
temporal lobe, and anemia which is caused by blunt force trauma to the head with
acceleration- deceleration forces. There is no history of trauma being provided. At this
time, these findings, in the absence of a major reported trauma, are most consistent with
abusive head trauma. [A.A.] will need continual re-assessment to determine full
prognosis and early intervention services’.”
The social worker reported that A.A.’s seizure-like activity was first reported by
the MGPs on June 14, 2022. A.A. was taking medication for seizures. Parents continued
to deny any trauma to A.A.
On June 24, 2022, C.A. had a forensic examination. There were no physical
findings related to abuse. However, prior physical abuse could neither be confirmed nor
excluded. The Department reported that exposure “to violence, including abuse and
neglect of a sibling, is asso[cia]ted with psychological harm to a child and constitutes
neglect for [C.A.].”
6
Parents visited the children together with no reported concerns by the PGPs. On
June 29, 2022, the Department provided Parents with referrals to “Core Services.”
In the jurisdiction/disposition report, the Department requested that the juvenile
court deny services to parents under section 361.5, subdivision (b)(6), because A.A. was
a victim of severe physical abuse, Parents have no plausible explanations regarding how
the injuries occurred, the forensic medical doctor stated that A.A. suffered a “hit to her
brain,” and A.A. had a complex left and right skull fracture. Moreover, “the type of
injuries that the child has are typically caused by blunt trauma.”
The social worker also noted that “[r]eunification services are not in the children’s
best interest,” because A.A. “requires 24/7 supervision and protection from the parents”
after sustaining “multiple head injuries and there is no indication by the treating doctors
that this is due to a known medical condition.”
In the jurisdiction/disposition report, the Department attached the “Suspected
Child Physical Abuse and Neglect Examination” (CAN exam) for the children.
At the hearing on July 21, 2022, Parents requested a contested hearing.
The Department filed an addendum report on August 31, 2022. In this report, the
social worker noted that a multidisciplinary team met on behalf of A.A. The social
worker, a social services supervisor, Dr. Jacobson, a detective, and a deputy district
attorney were present.
Dr. Jacobson informed the multidisciplinary team that she spoke with Father. He
informed Dr. Jacobson that on June 12, 2022, the MGPs sent Father a video of A.A.’s
hand twitching; the video lasted 15 minutes. Father denied seeing any twitching. Parents
7
picked A.A. up that evening and observed her. They saw no further twitching. On June
13, 2022, Parents noticed some twitching in A.A.’s right hand which extended to the right
arm, chin, and eyebrow; it lasted 15 minutes. Parents called a nurse line and was advised
to take A.A. to the emergency room; Father complied. The hospital discharged A.A.
without taking any images of her. Later that day A.A. had another, shorter episode.
Father told Dr. Jacobson that he thought A.A.’s condition was improving. On June 14,
2022, the twitching increased in frequency. When A.A. was seen by a pediatrician the
following day, the doctor advised Parents to take A.A. to the emergency room.
Father denied any trauma or “any changes in behavior” for A.A: “No increase in
fussiness, no lethargy, no change in the amount of formula intake, no vomiting, no marks,
and no bruises.” Father told the doctor that A.A. “appeared to be ‘a little needier than he
remembers their first child.’ ”
Father also reported social history information to Dr. Jacobson. Parents have been
married since 2017. A.A. was in the NICU upon birth because she needed phototherapy
due to her high bilirubin levels. A.A. was discharged on May 3, 2022, and a pediatrician
followed up on May 5, 2022, for a well-child exam and jaundice. A.A. was in the
hospital on May 5 and 6 for further phototherapy. A.A. was seen by her pediatrician on
May 9 and 16, 2022. She was not seen by another provider until June 15, 2022, for the
twitching episodes.
Dr. Jacobson next presented the medical findings, which included: “3D
reconstruction of a head CT— Complex skull fracture, ‘it’s significant’. The skull
fracture is on both the left and right side of the skull. (Attachment A). Brain findings:
8
[A.A.] had Evolving Intraparenchymal Hemorrhages. (Attachment B). The dark shaded
areas are hemorrhages and/or evolving.” According to the doctor, “this was ‘more of the
results of injury to the brain as oppose[d] to the initial insult’.”
The doctor went on to present that the CT scan of A.A. facing forward showed
“the hemorrhage and brain cavities called Probable Cystic Encephalomalacia. This is the
‘result of damage to the brain’[,]” and the MRI of the brain showed “ ‘extensive brain
damage.’ ” According to Dr. Jacobson, “skull fractures are hard to date; they don’ t heal
like other bones of the body heal. She stated, ‘looking at the brain findings help me
know this was not super recent’.” The doctor stated that “[a]lthough no exact date/time
could be determined,” “ ‘it very well may have been more than one thing and ongoing.’ ”
Dr. Jacobson stated that the “findings and absence of a major reported trauma are
most consistent with abusive head trauma.” She went on to state that “these injuries are
not injuries that are sustained during birth. . . . [S]kull fractures are rare to occur during
birth. . . . [W]hen they do occur, they are simple skull fractures, ‘they are not anything
near the complexity of [A.A.’s] skull[] fractures and there is often assistance (vacuum,
forceps, etc.).’ ” The doctor noted that A.A. had good Apgar scores that let her know that
the child “came out looking well and both parents denied assistance was needed.”
“On the repeat skeletal survey (completed on July 18, 2022, at Loma Linda
Children' s Hospital in Loma Linda), the skull fractures (right and left) were present but
no other fractures were seen. Per Dr. Jacobson, the seizures are a result of the injury but
its ‘hard to say if it was one impact, multiple impacts, one impact and shaking[.]’” The
doctor stated, “ ‘we know we have blunt force trauma because we have skull fractures.’
9
[And, f]urther, in that process ‘there was acceleration, deceleration of the brain and the
skull which cause[d] the bleeding.’ The seizures and low hemoglobin are consequences
of the injury. [A.A.] did not have any indication of any other bleeding ongoing.” The
doctor stated that although babies are resilient, “ ‘when you damage the brain that does
not come back.’ ” The doctor opined that the extensive damage to A.A.’s “brain could
result in cerebral palsy or movement disorder, which will be most noticeable when [A.A.]
starts growing and developing. [A.A.] is at high risk of having disabilities.”
Law enforcement indicated that the investigation was ongoing but “they have
evidence of what appears to be marital discord between the parents, frustration parenting,
and some self-disclosures of potential injuries to the infant, [A.A.].” |
A.A.’s foster parent reported that A.A. did not track objects visually or with head
rotation. A.A.’s pediatrician noted that A.A. did not smile responsively. A.A.’s medical
records revealed no indication that A.A. had ongoing medical conditions that could have
caused her recent injuries. A.A.’s delivery discharge reports indicated that she was
discharged with jaundice, which required phototherapy anemia.
C.A.’s caregivers reported that he was shy and nonverbal. C.A., however, was
comfortable with Parents, speaking openly and playing with them.
Both parents visited the children. Parents were happy to visit and consistent in
attending. The maternal aunt reported that parents brought toys, art activities, and food
for their visits with C.A., and were engaged throughout the visit.
10
The social worker reported that Parents started services with “SafeCare.” By
August 23, 2022, Parents completed one third of their services. Moreover, while in foster
care, A.A. did not sustain additional injuries.
At the pretrial hearing on September 5, 2022, Mother’s and Father’s attorneys
requested a continuance for discovery, which the court granted. The court, however,
denied Mother’s request for extended visits with C.A.
On October 14, 2022, the Department filed an addendum report. In the report, the
social worker provided that on August 26, 2022, A.A. had a crania ultrasound. “The
results were received and findings were, ‘There is bilateral frontoparietal
encephalomalacia with residual hemorrhagic products and fluid filled dilated cavities
without communication with the lateral ventricles with mild mass effect on the bilateral
lateral ventricles which are not enlarged. The 3rd ventricle is normal in appearance. The
4th ventricle is normal. The corpus callosum is intact. The visualized cerebellum
appears ‘normal.’ Impressions were ‘Encephalomalacia of the bilateral frontoparietal
lobes with residual hemorrhagic products and fluid filled dilated cavities with mild mass
effect on the non-enlarged bilateral lateral ventricles.’ ”
In October 2022, the Murrieta Police Department investigator reported that he sent
his completed report to the district attorney’s office for criminal charges to be filed for
both parents, for child neglect and physical abuse.
At the continued pretrial hearing on October 19, 2022, counsel for parents
requested a continuance to review subpoenaed records. The court continued the hearing
11
to December 6, 2022. The court denied the request for additional visitation and ordered
sibling visitation two times per month for up to one hour.
On December 1, 2022, the Department filed an addendum report wherein the
social worker reported that A.A. had ongoing episodes of crying and screaming. The
neurologist believed this behavior may be episodes of “neurostorming,” which can cause
pain and discomfort. A.A. required constant nurturing and stimulation. She also required
being held at all times or she would scream for long periods of time. The caregivers
stated that A.A. was a very “high demand” baby.”
On November 16, 2022, Dr. Pinchon, a neurologist, examined A.A. According to
the doctor, “it is reported that [A.A.] wakes up numerous times during the night and will
scream. She is inconsolable and will be given a bottle, but [she] usually does not take it.
[A.A.] will also grab at her hair. The child sometimes has ‘quick bilateral arm extension
that happens randomly throughout the day.’ . . . It was previously noted that [A.A.] has
‘mild irritability consistent with post-traumatic encephalopathy.’ ”
The social worker reported that A.A. “had made some improvements to include,
smiling and giggling. She does continue to have stiffness, but this has improved. [A.A.]
eats well and has rolled over and grabs at items. She reportedly has head control during
tummy time.”
When C.A. was initially placed with his caregivers, he was selectively mute. He
now speaks freely and bonded with his caregivers. The caregivers reported that C.A. was
flourishing in their home, had adjusted well to his preschool, and appeared happy and
social with other children. There were no reported behavioral concerns.
12
On November 14, 2022, the Riverside County District Attorney filed charges
against Parents for the abuse inflicted on A.A. under Penal Code section 273a,
subdivision (a), (felony willful child cruelty), with several enhancements. The
warrant/arraignment hearing was set for December 2, 2022.
Parents continued to visit twice a week. C.A. had tantrums during the visits if he
did not get what he wanted. After the visits, C.A. seemed to “ ‘shut down.’ ” He did not
exhibit this type of behavior with his foster parents. The foster parents supervised A.A.’s
visits with Parents at the Department’s office. The interaction was appropriate.
Although sibling visits occurred, the interaction between C.A. and A.A. was minimal.
Parents completed two parenting programs and an anger management program.
Father was unable to attend individual counseling due to his work schedule.
On December 6, 2022, the juvenile court continued the pretrial hearing for a
month to further investigate the allegations, subpoena records, and obtain letters from
experts. The court also set the contested jurisdictional hearings.
On December 27, 2022, the Department filed a pretrial addendum report. In the
report, the social worker provided that she visited A.A.’s foster home. She observed that
A.A. “required the caregivers to hold her constantly and seemed soothed by this. When
they walked away or went out of her sight, she would scream and cry, very inconsolable
unless held.” The social worker also noted that there was an EEG scheduled in January
2023 to assess the child’s “startle” reflex. A.A.’s pediatric neurosurgeon reported that the
child’s injuries will cause cognitive deficits; the injury to her frontal lobes can cause
deficits in attention, executive functioning, planning, and impulse control. The doctor,
13
however, noted that A.A. had made significant developmental progress with gross motor
and other skills.
The addendum report stated that Parents continued to visit the children. At times,
C.A. threw fits when the visits began and ended. Parents were arraigned in criminal court
with a felony settlement conference date set for February 21, 2023.
On January 5, 2023, Mother filed a “neurology-pediatric report” prepared by Dr.
Ronald Gabriel. In the report, Dr. Gabriel provided an analysis of the causation and
timing of causation followed by a preliminary damage profile. Dr. Gabriel also reviewed
the records regarding Mother’s labor and delivery and A.A.’s medical records through
August 17, 2022. Furthermore, Dr. Gabriel reviewed four videos, four still photos, and
all imaging. Dr. Gabriel concluded that A.A.’s current condition was a result of severe
mechanical traumatic brain injury due to severe crushing of her cranium during the
delivery process, compounded by inappropriate handling of A.A. during cleansing in the
delivery room.
In his report, Dr. Gabriel stated that although “not recorded in the delivery notes,
but vividly demonstrated by a four-second video, there appeared to be both urgency and
panic in delivering this child. The delivering physician applied what was undoubtedly
tremendous manipulatory pressure on the baby’s head with both hands and fingers . . .
unquestionably resulted in a crushed skull bilaterally.” He also stated that a second video
taken in the delivery room revealed “rough handling by the nursing staff and at one point
allowed the baby’s head to fall without restraint and with gravity onto a thin mat with
what appeared to be a bounce. This struck the right side of her cranium.” Dr. Gabriel
14
went on to state that “Apgar scores reflect brain stem function and the superficial aspects
of the cerebral hemispheres are neurologically silent at this age.” The doctor noted that
before the seizure on June 15, 2022, A.A. developed severe anemia as a consequence of
intracranial hemorrhaging, complicated by an “ABO incompatibility,”2 contributing to
hemolytic anemia. This accounted for the severe jaundice, which was a consequence of
both red blood cell breakdown from the ABO incompatibility and the breakdown from
the major intracranial hemorrhaging that occurred following delivery.
Dr. Gabriel went on to state that the “initial CAT scan on admission, 06-17-22 is
illuminating.” The scan revealed “massive encephalomalacia, or cystic cavitation, of
both frontal lobes and occipital lobes, which reflect pathology at least four to six weeks
before the study was performed.” The scan also revealed “multi-compartmental and
multi-focal hemorrhaging of various ages, beginning with blood at least 10-14 days old to
. . . at least four weeks in age.” The doctor also noted that the fractures revealed a
significant degree of healing. Therefore, Dr. Gabriel concluded that the initial CAT scan
was compatible with and diagnostic for the events of April 29, 2022, the time of the
delivery.
At the pretrial hearing on January 5, 2023, the juvenile court confirmed the trial
date and granted Mother’s request to allow Dr. Gabriel to testify remotely.
2 “ABO incompatibility” is when, because of an incompatibility between the mother’s and baby’s blood, the baby’s red blood cells are attacked in the womb by antibodies from the mother. (https://www.ncbi.nlm.nih.gov/books/NBK2266/ [as of September 8, 2023].)
15
At the contested jurisdictional hearing on February 6, 2023, the Department
submitted on its reports and recommendations. Mother called social worker Stacey
Vasquez to testify.
Vasquez testified that she had been assigned to this case since October 2022. She
stated that although she had reviewed Dr. Gabriel’s report, her recommendation did not
change. She agreed with Dr. Jacobson’s recommendations. Based on the statements
made by the doctors that examined A.A., including Dr. Jacobson, Vasquez concluded that
the skull fractures resulted from an intentional act, not a birth injury or negligence by
hospital staff.
Vasquez went on to testify that A.A. was with her parents when she was injured.
She believed that Mother or Father, or both of them, were involved in the abuse or aware
of what occurred. Vasquez believed that Mother was also responsible for A.A.’s injuries.
She recommended reducing visitation because Parents were not reunifying with the
children. Moreover, C.A. had difficulty with visitations. She believed C.A. was very
confused. Vasquez did not find visitation to be beneficial to either child even though
Mother’s visits generally went well.
On cross-examination, Vasquez testified that she had been a social worker for
about 18 years. As to the placement of the children, Vasquez reported that C.A. was
placed with a maternal cousin, and A.A. was placed in a medically fragile home. A.A.’s
foster mother was a nurse. Vasquez stated that if the children were placed with MGPs
they would not limit contact with Mother. She also stated that MGPs were willing to
adopt the children. Vasquez testified that except for Dr. Gabriel’s report, there was no
16
indication that A.A. suffered injuries at the time of her birth. Parents never informed
anyone that A.A. suffered birth-related injuries.
Mother testified that when she was 23 weeks pregnant, she had medical
complications with spontaneous bleeding. Mother stated that she had preeclampsia and
high blood pressure during delivery. A.A. was born prematurely with her umbilical cord
around her neck, and had ABO incompatibility and jaundice. After being hospitalized for
four days, A.A. went home on May 3. However, just two days later, Parents returned to
the hospital with A.A. due to her jaundice. A.A. was discharged the day after, on May 6,
2022. Between May 6 to June 4, 2022, Father, MGPs, and Mother cared for A.A.
MGPs cared for A.A. on three occasions, for as long as four hours. Mother took
A.A. to the doctor for wellness and jaundice follow-up appointments for the first six
weeks of A.A.’s life. MGPs noticed A.A. twitching for the first time on June 14, and
Mother noticed it for the first time on June 15.3
Mother testified that she noticed A.A.’s wrist twisting on June 15, 2022. Father
took A.A. to the emergency room and returned the same day. The doctor told Father that
it was a typical development in a newborn. When they took A.A. for a follow-up
appointment, the pediatrician was concerned that A.A. may have a neurologic issue.
During the first six weeks, Mother stated that A.A. would sometimes cry almost every
hour and wanted to be held.
3 At this time, Mother’s testimony was interrupted to allow for the testimony of Dr. Gabriel. After the doctor’s testimony concluded, Mother continued her testimony.
17
Mother testified that she also had preeclampsia when she was delivering A.A., and
she was born with jaundice. Mother testified that Father never hit her, threw anything in
anger, and that she never threw anything at Father or hit him in anger. She admitted that
they “screamed” at each other in texts. They argued about unequal parenting roles but
they never used physical discipline on the children. She never hit A.A.’s head, and never
saw anyone hit her.
On cross-examination, Mother testified that she remembered something going
wrong at A.A.’s birth. She heard the doctor saying that she was “really small down there,
and so she had to put her hands in there.” At that time, the doctor noted that A.A.’s
umbilical cord was wrapped about her neck.
A few hours after A.A.’s birth, a nurse took A.A. to the NICU because she had
ABO incompatibility and jaundice. Mother did not see anyone mistreat A.A. Father told
Mother that on June 17, 2022, Dr. Jacobson told Father that A.A.’s injuries could have
been caused at birth.
During the time when A.A. was discharged on May 3, 2022, and the 42 days
before A.A.’s seizure episode, Mother did not have any concerns that something went
wrong at delivery. Mother expressed concerns that minor was sleepy, grunted, and had
difficulty with feeding. Father asked the pediatrician about A.A.’s “fussiness and the
grunting and her crying.” Father was on paternity leave during this time. Parents took
turns caring for A.A. at night. Although A.A. sucked very slowly and took a long time to
feed, she was gaining weight. Mother said she did not injure A.A. in any way. Father
was also a primary caretaker of A.A. during the time after discharge. He did not tell
18
Mother that he had hurt A.A., except for the time when he dropped a cell phone on
A.A.’s cheek.
Mother’s cross-examination continued on March 3, 2023. Mother testified that
she never had concerns about Father’s parenting skills. Parents texted about their marital
issues and would swear at each other in texts. On multiple occasions, Mother asked
Father for a divorce. She was disappointed in Father because “he would always say that
we would talk about our issues, but it never was that, or that he would work on things,
but it never happened.” During the time from A.A.’s birth to June 15, 2022, Mother
stated that she and Father were in a good place “for the most part” and always put their
kids first. Mother did not tell law enforcement about Father dropping the phone on
A.A.’s cheek.
Mother confirmed that Father dropped the phone on A.A.’s cheek on June 8, 2022.
Mother did not show the picture of A.A.’s bruise to anyone.
On redirect examination, Mother testified that she printed out divorce papers but
never filed them. In hindsight, she did not think it was a good idea to threaten Father
with divorce. Mother talked to Father about their issues—such as why he felt she was
not doing enough even though she was a full-time student and parenting the children.
On recross-examination, Mother testified that Father had been dishonest before.
He lied to Mother for four years that his parents knew about Parents’ marriage, which she
believed to be a “pretty big thing to lie” about. Father lied about his religious
background. Also his parents had not known that she was pregnant with C.A. Father
19
also told Mother that his parents did not attend their wedding because his mother did not
like “windy roads.”
When the trial court questioned Mother, she stated that A.A. saw a medical
professional three or four times between May 3 and June 14, 2022. Moreover, before
A.A. was discharged from the NICU, A.A. had to participate in a car seat test where she
was placed in a car seat with monitors to determine how long she would be able to stay in
her seat. The test lasted over 30 minutes; A.A. fell asleep during the test. While at the
hospital, Mother fed A.A. by cupping her head in her arm, under her ears, while
supporting her neck.
Mother’s counsel called Dr. Gabriel to the stand. Although Mother’s counsel
requested that Dr. Gabriel be certified as an expert in pediatric neurology and
neuroimaging. The court stated: “I won’t certify him, but I’ll designate him as an
expert.”
Dr. Gabriel testified that he was hired by Mother’s counsel. He did not interview
Parents or talk to any of the social workers. His opinion was based exclusively on the
patient care records. A.A. demonstrated “a black and blue hip, forehead, and head. Also
. . . vertex peaking.” He testified that from two photographs at the time of delivery, he
observed “peaking of the top of the head, which . . . represents molding and, under the
circumstances, knowing everything else that I know, probably blood underneath the scalp
producing that kind of contour.” He also saw an abnormal positioning with fisting and a
20
clonic4 neck reflex indicating neurological abnormalities. Dr. Gabriel stated that his
experience led him to conclude a certain position of A.A.’s hand was an abnormal
neurological issue. Moreover, A.A. developed abnormal elevated bilirubin-producing
jaundice and hemolytic anemia due to ABO incompatibility. The doctor suspected that
A.A. may have kernicterus (brain damage). Dr. Gabriel also saw that A.A. had skull
fractures. He opined that the fractures occurred during birth and shortly thereafter. It
“was a double-impact jeopardy. One was the manipulation by the obstetrical hands when
the child was being delivered, what appears to an urgent, almost panic basis. . . . [¶] And
then follow that, based upon video, allowing the baby’s head to drop with gravity without
restraint and what appears to be a bounce to the right side of the brain, the side of the
complex fractures. The doctor went on to testify to the specifics of his findings.
On cross-examination, Dr. Gabriel testified that there was no evidence that A.A.
suffered any other type of head trauma while Parents cared for her. He stated: “There’s
no way to measure and give you a number in terms of force gravity. But when you look
at the four-second video, you’ll see a tremendous amount of pressure exerted on the
baby’s head by the fingers and hands of the delivery doctor. It’s a qualitative
observation, not a quantitative observation.” The doctor noted that A.A. did not suffer
injuries to her neck even though the doctor’s hand “vigorously manipulated the infant’s
head.”
4 “Rhythmical, large amplitude, relatively slow jerking of a portion of the body.”
21
Dr. Gabriel went on to testify that a normal Apgar score is standard in cases like
A.A.’s case. When asked if the Apgar score should have been affected after a child’s
“skull was just crushed,” the doctor replied: “No, not necessarily.” The doctor also stated
that a child could suffer bilateral skull fractures and not show any symptoms for six to
eight weeks.
Dr. Gabriel agreed with Dr. Jacobson’s assessment that A.A.’s injury was caused
by “blunt-force trauma” and an impact injury. He, however, disagreed that there was
evidence of “acceleration/deceleration injury on [the] MRI. [¶] As a matter of fact, so
much of the brain has been damaged, you really could not tell if there was any axonal
disruption. This is not an acceleration/deceleration type of injury.”
Dr. Gabriel reiterated that he was able to date A.A.’s skull fractures. He observed
that the fractures were in an advanced healing process and did not think Parents could
have caused the trauma. He stated that Loma Linda should not have discharged A.A. on
May 3, 2022, and again on May 6, 2022, given her medical condition.
Dr. Gabriel admitted that he had not delivered a baby since 1971; he was not a
specialist in labor and delivery; he did not know the rate of preeclampsia in pregnancies;
or how often Pitocin is administered during delivery. He also stated that the labor and
delivery notes did not indicate any sort of crushing of the skull or gravitational fall when
A.A. was being cleaned. Moreover, Dr. Gabriel stated that jaundice is a common
occurrence in newborns.
22
At the end of this cross-examination session by the children’s counsel, Dr. Gabriel
confirmed that he was able to date A.A.’s skull fracture to April 29, 2022, the day she
was born.
During redirect examination, Dr. Gabriel testified that he dated the skull injuries to
A.A. based on the two videos taken at birth, the imaging on June 17, 2022, and the photo
of discoloration of the head. The videos and photographs were not part of the medical
records.
When the court examined Dr. Gabriel, he testified that the last time he was present
for the birth of a child was in a clinical setting in 1971, with a few exceptions, and the
last time he delivered an infant was in 1964. He testified that A.A.’s head was
“slammed” into the mat by force of gravity. He, however, did not see any descriptions of
extensive bruising to A.A.’s scalp in the medical reports.
MGM testified. She stated that she wanted placement of the children, and was
willing to accept the court’s potential finding that one or both parents caused A.A.’s
injuries, even if she did not believe that either parent could have caused any harm to A.A.
After MGM’s testimony, the court announced it was breaking for the weekend, to resume
the following Monday, March 13, 2023.
On March 7, 2023, C.A.’s caregivers filed a caregiver information form. They
reported that C.A. was thriving in the caregivers’ home. On March 9, 2023, A.A.’s
caregivers also filed a caregiver information sheet. The juvenile court, however, did not
consider the form because Mother’s counsel had not seen or read the document.
23
At the continued hearing on March 13, 2023, Dr. Jacobson testified as a rebuttal
witness on behalf of the Department. The juvenile court deemed Dr. Jacobson a qualified
expert in child abuse pediatrics.
Dr. Jacobson testified that her job entailed reviewing medical charts, gathering
history, performing a physical exam, making recommendations on any diagnostic studies,
interpreting diagnostic studies, and forming an opinion and making recommendations for
the continued care of a patient. A.A.’s primary care team asked Dr. Jacobson to consult
on A.A.’s case due to concerns for physical abuse and/or neglect. In A.A.’s case, other
specialists were involved in her care, including the pediatric ICU team, neurology,
neurosurgery, and ophthalmology.
Dr. Jacobson saw A.A. on June 18, 2022; the infant was seven weeks old. Dr.
Jacobson reviewed Loma Linda’s electronic health record, some pediatric primary care
notes, and interviewed Father. The doctor did not interview Mother because she was not
in the room with A.A. when Dr. Jacobson was there. The CT scan showed bilateral
complex parietal skull fractures, and intracranially. Moreover, there were findings of
hemorrhage or blood throughout, as well as cystic cavities concerning for
encephalomalacia, which are holes in the brain where the brain has died. There were also
multiple types of hemorrhage in A.A.’s brain. Furthermore, the MRI scans showed more
detail about the actual injury to the brain itself. Encephalomalacia is the result of some
traumatic insult to the brain.
Dr. Jacobson testified that she found A.A.’s injuries to be most consistent with
significant abusive head trauma, as seen in rollover motor vehicle accidents where a child
24
is unrestrained. Father provided the doctor with no history of trauma or explanation for
the infant’s injuries. The doctor stated that the birthing process could not explain A.A.’s
injuries. Dr. Jacobson did not tell anyone that A.A.’s injury could have possibly occurred
at birth. She reviewed Dr. Gabriel’s report and the four videos and photographs
provided. Dr. Jacobson did not see anything unusual in the doctor’s manipulation of
A.A., the head, or the cord, that would lead to cause fractures in A.A.’s skull. Dr.
Jacobson also stated that she did not see anything unusual or concerning in the video of
the nursing staff cleaning A.A. on a mat. She did not see any hospital staff drop or
mishandle A.A. Additionally, Dr. Jacobson did not see anything that would cause the
amount of force necessary to result in the crushing of A.A.’s skull. Moreover, Dr.
Jacobson testified that she did not see anything unusual in the photographs consistent
with the findings seen in the CT or MRI scans.
Dr. Jacobson testified that although rare, it was possible for an infant to suffer
skull fractures during birth. However, such fractures are simple fractures, not complex
ones like A.A.’s. The simple fractures are usually asymptomatic and heal without any
symptoms. Moreover, if the simple fractures cause symptoms in a baby, it would happen
when the injury first occurred. Symptoms could be low Apgar scores. Here, A.A. did
not have any symptoms at birth and had normal Apgar scores.
Dr. Jacobson was unable to determine a specific date as to when A.A. suffered her
injuries. She, however, noted that encephalomalacia is a more chronic finding and in
infants, it can be one and a half to two weeks. Here, on the head CT scan, there was scalp
swelling, which is one indicator that let her know that the swelling was more recent—a
25
week or so old. She stated that skull bones are difficult to date because the bones do not
heal by forming callouses.
On cross-examination, Dr. Jacobson testified that physicians at Loma Linda
Hospital document daily progress or changes in a patient. In the types of injuries A.A.
suffered, the symptoms would have surfaced immediately after occurrence. Symptoms
could include feeding difficulties, seizure-like activity, and breathing issues. Father did
not disclose that he had dropped his cell phone on the child. A.A.’s lab results indicated
that she had anemia and elevated liver enzymes. A.A.’s skull injures were not caused by
jaundice and anemia. Moreover, A.A.’s eye exam was normal.
Dr. Jacobson testified that she had never delivered a baby, but had assisted in
deliveries as a medical student. On June 18, 2022, she conducted a physical exam on
A.A. and examined her during a follow-up visit while A.A. was in foster care. Dr.
Jacobson did not know how much force the doctor used while Mother was giving birth,
but she did not notice anything unusual from the twisting of A.A.’s head during delivery.
Dr. Jacobson went on to state that encephalomalacia could be caused by infection
or by trauma or the acceleration/deceleration forces, such as shaking. With A.A.’s
findings, the doctor stated that A.A. would have had immediate symptoms such as
lethargy, discomfort, pain, irritability, and difficulty sleeping. Medical professionals, as
well as caregivers, should have noticed the symptoms.
As to the four-second birthing video, Dr. Jacobson testified that the video did not
prove the delivery was rushed. Moreover, she stated that dropping a cell phone on a
baby’s cheek was not a direct cause of A.A.’s injuries, but could be related. She also
26
testified that A.A.’s skull fractures were not “due to birth injury.” When asked, “So
you’re saying with absolute medical certainty it’s not possible that the child suffered
skull fractures during the birthing process,” Dr. Jacobson stated: “I’m saying that it’s
very, very, very unlikely.”
Upon questioning by the court, Dr. Jacobson testified that skull fractures of A.A.’s
degree would cause pain to A.A. Although it was would be difficult to ascertain why an
infant would be crying, they could “expect increased fussiness, crying, some type of
symptoms.”
After Dr. Jacobson was excused, counsel presented their arguments to the court.
Thereafter, the juvenile found true all the section 300 petition allegations. The court
found there was no explanation that would explain the complex fractures to A.A.’s skull.
The evidence showed that A.A. was in the exclusive care of Parents from May 3 to June
17, except for about six hours when the MGPs cared for A.A. The court watched the
videos and found that the alleged slamming did not happen. Moreover, the court did not
see any indication that the obstetrician crushed A.A.’s skull while removing the umbilical
cord from around A.A.’s neck. The court rejected Dr. Gabriel’s testimony as
unreasonable and unsupported by the evidence.
The court went on to state that the Department was not required to prove by clear
and convincing evidence the “ID of the perpetrator.” The court found that the evidence
“strongly suggests that father is the one that committed by abuse of this child.”
The court found that C.A. came within section 300, subdivisions (b)(1), and (j),
and A.A. came within section 300 subdivisions (a), (b)(1), and (3). The court adjudged
27
the children dependents of the court, removed physical custody from Parents, and denied
family services to Mother and Father under section 361.5, subdivision (b)(6). Thereafter,
the court set a section 366.26 hearing, reduced Parents’ supervised visitation to one time
a week, and found that supporting reunification with Parents was not in the best interests
of the children.
As to the bypass provision, the juvenile court stated that it had “identified the
parents as the perpetrators.” For Mother, the court found that mother failed “to take the
appropriate action to protect the child when father [was] the perpetrator.” The court
stated that Mother “would have been aware of the injuries to the child in light of the fact
that the expert testimony by Dr. Jacobson said there would have been immediate onset of
symptomology for this child; that the time frame for the child being injured is consistent
with the—that those injuries occurred after the last pediatric visitation or appointment;
and that the child would have been in the sole care and custody of mother and father
during that time period. [¶] And just the severe nature of these injuries—the skull
fracture being complex and on both sides of the child’s head, being consistent with the
fact this child—these injuries are only seen in cases where the child is thrown during a
rollover accident and whose head impacts with the ground or the road causing these level
of injuries, this was not an accidental injury. This was inflicted. It was abusive. And the
Court believes that father is the perpetrator of that, in that event.”
On March 22, 2023, Mother filed a notice of intent to file writ petition; Father
filed his writ petition notice on March 23, 2023.
28
DISCUSSION
A. THE JUVENILE COURT PROPERLY APPLIED SECTION 355.1 AND
SUBSTANTIAL EVIDENCE SUPPORTS THE COURT’S
JURISDICTIONAL FINDINGS
Father contends that “the court erred when it applied section 355.1 because notice
was not proper; yet, even if notice were proper, parents rebutted the presumption and thus
there was not substantial evidence the [Department] met its burden.”
1. LEGAL BACKGROUND
Section 355.1, subdivision (a) provides: “(a) Where the court finds, based upon
competent professional evidence, that an injury, injuries, or detrimental condition
sustained by a minor is of a nature as would ordinarily not be sustained except as the
result of the unreasonable or neglectful acts or omissions of either parent, the guardian, or
other person who has the care or custody of the minor, that finding shall be prima facie
evidence that the minor is a person described by subdivision (a), (b), or (d) of Section
300.”
“Once the petitioner establishes a prima facie case under section 355.1 the burden
of producing evidence ‘shifts to the parents the obligation of raising an issue as to the
actual cause of the injury or the fitness of the home.’ [Citation.] ‘The effect of a
presumption affecting the burden of producing evidence is to require the trier of fact to
assume the existence of the presumed fact unless and until evidence is introduced which
would support a finding of its nonexistence, in which case the trier of fact shall determine
29
the existence or nonexistence of the presumed fact from the evidence and without regard
to the presumption.’ ” (In re D.P. (2014) 225 Cal.App.4th 898, 905.)
2. MOTHER AND FATHER HAD NOTICE
In support of his argument that the Department failed to “disclose[] it sought
application of Section 355.1,” Father cites In re G.Z. (2022) 85 Cal.App.5th 857. G.Z.
does not support Father’s argument. In G.Z., the agency “never plead, alleged, or argued
the provisions of section 355.1 nor notified it would rely on its provisions.” (Id. at p.
884.)
Unlike G.Z., the section 300 allegations in this case borrowed language from
section 355.1; the petitions alleged that “[w]hile in the care and custody of the mother
and father, the child . . . has been physically abused,” and that the child’s sibling “has
been abused and/or neglected as defined by W&IC 300(a) and (e).” These “allegations
adequately gave [both parents] notice that the Department was relying, at least in part, on
the presumption created by section 355.1.” (In re D.P., supra, 225 Cal.App.5th at p.
905.)
In support of this notice given to Parents, at the contested jurisdictional hearing on
March 15, 2023, Mother’s counsel acknowledged that the Department was relying on
section 355.1: “County has alleged that 355.1 applies in this case in that the County
believes that the injuries sustained by the child [A.A.] would not have occurred but for
unreasonable or neglectful acts of Parents.” Thereafter, Mother’s counsel argued why
section 355.1 should not be applied. After Mother’s counsel concluded her argument,
Father’s counsel joined with Mother’s section 355.1 argument: “On behalf of Father, in
30
order to—in the spirit of judicial sufficiency, I’ll simply join in the majority of [Mother’s
counsel’s] arguments, specifically as to the 355.1 argument . . . . I believe these parents
are similarly situated in that regard, so I won’t waste valuable court time reiterating those
arguments; but I do believe that the same arguments apply to Father.” County counsel, in
its closing argument, also mentioned the application of section 355.1.
Based on the above, we find that Parents were given adequate notice.
3. SUBSTANTIAL EVIDENCE SUPPORTS THE COURT’S FINDING
Father argues that, even if notice were proper, “the court erred when it failed to
find the parents rebutted the presumption in Section 355.1 . . . . [O]nce Dr. Gabriel’s
testimony provided the quantum of evidence required to rebut the presumption in Section
355.1, it was the Agency’s burden to prove those facts. The only evidence before the
court supporting the Agency’s theory was Mother’s testimony Father dopped his cell
phone on A.A.’s cheek, leaving a ‘little bruise’ [citation], which Dr. Gabriel testified
could not have caused the injuries unless it affected both sides of A.A.’s head.” For the
reasons set forth post, we find that substantial evidence supports the court’s finding.
In reviewing a challenge to the sufficiency of the evidence supporting
jurisdictional findings and related dispositional orders, we “ ‘consider the entire record to
determine whether substantial evidence supports the juvenile court’s findings.’ ” (In re
G.Z., supra, 85 Cal.App.5th at p. 876; see also, In re I.J. (2013) 56 Cal.4th 766, 773.)
“Substantial evidence is evidence that is ‘reasonable, credible, and of solid value’; such
that a reasonable trier of fact could make such findings.” (In re Sheila B. (1993) 19
Cal.App.4th 187, 199.)
31
Under the substantial evidence standard “we review the record in the light most
favorable to the court’s determinations and draw all reasonable inferences from the
evidence to support the findings and orders.” (Kevin R. v. Superior Court (2010) 191
Cal.App.4th 676, 688-689.) “We do not reweigh the evidence or exercise independent
judgment, but merely determine if there are sufficient facts to support the findings of the
trial court.” (In re Matthew S. (1988) 201 Cal.App.3rd 315, 321.) “ ‘ [T]he trial court’s
ruling must be upheld if there is any basis in the record to sustain it.’ ” (In re J.E. (2020)
54 Cal.App.5th 309, 313-314, quoting People v. Marquez (1992) 1 Cal.4th 553, 578.)
In this case, Father argues that “Dr. Gabriel’s testimony provided the quantum of
evidence required to rebut the presumption in Section 355.1.” However, the juvenile
court did not find Dr. Gabriel to be credible and “reject[ed] Dr. Gabriel’s testimony as
unreasonable and unsupported by the evidence.” Therefore, Parents failed to provide
substantial evidence to rebut the presumption of section 355.1.
In support of his argument, Father also relies on In re Esmeralda B. (1992) 11
Cal.App.4th 1036 (Esmeralda B.). The case, however, does not support Father’s
argument.
In Esmeralda B., the social worker “was examined concerning her report, which
was received in evidence.” (Esmeralda B., supra, 11 Cal.App.5th at p. 1039. The social
worker investigated the incident by interviewing the minor and members of the minor’s
family. “[S]he stated that her investigation of Esmeralda and her family made her believe
there was nothing the parents should have done to prevent the injury from happening.
Further, she believed the parents would act appropriately to prevent such an incident
32
from happening in the future and, most significantly, could not think of any action the
parents had taken which was unreasonable or was neglectful to Esmeralda or her
siblings.” (Id. at p. 1040.) At the conclusion of the hearing, “the court discussed the
conflicting evidence concerning the physical cause of Esmeralda’s injury, whether molest
or accidental, and resolved it in favor of molest. However, the court did not point to any
evidence supporting a finding the molest, if it occurred, resulted from the parents’ failure
or inability to adequately supervise or protect her. Nor did the court make any such
finding, instead concluding ‘that [Esmeralda] needs the protection of the juvenile court
because of the actions of the parents subsequent to the injures.’ ” (Id. at p. 1043, fn.
omitted.) Therefore, the reviewing court found that “[t]here is no substantial support for
this conclusion.” (Ibid.)
The facts in this care are distinguishable from the facts in Esmeralda B. Unlike
the social worker’s report in Esmeralda B., the reports submitted in this case found
evidence of abuse and neglect by Parents. The social worker reported that A.A. suffered
significant multiple and serious injuries while she was in Parents’ care. Although
numerous doctors determined A.A.’s injuries to be non-accidental trauma, Parents failed
to provide an adequate explanation as to how A.A. sustained the injuries. Moreover,
when making its finding, the juvenile court thoroughly discussed its reasons for making
its finding and reiterated the evidence supporting that the abuse resulted from Parents’
failure to protect.
Furthermore, Father appears to be arguing that “[t]he only evidence before the
court supporting the Agency’s theory was Mother’s testimony Father dopped his cell
33
phone on A.A.’s cheek, leaving a ‘little bruise’ [citation], which Dr. Gabriel testified
could not have caused the injuries unless it affected both sides of A.A.’s head.” Father’s
argument is without merit.
As discussed in detail ante, medical records and numerous doctors provided
information that A.A. suffered multiple skull fractures while she was in Parents’ care.
Moreover, the fractures were consistent with abusive head trauma, caused by blunt force
with acceleration-deceleration forces. With regard to Dr. Gabriel’s testimony, as noted
above, the juvenile court did not find him to be credible. The court noted, “[i]n
evaluating the experts’ opinions, I looked at their knowledge, skill, experiences, training
and education, the reasons the experts gave for their opinions, and any facts or
information on which the experts relied in reaching their opinions.”
The court then stated: “And I’m going to start with Dr. Gabriel. Because at first
impressions, after looking at his CV, you would believe that he would be an expert on
which the Court could rely. And the fact that he is a court-appointed expert either in
Orange County or Los Angeles—I forgot which one right now—adds to his credibility.
His expertise in his field of study of pediatric neurology, top notch. And upon first
reading of his report, one would reasonably think, ‘Hmm, there’s something here. This is
a problem for the Department in establishing jurisdiction over . . . these children.’ [¶]
And I refer to Dr. Gabriel’s report. It’s been marked as Court’s Exhibit 7.”
The court then described Dr. Gabriel’s report and the language he used. The court
pointed out the doctor’s language describing the four-second video as showing “both
urgency and panic in delivering this child.” The juvenile court then went on and stated,
34
“[w]hen I first read that, I could only imagine what Dr. Gabriel described as ‘urgent’ and
panic.’ And he testified in court, under oath, that undoubtedly he saw panic in that
delivery doctor’s actions just by looking at the hands in that four-second video.”
The court also described page three of Dr. Gabriel’s report that “the skull
fractures resulted in linear on the left parietal plate and complex on the right parietal
plate, the lateral location where [A.A.’s] head slammed on the mat.’ And again in court,
Dr. Gabriel used the word ‘slammed’ in his testimony. Once again, the Court was very
concerned that such actions occurred during the birth of this child based on the doctor’s
representations in his report.
Thereafter, the court stated: “And then I watched the videos. And I've watched
them ten-plus times. I watched them after the doctor testified. I watched them a couple
of days ago, during the closing arguments, the first day of closing arguments. And Dr.
Gabriel’s representation in his reports, nowhere, in no way, are based on reality. There is
no indication [in] the reports that the doctor, while attempting to remove the umbilical
cord around [A.A.’s] head, crushed that baby’s skull. Not one indication that this Court
can see. [¶] . . . [¶] I then watched the video about the nurses cleaning the child and
when the head supposedly, quote, unquote, was slammed onto a table. It simply didn’t
happen. It’s not true.”
“So when I look at the testimony of Dr. Gabriel, which should have been very
helpful to this Court—and my frustration with Dr. Gabriel, if it came out in my
questioning of him or during his questioning by counsel, is because I could have seen
myself believing his testimony and wanting to believe that it was true. But the fact that
35
he stepped out of his role as an expert and, in this Court’s opinion, became an advocate
for a certain position, disqualified him as a credible witness. And so I reject Dr.
Gabriel’s testimony as unreasonable and unsupported by the evidence.”
Based on the evidence provided in detail ante, and the court’s finding that Dr.
Gabriel was not a credible witness and rejected his testimony, we find that the court’s
jurisdictional findings are supported by substantial evidence.
B. SUBSTANTIAL EVIDENCE SUPPORTS A FINDING OF A CAUSAL LINK
OF A.A.’S INJURIES TO PARENTS’ ACTIONS AND CONDUCT
Father contends that “because there was no substantial evidence linking the
parents to A.A.’s injuries, the court abused its discretion in finding A.A. came within
section 300[, subdivision (e)].”
Section 300 states that “[a] child who comes within any of the following
descriptions is within the jurisdiction of the juvenile court which may adjudge that person
to be a dependent child of the court: [¶] . . . [¶] (e) The child is under five years of age
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. For the purposes of this subdivision, ‘severe physical
abuse’ means any of the following: any single act of abuse that causes physical trauma of
sufficient severity that, if left untreated, would cause permanent physical disfigurement,
permanent physical disability, or death; . . . or more than one act of physical abuse, each
of which causes bleeding, deep bruising, significant external or internal swelling, bone
36
fracture, or unconsciousness; or the willful, prolonged failure to provide adequate food.”
(§ 300, subd. (e).)
In this case, after a contested jurisdictional hearing, the juvenile found “by a
preponderance of the evidence, the allegations, a-1, b-1, e-1 and j-1, in the petition, filed
on 06/28/2022 is/are true.” Therefore, the court found that A.A. “comes within Section
300(a), (b)(1), and (e) Welfare and Institutions Code.
When making this finding, the court stated as follows:
“As to the specific allegations in this case, the Court has reviewed, prior to today,
the case of Robert C., 219 Cal.App.4th 1241; the case of In re E.H., 108 Cal.App.4th
659; and the case of In re A.S., 202 Cal.App.4th 237.
“The Court found helpful the language in those cases that section 300(e) does not
require the parents actual or constructive knowledge that the child, in fact, suffered
severe physical abuse; and . . . severe injuries listed in the section, such as bleeding,
internal bleeding, internal swelling, or broken bones may not be visible; and that they
may be discovered only after a medical examination or testing [t]he question then should
be the parents have reasonably known that the child had been abused.
“The Department is not required to prove by clear and convincing evidence the ID
of the perpetrator. That will be left to the criminal courts. I have not used the fact that a
criminal complaint has been filed against the parents in this case as evidence of anything
in this case. As I have told juries for years and years and years, the fact that a criminal
case has been filed against a criminal defendant is not proof of anything. And it’s
certainly not proof here.
37
“The purpose of this Court, as opposed to—the criminal courts is identifying the
perpetrator or punishing the perpetrator if found guilty beyond a reasonable doubt. The
purpose of this Court is to make orders that are in the best interest of the child, which
sometimes include removing the child from the home and denying family reunification
services. The Court must determine whether the record viewed as a whole contained
substantial evidence from which a reasonable trier of fact could make findings by clear
and convincing evidence.
“The Court recognized that it is my role to assess the credibility of various
witnesses and to weigh the evidence to resolve the conflicts in the evidence.
“Having expressed my concerns about Dr. Gabriel, the evidence supports a finding
that the injuries in this case were inflicted intentionally. And there’s been no argument to
the contrary.”
Thereafter, the court admitted reports into evidence, ruled on ICWA, and
discussed other procedural matters in this case. The court then returned to its section 300
finding, and stated:
“The Court would like to make a little further record as to why I believe that the
parents and the evidence strongly suggests that father is the one that committed the abuse
on this child.
“Mother testified that father was a primary caregiver of the child after they were
released from the hospital following the birth of the child; that there were many times
when he was not caring for the children as they had agreed to. The mother was . . . for
38
many days recovering from the surgery, the C-section. The father was home from work
on paternity leave and was primarily responsible for caring for the children—”
At this time, Mother’s counsel stated: “Your Honor, I'm sorry to interrupt the
Court. But [A.A.] was born vaginally, as shown in the video.”
The court then responded:
“You’re right. I’m sorry. Strike the C-section.
“—following the child’s birth; that this was a situation in which mother and father
were experiencing significant marital discord; that mother testified that she repeatedly
kept pushing for divorce from the father; and that she expressed great frustration with the
father’s parenting.
“The Court would also note that after the significant injuries were discovered by
the medical professionals, it was only then that father admitted to having caused bruising
to the child’s face, to her cheek, and shared that with mother; that Dr. Jacobson testified
that a bruise to the fleshy part of the cheek to an infant who was not ambulatory and able
to cause that bruise by his or her own actions is extremely concerning in her role as a
child abuse expert. I would also note the Court thought it was important to note that
besides the injuries seen on the CT scans and the MRIs of the brain injuries and the
fractures to the child’s skull on both sides of her head, that there was also swelling to the
child’s scalp. And it was Dr. Jacobson’s informed opinion that the injuries occurred
sometime prior to ten to 14 days. The Court did take into consideration, based off cross-
examination, that those injuries could have occurred up to 56 days prior, but that was not
her expert opinion.
39
“The Court would also note that in weighing the expert’s opinion, Dr. Gabriel, as
was mentioned by counsel, did not see the child, did not examine the child, did not speak
with the parents, and did not consult with any other doctors. And in this case, the Court
found it significant that Dr. Jacobson did consult with other pediatric specialists,
including neurologists, ophthalmologists, radiologists in forming her opinion.
“By a preponderance of the evidence, the allegations (a)(1), (b)(1), (b)(2), (e)(1),
and (j)(1) in the petition filed on June 28th are true. The petition is sustained, and the
children are persons described under section 300(b)(1). As to [C.C.], [he] is also a child
as described under section 300(j); and that [A.A.] is a person described under sections
300(a), (b)(1), and (e).”
Based on the evidence presented in the reports filed with the court and testimony
during the hearing, we find that the court’s finding is supported by substantial evidence.
Father’s reliance on In re Roberto C. (2012) 209 Cal.App.4th 1241 (Roberto C.) is
misplaced. In Roberto C., the reviewing court affirmed the juvenile court’s finding that
no evidence linked Parents to the child’s injuries. (Id. at p. 1254.) There, the child was
in daycare every day during the work week for three weeks prior to his hospitalization,
and the parents and the babysitter did not have a suitable explanation for the child’s
injuries. (Id. at pp. 1245, 1247.) One of the doctors opined that the child’s injuries were
nonaccidental while another doctor was unable to come to the same conclusion. (Id. at
pp. 1247-1248.) The lower court found that there was no evidence linking the parents to
the infliction of the injuries. (Id. at p. 1254.) The appellate court held that the “facts
contained in this record do not create a level of certainty concerning the parents’
40
knowledge sufficient to find an abuse of discretion by the juvenile court.” (Id. at p.
1256.)
Father contends that this case is similar to Roberto C. because “the court relied
heavily on the testimony of Dr. Jacobson in drawing the inference that Father caused
A.A.’s injuries, where the only evidence Father caused any harm to A.A. was by
accidentally dropping a cell phone on her cheek, [citation] which Dr. Gabriel testified
could not have caused skull fractures on both sides of A.A.’s head.” Father goes on to
state that “the court should not have relied on Dr. Jacobson’s testimony to fill the gap in
the record, which lacked substantial evidence to causally connect the parents to A.A.’s
injuries.”
First, we do not find Roberto C. persuasive in light of the deferential standard of
review we must apply. In Roberto C., applying the substantial evidence standard of
review and giving the juvenile court deference, the court found that “the conclusion of
the juvenile court that there was no evidence that the parents knew or should have known
of the abuse is supported by substantial evidence.” (Roberto C., supra, 209 Cal.App.5th
at p. 1256, fn. omitted.) Thereafter the court found no abuse of discretion. (Ibid.)
Like the court in Roberto C., we must give deference to the lower court’s decision.
We note we must uphold an order if it is supported by substantial evidence, even when
substantial evidence to the contrary also exists. (In re Dakota H. (2005) 132 Cal.App.4th
212, 228.) Here, because we find the juvenile court’s ruling under section 300 was
supported by substantial evidence, we must affirm the court’s assumption of jurisdiction.
41
While the juvenile court in Roberto C. found no evidence linking the injuries to
Parents. The juvenile court in this case expressly found causation linking A.A.’s injuries
to Parents’ actions or omissions. A.A. was not ambulatory and, unlike the case where the
child went to day care in Roberto C., A.A.’s parents exclusively cared for A.A.
Moreover, there is more than ample evidence to indicate that the numerous skull fractures
and injuries to A.A. were caused by non-accidental trauma. This finding was supported
by substantial evidence as the injuries to A.A. occurred only while she was under the care
of Parents and MGM.
Moreover, the juvenile court in this case properly relied on In re E.H. (2003) 108
Cal.App.4th 659. In E.H., an infant suffered from numerous fractures. The parents
denied that they or other people in the home caused the injuries. Substantial evidence,
however, supported that the parents should have known the child was being abused when
the child was never out of the parents’ custody, and remained with a family member at all
times. (Id. at pp. 662, 670.) The only reasonable conclusion was that the parents
reasonably should have known that the child was being harmed by someone in the house.
In E.H., the court stated that the statute does not require actual knowledge of the abuse;
where there is no identifiable perpetrator, a finding may be supported by circumstantial
evidence. (Id. at pp. 667-670.)
Here, just like the facts in In re E.H., A.A. was always in the custody of Parents
except for the six hours she was under MGP’s care. The only reasonable conclusion is
that Parents should have known that A.A. was being harmed because of her symptoms,
and the injuries were caused by those who cared for her. Based on the plethora of
42
evidence regarding A.A.’s injuries cited in detail ante—in the Department’s reports,
medical records, and testimony during the hearing—substantial evidence supports the
finding by the juvenile court of a causal link of A.A.’s injuries to parents’ actions and
conduct. Therefore, the court did not abuse its discretion in finding that section 300
applied to both A.A. and C.A.
C. THE BYPASS OF REUNIFICATION SERVICES TO PARENTS IS
SUPPORTED BY SUBSTANTIAL EVIDENCE
Both Mother and Father argue that the trial court abused its discretion when it
denied them reunification services under section 361.5, subdivision (b)(6).
Generally, the juvenile court is required to provide reunification services to a child
and the child’s parents when a child is removed from parental custody under the
dependency laws. (§ 361.5, subd. (a).) The purpose of providing reunification services is
to “eliminate the conditions leading to loss of custody and facilitate reunification of
parent and child. This furthers the goal of preservation of family, whenever possible.”
(In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478.) It is also the legislative intent, “that
the dependency process proceed with deliberate speed and without undue delay.”
(Marlene M. v. Superior Court (2000) 80 Cal.App.4th 1139, 1151.) “Thus, the statutory
scheme recognizes that there are cases in which the delay attributable to the provision of
reunification services would be more detrimental to the minor than discounting the
competing goal of family preservation. [Citation.] Specifically, section 361.5.
subdivision (b), exempts from reunification services ‘those parents who are unlikely to
43
benefit’ from such services or for whom reunification efforts are likely to be ‘fruitless.’ ”
(Jennifer S. v. Superior Court (2017) 15 Cal.App.5th 1113, 1120.)
Specifically, section 361.5, subdivision (b)(6), provides that a court may deny
services if there is clear and convincing evidence: “That the child has been adjudicated a
dependent pursuant to any subdivision of section 300 as a result of . . . the infliction of
severe physical harm to the child . . . by a parent or guardian, as defined in this
subdivision, and the court makes a factual finding that it would not benefit the child to
pursue reunification services with the offending parent or guardian.”
When the juvenile court concludes reunification efforts should not be provided, it
“ ‘ “fast-tracks” ’ ” the dependent minor to permanency planning so that permanent out-
of-home placement can be arranged. (Jennifer S. v. Superior Court, supra, 15
Cal.App.5th at p. 1121.) The statutory sections authorizing denial of reunification
services are commonly referred to as “ ‘bypass’ provisions.” (Ibid.)
Once it has been determined one of the situations enumerated in section 361.5,
subdivision (b), applies, “ ‘ “ the general rule favoring reunification is replaced by a
legislative assumption that offering services would be an unwise use of governmental
resources.” ’ ” (In re William B. (2008) 163 Cal.App.4th 1220, 1227; accord, In re A.G.
(2012) 207 Cal.App.4th 276, 281.) Thus, if the juvenile court finds a provision of section
361.5, subdivision (b), applies, the court “shall not order reunification for [the] parent. . .
unless the court finds, by clear and convincing evidence, that reunification is in the best
interest of the child.” (§ 361.5, subd. (c)(2).) “The burden is on the parent to . . . show
44
that reunification would serve the best interests of the child.” (William B., at p. 1227;
accord, A.G., at p. 281.)
“We affirm an order denying reunification services if the order is supported by
substantial evidence.” (In re Harmony B. (2005) 125 Cal.App.4th 831, 839; see also
Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 971.) In applying the substantial
evidence test, we presume the court made the proper order and consider the evidence in
the light most favorable to the ruling. (Sheila S. v. Superior Court (2000) 84 Cal.App.4th
872, 880, disapproved on another ground in Conservatorship of O.B. (2020) 9 Cal.5th
989, 1010 fn.7.) We do not “resolve conflicts in the evidence, pass on the credibility of
the witnesses, or determine where the preponderance of the evidence lies. [We merely
determine whether] there is any substantial evidence, whether or not contradicted, which
will support the conclusion of the trier of fact.” (In re Walter E. (1992) 13 Cal.App.4th
125, 139-140.)
Mother argues that substantial evidence does not support the court’s finding that
Mother was a perpetrator of abuse to A.A. She states that the court failed to articulate
facts that support Mother had knowledge about Father’s abuse of A.A.
In support of her contention, Mother relies on Tyrone W. v. Superior Court (2007)
151 Cal.App.4th 849 (Tyrone W.). In that case, after an infant died of sudden infant
death syndrome, the medical examiner discovered that the infant suffered from several
two-week-old rib fractures that were deemed suspicious and were “ ‘likely indicative of
child abuse.’ ” (Id. at p. 844.) After the infant’s sibling was found to be a child
described by section 300, subdivisions (b) and (j), the juvenile court denied reunification
45
services to the parents pursuant to section 361.5, subdivision (b)(6). (Tyrone W., at p.
845.)
In reversing the juvenile court’s order denying reunification services, the appellate
court noted that the deceased infant’s “injuries, although severe, were not obvious. There
was no bruising or other marks on [the infant] and no reports that [the infant] had been in
distress.” (Tyrone W., supra, 151 Cal.App.4th p. 852.) The court also stated that there
was no evidence to show that, if one parent had inflicted injury on the infant, the other
parent knew about it. (Ibid.) The appellate court stated: “We do not believe section
361.5, subdivision (b)(6) applies to a parent who ‘reasonably should have known’ of the
abuse because that parent was not complicit in the infliction of physical harm by act,
omission or consent. As defined in subdivision (b)(6), omission and consent both require
actual knowledge, if not of the physical harm itself, then of another’s abusive acts. We
hold that subdivision (b)(6) applies to the parent or parents who inflicted severe physical
harm to the child whether by act, omission or consent, and does not apply to a negligent
parent.” (Id. at 851.) The court further held that “where there is no evidence to show
both parents knew the child was abused or injured, the court must identify the parent who
inflicted the child’s injuries before denying reunification services to that parent.” (Id. at
p. 852.) The court, however, expressly commented that it did “not quarrel with the
proposition that when the child’s injury or injuries were obvious to the child’s caretakers
and they failed to act, the court is not required to identify which parent inflicted the abuse
by act and which parent inflicted the abuse by omission or consent. In such a case, the
46
evidence supports a conclusion that both parents knew the child was injured or being
abused.” (Ibid.)
In this case, unlike Tyrone W., supra, there was substantial evidence to support
that A.A.’s “injury or injuries were obvious to the child’s caretakers [, Mother and
Father,] and they failed to act.” (Tyrone W., supra, 151 Cal.App.4th 852.)
As discussed ante, at the contested jurisdiction hearing, the juvenile court found
that “there is clear and convincing evidence the parents are persons described under 361.5
(b)(6). Therefore, reunification services will be denied, finding that the services are not
in the best interest of the children.” Later, the court reiterated that “[u]nder the bypass, I
have identified the parents as the perpetrators.” When Mother’s counsel asked for
findings specifically with respect to Mother, the court stated:
“In light of the fact that mother failed to take the appropriate action to protect the
child when father is the perpetrator, in the Court’s eyes; that she . . . would have been
aware of the injuries to the child in light of the fact that the expert testimony by Dr.
Jacobson said there would have been immediate onset of symptomology for this child;
that the time frame for the child being injured is consistent with the—that those injuries
occurred after the last pediatric visitation or appointment; and that the child would have
been in the sole care and custody of mother and father during that time period.
“And just the severe nature of these injuries—the skull fracture being complex and
on both sides of the child’s head, being consistent with the fact this child—these injuries
are only seen in cases where the child is thrown during a rollover accident and whose
head impacts with the ground or the road causing these level of injuries, this was not an
47
accidental injury. This was inflicted. It was abusive. And the Court believes that father
is the perpetrator of that, in that event.”
Mother, however, argues that there was no factual statement by the court to
support Mother was aware of the abuse while Father argues that there was no evidence
that he intentionally caused injury to A.A. We find Parents’ arguments to be without
merit.
As discussed ante, Dr. Jacobson testified that with A.A.’s injuries, A.A. would
have had immediate symptoms such as lethargy, discomfort, pain, irritability and
difficulty sleeping. Although Mother contends that such symptoms are commonplace,
Dr. Jacobson testified that A.A.’s caregivers should have noticed these symptoms.
Hence, it can be deduced that the kind of pain A.A. had to endure from her skull fractures
would have caused significantly greater symptoms than that of other infants with similar
symptoms.
In applying the substantial evidence test on appeal, we presume the juvenile court
made the proper order when considering the evidence in the light most favorable to the
ruling. (Sheila S. v. Superior Court, supra, 84 Cal.App.4th at p. 880.) As a reviewing
court, we do not “resolve conflicts in the evidence, pass on the credibility of the
witnesses, or determine where the preponderance of the evidence lies. [We merely
determine whether] there is any substantial evidence, whether or not contradicted, which
will support the conclusion of the trier of fact.” (In re Walter E., supra, 13 Cal.App.4th
at pp. 139-140.)
48
Here, the juvenile court found both Mother and Father to be the perpetrators of the
injuries to A.A. under section 361.5, subdivision (b)(6). The court relied on the
voluminous medical records regarding A.A., and Dr. Jacobson’s testimony, while
rejecting Dr. Gabriel’s expert opinion. With the rejection of the evidence provided by
Dr. Gabriel, the court’s implicit finding that Mother had either known that Father caused
the injuries to A.A.—since he exclusively cared for A.A.—or that Mother was complicit
by failing to act, is supported by substantial evidence.
Moreover, both parents rely on J.J. v. Superior Court (2002) 81 Cal.App.5th 447
(J.J.) in support of their contention that the juvenile court erred in bypassing reunification
services. In J.J., a young child was discovered to have skull fractures, contusions, and
other bruises. (Id. at p. 451.) The father was home with the child when the child was
injured. The mother was not home. (Ibid.) The father called the mother to report that
the child was bleeding from above his eye. The mother told the father to call 911. The
father, however, waited 30 minutes to do so. (Id. at p. 452.) The father gave various
explanations that did not account for the injuries. (Id. at p. 454.) The older children
reported that the father had physically disciplined them with a belt. (Ibid.) On the night
in question, the mother stated that she had left the home after fighting with the father.
(Id. at p. 452.) The court found the petitions true and that the father had inflicted the
injuries. (Id. at p. 454.) The juvenile court then found the mother was also a perpetrator
of the injuries because she knew or should have known it was dangerous to leave the
children with the father. Moreover, when the mother became aware of the injuries, she
did not return home immediately and did not summon medical assistance. (Id. at pp. 454-
49
455.) The juvenile court, therefore, bypassed services to the mother under section 361.5,
subdivisions (b)(5), (6) and (7). (J.J., at p. 455.)
The mother petitioned for writ review, and the court of appeal reversed the
juvenile court’s decision to bypass reunification services for the mother. (Ibid.) The
court held that section 361.5, subdivision (b)(6), did not apply because there was no
substantial evidence to support that the mother knew or should have known the father
would inflict the injuries. (J.J., supra, 81 Cal.App.5th at pp. 458-460.)
The facts in this case are distinguishable from the facts in J.J. Here, both Mother
and Father were caring for A.A. when the injuries occurred. Mother was not outside the
home. Additionally, A.A. had had been suffering serious pain and other symptoms,
which both parents would have noticed, for two weeks prior to Parents seeking medical
treatment. Mother testified that A.A. was colicky, would cry randomly, was gassy,
farting all the time, and clinched her fists at or above her ear level. Mother also
expressed concerns that A.A. was sleepy, grunted, and had difficulty feeding. Unlike
J.J., A.A. had outward symptoms that both parents would have known about.
Based on the records the juvenile court relied on and the testimony given at the
contested hearing, substantial evidence supports the juvenile court’s denial of
reunification services under section 361.5, subdivision (b)(6).
50
D. SUBSTANTIAL EVIDENCE SUPPORTS THE JUVENILE COURT’S
FINDING THAT REUNIFICATION SERVICES WERE NOT IN THE
CHILDREN’S BEST INTEREST
Mother contends that the juvenile “court abused its discretion when it denied
Mother reunification services because services were in the minors’ best interests.” Father
contends that “the court erred when it denied the parents reunification services under
section 361.5(b)(6) without making proper findings as required by section 361.5(k).” We
disagree with both parents.
“[T]he party seeking bypass of reunification services under section 361.5,
subdivision (b) has the burden of proving that reunification services need not be
provided,” a showing that must be made by clear and convincing evidence. (In re
Angelique C. (2003) 113 Cal.App.4th 509, 519, 521, disapproved on another ground in
Conservatorship of O.B., supra, 9 Cal.5th at p. 1010, fn. 7.) However, under section
361.5, subdivision (c)(2) “[t]he court shall not order reunification for a parent or guardian
described in paragraph . . . (6) . . . of subdivision (b) unless the court finds, by clear and
convincing evidence, that reunification is in the best interest of the child.” (§ 361.5,
subd. (c)(2).)
“A court called upon to determine whether reunification would be in the child’s
best interest may consider a parent’s current efforts and fitness as well as the parent’s
history. [Citation.] Additional factors for the juvenile court to consider when
determining whether a child’s best interest will be served by pursuing reunification
include: the gravity of the problem that led to the dependency; the strength of the relative
51
bonds between the child and both the parent and caretakers; and the child’s need for
stability and continuity, which is of paramount concern.” (In re S.B. (2013) 222
Cal.App.4th 612, 622-623.)
“A juvenile court has broad discretion when determining whether . . . reunification
services would be in the best interests of the child under section 361.5, subdivision (c).
[Citation.] An appellate court will reverse that determination only if the juvenile court
abuses its discretion.” (In re William B., supra, 163 Cal.App.4th at p. 1229.) In other
words, we will not disturb such a discretionary decision unless the lower court made “an
arbitrary, capricious, or patently absurd determination.” (Adoption of D.S.C. (1979) 93
Cal.App.3d 14, 24-25.) Furthermore, when the party with the burden of proof (i.e.,
Father in this case) fails to meet his or her burden, upon appellate review the question
“becomes whether the evidence compels a finding in favor of the appellant as a matter of
law. [Citations.] Specifically, the question becomes 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 [the]
finding.’ ” (In re I.W. (2009) 180 Cal.App.4th 1517, 1528, disapproved on another
ground in Conservatorship of O.B., supra, 9 Cal.5th at p. 1003, fn. 7.) The same
standards direct our review in a proceeding under California Rules of Court, rule 8.452.
Even given a liberal construction of his petition, as required by California Rules of
Court, rule 8.452(a)(1), Mother has not met her burden.
In this case, more than substantial evidence supports the juvenile court’s finding
that A.A. suffered multiple, non-accidental skull fractures while in the sole care and
52
custody of Parents, and that the injuries were inflicted and abusive. Moreover, the
evidence supports the court’s finding that Parents were dilatory in seeking medical
treatment of A.A. since the child had been suffering pain and other symptoms for several
weeks. Furthermore, Parents were unwilling to disclose what happened to A.A.
This court’s reasoning in In re A.E. (2019) 38 Cal.App.5th 1124 is instructive.
There, the lower court sustained section 300, subdivisions (a), and (e), allegations, after
the child sustained a subdural hematoma, among other head injuries. (Id. at p. 1128.)
The lower court also found that by clear and convincing evidence, it was in the child’s
siblings’ best interest to grant reunification services to both parents, even though section
361.5, subdivision (b)(6) bypass applied. (Id. at p. 1140.) The lower court based the
finding on the parents being actively engaged in their services, though the court stated the
challenge for the parents would be “ ‘understanding and acceptance of responsibility for
what happened.’ ” (Ibid.) This court reversed, concluding the trial court abused its
discretion in granting reunification services because the parents both continued to deny
that they had ever abused the children or had even physically disciplined them, despite
engaging in services. (Id. at pp. 1141-1142, 1144.) This court reasoned that the mother’s
explanation of the child sustaining the head injuries as a result of falling was contradicted
by the medical expert, who had concluded that the injuries could not have been sustained
by such a fall. (Ibid.) Despite the mother identifying appropriate disciplinary techniques
and attending classes, the court found that neither of these showed that services would
likely lead to better parenting skills or would prevent further abuse. (Id. at pp. 1143-
1144.)
53
Here, as in In re A.E., both parents continued to deny responsibility for A.A.’s
injuries—even though they and MGPs alone cared for A.A. during the time period when
A.A. was injured. Moreover, medical experts found no possible medical explanation for
A.A.’s injuries other than abusive head trauma. Dr. Gabriel, who made a contrary
finding, was deemed to be an unreliable expert by the juvenile court. On this record,
substantial evidence supports the juvenile court’s implied findings under section 361.5,
subdivision (k).
Additionally, Father argues that “because the juvenile court did not specify the
factual findings it used to determine reunification services would not benefit the children,
the court abused its discretion.” In support of his argument, Father cites In re Rebekah
R. (1994) 27 Cal.App.4th 1649 (Rebekah R.). Moreover, during oral argument, relying
on Rebekah R., Father’s counsel argued that, because the juvenile court erred by failing to
make specific findings, this matter should be remanded for the court to make these
specific findings. We disagree.
In Rebekah R., 27 Cal.App.4th at page 1650, the court stated, “it appears the
Legislature intended that the juvenile court make an express, on the record finding of . . .
severe physical harm as a pre-condition to denying reunification under the subdivision,
notwithstanding the existence of an earlier jurisdictional finding on the same subject.”
Almost a decade after Rebekah R. was decided, a mother in In re S.G. (2003) 112
Cal.App.4th 1254, 1259 (S.G.), made an argument similar to Father’s. The mother
attacked “the no-services order because the court did not make an explicit, on-the-record
findings.” The mother, relying on Rebekah R., argued “that without explicit findings, the
54
juvenile court could not properly rest its decision to deny services on section 361.5,
subdivision (b)(6), and [the appellate court] must reverse.” (Id. at pp. 1259-1260.)
The S.G. court noted that the mother’s reliance on Rebekah R. was not only
misplaced, but that the court would “further take this opportunity to clarify our opinion in
Rebekah R.” (S.G., supra, 112 Cal.App.4th at p. 1260.) The court noted that in Rebekah
R., the juvenile court denied services to the non-offending parent, the father, without
specifying “on what statutory ground it was ruling. (Rebekah R., supra, 27 Cal.App.4th
at p. 1650[].) We reversed because there was insufficient evidence to warrant the denial
order on the one arguably applicable ground, subdivision (b)(5) of section 361.5.
(Rebekah R., supra, 27 Cal.App.4th at pp. 1652-1656[].) While the court also failed to
make specific factual findings for a denial under subdivision (b)(6) of section 361.5, we
did not reverse on that ground. (Rebekah R., supra, 27 Cal.App.4th at pp. 1651-1652[].)
Thus, Rebekah R. does not stand and should not be read to stand for the proposition
advocated by appellant, namely the failure to make findings necessary for a denial of