In re D.Y. CA2/2 ( 2021 )

Filed 12/17/21 In re D.Y. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re D.Y., a Person Coming B310206
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No.
20CCJP05478A)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
H.L. and H.Y.,
Defendants and Appellants.
APPEALS from orders of the Superior Court of Los Angeles
County. Julie Fox Blackshaw, Judge. Jurisdictional order
affirmed and remaining appeal dismissed.
Annie Greenleaf, under appointment by the Court of
Appeal, for Defendant and Appellant H.L.
Megan Turkat-Schirn, under appointment by the Court of
Appeal, for Defendant and Appellant H.Y.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Jane Kwon, Principal Deputy
County Counsel, for Plaintiff and Respondent.
__________________________________________
The juvenile court found H.L. (mother) and H.Y. (father)
responsible for their infant son D.Y.’s (son) repeated and
unexplained bruising. Consequently, the juvenile court exercised
its dependency jurisdiction over son under Welfare and
Institutions Code section 300, subdivisions (a) and (b). 1 The
juvenile court removed son from his parents’ custody and, among
other things, ordered mother and father to participate in a
parenting course.
On appeal, mother and father challenge the juvenile court’s
jurisdictional finding under subdivision (a) of section 300.
Although mother and father do not challenge the juvenile court’s
jurisdictional finding under subdivision (b) of section 300—and,
thus, dependency jurisdiction remains regardless of our decision
here—we consider the parents’ appeals because of the
ramifications of the court’s true finding under subdivision (a).
Mother and father also appealed the juvenile court’s dispositional
orders. However, subsequent proceedings in the juvenile court
have rendered those issues moot, and we do not address them
here.
1 Undesignated statutory references are to the Welfare and
Institutions Code.
2
As discussed below, we conclude substantial evidence
supports the juvenile court’s jurisdictional finding under section
300, subdivision (a). Thus, we affirm.
BACKGROUND
1. Events Preceding Petition
Son is mother and father’s only child. Mother and father
are son’s only caregivers, with mother being the primary
caregiver. Mother and father were born in China and have lived
in the United States for a number of years. They both speak
Mandarin and were assisted by Mandarin language interpreters
during the dependency proceedings below.
a. Son’s September 2020 Hospitalization
In September 2020, when son was five weeks old, mother
noticed swelling and redness on his left ear. At first, mother
thought an insect had bitten son’s ear. However, because the
mark became progressively worse over the course of a few days,
mother brought son to an emergency room. The “ER Physician
Note” from that visit indicates son was diagnosed with left ear
edema and mother was advised “to try conservative measures
such as ice first before follow-up with scheduled appointment
with pediatrician.”
Two days later, mother brought son to see his pediatrician,
Dr. Eva Chan. Dr. Chan diagnosed son with hemangioma and a
heart murmur. She explained the hemangioma would disappear
within five to seven years.2 However, because the lesion was on
2 At the adjudication hearing, expert witnesses explained
the difference between a hemangioma and a hematoma, which
distinction is central to this case. According to the Department’s
expert, a “hemangioma is a benign noncancerous tumor. It’s a
result of proliferation of blood vessels.” The expert further
3
son’s ear and was growing fast, Dr. Chan referred son to a
pediatric dermatologist. (Dr. Chan also referred son to a
pediatric cardiologist for his heart murmur.) Mother stated Dr.
Chan told her if she did not want to wait for her insurance
company to process the medical referrals, mother could take son
to Children’s Hospital Los Angeles (hospital) for assessment right
away. Mother decided to take son to the hospital later that same
day.
Hospital records indicate son was admitted “with bruising
along the [left] ear and along the [left] axilla/proximal upper arm”
(i.e., the armpit area). Because there was “no mechanism to
explain the bruising,” son was admitted to the hospital for a
nonaccidental trauma workup. Mother stayed with son at the
hospital for five days. Hospital notes indicate a consultation was
ordered with both “hematology to rule out bleeding disorders”
and “ENT for the ear hematoma,” which it was noted “likely will
explained, “Hemangiomas are very different than hematomas” in
that hemangiomas “have a very predictable course. . . . [T]hey
tend to proliferate, meaning get bigger, usually within the first
three months. Then they will go through a period of either no
further growth or very slow growth. It’s usually around nine to
twelve months, maybe a little longer. Then they start to
inviolate, meaning they start to go away. They can take years
before they completely go away.” In contrast, the expert stated a
hematoma “is a collection of blood or a blood clot from injury to
the [t]issue.” A hematoma “heals, resolves. The blood reabsorbs.”
Significant deep tissue hematomas could take weeks to resolve.
Similarly, the defense expert testified, “a hemangioma is
. . . a natural occurring event . . . a disease process, a diagnostic
condition, whereas a hematoma is pretty much a traumatic
event. And in that situation, trauma has to be determined to be
either accidental or non-accidental.”
4
need to be evacuated in the OR.” Son was also referred to
ophthalmology to rule out a retinal hemorrhage, cardiology
because of his heart murmur, as well as pediatric surgery. Son
had “an extensive hematologic workup that was negative, and
imaging that was indeterminate for a vascular malformation
versus hematoma.” The swelling and discoloration of son’s left
ear “significantly decreased” during his stay at the hospital.
When son was discharged a few days later, mother and
father were instructed to make follow-up appointments with the
dermatology clinic, pediatric surgery, and ENT-Otolaryngology,
as well as to return to Dr. Chan for son’s next scheduled
appointment. Son’s diagnosis at discharge was “Left ear
hemangioma, unconjugated hyperbilirubinemia [jaundice],
bilateral axillary [armpit] nodes.”
On October 6, 2020, mother brought son for his next
routine appointment with Dr. Chan, during which son received
scheduled vaccinations and Dr. Chan performed a physical
examination of son. Dr. Chan did not observe any new bruises or
injuries on son’s body. She noted son had been seen at the
hospital and was “evaluated for the Hemangioma, according to
mom, Ultrasound and MRI of the head showed normal results
with no abnormalities and was advised to observe with no
intervention.”
b. Son’s October 2020 Hospitalization
A few days later, on October 9, 2020, mother brought son
for his follow-up visit with the hospital’s dermatology clinic. The
doctor noted “the lesion [on son’s ear] improved and continues to
decrease in size and there is a small firm nodule suggestive of a
resolving auricular hematoma.” Also during that appointment,
however, an unexplained bruise was seen “spanning his left
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lateral abdominal wall.” As a result, the doctor referred son back
to the hospital, where he was admitted and stayed for two days.
Mother stated she had seen a bruise on son’s torso the day
before when she was changing his diaper. She did not know why
son had a bruise but speculated maybe it was because she had
held him tightly while bathing him. Mother told a hospital social
worker that, the day before, son had a “regular bath” and she did
not see bruising at that time but perhaps she had held him “too
hard.” Father indicated he had not seen bruising on son’s chest
and believed such bruising must have occurred at the hospital.
However, father had seen a bruise on son’s ear and guessed it
might have happened if mother had held son too tightly while
bathing him. Father said neither he nor mother harmed son. He
felt no one was “telling him and the mother what is going on with
the child.” After researching on-line, father believed son might
have a blood disease.
Nurses at the hospital reported mother was appropriate
with son during his hospitalization.
The hospital medical team conducted a number of tests to
determine a potential cause or causes for son’s bruising. In
addition to a general examination, a pediatric surgeon and an
ophthalmology resident doctor examined son. He also underwent
both an “x-ray skeletal survey” and CT brain scan. Medical
issues were ruled out as the cause of son’s injuries. Hospital
notes stated, “No medical etiology could be identified to explain
[son’s] diagnosis.” According to a hospital child abuse team, son’s
bruising was consistent with child abuse.
The attending pediatric emergency medicine physician, Dr.
Jeffrey Birnbaum, indicated “strong opposition to [son] being
discharged” from the hospital. Dr. Birnbaum noted his concerns
6
included the fact “that this is [son’s] second presentation for
traumatic injury with unclear mechanism. Mother did not seek
care for bruising today, it was noted at a follow-up appointment
with dermatology.” Dr. Birnbaum also noted that, during son’s
first hospital stay, son had an “extensive workup” that was
“unremarkable” and “negative.” As a result, Dr. Birnbaum felt
hematologic abnormality was unlikely and suspected
nonaccidental trauma. He noted that although previously there
“[w]as concern over a vascular malformation of ear but now with
findings on abdomen, less likely.” Hospital notes also indicated
son’s “left ear remains fuller than his right ear but the hematoma
is largely resolved.”
A hospital social worker referred the case to the Los
Angeles County Department of Children and Family Services
(Department). Soon after the referral was made, a Department
social worker spoke with hospital staff as well as with mother
and father. The social worker determined it was in son’s best
interest to be detained and placed in foster care. Mother and
father consented and asked that son be placed with Asian Pacific,
preferably Chinese, caregivers. The Department detained son
and placed him in foster care.
The Department reported potential child abuse of son to
the Los Angeles County Sheriff’s Department. A sheriff’s deputy
responded to the hospital and interviewed Dr. Birnbaum and
mother. Dr. Birnbaum told the deputy “several medical tests had
been conducted on the child and [the doctor] found no evidence of
trauma. However, he along with medical staff were concerned
about possible abuse to the child as this was the second time
treating the child in the past two weeks for the same [type] of
injury.” Mother told the deputy she had brought son to the
7
hospital for a follow-up dermatology appointment related to his
ear. She said she informed the doctor of the bruises on son’s
torso. Mother was concerned son may have a blood disease and
she wanted him to undergo medical tests. She further explained
she “was sure” the bruising to son’s torso occurred the day before
when she was bathing son and he slipped into the tub causing
mother to grip him tightly with both hands. Mother told the
deputy “she was upset with medical staff for their accusations of
abuse on her child. She further stated she came to the hospital
for help regarding the bruising and was in disbelief the medical
staff made accusations of abuse when she was the one who
brought the bruises to their attention.”
The deputy reported he saw three bruises on son’s left torso
area, which “were consistent with [mother’s] explanation on how
her son received them.” The deputy was unable to determine if a
crime had occurred and recommended “follow-up to determine if
any form of child abuse is occurring.”
2. Petition
On October 14, 2020, the Department filed a three-count
section 300 petition on behalf of son (petition). The petition
alleged one count under section 300, subdivision (a) and two
counts under subdivision (b). The subdivision (a) count was
identical to the first subdivision (b) count, which alleged son was
at risk of serious physical harm because of bruising and swelling
on his body that was “consistent with non-accidental trauma.”
Those counts alleged mother’s explanations for how son sustained
his injuries were not consistent with the injuries and father
provided no explanation for the injuries. The remaining
subdivision (b) count alleged son was at risk of serious physical
harm because parents “failed to obtain timely necessary medical
8
treatment” for son’s injuries. The petition noted the Department
would be relying on section 355.1, subdivision (a) “to assert that a
rebuttable presumption exists finding that the minor is a person
described by” subdivisions (a) and (b) of section 300.
At the detention hearing held a few days later, the juvenile
court noted it was “sympathetic to the parents; however, this is a
very low burden. Based on the severity of the bruises, further
investigation needs to take place; but in light of the allegation,
pursuant to [section] 355.1 (a) the rebuttable presumption, the
court finds that there is a prima facie case for detaining the child
and showing the child is a person described by [section] 300.”
The court ordered son detained from parents and placed in foster
care. Parents were granted monitored visitation with son. The
court also ordered the Department to have son tested for
hemangioma.
3. Further Investigation
The Department continued its investigation and, in late
November 2020, filed its jurisdiction and disposition report with
the court. The report indicated that, in mid-November 2020, a
Department social worker spoke with son’s foster parent, who
reported son was doing well. The foster parent took photographs
of son before and after his monitored visits with mother and
father and no new bruising or marks had appeared. On one
occasion, however, mother stated she observed a bruise on son’s
left abdomen during a monitored visit. She showed a photograph
of the bruise to a Department social worker, who reported seeing
“a bluish color bruise to the left abdomen area on the picture.”
Foster parent’s photographs of son taken prior to the monitored
visit that same day, however, showed no bruising.
9
The social worker also spoke with mother and father. Both
mother and father reiterated what they previously had said
regarding son’s ear and other markings. They stated Dr. Chan
and the hospital had diagnosed son with a left ear hemangioma
and were told it would disappear or get smaller over time.
Neither knew why son had bruising, but believed it was possible
mother had held son too tightly while bathing him. Father
thought some of the bruising might have occurred while son was
hospitalized in October. Mother and father denied any abuse of
son and explained they had sought timely medical attention for
son and followed the doctors’ instructions. Both wanted son back
home in their care as soon as possible. Mother and father had
enrolled in parenting classes.
The social worker followed up with the hospital on the
juvenile court’s October 2020 order that son be tested for a
hemangioma. The hospital responded: “Skin hemangiomas
(birthmarks) are typically based on clinical diagnosis with no
additional specific studies required. Evaluating [son’s] clinical
course since presentation, his ear findings are consistent with a
resolving hematoma, with no current evidence of a hemangioma.”
The social worker also communicated with child abuse
pediatrician Dr. Catherine DeRidder, requesting her opinion on
the case. The social worker sent to Dr. DeRidder medical reports
from the hospitals and doctors who had evaluated son. The
following day, Dr. DeRidder responded by e-mail, stating she had
reviewed the documents and believed “ ‘the PMD physician may
just have not known what was going on with the ear and thought
that a hemangioma was one possibility but it seems with the
continued bruising and negative work-up for bleeding disorders,
that physical abuse is highly likely in this case.’ ” Dr. DeRidder
10
also stated son “ ‘does have so many bruises which is the most
common finding in physical abuse.’ ”
The social worker communicated with a sheriff’s detective
who had interviewed mother and father. The detective stated he
did “not have concern as to physical abuse” and was “waiting for
the Department’s investigation outcome.”
In addition, the social worker spoke with Dr. Chan, who
explained the difference between a hemangioma and a
hematoma. Dr. Chan stated “hemangioma is the accumulation of
blood vessels before . . . birth” while hematoma “is the
accumulation of blood vessel in a certain area of [the] body due to
trauma from outside.” Dr. Chan noted although hemangioma
could happen on different parts of the body, it does not cause the
body to bruise more easily. She explained bruises from
hemangioma last longer than bruises caused by an outside force
or trauma, stating hemangioma bruises “would last for several
weeks or 1–2 months.”
In late December 2020, the Department filed a last minute
report with the court indicating mother and father had completed
their parenting education program and had continued monitored
visits with son without incident. It was reported mother and
father “took care of [son] appropriately during the visits. They
fed him, changed his diaper, and played with him. There were no
concerns reported.” In a later report for the court, however, the
Department explained the parenting program parents completed
did not address the needs of children son’s age but rather taught
parenting skills relevant to older children. The Department
asked the juvenile court to order parents to complete a 52-week
parenting education program that addressed caring for a young
infant.
11
In that same report, the Department also noted mother and
father often expressed their desire to have son back in their care.
They did not know how he got the bruises but they insisted they
never abused him. The Department believed “parents need to
learn positive stress and anger management focusing on healthy
ways to cope with stress and anger on why [son] was detained
from their care, and how this affects them in providing a safe
care for [son]. The parents’ stress and anger management
remains a concern for [the Department].” The Department asked
the court to order mother and father to participate in individual
counseling.
4. Expert Reports
Prior to the adjudication hearing, the parties submitted
expert reports for the court.
a. Dr. Karen Imagawa and Amara McHale, FNP-C.
The Department submitted a report by Dr. Karen Imagawa
and Amara McHale, FNP-C. This report summarized son’s
September and October 2020 hospitalizations, related medical
records, and postdischarge follow-up appointments. The report
concluded: “Based on [son’s] clinical findings, the extensive (non-
revealing) work-up performed, the progression to complete
resolution of the previously noted concerning findings . . . , and no
recurrence of any of the concerning findings since placement, it
appears that: [¶] – The ear findings were a traumatic ear
hematoma, which subsequently resolved. The left cheek bruise
also resolved. [¶] – The axillary [armpit] discoloration and masses
were bruises with underlying hematomas, which subsequently
resolved. [¶] – [Son] also sustained bruising to his trunk, which
also progressively resolved.”
12
The report also noted that “bruising should not occur with
routine daily handling of an otherwise healthy infant (such as
[son]), and the reported hypothesized cause of the trunk bruising
raised by mother does not appear to be an adequate explanation
particularly since she notes that the incident was a ‘regular’ bath
and not an incident during which something occurred in which
she would have grabbed [son] differently/harder than usual.
Unexplained bruising/injuries in a young infant such as [son] is
compatible with non-accidental/inflicted trauma as it is unlikely
to occur in an infant of [son’s] developmental level who at that
time was not yet rolling, crawling, pulling to stand or cruising.”
The report explained it was difficult to determine the precise date
of son’s injuries based on the color of his bruises but, “[a]t this
time, based on the available information, non-accidental/inflicted
trauma remains a concern and the current leading diagnosis.”
b. Dr. Frederic Bruhn
Father submitted a report prepared by Dr. Frederic Bruhn.
Dr. Bruhn was “convinced that no substantial evidence exists
that demonstrates inflicted physical abuse by the parents of
[son].” Dr. Bruhn believed “the current situation has arisen
because of a faulty assessment of the child, perhaps due to a
language barrier existing in this case and/or by a
misrepresentation and miscommunication of the actual medical
records to the Court.”
As to the marks first noted on son’s left ear and armpits,
Dr. Bruhn opined, “The left ear finding was most likely a
subcutaneous hemangioma as evidenced by the finding of a
complex cystic malformation anterior to the left ear by
ultrasound examination” and “ultrasound revealed increased
vascularity under [the armpit] lesions suggesting bilateral
13
hemangiomas.” As to the later bruising on son’s torso, Dr. Bruhn
stated he reviewed color photos provided to him (which were “not
identified as to time and person”) and “could not identify any
significant bruising.” He noted a “significant discrepancy”
between a report to the court stating bruises on son’s torso were
three to four inches in size and the admitting physician’s report
stating those bruises were three to four centimeters. Dr. Bruhn
was concerned these bruises “may have represented another
underlying deep hemangioma, rather than a bruise.”
Dr. Bruhn stressed that “multiple studies found no
evidence of other abusive injuries (e.g., no fractures, central
nervous system bleeds or retinal hemorrhages)” and that the
Department had noted mother and father “did not seem to have
many of the usual characteristics of child abusers.” He believed
“close follow up will probably reveal the underlying diagnosis.”
He “strongly doubt[ed] that the etiology is inflicted trauma” and
“strongly suggest[ed] that a Geneticist at [the hospital] be
consulted to rule out whether this child has one of the many deep
vascular hemangiomas that are not described.”
5. Adjudication and Disposition Hearings
The adjudication hearing was held over the course of three
days in January 2021, with the disposition hearing also taking
place on the third day. Among other exhibits, the juvenile court
admitted the two expert reports described above, over 700 pages
of hospital records related to son, as well as medical records from
son’s first emergency room visit and his pediatrician’s office.
The juvenile court heard testimony from Dr. Imagawa and
Dr. Bruhn, both of whom were qualified to testify as experts in
pediatric child abuse. Mother also testified.
14
a. Dr. Imagawa’s Testimony
Dr. Imagawa testified son initially had marks or
discoloration on his head (ear and face) and under his arms, then
subsequently also on his torso. She stated that, after son’s first
hospitalization in September 2020, he was discharged with “a
diagnosis of a hematoma of the left ear that was resolving and
had significantly resolved during the hospitalization.” As to son’s
October 2020 hospitalization, Dr. Imagawa testified son
“shouldn’t be bruising from just getting a bath or holding him
when he’s taking a bath.” She noted son’s “bruises resolved
within seven to ten days after he was in placement. And he has
had no further bruising as far as I am aware, no further lesions,
no further ear injury, nothing under his arms. And we have all of
this to document that everything was resolved.”
Dr. Imagawa opined, “with reasonable certainty,” son had
“a hematoma not hemangioma.” Dr. Imagawa explained there
are no specific tests that can be conducted to diagnose either a
hematoma or hemangioma. Rather, she explained, such
diagnoses are done by clinical evaluation and a patient’s history.
She testified son’s “clinical course is not consistent with
hemangioma” but rather was consistent with a hematoma. She
stated there was “no accidental explanation to have caused [son’s]
ear injury, the bruise on his cheek, the swelling of the temple
region, the injuries under his arms.” Dr. Imagawa noted because
son was an infant and not yet mobile, it was “highly concerning
for child abuse” to see marks on such areas of the body. She
concluded “these are consistent with inflicted injuries.”
Dr. Imagawa also discussed what she considered
deficiencies in Dr. Bruhn’s report. She stated it appeared Dr.
Bruhn did not have access to all of son’s medical records and
15
related photographs. In addition, Dr. Imagawa believed some of
Dr. Bruhn’s conclusions were inaccurate. For example, she
testified Dr. Bruhn’s conclusion that the doctors “could not agree
on a unifying diagnosis ‘hemangioma’ versus ‘hematoma’ [was]
actually not correct. In the records, it indicates this is a
hematoma. And in the discharge summary, it acknowledges that
the hematoma had really significantly resolved” and there
remained a “residual hemangioma.” Dr. Imagawa also noted Dr.
Bruhn seemed to emphasize an opinion by a doctor who assessed
son during his September 2020 hospitalization, which opinion
stated, “ ‘as of now’ ” nonaccidental trauma “ ‘ruled out.’ ” Dr.
Imagawa explained, however, that opinion predated the
significant improvement to son’s ear at discharge from the
hospital and its subsequent total resolution.
b. Dr. Bruhn’s Testimony
Dr. Bruhn testified that “there are certain characteristics of
abusive parents” that he considers important but not
determinative. He stated mother and father did not “fit the usual
mold of abusing parents.” For example, Dr. Bruhn testified
mother “wasn’t trying to hide anything from the doctors,” noting
mother brought son to the doctor when she noticed the lesion on
his ear getting worse.
Concerning son’s first hospitalization in September 2020,
Dr. Bruhn noted one doctor had indicated son might have a
“vascular anomaly.” In light of that potentiality, Dr. Bruhn
stated a vascular anomaly team should have been consulted but
was not. He believed the vascular anomaly team, had they been
consulted, “would have been able to give a reasonable opinion
whether this was a hemangioma or a hematoma [on son’s ear]. I
think they could have weighed in on that aspect of the diagnosis.”
16
Dr. Bruhn also noted there are “ ‘mimics of child abuse’ that are
really medical conditions and haven’t been adequately ruled out
in this situation.” He mentioned Ehler-Danlos Syndrome and
certain dermatologic conditions as examples. He stated a test
exists to rule out Ehler-Danlos Syndrome but it had not been
done in this case. Dr. Bruhn was not aware of any tests
performed on son during his October 2020 hospitalization that
would have ruled out hemangioma. He reiterated he would have
consulted with a geneticist and a vascular anomaly team.
Dr. Bruhn emphasized this was a complicated case; “I can’t
tell you what this is. I don’t know, but I know it’s not a
straightforward NAT [nonaccidental trauma] case.” Dr. Bruhn
believed son’s ear and armpit markings could be hemangiomas
but the markings on son’s torso were “more likely a bruise.”
During his testimony, the court asked Dr. Bruhn to review a
November 2020 photograph of son’s ear. It was unclear whether
Dr. Bruhn had seen the photograph before. After looking at the
photograph, Dr. Bruhn noted the discoloration of the ear had
disappeared and there were two nodules on the upper portion of
the ear. Because the discoloration had disappeared, Dr. Bruhn
stated the photograph was “a point in favor of this being a
hematoma rather than a hemangioma.” The court also asked Dr.
Bruhn to compare a September 2020 photograph of son’s armpits
with a November 2020 photograph of the same area. It appeared
the marks there had disappeared. Dr. Bruhn stated a
hemangioma would “probably not” resolve in that amount of time
but a hematoma “definitely would.” Similarly, Dr. Bruhn
testified, “If it resolved in a short period of time, that would be
more in favor of a hematoma.” Still, he could not rule out a
17
hemangioma, noting if a hemangioma were deeper under the skin
it could be difficult to see.
c. Mother’s Testimony
Mother recounted son’s multiple hospital visits and various
doctors’ appointments. She explained she followed the doctors’
instructions and always brought son in for his scheduled
appointments and sought out medical care even when not
scheduled. Mother testified neither she nor father intentionally
or accidentally hurt son. Speaking through tears, mother stated,
“I want to state this solemnly to everybody who is listening, all
the attorneys and Your Honor, that me and my husband really
love [son], and we are innocent. We want [son] back. [Son] needs
us and we need [son].”
As to son’s October 2020 hospitalization, mother testified
she did not know why son had markings on his torso but “the
doctor kept insisting that I must give an explanation as to what
gave rise to [son’s] bruises. . . . After some time—they kept
pressuring me—I surmised that—I guessed that maybe during a
shower, I could have applied just a bit too much pressure on him,
that that could cause the bruising. But I don’t know.” Mother
testified some of the Department social workers who spoke with
her at the hospital did not speak Mandarin. Mother explained
the social workers used a translator through their iPad to
communicate with her. Mother believed “the interpretation
provided that day was not up to standard” and indicated the
social workers also complained about it.
d. Ruling
On January 11, 2021, after hearing the testimony and
argument from counsel, the juvenile court sustained the
subdivision (a) and first subdivision (b) counts of the petition
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(related to nonaccidental trauma). The court dismissed the
remaining subdivision (b) count (related to medical neglect). The
court found son was a person described by section 300.
The court stated, “The fundamental issue before this court
is whether the discoloration of [son’s] ear, armpits, and abdomen
were a result of a congenital hemangioma or a hematoma
resulting from inflicted trauma.” The court concluded the marks
on son’s body were “more likely than not” hematomas. In coming
to its conclusion, the court “found Dr. Imagawa’s opinion to be
more cogent, persuasive, and directly supported by the factual
circumstances of this case. Dr. Bruhn’s opinion was more
speculative and, upon further questioning at court, did not hold
up as plausible.” The court considered Dr. Bruhn’s opinion “less
plausible than Dr. Imagawa’s because his testimony was
inconsistent with statements in his report. In court he testified
that [son’s] abdominal discolorations were likely hematoma and
concluded that perhaps even the ear was a hematoma, as well,
once he reviewed the photos showing the bruises’ resolution after
a couple of weeks.” The court noted both experts agreed on the
differences between hematomas and hemangiomas, that
hematomas result from trauma, and that hematomas resolve
within weeks whereas hemangiomas take months or longer to
resolve.
The court noted Dr. Bruhn “spent much of his testimony
speculating about possible other causes for [son’s] ear injury,
specifically stating that genetic testing would assist in
determining whether [son] has Ehler-Danlos . . . Syndrome,
which could cause a child to be predisposed to bruising; however
. . . Dr. Bruhn stated that Ehler-Danlos Syndrome is a permanent
condition and would continue to cause bruising throughout the
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inflicted child’s life. But that situation doesn’t match the facts
before us here. [Son’s] bruising resolved in a couple of weeks, and
no further bruising has appeared since he was removed from his
parents’ care.”
Next, the court concluded the hematomas were caused by
nonaccidental trauma. Although the court “found mother to be
an attentive and loving parent” and “appropriately emotional
about having her child removed from her care,” the court found it
significant mother had failed to provide a reasonable or credible
explanation for son’s injuries. The court stated, “Despite
mother’s attentiveness to [son], the evidence shows that the child
was seriously injured in her care; therefore, in light of [son’s]
repeated occurrences of unexplained bruising and the absence of
any plausible medical or other explanation about how these
injuries occurred, the court can reach no other conclusion than
that the parents are responsible for the injuries sustained by
[son] while he was in their care.”
As to disposition, the juvenile court removed son from
parents’ custody and ordered, among other things, parents to
participate in an age-appropriate parenting class as well as to
continue with their monitored visitation. The court emphasized
its ruling was not punitive against parents but was in son’s best
interest. The court also ordered the Department to have son
tested for Ehler-Danlos Syndrome.
6. Appeal
Mother and father appealed the juvenile court’s
January 11, 2021 jurisdictional and dispositional orders.
7. Postappeal Orders
While these appeals were pending, the juvenile court
returned son to his parents’ custody. As a result, the Department
20
filed, and we granted, a motion to dismiss the appeals as to the
juvenile court’s removal order. Also while these appeals were
pending, mother and father completed their court-ordered
parenting program. Thus, the parents’ challenges to the juvenile
court’s dispositional orders are moot, and we do not address them
here.
DISCUSSION
Mother and father argue substantial evidence does not
support the juvenile court’s exercise of jurisdiction under
subdivision (a). As discussed below, although we agree this is not
a straightforward case, we are not persuaded by the parents’
arguments and conclude substantial evidence supports the
juvenile court’s jurisdictional findings.
1. Applicable Law
Under section 300, subdivision (a), the juvenile court may
assert dependency jurisdiction and declare a child a dependent of
the court when “[t]he child has suffered, or there is a substantial
risk that the child will suffer, serious physical harm inflicted
nonaccidentally upon the child by the child’s parent or guardian.
For purposes of this subdivision, a court may find there is a
substantial risk of serious future injury based on the manner in
which a less serious injury was inflicted, a history of repeated
inflictions of injuries on the child or the child’s siblings, or a
combination of these and other actions by the parent or guardian
that indicate the child is at risk of serious physical harm. For
purposes of this subdivision, ‘serious physical harm’ does not
include reasonable and age-appropriate spanking to the buttocks
if there is no evidence of serious physical injury.” (§ 300,
subd. (a).)
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Section 355.1, subdivision (a) creates a rebuttable
presumption that certain injuries are nonaccidental in nature.
That section provides, “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.”
(§ 355.1, subd. (a).) “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 the existence or nonexistence of the
presumed fact from the evidence and without regard to the
presumption.’ (Evid. Code, § 604.)” (In re D.P. (2014) 225
Cal.App.4th 898, 903–904; § 355.1, subd. (c).)
Thus, “[w]hile the presumption under section 355.1
‘disappears upon the introduction of evidence which would
support a finding of its nonexistence (Evid. Code, § 604), the trier
of fact, here the juvenile court, must still weigh the inferences
arising from the [professional’s] testimony which gave rise to the
presumption against the contrary evidence . . . and resolve the
conflict. [Citation.]’ [Citation.] . . . ‘Where there is more than
one inference which can reasonably be deduced from the facts,
22
the appellate court is without power to substitute its deductions
for those of the trier of fact.’ ” (In re D.P., supra, 225 Cal.App.4th
at pp. 904–905.)
“The legislatively declared purpose of these provisions [of
the Welfare and Institutions Code] ‘is to provide maximum safety
and protection for children who are currently being physically,
sexually, or emotionally abused, being neglected, or being
exploited, and to ensure the safety, protection, and physical and
emotional well-being of children who are at risk of that harm.’
(§ 300.2, italics added.) ‘The court need not wait until a child is
seriously abused or injured to assume jurisdiction and take the
steps necessary to protect the child.’ ” (In re I.J. (2013) 56
Cal.4th 766, 773.) “ ‘The purpose of dependency proceedings is to
prevent risk, not ignore it.’ ” (Jonathan L. v. Superior Court
(2008) 165 Cal.App.4th 1074, 1104.) Courts “need not wait for
disaster to strike before asserting jurisdiction.” (In re K.B. (2021)
59 Cal.App.5th 593, 603.) Moreover, special protection is given to
children like son, who are “ ‘of such tender years that the absence
of adequate supervision and care poses an inherent risk to [his or
her] physical health and safety.’ ” (In re Christopher R. (2014)
225 Cal.App.4th 1210, 1216, 1219 [children under the age of six
at the time of the jurisdiction hearing are of “tender years”].)
2. Standard of Review
We review the juvenile court’s jurisdictional findings for
substantial evidence. (In re I.C. (2018) 4 Cal.5th 869, 892.) “It is
well settled that the standard is not satisfied simply by pointing
to ‘ “isolated evidence torn from the context of the whole record.” ’
[Citations.] Rather, the evidence supporting the jurisdictional
finding must be considered “ ‘in the light of the whole record’ ” ‘to
determine whether it discloses substantial evidence—that is,
23
evidence which is reasonable, credible, and of solid value.’ ”
(Ibid.)
“ ‘ “In making this determination, we draw all reasonable
inferences from the evidence to support the findings and orders of
the dependency court; we review the record in the light most
favorable to the court’s determinations; and we note that issues
of fact and credibility are the province of the trial court.” ’ ” (In re
I.J., supra, 56 Cal.4th at p. 773.) Under this standard, our
review “ ‘begins and ends with a determination as to whether or
not there is any substantial evidence, whether or not
contradicted, which will support the conclusion of the trier of fact.
All conflicts must be resolved in favor of the respondent and all
legitimate inferences indulged in to uphold the verdict, if
possible. Where there is more than one inference which can
reasonably be deduced from the facts, the appellate court is
without power to substitute its deductions for those of the trier of
fact.’ ” (In re David H. (2008) 165 Cal.App.4th 1626, 1633.) “We
do not reweigh the evidence, evaluate the credibility of witnesses,
or resolve evidentiary conflicts. [Citation.] The judgment will be
upheld if it is supported by substantial evidence, even though
substantial evidence to the contrary also exists and the trial court
might have reached a different result had it believed other
evidence.” (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)
3. Justiciability
As an initial matter, we note mother and father challenge
only the juvenile court’s exercise of jurisdiction under subdivision
(a). Mother and father do not challenge the juvenile court’s
exercise of jurisdiction under subdivision (b). Thus, even if we
were to reverse the juvenile court’s subdivision (a) finding,
dependency jurisdiction would remain under subdivision (b). In
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such circumstances, an appeal is subject to dismissal as
nonjusticiable. (In re Drake M. (2012) 211 Cal.App.4th 754, 762–
763.) Nonetheless, in such cases an appellate court may address
the merits of the challenged jurisdictional finding when “the
finding (1) serves as the basis for dispositional orders that are
also challenged on appeal [citation]; (2) could be prejudicial to the
appellant or could potentially impact the current or future
dependency proceedings [citations]; or (3) ‘could have other
consequences for [the appellant], beyond jurisdiction.’ ” (Ibid.)
Mother and father urge us to consider their appeal because
the juvenile court’s subdivision (a) finding could harm them
beyond jurisdiction.3 The Department does not argue otherwise
or even address this issue on appeal. We elect to consider the
parents’ challenge to the juvenile court’s exercise of jurisdiction
under subdivision (a). (In re Drake M., supra, 211 Cal.App.4th at
pp. 762–763; In re D.P., supra, 225 Cal.App.4th at p. 902.)
4. Substantial evidence supports jurisdiction under
section 300, subdivision (a) (physical abuse).
Mother and father argue they presented sufficient evidence
to rebut the section 355.1 presumption. In particular, they claim
Dr. Bruhn’s testimony rebutted the section 355.1 presumption
that son’s injuries were nonaccidental and caused by the parents.
Parents note Dr. Bruhn “testified that the cause of the marks
could be caused by a vascular anomaly or a genetic disease.” In
3 Mother and father also urge us to consider their appeal of
the juvenile court’s subdivision (a) jurisdictional finding because
that finding served as a basis for the court’s dispositional orders,
which the parents also appealed. However, as noted above, the
appeals from the dispositional orders are now moot and,
therefore, do not constitute grounds for considering their
subdivision (a) jurisdictional challenge.
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fact, Dr. Bruhn was not sure what caused the markings on son’s
body. He testified, “I can’t tell you what this is. I don’t know, but
I know it’s not a straightforward NAT case.” Assuming this was
sufficient to rebut the section 355.1 presumption, the juvenile
court then was required to weigh the conflicting evidence and
make factual determinations. (In re D.P., supra, 225 Cal.App.4th
at pp. 904–905.)
We conclude substantial evidence supports the juvenile
court’s jurisdictional findings. On the one hand, the evidence
included the parents’ apparent love and concern for son, their
emphatic denials of intentional harm to son, mother’s suggestion
that some of son’s bruising could have resulted from her
innocently holding him too tightly during bath time, and Dr.
Bruhn’s expert speculation that a variety of genetic or
dermatologic conditions could have caused son’s markings. On
the other hand, the evidence also included Dr. Imagawa’s expert
opinion, as well as other medical doctors’ opinions, that son’s
repeated presentations with unexplained markings were highly
indicative of physical abuse. Given the fact that no one could
definitively state how or why son had the markings he had,
which importantly by all accounts appear to have been
hematomas as opposed to hemangiomas, and son clearly was of
“tender years,” the juvenile court’s subdivision (a) finding was
supported by substantial evidence.
We are not persuaded by the parents’ attempt to minimize
the visible markings on son’s body. Parents argue the markings
on son’s body do not constitute “serious physical harm” under
subdivision (a). We disagree. When an infant has visible
swelling and obvious bruising on multiple areas of his body on
more than one occasion, regardless of whether that infant
26
appears to be in pain when those areas are examined, those
injuries certainly can constitute serious physical harm for
purposes of subdivision (a). While we agree with parents that
any unexplained bruise on a child does not necessarily constitute
cause for dependency jurisdiction, this case presents more than a
single unexplained bruise. Additionally, Dr. Imagawa reported a
healthy infant such as son would not sustain bruising from
routine daily handling. Yet here, son, an infant, had repeated
unexplained markings which multiple doctors considered highly
concerning for child abuse.
As Dr. Bruhn noted, this is not a straightforward case.
There are clearly two conflicting sides to the matter.
Nonetheless, we cannot reweigh the facts or assess credibility of
witnesses. Those are roles explicitly reserved to the juvenile
court. (In re I.J., supra, 56 Cal.4th at p. 773; In re David H.,
supra, 165 Cal.App.4th at p. 1633; In re Dakota H., supra, 132
Cal.App.4th at p. 228.) Significantly, of the two expert opinions
presented, the juvenile court found Dr. Imagawa’s opinion more
plausible. The court found Dr. Bruhn’s opinion “more speculative
and, upon further questioning at court, [it] did not hold up as
plausible.” Despite the competing evidence, substantial evidence
supports the juvenile court’s jurisdictional findings under
subdivision (a).
Finally, after briefing had concluded in this appeal, counsel
for mother filed a letter alerting the court of new case authority,
In re Cole L. (2021) 70 Cal.App.5th 591 (Cole L.), which our
colleagues in Division Seven of the Second District recently
decided. Mother argues Cole L. supports the parents’ position
here that the juvenile court’s subdivision (a) jurisdictional finding
must be reversed. However, Cole L. is factually distinguishable
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from the instant case. In part, the Cole L. court reversed a
finding of dependency jurisdiction under subdivision (a) based on
incidents of parental domestic violence outside the presence of
the subject children. (Id. at pp. 602–603.) The court also stated
that “a finding under section 300, subdivision (a), requires
evidence of a risk of physical injury ‘inflicted nonaccidentally
upon the child.’ An unintended injury to a bystander child that
results from an intentional act directed at another—for example,
due to an object thrown by one parent at another during an
argument—does not satisfy that statutory requirement.” (Cole
L., supra, at p. 603.) Cole L. is factually distinct and does not
change our decision here.
DISPOSITION
The juvenile court’s January 11, 2021 jurisdictional order is
affirmed and the remaining appeal from the juvenile court’s
dispositional order is dismissed as moot.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
HOFFSTADT, J.
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