In re G.Z.

Filed 11/30/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re G.Z., a Person Coming Under B313378
the Juvenile Court Law.
______________________________ (Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. 20CCJP03156)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
KIMBERLY D.,
Defendant and Appellant.
APPEAL from findings and order of the Superior Court of
Los Angeles County, Steff Padilla, Juvenile Court Referee.
Reversed and remanded with directions.
Aida Aslanian, under appointment by the Court of Appeal,
for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Tracey Dodds, Principal Deputy
County Counsel, for Plaintiff and Respondent.
_________________________
INTRODUCTION
Kimberly D. (Mother) appeals from the juvenile court’s
jurisdictional finding and dispositional order as to her minor
child, G.Z. First, Mother contends the evidence was insufficient
to support the court’s finding that her minor son’s subdural
hematomas were the result of her neglectful acts. Second,
Mother argues her due process rights were violated when the
juvenile court relied on Welfare and Institutions Code1 section
355.1’s rebuttable presumption in finding neglect by Mother
when it “never notified its intent to do so until all parties had
argued and submitted the case.”
Given the lack of substantial evidence, we reverse the order
of the juvenile court asserting jurisdiction, vacate the court’s
factual findings, and direct the juvenile court upon remand to
dismiss the petition.
FACTUAL AND PROCEDURAL BACKGROUND
A. Referral and Investigation
On June 4, 2020, the Los Angeles County Department of
Children and Family Services (DCFS) received an immediate
response referral for Mother’s 10-month-old son, G.Z. (born July
2019). The caller reported G.Z. was admitted to the hospital five
days before, on May 31, 2020, due to persistent vomiting. The
caller further reported MRI and CT scan results showed G.Z. had
two older subdural hematomas (brain bleeds) and one new
subdural hematoma. Mother, then 20 years old, “could not
1 Undesignated statutory references are to the Welfare and
Institutions Code.
2
explain the cause of the . . . hematomas.” The caller suspected
“possible physical abuse.”
That same day, a children’s social worker (CSW) with
DCFS conducted multiple interviews. The CSW first contacted
Dr. Kevin Waloff of Children’s Hospital Los Angeles (CHLA). Dr.
Waloff stated “there is no medical explanation” for the
hematomas and was waiting for test results to discern if G.Z. had
a bleeding disorder.
The CSW also contacted CHLA nurse practitioner (NP)
Amarra McHale, who reported Mother stated G.Z. fell off the bed
about two months ago “while co-sleeping” with her. The NP
believed “a simple fall would not cause these injuries and that it
is caused by blunt force or vigorous shaking.” Per the NP,
Mother took G.Z. to St. Joseph’s Hospital two weeks prior and to
CHLA on May 26, 27, and 31, 2020.
The CSW met with Mother and G.Z., who appeared
“bonded” with Mother and comfortable in her presence. The CSW
did not observe any marks or bruises on G.Z.’s body or head.
Mother explained she is no longer in a relationship with G.Z.’s
father Robert Z. (Father), who has not been involved in G.Z.’s life
for the past nine months. Mother resides with her parents—
G.Z.’s maternal grandfather (MGF) and maternal grandmother
(MGM); her two adult siblings—G.Z.’s maternal aunt (MA) and
maternal uncle (MU); and one minor sibling—G.Z.’s maternal
uncle (minor MU). Mother’s family babysat on prior occasions
while she was at work or taking online classes. Mother has “no
suspicions” a family member would harm G.Z.
Mother explained that sometime in April, she and G.Z.
were co-sleeping in her bed, as G.Z. did not like sleeping in his
crib; “as a precaution, she laid pillows around the bed to create a
3
border of protection” for G.Z., but he “fell off the side of the bed
onto the carpet.” Mother stated G.Z.’s head may have hit the
wall near the bed. G.Z. cried and Mother consoled him. Mother
stated there was another incident almost a month ago where G.Z.
fell out of MGF’s arms and onto the kitchen floor when
“attempting to get into the kitchen cabinets.” Mother explained
G.Z. recently “started to move around a lot” and “want[s] to walk
unassisted.”
Mother stated it was not until two weeks ago when G.Z.
began vomiting consistently. Mother first thought it was “a
stomach issue” but grew “very concerned” when symptoms
persisted. She took G.Z. to the emergency room at St. Joseph’s
Medical Center (St. Joseph’s). G.Z. was prescribed Zofran to stop
the vomiting. Mother administered the medicine but it did not
help with G.Z.’s vomiting. Mother then took G.Z. to CHLA “due
to their reputation and hoping for better care.” G.Z. was
prescribed Zofran again. Because G.Z.’s symptoms persisted the
next two days, Mother returned to CHLA on May 31, 2020. G.Z.
was admitted and further tests conducted. MRI results showed
he had two old hematomas and one new. Mother had no
explanation for them except for the two falling incidents she
disclosed.
The CSW conducted an unannounced home visit and found
Mother’s home clean, adequately furnished, and stocked with
sufficient food supply. The CSW observed Enfamil baby formula,
bottles, baby snacks, and a car seat.
The CSW interviewed MGF, who was “visibly upset” and
“tearful.” MGF stated he was aware G.Z. had fallen off the bed
two months ago because Mother told him about it. MGF
explained G.Z. did not show “any concerning symptoms” after
4
that incident. MGF stated G.Z. fell on the kitchen floor about
“17-20 days ago” while MGF “was guiding [G.Z.] by his hands as
he attempted to walk across the cabinets.” G.Z. was trying to
walk on his own and “lost his balance”; MGF was unable to catch
him “before he fell back on his head.” G.Z. cried “a little” but was
“easily comforted.” MGF described the incident as “accidental.”
He stated he “loves his grandson” and that G.Z. is “well taken
care of” and supervised at all times.
MGF stated G.Z. started showing concerning symptoms,
like vomiting, about one to two weeks ago. The “whole family
was very concerned.” MGF stated Mother went to the hospital to
get G.Z. medical attention on three separate occasions; “the
hospitals kept sending [G.Z.] home” and Mother “kept returning
to get help.” MGF did not understand why there were allegations
against Mother.
The CSW interviewed MU next. MU was aware G.Z. had
fallen off the bed two months ago because Mother told him after
it happened. MU stated he was also aware of G.Z.’s falling
incident while under MGF’s supervision. MU stated G.Z.
appeared “normal” and exhibited no symptoms at that time.
Once G.Z. started vomiting, “the family sought help.” MU denied
any concerns that G.Z. was neglected. He has never witnessed
Mother or any family member hit, shake, or push G.Z.
The CSW interviewed MA, who stated she was awake when
G.Z. fell off the bed. MA recalled hearing a “loud thump” and
went into the bedroom and observed Mother consoling G.Z., who
was crying. MA stated she was also aware of the falling incident
with MGF; she stated G.Z. “likes to try to walk on his own and
fell.” G.Z. did not show any symptoms until “1–2 weeks ago”
5
when he started vomiting. MA never witnessed Mother hit or
shake G.Z. and believed G.Z. is well cared for.
The CSW also interviewed minor MU, who was aware G.Z.
had fallen off the bed two months ago but was not aware of G.Z.’s
falling incident in the kitchen. Minor MU had no concerns that
anyone in the home would harm or neglect G.Z.
MGM was “crying uncontrollably” during her interview
with the CSW, stating her “heart was being ripped out of her
chest” because DCFS was “tak[ing] the baby away.” MGM stated
“the entire situation” was a result of “her error” because she
advised Mother not to take G.Z. to the hospital when he
“appeared to be fine” after falling “off the bed onto a carpeted
floor.” MGM stated Mother sought medical care for G.Z. when he
started vomiting two weeks ago. Mother returned to the hospital
because G.Z. was not getting better and the doctor informed her
that G.Z. “ha[d] blood in his skull.” MGM denied any abuse or
neglect. She stated Mother is very loving towards G.Z. and
provides him plenty of food, clean clothes, and regularly bathes
him. MGM stated this is the first time they had any involvement
with DCFS.
Mother voluntarily agreed that G.Z. would temporarily
reside with G.Z.’s paternal aunt (PA) for one week per the
“voluntary safety plan” proposed by DCFS. PA denied having
any concerns that Mother or Mother’s family would harm G.Z.
PA stated she has observed Mother “being caring and loving”
towards G.Z. PA stated she has contact with G.Z. once a month.
She was aware Father denied paternity and “has not provided
the support he needs.” PA stated Father’s decision not to be
involved in G.Z.’s life has caused “dissension in the family.”
6
The CSW conducted a telephonic interview with Father,
who was unaware G.Z. had hematomas and was hospitalized. He
denied having concerns about Mother or her family, but stated he
had no contact with them since G.Z. was three weeks old. Father
“attempted to file for 50/50 custody but then withdrew”2 and
wanted a paternity test. Father is unemployed. He confirmed he
is no longer in a relationship with Mother and was now living
with girlfriend Sophia. Father did “not feel comfortable with
[G.Z.] temporarily residing with PA as there has been familial
conflict.” Father stated he could provide for G.Z.’s needs and has
support from Sophia and her family.
The CSW assessed Father’s home and found it clean,
furnished, and with sufficient food supply. There was a room
prepared for G.Z. with a crib, stroller, and car seat. The CSW
informed Mother that Father wanted to care for G.Z.; Mother was
emotional and cried. She expressed concern that G.Z. was not
familiar with Father, who had no experience caring for G.Z. She
nonetheless agreed to Father caring for G.Z. as part of the
voluntary safety plan and requested DCFS provide counseling to
Father about co-parenting. G.Z. was temporarily placed with
Father on June 5, 2020. The CSW reiterated to Father that
Mother is allowed telephonic contact with G.Z.
DCFS obtained some medical records, including pediatric
trauma consult notes dated June 3, 2020 that specify G.Z.’s
vomiting “remained unresolved and was unresponsive to
[Z]ofran.” The CT scan of G.Z.’s head demonstrated “arachnoid
2 On May 7, 2020, Father had filed a parentage petition in
family court, requesting joint legal and physical custody of G.Z.,
and visitation rights.
7
granulation and epidural hematoma,” while the MRI showed
“bilateral chronic subdural hematomas and subacute hematoma
in the left middle fossa.” The notes provide Mother denied any
recent history of trauma and explained that G.Z. fell “from a bed
onto a carpeted floor 2-3 months ago.” The notes further provide
Mother reported G.Z. had consistent emesis, leading her to take
G.Z. to hospitals “a total of 4 times.” The notes describe G.Z.’s
head as “atraumatic.”
On June 8, 2020, a removal order was sought and granted
against Mother, “due to allegations of physical abuse by an
unknown perpetrator and general neglect by mother.” G.Z.
remained in Father’s care.
On June 10, 2020, Mother contacted the CSW and stated
she discovered the timeline of specific incidents by reading
through her text messages. Per Mother, G.Z. started vomiting on
May 20, 2020 and she took him to the hospital the following day.
She stated G.Z. fell in the kitchen while with MGF on May 23,
2020.
B. Petition and Detention
On June 11, 2020, DCFS filed a Welfare and Institutions
Code section 300 petition on G.Z.’s behalf. It alleged:
• Counts a-1, b-1: G.Z. was hospitalized on May 31, 2020.
G.Z. was suffering from “persistent vomiting” for two
weeks and a “detrimental condition consisting of
arachnoid granulation and epidural hematoma,
bilateral chronic subdural hematomas and subacute
hematoma.” Mother’s explanation of how G.Z.
sustained the injuries was “inconsistent with the child’s
injuries.” The injuries were consistent with “non-
accidental trauma” and would not ordinarily occur but
8
for “deliberate, unreasonable, and neglectful acts” by
Mother who had care and custody of G.Z. “Such
deliberate, unreasonable and neglectful acts [by]
[M]other endanger [G.Z.’s] physical health and safety
and place [him] at risk of serious physical harm,
damage and danger.”
• Count b-2: Mother “failed to obtain timely necessary
medical treatment” for G.Z. Mother’s failure to obtain
timely medical treatment for G.Z. endangered his
physical safety and placed him at risk of serious
physical harm and danger.
• Count e-1: G.Z.’s injuries are consistent with non-
accidental trauma. Such “physical abuse was
excessive” and caused G.Z. “unreasonable pain and
suffering.” Mother knew or reasonably should have
known G.Z. was being physically abused and failed to
protect him. Mother’s failure to protect G.Z.
endangered his physical health and placed him at risk
of serious harm.
A physical examination of G.Z. was conducted on June 15,
2020. The notes provide there was “[n]o bruising or other signs of
external trauma” and specified “macrocephaly” (i.e., an enlarged
head or swelling of the brain).
At the detention hearing on June 16, 2020, Mother denied
the allegations against her. The juvenile court found Father “to
be the presumed father of the minor child.” It found “a prima
facie showing” that G.Z. is a person described by section 300,
subdivisions (a), (b), and (e). The juvenile court found no
reasonable means by which G.Z.’s physical or emotional health
could be protected without removal and ordered G.Z. removed
9
from Mother and released to Father’s home and care, under
DCFS supervision. The court ordered monitored visitation for
Mother, a minimum of two hours twice a week, with DCFS
discretion to liberalize. The court also ordered monitored
visitation for maternal grandparents with DCFS discretion to
liberalize.
C. Developments during Dependency Proceedings
The CSW researched Mother’s and Father’s criminal
history; their CLETs results displayed no criminal history. It
was also confirmed G.Z.’s family had “no prior history” with
DCFS.
Mother continued her monitored visits with G.Z. three
times a week for two hours a visit. No problems or concerns were
reported. The CSW described Mother as “cooperative” and that
she has “an emotional bond” with G.Z.
On October 6, 2020, the CSW interviewed Father. He
stated when G.Z. was initially released to him, G.Z. “would cry
[and] grab his head, as if he was in pain, however, he is no longer
doing this.” He stated G.Z. was “developing well” while in his
care. Father reported he obtained employment and was working
at a car lot owned by his now fiancée Sophia.
DCFS submitted to the court copies of medical/patient
notes on G.Z. Radiology results from June 1, 2020 state G.Z. had
“subdural hematomas on imaging with no reported history of
trauma.” Dr. Sarah Weber “[r]ecommended complete non-
accidental trauma workup.” The June 4, 2020 preliminary report
prepared by CHLA staff states the imaging results showed a
hematoma and cyst; given the findings, an MRI was done, which
showed a bilateral subdural hematoma and a more recent
subacute hematoma. “After discussing the images with radiology
10
and neurosurgery[,] the possible causes were trauma, cyst
rupture was less likely, and bleeding disorders [work up] . . . was
done which did not reveal other fractures and/or laboratory
findings.”
DCFS interviewed Mother on October 14, 2020. Mother
stated she took G.Z. to the hospital three times before he was
admitted and, later, discovered “two hematomas and a cyst in his
brain.” Mother confirmed G.Z. fell “on two occasions”—once in
March 2020 while co-sleeping with him in bed and woke up to “a
loud thump” when he fell off the bed and “might have hit his
head against the wall,” and once on May 23, 2020 when G.Z. was
playing with MGF in the kitchen and “fell on his bottom [when
he] pushed himself backwards on the ground and hit his head.”
Mother stated G.Z. did not start vomiting until after the fall on
May 23.
A letter sent on October 8, 2020 from Dr. Karen Imagawa,
director of the CARES Team at CHLA, summarized the relevant
medical history of G.Z., including his multiple hospital visits and
check-ups, as follows.
On May 20, 2020, Mother took G.Z. to St. Joseph’s due to
“concerns for repeated vomiting episodes starting the prior day.”
G.Z. was noted as being “well appearing, active and playful.”
On May 24, G.Z. was brought to CHLA and described as
having “nonbilious, non-bloody vomiting, decreased energy with
increased sleepiness.” An abdominal x-ray and intussusception
ultrasound “revealed no evidence of intussusception or other
signs of bowel obstruction.” G.Z. was provided anti-
nausea/vomiting medication.
Two days later, on May 26, Mother returned to CHLA with
G.Z., described as having “recurrent non-bilious, non-bloody
11
vomiting, decreased urine output and fatigue.”
On May 29, G.Z. had a “virtual visit (due to the COVID-19
pandemic)” with his primary care provider. Mother reported that
G.Z. vomited soup the previous day but is now able to tolerate
fluids. G.Z. was diagnosed with gastroenteritis.
On May 30, Mother brought G.Z. to CHLA again due to
recurrence of vomiting. G.Z. was described as “tired and pale.”
A CT scan of G.Z.’s head yielded intracranial hemorrhages,
leading to CHLA admitting G.Z. “for further evaluation and
care.”
On June 1, an MRI confirmed G.Z. had a “[l]eft subacute
subdural hematoma (~1-2 weeks of age) around an arachnoid
cyst.” There were also “[b]ilateral (right and left sided)
older/chronic subdural hematomas . . . but no older than ~30 days
of age.”
On June 2, pediatric ophthalmology consultation revealed
“no evidence of retinal hemorrhages or other signs of ocular
trauma.” A skeletal survey showed no evidence of fractures.
“Investigating agencies were notified” due to “concerns for
possible non-accidental/inflicted trauma” because Mother and her
family provided “inconsistent histories regarding possible head
trauma.”
Dr. Imagawa noted G.Z. was reportedly “doing very well”
during a CARES clinic visit on June 15, 2020. There was no
recurrence of vomiting. The notes stated G.Z. has macrocephaly.
During G.Z.’s neurosurgery clinic visit on July 8, 2020, a
recent MRI revealed “a decrease in size of the . . . left (subacute)
subdural hematoma around the arachnoid cyst, but with an
increase in size of the . . . left (older) subdural hematoma.”
12
On September 29, 2020, an MRI revealed G.Z.’s arachnoid
cyst had stabilized.
Dr. Imagawa’s October 8, 2020 letter next included her
opinion and assessment: Intracranial injuries such as subdural
hematomas in otherwise healthy infants “from causes other than
trauma are rare.” Subdural hemorrhage can occur as a contact
injury, i.e., blunt trauma to the head, where bleeding may result
from skull impact or fracture, and can also occur with noncontact
injury, such as “vigorous shaking.” In G.Z.’s case, given the
evidence of the arachnoid cyst, “it is conceivable that the
subacute hemorrhage noted around the cyst is related to bleeding
from (rupture of) the cyst which can occur from minor trauma.”
If G.Z. did indeed hit his head during the kitchen fall incident on
May 23, 2020, that “could explain the subacute subdural
hematoma . . . around the arachnoid cyst.”
However, G.Z.’s older/chronic subdural hematoma “still
remains a concern.” This older subdural “may be due to either, or
both, a contact or non-contact mechanism.” The increase in G.Z.’s
head circumference “may, at least in part, be the result of the
development[] of the subdural hematomas.” The MRI brain
findings “may be related to [G.Z.’s] developmental course or may
be the sequelae of previous head trauma; however, based on the
available information if is difficult to differentiate which is more
likely.” Dr. Imagawa opined it “could be possible . . . that these
findings might put [G.Z.] at some increased risk to sustain
subdural hemorrhage from more minor trauma.” However,
because “there is no reported history of head trauma (even minor)
that coincides with the estimated dating of the older subdurals —
the fall from the bed is too long ago, and the fall in the kitchen is
too recent.” As such, “non-accidental/inflicted trauma as the
13
cause of [G.Z.’s] older subdural hematoma remains a concern and
cannot be excluded.”
Dr. Imagawa’s letter concluded: “Of note, it appears that
mother was diligent in seeking consistent routine pediatric care
for [G.Z.] as well as . . . diligent and persistent in appropriately
continuing to seek care for [his] symptoms of vomiting.”
During the hearing held November 10, 2020, the juvenile
court granted Mother’s request that her visitation be liberalized
and ordered unmonitored visits for Mother for up to three hours,
with discretion to DCFS to liberalize. Mother and Father
informed the court that they planned visitation over the holidays,
such that Mother will spend Thanksgiving Day, Christmas Day,
and New Year’s Day with G.Z.
On January 5, 2021, DCFS submitted a last minute
information (LMI) and notified the court Mother “has been
consistent with her visits” with G.Z., who was now 16 months old.
During a hearing held that day, the court ordered G.Z. released
to both parents, under DCFS supervision. The court ordered a
joint 50/50 physical custodial schedule where G.Z. is with Mother
on Mondays and Tuesdays, with Father on Wednesdays and
Thursdays, and with alternating weekends, Friday to Sunday—
known as the “2-2-5” custodial plan.
On January 20, 2021, DCFS submitted another LMI,
notifying the court that Mother’s expert Dr. Michael Weinraub3 is
3 Dr. Weinraub has been a licensed physician since 1975 and
board certified in general pediatrics since 1978. Dr. Weinraub
gained “extensive hands-on experience caring for tens of
thousands of children . . . as an inner-city pediatrician in Los
Angeles” and has “developed comprehensive clinical pediatric
experience differentiating accidents and medical problems from
14
prepared to testify that G.Z.’s medical condition, macrocephaly,
i.e., an enlarged head or increase in size of the cranium, “made
him susceptible to subdural hematomas.” G.Z.’s first subdural
was “at the time of birth, or maybe even before.” G.Z. has a left
temporal subarachnoid cyst that “bleeds easily” and “could have
been bleeding since birth.” The cyst could have caused “a
spontaneous bleed” and could result from “normal handling of a
child.” G.Z.’s neomembranes (tissues) may “bleed with minor
trauma.” Dr. Weinraub found no indication of abuse and did not
find in G.Z. signs indicative of a “shaken baby.”
The CSW spoke with Dr. Imagawa, who stated that
“essentially she and Dr. Weinraub are saying the same thing,
except as to the dating” of the older subdural hematoma. Dr.
Imagawa indicated the older subdural hematoma is “no more
than 30 days old” per the MRI results.
D. Adjudication
The jurisdictional and dispositional hearings took place
January 22 and March 24, 2021.
Dr. Weinraub, deemed an expert in general pediatrics by
the court, testified at length. In preparation, he reviewed records
child abuse-related presentations.” Dr. Weinraub taught
pediatric residents from UCLA, USC, and Kaiser Medical Center.
Dr. Weinraub was also the Los Angeles County Edmund
Edelman Children’s Court Pediatrician from 2001 until 2013, and
“was assigned by judges’ court orders to more than [1,000] child
abuse cases.” In this court role, Dr. Weinraub “encountered cases
of children that were misidentified as child abuse, which were
instead cases of medical conditions that mimicked abuse,
including cases involving the controversial diagnosis of shaken
baby syndrome.”
15
from St. Joseph’s and CHLA, x-rays, radiology studies, outpatient
pediatric records, and G.Z.’s birth records. G.Z. had a left
temporal arachnoid cyst, a medical condition that is congenital
and has “been there since birth,” which can “bleed spontaneously”
and “cause chronic subdural hematomas.” He explained that G.Z.
suffered from chronic neomembranes that formed in his subdural,
which can “cause rebleeding and expand the subdural.” He
agreed with Dr. Imagawa that “the subacute subdural hematoma
can be a result of the arachnoid cyst and not due to significant
force from inflicted trauma.” G.Z. “had large arachnoid spaces
which can bleed spontaneously or from minor trauma. [Dr.
Imagawa] said it rarely happens but it could have happened in
this case. So I would agree with her on that.”
He opined the arachnoid cyst caused G.Z. to suffer the
bleedings with “normal” or “non-abusive” handling of G.Z. The
increased subarachnoid spaces made G.Z. more likely to have
subdural hematomas and “reduce[d] the amount of trauma that it
would take to cause bleeding because the veins are stretched.”
G.Z. had macrocephaly at birth and children born with
macrocephaly are “more likely than not to get a subdural
hematoma which would then go on to become chronic subdural.”
However, Mother did not find out and was not aware that G.Z.
had a cyst in his head until receipt of the CT scan results at
CHLA on May 31, 2020.
The persistent vomiting G.Z. experienced “if forceful
enough, could cause some bleeding but also the bleeding and the
subarachnoid cyst cause persistent vomiting because there’s
consistent pressure on the brain.” Dr. Weinraub opined that G.Z.
does not suffer from shaken baby syndrome, now called “acute
head trauma syndrome” because the there was no indication of
16
abuse, i.e., “injuries . . . caused by acceleration and deceleration
injury, for example, retinal hemorrhages,” “classic metaphysical
lesions,” “rib fractures.” There was “no indication that this child
has suffered any sort of abuse or neglect.”
Dr. Weinraub found no signs of medical neglect by Mother
and thought she did “an exemplary job.” Mother took G.Z. to the
hospital five times in nine days. He stated that co-sleeping with
a child of this age is “considered not appropriate by the American
Academy of Pediatrics,” but confirmed there is no evidence
Mother’s co-sleeping with G.Z. caused him any harm.
On March 22, 2021, Mother submitted a declaration stating
she first took G.Z. to St. Joseph’s on May 20, 2020 because he had
been vomiting for a few days and was not getting better. G.Z.
was prescribed Zofran. She followed the instructions given for
administering the Zofran, but G.Z. did not improve. He
continued to vomit whenever he ate. On May 24, 2020, she took
G.Z. to CHLA because he was not getting better. She told them
the Zofran was not working, but the doctors instructed her to
keep giving him the Zofran. They did not admit G.Z. Then, on
May 26, 2020, she returned with G.Z. to CHLA because he
continued to vomit any food he was given and the Zofran did not
help G.Z.’s symptoms improve. The doctors told her to stop
giving him Zofran, but did not admit G.Z. then either. Shortly
after midnight, Mother again took G.Z. to CHLA because he was
not improving. It was at this point when CHLA admitted G.Z.
When CHLA “wanted to release” G.Z. on May 31, 2020, Mother
“would not consent to his release” and “asked for further testing
to see what was causing [G.Z.] to vomit.” It was then when
CHLA performed further testing on G.Z. and discovered the
subdural hematomas.
17
On March 23, 2021, DCFS submitted a LMI notifying the
court of a letter from Dr. Benita Tamrazi, a board certified
neuroradiologist since 2012, director of neuroradiology at CHLA
since 2018, and expert in pediatric neuroradiology. The letter
provided: Dr. Tamrazi’s expertise and opinion is in the area of
neuroimaging and, specifically for this case, his opinion on the
approximate aging of blood in G.Z.’s brain MRI results dated
June 1, 2020. In terms of aging, blood product in brain is
described as acute if up to seven days old, subacute if more than
seven days but less than 30 days old, and chronic if more than 30
days old. “When determining the approximate age of blood
products, it is critical to look at the appearance of the blood
products relative to the appearance of cerebrospinal fluid (CSF)
within the ventricular system and subarachnoid spaces.” Dr.
Tamrazi viewed G.Z.’s imaging and found G.Z.’s blood products
“are brighter than the CSF, which is not consistent with chronic
subdural hematomas.” Based on the imaging and his expertise
as a pediatric neuroradiologist, Dr. Tamrazi opined G.Z.’s
subdural hematomas on the MRI dated June 1, 2020 are not
chronic and thus less than 30 days old.
On March 24, 2021, minor’s counsel argued DCFS “failed to
show that [G.Z.] has suffered or [is at] substantial risk of
suffering serious physical harm as a result of Mother’s conduct.”
Minor’s counsel “point[ed] out how diligent Mother was in
obtaining medical care for [G.Z.]” and referred to the hospital
visits on May 20, 24, 26, 27, and 30, 2022. Minor’s counsel
requested that the petition against Mother be dismissed.
After hearing argument from all parties, the juvenile court
stated its ruling. It cited to section 355.1, subdivision (a) and the
presumption affecting the burden of producing evidence. The
18
court made “a finding that this child would not have suffered the
injuries except for the unreasonable or neglectful acts of the
Mother.” The court “was troubled by the fact that Mother’s own
expert talked about possibly neglectful or unreasonable acts.”
The court continued: “And I want to be very clear that it is not
just about co-sleeping. [T]he court has [a] child that has had
multiple subdural hematomas, multiple bleeds while in the
custody of the Mother, and since the child has been in the custody
of the Father [and] since they’ve been sharing custody and they
have a parenting plan, there hasn’t been any new injuries.”
The juvenile court dismissed counts a-1, b-2, and e-1, and
sustained count b-1, finding it true by a preponderance of the
evidence. “Mother does not have a reasonable explanation, while
this child is in her sole custody, continued to have brain bleeds,
continued to have subdural hematomas with multiple falls.” The
court stated: “It’s just an ongoing pattern. Mother does
something. Child gets hurt. Mother doesn’t do something. Child
gets hurt. Multiple falls and this child gets hurt.”
The court proceeded to disposition. The court found G.Z. a
dependent of the court under section 300, subdivision (b). It
further found “release of the child to the parents would not be
detrimental to the safety, protection, or physical or emotional
well-being of the child” and ordered G.Z. released to the “home of
parents” under DCFS supervision. Mother and Father were to
continue sharing 50/50 custody of G.Z. with the previously agreed
upon “2-2-5” custodial plan. The court-ordered case plan for
Mother and Father included completing a parenting program for
special needs children.
Two days later, Mother filed her notice of appeal.
19
E. Post-Disposition Events
On September 22, 2021, while Mother’s appeal was
pending, the juvenile court found the conditions that justified the
initial assumption of dependency jurisdiction no longer exist and
are not likely to exist if supervision is withdrawn and terminated
jurisdiction with a custody order awarding the parents joint legal
and physical custody. The juvenile court stayed the termination
of jurisdiction pending its receipt of the custody order. On
October 8, 2021, the custody order was filed, the stay lifted,
jurisdiction terminated, and G.Z. was released to his parents.
On August 3, 2022, pursuant to Government Code section
68081, we invited both parties to submit supplemental briefing as
to whether Mother’s appeal should be dismissed as moot based on
the juvenile court’s post-disposition orders and termination of
jurisdiction. While DCFS did not respond, Mother submitted a
supplemental letter brief, which we have reviewed.
DISCUSSION
A. Mother’s Pending Appeal is Not Moot
“As a general rule, an order terminating juvenile court
jurisdiction renders an appeal from a previous order in the
dependency proceedings moot.” (In re C.C. (2009) 172 Cal.App.4th
1481, 1488.) “ ‘[A]n appeal presenting only abstract or academic
questions is subject to dismissal as moot.’ ” (In re Jody R. (1990)
218 Cal.App.3d 1615, 1621.) A reversal in such a case would be
without practical effect; the appeal will therefore be dismissed.
(In re Dani R. (2001) 89 Cal.App.4th 402, 404.)
However, the appellate court may find the appeal “ ‘is not
moot if the purported error is of such magnitude as to infect the
outcome of [subsequent proceedings] or where the alleged defect
20
undermines the juvenile court’s initial jurisdictional finding.’ ”
(In re Joshua C. (1994) 24 Cal.App.4th 1544, 1547, quoting In re
Kristin B. (1986) 187 Cal.App.3d 596, 605.) We may also decline
dismissal of the appeal where the jurisdictional findings could
affect the parent in the future (In re J.K. (2009) 174 Cal.App.4th
1426, 1432; accord, In re Daisy H. (2011) 192 Cal.App.4th
713, 716 [An appellate court ordinarily will not dismiss as moot a
parent’s challenge to a jurisdictional finding if the purported
error “could have severe and unfair consequences to [the parent]
in future family law or dependency proceedings”]), or where
review is necessary because the issue rendered moot by
subsequent events is of continuing public importance and is a
question capable of repetition, yet evading review (In re Anna S.
(2010) 180 Cal.App.4th 1489, 1498).
“We decide on a case-by-case basis whether subsequent
events in a juvenile dependency matter make a case moot and
whether our decision would affect the outcome in a subsequent
proceeding.” (In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1404;
see In re Kristin B., supra, 187 Cal.App.3d at p. 605.)
Mother contends the juvenile court’s findings and order are
prejudicial to her regardless of termination of jurisdiction. She
asserts she was 20 years old when dependency proceedings began
and will be “stigmatized life-long as an adjudicated neglectful
parent” as a result of the jurisdictional findings. She argues the
allegedly erroneous jurisdictional findings could subject her to
inclusion in the Department of Justice’s Child Abuse Central
Index (CACI) list, made available to county agencies and others
conducting background searches for those seeking employment or
housing, for instance. Mother argues it will have prejudicial
consequences for someone like her “who wanted to choose a
21
career involving children.” She states being listed on the CACI
will affect her in child custody proceedings as well, and urges us
to reverse the jurisdictional findings to allow her to contest
inclusion in the CACI.
Mother sufficiently articulated how the findings and order
could adversely affect or prejudice her. The child is very young
and will remain a minor for another 15 years; it is quite possible
there may be future actions regarding G.Z. in the family law
context, until he reaches the age of majority. It is also plausible
Father or the family law court may rely on the juvenile court’s
findings in making future custody or visitation orders; thus,
prejudice in subsequent family law proceedings is possible,
rendering Mother’s appeal justiciable.
In addition, we note the California Supreme Court has
granted review on the issues of (1) whether an appeal of a
jurisdictional finding is moot when the parent asserts that he or
she has been or will be stigmatized by the finding; and
(2) whether an appeal of a juvenile court’s jurisdictional finding is
moot when the parent asserts that he or she may be barred from
challenging placement in CACI as a result of the finding. (In re
D.P. (Feb. 10, 2021, B301135) [nonpub. opn.], review granted
May 26, 2021, S267429.) Because the findings that Mother’s
neglectful acts endangered G.Z., caused non-accidental trauma,
and placed him at risk of serious danger and harm at least
arguably continue to affect Mother adversely, we address the
merits of Mother’s appeal.
B. Substantial Evidence Does Not Support the Court’s
Assertion of Dependency Jurisdiction
1. Standard of Review
In reviewing a challenge to the sufficiency of the evidence
22
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 T.V. (2013) 217 Cal.App.4th 126, 133; accord, 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.)
In making our determination, 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 I.J., supra, 56 Cal.4th at p. 773; see In
re Alexis E. (2009) 171 Cal.App.4th 438, 451.) We uphold the
juvenile court’s findings unless they are “ ‘ “so lacking in
evidentiary support as to render them unreasonable.” ’ ”
(Jamieson v. City Council of the City of Carpinteria (2012)
204 Cal.App.4th 755, 763.) Substantial evidence is not
synonymous with any evidence; a decision supported by a “ ‘mere
scintilla of evidence’ ” need not be affirmed on appeal. (In re
Albert T. (2006) 144 Cal.App.4th 207, 216–217.) Further,
“ ‘ “[w]hile substantial evidence may consist of inferences, such
inferences must be ‘a product of logic and reason’ and ‘must rest
on the evidence.’ ” ’ ” (Id. at p. 217.)
2. Applicable Law
Section 300, subdivision (b)(1), authorizes a juvenile court
to exercise dependency jurisdiction over a child if the “child has
suffered, or there is a substantial risk that the child will suffer,
serious physical harm or illness, as a result of the failure or
inability of the child’s parent . . . to adequately supervise or
protect the child, or the willful or negligent failure of the child’s
23
parent . . . to adequately supervise or protect the child from the
conduct of the custodian with whom the child has been left, or by
the willful or negligent failure of the parent . . . to provide the
child with adequate . . . medical treatment[.] . . . The child shall
continue to be a dependent child pursuant to this subdivision
only so long as is necessary to protect the child from risk of
suffering serious physical harm or illness.” (§ 300, subd. (b)(1).)
A jurisdictional finding under section 300, subdivision
(b)(1), requires DCFS to demonstrate the following three
elements by a preponderance of the evidence: (1) neglectful
conduct, failure, or inability by the parent; (2) causation; and
(3) serious physical harm or illness or a substantial risk of
serious physical harm or illness. (In re Joaquin C. (2017)
15 Cal.App.5th 537, 561.) While evidence of past conduct may be
probative of current conditions, the question under section 300 is
whether circumstances at the time of the hearing subject the
child to the defined risk of harm. Previous acts of neglect alone
do not establish a substantial risk of future harm; there must be
some reason beyond mere speculation to believe they will reoccur.
(In re Ricardo L. (2003) 109 Cal.App.4th 552, 565.)
3. Analysis
On appeal, Mother challenges the sufficiency of the
evidence supporting count b-1 and the court’s related findings.
She contends DCFS had to establish G.Z.’s injuries were caused
by abuse rather than his preexisting congenital medical
condition. Mother argues she cannot be faulted for not having
known about G.Z.’s medical condition and that he required
special care as “numerous doctors and medical professionals who
had examined him” did not diagnose the condition until CHLA
performed further tests after Mother’s fourth visit to the hospital
24
with G.Z. Mother further argues DCFS presented no evidence of
endangerment or neglect by Mother or anyone in the household
at the time of the jurisdictional hearing, especially given that she
had unmonitored 50/50 custodial time with G.Z. for months by
the time of the hearing.
We agree with Mother.
The problem, as we view it, is this. There is no substantial
evidence in the record that the subdural hematomas were caused
by abuse or neglect by Mother or anyone else in Mother’s
household.
The record confirms that DCFS’s expert Dr. Imagawa never
stated or opined that G.Z. injuries were more likely than not
caused by abusive head trauma. She opined that intracranial
injuries such as subdural hematomas “in otherwise healthy
infants/children from causes other than trauma are rare.”
(Italics added.) But G.Z. is not an otherwise healthy infant. He
has conditions like macrocephaly, the arachnoid cyst, increased
subarachnoid spaces, and neomembranes, which render him
more susceptible to spontaneous bleeds or to bleeds through
minor non-abusive trauma or normal handling. Expert opinion
testimony constitutes substantial evidence only if based on
conclusions or assumptions supported by evidence in the record;
opinion testimony which is conjectural or speculative cannot rise
to the dignity of substantial evidence. (Roddenberry v.
Roddenberry (1996) 44 Cal.App.4th 634, 651.)
Regarding the subacute subdural hematoma surrounding
G.Z.’s arachnoid cyst, Dr. Imagawa stated: “It is conceivable that
the subacute hemorrhage noted around the cyst is related to
bleeding from (rupture of) the cyst which can occur from minor
trauma.” (Italics added.) If G.Z. did indeed hit his head during
25
the kitchen fall incident on May 23, 2020, that “could explain the
subacute subdural hematoma . . . around the arachnoid cyst.”
Regarding G.Z.’s older/chronic subdural hematoma, Dr.
Imagawa opined the MRI brain findings of increased
subarachnoid space “may be related to [G.Z.’s] developmental
course, or may be the sequelae of previous head trauma; however,
based on the available information it is difficult to differentiate
which is more likely.” (Italics added.) Dr. Imagawa opined it
possible the MRI brain findings of increased subarachnoid space
“might put [G.Z.] at some increased risk to sustain subdural
hemorrhage from more minor trauma.” (Second italics added.)
She concluded that non-accidental/inflicted trauma as the cause
of G.Z.’s older subdural hematoma “cannot be excluded.”
Dr. Imagawa essentially concluded G.Z.’s subdural
hematomas may or may not be caused by trauma, and that she
cannot conclusively rule it out. It is not Mother’s burden
however, to exclude non-accidental inflicted trauma as a possible
cause of G.Z.’s injuries. It is DCFS’s burden to prove by a
preponderance of the evidence that non-accidental trauma was
the cause of injury. Because Dr. Imagawa could not categorically
establish the cause of the older/chronic subdural hematoma, she
stated she could not rule out nonaccidental trauma. Lack of
conclusive evidence does not equate to evidence of neglect proven
by a preponderance. The burden is not on Mother to disprove
what DCFS had failed to prove in the first place.
In addition, general pediatrics expert Dr. Weinraub opined
G.Z. had a left temporal arachnoid cyst, a medical condition that
is congenital, which can “bleed spontaneously” and “cause chronic
subdural hematomas.” He explained G.Z. suffered from chronic
neomembranes that formed in his subdural, which can “cause
26
rebleeding and expand the subdural.” He agreed with Dr.
Imagawa that “the subacute subdural hematoma can be a result
of the arachnoid cyst and not due to significant force from
inflicted trauma.” He opined the arachnoid cyst caused G.Z. to
suffer the bleedings with minor trauma, i.e., by “normal” or “non-
abusive” handling of G.Z. The increased subarachnoid spaces
made G.Z. more likely to have subdural hematomas and
“reduce[d] the amount of trauma that it would take to cause
bleeding because the veins are stretched.” G.Z. had
macrocephaly at birth and children born with macrocephaly are
“more likely than not to get a subdural hematoma.” Plus, the
persistent vomiting G.Z. experienced “if forceful enough, could
cause some bleeding.”
The facts of this case are similar to In re Roberto C. (2012)
209 Cal.App.4th 1241. In that case, nine-month-old Roberto C.
fell unconscious and was taken to the hospital, at which time a
referral for neglect was made. (Id. at p. 1243.) The child was
found to have suffered a brain bleed and “nonaccidental trauma
was possible”; shaken baby syndrome was suspected. (Id. at
p. 1244.) Per the babysitter, Roberto once hit his head on his
walker while in the babysitter’s care, which caused a bruise. (Id.
at p. 1245.) DCFS discovered this was not Mother’s first brush
with DCFS. (Id. at p. 1244.) A petition was filed, alleging:
Roberto was suffering from “posterior subdural hematoma, acute
and chronic subdural hematomas and bilateral retinal
hemorrhages” and that Roberto’s parents “gave no explanations”
for how he sustained the injuries, which are “consistent with non
accidental [sic] trauma.” (Id. at p. 1244, fn. 2.) The parents’
“deliberate, unreasonable and neglectful acts” endangered
Roberto’s physical health and safety and placed him at risk of
27
harm and danger. (Ibid.) The parents “failed to obtain timely
necessary medical treatment for the child’s injuries.” (Ibid.) The
parents “knew, or reasonably should have known, that the child
was being physically abused and failed to protect the child” which
further endangers the child’s physical health and safety. (Ibid.)
The doctor who examined Roberto is the medical director of
the Child Crisis Center at Harbor–UCLA Medical Center and a
member of the Suspected Child Abuse and Neglect (SCAN) Team;
the doctor was found by the juvenile court to be an expert in child
abuse. (In re Roberto C., supra, 209 Cal.App.4th at p. 1246.) The
doctor “found bruising on his ear, retinal hemorrhages, and
subdural fluid and hemorrhage.” (Ibid.) The subdural blood
injury occurred three to seven days prior to admission. (Ibid.)
The doctor agreed with other doctors that Roberto C.’s injuries
were due to “inflicted trauma.” (Id. at p. 1247.)
The juvenile court granted the parents’ motion to dismiss
the petition (joined in by minor’s counsel) because DCFS had not
met its burden of proof, in that there was insufficient evidence to
find that the injury was not accidentally inflicted and that DCFS
pointed to “no evidence linking the parents to the infliction of the
injuries.” (In re Roberto C., supra, 209 Cal.App.4th at pp. 1248,
1254.) On appeal, the reviewing court affirmed and found the
juvenile court did not abuse its discretion in determining that
DCFS failed to meet its burden of proof. (Id. at pp. 1253, 1256.)
The reviewing court found there was “no evidence that provides
any basis to attribute knowledge to these parents that Roberto
was being abused, much less severely abused within the meaning
of the statute.” (Id. at p. 1254.) The court further explained,
“The recognition that circumstantial evidence may support a
finding despite the inability to identify the perpetrator does not,
28
however, lead to the conclusion that a court may presume both
that the parents knew, or should have known that the child was
injured, and knew, or should have known who the perpetrator
was, to support a finding against the parents.” (Id. at p. 1255.)
“The facts contained in th[e] record do not create a level of
certainty concerning the parents’ knowledge sufficient to find an
abuse of discretion by the juvenile court.” (Id. at p. 1256.)
Unlike the child Roberto C., who had bruising on his ear,
retinal hemorrhages, and subdural fluid and hemorrhaging, G.Z.
had no retinal hemorrhages, no bruising, and no fractures when
examined during Mother’s multiple visits with him to the
hospital. It is undisputed G.Z. exhibited no signs of having
suffered noncontact injury, such as shaken baby syndrome or
acute head trauma syndrome. G.Z.’s pediatric ophthalmology
consultation notes dated June 2, 2020 revealed “no evidence of
retinal hemorrhages or other signs of ocular trauma.” A skeletal
survey showed no evidence of fractures. On June 4, 2020, the
CSW observed no marks or bruises on G.Z.’s head and body.
A physical examination conducted on June 15, 2020 also showed
“[n]o bruising or other signs of external trauma.” During the
hearing on January 22, 2021, pediatrics expert Dr. Weinraub
opined G.Z. does not suffer from shaken baby syndrome because
the there was no indication of abuse, i.e., “injuries . . . caused by
acceleration and deceleration injury, for example, retinal
hemorrhages,” “classic metaphysical lesions,” “rib fractures.”
There was “no indication that this child has suffered any sort of
abuse or neglect” and did not find in G.Z. signs indicative of a
shaken baby case. The record includes numerous medical reports
and notes about G.Z. and none mention any bruising, broken
29
bones, fractures, or retinal hemorrhage—things ordinarily seen
in shaken babies.
We agree with the reviewing court in Roberto C. that
circumstantial evidence may support a finding of abuse but does
not mean the court may conclude or presume a finding that the
parents knew or should have known the child was injured and
who the perpetrator was. (See In re Roberto C., supra,
209 Cal.App.4th at p. 1255.) Here, Mother did not know until
after her fifth visit with G.Z. to a hospital that he suffered from
an arachnoid cyst, increased subarachnoid spaces, and
neomembranes, which render him more susceptible to
spontaneous bleeds via normal handling or non-abusive minor
trauma. There was no evidence of physical abuse, via either
contact injury or noncontact injury, inflicted by Mother or her
relatives. Just because one doctor (Dr. Imagawa) stated she
could not categorially establish the cause of G.Z.’s chronic/older
subdural hematoma solely from the cyst or increased
subarachnoid space as opposed to nonaccidental trauma does not
equate to a finding of abuse and that Mother was neglectful and
should have known G.Z. was injured.
Next, DCFS argues there were inconsistencies in Mother’s
recollection of how/when G.Z. fell. We disagree.
Mother’s recollection of the co-sleeping incident where G.Z.
fell from the bed onto the carpeted floor sometime in April 2020
was similar to and/or nearly identical to MA’s recollection. MA
was awake and heard a “loud thump” and went into the bedroom
to discover Mother consoling G.Z. MU, minor MU, and MGF all
reported Mother informed them of the falling incident when it
occurred two months prior (in April). Based on the record before
30
us, there is no “inconsistency” in their recollection of when the
falling incident took place.
Similarly, Mother’s recollection of G.Z.’s falling incident in
the kitchen while with MGF coincided with what MGF recalled.
About “17–20 days ago,” G.Z. tried to walk on his own in the
kitchen while being assisted by MGF but lost his balance and fell.
MA stated G.Z. “likes to try to walk on his own and fell.” Mother
later confirmed the exact date of this falling incident as May 23,
2020 by reviewing her text messages. Again, we see no material
discrepancy in their recollections of when and how G.Z. fell.
In sustaining count b-1, the court made findings on the
record, which Mother disputes on appeal. The court found G.Z.
“would not have suffered the injuries except for the unreasonable
or neglectful acts of the Mother.” The court “was troubled by the
fact that Mother’s own expert talked about possibly neglectful or
unreasonable acts.” The court continued: “And I want to be very
clear that it is not just about co-sleeping. [T]he court has [a]
child that has had multiple subdural hematomas, multiple bleeds
while in the custody of the Mother, and since the child has been
in the custody of the Father [and] since they’ve been sharing
custody and they have a parenting plan, there hasn’t been any
new injuries.”
First, we are perplexed by the court’s comment that it “was
troubled by the fact that Mother’s own expert talked about
possibly neglectful or unreasonable acts.” Dr. Weinraub did state
that co-sleeping with a child of this age is “considered not
appropriate by the American Academy of Pediatrics,” but also
confirmed there is no evidence Mother’s co-sleeping with G.Z.
caused him any harm. Dr. Weinraub never qualified any act or
conduct by Mother as neglectful. To the contrary, Dr. Weinraub
31
specifically found no signs of medical neglect by Mother and
thought she did “an exemplary job” and alluded to the fact that
she took G.Z. to the hospital five times in nine days. Dr.
Imagawa stated Mother “was diligent in seeking consistent
routine pediatric care for [G.Z.] as well as . . . diligent and
persistent in appropriately continuing to seek care for [his]
symptoms of vomiting.” Mother stated in her March 22, 2021
declaration that it was due to her insistence for further testing
that G.Z.’s subdural hematomas were discovered. G.Z. was first
diagnosed with gastroenteritis. CHLA “wanted to release” G.Z.
on May 31, 2020, Mother “would not consent to his release” and
“asked for further testing to see what was causing [G.Z.] to
vomit”; it was then when CHLA performed further testing,
including the CT head scan, which lead to discovery of G.Z.’s
subdural hematomas.
Furthermore, to the extent Mother’s act of co-sleeping with
G.Z. is being deemed a “neglectful” act, this was never pled as a
means of endangerment by Mother in the section 300 petition
and nothing in the record suggests the petition was amended to
include such an allegation. Additionally, none of G.Z.’s medical
records specify G.Z. was injured because or as a result of Mother
co-sleeping with him.
As for the court’s finding that there was no showing of
further injury to G.Z. after he was placed in Father’s care, the
evidence in the record proves otherwise. G.Z. was placed in
Father’s care on June 5, 2020. More than a month later, during
G.Z.’s neurosurgery clinic visit on July 8, 2020, a recent MRI
revealed “an increase in size of the . . . left (older) subdural
hematoma.” (Italics added.) There was no evidence in the record
that would explain the increase in size of the left, older subdural
32
hematoma while G.Z. was in Father’s care. No incident of minor
trauma was reported during the normal handling of G.Z. that
would explain the enlargement of a hematoma while G.Z. was in
Father’s care.
Finally, by the time of the March 2021 adjudication hearing
in G.Z.’s case, his familial circumstances had undergone huge
changes. G.Z. was no longer in Mother’s sole physical custody, as
was the situation at the onset of DCFS involvement in June 2020,
where both Mother and Father confirmed Father was not
involved in G.Z.’s life for the last nine months. Rather, at the
time of adjudication, physical custody of G.Z. was split 50/50
between Mother and Father, and G.Z. was staying overnight at
Mother’s home, unmonitored, during her custodial timeshare.
G.Z.’s arachnoid cyst was reportedly stabilized as of
September 29, 2020 based on MRI results. Since then, no
additional hematomas or brain bleeds were reported or found.
Mother’s visits with G.Z. were unmonitored as of November 10,
2020 and both parents informed the court they planned G.Z.
would spend Thanksgiving Day, Christmas Day, and New Year’s
Day with Mother. Reports of Mother’s visits with G.Z. were
positive. She was described as being cooperative and having “an
emotional bond” with G.Z. Since January 5, 2021, custody of G.Z.
was split 50/50 between Mother and Father, with a 2-2-5
custodial plan in place.
During this entire time leading up to and including the
adjudication hearing, nothing in the record supports a finding of
substantial risk of serious physical harm to G.Z. based on abuse
or neglect by Mother. The risk of harm exists at the time of the
adjudication hearing at which time the court declares jurisdiction
over the minor. (In re J.M. (2019) 40 Cal.App.5th 913, 921.)
33
Here, there is no evidence, let alone substantial evidence, that
G.Z. was at a risk of harm from Mother during the March 24,
2021 hearing as a result of abuse or neglect or non-accidental
trauma. Perceptions of risk, rather than actual evidence of risk,
do not suffice as substantial evidence. (Nahid H. v. Superior
Court (1997) 53 Cal.App.4th 1051, 1070.) Based on the record
before us, a finding of substantial risk of serious physical harm to
G.Z. based on Mother’s abuse or neglect would be based on
speculation.
Based on our review of the entire record before us, we
conclude the juvenile court’s jurisdictional findings are not
supported by substantial evidence. Because we reverse the
jurisdictional findings, the related dispositional orders must also
be reversed. (In re David M. (2005) 134 Cal.App.4th 822, 833
[reversal of the jurisdiction order resulted in all subsequent
orders being vacated as moot], abrogated in part on another
ground by In re R.T. (2017) 3 Cal.5th 622, 628.)
C. Section 355.1, Subdivision (a) Presumption
1. Applicable Law
Section 355.1, subdivision (a) 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), italics added.) The presumption created by
subdivision (a) constitutes a presumption affecting the burden of
producing evidence. (Id., subd. (c).)
34
Once DCFS establishes a prima facie case that a child is
subject to dependency jurisdiction because he or she has
sustained an injury “ ‘of a nature as would ordinarily not be
sustained except as the result of the unreasonable or neglectful
acts or omissions’ ” of a caregiver, 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. (In re
D.P. (2014) 225 Cal.App.4th 898, 903; In re A.S. (2011)
202 Cal.App.4th 237, 242–243, disapproved on other grounds in
Conservatorship of O.B. (2020) 9 Cal.5th 989, 1010, fn. 7.) If the
parents raise rebuttal evidence, the county child welfare agency
maintains the burden of proving the alleged facts. (In re A.S., at
p. 243.)
“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.) A presumption
affecting the burden of proof imposes a much more onerous
burden, placing the burden on the opposing party to disprove the
presumed fact by a preponderance of the evidence or other
appropriate standard. (Id., § 606; In re Heather B. (1992)
9 Cal.App.4th 535, 560–561.)
2. Analysis
Mother argues the juvenile court informed the parties it
was relying on section 355.1’s presumption to support the b-1
allegation “without advance notice, on March 24, 2021, after all
argument had been presented and the parties had rested.”
35
Mother further argues DCFS never alleged it would rely on
section 355.1 and the court never notified her of its intent to do so
“until all parties had argued and submitted the case, depriving
Mother of due process by shifting last minute the burdens of
proof and producing evidence without recognizing that the basis
for that shift no longer applied.” Mother argues the application
of section 355.1 violated her right to due process because she was
never given notice that DCFS or the court intended to rely on this
statute. Mother further argues the presumption was rebutted by
evidence in her favor.
The record before us shows DCFS never plead, alleged, or
argued the provisions of section 355.1 nor notified it would rely
on its provisions. To the contrary, DCFS argued during
adjudication that count b-1 was supported by a preponderance of
the evidence. After the juvenile court heard argument from
Mother, Father, DCFS, and minor’s counsel, and after all parties
submitted and rested their case, the juvenile court thereafter
stated its ruling and cited to section 355.1, subdivision (a) and
the presumption affecting the burden of producing evidence.
In support of her contention, Mother cites In re A.S., supra,
202 Cal.App.4th at pp. 242–243. In that case, the reviewing
court held DCFS forfeited reliance on section 355.1, by failing to
cite that section in the jurisdictional petition, thereby failing to
provide the parents with sufficient notice. (In re A.S., at p. 243
[When DCFS intends to rely on section 355.1, subdivision (a) “to
shift the burden of production to the parents to show that neither
they nor other caretakers caused the child’s injuries, it must do so
in a clear-cut manner. It should, of course, cite section 355.1,
subdivision (a) in the petition along with the applicable
subdivision of section 300.”].) The parties in In re A.S. had not
36
addressed section 355.1 or its rebuttable presumption at the
jurisdictional hearing. (Ibid.)
DCFS contends Mother’s reliance on In re A.S. is misplaced
and that the more recent In re D.P controls. In re D.P. declined
to follow the reasoning in In re A.S.; notice that DCFS intended
to rely on the presumption was adequate where the mother was
represented by an attorney, the petition’s charging allegations
were worded in the language of section 355.1, subdivision (a), and
the mother was informed of the petition’s allegations and the
evidence DCFS intended to rely on, including multiple doctors
concluding that the child’s trauma was nonaccidental. (In re
D.P., supra, 225 Cal.App.4th at p. 904.) The petition in that case
incorporates the language of section 355.1, subdivision (a), and
states, in relevant part, that D.P’s injuries “ ‘would not ordinarily
occur except as a result of deliberate[,] unreasonable and
neglectful acts by the mother.’ ” (Ibid.)
In the case before us, count b-1 of the petition includes the
allegation: The injuries were consistent with “non-accidental
trauma” and would not ordinarily occur but for “deliberate,
unreasonable, and neglectful acts” by Mother who had care and
custody of G.Z. Thus, the petition does incorporate the language
of section 355.1, subdivision (a) to an extent, and we reject
Mother’s assertion that she lacked notice of DCFS’s intent to rely
on section 355.1.
However, “ ‘[w]hen the party against whom such a
presumption operates produces some quantum of evidence
casting doubt on the truth of the presumed fact, the other party is
no longer aided by the presumption. The presumption
disappears, leaving it to the party in whose favor [the
presumption] initially worked to prove the fact in question.’ ”
37
(Estate of Trikha (2013) 219 Cal.App.4th 791, 803.) Thus, section
355.1 operates to “ ‘shift to the parents the obligation of raising
an issue as to the actual cause of the injury or the fitness of the
home.’ ” (In re A.S., supra, 202 Cal.App.4th at pp. 242–243,
quoting In re James B. (1985) 166 Cal.App.3d 934, 937, fn. 2.)
If the parents do raise rebuttal evidence, DCFS shoulders the
burden of proving the facts alleged in the petition. (In re A.S., at
p. 243.)
Here, as set forth in the preceding section, Mother
presented evidence that G.Z.’s subdural hematomas were not the
result of abuse or negligence by her, rebutting the presumption of
section 355.1, subdivision (a). Mother’s family members who
were interviewed all told the CSW they have no concerns of
neglect or physical abuse by Mother. Dr. Weinraub provided
expert testimony indicating Mother was not neglectful of G.Z.
who did not exhibit any sign of shaken baby syndrome or
nonaccidental trauma. He opined that the subdural hematomas
are a result of G.Z.’s congenital medical conditions including
macrocephaly, an arachnoid cyst, increased subarachnoid spaces
and neomembranes, which made him more susceptible to
spontaneous bleeds or to bleeds resulting from minor non-abusive
trauma or normal handling.
Because Mother provided rebuttal evidence, the burden
shifted back to DCFS to prove the petition’s allegations. As
explained above, substantial evidence does not support the
juvenile court’s jurisdictional findings related to count b-1.
We reverse.
38
DISPOSITION
The juvenile court’s jurisdictional findings and order are
reversed. The matter is remanded to the juvenile court with
directions to dismiss the petition.
CERTIFIED FOR PUBLICATION
STRATTON, P. J.
I concur:
GRIMES, J.
WILEY, J.
39