In re K.N. CA4/1

Filed 12/3/21 In re K.N. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re K.N. et al., Persons Coming
Under the Juvenile Court Law.
D079164
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES
AGENCY, (Super. Ct. No. EJ4604)
Plaintiff and Respondent,
v.
I.N. et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of San Diego County,
Gary M. Bubis, Judge. Affirmed.
Diana W. Prince, under appointment by the Court of Appeal, for
Defendant and Appellant I.N.
Joseph T. Tavano, under appointment by the Court of Appeal, for
Defendant and Appellant S.M.
Lonnie J. Eldridge, County Counsel, Caitlin E. Rae, Chief Deputy
County Counsel, and Eliza Molk, Deputy County Counsel for Plaintiff and
Respondent.
INTRODUCTION
Five-month-old twin sisters, Z.N. and Za.N., were each diagnosed with
broken blood vessels under the surface of the eye, or subconjunctival
hemorrhages. The twins were under the sole care and supervision of their
parents when the injuries presented, and their parents were unable to
account for how the injuries occurred. A child abuse pediatrician determined
that under these circumstances, the twins’ injuries likely resulted from
nonaccidental trauma and indicated a risk of more severe abuse in the future.
The juvenile court assumed jurisdiction over the twins and their three-
year-old sibling and returned the children to the parents’ home pursuant to a
family maintenance plan. I.N. (Father) and S.M. (Mother) appeal from those
orders, contending there was insufficient evidence to establish the twins
suffered serious injury inflicted nonaccidentally by the parents, and as such,
all three children’s petitions should be dismissed. The parents also challenge
the juvenile court’s dispositional orders conditioning the children’s placement
in the parents’ custody on their compliance with a family maintenance plan.
Finding no error, we affirm the juvenile court’s orders.
FACTUAL AND PROCEDURAL BACKGROUND
A. Initiation of Dependency Proceedings and Detention
Z.N. and Za.N. were born nine weeks premature.1 They were
hospitalized in the neonatal intensive care unit (NICU) because of their
1 “ ‘In accord with the usual rules on appeal, we state the facts in the
manner most favorable to the dependency court’s order.’ ” (In re Janee W.
(2006) 140 Cal.App.4th 1444, 1448, fn. 1.)
2
premature birth. Upon release from the NICU, they began receiving physical
therapy, occupational therapy, and other medical services. The twins’ older
sister, K.N., was also born premature and required early intervention
services in physical therapy and speech therapy.
On the morning of February 6, 2021, Mother noticed a red dot in Z.N.’s
eye. The redness worsened as the day went on, prompting the parents to
bring her to the emergency room. The emergency room physician diagnosed
her with a subconjunctival hemorrhage (SCH) to her right eye, and a “[v]ery
mild” lateral conjunctival hemorrhage in the left eye. Z.N. did not present
with other signs of injury, trauma, fractures, or bruising. She had no known
allergies. Although forceful coughing or crying can cause an SCH, the doctor
found these were unlikely explanations for Z.N.’s injury. Instead, the doctor
suspected nonaccidental trauma and referred the case to the hospital’s child
protection team (CPT) for a physical abuse assessment.
A child abuse physician with the CPT, Dr. Nienow, confirmed that,
absent a history of accidental trauma, Z.N.’s injury was “highly concerning”
for physical abuse. Dr. Nienow described the injury as “sentinel,” meaning a
“seemingly minor injur[y] in non-mobile infants that [is] often [a] harbinger
for future more serious abusive trauma.” Dr. Nienow indicated that SCHs
are generally not self-inflicted for children of Z.N.’s age and would not be
caused by routine infant care or normal infant activity, such as eye rubbing,
crying, vomiting, or sneezing. Noting that premature infants such as Z.N.
and Za.N. are at a higher risk of abuse and neglect, Dr. Nienow
recommended services be provided to support the family and to mitigate the
risk of future harm.
After the San Diego County Health and Human Services Agency
(Agency) was notified by the hospital of Z.N.’s injury, a social worker
3
interviewed the parents. Mother had no explanation for Z.N.’s injuries. She
reported that Father was the children’s primary caretaker, as she worked
Monday through Friday from 8:00 a.m. to 5:00 p.m. and every other
Saturday. Only the parents and the three children resided in the home. She
denied anyone frequently visited the home or cared for the children, and the
parents were especially cautious due to the COVID-19 pandemic. She
indicated that older sister K.N. could not have caused the injury, since K.N.
was not left alone with the twins. Mother also denied that Father could be
responsible.
Father largely confirmed Mother’s account during his interview with
the social worker. As the children’s primary caregiver, he denied that he or
Mother would have injured Z.N. Father had researched Z.N.’s condition on
the internet and thought the injury could have been caused by vomiting,
crying, sneezing, or Z.N. grabbing her own eyes. When the social worker
explained the doctor’s conclusion that the injury was caused by someone
pressing on Z.N.’s face or chest, Father denied this ever occurred while he
was caring for the children. Father also noted the twins have three
therapists who come to the home three times per week, and that the twins
cry “a lot” around the therapists and he does not always supervise their
visits. However, none of the therapists were in the home on February 5, the
day before Z.N.’s injury presented.
The Agency attempted to safety plan with the parents, but the parents
were unwilling to identify a support network or alternate placement options.
Due to their lack of cooperation, the Agency took protective custody over the
children and detained them in a foster home.
4
On February 10, 2021, the Agency filed a petition under Welfare and
Institutions Code2 section 300, subdivision (a) on behalf of Z.N., alleging
there was a substantial risk she would suffer serious physical harm inflicted
nonaccidentally. Pursuant to section 355.1,3 the petition alleged Z.N. had
suffered an SCH, a condition which would not ordinarily be sustained except
as a result of the unreasonable acts of the child’s parents. The Agency also
filed petitions under section 300, subdivision (j) on behalf of Za.N. and K.N.
based on the abuse of their sibling. At the detention hearing on February 11,
the juvenile court appointed counsel for the parents and the children,
detained the children out-of-home, and ordered the Agency to provide the
parents with voluntary services. It further ordered supervised visitation for
the parents.
Around this time, Za.N. was also diagnosed with an SCH in one eye.
The foster parent noticed marks in the outside corner of Za.N.’s eye when the
children arrived at the foster home on February 8, 2021. The twins’ primary
care provider examined Za.N. on February 10 and diagnosed her with an
SCH in the right eye. This was the first time the primary care provider found
an unexplained injury in either twin. When asked by the social worker if she
believed the twins’ injuries were nonaccidental, the primary care provider
2 All further statutory references are to the Welfare and Institutions
Code unless otherwise specified.
3 Section 355.1, subdivision (a) provides, in relevant part: “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, . . . that finding shall be prima
facie evidence that the minor is a person described by subdivision (a), (b), or
(d) of Section 300.”
5
stated “the general teaching is that there is always concern when children of
that age have injuries like that.” After moving the children from the foster
home to a children’s center for a few days, the Agency placed the children
with nonrelative extended family members.
Za.N. was referred to Dr. Nienow for further examination. Dr. Nienow
agreed Za.N. had an SCH in one eye, and the presence of this injury
confirmed her suspicions of physical abuse in the parents’ home. Dr. Nienow
opined that: “As with [Za.N.’s] sister, there has been no history provided to
explain [Za.N.’s] injury. Subconjunctival hemorrhages are broken blood
vessels under the surface of the eye and are the result of direct impact
trauma to the globe itself, or more rarely secondary to increased intrathoracic
pressure events. These are not the result of self-inflicted injury in this age
group, are not caused by routine handling/care or crying/coughing/vomiting,
nor are they sequela of prematurity or indicators of eye disease. In [the]
absence of a reasonable accidental trauma history these findings are highly
concerning for inflicted injury. It is very concerning that this is the second
child in this family [who] has presented for this kind of trauma, further
reinforcing the concern for physical abuse.” K.N. was also examined and no
injuries were identified.
At the parents’ request, the twins’ ophthalmologist, Dr. Robbins,
provided letters to the Agency. Dr. Robbins had examined the twins for eye
conditions following their premature birth, and determined their eyes were
developing well as of their last exam in November 2020. Even though Dr.
Robbins found the presence of Z.N.’s injury “alarming,” she indicated there
were many reasons why infants develop SCHs that are unrelated to abuse,
such as coughing, sneezing, straining, rubbing, or hitting the eye. She stated
that most SCHs in infants are caused by the infant hitting themselves in the
6
eye or accidentally being hit by a sibling. She also noted that a pediatric
ophthalmologist had conducted a full dilated eye exam of Z.N. within 24 to 48
hours of her presenting with the injury, and no other pathology was found.
Dr. Robbins described the parents as “devoted” and “caring,” and she did not
suspect any inappropriate behavior during her interactions with them.
On February 16, 2021, the Agency received a referral indicating that
K.N. disclosed that Father hit her in the face. Mother confirmed that K.N.
had made the same disclosure to her during a visit with the children on
February 16, but both parents denied Father ever hit K.N. or used physical
discipline. K.N. was examined and received a CT scan, but no injuries were
noted. K.N. was also interviewed by the social worker but was unable to
provide any details due to her difficulties communicating.4
During subsequent interviews with the social worker, the parents
continued to lack an explanation for the twins’ injuries. Mother maintained
there was no abuse or neglect in the home and denied that she would benefit
from services. During his interview, Father confirmed he was the children’s
primary caregiver and was currently unemployed. He denied ever leaving
the children unsupervised. He stated he was usually present for the twins’
in-home therapies, and K.N. was always supervised around the twins.
Dr. Nienow examined Z.N. and Za.N. during a follow-up appointment
on February 22, 2021. Their SCHs had completely resolved, and there were
no further injuries that indicated abuse or neglect. Dr. Nienow had reviewed
the letters from Dr. Robbins but maintained that the twins’ injuries were
likely caused by physical abuse. Dr. Nienow noted that SCHs in infants are
4 Although Father initially indicated that K.N. was autistic, he
subsequently claimed he had been misquoted and that she had not been
diagnosed with autism.
7
“extraordinarily rare” and are the result of trauma in the majority of cases.
She repeated her opinion that SCHs would not be, in this age group, the
result of self-inflicted injury or routine infant care or normal infant activity.
Following Dr. Nienow’s assessment of Za.N.’s injury, the Agency filed
an amended petition on Za.N.’s behalf on March 5, 2021, alleging she was a
child described by section 300, subdivision (a) and that the section 355.1
presumption applied.
Pending the jurisdiction and disposition hearing, Z.N. and Za.N.
underwent bloodwork to determine if either child had a condition that may
have contributed to their respective injuries. Their bloodwork came back
normal, and no blood conditions were found. K.N. also participated in a
forensic interview regarding her disclosure that Father hit her in the face.
The allegation was deemed inconclusive due to K.N.’s inability to
meaningfully participate in the interview. As for the parents, they had been
successfully participating in Agency-approved parenting classes, but stopped
attending child abuse group classes at some point and refused to resume
participation unless it was court-ordered.
Dr. Nienow provided a final assessment regarding her findings on April
29, 2021. She noted that blood disorders in the twins had been ruled out as a
cause. She also indicated that other evidence of abuse, such as bruising on
the face or other areas, is not always seen in conjunction with eye
hemorrhages if force was applied directly to the eye globe and not to other
parts of the body. Additionally, there may not be additional injuries or
bruising if smothering, strangulation, or suffocation was involved.
B. Contested Jurisdiction and Disposition Hearing
The contested jurisdiction and disposition hearing was held over the
course of several days in May and June 2021. The Agency recommended that
the juvenile court find the children’s petitions true, continue to detain the
8
children out-of-home, and offer the parents family reunification services. It
further recommended supervised visitation for the parents, with the Agency
to have the discretion to lift supervision upon the parents’ progress in the
recommended services. In its reports, the Agency expressed concerns
regarding the children’s vulnerability given their young ages, complete
reliance on their parents for protection, and developmental needs. In the
Agency’s view, the parents’ failure to provide a plausible explanation for the
twins’ injuries indicated there was a continuing risk of future harm to all
three children, which could increase in severity.
At the contested hearing, Mother called Dr. Robbins to testify, and she
was designated as an expert in medicine and pediatric ophthalmology. Dr.
Robbins examined the twins twice while they were in the NICU after their
premature birth, and twice as outpatients in her office. According to Dr.
Robbins, SCHs could occur for a variety of reasons, although they were
uncommon in childhood generally, and were generally the most noticeable
within the first 24 hours. In her opinion, the most common cause of an
isolated SCH in infants was accidental trauma, such as a finger poke, and an
infant of the twins’ age possessed the ability to poke themselves in a manner
that could cause an SCH. Dr. Robbins would not suspect child abuse absent
additional injuries, and believed that a full eye exam would be necessary to
accurately determine whether an SCH was caused by abuse. She testified,
however, that abuse should be considered where the infant presents with an
SCH and there is no accidental trauma history, and she agreed that SCHs
can be a sentinel injury. She also agreed it was unusual that each twin
suffered an SCH around the same time, which “heightened” the concern of
nonaccidental trauma. She indicated that other than trauma, the second
most likely cause of an SCH in infants was an infection, but this was a “far
9
second.” Dr. Robbins was unable to provide any studies or data to support
her opinions, and she indicated that she had only prepared to testify as a
treating physician and not as an expert in child abuse.
Father called his own expert, Dr. Tawansy, who was also designated by
the juvenile court as an expert in medicine and pediatric ophthalmology. In
Dr. Tawansy’s opinion, the twins’ injuries were not related to child abuse but
rather eye rubbing and eye inflammation caused by a viral infection. Dr.
Tawansy agreed with Dr. Robbins that a child of the twins’ age could self-
inflict an SCH. He would also expect to see other physical injuries if an SCH
had been caused by abuse, such as bruising or other injuries to the eye. Dr.
Tawansy testified he had not personally examined the twins but formed his
opinion that their injuries were caused by a virus based on the twins’ medical
records, information from the foster parents, and photographs of the twins.
He noted the infants’ eyes looked glazed and there was also evidence of eye
secretions in the photographs, which indicated to him the existence of a viral
infection. He believed that where child abuse is suspected, a comprehensive
eye exam was “mandatory” to make an accurate diagnosis. During cross-
examination, Dr. Tawansy admitted that his curriculum vitae was out of date
and did not accurately reflect the hospitals where he had admitting
privileges. He also admitted that he had been investigated by the California
Medical Board for violating the standard of care, including combining
syringes from different patients, and was in jeopardy of losing his surgeon
certificate and his authority to supervise physicians. He ultimately settled
the dispute.
The Agency called Dr. Nienow as its expert. Dr. Nienow testified that
she evaluates around 1,500 children for suspected child abuse each year. Of
those cases, she had determined only 50 percent were caused by abuse or
10
neglect, while the remaining 50 percent she determined were accidental or
indeterminate causes. Following this testimony, the juvenile court
designated Dr. Nienow as an expert in pediatric child abuse.
Regarding the twins’ injuries, Dr. Nienow testified in line with her
earlier reports, maintaining that their injuries were most likely caused by
some form of abuse. Although not an ophthalmologist, Dr. Nienow completed
a fellowship rotation in ophthalmology, and considered herself an authority
on eye problems that were commonly presented in pediatrics, including
SCHs. She testified that SCHs were extraordinarily rare in normal, healthy
infants, and were caused by direct trauma to the globe in most cases. An
SCH could be observed immediately and tended to darken during the first 24
hours. According to Dr. Nienow, the most recent study conducted on
nonambulatory infants with SCHs found 97 percent of the injuries to be
related to nonaccidental trauma. Dr. Nienow disagreed with the parents’
experts that an infant of the twins’ ages could produce enough force to cause
their own SCHs. She also did not believe that other markings were likely to
be present if the twins’ injuries were caused by abuse, noting that she had
seen this before in other infants with SCHs who were abused. She also
discussed the potential that SCHs were caused by a virus, but found this
unlikely, noting that the bloodwork for the twins did not indicate a viral
infection, and the twins had not displayed any other signs or symptoms that
would suggest a virus had contributed to their injuries. She stated that Z.N.
and Za.N.’s individual cases were peer-reviewed twice by seven other child
abuse pediatricians, all of whom agreed with her conclusions. Lastly, Dr.
Nienow noted that prematurity was a significant risk factor for nonaccidental
trauma generally, and premature infants were at twice the risk as their
same-aged normative peers for abuse or neglect.
11
Two social workers were also called to testify regarding their reports
and interactions with the family. The current social worker assigned to the
children’s cases testified that she believed all three children were at risk of
abuse given their young ages and various developmental needs, the
unexplained injuries in the twins, and the parents’ lack of progress in child
abuse classes. She expressed specific concerns about the Father’s stress level
as the children’s primary caregiver. She also testified that Father was alone
with the children on February 5, 2021, from 8:00 a.m. to 5:00 p.m. while
Mother was at work, and he was also alone with Za.N. the following three
days while Mother took the other two children to the hospital.
The juvenile court also heard testimony from one of the in-home infant
educators for the twins, who had worked with the twins two hours each week
for eight weeks. Although this educator did not suspect any abuse or neglect
by the parents, she also did not believe that any of the service providers from
her company could have caused the twins’ injuries. The foster parent who
first identified Za.N.’s injury testified she first noticed the injury on the
evening of February 8, 2021, and that the injury was still observable the
following morning. She did not observe either twin rub or itch their eyes or
observe any signs of sickness in either twin.
The juvenile court also admitted into evidence the Agency’s reports, the
curriculum vitae for the medical experts, medical records documenting the
twins’ injuries, and a 45-second video taken by the children’s current
caregiver showing Za.N. putting her hands on her face and around her eyes.
The court also admitted the medical articles that Dr. Nienow relied on in
formulating her opinion, to determine whether the literature supported Dr.
Nienow’s opinion and not for the truth of the matter asserted in the articles.
12
After the close of evidence and closing arguments by counsel, the
juvenile court addressed the credibility of the witnesses, starting with the
medical experts. It found Dr. Nienow “highly credible,” noting that she had
testified in his courtroom before, while Dr. Robbins was also found to be
“highly qualified” with “very impressive credentials.” However, the court
expressed reservations about Dr. Tawansy’s credibility, noting that his
failure to update his resume was “lazy,” and that he gave opinions without
sufficient evidence to support them. Lastly, the court found the current social
worker and foster parent credible. As to the social worker, the court
indicated that he had experience hearing testimony from her in his previous
cases, and that her reports demonstrated that she is “competent” and
“professional.”
The juvenile court made a true finding on the petitions based on a
preponderance of the evidence and assumed dependency jurisdiction over the
children. The court concluded that the section 355.1 presumption applied
and was unrebutted by competent evidence, finding no reasonable
explanation for the twins’ injuries outside of “just theories.” The court
disbelieved the testimony provided by the parents’ experts, finding it unlikely
that infants of the twins’ age would injure their own eyes with the force
necessary to create an SCH, and that none of the treating doctors noted any
viral infections. The court expressly found that these were sentinel injuries,
so although not life-threatening, the existence of the injuries raised the
potential of future, more serious abuse. The court emphasized these injuries
were uncommon for children of this age, noting the doctors who had treated
the twins shared Dr. Nienow’s concerns that the injuries were caused by child
abuse. The court further noted that, even if the presumption was rebutted, it
13
would have still found the children’s petitions true by a preponderance of the
evidence.
The juvenile court then ordered the return of the children to their
parents’ care, conditioned on the parents’ compliance with a family
maintenance plan. In rejecting the Agency’s request for out-of-home
detention, the court found that detriment for removal had not been
established by clear and convincing evidence. The court also expressed
empathy for the parents’ circumstance and the difficulties in caring for
premature infants, finding “that anybody who may have had a moment of
weakness or had a difficult time that potentially caused these injuries would
not necessarily do them again.” The court concluded that although the
children could return to their parents’ care, it was necessary to continue
monitoring the parents under a family maintenance plan to ensure the
children’s safety. The safety plan required two adults to be present in the
home at all times; all relatives and support persons who interacted with the
family pursuant to the safety plan were to provide the Agency with general
updates and any safety concerns; an assigned advocate would check on the
family twice per month; and the Agency was authorized to conduct
announced and unannounced visits. The parents were also ordered to
participate in child abuse and group parenting courses, and Father was
required to attend individual therapy if recommended by his child abuse
group provider.
Father and Mother timely appealed.5
5 Although Father and Mother have separately briefed this appeal, they
have joined the arguments raised in each other’s respective briefs.
14
DISCUSSION
On appeal, the parents contend the evidence before the juvenile court
was insufficient to support the true findings for jurisdiction under section
300, subdivisions (a) and (j). They argue the testimony provided by their
respective experts rebutted the section 355.1 presumption by which the
subdivision (a) petitions were predicated, and that the evidence failed to show
the twins suffered serious injury inflicted nonaccidentally by either parent.
As such, K.N. was not an at-risk sibling under section 300, subdivision (j).
They also assert the juvenile court abused its discretion by ordering their
compliance with a family maintenance plan. They further contend that the
juvenile court was biased against them.
As we shall explain, even if the statutory presumption was rebutted,
there is substantial evidence in the record to support the juvenile court’s
jurisdictional findings. The parents’ challenge to the dispositional orders is
also unsuccessful because the family maintenance plan was tailored to
address the best interests of the children and does not otherwise constitute
an abuse of discretion. Lastly, the parents’ accusations of judicial bias lack
support in the record.
A. The Juvenile Court’s Jurisdictional Findings Are Supported by
Substantial Evidence
“The court asserts jurisdiction with respect to a child when one of the
statutory prerequisites listed in section 300 has been demonstrated.” (In re
I.A. (2011) 201 Cal.App.4th 1484, 1491.) Section 300, subdivision (a)
authorizes the juvenile court to adjudge a minor a dependent child 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.” (§ 300, subd. (a).) Subdivision (j)
provides a basis for jurisdiction when a child’s sibling has been abused or
15
neglected under section 300, subdivisions (a), (b), (d), (e), or (i), and there is a
substantial risk the child will be abused or neglected, as defined in those
subdivisions. (§ 300, subd. (j); In re Ricardo L. (2003) 109 Cal.App.4th 552,
566.) The juvenile court need only find the allegations of the petition under
the subdivisions of section 300 true by a preponderance of the evidence.
(§ 355; Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 248; In re Brison C.
(2000) 81 Cal.App.4th 1373, 1379.)
In addition, under section 355.1, “[w]here 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, . . . 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).) The presumption created by section 355.1, subdivision
(a), “constitutes a presumption affecting the burden of producing evidence.”
(§ 355.1, subd. (c).) Once the Agency establishes a prima facie case under
section 355.1, the burden of producing evidence “merely 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 James B. (1985) 166 Cal.App.3d 934, 937, fn. 2
(James B.) [discussing former section 355.2, section 355.1’s predecessor].)
“The general rule is that ‘the juvenile court’s exercise of jurisdiction
over a child will be upheld if substantial evidence supports any one of the
statutory bases for jurisdiction enumerated in the petition.’ ” (In re M.R.
(2017) 7 Cal.App.5th 886, 896.) Under this standard, we consider the entire
record to determine whether the evidence is “ ‘ “reasonable, credible, and of
solid value.” ’ ” (In re S.A. (2010) 182 Cal.App.4th 1128, 1140.) We do not
pass on the credibility of witnesses, attempt to resolve conflicts in the
16
evidence, or weigh the evidence. Instead, we draw all reasonable inferences
in support of the findings, view the record favorably to the juvenile court's
orders, and affirm the orders even if other evidence supports a contrary
finding. (In re Casey D. (1999) 70 Cal.App.4th 38, 52−53 (Casey D.)
disapproved of on other grounds by In re Caden C. (2021) 11 Cal.5th 614,
635−636.) Substantial evidence is not synonymous with any evidence. (In re
Savannah M. (2005) 131 Cal.App.4th 1387, 1393 (Savannah M.), abrogated
on different grounds by In re R.T. (2017) 3 Cal.5th 622, 628−631.) The
ultimate test is whether, considering the entire record, a reasonable trier of
fact would make the challenged ruling. (Savannah M., at pp. 1393−1394.)
We begin our analysis with the statutory presumption set forth by
section 355.1, subdivision (a). As noted, that presumption is only a
presumption affecting the burden of producing evidence. (§ 355.1, subd. (c).)
“ ‘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 (In re D.P.).) “Thus, when 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 it initially worked to prove the fact in question.” (Rancho Santa Fe
Pharmacy, Inc. v. Seyfert (1990) 219 Cal.App.3d 875, 882.) In comparison, a
presumption affecting the burden of proof imposes a much more onerous
burden, placing the burden on the opposing party to disprove the presumed
17
fact by a preponderance of the evidence (or other appropriate standard).
(Evid. Code, § 606; In re Heather B. (1992) 9 Cal.App.4th 535, 560−561.)
In this case, we assume without deciding that the parents’ expert
testimony⎯opining that the twins’ injuries were most likely unrelated to
abuse⎯was sufficient to rebut the statutory presumption under section
355.1. (Cf. In re Quentin H. (2014) 230 Cal.App.4th 608, 615 [evidence in the
record showing father had always behaved appropriately with his children
was sufficient to rebut the section 355.1 presumption that his children were
described by section 300, subdivisions. (b) and (d)]; In re Esmeralda B. (1992)
11 Cal.App.4th 1036, 1041 [father rebutted the section 355.1 presumption
with contradictory evidence in social worker’s report regarding the physical
cause of the child’s injury]; James B., supra, 166 Cal.App.3d at p. 937
[discussing section 355.2, section 355.1’s predecessor, and concluding the
juvenile court erred by applying the statutory presumption where the parents
had presented rebuttal evidence, which included expert testimony indicating
that the child’s injuries could have been caused accidentally]; with In re J.L.
(2014) 226 Cal.App.4th 1429, 1433−1435 [presumption under section 355.1
applied where mother’s testimony that she did not know or have any reason
to know of her child’s abuse was “completely beside the point” to disproving
the allegations in the petition]; In re Richard H. (1991) 234 Cal.App.3d 1351,
1363 [expert testimony indicating that child’s injuries were nonaccidental
established a section 355.1 presumption, which was not rebutted by the
parents].)
However, even without applying the statutory presumption, we
conclude there is substantial evidence in the record to support the juvenile
18
court’s jurisdictional findings.6 Although the court found Dr. Robbins and
Dr. Tawansy to be qualified experts in pediatric ophthalmology, it concluded
that Dr. Nienow provided the most persuasive testimony on the issue of
abuse. Dr. Nienow, who the juvenile court certified as an expert in child
abuse pediatrics, reported that SCHs were extraordinarily rare in normal,
healthy infants, occurring in only 0.5 percent of that population. She
testified that in the most recent study conducted on infants presenting with
SCHs, 97 percent of the SCHs were found to be related to nonaccidental
trauma. She also explained that other causes unrelated to abuse had been
ruled out, as the twins presented with no symptoms of upper respiratory
illness, no history of illness or underlying medical condition, and no history of
accidental trauma was provided by the parents. Dr. Nienow further testified
that of the 1,500 child abuse cases she evaluates each year, she determined
child abuse was the cause of the child’s condition in only 50 percent of those
cases.
Dr. Nienow’s conclusion that abuse was the most likely explanation for
the twins’ injuries was not an isolated opinion, as numerous other doctors
shared her concerns that the twins’ injuries were inflicted intentionally. For
instance, Dr. Nienow’s opinion was peer-reviewed twice by seven other child
abuse pediatricians, all of whom agreed with Dr. Nienow that abuse was the
most likely explanation. The twins’ primary care provider also stated that
the circumstances of the twins’ injuries were concerning for abuse. And even
before Dr. Nienow became involved in the case, the emergency room
physician who examined Z.N. suspected nonaccidental trauma.
6 The juvenile court expressly noted that, even if the presumption was
rebutted, it would have still found the children’s petitions true by a
preponderance of the evidence.
19
Further, although Dr. Robbins differed with Dr. Nienow’s ultimate
findings, she agreed with Dr. Nienow’s opinion in significant respects. For
instance, she conceded it was “odd” both twins had the same injury absent
any underlying conditions. Additionally, it was her opinion that trauma,
such as a finger poke, is the most common cause of an SCH, while SCHs
caused by infections are much rarer. Even though Dr. Robbins believed that
the most common cause of an isolated SCH was accidental trauma, she
admitted SCHs could constitute a sentinel injury, and that nonaccidental
trauma could still be considered as a potential cause in this instance.
The parents raise various contentions to challenge the juvenile court’s
reliance on Dr. Nienow’s testimony, asserting that the testimony provided by
their respective experts should have been given greater weight. For example,
they contend that Dr. Nienow’s opinion was unpersuasive because she is not
an ophthalmologist. They also challenge the validity of the reports Dr.
Nienow relied on in formulating her opinion. But these challenges overlook
the governing standard of review, as we do not reweigh the credibility of
witnesses or the evidence and we are required to affirm the orders even if
other evidence supports a contrary finding. (See Casey D., supra, 70
Cal.App.4th at pp. 52−53 [Under the substantial evidence standard, “[w]e
have no power to judge the effect or value of the evidence, to weigh the
evidence, to consider the credibility of witnesses or to resolve conflicts in the
evidence or the reasonable inferences which may be drawn from that
evidence.”].)
The juvenile court was entitled to discount the testimony provided by
Dr. Robbins and Dr. Tawansy and find that Dr. Nienow’s conclusions were
the only reasonable explanation of what caused the twins’ injuries.
Moreover, the court reasonably questioned the veracity of Dr. Tawansy’s
20
testimony; he made a diagnosis of a viral infection in the twins based on
pictures and blood tests. He never personally examined the twins, and the
court correctly noted that none of the treating doctors noted any viral
infections. The court was permitted to rely on the totality of this evidence in
determining the probative value of Dr. Tawansy’s testimony, and we lack the
authority to supplant the court’s credibility determinations with our own. (In
re Cole Y. (2015) 233 Cal.App.4th 1444, 1451−1452.)
We are similarly unpersuaded by the parents’ contentions that the
juvenile court’s section 300, subdivision (a) findings are legally flawed. They
assert, for instance, that the court’s finding that the twins’ injuries were
“sentinel” and therefore relatively minor demonstrates that the twins did not
fall within the definition of section 300, subdivision (a). Under that
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.” (§ 300, subd. (a).)
Even though the court found the injuries were sentinel, it was appropriately
concerned that both twins presented with the same injury. The
circumstances of Za.N. and Z.N.’s injuries therefore fell directly within the
definition of section 300, subdivision (a), as there was a “history of repeated
inflictions of injuries on the child or the child’s siblings[.]” (Italics added.)
Contrary to the parents’ contentions, there were additional factors in
this case indicating that the twins were vulnerable to suffering from future,
more serious abuse, which provides further support for sustaining the
petitions under section 300, subdivision (a). For instance, it is undisputed
that the twins’ injuries likely occurred while under their parents’ supervision.
21
According to Dr. Robbins and Dr. Nienow, the twins’ SCHs would have been
visible within the first 24 hours, and the twins were in the parents’ exclusive
care during the 24 hours leading up to the discovery of the injuries. While
Dr. Robbins suggested an SCH could be caused by an older sibling
accidentally, both parents maintained that K.N. was never left alone with the
twins. Dr. Nienow also provided uncontroverted testimony that premature
infants generally are more susceptible to abuse.
The parents also focus on the lack of a definitive cause for the twins’
injuries, suggesting that such circumstances are insufficient for a
jurisdictional finding under section 300, subdivision (a). However, appellate
courts have determined that allegations under section 300 may be sustained
even if the cause of the child’s injuries is unknown. (See, e.g., In re A.S.
(2011) 202 Cal.App.4th 237, 245−246 (In re A.S.) [where the parents could not
be ruled out as perpetrators for the child’s injuries, a finding of jurisdiction
under section 300, subdivision (b), was proper], disapproved of on other
grounds by Conservatorship of O.B. (2020) 9 Cal.5th 989; In re Christina T.
(1986) 184 Cal.App.3d 630, 640 [jurisdiction under section 300, subdivisions
(a) and (d), was supported when it could not be ascertained whether the
father or mother’s boyfriend sexually abused the child]; In re E.H. (2003) 108
Cal.App.4th 659, 670 [“where there is no identifiable perpetrator, only a cast
of suspects, jurisdiction under subdivision (e) is not automatically ruled
out”].) As the court in In re A.S. explained: “ ‘Unlike criminal proceedings,
where establishing the identity of the perpetrator is paramount, the purpose
of dependency proceedings [is] to fashion appropriate orders in the best
interest of the child. . . .’ [Citation.] If a perpetrator’s identity must be
conclusively established, ‘a family could stonewall the [social services
department] and its social workers concerning the origin of a child’s injuries
22
and escape a jurisdictional finding. . . .’ [Citation.] The prerequisite of a
conclusive identification could lead to absurd results: the potential return of
a seriously injured child to an unidentified perpetrator. The purpose of
dependency law ‘is to provide maximum safety and protection’ for currently
abused and neglected children and to ensure the safety of children at risk of
harm.” (In re A.S., at pp. 245–246.)
At the time of the contested adjudication, the parents could not be
ruled out as the perpetrators of the twins’ injuries. As explained ante, the
twins were under their parents’ exclusive care when the injuries presented,
and multiple medical professionals agreed that the absence of any
explanation for the injuries suggested nonaccidental trauma. Such evidence
supports a reasonable inference that the twins were at a substantial risk of
serious physical harm and was sufficient to sustain the jurisdictional findings
under section 300, subdivision (a). (See In re D.P., supra, 225 Cal.App.4th at
p. 903 [“The undisputed evidence of nonaccidental trauma and mother’s
failure to explain how [her minor son] was injured in her care constituted
substantial evidence that mother was responsible for inflicting these injuries
on [the minor].”].)
The parents also highlight statements made by the juvenile court when
ruling on disposition, which they argue could suggest there was no longer a
risk of future harm. In this section of its ruling, the court noted that the
parents were hardworking, loved their children, and that having “a really bad
moment . . . doesn’t make you a really bad person.” The court also stated that
although the abuse may have occurred in “a moment of weakness,” this did
not necessarily mean it would happen again. The parents deduce that these
dispositional findings indicated there was no substantial danger to the
children’s well-being and were therefore inconsistent with the court’s
23
jurisdictional findings that the children were at substantial risk of serious
harm.
None of the statements the parents emphasize, however, are
necessarily inconsistent with the juvenile court’s jurisdictional findings.
While jurisdictional findings require only a preponderance of the evidence
(§§ 300, 355, subd. (a)), a dependent child may not be taken from the physical
custody of the parent under section 361 at the dispositional stage unless the
court finds there is clear and convincing evidence of a substantial danger to
the child’s well-being if returned home, and there are no reasonable means to
protect the child’s physical health without removing the child (§ 361, subd.
(c)(1)). The court in this case expressly found that although the evidence was
sufficient to establish jurisdiction by a preponderance of the evidence, it did
not find clear and convincing evidence to justify the children’s continued
removal from the home. Rather than establishing an inconsistency, these
findings reflect the court’s compliance with the heightened burden of proof
required for establishing disposition relative to jurisdiction.
As we have explained, there is substantial evidence in the record to
support the juvenile court’s jurisdictional findings under section 300,
subdivision (a). Correspondingly, the court’s assumption of jurisdiction over
K.N. pursuant to section 300, subdivision (j) is also supported. Under section
300, subdivision (j), “[t]he court shall consider the circumstances surrounding
the abuse or neglect of the sibling, the age and gender of each child, the
nature of the abuse or neglect of the sibling, the mental condition of the
parent or guardian, and any other factors the court considers probative in
determining whether there is substantial risk to the child.” In this case, the
Agency was unable to confirm K.N.’s allegation that Father hit her in the
face. However, “[t]he juvenile court need not wait until a child is seriously
24
injured to assume jurisdiction if there is evidence that the child is at risk of
future harm from the parent’s negligent conduct.” (In re Yolanda L. (2017) 7
Cal.App.5th 987, 993.) In the absence of any confirmed injuries to K.N., the
court could still reasonably conclude that the unexplained injuries to K.N.’s
siblings placed her at a substantial risk. K.N. was similarly situated to the
twins given her young age, complete reliance on her parents for care, and her
own developmental needs. Further, K.N.’s difficulties communicating with
the social workers throughout these proceedings indicated she may be unable
to report abuse. Thus, the similarities in the circumstances of these siblings
are sufficient to sustain the jurisdictional allegations in K.N.’s petition.
B. The Juvenile Court Did Not Abuse Its Discretion in Ordering Family
Maintenance Services
After the juvenile court makes a true finding at the jurisdictional phase
of a dependency case, the court must then consider whether a minor should
be declared a dependent and whether he or she would be at substantial risk
of harm if not removed from the parent’s care. (§§ 358, subd. (a), 360, 361;
see In re Austin P. (2004) 118 Cal.App.4th 1124, 1129.) In general, “ ‘[t]he
juvenile court has broad discretion to determine what would best serve and
protect the child’s interest and to fashion a dispositional order in accordance
with this discretion.’ ” (In re Neil D. (2007) 155 Cal.App.4th 219, 225.) The
juvenile court’s order “ ‘will not be reversed absent a clear abuse of
discretion.’ ” (Ibid.)
In challenging the dispositional orders, the parents assert that the
juvenile court impliedly found that the abuse “was a one-time event, and that
it would not happen again.” They highlight statements the court made
complimenting the parents for being hardworking and loving their children,
and the court’s indication that there was not “necessarily a propensity” for
further abuse. Based on these comments, combined with the court’s decision
25
to return the children to the parents’ care, the parents assert that their
continued supervision under a court-ordered family maintenance plan is
arbitrary.
The parents’ challenge to the juvenile court’s dispositional findings,
however, takes the court’s statements out of context. The court did not find
that the abuse was a “one-time event.” Rather, it was optimistic that the
children could safely return to the parents’ care but believed that a family
maintenance plan was necessary to ensure there were no further instances of
abuse. The court also cited the appropriate legal standards throughout its
decision, and as explained previously, the dispositional and jurisdictional
findings reflected the Agency’s differing burdens of proof. (§§ 300, 355, subd.
(a), 361, subd. (c)(1).) Thus, sustaining the jurisdictional allegations while
also returning the children to the parents’ care was neither arbitrary nor
inherently inconsistent.
The specific aspects of the family maintenance plan further
demonstrate that the juvenile court acted within its discretion when it made
its dispositional orders. For instance, the family maintenance plan included
the requirement that two adults be present in the home with the children at
all times, and that the parents attend child abuse classes. Both provisions
specifically addressed concerns the Agency raised regarding Father’s stress
level as the sole caregiver for the children while Mother is at work, and the
parents’ refusal to attend child abuses classes unless it was court-ordered.
Overall, the court was entitled to fashion its dispositional orders in the
manner it determined would serve the children’s best interests, and requiring
the parents to comply with a family maintenance plan does not constitute an
abuse of discretion under the circumstances of this case. (In re Nada R.
(2001) 89 Cal.App.4th 1166, 1179.)
26
C. The Juvenile Court Was Not Biased Against the Parents
The Due Process Clause “ ‘entitles a person to an impartial and
disinterested tribunal in both civil and criminal cases.’ ” (Brown v. American
Bicycle Group, LLC (2014) 224 Cal.App.4th 665, 673.) That right extends not
only to criminal defendants but to civil litigants as well. (People v. Scott
(1997) 15 Cal.4th 1188, 1206.) However, as the California Supreme Court
has explained, “[m]ere expressions of opinion by a trial judge based on actual
observation of the witnesses and evidence in the courtroom do not
demonstrate a bias.” (People v. Guerra (2006) 37 Cal.4th 1067, 1111
(Guerra), overruled on another point in People v. Rundle (2008) 43 Cal.4th 76,
151.)
On appeal, our task is to “assess whether any judicial misconduct or
bias was so prejudicial that it deprived [the appellant] of ‘ “a fair, as opposed
to a perfect, trial.” ’ ” (Guerra, supra, 37 Cal.4th at p. 1112.) This standard is
“an objective one,” and it requires a showing of bias on the part of the trial
judge that is so great as to become “ ‘ “constitutionally intolerable.” ’ ” (People
v. Freeman (2010) 47 Cal.4th 993, 1001.)
The parents’ assertion that the juvenile court was biased against them
relies on comments the judge made indicating his familiarity with Dr.
Nienow and one of the social workers who testified in this matter. The
parents contend that rather than basing its credibility determinations on the
testimony presented at trial, the court had predetermined the credibility of
these witnesses.
We perceive no judicial bias in our review of the record. For instance,
in finding that Dr. Nienow was credible, the juvenile court expressly referred
to the testimony Dr. Nienow provided in this matter to support the present
petitions. The court was particularly persuaded by her testimony that she
27
finds child abuse in only about half of the cases she reviews. Similarly, the
court made a positive credibility finding of the social worker based on her
“work product,” indicating that the court had relied on the quality of the
reports the social worker provided in these proceedings. Thus, although
there were passing references to the court’s prior cases that involved these
witnesses, the credibility determinations were rooted in the evidence
presented in this matter.7
The record is otherwise replete with examples showing that the
juvenile court treated the parties fairly and even-handedly, and with
empathy. For instance, the court rejected the Agency’s request for out-of-
home detention, instead allowing the children to return to the parents’ care.
In making these dispositional findings, the court described the parents as
“very good people,” “hardworking,” and that they appeared to love their
children⎯compliments the parents have expressly recognized in this appeal.
Even though the court ultimately found the Agency’s evidence more
persuasive as to the jurisdictional allegations, the court also found Mother’s
expert, Dr. Robbins, to be “a very highly qualified witness” with “very
impressive credentials” in her own right. (Cf. Guerra, supra, 37 Cal.4th at
p. 112 [“a trial court’s numerous rulings against a party—even when
erroneous—do not establish a charge of judicial bias”].) This record, on the
whole, does not support the parents’ claims of judicial bias.
7 We note that the juvenile court’s stray remarks regarding its prior
experiences with these witnesses were unnecessary to the court’s ultimate
findings in this case, and thus it may have been preferrable for the court to
refrain from such commentary. Nevertheless, “[t]he role of a reviewing court
‘is not to determine whether the trial judge’s conduct left something to be
desired, or even whether some comments would have been better left unsaid.’
[Citation].” (People v. Harris (2005) 37 Cal.4th 310, 347.)
28
DISPOSITION
The orders of the juvenile court are affirmed.
DO, J.
WE CONCUR:
IRION, Acting P. J.
GUERRERO, J.
29