In re Mi.Q. CA4/1

Filed 4/27/22 In re Mi.Q. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 Mi.Q., a Person Coming Under
the Juvenile Court Law.
D079738
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES
AGENCY, (Super. Ct. No. NJ15777C)
Plaintiff and Respondent,
v.
R.Q.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Michael Imhoff, Commissioner. Affirmed.
Lelah S. Fisher, under appointment by the Court of Appeal, for
Defendant and Appellant.
Lonnie J. Eldridge, County Counsel, Caitlin E. Rae, Chief Deputy
County Counsel, and Eliza Molk, Deputy County Counsel, for Plaintiff and
Respondent.
When Mi.Q. (Minor) was just over two months old, he sustained an
unexplained fracture of his right arm above the elbow while he was in the
exclusive care of his parents. Medical experts unanimously agreed that the
injury was inflicted because an infant his age could not cause the injury
himself. Three physicians opined that the injury was more likely than not
related to physical abuse because they did not believe that the parents had
offered a reasonable explanation for accidental trauma to Minor’s arm.
R.Q. (Father) appeals the juvenile court’s order finding true allegations
that Minor is a child within the jurisdiction of the juvenile court under
Welfare and Institutions Code section 300, subdivision (a),1 declaring Minor
a dependent, and placing him with his parents under a family maintenance
case plan. Father contends that the court’s jurisdictional finding is not
supported by substantial evidence because one expert opined that the
parents’ description of an encounter between an older child and Minor
presented the “possibility” that the injury had been accidental.
Father challenges the juvenile court’s jurisdictional findings as to both
himself and Mother because the court did not make separate factual findings
as to each parent to support independent grounds for jurisdiction. The San
Diego County Health and Human Services Agency (Agency) contends that
this court should not consider Father’s claims under the justiciability
doctrine because there would still be jurisdiction over Minor, since Ma.Q.
(Mother) has not appealed.
We conclude that Father has standing to appeal the jurisdictional
finding as to both parents because the juvenile court’s jurisdictional findings
as to Father and Mother are so interwoven that if we were to reverse the
1 All further statutory references are to the Welfare and Institutions
Code unless otherwise specified.
2
finding as to Father, we would effectively be reversing as to Mother, as well.
We therefore do not reach the issue of justiciability. On the merits, we
conclude that there is substantial evidence supporting the juvenile court’s
jurisdictional finding. We therefore affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
A. Discovery of Injury.
In the early morning of August 29, 2021, Father noticed that Minor’s
right arm was dangling on the side of his body when Father removed him
from a baby swing to feed him. Later that morning, after consulting with a
relative, the parents took Minor to an urgent care facility where the
physician considered nursemaid’s elbow and attempted reduction.2 After
reduction attempts were unsuccessful, Minor was sent to the emergency room
at Rady Children’s Hospital for further evaluation. Imaging at the hospital
revealed an acute angled fracture of the upper arm bone above the elbow.
The fracture was non-displaced, meaning that the bones remained aligned.
B. Parents’ Statements.
Both parents denied hurting Minor and denied knowing how the
fracture could have occurred. They said that Minor was always supervised
2 Nursemaid’s elbow is a common, often accidental, injury in young
children that results from being pulled or lifted by the hand or wrist. The
head of the radius is subluxated, or partially dislocated, from the annular
ligament. A child often refuses to use the affected arm. (Stedman’s Medical
Dict. (28th ed. 2006) pp. 619 [nursemaid’s elbow], 1125 [Malgaigne luxation],
1856 [radial head subluxation]; Harwood Nuss’ Clinical Practice of
Emergency Med. (2014 6th ed.), ch. 285, Nursemaid’s Elbow, pp. 1278–1279
[treatment commonly involves attempting reduction by cradling the elbow
with one hand while the examiner moves the child’s forearm and hand
(hyperpronation and/or supination) until a “click” is felt].)
3
when his three older brothers interacted with him. Minor’s brothers share a
bedroom while Minor shares a bedroom with the parents.
Father was home with the children on Saturday, the day before the
injury was discovered. Minor was next to him the entire day as Father
played videogames with the older children. When Mother got home from
work at around 3:30 p.m., Minor was sleeping. She changed him and the
family went shopping together. Minor was not fussy and was behaving
normally.
When they returned home, Minor was lying on his back on a C-shaped
“Bopee” pillow while Mother prepared dinner. Mother observed her 19-
month-old child do a “little dance” and raise Minor’s arms. The older boy
pulled Minor by both arms “straight forward,” let go, and then pulled him
again. Mother said that the older child lifted Minor slightly, but the infant’s
bottom did not leave the pillow. Mother said that the pull did not last for
even a second. Minor cried immediately after the incident.
Minor was fine when Mother gave him a bath that evening. He did not
cry when she lifted his arm. She said that he screamed when she applied
lotion, which she thought was unusual. Mother was away from the home
between 8:45 p.m. and midnight. Father fed Minor, swaddled him, and put
him to sleep in a baby rocker.
Father noticed that Minor’s arm was limp at around 4:00 a.m. on
Sunday, August 29, 2021. Minor was not fussy or crying. The parents sought
care later that morning.
C. Initiation of Dependency Proceedings.
When the fracture was discovered, the emergency room physician and a
social worker contacted Premi Suresh, M.D., a child abuse expert at Rady’s
Children’s Hospital, who reviewed the case documentation, including
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documentation from the urgent care facility indicating that a one-year-old
sibling “pulled the baby from the boppy on the couch yesterday” and that
since 4:00 a.m., Minor had not been using his right arm. Dr. Suresh opined
that a fracture in a two-month-old infant was “definitely” an inflicted injury
because the infant would not be able to cause the fracture on his own.
Dr. Suresh further stated, “the history being provided that the [one-year-old]
sibling caused the fracture is also highly concerning as it is not plausible that
the [one-year-old sibling] could fracture an infant’s arm by simply pulling on
the baby’s arm.” She believed that the injury was “highly concerning for
physical abuse” and recommended a thorough investigation by child welfare
services and implementation of a safety plan.
An investigating detective also expressed strong concern for Minor’s
safety under the parents’ care, given the lack of a plausible explanation for
the fracture. He said that neither parent could be ruled out as a suspect.
The Agency obtained a protective custody warrant and filed a petition
on September 8, 2021, alleging that Minor was a person within the
jurisdiction of the juvenile court under section 300, subdivision (a) because
his injury occurred while in the care of his parents and was highly concerning
for physical abuse. The Agency recommended detention of Minor out of the
home. The parents agreed to participate in a safety plan. They volunteered
to leave the home and to allow the maternal grandmother to care for the
children in the home.3
3 The Agency also expressed concern that the 19-month-old sibling was
vulnerable and at risk of physical injury due to his young age and because he
was nonverbal. The Agency recommended detention of the 19-month-old
sibling out of the home and that a four-year-old sibling be detained in the
care of the parents under supervision. The Agency did not recommend
oversight of a nine-year-old sibling. The court later dismissed the petitions
for Minor’s two older siblings after concluding that the Agency had not
5
At the detention hearing on September 9, 2021, the court determined
that the Agency had made a prima facie showing that Minor was a person
described by section 300, subdivision (a) and ordered him detained in an
approved relative home.
D. Physician Evaluations.
The jurisdiction and disposition report dated September 30, 2021,
included evaluations from two additional pediatricians who specialize in
evaluating possible child abuse. Sarah Vega, M.D., a pediatric fellow, opined
that an oblique fracture is caused by a combination of bending and torsional
forces. A thorough evaluation did not reveal a medical cause for the fracture.
Because there was no plausible trauma history to explain the fracture,
Dr. Vega believed that the facture was consistent with an inflicted injury.
She was of the view that Minor would be at risk of further maltreatment if
returned to the environment in which his injury was sustained. Shalon
Nienow, M.D., the attending pediatrician, agreed with Dr. Vega’s findings
and plan. Dr. Nienow clarified, that “[i]n the absence of a reasonable
accidental trauma history, the injury sustained by [Minor] is more likely than
not related to physical abuse.”
Before the contested adjudication and disposition hearing, the Agency
submitted an addendum report dated November 5, 2021, with additional
expert statements. The addendum included a report obtained by Mother’s
counsel from Lisa Miller, M.D., an expert in pediatric orthopedic injuries.
Dr. Miller was of the view that Mother had provided a reasonable
explanation for the injury. Dr. Miller commented that Dr. Suresh’s
carried its burden to establish jurisdiction under section 300, subdivision (j).
That ruling is not at issue in this appeal.
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statement indicated that the older sibling who had pulled on Minor’s arm was
one year old whereas Dr. Miller believed the older child was 16 months old.
According to Dr. Miller, a 16-month-old child “could potentially have caused
the injury.” Dr. Miller agreed that the injury is caused by twisting or traction
and twisting. She thought that Minor “could have been injured” based on
Mother’s description of the older child pulling Minor’s arm on two occasions,
the second time with enough force to lift Minor slightly off the pillow. Minor
cried immediately after the arm was pulled. Although Minor did not fuss
when Mother bathed him, Dr. Miller thought that this could occur if the arm
were not twisted or moved in such a way as to move the fracture fragments,
which would cause pain. When Mother applied lotion, she may have moved
the arm sufficiently to cause the fracture to hurt. Dr. Miller concluded,
“[w]ith this plausible explanation of the injury, I do not think that [Minor]’s
fracture was necessarily the result of abuse.”
Dr. Suresh reviewed Dr. Miller’s letter and disagreed with her opinion.
Dr. Suresh reiterated that the injury was “definitely inflicted because an
infant that age could not cause [the fracture] to himself accidentally.
Someone else had to inflict it on him. The crux of my opinion is that I do not
believe a 16[-]month[-]old infant could break the child’s arm by pulling it.”
Dr. Suresh pointed out that a 16-month-old is considered a one-year-old child
and she did not believe that a 16-month-old child could have caused the
injury. She suggested that the baby may have cried out when his arm was
pulled because it was already broken.
Dr. Nienow also reviewed Dr. Miller’s letter and disagreed with her
opinion. Dr. Nienow explained that Dr. Vega specifically discussed the event
involving the older child with the parents during her visit. “Mother reported
that she witnessed [the older child] grab both of the arms and when told not
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to do so he let them go. [Minor] did not cry out in pain during this event.
Nor did [the older child] twist/pull the arm. Fractures are excruciatingly
painful at the time that they are incurred and every time the fracture
fragments are manipulated thereafter. The pain symptoms from the initial
event would have been very obvious.” She also disagreed that there is a
significant difference between the abilities of a 12-month-old and a 16-month-
old to cause this injury. “A toddler of this age would not be able to generate
enough force to cause a fracture of an infant.” In Dr. Neinow’s opinion,
Mother’s “manipulation of the arm during the bath without crying or pain
symptoms raises suspicion that the fracture was not present at this time.
When fractures are present infants will self-splint (not move the limb) in an
effort to prevent pain symptoms from occurring. This was witnessed by
[F]ather at [4:00 a.m.]. This shows that movement of the arm was acutely
painful for him.”
E. Contested Adjudication and Disposition Hearing
1. Agency Evidence.
At the contested adjudication and disposition hearing in November
2021, the court received in evidence the detention report of September 9,
2021, the jurisdiction report dated September 30, 2021, and the November 5,
2021, addendum report. The Agency rested without presenting additional
evidence.
2. Mother’s Evidence.
Mother’s counsel cross-examined the Agency’s social worker about the
Agency’s reports and its follow-through with physician recommendations for
investigation. On re-direct, the worker expressed serious concern that a two-
month-old child had a broken arm without a plausible explanation. Three
medical experts stated that the older sibling could not have fractured the
8
Minor’s arm. The worker stated that was “extremely scary and worrisome.”
However, the social worker stated that “with services . . . and the Agency
being mindful and watching over this family” she believed that the children
could be safe on a family maintenance plan.
Mother’s counsel called Dr. Miller to testify. Dr. Miller agreed with the
diagnosis of a non-displaced humeral shaft fracture. The oblique, or
diagonal, nature of the fracture was important for determining the
mechanism by which it occurred. The fact that the fracture was non-
displaced was important because a nondisplaced fracture can be less painful
than a displaced fracture.
She agreed the fracture was acute, meaning it happened shortly before
the exam and x-ray. She also agreed that the injury had been inflicted
because Minor was too young to have sustained the injury himself.
Dr. Miller thought that the older child pulling on Minor’s arm was a
plausible or reasonable explanation for the injury, absent abuse. She
believed that Mother had said that the child pulled Minor a second time by
one arm and that Minor had come up off the pillow, whereas in the first
episode, the Minor’s bottom had not come up off the pillow.
Dr. Miller agreed that an oblique fracture is generally caused by
twisting or rotation. She said that it was unknown whether the older child
had made a violent or twisting injury while lifting Minor, but noted that
Minor cried after the second episode. Although Minor was not uncomfortable
when Mother bathed him, he shrieked when she applied lotion. Dr. Miller
thought that this indicated “a possibility that maybe the injury occurred”
9
with the older child, who was described as being jealous of the Minor and
“rough” with him.
Dr. Miller said that the older child was actually 19 months old at the
time of Minor’s injury. She thought that a 19-month-old child would be
larger and more stable than a 12-month-old child and could have caused the
injury. When asked whether it was more plausible that a 19-month-old child
could have caused the injury than a 16-month-old, she said, “Yes. Perhaps.”
When asked again, Dr. Miller said, “we also don’t know perhaps if [the older
child] grabbed on the arm and had a fall, trip-and-fall. You know, and that
would have generated more force than just pulling and twisting. So – I just
think it was plausible. It was just a possibility.” She believed that it was
appropriate to investigate the Minor’s injury and to involve a social worker at
the hospital, but she thought that the physicians should have considered the
parents’ explanation “as a possibility.”
On cross-examination, Dr. Miller explained that she had inferred that
there were two episodes of pulling based on how the detention report was
written. She thought that Mother had described the first episode as the older
child pulling Minor by both arms “straight forward” and the Minor’s bottom
did not “leave the pillow,” and that this pull did not last for even a second.
The older child immediately let go when she yelled at him. The report stated
that the older child did not pull the Minor after Mother yelled at him.
However, Dr. Miller thought that the report described a second episode based
on another passage that stated, “[M]other said that when she was cooking
dinner, [the older child] grabbed the newborn from his ‘bopee’ on the
couch. . . . [Mother] said, ‘I yelled at [the older child] and he jumped back and
10
then my newborn fell back into the ‘bopee.’ [Mother] said that [Minor] was
crying right after [the older child] pulled on him.”4
Dr. Miller inferred that when Mother said that the older child
“grabbed” the newborn, he had pulled only one arm because some earlier
reports from the urgent care and the hospital referred to “arm,” not “arms.”
She agreed that she did not know whether the older child grabbed one or both
arms.
Dr. Miller agreed that if the detention report intended to describe only
a single episode that involved pulling on both arms and Minor’s buttocks had
not left the couch, then she would change her opinion and not offer it as an
explanation for Minor’s injury.
The court inquired further of Dr. Miller regarding what she understood
to be a second episode. Dr. Miller explained that, where Mother said that the
older child “grabbed” Minor, Dr. Miller assumed that the older child had
grabbed Minor by one arm. Dr. Miller agreed that if the older child grabbed
Minor by both arms it is less likely that one arm was rotated to cause the
injury. A rotational injury would have to be forceful, even if by accident. The
torsion or twisting required for the fracture would be lacking if the child was
grabbed by both arms.
Dr. Miller testified that Mother’s description of the event provides a
“possibility” for the injury. She thought, however, that it would be difficult to
4 The statements in the detention report appear to be drawn from a
statement of cause submitted with a protective custody warrant affidavit
early in the case. This statement included a social worker’s description of
Mother’s initial statements made on August 29, 2021, and also a description
of Mother’s statements made to a different social worker later on the same
day. The second social worker testified on rebuttal that he had typed two
descriptions of the same incident.
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say that the older child grabbing and lifting Minor by the arms is more likely
than not the cause of the injury. Rather, it is merely within the matrix of
“possible causes.” Dr. Miller could not say to a medical certainty that the
older child caused Minor’s injuries.
3. Rebuttal Evidence.
In rebuttal, the Agency called an emergency response social worker
who had interviewed Mother on August 29, 2021. His report is incorporated
in the detention report. He testified that he generally asks a parent to
describe a timeline of any plausible explanation for how the injury could have
occurred. Mother said that while she was cooking dinner, she noticed the
older child pull Minor forward. She described it as “a very light pull” and
said that Minor’s “butt did not leave the pillow” and that the pull had not
lasted for “even a second.” When the social worker asked Mother to describe
the incident further, she explained what she had been doing and where the
children were at the time the incident occurred. There are two descriptions of
the same event in the report because the social worker was typing while
Mother was talking.
Mother described a single encounter in which the older child pulled
Minor, let him go, and pulled him again. Mother said that the older child
pulled Minor by both arms, straight forward, and that the Minor’s bottom did
not leave the pillow. The social worker said that Minor cried after the first
pull in which he was lifted. The older child pulled again as Mother yelled
and he let go. Mother said that it had all happened quickly.
4. Court’s Ruling.
The juvenile court indicated that it had considered the reports and
listened carefully to the testimony. The court noted that there was “complete
unanimity” among all experts that the injury was inflicted. “So the real issue
12
for the [c]ourt is how and who.” The court believed that Mother had honestly
recounted what she saw, but questioned whether a 19-month-old toddler had
sufficient strength “to cause the torsion necessary to produce this specific
injury in his brother.” Dr. Miller agreed that it was much less likely that the
older child could create the requisite torsion to cause the injury if the older
child had grabbed both of Minor’s arms. Even when the older child pulled
Minor again, the court observed that there was “nothing in that explanation
that gives rise to the fact that [the older child] utilized the required torsion
motion with the sufficient strength to have [Minor] sustain his injury.” The
court concluded that “the record before the [c]ourt does not indicate that [the
older child] caused the specific injury to [Minor].”
The juvenile court did not find Dr. Miller’s testimony helpful in
understanding how the older child could have caused the injury. “She said it
was a possibility, but a possibility is a very broad term. It does not focus the
[c]ourt’s attention to the specifics of what she sees in the conduct of [the older
child] vis-a-vis the required torsion of the arm to create this injury.” The
court found her opinion was not “grounded sufficiently in the record before
the [c]ourt that would persuade the [c]ourt otherwise.” The court found that
the Agency had carried its burden as to jurisdiction over Minor by a
preponderance of evidence. “[T]here is no disagreement in the record that
this is an inflicted injury. The [c]ourt has concluded that there’s no
reasonable explanation.” The court made a true finding on the petition,
finding by a preponderance of the evidence that Minor is a person described
under section 300, subdivision (a). The court restored physical custody and
13
placed Minor with his parents, approved the case plans, and set a family
maintenance review hearing.
DISCUSSION
I.
Father Has Standing to Appeal As to Both Parents
At the outset, the Agency contends that this court should not reach the
merits of Father’s appeal based on the doctrine of justiciability. Because
Mother did not appeal the finding against her, the Agency contends, the
finding of jurisdiction over Minor would stand even if we were to reverse the
finding as to Father. (In re L.O. (2021) 67 Cal.App.5th 227, 237, quoting In re
Briana V. (2015) 236 Cal.App.4th 297, 308 [“ ‘[A] jurisdictional finding good
against one parent is good against both.’ ”].)5 Because the court did not make
separate jurisdictional findings as to each parent, Father asserts that he has
standing to challenge the court’s jurisdictional finding as to both himself and
5 “Under the doctrine of justiciability, courts generally do not act upon or
decide moot questions or abstract propositions, nor do they issue advisory
opinions. [Citation.] ‘An important requirement for justiciability is the
availability of “effective” relief—that is, the prospect of a remedy that can
have a practical, tangible impact on the parties’ conduct or legal status.’
[Citation.] ‘For this reason, an appellate court may decline to address the
evidentiary support for any remaining jurisdictional findings once a single
finding has been found to be supported by the evidence’ or is unchallenged.”
(In re L.O., supra, 67 Cal.App.5th at p. 237.) Courts have recognized an
exception to this rule to permit a reviewing court to exercise discretion to
reach the merits of a challenge to a jurisdictional finding “ ‘when the finding
(1) serves as the basis for dispositional orders that are also challenged on
appeal [citation]; (2) could be prejudicial to the appellant or could potentially
impact the current or future dependency proceedings [citations]; or (3) “could
have other consequences for [the appellant], beyond jurisdiction” [citation].’ ”
(Ibid., citing In re Drake M. (2012) 211 Cal.App.4th 754, 762–763.)
14
Mother. Alternatively, Father asks us to exercise our discretion to reach the
merits of his challenge to the jurisdictional finding under an exception to the
justiciability doctrine. We agree that Father may challenge the jurisdictional
finding as to both parents in this case.
“As a general rule, ‘ “where several persons are affected by a judgment,
the reviewing court will make no determination detrimental to the rights of
those who have not been brought into the appeal.” ’ [Citations.] The rule is
not inflexible, however. [Citation.] ‘Where portions of a judgment adverse to
a nonappealing party are inextricably interwoven with the whole judgment, a
general reversal may be ordered to do complete justice.’ ” (Union Pacific
Railroad Co. v. Ameron Pole Products LLC (2019) 43 Cal.App.5th 974, 986,
citing Estate of McDill (1975) 14 Cal.3d 831, 840; see also In re C.W. (2019) 33
Cal.App.5th 835, 866 [court reversed both a custody order and an order
terminating jurisdiction “because the two rulings are interwoven and
connected.”].)
“ ‘Where the interests of two parties interweave, either party has
standing to litigate issues that have a[n] impact upon the related interests.
This is a matter of first party standing.’ ” (In re Caitlin B. (2000) 78
Cal.App.4th 1190, 1193, citing In re Patricia E. (1985) 174 Cal.App.3d 1, 6
[where minor did not appeal, father had standing to raise the right of the
minor to have independent counsel because their interests were intertwined],
disapproved on other grounds in In re Celine R. (2003) 31 Cal.4th 45, 60.)
Standing to appeal should be construed liberally. (In re K.C. (2011) 52
Cal.4th 231, 236; Code Civ. Proc., § 902 [“Any party aggrieved may
appeal . . . .”].)
The juvenile court based its jurisdiction finding on the fact that Minor
sustained an inflicted injury while in the parents’ care, with no reasonable
15
explanation. The court made no specific findings independently supporting
jurisdiction as to either parent. Because the interests of both parents in
terms of the jurisdictional finding are entirely interwoven in this case, it
would be appropriate to reverse the jurisdictional finding as to both parents if
we were to conclude that there is any reversible error. (In re C.W., supra, 33
Cal.App.5th at p. 867 [“An appellate court ‘ “must have power to do that
which justice requires and may extend its reversal as far as may be deemed
necessary to accomplish that end.” ’ ”]; Estate of Sanderson (1960) 183
Cal.App.2d 740, 743 [reversal of order applied to all distributees of a will
even though only one beneficiary appealed]; compare In re E.E. (2020) 49
Cal.App.5th 195, 212, fn. 2 [court did not reach the issue of whether mother
had standing to challenge the evidentiary basis for jurisdictional allegations
against father where substantial evidence supported the decision based on
mother’s conduct alone; the court reversed a disposition finding as to father
because mother’s interests were related].) We therefore consider the merits
of the appeal without reaching the issue of justiciability or whether any
exception to that rule applies.
II.
Substantial Evidence Supports the Jurisdictional Finding
Father contends that the juvenile court’s jurisdictional finding is
unsupported by substantial evidence because the parents presented a
plausible accidental explanation for Minor’s injury based on the incident with
the older child, and Dr. Miller testified that this incident could have caused
the injury. We disagree.
“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) provides
16
a basis for dependency jurisdiction 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.” A
juvenile court must find jurisdictional allegations true by a preponderance of
evidence. (§ 355; Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 248.)
Allegations under section 300 may be sustained even if the cause of the
child’s injuries is unknown. (See In re A.S. (2011) 202 Cal.App.4th 237, 245–
246 [jurisdiction under section 300, subdivision (b) was proper where the
parents could not be ruled out as perpetrators of the child’s injuries],
disapproved of on other grounds by Conservatorship of O.B. (2020) 9 Cal.5th
989, 1010, fn. 7; 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 [section
300] subdivision (e) is not automatically ruled out”].) “ ‘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
and escape a jurisdictional finding. . . .’ ” (In re A.S., at p. 245.)
We review the juvenile court’s jurisdictional findings for substantial
evidence. (In re Isabella F. (2014) 226 Cal.App.4th 128, 137.) “ ‘In reviewing
a challenge to the sufficiency of the evidence supporting the jurisdictional
findings and disposition, we determine if substantial evidence, contradicted
or uncontradicted, supports them. “In making this determination, we draw
17
all reasonable inferences from the evidence to support the findings and orders
of the dependency court; we review the record in the light most favorable to
the court’s determinations; and we note that issues of fact and credibility are
the province of the trial court.” [Citation.] “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. (2013)
56 Cal.4th 766, 773.) However, “[s]ubstantial evidence is not synonymous
with any evidence. [Citation.] To be substantial, the evidence must be of
ponderable legal significance and must be reasonable in nature, credible, and
of solid value.” (In re M.S. (2019) 41 Cal.App.5th 568, 580.)
The record shows that Minor was within the exclusive care of his
parents at the time the injury occurred. Both Mother and Father stated that
Minor was never left unsupervised with any of the other children. Each
medical professional agreed that the injury was inflicted by someone because
the infant could not have broken his own arm.
Three medical experts agreed that Mother’s description of the
encounter with the older child pulling on Minor’s arms was not a plausible
explanation for Minor’s injury. The court considered Dr. Miller’s opinion that
the incident with the older child could provide a “possible” explanation for the
injury, but ultimately determined that her opinion was not helpful because it
was not grounded in the evidence. Upon cross-examination and further
inquiry from the court, it was apparent that Dr. Miller inferred more from a
second pulling incident than the evidence would support. She believed that
the older sibling had pulled only one arm during the second pull. But there is
nothing in any of Mother’s statements suggesting that is the case. Dr. Miller
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admitted that she did not know whether the older child had “grabbed” one or
two arms in the second pull.
Dr. Miller agreed that Minor’s injury required forceful rotation of the
arm, even if by accident. She also agreed that if the older child had grabbed
Minor by both arms, it was less likely that the older child could exert the
torsion necessary to cause an oblique fracture. Dr. Miller suggested that it
was possible that the older child could have tripped and fallen while holding
the Minor’s arm, which could generate more force than pulling or twisting.
She also suggested that Minor could have fallen to one side if held by only
one arm and that gravity may have exerted more force. But there is nothing
in the record to support either supposition. Mother’s statements indicate
that she witnessed the entire encounter and did not describe any such event.
In fact, Dr. Nienow stated that Dr. Vega specifically discussed the episode
with Mother. She said that the older child did not “twist/pull” Minor’s arm.
As the court stated, nothing in Mother’s explanation “gives rise to the fact
that [the older child] utilized the required torsion motion with sufficient
strength to have [Minor] sustain his injury.”
The court was well within its province to weigh the opinions of the
experts and determine that Dr. Miller’s opinion was not helpful. Dr. Miller
could not state that the encounter with the older child more likely than not
caused Minor’s injury. She said only that it provided a “possible”
explanation. That possibility was diminished when Dr. Miller was pressed as
to the foundation for her opinion and it became apparent that her
assumptions and inferences were not grounded in the evidence. An expert
opinion based on some theoretical possibility when the cause remains one of
pure speculation or conjecture is not useful for a trier of fact. (People v.
Prunty (2015) 62 Cal.4th 59, 84–85.) An expert’s opinion must contain “a
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reasoned explanation illuminating why the facts have convinced the expert,
and therefore should convince the [trier of fact], that it is more probable than
not” that an act was a cause of injury under a preponderance of evidence
standard. (See Jennings v. Palomar Pomerado Health Systems, Inc. (2003)
114 Cal.App.4th 1108, 1117–1118, italics omitted.)
We conclude that substantial evidence supports the juvenile court’s
jurisdictional findings under section 300, subdivision (a). The undisputed
evidence of an inflicted injury while Minor was within the exclusive care of
one or both of his parents and the absence of a reasonable explanation for his
injury constitutes substantial evidence that one or both parents are
responsible for the injury. (In re D.P. (2014) 225 Cal.App.4th 898, 903.)
DISPOSITION
The November 8, 2021 order is affirmed.
AARON, Acting P. J.
WE CONCUR:
IRION, J.
DO, J.
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