In re Tanner F. CA5

Filed 9/24/20 In re Tanner F. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

In re TANNER F. et al., Persons Coming
Under the Juvenile Court Law.

STANISLAUS COUNTY COMMUNITY F080366
SERVICES AGENCY,
(Super. Ct. Nos. JVDP-19-000062,
Plaintiff and Respondent, JVDP-19-000063)

v.
OPINION
SAMANTHA F. et al.,

Defendants and Appellants.

APPEAL from an order of the Superior Court of Stanislaus County. Ann Q.
Ameral, Judge.
Gorman Law Office and Seth F. Gorman for Defendants and Appellants.
Thomas E. Boze, County Counsel, and Angela J. Cobb, Deputy County Counsel,
for Plaintiff and Respondent.
-ooOoo-
Nine-month-old Hudson F. sustained skull fractures consistent with nonaccidental
trauma. In the window of time the fractures were opined to have occurred, Hudson had
been in the care of his parents, Samantha F. (mother) and Matthew F. (father)
(collectively, “parents”); daycare providers; maternal grandmother; and other family
members. Medical testimony established that none of the explanations the parents, the
daycare providers, or the grandmother gave could have explained the fractures. The
juvenile court took dependency jurisdiction over Hudson and his two-year-old brother,
Tanner F., finding they were described by Welfare and Institutions Code section 300,
subdivisions (a) and (b)(1).1 The children were placed with the parents on family
maintenance under strict supervision and were ordered not to be alone with the children
at any time. The parents appeal the jurisdictional order, arguing the juvenile court’s
findings pursuant to section 300, subdivisions (a) and (b)(1) were not supported by
sufficient evidence. We agree in part. For the reasons set forth in this opinion, we
reverse the jurisdictional order in part as to section 300, subdivision (a). In all other
respects, we affirm the juvenile court.
FACTUAL AND PROCEDURAL BACKGROUND
On March 9, 2019,2 the parents brought Hudson to the hospital after noticing a
soft area on the right side of his head. Hudson appeared “playful” and in “no distress”
when he arrived at the hospital. X-rays and a CT scan were administered, and Hudson
was diagnosed with a right parietal depressed skull fracture and a left parietal linear skull
fracture. Based on the injuries, child abuse was suspected and a referral was made to the
Stanislaus County Community Services Agency (agency). No visible injuries were noted
except by one doctor, who noticed a fading bruise on Hudson’s back.
The parents reported to law enforcement and an agency social worker that they
believed two possible incidents may have caused the fractures. The first occurred when

1 All further undesignated statutory references are to the Welfare and Institutions
Code.
2 All further references to dates are to dates in 2019.

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Tanner was playing on the parents’ bed while Hudson played on the floor. Tanner fell
off the bed, which is approximately two to three feet high, and landed on Hudson.3 The
second occurred the previous day, on March 8, when Hudson was holding onto an end
table, lost his balance, and fell backwards hitting his head on the tile. He cried for a few
minutes and resumed play as normal.
Law enforcement and the social worker visited Tanner at the family’s home where
he was being watched by relatives and he appeared to be clean and healthy with no
visible bruises. The social worker had no safety concerns about the home.
Hudson and Tanner were cared for by a licensed daycare provider Monday
through Friday from 8:00 a.m. to 4:00 p.m. The daycare provider reported that on
March 5, Hudson was pushing a walking assist toy and fell backwards onto the carpet.
A doctor at the hospital requested a consultation with child abuse specialist
Catherine Albin, M.D. Albin reported concerns of nonaccidental trauma and opined it
was unlikely the incidents reported would have caused the fractures.
The agency deemed the allegations of physical abuse against both parents
substantiated. Both children were taken into protective custody.
The agency filed a petition on behalf of Tanner and Hudson, alleging Hudson
came within the jurisdiction of the juvenile court under section 300, subdivisions (a)
[serious physical harm], (b)(1) [failure to protect], and (e) [severe physical abuse upon a
child under five years of age] and that Tanner came within the jurisdiction of the juvenile
court under section 300, subdivisions (b)(1) and (j) [abuse of sibling].4 Specifically,

3 Mother reported to law enforcement and both parents testified this incident took
place on the morning of March 9. Father, however, reported to the social worker this
incident occurred on March 7 at around 8:00 p.m. and reported to the police the incident
took place on March 8.
4 The agency alleged the same supporting facts under each subdivision of
section 300 [we have amended or omitted facts that were later amended or stricken by the
juvenile court]:

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under section 300, subdivision (b)(1), it was alleged the children had suffered, or there
was a substantial risk the children would suffer, serious physical harm or illness as a
result of (1) the failure or inability of his or her parent to supervise or protect the children
adequately and (2) the willful or negligent failure of the children’s parent to supervise or
protect the children adequately from the conduct of the custodian with whom the children
had been left.
The parents were teachers, with no previous child welfare or criminal history.
Despite Albin’s diagnosis of nonaccidental trauma, the parents maintained that no one
caused the injuries.

1. “On March 9, 2019, the Stanislaus Community Services Agency received a
referral stating that 9-month old, Hudson, has skull fractures and does not walk.
Mandated Reporting Party reported concern of child abuse due to fractures. Minor has a
right side depressed skull fracture and per doctor this type of fracture is caused by force.
Minor has a left linear skull fracture. Both fractures are located on the parietal side.
Minor has a right side hematoma. No other marks or bruises were observed. Minor is
being admitted to the hospital.”
2. “On March 11, 2019, the minor, Hudson … was found to have bilateral skull
fractures caused by nonaccidental trauma. Hudson has a mildly depressed right parietal
skull fracture, nondisplaced hairline fracture at the left parietal skull, and a thin right
parietal scalp hematoma. There was an area of bogginess to the right occipital scalp. He
was reported by one of the doctors to have had a fading light green bruise.”
3. “The parents … provided multiple explanation for Hudson’s injuries; however,
none of the explanations can explain the bilateral skull fractures. The presence of a
depressed skull fracture is suggestive of greater force than described in the parents’
explanations. Further, the parents’ accounts of the injuries do not explain the
contralateral symmetric fracture to the left side of the skull.”
4. “Child Abuse Expert, Catherine Albin, reported that the presence of Hudson’s
bilateral fractures are distinctly associated with nonaccidental trauma and that Hudson’s
injuries are consistent with a right handed blow to the left side of his head and
deceleration impact to the right side of his head. Dr. Albin reports that the diagnosis is
nonaccidental trauma.”

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 The children were ordered detained from the parents and a contested jurisdictional
and dispositional hearing was set. The children were placed with paternal relatives and
supervised visitation was ordered.
At the jurisdictional hearing, Albin testified that Hudson’s fractures were acute, or
new, meaning they had not shown signs of healing and likely occurred within a few days
or a week of his going to the hospital. Albin said the fractures were consistent with a
nonaccidental injury, especially in the sense there was no mechanism of injury reported
that adequately explained the injury. The depressed nature of the fractures indicated an
impact by a blunt object, which could be anything from a baseball bat, a toy, or the corner
of a piece of furniture.
Albin stated none of the incidents reported explained the depressed nature of the
fractures. She further explained the falls reported by the daycare providers and the
parents that Hudson stood up, lost his balance, and fell backwards did not explain the
injuries because the fractures were parietal, on the side, and not occipital, or in the back
of the head. Nor would they have made the amount of force needed to cause the
fractures. Albin testified the incident where Tanner fell on top of Hudson would not
explain the fractures because there would not have been enough velocity to cause the
fractures.
Albin testified that commonly, after children receive fractures such as these, they
are more difficult to console than normal. Several hours after receiving the fractures,
however, it is possible that Hudson would have appeared normal, and it is possible a
parent could overlook symptoms or not be aware of them if they had occurred outside the
home. Albin said Hudson’s fractures were not ones associated with neurologic injury or
long-term damage; she said Hudson’s fractures healed and that she understood he was
doing “extremely well.” She explained, however, that without knowing how the fractures
occurred, it cannot be assured Hudson will be safe from reoccurrence. While Albin
opined it could be possible there was an accidental mechanism for the fractures, in the

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absence of a plausible explanation, it is more likely than not related to nonaccidental
trauma.
William McCullough, a Board Certified Pediatric Radiologist, testified Hudson
suffered a depressed fracture in the right parietal bone and one nondepressed in the left
parietal bone. He testified there was no evidence of healing in either fracture at the time
the scans were taken. He explained that a depressed fracture suggests it was caused by a
sharp or angular object like a piece of furniture or sharp corner on a stair rather than blunt
force. He testified he had rarely seen a bilateral parietal fracture in a child of Hudson’s
age, and when he had seen it in the past, it was caused by abuse.
James Crawford-Jakubiak, a Board Certified General and Child Abuse
Pediatrician, testified on behalf of mother. He testified skull fractures in children are not
common. The fractures sustained by Hudson could have been an accident, but it was not
likely the fractures were caused by Hudson falling backward onto the tile as described.
Crawford-Jakubiak said he did not think “the trivial stuff [the parents are] describing hurt
their baby. They may believe maybe it did. I don’t.” Crawford-Jakubiak did not have
enough information to render an opinion on the incident of Tanner falling onto Hudson.
Crawford-Jakubiak testified he could not determine whether the injuries were accidental
or abusive, and noted, “I could tell you something happened. Somebody knows
something.” Crawford-Jakubiak explained the injury sustained by Hudson would have
been the “scariest and most painful thing he experienced his whole life and he would
have responded accordingly.” One witnessing the injury would have known he was hurt.
Father testified he did not harm Hudson and did not believe anyone else who took
care of Hudson harmed him. He “absolutely” believed Hudson sustained the fractures
accidentally. He testified he was “absolutely not” convinced by Albin’s testimony, but
did not have medical training on which to base his opinion. When asked whether it
concerned him that there’s no clear explanation as to how the fractures happened, father
responded, “Does it concern me? Well, I think our explanations are what happened.”

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Father offered an additional third explanation during his testimony: that on March 1,
when Hudson’s maternal grandmother was watching him, he fell backwards onto tile.
Father said grandmother reported he cried “for a little bit” but “seemed ok.”
Mother testified that Hudson was injured “by accident. 100 percent.” Mother
testified she believed Hudson sustained the injuries by the two reports of his falling
backward onto tile and the report of Tanner falling on Hudson. Mother explained with
regard to the falling incident, she was in the en suite bathroom of her bedroom getting
ready while the boys were in the bedroom. She heard crying and went to check on the
children, and Tanner told her he had fallen on Hudson. Hudson was easily consoled after
Tanner fell on him. Mother testified she did not harm Hudson and did not believe anyone
else who cared for him harmed him.
Following the testimony, both the agency and counsel for minors requested the
court find the allegations in the petition true.
The juvenile court struck the section 300, subdivision (e) allegation because it
found there was insufficient evidence to show the parents “knew or reasonably should
have known” that Hudson was being physically abused based on the medical testimony
that his injuries would not have been obvious.
The court expressed worry that the parents said no one could have intentionally
hurt Hudson. The court stated there was “no logical explanation for how these injuries
were sustained” and agreed with Albin’s opinion that “it’s more likely than not that the
injury was nonaccidental because of the totality of the circumstances.” The court
explained:

“I am not by any means saying I believe a hundred percent that the parents
caused this injury, but what I am saying is I believe this injury is
nonaccidental and that it happened while the child was in the parents’ care
and control, and if it wasn’t the parents that created this injury, than it was
by somebody else. That’s what I find concerning because this is a very
small child. These kind of injuries don’t normally occur to very small
children. That’s my concern.”

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 The court amended the section 300, subdivision (a) allegation to apply to both
children and sustained it as to both children. The court sustained the section 300,
subdivision (a) allegation “based on the fact that there was serious physical harm that was
inflicted non-accidentally by someone.” The court continued: “Again, I don’t know
who. Again, I’m not saying it was the parents. I’m not saying it wasn’t the parents, but
the Court is going to find it is nonaccidental injury.”
The court sustained the section 300, subdivision (b) allegations. The court struck
the section 300, subdivision (j) allegations because it found that both children were
described by section 300, subdivisions (a) and (b).
As to disposition, there was a stipulated resolution among the court and the
parties. The court found no substantial risk of detriment if the children were to be
returned, and the court ordered the children returned to the care of the parents with family
maintenance services under the court’s supervision. The court ordered the parents
needed to live with the children either in their home with an approved supervisor present
or the parents would move into the home where the children were currently living with
the care providers. The court explained the supervision was to be “strict” meaning the
parents were not to be left alone with the children at any time.
The parents jointly appealed.
DISCUSSION
I. Section 300, Subdivision (b)
We begin with the parents’ contention the evidence was insufficient to support
jurisdiction under section 300, subdivision (b)(1).
A child comes within the court’s jurisdiction under section 300, subdivision (b)(1)
when, as relevant here, he or she “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 his or
her parent or guardian to adequately supervise or protect the child.”

8.
 We review the juvenile court’s jurisdictional findings using the substantial
evidence standard of review, where we determine whether evidence of reasonable,
credible, and solid value supports the juvenile court’s findings. We do not reweigh the
evidence, nor do we consider matters of credibility. (In re Sheila B. (1993)
19 Cal.App.4th 187, 199‒200.) “ ‘[W]e must uphold the [trial] court’s [jurisdictional]
findings unless, after reviewing the entire record and resolving all conflicts in favor of the
respondent and drawing all reasonable inferences in support of the judgment, we
determine there is no substantial evidence to support the findings.’ ” (In re J.N. (2010)
181 Cal.App.4th 1010, 1022.)
The parents argue the evidence was insufficient to support a conclusion that the
children were at substantial risk of suffering serious physical harm in the future or that
the parents abused or neglected Hudson, and, accordingly, there was not a basis for the
juvenile court to make findings under section 300, subdivision (b). We disagree.
In re A.S. (2011) 202 Cal.App.4th 237, disapproved on other grounds in
Conservatorship of O.B. (2020) 9 Cal.5th 989, 1010, fn. 7 (A.S.), is on point. In A.S., the
parents left the child in the care of relatives. (Id. at p. 240.) One of the relatives took the
child to the hospital because she became limp, pale, and nonresponsive; she was
diagnosed with a subdural hematoma and bilateral retinal hemorrhages. (Ibid.) The
parents told the attending physician that the child was healthy when they left her with the
relatives and were unaware of any traumatic event. (Ibid.) The parents explained one of
the relatives had told them he had walked away from the child and the child began to
choke; the relative returned, finding the child limp. (Ibid.) The child welfare agency
took the child into protective custody and filed a petition on the child’s behalf under
section 300, subdivision (b). (A.S., at p. 240.) The medical expert advised the injury was
consistent with being shaken or slammed to a soft surface and opined the injury was
nonaccidental because the caretakers had no explanation. (Id. at p. 241.) The injury
could have been as old as one week. (Ibid.) The court sustained the petition and

9.
removed the child from the parents’ custody. (Id. at p. 242.) The parents appealed
asserting substantial evidence did not support the court’s jurisdictional finding. (Id. at
pp. 243‒244.) Similar to the present case, the parents’ argument was the agency failed to
prove they neglected or inadequately supervised the child or had reason to suspect the
child may be in danger at the relatives’ home. (Id. at p. 244.)
The appellate court in A.S. rejected the parents’ argument and affirmed the
juvenile court. The appellate court first explained the evidence “amply” supported a
finding that the injuries were inflicted intentionally. (A.S., supra, 202 Cal.App.4th at
p. 245.) The court went on: “At the time of the jurisdiction hearing, the parents could
not be ruled out as perpetrators. In [the medical expert]’s opinion, [the child]’s injuries
could have been inflicted recently or up to a week before [the child] was taken to the
hospital, a period during which the parents [and other relatives] all cared for her. The
evidence supports a reasonable inference that one of the caretakers injured her, and
concomitantly, a reasonable inference that [the child] was at substantial risk of serious
physical harm, even life-threatening harm, in the parents’ home as a result of their failure
or inability to adequately protect her.” (Id. at p. 246.)
The A.S. court rejected arguments similar to those the parents make in the present
case, and the facts are substantively similar. Here, like in A.S., the juvenile court’s
finding that Hudson had suffered a nonaccidental injury was supported by substantial
evidence. Albin opined it was more likely than not the injury was inflicted
nonaccidentally. Crawford-Jakubiak’s testimony did not directly rebut or contradict
Albin’s opinion. Though he did not go as far as Albin to conclude it was more likely
than not the injuries were inflicted nonaccidentally, he also said it was possible the
injuries were abusive in nature. Though he said it was possible the injuries were
accidental, he did not provide a reasonable medical explanation for Hudson’s injuries or
opine that one of the reported incidents caused the injuries. To the contrary, he opined
most of explanations given by the parents likely did not cause the injuries. The juvenile

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court’s finding that the injuries were inflicted nonaccidentally, like in A.S., is amply
supported by the record.
Like in A.S., the court could not rule out the parents as the perpetrators. This
conclusion was also supported by substantial evidence. It was opined the parents were
among the caretakers in the window of time when the injury occurred. The risk was
exacerbated in the present case by the parents’ testimony demonstrating they were
completely resistant to the possibility that someone hurt their child. Their belief the
incidents they described injured Hudson was contradicted by both experts’ testimony. In
the worst-case scenario, the parents knew what happened to Hudson and were willfully
concealing the mechanism of injury. Even in the case the parents did not personally
inflict the injury, however, their unwillingness or inability to try to understand what
happened or consider the possibility that Hudson was being abused, in light of troubling
medical opinions from both experts, added to the substantial risk to both children that
existed at the time of the jurisdictional hearing. This, like in A.S., could lead to the
reasonable inference that the children were at risk of harm because of the parents’ failure
or inability to adequately protect them. This risk existed at the time of the hearing
because it was not known how this nonaccidental injury occurred, or how future injury
could be prevented.
The parents’ attempt to distinguish A.S. is not persuasive. The parents first
contend A.S. is distinguishable because, in A.S., there was no explanation of the injuries,
and in the present case, the parents gave several explanations. We do not find this a
significant distinguishing fact because though the parents gave explanations for the
injuries, none of the explanations could have caused the fractures, by Albin’s as well as
their own expert’s opinion. Based on the record, because the parents’ proffered
mechanisms of injury were not sufficient to explain the injury, they were in effect the
same as no explanation at all.

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 The parents also claim A.S. is distinguishable because the experts in the present
case did not conclude the fractures could not have been sustained in the normal care of a
child or through accidental means. The parents then highlight parts of the experts’
testimony which could be used to support the conclusion the injuries were inflicted
accidentally. Though none of the experts could conclusively testify the injuries were
caused by nonaccidental means, as we have explained, the medical testimony supported
the juvenile court’s express finding that it was more likely than not the injuries were
nonaccidental. The parents here are simply asking us to reweigh the evidence which is
not our task on review.
The parents contend the present case is like In re Roberto C. (2012)
209 Cal.App.4th 1241 (Roberto C.). In Roberto C., the appellate court found the
juvenile court did not abuse its discretion by dismissing a section 300 petition where it
found the evidence did not tie the parents to a suspected nonaccidental injury to an infant
nor that they knew or should have known someone was injuring their child. (Roberto C.,
at p. 1254.)
We do not find Roberto C. persuasive in light of the deferential standard of review
we must apply. The court in Roberto C. encountered the same issue when faced with its
analysis of A.S. The court explained:

“In [A.S.], the juvenile court sustained a jurisdictional finding after a
full hearing where there was also no explanation provided as to the cause of
the injury; the parents provided no medical evidence to dispute the opinion
that the injury was nonaccidental. For purposes of the hearing, the court
accepted that an accident was the same as neglect, and sustained the
petition under section 300, subdivision (b). [Citation.] On appeal, the court
found substantial evidence to support the trial court’s finding, accepting
‘ “the evidence most favorable to the order as true and [discarding] the
unfavorable evidence as not having sufficient verity to be accepted by the
trier of fact.” ’ [Citation.] Because the evidence supported the conclusion
by the juvenile court that the parents could not be ruled out as perpetrators,
a reasonable inference could be drawn to support jurisdiction under
subdivision (b), and the appellate court declined to ‘tamper’ with the ruling

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 of the juvenile court. [Citation.] Applying the same standard of deference
here, the conclusion of the juvenile court that there was no evidence that the
parents knew or should have known of the abuse is supported by substantial
evidence. We find no abuse of discretion.” (Roberto C., supra, 209
Cal.App.4th at p. 1256, fn. omitted.)
Like the court in Roberto C., we must give deference to the lower court’s decision.
We note we must uphold an order if it is supported by substantial evidence, even when
substantial evidence to the contrary also exists. (In re Dakota H. (2005) 132 Cal.App.4th
212, 228.) Here, because we find the juvenile court’s ruling under section 300,
subdivision (b) was supported by substantial evidence, we must affirm the court’s
assumption of jurisdiction. While the juvenile court in Roberto C. found no evidence
linking the injuries to the parents, the juvenile court in the present case expressly found
the parents could not be ruled out as perpetrators. This finding was supported by
substantial evidence as the injuries to Hudson occurred during a window of time when
the parents were among his caregivers. Further, as explained, there was additional
evidence demonstrating risk of harm as evidenced by the parents’ notable lack of concern
at the medical evidence that the injuries to Hudson were inflicted nonaccidentally.
The court’s finding that the children were described by section 300,
subdivision (b)(1) was supported by substantial evidence.
II. Discretion to Review Multiple Grounds for Jurisdiction
“When a dependency petition alleges multiple grounds for its assertion that a
minor comes within the dependency court’s jurisdiction, a reviewing court can affirm the
juvenile court’s finding of jurisdiction over the minor if any one of the statutory bases for
jurisdiction that are enumerated in the petition is supported by substantial evidence. In
such a case, the reviewing court need not consider whether any or all of the other alleged
statutory grounds for jurisdiction are supported by the evidence.” (In re Alexis E. (2009)
171 Cal.App.4th 438, 451; see In re Ashley B. (2011) 202 Cal.App.4th 968, 979.)

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 However, we generally will exercise our discretion and reach the merits of a
challenge to any 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].” (In re Drake M. (2012) 211 Cal.App.4th 754, 762–763.)
Here, the parents contend that if we find substantial evidence supported the
juvenile court’s findings under section 300, subdivision (b), we should nonetheless
exercise discretion to review the findings under section 300, subdivision (a) because of
the effects reversal may have on their inclusion in California’s Child Abuse Central Index
(CACI) (Pen. Code, § 11170, subd. (a)), pursuant to the Child Abuse and Neglect
Reporting Act (CANRA) (Pen. Code, § 11164 et seq.). When an agency determines that
a case of known or suspected child abuse or “severe neglect”5 is determined to be
substantiated, the agency shall forward a report to the Department of Justice for inclusion
in the CACI. (Pen. Code, § 11169, subd. (a).)
The parents argue if we were to reverse the section 300, subdivision (a) finding,
they would be able to request a hearing to challenge inclusion they would otherwise be
precluded from obtaining even if we affirmed the section 300, subdivision (b) finding.
To support their assertion, they cite Penal Code section 11169, subdivision (e), which
reads, in part: “A hearing requested [by a person who is listed to challenge his or her

5 Under CANRA, “severe neglect” is defined as “negligent failure of a person
having the care or custody of a child to protect the child from severe malnutrition or
medically diagnosed nonorganic failure to thrive,” “where any person having the care or
custody of a child willfully causes or permits the person or health of the child to be
placed in a situation such that his or her person or health is endangered … including the
intentional failure to provide adequate food, clothing, shelter or medical care.” (Pen.
Code, § 11165.2, subd. (a).)

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CACI listing] shall be denied when a court of competent jurisdiction has determined that
suspected child abuse or [severe] neglect has occurred.”
We do not take a position here of whether the parents are correct in their read of
this provision. We note the factual allegations supporting both the section 300,
subdivision (a) and (b) provisions are identical. In the abundance of caution, however, in
the event our reversal of section 300, subdivision (a) may have a practical effect on
whether the parents are permitted to challenge their inclusion in the CACI, we will
exercise our discretion to review the juvenile court’s findings under section 300,
subdivision (a).
III. Section 300, Subdivision (a)
A child comes within the jurisdiction of the juvenile court under section 300,
subdivision (a) 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), italics added.)
Here, the juvenile court expressly stated in its ruling it was “going to sustain the
(a) allegation based on the fact that there was serious physical harm that was inflicted
non-accidentally by someone. Again, I don’t know who. Again, I’m not saying it was
the parents. I’m not saying it wasn’t the parents, but the Court is going to find it is a
nonaccidental injury.” (Italics added.) The court also struck the section 300,
subdivision (e) allegation, for the stated reason the court found the evidence did not
support the parents knew or reasonably should have known the child was being abused.
The parents contend the juvenile court’s jurisdictional findings under section 300,
subdivision (a) must be reversed because they do not logically follow from the juvenile
court’s other factual findings. We agree.
We find the issue presented here is a mixed question of law and fact.
Accordingly, we apply the substantial evidence rule to the juvenile court’s factual
findings and determine independently whether the court’s findings can support

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jurisdiction under section 300, subdivision (a). (See Ghirardo v. Antonioli (1994)
8 Cal.4th 791, 800‒801 (Ghirardo).)
We first look to the factual findings made by the juvenile court. (See Ghirardo,
supra, 8 Cal.4th at p. 800.) Here, notably, the court avoided making a finding that the
parents inflicted Hudson’s injury when it repeated the statutory language verbatim until it
replaced “by the child’s parent or guardian” with “by someone.” In addition, we presume
had the court been convinced by a preponderance of the evidence6 that a parent was the
perpetrator, it would have sustained the section 300, subdivision (e) allegation or stated a
different reason for striking it other than the court did not find the parents’ “knew or
should have known” of any abuse. The court’s comments make clear to us the court did
not find by a preponderance of the evidence that a parent inflicted the injury. We are not
permitted to substitute our own factual findings for that of the juvenile court’s
determination that the evidence did not support a parent inflicted the injury by a
preponderance of the evidence. Here, the evidence showed the parents were not the sole
caretakers of Hudson and Tanner; the children were watched by family members and
spent time out of the home at daycare. For these reasons, we find the court’s comments
demonstrating it was not convinced the parents were the perpetrators was not
unreasonable. Accordingly, we defer to it. We express no opinion as to whether
substantial evidence existed on the record to support whether the parents inflicted the
abuse.
We next must determine whether the court’s finding that the injury was inflicted
by “someone,” but not necessarily by a parent, can justify jurisdiction under section 300,
subdivision (a). (Ghirardo, supra, 8 Cal.4th at p. 800.) The parties disagree about
whether a parent must be established as the perpetrator. When interpreting statutes,

6 “ ‘The petitioner in a dependency proceeding must prove by a preponderance of
the evidence that the child who is the subject of a petition comes under the juvenile
court’s jurisdiction.’ ” (In re Brison C. (2000) 81 Cal.App.4th 1373, 1379.)

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“ ‘[w]e consider first the words of a statute, as the most reliable indicator of legislative
intent.’ ” (John v. Superior Court (2016) 63 Cal.4th 91, 95–96.) We find it is clear from
the plain language of the statute the Legislature intended the perpetrator to be a parent or
guardian. (See Roberto C., supra, 209 Cal.App.4th at p. 1255.) Further, “[w]hen
language is included in one portion of a statute, its omission from a different portion
addressing a similar subject suggests that the omission was purposeful.” (In re Ethan C.
(2012) 54 Cal.4th 610, 638.) A child comes within the court’s jurisdiction under
section 300, subdivision (e) when a specified harm is inflicted by a parent or guardian or
another person if the parent knew or reasonably knew of the harm. This contrasts with
section 300, subdivision (a), which provides no such provision. If section 300,
subdivision (a) was meant to encompass harm caused by someone other than a parent, the
Legislature would have said so. We conclude based on the statute, while the specific
perpetrator need not be identified, there must be a finding the perpetrator is a parent or
guardian under section 300, subdivision (a).
Respondent insists that jurisdiction under section 300, subdivision (a) does not
require a finding that the parents inflicted the injury citing In re Christina T. (1986)
184 Cal.App.3d 630, 640 (Christina T.). We do not find respondent’s comparison to
Christina T. persuasive. In Christina T., a dependency petition was brought under a
previous version of section 300, namely, subdivisions (a) and (d). (Christina T., at
p. 639.) At that time, section 300, subdivision (a) provided dependency jurisdiction may
be taken over a child “[w]ho is in need of proper and effective parental care or control
and has no parent or guardian, or has no parent or guardian willing to exercise or capable
of exercising care or control, or has no parent or guardian actually exercising care or
control.” (Christina T., at p. 639.) The previous version of section 300, subdivision (d)
provided dependency jurisdiction may be taken over a child “[w]hose home is an unfit
place for him or her by reason of neglect, cruelty, depravity, or physical abuse of either of

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his or her parents, or of his or her guardian or other person in whose custody or care he or
she is.” (Christina T., at p. 639.)
In Christina T., the juvenile court found there was “no question” the child had
been sexually molested by someone. (Christina T., supra, 184 Cal.App.3d at p. 636.)
Because, however, the court concluded the evidence was insufficient to prove the identity
of the culprit, finding, based on the evidence, it could have been the father, the mother’s
boyfriend, both of them, or possibly some unidentified person, the court found the
allegations untrue and dismissed the petition. (Id. at pp. 637, 640.)
On appeal by the child welfare agency, this court found the juvenile court in
Christina T. had erred as a matter of law. (Christina T., supra, 184 Cal.App.3d at
p. 640.) This court found the juvenile court’s statement that the child had been molested
in her home, as a matter of law, also meant the court found the child “to be one who is in
need of proper and effective parental care or control and has no parent willing to exercise
or capable of exercising or actually exercising care or control (§ 300, subd. (a)), and the
minor’s home is an unfit place for her by reason of neglect, cruelty, depravity or physical
abuse of either of her parents. (§ 300, subd. (d).)” (Id. at p. 640.) This court found under
those subdivisions the court was not required to make a finding as to who specifically
was sexually abusing the child. (Ibid.)
Here, respondent contends the previous version of section 300, subdivision (d), as
applied in Christina T., is comparable to the current section 300, subdivision (a) because
it required “non-accidental abuse be inflicted on the minor by a parent.” We disagree.
The previous version of section 300, subdivision (d) stated in express terms jurisdiction
could be taken where a home was unfit due to a parent, guardian, or any other custodian’s
“neglect, cruelty, depravity, or physical abuse.” (Christina T., supra, 184 Cal.App.3d at
p. 639.) This relative “catchall” provision that includes not only physical abuse but
“neglect” contrasts with section 300, subdivision (a)’s specificity that the child has
suffered, or there is a substantial risk that the child will suffer, serious physical harm

18.
inflicted nonaccidentally upon the child by the child’s parent or guardian. (§ 300,
subd. (a).)
For the reasons we have stated, we conclude that in light of the court’s express
comments that lead us to no other conclusion other than it did not find by a
preponderance of the evidence a parent inflicted the injuries onto Hudson, we find as a
matter of law the jurisdictional findings under section 300, subdivision (a) must be
reversed.
DISPOSITION
The juvenile court’s jurisdictional order is reversed in part as to the jurisdictional
findings that pertain to section 300, subdivision (a), as to both children; specifically, that
the children had suffered, or there was a substantial risk the children would suffer, serious
physical harm inflicted nonaccidentally upon the children by the children’s parent or
guardian.
In all other respects, the juvenile court’s order is affirmed.

DE SANTOS, J.
WE CONCUR:

MEEHAN, Acting P.J.

SNAUFFER, J.

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