Filed 1/13/22 In re E.S. CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re E.S., a Person Coming Under B310318
the Juvenile Court Law.
______________________________ (Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. 20CCJP02604)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
K.D. et al.,
Defendants and Appellants.
APPEAL from findings and order of the Superior Court of
Los Angeles County, Emma Castro, Juvenile Court Referee.
Affirmed in part and dismissed in part.
Linda Rehm, under appointment by the Court of Appeal,
for Defendant and Appellant K.D.
John P. McCurley, under appointment by the Court of
Appeal, for Defendant and Appellant K.S.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Veronica Randazzo, Deputy
County Counsel, for Plaintiff and Respondent.
INTRODUCTION
Mother K.D. and Father K.S. appeal from the juvenile
court’s jurisdictional findings and removal order regarding their
minor child E.S. Mother and Father contend the evidence was
insufficient to support the jurisdictional findings. They further
contend there was insufficient evidence that removing E.S. from
his parents’ custody/care was necessary to protect him from a
substantial risk of harm. Father additionally contends reversal
is required because the juvenile court failed to provide a factual
basis for its findings and orders preventing meaningful appellate
review.
We conclude substantial evidence supports the juvenile
court’s jurisdictional findings and dismiss as moot the portion of
Mother’s and Father’s appeal of the order removing E.S. from
Mother’s and Father’s care.
FACTUAL AND PROCEDURAL BACKGROUND
A. Events Leading to Dependency Jurisdiction
On April 21, 2020, three-month-old E.S. came to the
attention of the Los Angeles County Department of Children and
Family Services (DCFS) when the child protection hotline
received a referral alleging general neglect. Per the referral, E.S.
moved with his family from Texas to California shortly after the
following incident. On April 6, 2020, Mother and Father took
E.S. to the doctor; Mother disclosed to the doctor that she checked
on E.S. at 5:30 a.m. and noticed he “was not using his left arm.”
The doctor discovered that E.S.’s left clavicle was broken and the
“injuries were from something significantly happening to the
child to cause such injury.”
2
In Los Angeles County, a children’s social worker (CSW)
made an unannounced visit to E.S.’s home to investigate the
allegation of general neglect. The paternal grandmother (PGM)
was present at the home. PGM told the CSW she “does not
believe that [M]other and/or [F]ather would do anything to hurt
[E.S.].” PGM described Mother and Father as “new and young
parents” who are “doing well” and learning “new parent[ing]
tips.” PGM explained that Mother and Father lived in Texas and
attended school together in Texas, but recently moved back to
California due to the COVID-19 pandemic.
The CSW next interviewed Father. Father said when he
and Mother woke up one morning and noticed E.S. was not using
his left arm like he normally does, they consoled him and then
took him to the doctor. X-ray results showed E.S. had a fractured
clavicle. They were given a bandage and told to wrap his arm in
it. E.S. also had vitamin D deficiency and was given vitamin D
drops. Father reported he uses marijuana and/or eats edibles a
few times a week when he is not caring for E.S. Father told the
CSW that he and Mother “would not do anything intentionally to
hurt” E.S.
The CSW then traveled to maternal grandmother’s (MGM)
home to interview Mother. The CSW observed E.S. smiling and
comfortable in the care of his family. Mother told the CSW she is
currently taking business classes online. Regarding E.S.’s injury,
Mother stated she is “not sure what happened.” She recalled
giving E.S. a bath the night preceding the incident. She then fed
him and played with him before swaddling him and putting him
to bed. “Everything was fine.” Then, at about 5:30 a.m., she
woke up to feed E.S. and realized E.S. cried in pain when she
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moved his arm. Mother said the doctor told her E.S.’s vitamin D
deficiency “could be the reason for the break.”
DCFS investigated the family’s welfare history in Texas
and discovered that when E.S.’s parents took him to the doctor’s
office, the treating doctor had “concerns about the injury because
there is a lot of force needed to sustain an injury of that nature.”
The investigating CSW from Texas informed DCFS they found a
marijuana grinder in the parent’s home, although both parents
denied substance use. The CSW from Texas told DCFS “the issue
is that there is no real explanation as to how the injury occurred.”
On April 27, 2020, the CSW spoke with Dr. Katherine
Canty, who reported “there are some concerns with the type of
injury that [E.S.] obtained.” Dr. Canty opined it is “unlikely” the
injury happened accidentally to three-month-old E.S. Per Dr.
Canty, there would have to be “direct force/contact or squeezing”
to that area to cause such an injury; low vitamin D levels did not
increase the risk of fracture to a child at this age. E.S. did not
show signs of osteopenia or weak bones. E.S. was observed as
having “elevated levels of ALT and AST in the liver that could
indicate some type of trauma to the child.”
On April 28, 2020, Father told the CSW he no longer
wanted to test for drugs. DCFS expressed concern whether
Father’s “marijuana use impedes on his ability to provide and
care for his child as he declined to submit to an on demand drug
test.” DCFS believed there was a “high risk” of physical abuse
and general neglect as E.S. sustained a left clavicle fracture
without a clear explanation as to what caused the injury.
4
On April 30, 2020, Mother was interviewed again. She
explained she recalled the following event. On April 4 or 5, 2020,
E.S. was crying while swaddled in his crib. When Mother picked
E.S. up, he “was slipping” out of her grip so she grabbed him to
prevent him from falling. She described grabbing E.S.’s
“shoulder area more tightly.”
On May 6, 2020, the juvenile court authorized removal of
E.S. from Mother’s and Father’s care, and placed him in DCFS’s
care.
B. Petition and Detention
On May 11, 2020, DCFS filed a petition on E.S.’s behalf
pursuant to Welfare and Institutions Code section 300,
subdivisions (a) and (b).1 The petition alleged: On April 6, 2020,
three-month-old E.S. was medically examined and found “to be
suffering a detrimental and endangering condition consisting of
an acute minimally displaced and angulated fracture of the
child’s left clavicle at the junction of the middle and lateral
thirds.” Mother and Father “gave no explanation” as to how E.S.
sustained the injury, which is “consistent with physical abuse.”
Such injury would not occur except as the result of “deliberate,
unreasonable and neglectful acts” by E.S.’s parents. Such
deliberate, unreasonable, and neglectful acts by E.S.’s parents
endangered his physical health, safety, and well-being, created a
detrimental home environment, and placed him at risk of serious
physical harm/danger.
At the detention hearing on May 14, 2020, the juvenile
court found K.S. to be E.S.’s father. The juvenile court found a
1 All statutory references are to the Welfare and Institutions
Code, unless otherwise stated.
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prima facie case for detaining E.S. The court found there are no
reasonable means by which the child’s physical and emotional
health would be protected without removing him from the
custody of his parents, and ordered his removal. The court
approved releasing E.S. to the care of maternal great-
grandmother (MGGM). The court ordered monitored visits for
Mother and Father and gave DCFS discretion to allow overnight
visits.
C. Developments during Dependency Proceedings
On May 22, 2020, Father reported Mother had told him
when E.S. “was getting out of the tub, he was fighting [Mother]
and he kind of slipped out of her hands.” Father said both he and
Mother “did not think anything of it” and swaddled E.S. and put
him to sleep.
On June 30, 2020, MGGM reported Mother had informed
her that E.S. “got hurt” because she “almost dropped the baby or
something.” MGGM expressed concern because the parents “are
not ready to have a child” as she has observed the parents not “do
what parents should do.”
On July 8, 2020, the CSW received a phone call from
MGGM, who reported Mother was crying when she arrived for
her visit with E.S. Mother left shortly after Father arrived, and
returned once Father left. The CSW received a phone call from
Mother asking for the visits to be separate. The CSW decided
Mother’s and Father’s visits should be separate effective
immediately.
Mother provided DCFS with a letter indicating she
completed 18 sessions of a parenting class. Father provided a
certificate of completion for 12 sessions of Project Fatherhood.
Per MGGM, Mother’s and Father’s visits with E.S. were
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“consistent.” Mother interacted with E.S. “by feeding him, giving
him his daily bath, and playing with him.” Father played with
E.S., bathed and fed him. E.S. was reported to be “happy and
very calm” during visits.
On September 24, 2020, Mother reported to the CSW an
additional incident from April 5, 2020 and clarified the April 4 or
5, 2020 incident previously reported, as follows: Between 2:00
a.m. and 3:00 a.m. on April 4 or 5, 2020, Mother woke up because
E.S. “was crying a little more than usual” and went to check on
him. She tried to breastfeed him and gave him a bottle, but he
continued to cry. She gave him a pacifier and walked around
carrying him until he fell asleep. While placing E.S. in his crib,
he “started slipping from her grip” so she grabbed E.S. between
his shoulder and elbow and “put a little more grip on him to
prevent him from falling.” Mother reported E.S. did not cry but
was “a little startled.” She washed E.S. and he went to sleep 30
minutes later. Mother additionally reported that while giving
E.S. a bath between 7:00 and 8:00 p.m. on April 5, 2020, “he
started slipping out of her grip” so she “grabbed him from under
his armpits.” She stated that E.S. “did not cry” and “went to
sleep normally” thereafter.
DCFS provided the court with a letter from Dr. Canty, a
board-certified pediatrician and a fellow in child abuse pediatrics.
Dr. Canty opined that a clavicle fracture in a non-mobile infant
like E.S. is “highly suspicious for child physical abuse.” Dr.
Canty believed it unlikely that Mother’s tight squeezing of E.S.’s
shoulder on April 4 or 5, 2020 caused the fracture as Mother said
he neither cried nor had any alteration in his behavior following
that event. It was her opinion that E.S.’s “clavicle fracture is
most concerning for inflicted injury and child physical abuse.”
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Dr. Canty also “expressed concerns regarding the elevations in
the AST and ALT, which suggest liver injury and can be seen
with blunt abdominal trauma.”
D. Adjudication
The adjudication hearing took place on the following dates:
November 20, December 1, 2, 8, 14, and 15, 2020. The following
relevant testimony was elicited:
Dr. Thomas Grogan
Dr. Thomas Grogan was deemed qualified to testify as an
expert in pediatric orthopedics. Dr. Grogan opined that in a child
of this age, an injury of this kind typically occurs from a
“compression” of the shoulder towards the midline of the body
rather than a blunt force. He believed if Mother’s “almost losing
grip on” E.S. caused her to tighten her grip on him, that may
cause a compression force “consistent with the injury.”
“[S]queezing of the child would produce a compressive force
across the clavicle to cause this fracture to occur.” Additionally,
consistent with the increased ALT and AST levels in E.S., Dr.
Grogan testified “it’s very likely that squeezing the child enough
to cause 40 or so newtons of force to the clavicle is also going to
release liver enzymes.” Dr. Grogan reviewed Dr. Canty’s letter
and “agree[d] with half” of it—he disagreed that the clavicle
fracture could have been caused by “a direct blow” and instead
agreed the fracture could have happened by “squeezing” the area.
He “expected the child to cry” when the fracture happened
because “[f]ractures hurt. Children cry.” “It would be unusual
for a child not to cry with a fracture. I don’t know if I’ve ever
seen a child not cry with a fracture.”
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Dr. Katherine Canty
Dr. Katherine Canty was deemed qualified to testify as an
expert in child abuse pediatrics and expert diagnosis of suspected
child abuse. She testified she examined E.S. on April 6, 2020 and
felt “an area on the left clavicle that was slightly protuberant . . .
[and] bulging out.” The skeletal survey showed “a healing
fracture of his left clavicle.” Dr. Canty opined that in “nonmobile
children” like E.S., “the primary mechanism by which a clavicle
fracture occurs is either through forces applied to the shoulder,
such as forceful squeezing or compression at the shoulder, or
from local impact to the clavicle such as when a child is either
thrown or slammed against a solid object.” She believed the
fracture happened within a seven-day period before her
examination of E.S. on April 6, 2020. When she interviewed
Mother about the cause of the fracture, Mother could not explain
how it happened. The first Dr. Canty heard of Mother’s assertion
that she tightly squeezed E.S. between 2:00 a.m. and 3:00 a.m. on
April 4 or 5, 2020 was upon reading the jurisdiction/disposition
report submitted by DCFS. However, Dr. Canty did not believe
Mother’s explanation was consistent with a clavicle fracture
because E.S. did not have any reaction to the injury. “I would
expect an infant with a fracture to exhibit pain symptoms . . .
[such as] affective crying and fussiness.” “[I]t would be obvious to
a caregiver both at the time that the injury happened and then,
with normal observation, a pattern of discomfort . . . [and] some
kind of awareness that the child was in pain or had some kind of
injury.” She concluded: “[I]n the absence of characteristics that I
feel would be typical of an infant’s reaction to pain, without those
characteristics, I do not feel that the history provided is
consistent and can explain [E.S.’s] fracture; and, therefore, in the
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absence of any alternative explanation, his injury is most
consistent with inflicted trauma or child abuse.” While Dr. Canty
believed Mother’s explanation that E.S. possibly sustained the
fracture when she grabbed him as he slipped from her grip is
“plausible,” she found it “concerning that the mother took so long
to provide that history.” Finally, Dr. Canty explained that a low
vitamin D level “has not been associated with increase in
fractures.”
Mother
Mother testified at length. She recalled giving E.S. a bath
on the night of April 5. At some point he slipped from her grip,
and she “tried to grab him from under his armpits, but nothing
happened.” E.S. “fell back into the tub.” She took him into the
bathroom, put lotion and clothes on him, swaddled him, and put
him to sleep. Mother heard E.S. crying at 2:00 a.m., went to
check on him, and soothed him until he slept. She heard E.S. cry
again and be fussier than normal at 5:00 a.m. Around 10:00 a.m.
on April 6, 2020, Mother noticed E.S.’s arm wasn’t moving when
she took him out of his swaddle. They immediately called the
doctor and made an appointment for 2:00 p.m. that same date.
Mother could not explain why she told the CSW that this
incident happened on either April 4 or 5, 2020, instead of the
actual date—April 6, 2020. When asked why she did not report
E.S. slipping out of her grip to the treating doctor on April 6,
2020, Mother said she “was in shock” and “couldn’t piece together
like how it could have happened, at that time.” When asked why
she did not report the incident to the CSW in Texas, she testified
that none of the social workers asked her what happened to E.S.
10
Father
Father testified that Mother called the doctor around 10:00
to 11:00 a.m. on April 6, 2020 when they realized E.S. was not
moving his arm normally. Father never asked Mother if
something happened the night before because nothing seemed
out of ordinary and there were no issues. He recalled Mother
gave E.S. a bath on the evening of April 5, 2020, and that he
swaddled him before E.S. fell asleep. He never questioned
Mother about how E.S. was injured. Father had not heard E.S.
wake up during the night.
Dr. Janet Arnold-Clark
Dr. Janet Arnold-Clark, a board-certified general
pediatrician and board-certified child abuse pediatrician, was
found by the court to be an expert in the area of general and child
abuse pediatrics as well as an expert in the diagnosis and
treatment of suspected child abuse. She testified the type of force
required to cause this type of injury is “abusive force [or] at least
more force than would be seen in normal handling.” She
explained how clavicle fractures are one of the most common
accidental injuries in children who are able to move on their own;
but for a three-month-old child who is not mobile, the two causes
for such an injury are “a direct blow to a shoulder” or “squeezing.”
Dr. Arnold-Clark opined that “an injury with enough force
to cause a fracture would be a very significant event. And after
that significant event, the child would immediately cry, would
immediately show distress; and from that point on would be in
pain whenever the arm is manipulated or the area was touched.”
She said that “every time you change a onesie in a three-month-
old if they have a fracture, the baby will cry and be fussy. And
that will let the family know that they need to seek care.” She
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explained the history that E.S.’s parents provided initially, i.e.,
that the child acted normally afterwards and did not show any
signs of pain until the morning of April 6 was not consistent; “it
would have been such a memorable event . . . [i]t would’ve been
something you would’ve been able to provide that history at the
time to the doctors.”
Dr. Arnold-Clark concluded: “My medical opinion is that it
is most likely that an event happening a few days before where
the child slipped and was grabbed is not a sufficient mechanism
to explain this fracture. [¶] . . . [A]nytime you have an
unexplained fracture in a three-month-old, the most likely thing
is that it’s an abusive fracture.” She was concerned that the
elevated liver enzymes in E.S. were caused by “trauma, since the
child also had a fracture, that at the time, at least, did not have a
good history to explain.”
Dr. Marvin Pietruszka
Dr. Marvin Pietruszka, board-certified as a forensic
toxicologist with extensive training in pediatric pathology, was
found by the court to be an expert in the areas of pathology and
forensic toxicology. He believed “the reduced level of vitamin D
played an important role in reducing the strength of the clavicle
and the thickness of the clavicle, and made it easier for the
clavicle to fracture when the child was grabbed by the mother.”
He opined that the history provided by Mother is a “plausible
explanation” of E.S.’s injury. He also explained how it “is not
unusual to find elevated liver function” in newborns in response
to immunizations/vaccines that are administered to newborns,
like E.S.
12
The juvenile court continued the adjudication hearing for
its decision and ordered DCFS to provide an update on the
parents’ progress. The juvenile court ordered DCFS to provide
Father with referrals for individual counseling and on-demand
drug testing. Mother was ordered to attend individual
counseling.
DCFS also reported to the juvenile court that Father
indicated he “would not submit to random testing whenever
DCFS requested but would test this time to prove that he was
clean.” Father submitted to an on-demand drug test on
December 22, 2020 and tested positive for marijuana. As for
Mother, DCFS reported having requested proof of Mother
attending individual counseling, but did not receive any
verification from her. DCFS otherwise reported to the court that
both parents’ visits with E.S. have been consistent and
appropriate. Mother fed E.S. and played with him until his nap
time. Father would “bond with the child by playing with him,
bathing him, and dressing him.”
E. Disposition
On January 4, 2021, the juvenile court proceeded to
disposition. It sustained the allegations in the petition and
declared E.S. a dependent of the court under section 300,
subdivisions (a) and (b). The court found by clear and convincing
evidence pursuant to section 361, subdivision (c), that substantial
danger to the physical health, safety, and emotional well-being of
E.S. existed and there were no reasonable means by which E.S.’s
physical health could be protected without removing E.S. from
his parent’s home. The court ordered E.S. removed from their
custody and care and placed with a relative under the
supervision of DCFS.
13
The court expressed concern about “mov[ing] to an
unmonitored and/or overnight visit for the parents [because]
there is missing information that the court is concerned about in
terms of child’s safety issues.” The court also expressed concern
about MGM’s statements “at the onset of this case regarding her
distrust, frankly, of the parent’s ability to appropriately parent
this infant.” The court found Father “reticent to provide
information” and “hostile” in his responses during testimony.
The court commented that Father took only one drug test and it
tested positive for marijuana; the court also noted having
observed Father falling asleep or closing his eyes for long periods
of time during the last two court hearings via Webex. As for
Mother, the court commented that although it “made orders that
allowed for more frequent visits,” Mother had not been seeing her
child more often.
Finally, the court stated it would “write a written ruling to
support [its] orders.”
On January 8, 2021, the court held a hearing “for the
court’s written ruling and the signing of the parent[s’] case
plans.” DCFS was ordered to provide family reunification
services to E.S. and his parents.
The court-ordered case plan for Father and Mother
included parenting classes, individual counseling with a licensed
therapist to address case issues, and infant mental health
services such as child-parent psychotherapy with E.S. Father
was additionally ordered to submit to on-demand consecutive
drug tests upon objective signs of drug use, including marijuana.
The court ordered monitored visitation for two hours twice a
week, and gave DCFS discretion to liberalize visitation.
Mother and Father filed notices of appeal.
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F. Post-Notice of Appeal Events
On July 22, 2021, DCFS filed a motion to dismiss a portion
of the appeal, contending Mother’s and Father’s challenge to the
juvenile court’s removal order is moot. DCFS requested us to
take judicial notice of the minute order dated July 7, 2021 where
the juvenile court terminated its suitable placement order and
ordered E.S. to reside with his parents. We take judicial notice of
the July 7, 2021 minute order per Evidence Code sections 452,
subdivision (d), and 459. We address the merits of DCFS’s
motion to dismiss below.
DISCUSSION
First, Mother and Father argue insufficient evidence
supported the juvenile court’s jurisdictional findings. Second,
Mother and Father argue the juvenile court’s removal order was
improper as there was insufficient evidence that E.S. could not be
protected with a less restrictive alternative. Finally, Father
argues the juvenile court’s failure to give a factual basis for its
findings and orders prevents meaningful appellate review,
warranting reversal.
A. Substantial Evidence Supports the Court’s Assertion of
Jurisdiction Over E.S.
1. Standard of Review
In reviewing a challenge to the sufficiency of the evidence
supporting jurisdictional findings and related dispositional
orders, we “consider the entire record to determine whether
substantial evidence supports the juvenile court’s findings.” (In
re T.V. (2013) 217 Cal.App.4th 126, 133; accord, In re I.J. (2013)
56 Cal.4th 766, 773.) When an appellate court reviews a
sufficiency of the evidence challenge, we may look only at
15
whether there is any evidence, contradicted or uncontradicted,
which would support the trier of fact’s conclusion. (In re John V.
(1992) 5 Cal.App.4th 1201, 1212.) “Substantial evidence is
evidence that is ‘reasonable, credible, and of solid value’; such
that a reasonable trier of fact could make such findings.” (In re
Sheila B. (1993) 19 Cal.App.4th 187, 199.)
In making our determination, we draw all reasonable
inferences from the evidence to support the findings and orders of
the dependency court; we review the record in the light most
favorable to the court’s determinations; and we note that issues
of fact and credibility are the province of the trial court. We do
not reweigh the evidence or exercise independent judgment, but
merely determine if there are sufficient facts to support the
findings of the trial court. (In re I.J., supra, 56 Cal.4th at p. 773;
see In re Alexis E. (2009) 171 Cal.App.4th 438, 451 [“[w]eighing
evidence, assessing credibility, and resolving conflicts in evidence
and in the inferences to be drawn from evidence are the domain
of the trial court, not the reviewing court”].) “Evidence from a
single witness . . . can be sufficient to support the trial court’s
findings.” (In re Alexis E., at p. 451.)
2. Applicable Law
Section 300, subdivision (a), authorizes a juvenile court to
exercise jurisdiction over a child when the child has suffered, or
there is a substantial risk the child will suffer, serious physical
harm inflicted nonaccidentally upon the child by the child’s
parent. (§ 300, subd. (a).) 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 a combination of these and other actions
16
by the parent that indicate the child is at risk of serious physical
harm. (Ibid.)
Section 300, subdivision (b)(1), authorizes a juvenile court
to exercise dependency jurisdiction over a child if the “child has
suffered, or there is a substantial risk that the child will suffer,
serious physical harm or illness, as a result of the failure or
inability of the child’s parent . . . to adequately supervise or
protect the child, or . . . by the inability of the parent . . . to
provide regular care for the child due to the parent’s . . . mental
illness, developmental disability, or substance abuse.” (§ 300,
subd. (b)(1).) A jurisdictional finding under section 300,
subdivision (b)(1), requires DCFS to demonstrate the following
three elements by a preponderance of the evidence: (1) neglectful
conduct, failure, or inability by the parent; (2) causation; and
(3) serious physical harm or illness or a substantial risk of
serious physical harm or illness. (In re Joaquin C. (2017)
15 Cal.App.5th 537, 561; see also In re R.T. (2017) 3 Cal.5th
622, 624.)
3. Analysis
Mother challenges the sufficiency of the evidence
supporting counts a-1 and b-1.
We begin with count a-1, which alleges that E.S.’s fractured
clavicle would not have occurred except as a result of “deliberate,
unreasonable and neglectful acts” by E.S.’s parents.
Mother contends, and Father joins, that the evidence was
insufficient that E.S. did or would suffer serious physical harm
inflicted nonaccidentally upon him by his parent. Mother argues
she gave “a plausible explanation as to the manner in which E.S.
sustained his injury” and that the experts “did not agree that his
injury would not occur except as the result of deliberate,
17
unreasonable and neglectful acts by the parents.” We disagree.
There was evidence that a three-month-old non-mobile
newborn suffered physical harm/injury—a left clavicle fracture—
while in the custody, care, and control of his parents. For weeks
the parents had no explanation for the injury, until Mother
recalled on April 30, 2020 the slipping incident in the crib where
she grabbed E.S. tightly to prevent his fall. Mother then recalled
on September 24, 2020 another slipping incident in April 2020
where E.S. nearly slipped from Mother’s grip during bath time.
As Dr. Canty, Dr. Arnold-Clark, and Dr. Grogan testified,
Mother’s statements as to what happened were inconsistent. If
E.S.’s clavicle was fractured during the slip/grab incident in the
bathroom, Mother would have known right then and there that
something was wrong with E.S. or that he was in pain. Dr.
Grogan testified, “It would be unusual for a child not to cry with a
fracture. I don’t know if I’ve ever seen a child not cry with a
fracture.” Dr. Canty did not believe Mother’s explanation was
consistent with a clavicle fracture because E.S. did not have any
reaction to the injury. “I would expect an infant with a fracture
to exhibit pain symptoms . . . crying and fussiness.” Similarly,
Dr. Arnold-Clark opined that “an injury with enough force to
cause a fracture would be a very significant event. And after that
significant event, the child would immediately cry, would
immediately show distress; and from that point on would be in
pain whenever the arm is manipulated or the area was touched.”
However, even during her testimony during adjudication, Mother
repeated and maintained that “nothing happened” after she
grabbed onto E.S. tightly, and that he did not cry or fuss until
2:00 a.m. later that evening.
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The inconsistency in Mother’s explanations as to what
happened are troubling. She related one event where E.S.
slipped from her grip between 2:00 and 3:00 a.m. on April 4 or 5,
2020, and another instance where E.S. nearly slipped from her
grip during bathtime on April 5, 2020, causing her to grab his
shoulder area “more tightly.” When asked why she did not
inform the doctors about these events until weeks later, Mother
testified that none of the social workers asked her what could
have happened to E.S. At some point, she blamed E.S.’s vitamin
D deficiency as the reason for the break. Thus, while Mother
argues on appeal that she gave a “plausible explanation” as to
how E.S. sustained the injury, we find her statements still do not
add up, as she maintained E.S. did not cry during either slipping
incident, a very unusual reaction.
Dr. Canty testified, and Dr. Arnold-Clark agreed, that “in
the absence of characteristics that I feel would be typical of an
infant’s reaction to pain, without those characteristics, I do not
feel that the history provided is consistent and can explain
[E.S.’s] fracture; and, therefore, in the absence of any alternative
explanation, his injury is most consistent with inflicted trauma or
child abuse.” That alone is enough to sustain the allegations in
count a-1.
Contrary to Mother’s assertion, the experts need not agree
that E.S.’s injury would not have occurred but for unreasonable
and neglectful acts by the parents. It is within the province of
the juvenile court to assess conflicting evidence and make
findings. That some evidence may support a different conclusion
is of no importance when other evidence substantially supports
the findings made by the juvenile court. (In re Misako R. (1991)
2 Cal.App.4th 538, 545.)
19
Based on the foregoing, we conclude substantial evidence
supports the juvenile court’s jurisdiction.
Where, as here, “ ‘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 re I.J., supra,
56 Cal.4th at p. 773.) Thus, “a single jurisdictional finding
supported by substantial evidence is sufficient to support
jurisdiction and render moot a challenge to the other findings.”
(In re M.W. (2015) 238 Cal.App.4th 1444, 1452.) In such cases,
we need not consider whether the other alleged grounds for
jurisdiction are supported. (In re Alexis E., supra,
171 Cal.App.4th at p. 451.) We thus need not address the
allegations in count b-1.
B. The Appeal of the Juvenile Court’s Removal Order is
Dismissed.
We first address DCFS’s motion to dismiss the portion of
the appeal that challenges the removal order because the juvenile
court terminated the suitable placement order and returned E.S.
to the home of his parents while this appeal was pending. DCFS
contends that portion of the appeal is moot as we can no longer
offer any effective relief.
When no effective relief can be granted, an appeal is moot
and will be dismissed. (In re Jessica K. (2000) 79 Cal.App.4th
1313, 1315–1316.) The duty of this court is to decide actual
controversies by a judgment which can be carried into effect, and
not to give opinions upon moot questions or abstract propositions,
or to declare principles or rules of law which cannot affect the
20
matter in issue in the case before it. (Id. at p. 1316.) When,
pending an appeal from the judgment of a lower court, and
without any fault of the respondent, an event occurs which
renders it impossible for this court to grant appellant any
effectual relief, the court will not proceed to a formal judgment,
but will dismiss the appeal. (Ibid.)
Still, a court may exercise its inherent discretion to resolve
an issue when there remain material questions for the court's
determination, where a pending case poses an issue of broad
public interest that is likely to recur, or where there is a
likelihood of recurrence of the controversy between the same
parties or others. (In re N.S. (2016) 245 Cal.App.4th 53, 59.)
Mother and Father did not oppose DCFS’s motion to
dismiss. Nevertheless, Father argues in his reply brief, joined by
Mother, that “the findings themselves are prejudicial to [them]
even though E.S. is back in their care.” Father argues “E.S. is
young and will remain a minor for another 16 years and the
parents may end up having more children in the future. . . .
Thus, it is possible there could be future juvenile or family court
actions in which the . . . findings could prejudice the parents.”
Those two sentences, without further explanation, are the only
opposition and argument provided against dismissal. This is not
enough.
During the pendency of this appeal, E.S. was returned to
Mother’s and Father’s care and they have received the relief they
sought as to removal. It is impossible for this court to grant
effective relief when the child has been returned to the parents’
custody and care.
21
Based on the foregoing, we decline to exercise our
discretion to review the juvenile court’s removal order. Thus, we
grant DCFS’s motion to dismiss as moot Mother’s and Father’s
portion of the appeal challenging the removal order.
C. Father’s Additional Argument
Father argues the juvenile court “repeatedly assured the
parties that it would issue a ‘written ruling to support’ its orders”
but “despite these representations . . . did not subsequently file a
written ruling.” He argues the court’s failure to provide “a
factual basis for its orders and rulings” prevents meaningful
appellate review and requires reversal. He cites to In re Podesto
(1976) 15 Cal.3d 921, where the Supreme Court “emphasized that
meaningful judicial review is often impossible unless the
reviewing court is apprised of the reasons behind a given
decision.” (Id. at p. 937.)
Section 356 provides, in relevant part: “After hearing the
evidence, the court shall make a finding, noted in the minutes of
the court, whether or not the minor is a person described by
Section 300 and the specific subdivisions of Section 300 under
which the petition is sustained. . . . If the court finds that the
minor is such a person, it shall make and enter its findings and
order accordingly.” (§ 356.) Here, the juvenile court found by a
preponderance of the evidence that E.S. is a child described by
section 300, subdivisions (a) and (b)(1). The court also found
clear and convincing evidence pursuant to section 361,
subdivision (c), that substantial danger to the physical health,
safety, and emotional well-being of E.S. exists and that there are
no reasonable means by which E.S.’s physical health can be
protected without removing E.S. from his parent’s home. It
expressed concern about changing the monitored visitation order
22
to unmonitored. It referred to MGGM’s statements about her
distrust of the parents’ ability to appropriately care for E.S. It
found Father hostile in his responses during his testimony.
Before making its ruling, the juvenile court stated it had the
opportunity to review the exhibits and consider all the testimony.
We find the foregoing to be sufficient. The juvenile court’s failure
to provide written factual findings after the hearing (in addition
to the minute order) does not require reversal.
DISPOSITION
The juvenile court’s jurisdictional findings are affirmed;
Mother’s and Father’s appeal of the removal order is dismissed as
moot.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, J.
We concur:
GRIMES, Acting P. J.
*
HARUTUNIAN, J.
* Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
23
HARUTUNIAN, J., Concurring in the result.
I fully concur with the majority opinion, with the exception
of Section B’s dismissal of the appeal of the removal order on the
grounds of mootness. In my view, the parents adequately
preserved the issue, despite DCFS’s motion to dismiss, by briefly
arguing the removal order could be prejudicial to them in future
juvenile or family court proceedings. I believe the future
prejudice (and potentially unwarranted stigmatism) of being
adjudicated by a juvenile court as being unfit to care for your
child for a period of time is self-evident.
My colleagues properly recognize that we have the
discretion to review the removal order. Courts in the past have
recognized that even “speculative” concerns from a parent in a
dependency case about a “moot” issue do not necessarily mean
the court should not consider the issue, because dismissal of the
appeal operates as an affirmance of the underlying order. (See In
re C.C. (2009) 172 Cal.App.4th 1481, 1488–1489.) Generally
speaking, I believe parents should “have their day in court” when
seeking to overturn an adjudication that they were “unfit.” They
should be entitled to have us review whether the claim they were
unfit was unsupported by sufficient evidence. They should not be
left to wonder whether the “stain” on their parental reputation
would have been removed if the court had reviewed the issue on
the merits.
1
Having said that, this is not a case where the removal order
should be overturned. We should address their claim that
removal was improper, and find, on the merits, the trial court’s
removal order was fully justified by the record.
*
HARUTUNIAN, J.
* Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
2