Filed 6/28/22 In re D.G. CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
In re D.G., et al., Persons Coming
Under the Juvenile Court Law.
ALAMEDA COUNTY SOCIAL A162737
SERVICES AGENCY,
(Alameda County
Plaintiff and Respondent, Super. Ct. Nos. JD032451 &
v. JD032452)
DANIEL G., et al.,
Defendants and Appellants.
G.G. (Mother) and Daniel G. (Father) (parents) appeal from the
juvenile court’s jurisdictional findings under Welfare and Institutions Code
section 300, subdivision (e) —severe physical abuse.1 Parents’ sole contention
on appeal is that the juvenile court erred in applying a res ipsa loquitur
theory of negligence to sustain its jurisdictional finding. We affirm.
I.
BACKGROUND
We summarize only the facts necessary to resolve this appeal.
Father has joined in all of the arguments mother presented in her
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opening brief.
D.G. and Ezekiel G. (minors) were the subjects of a dependency petition
filed by Alameda County Social Services Agency (agency) under Welfare and
Institutions Code2 section 300, subdivisions (b)(1), (e), and (j). Under
subdivision (e), the petition alleged that parents were the sole care providers
for five-week-old Ezekiel and two-year-old D.G, and that while in their care,
Ezekiel sustained “several unexplained, non-accidental injuries consisting of
two abdominal horizontal bruises, bruises on the tip of the index finger, torn
inner top lip, bruises on the penis, subdural hematoma, left and right wrist
fracture as well as a left corner fracture.” The petition further alleged D.G.
had sustained “bruises to his left cheek and above his right knee.”
The agency’s jurisdictional report noted that parents had been married
eight years, and had two children, D.G. and Ezekiel. After Ezekiel’s birth,
mother and father were his only caregivers and they had not had any visitors
in the home. The parents had no explanation for Ezekiel’s injuries. The
report noted that although parents “continuously blame [D.G.] for the
injuries Ezekiel has sustained,” the medical expert opined that “ ‘[D.G.] could
be the cause of maybe one bruise, but it does not explain weeks and weeks of
bruising.’ ”
At the contested jurisdictional hearing, which took place over the
course of five months, several witnesses testified. For the agency, the social
worker testified, as did Dr. Casey Brown, a medical expert in child abuse
pediatrics. Dr. Brown, who treated Ezekiel at Oakland Kaiser pediatric
intensive care unit and was the only medical witness to examine Ezekiel in
person, testified that he had multiple nonaccidental injuries and that his
injuries resulted from physical abuse on more than one occasion. Dr. Brown
also opined Ezekiel’s injuries were not the result of any underlying medical
2 All statutory references are to the Welfare and Institutions Code.
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condition (including rickets), birth injury, or D.G. hurting Ezekiel. For the
defense, Dr. David Ayoub, a general radiologist expert, and Dr. Steven
Gabaeff, an expert in emergency medicine, general medicine, and
clinical/forensic medicine, testified. Dr. Ayoub opined Ezekiel suffered from
infantile rickets. Dr. Gabaeff testified that Ezekiel’s injuries had medical
explanations other than child abuse. Mother and Father both testified as
well.
The juvenile court found true the allegations of the petition. The court
gave a lengthy ruling from the bench with explicit findings on the credibility
of each of the witnesses, including parents’ expert witnesses. The court
observed the case “boil[ed] down to . . . the battle of the experts.” The court
found Dr. Brown credible, Dr. Gabaeff “not especially credible,” and Dr.
Ayoub not “specifically credible.” Under the totality of the circumstances,
including the COVID-19 pandemic, the absence of visitors to the home, and
parents being the sole caretakers, the juvenile court concluded that “Ezekiel
was physically abused in the home of the parents,” and specifically that his
parents knew or reasonably should have known the abuse was occurring.
The court declared the children dependents of the court, and ordered them
removed from parental custody pending the provision of family reunification
services.
II.
DISCUSSION
Parents’ sole contention on appeal is that the juvenile court erred in
relying on In re E.H. (2003) 108 Cal.App.4th 659 (E.H.) and a res ipsa
loquitur theory to support its jurisdictional finding under section 300,
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subdivision (e) (section 300(e)).3 The agency urges us to dismiss the appeal,
arguing it fails to raise a justiciable issue. In the alternative, the agency
contends the juvenile court’s order was supported by substantial evidence.
We conclude that even assuming the appeal is not moot, parents have failed
to demonstrate that the juvenile court erroneously employed a res ipsa
loquitur theory to sustain its findings.
A. Justiciability
The agency argues parents fail to raise a justiciable issue for two
reasons. First, parents contest only a single jurisdictional finding of the court
(the section 300(e) allegation), without challenging the other bases for
jurisdiction. Second, while this appeal was pending, the juvenile court
dismissed the dependency, terminating its jurisdiction.4 In light of those
orders, the agency urges us to dismiss the appeal as moot.
“It is a fundamental principle of appellate practice that an appeal will
not be entertained unless it presents a justiciable issue.” (In re I.A. (2011)
201 Cal.App.4th 1484, 1489.) “ ‘ “A judicial tribunal ordinarily may consider
and determine only an existing controversy, and not a moot question or
abstract proposition. . . . [A]s a general rule it is not within the function of the
court to act upon or decide a moot question or speculative, theoretical or
abstract question or proposition, or a purely academic question, or to give an
advisory opinion on such a question or proposition. . . .” ’ ” (Id. at p. 1490.)
3 Mother expressly concedes she is not challenging the sufficiency of the
evidence supporting the juvenile court’s jurisdictional finding under
section 300(e), nor does her appeal challenge the other bases for jurisdiction
under section 300, subdivisions (b)(1) and (j).
4 Because we will decide the case on the merits, we deny Mother’s
request for judicial notice of the juvenile court’s June 2, 2021, July 1, 2021,
and December 21, 2021 minute orders as they are unnecessary to our
resolution of the case.
4
“The termination of juvenile court jurisdiction does not categorically
prevent a reviewing court from granting effective relief in all cases. Thus,
mootness of an appeal from a juvenile court order followed by the unappealed
termination of juvenile court jurisdiction ‘must be decided on a case-by-case
basis’ [citations], and such termination will not moot an appeal if, on the facts
of the particular case, the appellate court can still grant the appellant
effective relief.” (In re S.G. (2021) 71 Cal.App.5th 654, 663–664.) Mother
argues in her reply brief that we should address the validity of the trial
court’s jurisdictional finding because it may have some consequence in a
future dependency proceeding. Specifically, she argues that the sustained
jurisdictional finding under section 300(e) could be the basis for future
allegations under section 300, subdivisions (a) and (j), or for application of
section 361.5, subdivisions (b)(3) or (b)(6) to bypass reunification services in a
future dependency case. Mother also argues we may exercise our discretion
to resolve a moot question when there has been actual error in the
jurisdictional findings. (See, e.g., In re M.W. (2015) 238 Cal.App.4th 1444,
1452.) Finally, citing In re S.G., at pages 664, 668, Mother argues that we
can require the juvenile court to correct its erroneous decision by way of the
remittitur notwithstanding the termination of dependency jurisdiction.
Although we seriously question whether Mother has sufficiently
demonstrated justiciability, in light of the possibility parents would be
affected in a future proceeding and out of an abundance of caution, we will
exercise our discretion to consider the merits.
B. The Juvenile Court Did Not Err By Relying on a Presumption of
Negligence
Parents argue the juvenile court erred when it applied a res ipsa
loquitur theory to sustain the section 300(e) allegation.
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The juvenile court can assert jurisdiction under section 300(e) if it finds
by a preponderance of the evidence that (1) the minor is under five, (2) the
minor suffered severe physical abuse, and (3) the abuse was by a parent or a
person known to the parent if the parent knew or reasonably should have
known the person was physically abusing the minor. (§ 300(e); E.H., supra,
108 Cal.App.4th at p. 668; K.F. v. Superior Court (2014) 224 Cal.App.4th
1369, 1381–1382.) Parents do not challenge the sufficiency of the evidence
supporting these findings in this case, but argue only that the juvenile court
erred in sustaining the section 300(e) allegations based on the same res ipsa
loquitur theory employed in E.H.
In E.H., an infant sustained multiple bone fractures at different stages
of healing ranging from one to six weeks old. (E.H., supra, 108 Cal.App.4th
at p. 661.) The child welfare department filed a dependency petition alleging
the child came within the juvenile court’s dependency jurisdiction under
section 300, subdivisions (a), (b), (e), (i), and (j). A doctor who examined the
child concluded her injuries were likely nonaccidental. (E.H., at pp. 661–
662.) The mother testified that she lived with several family members, but
denied that anyone would hurt the child. (Id. at p. 662.) The juvenile court
found the injuries were intentionally inflicted and were caused by someone in
the household, but the evidence did not establish who injured the child. (Id.
at pp. 661, 667.) The juvenile court sustained the petition as to section 300,
subdivisions (a), (b), and (j), but dismissed the allegations as to
subdivision (e). (E.H., at pp. 661, 667.)
The child welfare department appealed, asserting a “ ‘res ipsa loquitur’
type of argument” and the appellate court reversed. (E.H., supra,
108 Cal.App.4th at pp. 669, 671, fn. omitted.) The appellate court noted that
there was severe physical abuse (the child’s broken bones) and that the child
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was never out of her parents’ custody. (Id. at pp. 669–670.) The court
concluded that “[t]he only reasonable conclusion to be drawn from the facts of
the instant case was that someone in the home was causing [the child’s]
injuries, and that [the parents] reasonably should have known (since they
lived there) the identity of the perpetrator.” (Id. at p. 670.)
Although parents contend the juvenile court employed a res ipsa
loquitur presumption to reach its finding here, we find no evidence of that in
the record. In its lengthy ruling setting forth the basis for its ruling, the
court made detailed findings regarding the credibility of the testifying
witnesses and the substance of the evidence that supported the allegations of
the petition. The only reference the court made at all to E.H., supra,
108 Cal.App.4th 659, was the following comment: “And as I re-read, and I
don’t have the cite of the ‘E.H.’ case, again it was clear to me that this is one
of very similar factually, in a lot of ways these are.” (Sic.) (Italics added.)
In any event, parents have failed to demonstrate that any reliance by
the juvenile court on E.H. was erroneous. The case, published in 2003, has
been widely followed and parents cite no legal authority questioning its
rationale. As the E.H. court explained, “where there is no identifiable
perpetrator, only a cast of suspects, jurisdiction under [section 300(e)] is not
automatically ruled out. A finding may be supported by circumstantial
evidence as it is here. Otherwise, a family could stonewall the Department
and its social workers concerning the origin of a child’s injuries and escape a
jurisdictional finding under [section 300(e)].” (E.H., supra, 108 Cal.App.4th
at p. 670, italics added; see K.F. v. Superior Court, supra, 224 Cal.App.4th at
pp. 1382–1383 [juvenile court could sustain § 300(e) allegation where the
parents were primary caretakers, were new parents taking care of their first
child, and only other caretakers were older and had raised children
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apparently with no abuse allegations].) Here, substantial evidence supported
findings that Ezekiel’s injuries were the result of abuse, he was never out of
his parents’ custody during the time his injuries occurred, and it was not
possible that the injuries were caused by his two-year-old brother. Based on
the evidence before it, the juvenile court could reasonably conclude that
Mother or Father caused Ezekiel’s injuries, or, they reasonably should have
known the other parent caused his injuries.5
Parents also argue the juvenile court’s reliance on E.H. amounts to an
application of the section 355.1 presumption to section 300(e). In dependency
cases, when child abuse is cited as the ground for jurisdiction under section
300, subdivisions (a), (b), or (d), the Legislature has authorized the juvenile
court to rely on a presumption affecting the burden of production of evidence.
(§ 355.1, subds. (a) & (c).) “Where the court finds, based upon competent
professional evidence, that an injury, injuries, or detrimental condition
sustained by a minor is of a nature as would ordinarily not be sustained
except as the result of the unreasonable or neglectful acts or omissions of
either parent, . . . that finding shall be prima facie evidence that the minor is
a person described by subdivision (a), (b), or (d) of Section 300.” (§ 355.1,
subd. (a).) Under section 355.1, the juvenile court must presume the child is
subject to its jurisdiction unless the parent produces evidence “ ‘as to the
actual cause of the injury’ ” or detrimental condition. (In re D.P. (2014)
225 Cal.App.4th 898, 903.) If the parent introduces such evidence, the court
5 Parents cite In re Roberto C. (2012) 209 Cal.App.4th 1241, 1254–1256,
but that case, decided by the same appellate court that decided E.H., is
distinguishable. In Roberto C., the juvenile court did not abuse its discretion
in declining to assume the parents knew or should have known the child was
injured or being severely abused when the child was happy and healthy at all
times prior to his sudden collapse and hospitalization. (Roberto C., at
pp. 1254–1256.)
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must make its jurisdictional findings without regard to the presumption, and
by weighing the evidence. (Id. at p. 904.) The statutory presumption does
not, however, apply to section 300(e). (§ 355.1, subd. (a).) Parents contend
the E.H. court’s reliance on a res ipsa loquitur theory “is functionally
equivalent to, if not broader than, the statutory presumption in section 355.1,
subdivision (a),” and accordingly, the juvenile court erred in applying it to
find Mother and Father knew or reasonably should have known Ezekiel was
being abused to sustain the section 300(e) finding.
As parents acknowledge, however, res ipsa loquitur is a presumption
affecting the burden of producing evidence that requires the trier of fact to
assume the existence of the presumed fact unless the defendant introduces
evidence to the contrary. (See Evid. Code, §§ 604, 646.) But here, the
juvenile court did not rely on a presumption of negligence because the
parents did introduce evidence to the contrary, including opinions from two
medical experts—evidence that the juvenile court carefully discussed and
expressly weighed on the record. We may not second-guess those
determinations on appeal. (E.H., supra, 108 Cal.App.4th at p. 669.)
Moreover, as the E.H. court explained, resort to the presumption found
in section 355.1 is not required in a case involving a section 300(e) allegation.
A finding under section 300(e) does not require knowledge of the actual
identity of the abuser; rather, a juvenile court may exercise jurisdiction if the
parents knew or reasonably should have known that their child was being
abused. (E.H., supra, 108 Cal.App.4th at p. 670.) Here, as discussed above,
there is no dispute that the juvenile court’s finding was amply supported by
the circumstantial evidence that Ezekiel, a five-week-old, nonmobile infant
suffered serious physical abuse and that Mother and Father were the sole
caretakers. Under the totality of the evidence, the juvenile court could
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reasonably conclude that Mother and Father should have known Ezekiel was
harmed by the other parent.
III.
DISPOSITION
The juvenile court’s jurisdictional order is affirmed.
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MARGULIES, J.
WE CONCUR:
HUMES, P. J.
BANKE, J.
A162737
In re D.G.
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