B.A. v. Superior Court CA4/2

Filed 9/12/23 B.A. v. Superior Court CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION TWO

B.A. et al.,

Petitioners, E080951

v. (Super.Ct.No. SWJ2200291)

THE SUPERIOR COURT OF OPINION
RIVERSIDE COUNTY,

Respondent;

RIVERSIDE COUNTY DEPARTMENT
OF PUBLIC SOCIAL SERVICES,

Real Party in Interest.

ORIGINAL PROCEEDINGS; petitions for extraordinary writ. Kelly L. Hansen,

Judge. Petitions denied.

Donna P. Chirco for Petitioner B.A.

James W. Tritt for Petitioner R.A.

No appearance for Respondent.

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 Minh C. Tran, County Counsel, Teresa K.B. Beecham and Prabhath Shettigar,

Deputy County Counsel for Real Party in Interest.

Petitioners B.A. (Mother) and R.A. (Father; collectively, Parents) are the parents

of C.A. (male, born 2018), and A.A. (female, born 2022; collectively, the children).

Parents have filed petitions for extraordinary writ pursuant to California Rules of Court,

rule 8.452. For the reasons set forth post, we deny both writ petitions.

FACTUAL AND PROCEDURAL HISTORY

On June 28, 2022, the Riverside County Department of Public Social Services (the

Department) filed section 300 petitions on behalf of three-year-old C.A. and two-month-

old A.A. The Department alleged that the children came within section 300, subdivisions

(a), (b)(1), (e), and (j).

On the same date, the Department filed its detention report. In the report, a social

worker reported that the Department received an immediate response referral with

allegations of physical abuse and general neglect. On June 14, 2022, Parents noticed that

A.A. “was ‘twitching’ and ‘jolting.’ ” The next day, Mother took A.A. to Loma Linda

Medical Center—Murrieta Emergency Room. The doctors diagnosed A.A. with “mild

chronic jerking.” A.A. “was discharged home and the mother was told to follow up with

the child’s pediatrician.” On June 17, when Mother took A.A. to her pediatrician, the

doctor observed that A.A. “was twitching on the right side of her body, which included

her eye, arm and leg.” The pediatrician told Mother to take A.A. to the emergency room

immediately. Mother took A.A. to the emergency room where a CT scan revealed that

A.A. had “a minimally displaced left parietal skull fracture and a complex right parietal

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skull fracture with slight bleeding. She did not have any visible injuries and was

described as alert and responsive.” A.A. was admitted to the pediatric intensive care unit

that same day. Mother stated that she did not know how the fractures could have

occurred because she was “a stay-at-home mother and the father ha[d] been on paternity

leave since [A.A.] was born.” Mother indicated that the only other people who

sometimes cared for the children were the maternal grandparents (MGPs).

The next day, on June 18, 2022, Parents told the social worker that the MGPs were

caring for the children on June 14, 2022, when they noticed that A.A.’s wrist was

“flickering.” The MGPs took a video of A.A.’s wrist for Parents; Parents took A.A. to

the hospital. Parents denied that anyone had dropped A.A. or had been rough with her.

They denied having any criminal history, substance abuse issues, domestic violence in

their relationship, or mental health concerns. Parents also denied using corporal

punishment. Following the interview, the social worker went to the family home to

complete a home assessment and to see C.A.; C.A. was found free of any visible bruises

or injuries.

On the same day, law enforcement interviewed Parents and MGPs. Law

enforcement did not suspect that MGPs caused the injuries to A.A. Parents provided

identical statements to the investigator. They agreed to drug test and to submit to

polygraphs. They also agreed to allow C.A. to remain with maternal relatives.

On June 20, 2022, Dr. Jacobson, a Loma Linda Forensic Pediatrician, told the

social worker that A.A.’s injuries were “unique in the severity of findings.” Dr. Jacobson

stated that A.A. “suffered a hit to her brain and she has a complex left and right skull

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fracture. The skull fracture on the right [had] multiple breaks. [¶] Dr. Jacobson further

explained, [A.A.] suffered a hit to her brain and has a condition called Cystic

Encephalomalacia in which the brain has cavities, cysts and hemorrhaging, and parts of

her brain have died.” Although it was difficult to date the injuries, the doctor stated it

would be rare for A.A.’s injuries to have occurred at birth. Dr. Jacobson also stated that

it was “also unknown if the injury was caused from one episode or if there have been

ongoing episodes. However, the type of injuries that the child has are typically caused by

blunt trauma.”

The neurology department informed Parents that A.A. would have long-term

development consequences that could include developmental delays and cerebral palsy.

Moreover, the forensic team reported that A.A.’s “injuries are highly suspicious for

physical abuse although she does not have other injuries.”

On June 23, 2022, the Department obtained protective custody warrants and

placed the children into protective custody. C.A. was placed with the paternal

grandparents (PGPs) and A.A. remained in the hospital.

In the detention report, the social worked noted that on June 24, 2022, C.A. had a

forensic examination and the results were pending. A.A. had a “PHN assessment” and

was assessed “as medical fragile due to her need for further neurological observation and

her being prescribed seizure medication.”

At the detention hearing on June 29, 2022, the juvenile court found that a prima

facie showing had been made and detained the children from Parents. The court ordered

supervised visitation for Parents at a minimum of two hours twice a week.

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 On July 15, 2022, the juvenile court removed the children from the PGPs.1 A.A.

was placed in a medically fragile resource family home, and C.A. was to be placed in

foster care.

On July 18, 2022, the Department filed its jurisdiction and disposition report. In

the report, the Department asked the juvenile court to (1) find true the allegations in the

petition; (2) deny reunification services to parents under section 361.5, subdivision

(b)(6); (3) reduce parents’ visitation to one time per month; and (4) set a section 366.26

hearing.

The social worker reported that she spoke with Detective Martinez of the

Riverside County Sheriff’s Department. The detective “indicated there is an active and

open law enforcement investigation regarding the non-accidental trauma suspected

physical abuse of the infant, [A.A.].” Although Parents continued to state that there was

no plausible explanation for the injuries, “[t]hey have declined to complete the

polygraphs and have obtained counsel regarding the criminal matter. . . . The criminal

case remains active and there is reason to believe at this time that the perpetrators that

caused the injuries to [A.A.] are the parents.”

The Department received a forensic medical examination report completed by Dr.

Jacobson on July 13, 2022. The social worker summarized the medical report findings:

“1. Right complex, compound parietal skull fractures which are diastatic and extend to

the sagittal, coronal and occipital sutures. Left parietal skull fracture extending laterally

1 A.A. was placed with PGPs when she was released from the hospital on June
29, 2022.

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from the sagittal suture with mild biparietal scalp swelling near the vertex. 2. Evolving

intraparenchymal hemorrhages along the bilateral frontal and parietal cortex with

probably cystic encephalomalacia. Additional small hemorrhages noted along bilateral

cerebellum. Probable small foci of extra- axial hemorrhage along tentorium, bilateral

frontal and right temporal lobes. 3. Normocytic Anemia.”

The social worker summarized medical opinions: “ ‘[A.A.] is a non-mobile infant

who presents with head injury as evidenced by complex bilateral skull fractures,

intraparenchymal hemorrhage with cystic encephalomalacia, hemorrhage along bilateral

cerebellum, extra-axial hemorrhage along the tentorium, bilateral frontal, and right

temporal lobe, and anemia which is caused by blunt force trauma to the head with

acceleration- deceleration forces. There is no history of trauma being provided. At this

time, these findings, in the absence of a major reported trauma, are most consistent with

abusive head trauma. [A.A.] will need continual re-assessment to determine full

prognosis and early intervention services’.”

The social worker reported that A.A.’s seizure-like activity was first reported by

the MGPs on June 14, 2022. A.A. was taking medication for seizures. Parents continued

to deny any trauma to A.A.

On June 24, 2022, C.A. had a forensic examination. There were no physical

findings related to abuse. However, prior physical abuse could neither be confirmed nor

excluded. The Department reported that exposure “to violence, including abuse and

neglect of a sibling, is asso[cia]ted with psychological harm to a child and constitutes

neglect for [C.A.].”

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 Parents visited the children together with no reported concerns by the PGPs. On

June 29, 2022, the Department provided Parents with referrals to “Core Services.”

In the jurisdiction/disposition report, the Department requested that the juvenile

court deny services to parents under section 361.5, subdivision (b)(6), because A.A. was

a victim of severe physical abuse, Parents have no plausible explanations regarding how

the injuries occurred, the forensic medical doctor stated that A.A. suffered a “hit to her

brain,” and A.A. had a complex left and right skull fracture. Moreover, “the type of

injuries that the child has are typically caused by blunt trauma.”

The social worker also noted that “[r]eunification services are not in the children’s

best interest,” because A.A. “requires 24/7 supervision and protection from the parents”

after sustaining “multiple head injuries and there is no indication by the treating doctors

that this is due to a known medical condition.”

In the jurisdiction/disposition report, the Department attached the “Suspected

Child Physical Abuse and Neglect Examination” (CAN exam) for the children.

At the hearing on July 21, 2022, Parents requested a contested hearing.

The Department filed an addendum report on August 31, 2022. In this report, the

social worker noted that a multidisciplinary team met on behalf of A.A. The social

worker, a social services supervisor, Dr. Jacobson, a detective, and a deputy district

attorney were present.

Dr. Jacobson informed the multidisciplinary team that she spoke with Father. He

informed Dr. Jacobson that on June 12, 2022, the MGPs sent Father a video of A.A.’s

hand twitching; the video lasted 15 minutes. Father denied seeing any twitching. Parents

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picked A.A. up that evening and observed her. They saw no further twitching. On June

13, 2022, Parents noticed some twitching in A.A.’s right hand which extended to the right

arm, chin, and eyebrow; it lasted 15 minutes. Parents called a nurse line and was advised

to take A.A. to the emergency room; Father complied. The hospital discharged A.A.

without taking any images of her. Later that day A.A. had another, shorter episode.

Father told Dr. Jacobson that he thought A.A.’s condition was improving. On June 14,

2022, the twitching increased in frequency. When A.A. was seen by a pediatrician the

following day, the doctor advised Parents to take A.A. to the emergency room.

Father denied any trauma or “any changes in behavior” for A.A: “No increase in

fussiness, no lethargy, no change in the amount of formula intake, no vomiting, no marks,

and no bruises.” Father told the doctor that A.A. “appeared to be ‘a little needier than he

remembers their first child.’ ”

Father also reported social history information to Dr. Jacobson. Parents have been

married since 2017. A.A. was in the NICU upon birth because she needed phototherapy

due to her high bilirubin levels. A.A. was discharged on May 3, 2022, and a pediatrician

followed up on May 5, 2022, for a well-child exam and jaundice. A.A. was in the

hospital on May 5 and 6 for further phototherapy. A.A. was seen by her pediatrician on

May 9 and 16, 2022. She was not seen by another provider until June 15, 2022, for the

twitching episodes.

Dr. Jacobson next presented the medical findings, which included: “3D

reconstruction of a head CT— Complex skull fracture, ‘it’s significant’. The skull

fracture is on both the left and right side of the skull. (Attachment A). Brain findings:

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[A.A.] had Evolving Intraparenchymal Hemorrhages. (Attachment B). The dark shaded

areas are hemorrhages and/or evolving.” According to the doctor, “this was ‘more of the

results of injury to the brain as oppose[d] to the initial insult’.”

The doctor went on to present that the CT scan of A.A. facing forward showed

“the hemorrhage and brain cavities called Probable Cystic Encephalomalacia. This is the

‘result of damage to the brain’[,]” and the MRI of the brain showed “ ‘extensive brain

damage.’ ” According to Dr. Jacobson, “skull fractures are hard to date; they don’ t heal

like other bones of the body heal. She stated, ‘looking at the brain findings help me

know this was not super recent’.” The doctor stated that “[a]lthough no exact date/time

could be determined,” “ ‘it very well may have been more than one thing and ongoing.’ ”

Dr. Jacobson stated that the “findings and absence of a major reported trauma are

most consistent with abusive head trauma.” She went on to state that “these injuries are

not injuries that are sustained during birth. . . . [S]kull fractures are rare to occur during

birth. . . . [W]hen they do occur, they are simple skull fractures, ‘they are not anything

near the complexity of [A.A.’s] skull[] fractures and there is often assistance (vacuum,

forceps, etc.).’ ” The doctor noted that A.A. had good Apgar scores that let her know that

the child “came out looking well and both parents denied assistance was needed.”

“On the repeat skeletal survey (completed on July 18, 2022, at Loma Linda

Children' s Hospital in Loma Linda), the skull fractures (right and left) were present but

no other fractures were seen. Per Dr. Jacobson, the seizures are a result of the injury but

its ‘hard to say if it was one impact, multiple impacts, one impact and shaking[.]’” The

doctor stated, “ ‘we know we have blunt force trauma because we have skull fractures.’

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[And, f]urther, in that process ‘there was acceleration, deceleration of the brain and the

skull which cause[d] the bleeding.’ The seizures and low hemoglobin are consequences

of the injury. [A.A.] did not have any indication of any other bleeding ongoing.” The

doctor stated that although babies are resilient, “ ‘when you damage the brain that does

not come back.’ ” The doctor opined that the extensive damage to A.A.’s “brain could

result in cerebral palsy or movement disorder, which will be most noticeable when [A.A.]

starts growing and developing. [A.A.] is at high risk of having disabilities.”

Law enforcement indicated that the investigation was ongoing but “they have

evidence of what appears to be marital discord between the parents, frustration parenting,

and some self-disclosures of potential injuries to the infant, [A.A.].” |

A.A.’s foster parent reported that A.A. did not track objects visually or with head

rotation. A.A.’s pediatrician noted that A.A. did not smile responsively. A.A.’s medical

records revealed no indication that A.A. had ongoing medical conditions that could have

caused her recent injuries. A.A.’s delivery discharge reports indicated that she was

discharged with jaundice, which required phototherapy anemia.

C.A.’s caregivers reported that he was shy and nonverbal. C.A., however, was

comfortable with Parents, speaking openly and playing with them.

Both parents visited the children. Parents were happy to visit and consistent in

attending. The maternal aunt reported that parents brought toys, art activities, and food

for their visits with C.A., and were engaged throughout the visit.

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 The social worker reported that Parents started services with “SafeCare.” By

August 23, 2022, Parents completed one third of their services. Moreover, while in foster

care, A.A. did not sustain additional injuries.

At the pretrial hearing on September 5, 2022, Mother’s and Father’s attorneys

requested a continuance for discovery, which the court granted. The court, however,

denied Mother’s request for extended visits with C.A.

On October 14, 2022, the Department filed an addendum report. In the report, the

social worker provided that on August 26, 2022, A.A. had a crania ultrasound. “The

results were received and findings were, ‘There is bilateral frontoparietal

encephalomalacia with residual hemorrhagic products and fluid filled dilated cavities

without communication with the lateral ventricles with mild mass effect on the bilateral

lateral ventricles which are not enlarged. The 3rd ventricle is normal in appearance. The

4th ventricle is normal. The corpus callosum is intact. The visualized cerebellum

appears ‘normal.’ Impressions were ‘Encephalomalacia of the bilateral frontoparietal

lobes with residual hemorrhagic products and fluid filled dilated cavities with mild mass

effect on the non-enlarged bilateral lateral ventricles.’ ”

In October 2022, the Murrieta Police Department investigator reported that he sent

his completed report to the district attorney’s office for criminal charges to be filed for

both parents, for child neglect and physical abuse.

At the continued pretrial hearing on October 19, 2022, counsel for parents

requested a continuance to review subpoenaed records. The court continued the hearing

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to December 6, 2022. The court denied the request for additional visitation and ordered

sibling visitation two times per month for up to one hour.

On December 1, 2022, the Department filed an addendum report wherein the

social worker reported that A.A. had ongoing episodes of crying and screaming. The

neurologist believed this behavior may be episodes of “neurostorming,” which can cause

pain and discomfort. A.A. required constant nurturing and stimulation. She also required

being held at all times or she would scream for long periods of time. The caregivers

stated that A.A. was a very “high demand” baby.”

On November 16, 2022, Dr. Pinchon, a neurologist, examined A.A. According to

the doctor, “it is reported that [A.A.] wakes up numerous times during the night and will

scream. She is inconsolable and will be given a bottle, but [she] usually does not take it.

[A.A.] will also grab at her hair. The child sometimes has ‘quick bilateral arm extension

that happens randomly throughout the day.’ . . . It was previously noted that [A.A.] has

‘mild irritability consistent with post-traumatic encephalopathy.’ ”

The social worker reported that A.A. “had made some improvements to include,

smiling and giggling. She does continue to have stiffness, but this has improved. [A.A.]

eats well and has rolled over and grabs at items. She reportedly has head control during

tummy time.”

When C.A. was initially placed with his caregivers, he was selectively mute. He

now speaks freely and bonded with his caregivers. The caregivers reported that C.A. was

flourishing in their home, had adjusted well to his preschool, and appeared happy and

social with other children. There were no reported behavioral concerns.

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 On November 14, 2022, the Riverside County District Attorney filed charges

against Parents for the abuse inflicted on A.A. under Penal Code section 273a,

subdivision (a), (felony willful child cruelty), with several enhancements. The

warrant/arraignment hearing was set for December 2, 2022.

Parents continued to visit twice a week. C.A. had tantrums during the visits if he

did not get what he wanted. After the visits, C.A. seemed to “ ‘shut down.’ ” He did not

exhibit this type of behavior with his foster parents. The foster parents supervised A.A.’s

visits with Parents at the Department’s office. The interaction was appropriate.

Although sibling visits occurred, the interaction between C.A. and A.A. was minimal.

Parents completed two parenting programs and an anger management program.

Father was unable to attend individual counseling due to his work schedule.

On December 6, 2022, the juvenile court continued the pretrial hearing for a

month to further investigate the allegations, subpoena records, and obtain letters from

experts. The court also set the contested jurisdictional hearings.

On December 27, 2022, the Department filed a pretrial addendum report. In the

report, the social worker provided that she visited A.A.’s foster home. She observed that

A.A. “required the caregivers to hold her constantly and seemed soothed by this. When

they walked away or went out of her sight, she would scream and cry, very inconsolable

unless held.” The social worker also noted that there was an EEG scheduled in January

2023 to assess the child’s “startle” reflex. A.A.’s pediatric neurosurgeon reported that the

child’s injuries will cause cognitive deficits; the injury to her frontal lobes can cause

deficits in attention, executive functioning, planning, and impulse control. The doctor,

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however, noted that A.A. had made significant developmental progress with gross motor

and other skills.

The addendum report stated that Parents continued to visit the children. At times,

C.A. threw fits when the visits began and ended. Parents were arraigned in criminal court

with a felony settlement conference date set for February 21, 2023.

On January 5, 2023, Mother filed a “neurology-pediatric report” prepared by Dr.

Ronald Gabriel. In the report, Dr. Gabriel provided an analysis of the causation and

timing of causation followed by a preliminary damage profile. Dr. Gabriel also reviewed

the records regarding Mother’s labor and delivery and A.A.’s medical records through

August 17, 2022. Furthermore, Dr. Gabriel reviewed four videos, four still photos, and

all imaging. Dr. Gabriel concluded that A.A.’s current condition was a result of severe

mechanical traumatic brain injury due to severe crushing of her cranium during the

delivery process, compounded by inappropriate handling of A.A. during cleansing in the

delivery room.

In his report, Dr. Gabriel stated that although “not recorded in the delivery notes,

but vividly demonstrated by a four-second video, there appeared to be both urgency and

panic in delivering this child. The delivering physician applied what was undoubtedly

tremendous manipulatory pressure on the baby’s head with both hands and fingers . . .

unquestionably resulted in a crushed skull bilaterally.” He also stated that a second video

taken in the delivery room revealed “rough handling by the nursing staff and at one point

allowed the baby’s head to fall without restraint and with gravity onto a thin mat with

what appeared to be a bounce. This struck the right side of her cranium.” Dr. Gabriel

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went on to state that “Apgar scores reflect brain stem function and the superficial aspects

of the cerebral hemispheres are neurologically silent at this age.” The doctor noted that

before the seizure on June 15, 2022, A.A. developed severe anemia as a consequence of

intracranial hemorrhaging, complicated by an “ABO incompatibility,”2 contributing to

hemolytic anemia. This accounted for the severe jaundice, which was a consequence of

both red blood cell breakdown from the ABO incompatibility and the breakdown from

the major intracranial hemorrhaging that occurred following delivery.

Dr. Gabriel went on to state that the “initial CAT scan on admission, 06-17-22 is

illuminating.” The scan revealed “massive encephalomalacia, or cystic cavitation, of

both frontal lobes and occipital lobes, which reflect pathology at least four to six weeks

before the study was performed.” The scan also revealed “multi-compartmental and

multi-focal hemorrhaging of various ages, beginning with blood at least 10-14 days old to

. . . at least four weeks in age.” The doctor also noted that the fractures revealed a

significant degree of healing. Therefore, Dr. Gabriel concluded that the initial CAT scan

was compatible with and diagnostic for the events of April 29, 2022, the time of the

delivery.

At the pretrial hearing on January 5, 2023, the juvenile court confirmed the trial

date and granted Mother’s request to allow Dr. Gabriel to testify remotely.

2 “ABO incompatibility” is when, because of an incompatibility between the
mother’s and baby’s blood, the baby’s red blood cells are attacked in the womb by
antibodies from the mother. (https://www.ncbi.nlm.nih.gov/books/NBK2266/ [as of
September 8, 2023].)

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 At the contested jurisdictional hearing on February 6, 2023, the Department

submitted on its reports and recommendations. Mother called social worker Stacey

Vasquez to testify.

Vasquez testified that she had been assigned to this case since October 2022. She

stated that although she had reviewed Dr. Gabriel’s report, her recommendation did not

change. She agreed with Dr. Jacobson’s recommendations. Based on the statements

made by the doctors that examined A.A., including Dr. Jacobson, Vasquez concluded that

the skull fractures resulted from an intentional act, not a birth injury or negligence by

hospital staff.

Vasquez went on to testify that A.A. was with her parents when she was injured.

She believed that Mother or Father, or both of them, were involved in the abuse or aware

of what occurred. Vasquez believed that Mother was also responsible for A.A.’s injuries.

She recommended reducing visitation because Parents were not reunifying with the

children. Moreover, C.A. had difficulty with visitations. She believed C.A. was very

confused. Vasquez did not find visitation to be beneficial to either child even though

Mother’s visits generally went well.

On cross-examination, Vasquez testified that she had been a social worker for

about 18 years. As to the placement of the children, Vasquez reported that C.A. was

placed with a maternal cousin, and A.A. was placed in a medically fragile home. A.A.’s

foster mother was a nurse. Vasquez stated that if the children were placed with MGPs

they would not limit contact with Mother. She also stated that MGPs were willing to

adopt the children. Vasquez testified that except for Dr. Gabriel’s report, there was no

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indication that A.A. suffered injuries at the time of her birth. Parents never informed

anyone that A.A. suffered birth-related injuries.

Mother testified that when she was 23 weeks pregnant, she had medical

complications with spontaneous bleeding. Mother stated that she had preeclampsia and

high blood pressure during delivery. A.A. was born prematurely with her umbilical cord

around her neck, and had ABO incompatibility and jaundice. After being hospitalized for

four days, A.A. went home on May 3. However, just two days later, Parents returned to

the hospital with A.A. due to her jaundice. A.A. was discharged the day after, on May 6,

2022. Between May 6 to June 4, 2022, Father, MGPs, and Mother cared for A.A.

MGPs cared for A.A. on three occasions, for as long as four hours. Mother took

A.A. to the doctor for wellness and jaundice follow-up appointments for the first six

weeks of A.A.’s life. MGPs noticed A.A. twitching for the first time on June 14, and

Mother noticed it for the first time on June 15.3

Mother testified that she noticed A.A.’s wrist twisting on June 15, 2022. Father

took A.A. to the emergency room and returned the same day. The doctor told Father that

it was a typical development in a newborn. When they took A.A. for a follow-up

appointment, the pediatrician was concerned that A.A. may have a neurologic issue.

During the first six weeks, Mother stated that A.A. would sometimes cry almost every

hour and wanted to be held.

3 At this time, Mother’s testimony was interrupted to allow for the testimony of
Dr. Gabriel. After the doctor’s testimony concluded, Mother continued her testimony.

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 Mother testified that she also had preeclampsia when she was delivering A.A., and

she was born with jaundice. Mother testified that Father never hit her, threw anything in

anger, and that she never threw anything at Father or hit him in anger. She admitted that

they “screamed” at each other in texts. They argued about unequal parenting roles but

they never used physical discipline on the children. She never hit A.A.’s head, and never

saw anyone hit her.

On cross-examination, Mother testified that she remembered something going

wrong at A.A.’s birth. She heard the doctor saying that she was “really small down there,

and so she had to put her hands in there.” At that time, the doctor noted that A.A.’s

umbilical cord was wrapped about her neck.

A few hours after A.A.’s birth, a nurse took A.A. to the NICU because she had

ABO incompatibility and jaundice. Mother did not see anyone mistreat A.A. Father told

Mother that on June 17, 2022, Dr. Jacobson told Father that A.A.’s injuries could have

been caused at birth.

During the time when A.A. was discharged on May 3, 2022, and the 42 days

before A.A.’s seizure episode, Mother did not have any concerns that something went

wrong at delivery. Mother expressed concerns that minor was sleepy, grunted, and had

difficulty with feeding. Father asked the pediatrician about A.A.’s “fussiness and the

grunting and her crying.” Father was on paternity leave during this time. Parents took

turns caring for A.A. at night. Although A.A. sucked very slowly and took a long time to

feed, she was gaining weight. Mother said she did not injure A.A. in any way. Father

was also a primary caretaker of A.A. during the time after discharge. He did not tell

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Mother that he had hurt A.A., except for the time when he dropped a cell phone on

A.A.’s cheek.

Mother’s cross-examination continued on March 3, 2023. Mother testified that

she never had concerns about Father’s parenting skills. Parents texted about their marital

issues and would swear at each other in texts. On multiple occasions, Mother asked

Father for a divorce. She was disappointed in Father because “he would always say that

we would talk about our issues, but it never was that, or that he would work on things,

but it never happened.” During the time from A.A.’s birth to June 15, 2022, Mother

stated that she and Father were in a good place “for the most part” and always put their

kids first. Mother did not tell law enforcement about Father dropping the phone on

A.A.’s cheek.

Mother confirmed that Father dropped the phone on A.A.’s cheek on June 8, 2022.

Mother did not show the picture of A.A.’s bruise to anyone.

On redirect examination, Mother testified that she printed out divorce papers but

never filed them. In hindsight, she did not think it was a good idea to threaten Father

with divorce. Mother talked to Father about their issues—such as why he felt she was

not doing enough even though she was a full-time student and parenting the children.

On recross-examination, Mother testified that Father had been dishonest before.

He lied to Mother for four years that his parents knew about Parents’ marriage, which she

believed to be a “pretty big thing to lie” about. Father lied about his religious

background. Also his parents had not known that she was pregnant with C.A. Father

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also told Mother that his parents did not attend their wedding because his mother did not

like “windy roads.”

When the trial court questioned Mother, she stated that A.A. saw a medical

professional three or four times between May 3 and June 14, 2022. Moreover, before

A.A. was discharged from the NICU, A.A. had to participate in a car seat test where she

was placed in a car seat with monitors to determine how long she would be able to stay in

her seat. The test lasted over 30 minutes; A.A. fell asleep during the test. While at the

hospital, Mother fed A.A. by cupping her head in her arm, under her ears, while

supporting her neck.

Mother’s counsel called Dr. Gabriel to the stand. Although Mother’s counsel

requested that Dr. Gabriel be certified as an expert in pediatric neurology and

neuroimaging. The court stated: “I won’t certify him, but I’ll designate him as an

expert.”

Dr. Gabriel testified that he was hired by Mother’s counsel. He did not interview

Parents or talk to any of the social workers. His opinion was based exclusively on the

patient care records. A.A. demonstrated “a black and blue hip, forehead, and head. Also

. . . vertex peaking.” He testified that from two photographs at the time of delivery, he

observed “peaking of the top of the head, which . . . represents molding and, under the

circumstances, knowing everything else that I know, probably blood underneath the scalp

producing that kind of contour.” He also saw an abnormal positioning with fisting and a

20
clonic4 neck reflex indicating neurological abnormalities. Dr. Gabriel stated that his

experience led him to conclude a certain position of A.A.’s hand was an abnormal

neurological issue. Moreover, A.A. developed abnormal elevated bilirubin-producing

jaundice and hemolytic anemia due to ABO incompatibility. The doctor suspected that

A.A. may have kernicterus (brain damage). Dr. Gabriel also saw that A.A. had skull

fractures. He opined that the fractures occurred during birth and shortly thereafter. It

“was a double-impact jeopardy. One was the manipulation by the obstetrical hands when

the child was being delivered, what appears to an urgent, almost panic basis. . . . [¶] And

then follow that, based upon video, allowing the baby’s head to drop with gravity without

restraint and what appears to be a bounce to the right side of the brain, the side of the

complex fractures. The doctor went on to testify to the specifics of his findings.

On cross-examination, Dr. Gabriel testified that there was no evidence that A.A.

suffered any other type of head trauma while Parents cared for her. He stated: “There’s

no way to measure and give you a number in terms of force gravity. But when you look

at the four-second video, you’ll see a tremendous amount of pressure exerted on the

baby’s head by the fingers and hands of the delivery doctor. It’s a qualitative

observation, not a quantitative observation.” The doctor noted that A.A. did not suffer

injuries to her neck even though the doctor’s hand “vigorously manipulated the infant’s

head.”

4 “Rhythmical, large amplitude, relatively slow jerking of a portion of the body.”

21
 Dr. Gabriel went on to testify that a normal Apgar score is standard in cases like

A.A.’s case. When asked if the Apgar score should have been affected after a child’s

“skull was just crushed,” the doctor replied: “No, not necessarily.” The doctor also stated

that a child could suffer bilateral skull fractures and not show any symptoms for six to

eight weeks.

Dr. Gabriel agreed with Dr. Jacobson’s assessment that A.A.’s injury was caused

by “blunt-force trauma” and an impact injury. He, however, disagreed that there was

evidence of “acceleration/deceleration injury on [the] MRI. [¶] As a matter of fact, so

much of the brain has been damaged, you really could not tell if there was any axonal

disruption. This is not an acceleration/deceleration type of injury.”

Dr. Gabriel reiterated that he was able to date A.A.’s skull fractures. He observed

that the fractures were in an advanced healing process and did not think Parents could

have caused the trauma. He stated that Loma Linda should not have discharged A.A. on

May 3, 2022, and again on May 6, 2022, given her medical condition.

Dr. Gabriel admitted that he had not delivered a baby since 1971; he was not a

specialist in labor and delivery; he did not know the rate of preeclampsia in pregnancies;

or how often Pitocin is administered during delivery. He also stated that the labor and

delivery notes did not indicate any sort of crushing of the skull or gravitational fall when

A.A. was being cleaned. Moreover, Dr. Gabriel stated that jaundice is a common

occurrence in newborns.

22
 At the end of this cross-examination session by the children’s counsel, Dr. Gabriel

confirmed that he was able to date A.A.’s skull fracture to April 29, 2022, the day she

was born.

During redirect examination, Dr. Gabriel testified that he dated the skull injuries to

A.A. based on the two videos taken at birth, the imaging on June 17, 2022, and the photo

of discoloration of the head. The videos and photographs were not part of the medical

records.

When the court examined Dr. Gabriel, he testified that the last time he was present

for the birth of a child was in a clinical setting in 1971, with a few exceptions, and the

last time he delivered an infant was in 1964. He testified that A.A.’s head was

“slammed” into the mat by force of gravity. He, however, did not see any descriptions of

extensive bruising to A.A.’s scalp in the medical reports.

MGM testified. She stated that she wanted placement of the children, and was

willing to accept the court’s potential finding that one or both parents caused A.A.’s

injuries, even if she did not believe that either parent could have caused any harm to A.A.

After MGM’s testimony, the court announced it was breaking for the weekend, to resume

the following Monday, March 13, 2023.

On March 7, 2023, C.A.’s caregivers filed a caregiver information form. They

reported that C.A. was thriving in the caregivers’ home. On March 9, 2023, A.A.’s

caregivers also filed a caregiver information sheet. The juvenile court, however, did not

consider the form because Mother’s counsel had not seen or read the document.

23
 At the continued hearing on March 13, 2023, Dr. Jacobson testified as a rebuttal

witness on behalf of the Department. The juvenile court deemed Dr. Jacobson a qualified

expert in child abuse pediatrics.

Dr. Jacobson testified that her job entailed reviewing medical charts, gathering

history, performing a physical exam, making recommendations on any diagnostic studies,

interpreting diagnostic studies, and forming an opinion and making recommendations for

the continued care of a patient. A.A.’s primary care team asked Dr. Jacobson to consult

on A.A.’s case due to concerns for physical abuse and/or neglect. In A.A.’s case, other

specialists were involved in her care, including the pediatric ICU team, neurology,

neurosurgery, and ophthalmology.

Dr. Jacobson saw A.A. on June 18, 2022; the infant was seven weeks old. Dr.

Jacobson reviewed Loma Linda’s electronic health record, some pediatric primary care

notes, and interviewed Father. The doctor did not interview Mother because she was not

in the room with A.A. when Dr. Jacobson was there. The CT scan showed bilateral

complex parietal skull fractures, and intracranially. Moreover, there were findings of

hemorrhage or blood throughout, as well as cystic cavities concerning for

encephalomalacia, which are holes in the brain where the brain has died. There were also

multiple types of hemorrhage in A.A.’s brain. Furthermore, the MRI scans showed more

detail about the actual injury to the brain itself. Encephalomalacia is the result of some

traumatic insult to the brain.

Dr. Jacobson testified that she found A.A.’s injuries to be most consistent with

significant abusive head trauma, as seen in rollover motor vehicle accidents where a child

24
is unrestrained. Father provided the doctor with no history of trauma or explanation for

the infant’s injuries. The doctor stated that the birthing process could not explain A.A.’s

injuries. Dr. Jacobson did not tell anyone that A.A.’s injury could have possibly occurred

at birth. She reviewed Dr. Gabriel’s report and the four videos and photographs

provided. Dr. Jacobson did not see anything unusual in the doctor’s manipulation of

A.A., the head, or the cord, that would lead to cause fractures in A.A.’s skull. Dr.

Jacobson also stated that she did not see anything unusual or concerning in the video of

the nursing staff cleaning A.A. on a mat. She did not see any hospital staff drop or

mishandle A.A. Additionally, Dr. Jacobson did not see anything that would cause the

amount of force necessary to result in the crushing of A.A.’s skull. Moreover, Dr.

Jacobson testified that she did not see anything unusual in the photographs consistent

with the findings seen in the CT or MRI scans.

Dr. Jacobson testified that although rare, it was possible for an infant to suffer

skull fractures during birth. However, such fractures are simple fractures, not complex

ones like A.A.’s. The simple fractures are usually asymptomatic and heal without any

symptoms. Moreover, if the simple fractures cause symptoms in a baby, it would happen

when the injury first occurred. Symptoms could be low Apgar scores. Here, A.A. did

not have any symptoms at birth and had normal Apgar scores.

Dr. Jacobson was unable to determine a specific date as to when A.A. suffered her

injuries. She, however, noted that encephalomalacia is a more chronic finding and in

infants, it can be one and a half to two weeks. Here, on the head CT scan, there was scalp

swelling, which is one indicator that let her know that the swelling was more recent—a

25
week or so old. She stated that skull bones are difficult to date because the bones do not

heal by forming callouses.

On cross-examination, Dr. Jacobson testified that physicians at Loma Linda

Hospital document daily progress or changes in a patient. In the types of injuries A.A.

suffered, the symptoms would have surfaced immediately after occurrence. Symptoms

could include feeding difficulties, seizure-like activity, and breathing issues. Father did

not disclose that he had dropped his cell phone on the child. A.A.’s lab results indicated

that she had anemia and elevated liver enzymes. A.A.’s skull injures were not caused by

jaundice and anemia. Moreover, A.A.’s eye exam was normal.

Dr. Jacobson testified that she had never delivered a baby, but had assisted in

deliveries as a medical student. On June 18, 2022, she conducted a physical exam on

A.A. and examined her during a follow-up visit while A.A. was in foster care. Dr.

Jacobson did not know how much force the doctor used while Mother was giving birth,

but she did not notice anything unusual from the twisting of A.A.’s head during delivery.

Dr. Jacobson went on to state that encephalomalacia could be caused by infection

or by trauma or the acceleration/deceleration forces, such as shaking. With A.A.’s

findings, the doctor stated that A.A. would have had immediate symptoms such as

lethargy, discomfort, pain, irritability, and difficulty sleeping. Medical professionals, as

well as caregivers, should have noticed the symptoms.

As to the four-second birthing video, Dr. Jacobson testified that the video did not

prove the delivery was rushed. Moreover, she stated that dropping a cell phone on a

baby’s cheek was not a direct cause of A.A.’s injuries, but could be related. She also

26
testified that A.A.’s skull fractures were not “due to birth injury.” When asked, “So

you’re saying with absolute medical certainty it’s not possible that the child suffered

skull fractures during the birthing process,” Dr. Jacobson stated: “I’m saying that it’s

very, very, very unlikely.”

Upon questioning by the court, Dr. Jacobson testified that skull fractures of A.A.’s

degree would cause pain to A.A. Although it was would be difficult to ascertain why an

infant would be crying, they could “expect increased fussiness, crying, some type of

symptoms.”

After Dr. Jacobson was excused, counsel presented their arguments to the court.

Thereafter, the juvenile found true all the section 300 petition allegations. The court

found there was no explanation that would explain the complex fractures to A.A.’s skull.

The evidence showed that A.A. was in the exclusive care of Parents from May 3 to June

17, except for about six hours when the MGPs cared for A.A. The court watched the

videos and found that the alleged slamming did not happen. Moreover, the court did not

see any indication that the obstetrician crushed A.A.’s skull while removing the umbilical

cord from around A.A.’s neck. The court rejected Dr. Gabriel’s testimony as

unreasonable and unsupported by the evidence.

The court went on to state that the Department was not required to prove by clear

and convincing evidence the “ID of the perpetrator.” The court found that the evidence

“strongly suggests that father is the one that committed by abuse of this child.”

The court found that C.A. came within section 300, subdivisions (b)(1), and (j),

and A.A. came within section 300 subdivisions (a), (b)(1), and (3). The court adjudged

27
the children dependents of the court, removed physical custody from Parents, and denied

family services to Mother and Father under section 361.5, subdivision (b)(6). Thereafter,

the court set a section 366.26 hearing, reduced Parents’ supervised visitation to one time

a week, and found that supporting reunification with Parents was not in the best interests

of the children.

As to the bypass provision, the juvenile court stated that it had “identified the

parents as the perpetrators.” For Mother, the court found that mother failed “to take the

appropriate action to protect the child when father [was] the perpetrator.” The court

stated that Mother “would have been aware of the injuries to the child in light of the fact

that the expert testimony by Dr. Jacobson said there would have been immediate onset of

symptomology for this child; that the time frame for the child being injured is consistent

with the—that those injuries occurred after the last pediatric visitation or appointment;

and that the child would have been in the sole care and custody of mother and father

during that time period. [¶] And just the severe nature of these injuries—the skull

fracture being complex and on both sides of the child’s head, being consistent with the

fact this child—these injuries are only seen in cases where the child is thrown during a

rollover accident and whose head impacts with the ground or the road causing these level

of injuries, this was not an accidental injury. This was inflicted. It was abusive. And the

Court believes that father is the perpetrator of that, in that event.”

On March 22, 2023, Mother filed a notice of intent to file writ petition; Father

filed his writ petition notice on March 23, 2023.

28
 DISCUSSION

A. THE JUVENILE COURT PROPERLY APPLIED SECTION 355.1 AND

SUBSTANTIAL EVIDENCE SUPPORTS THE COURT’S

JURISDICTIONAL FINDINGS

Father contends that “the court erred when it applied section 355.1 because notice

was not proper; yet, even if notice were proper, parents rebutted the presumption and thus

there was not substantial evidence the [Department] met its burden.”

1. LEGAL BACKGROUND

Section 355.1, subdivision (a) provides: “(a) 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, the guardian, or

other person who has the care or custody of the minor, that finding shall be prima facie

evidence that the minor is a person described by subdivision (a), (b), or (d) of Section

300.”

“Once the petitioner establishes a prima facie case under section 355.1 the burden

of producing evidence ‘shifts to the parents the obligation of raising an issue as to the

actual cause of the injury or the fitness of the home.’ [Citation.] ‘The effect of a

presumption affecting the burden of producing evidence is to require the trier of fact to

assume the existence of the presumed fact unless and until evidence is introduced which

would support a finding of its nonexistence, in which case the trier of fact shall determine

29
the existence or nonexistence of the presumed fact from the evidence and without regard

to the presumption.’ ” (In re D.P. (2014) 225 Cal.App.4th 898, 905.)

2. MOTHER AND FATHER HAD NOTICE

In support of his argument that the Department failed to “disclose[] it sought

application of Section 355.1,” Father cites In re G.Z. (2022) 85 Cal.App.5th 857. G.Z.

does not support Father’s argument. In G.Z., the agency “never plead, alleged, or argued

the provisions of section 355.1 nor notified it would rely on its provisions.” (Id. at p.

884.)

Unlike G.Z., the section 300 allegations in this case borrowed language from

section 355.1; the petitions alleged that “[w]hile in the care and custody of the mother

and father, the child . . . has been physically abused,” and that the child’s sibling “has

been abused and/or neglected as defined by W&IC 300(a) and (e).” These “allegations

adequately gave [both parents] notice that the Department was relying, at least in part, on

the presumption created by section 355.1.” (In re D.P., supra, 225 Cal.App.5th at p.

905.)

In support of this notice given to Parents, at the contested jurisdictional hearing on

March 15, 2023, Mother’s counsel acknowledged that the Department was relying on

section 355.1: “County has alleged that 355.1 applies in this case in that the County

believes that the injuries sustained by the child [A.A.] would not have occurred but for

unreasonable or neglectful acts of Parents.” Thereafter, Mother’s counsel argued why

section 355.1 should not be applied. After Mother’s counsel concluded her argument,

Father’s counsel joined with Mother’s section 355.1 argument: “On behalf of Father, in

30
order to—in the spirit of judicial sufficiency, I’ll simply join in the majority of [Mother’s

counsel’s] arguments, specifically as to the 355.1 argument . . . . I believe these parents

are similarly situated in that regard, so I won’t waste valuable court time reiterating those

arguments; but I do believe that the same arguments apply to Father.” County counsel, in

its closing argument, also mentioned the application of section 355.1.

Based on the above, we find that Parents were given adequate notice.

3. SUBSTANTIAL EVIDENCE SUPPORTS THE COURT’S FINDING

Father argues that, even if notice were proper, “the court erred when it failed to

find the parents rebutted the presumption in Section 355.1 . . . . [O]nce Dr. Gabriel’s

testimony provided the quantum of evidence required to rebut the presumption in Section

355.1, it was the Agency’s burden to prove those facts. The only evidence before the

court supporting the Agency’s theory was Mother’s testimony Father dopped his cell

phone on A.A.’s cheek, leaving a ‘little bruise’ [citation], which Dr. Gabriel testified

could not have caused the injuries unless it affected both sides of A.A.’s head.” For the

reasons set forth post, we find that substantial evidence supports the court’s finding.

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

G.Z., supra, 85 Cal.App.5th at p. 876; see also, In re I.J. (2013) 56 Cal.4th 766, 773.)

“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.)

31
 Under the substantial evidence standard “we review the record in the light most

favorable to the court’s determinations and draw all reasonable inferences from the

evidence to support the findings and orders.” (Kevin R. v. Superior Court (2010) 191

Cal.App.4th 676, 688-689.) “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 Matthew S. (1988) 201 Cal.App.3rd 315, 321.) “ ‘ [T]he trial court’s

ruling must be upheld if there is any basis in the record to sustain it.’ ” (In re J.E. (2020)

54 Cal.App.5th 309, 313-314, quoting People v. Marquez (1992) 1 Cal.4th 553, 578.)

In this case, Father argues that “Dr. Gabriel’s testimony provided the quantum of

evidence required to rebut the presumption in Section 355.1.” However, the juvenile

court did not find Dr. Gabriel to be credible and “reject[ed] Dr. Gabriel’s testimony as

unreasonable and unsupported by the evidence.” Therefore, Parents failed to provide

substantial evidence to rebut the presumption of section 355.1.

In support of his argument, Father also relies on In re Esmeralda B. (1992) 11

Cal.App.4th 1036 (Esmeralda B.). The case, however, does not support Father’s

argument.

In Esmeralda B., the social worker “was examined concerning her report, which

was received in evidence.” (Esmeralda B., supra, 11 Cal.App.5th at p. 1039. The social

worker investigated the incident by interviewing the minor and members of the minor’s

family. “[S]he stated that her investigation of Esmeralda and her family made her believe

there was nothing the parents should have done to prevent the injury from happening.

Further, she believed the parents would act appropriately to prevent such an incident

32
from happening in the future and, most significantly, could not think of any action the

parents had taken which was unreasonable or was neglectful to Esmeralda or her

siblings.” (Id. at p. 1040.) At the conclusion of the hearing, “the court discussed the

conflicting evidence concerning the physical cause of Esmeralda’s injury, whether molest

or accidental, and resolved it in favor of molest. However, the court did not point to any

evidence supporting a finding the molest, if it occurred, resulted from the parents’ failure

or inability to adequately supervise or protect her. Nor did the court make any such

finding, instead concluding ‘that [Esmeralda] needs the protection of the juvenile court

because of the actions of the parents subsequent to the injures.’ ” (Id. at p. 1043, fn.

omitted.) Therefore, the reviewing court found that “[t]here is no substantial support for

this conclusion.” (Ibid.)

The facts in this care are distinguishable from the facts in Esmeralda B. Unlike

the social worker’s report in Esmeralda B., the reports submitted in this case found

evidence of abuse and neglect by Parents. The social worker reported that A.A. suffered

significant multiple and serious injuries while she was in Parents’ care. Although

numerous doctors determined A.A.’s injuries to be non-accidental trauma, Parents failed

to provide an adequate explanation as to how A.A. sustained the injuries. Moreover,

when making its finding, the juvenile court thoroughly discussed its reasons for making

its finding and reiterated the evidence supporting that the abuse resulted from Parents’

failure to protect.

Furthermore, Father appears to be arguing that “[t]he only evidence before the

court supporting the Agency’s theory was Mother’s testimony Father dopped his cell

33
phone on A.A.’s cheek, leaving a ‘little bruise’ [citation], which Dr. Gabriel testified

could not have caused the injuries unless it affected both sides of A.A.’s head.” Father’s

argument is without merit.

As discussed in detail ante, medical records and numerous doctors provided

information that A.A. suffered multiple skull fractures while she was in Parents’ care.

Moreover, the fractures were consistent with abusive head trauma, caused by blunt force

with acceleration-deceleration forces. With regard to Dr. Gabriel’s testimony, as noted

above, the juvenile court did not find him to be credible. The court noted, “[i]n

evaluating the experts’ opinions, I looked at their knowledge, skill, experiences, training

and education, the reasons the experts gave for their opinions, and any facts or

information on which the experts relied in reaching their opinions.”

The court then stated: “And I’m going to start with Dr. Gabriel. Because at first

impressions, after looking at his CV, you would believe that he would be an expert on

which the Court could rely. And the fact that he is a court-appointed expert either in

Orange County or Los Angeles—I forgot which one right now—adds to his credibility.

His expertise in his field of study of pediatric neurology, top notch. And upon first

reading of his report, one would reasonably think, ‘Hmm, there’s something here. This is

a problem for the Department in establishing jurisdiction over . . . these children.’ [¶]

And I refer to Dr. Gabriel’s report. It’s been marked as Court’s Exhibit 7.”

The court then described Dr. Gabriel’s report and the language he used. The court

pointed out the doctor’s language describing the four-second video as showing “both

urgency and panic in delivering this child.” The juvenile court then went on and stated,

34
“[w]hen I first read that, I could only imagine what Dr. Gabriel described as ‘urgent’ and

panic.’ And he testified in court, under oath, that undoubtedly he saw panic in that

delivery doctor’s actions just by looking at the hands in that four-second video.”

The court also described page three of Dr. Gabriel’s report that “the skull

fractures resulted in linear on the left parietal plate and complex on the right parietal

plate, the lateral location where [A.A.’s] head slammed on the mat.’ And again in court,

Dr. Gabriel used the word ‘slammed’ in his testimony. Once again, the Court was very

concerned that such actions occurred during the birth of this child based on the doctor’s

representations in his report.

Thereafter, the court stated: “And then I watched the videos. And I've watched

them ten-plus times. I watched them after the doctor testified. I watched them a couple

of days ago, during the closing arguments, the first day of closing arguments. And Dr.

Gabriel’s representation in his reports, nowhere, in no way, are based on reality. There is

no indication [in] the reports that the doctor, while attempting to remove the umbilical

cord around [A.A.’s] head, crushed that baby’s skull. Not one indication that this Court

can see. [¶] . . . [¶] I then watched the video about the nurses cleaning the child and

when the head supposedly, quote, unquote, was slammed onto a table. It simply didn’t

happen. It’s not true.”

“So when I look at the testimony of Dr. Gabriel, which should have been very

helpful to this Court—and my frustration with Dr. Gabriel, if it came out in my

questioning of him or during his questioning by counsel, is because I could have seen

myself believing his testimony and wanting to believe that it was true. But the fact that

35
he stepped out of his role as an expert and, in this Court’s opinion, became an advocate

for a certain position, disqualified him as a credible witness. And so I reject Dr.

Gabriel’s testimony as unreasonable and unsupported by the evidence.”

Based on the evidence provided in detail ante, and the court’s finding that Dr.

Gabriel was not a credible witness and rejected his testimony, we find that the court’s

jurisdictional findings are supported by substantial evidence.

B. SUBSTANTIAL EVIDENCE SUPPORTS A FINDING OF A CAUSAL LINK

OF A.A.’S INJURIES TO PARENTS’ ACTIONS AND CONDUCT

Father contends that “because there was no substantial evidence linking the

parents to A.A.’s injuries, the court abused its discretion in finding A.A. came within

section 300[, subdivision (e)].”

Section 300 states that “[a] child who comes within any of the following

descriptions is within the jurisdiction of the juvenile court which may adjudge that person

to be a dependent child of the court: [¶] . . . [¶] (e) The child is under five years of age

and has suffered severe physical abuse by a parent, or by any person known by the

parent, if the parent knew or reasonably should have known that the person was

physically abusing the child. For the purposes of this subdivision, ‘severe physical

abuse’ means any of the following: any single act of abuse that causes physical trauma of

sufficient severity that, if left untreated, would cause permanent physical disfigurement,

permanent physical disability, or death; . . . or more than one act of physical abuse, each

of which causes bleeding, deep bruising, significant external or internal swelling, bone

36
fracture, or unconsciousness; or the willful, prolonged failure to provide adequate food.”

(§ 300, subd. (e).)

In this case, after a contested jurisdictional hearing, the juvenile found “by a

preponderance of the evidence, the allegations, a-1, b-1, e-1 and j-1, in the petition, filed

on 06/28/2022 is/are true.” Therefore, the court found that A.A. “comes within Section

300(a), (b)(1), and (e) Welfare and Institutions Code.

When making this finding, the court stated as follows:

“As to the specific allegations in this case, the Court has reviewed, prior to today,

the case of Robert C., 219 Cal.App.4th 1241; the case of In re E.H., 108 Cal.App.4th

659; and the case of In re A.S., 202 Cal.App.4th 237.

“The Court found helpful the language in those cases that section 300(e) does not

require the parents actual or constructive knowledge that the child, in fact, suffered

severe physical abuse; and . . . severe injuries listed in the section, such as bleeding,

internal bleeding, internal swelling, or broken bones may not be visible; and that they

may be discovered only after a medical examination or testing [t]he question then should

be the parents have reasonably known that the child had been abused.

“The Department is not required to prove by clear and convincing evidence the ID

of the perpetrator. That will be left to the criminal courts. I have not used the fact that a

criminal complaint has been filed against the parents in this case as evidence of anything

in this case. As I have told juries for years and years and years, the fact that a criminal

case has been filed against a criminal defendant is not proof of anything. And it’s

certainly not proof here.

37
 “The purpose of this Court, as opposed to—the criminal courts is identifying the

perpetrator or punishing the perpetrator if found guilty beyond a reasonable doubt. The

purpose of this Court is to make orders that are in the best interest of the child, which

sometimes include removing the child from the home and denying family reunification

services. The Court must determine whether the record viewed as a whole contained

substantial evidence from which a reasonable trier of fact could make findings by clear

and convincing evidence.

“The Court recognized that it is my role to assess the credibility of various

witnesses and to weigh the evidence to resolve the conflicts in the evidence.

“Having expressed my concerns about Dr. Gabriel, the evidence supports a finding

that the injuries in this case were inflicted intentionally. And there’s been no argument to

the contrary.”

Thereafter, the court admitted reports into evidence, ruled on ICWA, and

discussed other procedural matters in this case. The court then returned to its section 300

finding, and stated:

“The Court would like to make a little further record as to why I believe that the

parents and the evidence strongly suggests that father is the one that committed the abuse

on this child.

“Mother testified that father was a primary caregiver of the child after they were

released from the hospital following the birth of the child; that there were many times

when he was not caring for the children as they had agreed to. The mother was . . . for

38
many days recovering from the surgery, the C-section. The father was home from work

on paternity leave and was primarily responsible for caring for the children—”

At this time, Mother’s counsel stated: “Your Honor, I'm sorry to interrupt the

Court. But [A.A.] was born vaginally, as shown in the video.”

The court then responded:

“You’re right. I’m sorry. Strike the C-section.

“—following the child’s birth; that this was a situation in which mother and father

were experiencing significant marital discord; that mother testified that she repeatedly

kept pushing for divorce from the father; and that she expressed great frustration with the

father’s parenting.

“The Court would also note that after the significant injuries were discovered by

the medical professionals, it was only then that father admitted to having caused bruising

to the child’s face, to her cheek, and shared that with mother; that Dr. Jacobson testified

that a bruise to the fleshy part of the cheek to an infant who was not ambulatory and able

to cause that bruise by his or her own actions is extremely concerning in her role as a

child abuse expert. I would also note the Court thought it was important to note that

besides the injuries seen on the CT scans and the MRIs of the brain injuries and the

fractures to the child’s skull on both sides of her head, that there was also swelling to the

child’s scalp. And it was Dr. Jacobson’s informed opinion that the injuries occurred

sometime prior to ten to 14 days. The Court did take into consideration, based off cross-

examination, that those injuries could have occurred up to 56 days prior, but that was not

her expert opinion.

39
 “The Court would also note that in weighing the expert’s opinion, Dr. Gabriel, as

was mentioned by counsel, did not see the child, did not examine the child, did not speak

with the parents, and did not consult with any other doctors. And in this case, the Court

found it significant that Dr. Jacobson did consult with other pediatric specialists,

including neurologists, ophthalmologists, radiologists in forming her opinion.

“By a preponderance of the evidence, the allegations (a)(1), (b)(1), (b)(2), (e)(1),

and (j)(1) in the petition filed on June 28th are true. The petition is sustained, and the

children are persons described under section 300(b)(1). As to [C.C.], [he] is also a child

as described under section 300(j); and that [A.A.] is a person described under sections

300(a), (b)(1), and (e).”

Based on the evidence presented in the reports filed with the court and testimony

during the hearing, we find that the court’s finding is supported by substantial evidence.

Father’s reliance on In re Roberto C. (2012) 209 Cal.App.4th 1241 (Roberto C.) is

misplaced. In Roberto C., the reviewing court affirmed the juvenile court’s finding that

no evidence linked Parents to the child’s injuries. (Id. at p. 1254.) There, the child was

in daycare every day during the work week for three weeks prior to his hospitalization,

and the parents and the babysitter did not have a suitable explanation for the child’s

injuries. (Id. at pp. 1245, 1247.) One of the doctors opined that the child’s injuries were

nonaccidental while another doctor was unable to come to the same conclusion. (Id. at

pp. 1247-1248.) The lower court found that there was no evidence linking the parents to

the infliction of the injuries. (Id. at p. 1254.) The appellate court held that the “facts

contained in this record do not create a level of certainty concerning the parents’

40
knowledge sufficient to find an abuse of discretion by the juvenile court.” (Id. at p.

1256.)

Father contends that this case is similar to Roberto C. because “the court relied

heavily on the testimony of Dr. Jacobson in drawing the inference that Father caused

A.A.’s injuries, where the only evidence Father caused any harm to A.A. was by

accidentally dropping a cell phone on her cheek, [citation] which Dr. Gabriel testified

could not have caused skull fractures on both sides of A.A.’s head.” Father goes on to

state that “the court should not have relied on Dr. Jacobson’s testimony to fill the gap in

the record, which lacked substantial evidence to causally connect the parents to A.A.’s

injuries.”

First, we do not find Roberto C. persuasive in light of the deferential standard of

review we must apply. In Roberto C., applying the substantial evidence standard of

review and giving the juvenile court deference, the court found that “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.” (Roberto C., supra, 209 Cal.App.5th

at p. 1256, fn. omitted.) Thereafter the court found no abuse of discretion. (Ibid.)

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 was

supported by substantial evidence, we must affirm the court’s assumption of jurisdiction.

41
 While the juvenile court in Roberto C. found no evidence linking the injuries to

Parents. The juvenile court in this case expressly found causation linking A.A.’s injuries

to Parents’ actions or omissions. A.A. was not ambulatory and, unlike the case where the

child went to day care in Roberto C., A.A.’s parents exclusively cared for A.A.

Moreover, there is more than ample evidence to indicate that the numerous skull fractures

and injuries to A.A. were caused by non-accidental trauma. This finding was supported

by substantial evidence as the injuries to A.A. occurred only while she was under the care

of Parents and MGM.

Moreover, the juvenile court in this case properly relied on In re E.H. (2003) 108

Cal.App.4th 659. In E.H., an infant suffered from numerous fractures. The parents

denied that they or other people in the home caused the injuries. Substantial evidence,

however, supported that the parents should have known the child was being abused when

the child was never out of the parents’ custody, and remained with a family member at all

times. (Id. at pp. 662, 670.) The only reasonable conclusion was that the parents

reasonably should have known that the child was being harmed by someone in the house.

In E.H., the court stated that the statute does not require actual knowledge of the abuse;

where there is no identifiable perpetrator, a finding may be supported by circumstantial

evidence. (Id. at pp. 667-670.)

Here, just like the facts in In re E.H., A.A. was always in the custody of Parents

except for the six hours she was under MGP’s care. The only reasonable conclusion is

that Parents should have known that A.A. was being harmed because of her symptoms,

and the injuries were caused by those who cared for her. Based on the plethora of

42
evidence regarding A.A.’s injuries cited in detail ante—in the Department’s reports,

medical records, and testimony during the hearing—substantial evidence supports the

finding by the juvenile court of a causal link of A.A.’s injuries to parents’ actions and

conduct. Therefore, the court did not abuse its discretion in finding that section 300

applied to both A.A. and C.A.

C. THE BYPASS OF REUNIFICATION SERVICES TO PARENTS IS

SUPPORTED BY SUBSTANTIAL EVIDENCE

Both Mother and Father argue that the trial court abused its discretion when it

denied them reunification services under section 361.5, subdivision (b)(6).

Generally, the juvenile court is required to provide reunification services to a child

and the child’s parents when a child is removed from parental custody under the

dependency laws. (§ 361.5, subd. (a).) The purpose of providing reunification services is

to “eliminate the conditions leading to loss of custody and facilitate reunification of

parent and child. This furthers the goal of preservation of family, whenever possible.”

(In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478.) It is also the legislative intent, “that

the dependency process proceed with deliberate speed and without undue delay.”

(Marlene M. v. Superior Court (2000) 80 Cal.App.4th 1139, 1151.) “Thus, the statutory

scheme recognizes that there are cases in which the delay attributable to the provision of

reunification services would be more detrimental to the minor than discounting the

competing goal of family preservation. [Citation.] Specifically, section 361.5.

subdivision (b), exempts from reunification services ‘those parents who are unlikely to

43
benefit’ from such services or for whom reunification efforts are likely to be ‘fruitless.’ ”

(Jennifer S. v. Superior Court (2017) 15 Cal.App.5th 1113, 1120.)

Specifically, section 361.5, subdivision (b)(6), provides that a court may deny

services if there is clear and convincing evidence: “That the child has been adjudicated a

dependent pursuant to any subdivision of section 300 as a result of . . . the infliction of

severe physical harm to the child . . . by a parent or guardian, as defined in this

subdivision, and the court makes a factual finding that it would not benefit the child to

pursue reunification services with the offending parent or guardian.”

When the juvenile court concludes reunification efforts should not be provided, it

“ ‘ “fast-tracks” ’ ” the dependent minor to permanency planning so that permanent out-

of-home placement can be arranged. (Jennifer S. v. Superior Court, supra, 15

Cal.App.5th at p. 1121.) The statutory sections authorizing denial of reunification

services are commonly referred to as “ ‘bypass’ provisions.” (Ibid.)

Once it has been determined one of the situations enumerated in section 361.5,

subdivision (b), applies, “ ‘ “ the general rule favoring reunification is replaced by a

legislative assumption that offering services would be an unwise use of governmental

resources.” ’ ” (In re William B. (2008) 163 Cal.App.4th 1220, 1227; accord, In re A.G.

(2012) 207 Cal.App.4th 276, 281.) Thus, if the juvenile court finds a provision of section

361.5, subdivision (b), applies, the court “shall not order reunification for [the] parent. . .

unless the court finds, by clear and convincing evidence, that reunification is in the best

interest of the child.” (§ 361.5, subd. (c)(2).) “The burden is on the parent to . . . show

44
that reunification would serve the best interests of the child.” (William B., at p. 1227;

accord, A.G., at p. 281.)

“We affirm an order denying reunification services if the order is supported by

substantial evidence.” (In re Harmony B. (2005) 125 Cal.App.4th 831, 839; see also

Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 971.) In applying the substantial

evidence test, we presume the court made the proper order and consider the evidence in

the light most favorable to the ruling. (Sheila S. v. Superior Court (2000) 84 Cal.App.4th

872, 880, disapproved on another ground in Conservatorship of O.B. (2020) 9 Cal.5th

989, 1010 fn.7.) We do not “resolve conflicts in the evidence, pass on the credibility of

the witnesses, or determine where the preponderance of the evidence lies. [We merely

determine whether] there is any substantial evidence, whether or not contradicted, which

will support the conclusion of the trier of fact.” (In re Walter E. (1992) 13 Cal.App.4th

125, 139-140.)

Mother argues that substantial evidence does not support the court’s finding that

Mother was a perpetrator of abuse to A.A. She states that the court failed to articulate

facts that support Mother had knowledge about Father’s abuse of A.A.

In support of her contention, Mother relies on Tyrone W. v. Superior Court (2007)

151 Cal.App.4th 849 (Tyrone W.). In that case, after an infant died of sudden infant

death syndrome, the medical examiner discovered that the infant suffered from several

two-week-old rib fractures that were deemed suspicious and were “ ‘likely indicative of

child abuse.’ ” (Id. at p. 844.) After the infant’s sibling was found to be a child

described by section 300, subdivisions (b) and (j), the juvenile court denied reunification

45
services to the parents pursuant to section 361.5, subdivision (b)(6). (Tyrone W., at p.

845.)

In reversing the juvenile court’s order denying reunification services, the appellate

court noted that the deceased infant’s “injuries, although severe, were not obvious. There

was no bruising or other marks on [the infant] and no reports that [the infant] had been in

distress.” (Tyrone W., supra, 151 Cal.App.4th p. 852.) The court also stated that there

was no evidence to show that, if one parent had inflicted injury on the infant, the other

parent knew about it. (Ibid.) The appellate court stated: “We do not believe section

361.5, subdivision (b)(6) applies to a parent who ‘reasonably should have known’ of the

abuse because that parent was not complicit in the infliction of physical harm by act,

omission or consent. As defined in subdivision (b)(6), omission and consent both require

actual knowledge, if not of the physical harm itself, then of another’s abusive acts. We

hold that subdivision (b)(6) applies to the parent or parents who inflicted severe physical

harm to the child whether by act, omission or consent, and does not apply to a negligent

parent.” (Id. at 851.) The court further held that “where there is no evidence to show

both parents knew the child was abused or injured, the court must identify the parent who

inflicted the child’s injuries before denying reunification services to that parent.” (Id. at

p. 852.) The court, however, expressly commented that it did “not quarrel with the

proposition that when the child’s injury or injuries were obvious to the child’s caretakers

and they failed to act, the court is not required to identify which parent inflicted the abuse

by act and which parent inflicted the abuse by omission or consent. In such a case, the

46
evidence supports a conclusion that both parents knew the child was injured or being

abused.” (Ibid.)

In this case, unlike Tyrone W., supra, there was substantial evidence to support

that A.A.’s “injury or injuries were obvious to the child’s caretakers [, Mother and

Father,] and they failed to act.” (Tyrone W., supra, 151 Cal.App.4th 852.)

As discussed ante, at the contested jurisdiction hearing, the juvenile court found

that “there is clear and convincing evidence the parents are persons described under 361.5

(b)(6). Therefore, reunification services will be denied, finding that the services are not

in the best interest of the children.” Later, the court reiterated that “[u]nder the bypass, I

have identified the parents as the perpetrators.” When Mother’s counsel asked for

findings specifically with respect to Mother, the court stated:

“In light of the fact that mother failed to take the appropriate action to protect the

child when father is the perpetrator, in the Court’s eyes; that she . . . would have been

aware of the injuries to the child in light of the fact that the expert testimony by Dr.

Jacobson said there would have been immediate onset of symptomology for this child;

that the time frame for the child being injured is consistent with the—that those injuries

occurred after the last pediatric visitation or appointment; and that the child would have

been in the sole care and custody of mother and father during that time period.

“And just the severe nature of these injuries—the skull fracture being complex and

on both sides of the child’s head, being consistent with the fact this child—these injuries

are only seen in cases where the child is thrown during a rollover accident and whose

head impacts with the ground or the road causing these level of injuries, this was not an

47
accidental injury. This was inflicted. It was abusive. And the Court believes that father

is the perpetrator of that, in that event.”

Mother, however, argues that there was no factual statement by the court to

support Mother was aware of the abuse while Father argues that there was no evidence

that he intentionally caused injury to A.A. We find Parents’ arguments to be without

merit.

As discussed ante, Dr. Jacobson testified that with A.A.’s injuries, A.A. would

have had immediate symptoms such as lethargy, discomfort, pain, irritability and

difficulty sleeping. Although Mother contends that such symptoms are commonplace,

Dr. Jacobson testified that A.A.’s caregivers should have noticed these symptoms.

Hence, it can be deduced that the kind of pain A.A. had to endure from her skull fractures

would have caused significantly greater symptoms than that of other infants with similar

symptoms.

In applying the substantial evidence test on appeal, we presume the juvenile court

made the proper order when considering the evidence in the light most favorable to the

ruling. (Sheila S. v. Superior Court, supra, 84 Cal.App.4th at p. 880.) As a reviewing

court, we do not “resolve conflicts in the evidence, pass on the credibility of the

witnesses, or determine where the preponderance of the evidence lies. [We merely

determine whether] there is any substantial evidence, whether or not contradicted, which

will support the conclusion of the trier of fact.” (In re Walter E., supra, 13 Cal.App.4th

at pp. 139-140.)

48
 Here, the juvenile court found both Mother and Father to be the perpetrators of the

injuries to A.A. under section 361.5, subdivision (b)(6). The court relied on the

voluminous medical records regarding A.A., and Dr. Jacobson’s testimony, while

rejecting Dr. Gabriel’s expert opinion. With the rejection of the evidence provided by

Dr. Gabriel, the court’s implicit finding that Mother had either known that Father caused

the injuries to A.A.—since he exclusively cared for A.A.—or that Mother was complicit

by failing to act, is supported by substantial evidence.

Moreover, both parents rely on J.J. v. Superior Court (2002) 81 Cal.App.5th 447

(J.J.) in support of their contention that the juvenile court erred in bypassing reunification

services. In J.J., a young child was discovered to have skull fractures, contusions, and

other bruises. (Id. at p. 451.) The father was home with the child when the child was

injured. The mother was not home. (Ibid.) The father called the mother to report that

the child was bleeding from above his eye. The mother told the father to call 911. The

father, however, waited 30 minutes to do so. (Id. at p. 452.) The father gave various

explanations that did not account for the injuries. (Id. at p. 454.) The older children

reported that the father had physically disciplined them with a belt. (Ibid.) On the night

in question, the mother stated that she had left the home after fighting with the father.

(Id. at p. 452.) The court found the petitions true and that the father had inflicted the

injuries. (Id. at p. 454.) The juvenile court then found the mother was also a perpetrator

of the injuries because she knew or should have known it was dangerous to leave the

children with the father. Moreover, when the mother became aware of the injuries, she

did not return home immediately and did not summon medical assistance. (Id. at pp. 454-

49
455.) The juvenile court, therefore, bypassed services to the mother under section 361.5,

subdivisions (b)(5), (6) and (7). (J.J., at p. 455.)

The mother petitioned for writ review, and the court of appeal reversed the

juvenile court’s decision to bypass reunification services for the mother. (Ibid.) The

court held that section 361.5, subdivision (b)(6), did not apply because there was no

substantial evidence to support that the mother knew or should have known the father

would inflict the injuries. (J.J., supra, 81 Cal.App.5th at pp. 458-460.)

The facts in this case are distinguishable from the facts in J.J. Here, both Mother

and Father were caring for A.A. when the injuries occurred. Mother was not outside the

home. Additionally, A.A. had had been suffering serious pain and other symptoms,

which both parents would have noticed, for two weeks prior to Parents seeking medical

treatment. Mother testified that A.A. was colicky, would cry randomly, was gassy,

farting all the time, and clinched her fists at or above her ear level. Mother also

expressed concerns that A.A. was sleepy, grunted, and had difficulty feeding. Unlike

J.J., A.A. had outward symptoms that both parents would have known about.

Based on the records the juvenile court relied on and the testimony given at the

contested hearing, substantial evidence supports the juvenile court’s denial of

reunification services under section 361.5, subdivision (b)(6).

50
 D. SUBSTANTIAL EVIDENCE SUPPORTS THE JUVENILE COURT’S

FINDING THAT REUNIFICATION SERVICES WERE NOT IN THE

CHILDREN’S BEST INTEREST

Mother contends that the juvenile “court abused its discretion when it denied

Mother reunification services because services were in the minors’ best interests.” Father

contends that “the court erred when it denied the parents reunification services under

section 361.5(b)(6) without making proper findings as required by section 361.5(k).” We

disagree with both parents.

“[T]he party seeking bypass of reunification services under section 361.5,

subdivision (b) has the burden of proving that reunification services need not be

provided,” a showing that must be made by clear and convincing evidence. (In re

Angelique C. (2003) 113 Cal.App.4th 509, 519, 521, disapproved on another ground in

Conservatorship of O.B., supra, 9 Cal.5th at p. 1010, fn. 7.) However, under section

361.5, subdivision (c)(2) “[t]he court shall not order reunification for a parent or guardian

described in paragraph . . . (6) . . . of subdivision (b) unless the court finds, by clear and

convincing evidence, that reunification is in the best interest of the child.” (§ 361.5,

subd. (c)(2).)

“A court called upon to determine whether reunification would be in the child’s

best interest may consider a parent’s current efforts and fitness as well as the parent’s

history. [Citation.] Additional factors for the juvenile court to consider when

determining whether a child’s best interest will be served by pursuing reunification

include: the gravity of the problem that led to the dependency; the strength of the relative

51
bonds between the child and both the parent and caretakers; and the child’s need for

stability and continuity, which is of paramount concern.” (In re S.B. (2013) 222

Cal.App.4th 612, 622-623.)

“A juvenile court has broad discretion when determining whether . . . reunification

services would be in the best interests of the child under section 361.5, subdivision (c).

[Citation.] An appellate court will reverse that determination only if the juvenile court

abuses its discretion.” (In re William B., supra, 163 Cal.App.4th at p. 1229.) In other

words, we will not disturb such a discretionary decision unless the lower court made “an

arbitrary, capricious, or patently absurd determination.” (Adoption of D.S.C. (1979) 93

Cal.App.3d 14, 24-25.) Furthermore, when the party with the burden of proof (i.e.,

Father in this case) fails to meet his or her burden, upon appellate review the question

“becomes whether the evidence compels a finding in favor of the appellant as a matter of

law. [Citations.] Specifically, the question becomes whether the appellant’s evidence

was (1) ‘uncontradicted and unimpeached’ and (2) ‘of such a character and weight as to

leave no room for a judicial determination that it was insufficient to support [the]

finding.’ ” (In re I.W. (2009) 180 Cal.App.4th 1517, 1528, disapproved on another

ground in Conservatorship of O.B., supra, 9 Cal.5th at p. 1003, fn. 7.) The same

standards direct our review in a proceeding under California Rules of Court, rule 8.452.

Even given a liberal construction of his petition, as required by California Rules of

Court, rule 8.452(a)(1), Mother has not met her burden.

In this case, more than substantial evidence supports the juvenile court’s finding

that A.A. suffered multiple, non-accidental skull fractures while in the sole care and

52
custody of Parents, and that the injuries were inflicted and abusive. Moreover, the

evidence supports the court’s finding that Parents were dilatory in seeking medical

treatment of A.A. since the child had been suffering pain and other symptoms for several

weeks. Furthermore, Parents were unwilling to disclose what happened to A.A.

This court’s reasoning in In re A.E. (2019) 38 Cal.App.5th 1124 is instructive.

There, the lower court sustained section 300, subdivisions (a), and (e), allegations, after

the child sustained a subdural hematoma, among other head injuries. (Id. at p. 1128.)

The lower court also found that by clear and convincing evidence, it was in the child’s

siblings’ best interest to grant reunification services to both parents, even though section

361.5, subdivision (b)(6) bypass applied. (Id. at p. 1140.) The lower court based the

finding on the parents being actively engaged in their services, though the court stated the

challenge for the parents would be “ ‘understanding and acceptance of responsibility for

what happened.’ ” (Ibid.) This court reversed, concluding the trial court abused its

discretion in granting reunification services because the parents both continued to deny

that they had ever abused the children or had even physically disciplined them, despite

engaging in services. (Id. at pp. 1141-1142, 1144.) This court reasoned that the mother’s

explanation of the child sustaining the head injuries as a result of falling was contradicted

by the medical expert, who had concluded that the injuries could not have been sustained

by such a fall. (Ibid.) Despite the mother identifying appropriate disciplinary techniques

and attending classes, the court found that neither of these showed that services would

likely lead to better parenting skills or would prevent further abuse. (Id. at pp. 1143-

1144.)

53
 Here, as in In re A.E., both parents continued to deny responsibility for A.A.’s

injuries—even though they and MGPs alone cared for A.A. during the time period when

A.A. was injured. Moreover, medical experts found no possible medical explanation for

A.A.’s injuries other than abusive head trauma. Dr. Gabriel, who made a contrary

finding, was deemed to be an unreliable expert by the juvenile court. On this record,

substantial evidence supports the juvenile court’s implied findings under section 361.5,

subdivision (k).

Additionally, Father argues that “because the juvenile court did not specify the

factual findings it used to determine reunification services would not benefit the children,

the court abused its discretion.” In support of his argument, Father cites In re Rebekah

R. (1994) 27 Cal.App.4th 1649 (Rebekah R.). Moreover, during oral argument, relying

on Rebekah R., Father’s counsel argued that, because the juvenile court erred by failing to

make specific findings, this matter should be remanded for the court to make these

specific findings. We disagree.

In Rebekah R., 27 Cal.App.4th at page 1650, the court stated, “it appears the

Legislature intended that the juvenile court make an express, on the record finding of . . .

severe physical harm as a pre-condition to denying reunification under the subdivision,

notwithstanding the existence of an earlier jurisdictional finding on the same subject.”

Almost a decade after Rebekah R. was decided, a mother in In re S.G. (2003) 112

Cal.App.4th 1254, 1259 (S.G.), made an argument similar to Father’s. The mother

attacked “the no-services order because the court did not make an explicit, on-the-record

findings.” The mother, relying on Rebekah R., argued “that without explicit findings, the

54
juvenile court could not properly rest its decision to deny services on section 361.5,

subdivision (b)(6), and [the appellate court] must reverse.” (Id. at pp. 1259-1260.)

The S.G. court noted that the mother’s reliance on Rebekah R. was not only

misplaced, but that the court would “further take this opportunity to clarify our opinion in

Rebekah R.” (S.G., supra, 112 Cal.App.4th at p. 1260.) The court noted that in Rebekah

R., the juvenile court denied services to the non-offending parent, the father, without

specifying “on what statutory ground it was ruling. (Rebekah R., supra, 27 Cal.App.4th

at p. 1650[].) We reversed because there was insufficient evidence to warrant the denial

order on the one arguably applicable ground, subdivision (b)(5) of section 361.5.

(Rebekah R., supra, 27 Cal.App.4th at pp. 1652-1656[].) While the court also failed to

make specific factual findings for a denial under subdivision (b)(6) of section 361.5, we

did not reverse on that ground. (Rebekah R., supra, 27 Cal.App.4th at pp. 1651-1652[].)

Thus, Rebekah R. does not stand and should not be read to stand for the proposition

advocated by appellant, namely the failure to make findings necessary for a denial of

services under section 361.5, subdivision (b)(6) mandates reversal.” (S.G., supra, 112

Cal.App.4th at p. 1260, italics added, fn. omitted.)

The court in S.G. went on to state: “We did not hold that absent explicit findings

we could not uphold a denial under section 361.5, subdivision (b)(6). Indeed, in the next

portion of our opinion, we reiterated the pertinent rule of appellate review, that is, we will

infer a necessary finding provided the implicit finding is supported by substantial

evidence.” (Rebekah R., supra, 27 Cal.App.4th at p. 1652[], citing In re Jesse B. (1992)

55
8 Cal.App.4th 845, 851[]; see also In re Corienna G. (1989) 213 Cal.App.3rd 73, 83-

84[].)” (S.G., supra, 112 Cal.App.4th at p. 1260.)

Here, although the juvenile court did not make an express finding under section

361.5, subdivision (k), we can “infer a necessary finding provided the implicit finding is

supported by substantial evidence.” (S.G., supra, 112 Cal.App.4th at p. 1260.)

In this case, substantial evidence supports implied findings on this point. The

juvenile court found that services were not in the best interest of the children after finding

that (1) A.A. suffered multiple, non-accidental skull fractures while in the care and

custody of Parents; (2) Parents delayed medical treatment for A.A. and let her suffer for

several weeks; and (3) neither parent had provided a plausible explanation for how the

injuries occurred and how they would prevent such injuries from occurring in the future.

At the contested hearing, the social worker testified that visitation is not even beneficial

to the children. Under these circumstances, providing services to Parents would prove to

be fruitless. “The Legislature has recognized . . . ‘that it may be fruitless to provide

reunification services under certain circumstances’ set forth in section 361.5, subdivision

(b).” (Raymond C. v. Superior Court (1997) 55 Cal.App.4th 159, 163.) “ ‘ “ ‘ Once it is

determined one of the situations outlined in [section 361.5] subdivision (b) applies, the

general rule favoring reunification is replaced by a legislative assumption that offering

services would be an unwise use of governmental resources.” ” ’ ” (R.T. v. Superior

Court (2012) 202 Cal.App.4th 908, 914.)

Substantial evidence supports the trial court’s orders that it was in the children’s

best interest to deny Parents’ reunification services. The trial court should be affirmed.

56
 Because the Legislature has decided that parents who fall under section 361.5,

subdivision (b), are unlikely to benefit from reunification services, the court properly

gave priority to the children’s interest in the timely establishment of a stable, permanent

plan rather than family unification. Therefore, we find that the court’s implied finding

that it was not in the children’s best interest to grant reunification services is supported by

substantial evidence. (See, S.G., supra, 112 Cal.App.4th at p. 1260.)

E. THE JUVENILE COURT DID NOT ABUSE ITS DISCRETION IN

REDUCING MOTHER’S VISITATION

Mother contends that “the court erred in reducing Mother’s visitation” because she

was not the offending parent.

“ ‘ The power to regulate visits between dependent children and their parents rests

with the juvenile court and its visitation orders will not be disturbed on appeal absent an

abuse of discretion.’ ” (In re D.P. (2020) 44 Cal.App.5th 1058, 1069.)

“Although ‘[v]isitation is an essential part of a reunification plan,’ it ‘is not

integral to the overall plan when the parent is not participating in the reunification

efforts.’ ” (In re Korbin Z. (2016) 3 Cal.App.5th 511, 517; see also In re D.B. (2013) 217

Cal.App.4th 1080, 1090 [the court’s discretion over visitation is less constrained after

reunification services are terminated, when the focus in “on permanency and stability for

the child”].)

In this case, Mother argues the juvenile court failed to make a finding that

visitation was detrimental. However, there was no need to make this finding since the

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court only reduced Mother’s visitation from twice a week to once a week. Detriment is a

finding necessary when the court denies visitation. (§ 361.5, subd. (f).)

Here, at the contested jurisdictional hearing, the court denied reunification services

and set a section 366.26 hearing to establish permanency for the children. In light of the

court’s denial of reunification services and the Department’s concurrent plan of adoption

for the children, we discern no abuse of discretion by the juvenile court in reducing

Mother’s visitation with the children.

DISPOSITION

The writ petitions are denied. The stay order entered July 7, 2023, is LIFTED.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER
J.

We concur:

McKINSTER
Acting P. J.

FIELDS
J.

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