Opinion
C086758
11-13-2018
In re A.O., a Person Coming Under the Juvenile Court Law. YOLO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. A.J., Defendant and Respondent, A.O., Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JV17598)
A.O. (minor) appeals from the order of the juvenile court dismissing dependency jurisdiction. (Welf. & Inst. Code, §§ 300 & 395.) The minor contends there is insufficient evidence to support the juvenile court's determination that his mother, A.J. (mother), rebutted the presumption that he is a person subject to dependency jurisdiction pursuant to section 355.1. The minor further contends there is insufficient evidence to support the juvenile court's conclusion that he was not at risk of serious physical harm as a result of the failure or inability of mother to supervise and protect him. We affirm the juvenile court's orders.
Unspecified statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2017 mother was living with the minor, his two older half siblings, and his father, R.O., in Texas. Due to domestic violence perpetrated by the father, mother left Texas with the minor and moved to California, where she began living with her boyfriend, M.R., whom she had known since childhood.
Over the course of the next several months, the two-year-old minor suffered numerous injuries and illnesses of varying degrees of severity. For example, on November 17, 2017, mother took the minor to the emergency room because he had been vomiting. On November 20, 2017, mother again took the minor to the emergency room because one of his testicles had been swollen for approximately four days. At some point during that same month, the minor fell in the kitchen and hit his chin. After being seen in the emergency room, mother discovered the minor chipped his tooth. Sometime between mid-November and December 2017, the minor suffered fractures of the metacarpal bones (fingers) in both hands. In December 2017 the minor also suffered a scratch to the cornea of his left eye, a broken radius and ulna of the right forearm near the wrist, and bruises and small cuts to the thighs and calves of both of his legs. He also had large bald spots on his head where his hair had been pulled out.
On December 11, 2017, mother was interviewed in her home by social workers from the Yolo County Health and Human Services Agency's (Agency) Child Welfare Services and two law enforcement officers. Mother described the minor as a very active, energetic child but noted that, on December 9 and 10, 2017, he was not his typical active self. On the morning of Friday, December 8, 2017, she noticed the minor was scratching at his left eye. She administered eye drops but noticed it was getting worse. That evening, she put the minor on the middle of the bed (a mattress and box spring seated on a raised frame on a carpeted floor), waited until he fell asleep, and then took a shower. Her boyfriend, M.R., was in the kitchen and his son was in the living room. After showering for approximately 10 minutes, mother found the minor alone in the room awake, sitting up on the floor with his hands down on the floor. M.R. told her he did not hear the minor fall.
The following day, mother noticed the minor's eye had not improved and took him to the emergency room. The doctor examined and treated the minor's cornea. According to mother, the doctor took blood and used a blood pressure cuff on the minor but did not notice anything about the minor's arm during that visit.
On the morning of December 10, 2017, mother noticed the minor was scratching his hand. She believed he was having an allergic reaction to something due to his allergies. However, at approximately 4:00 p.m. that afternoon, she noticed the minor's hand and wrist were red and took him back to the emergency room where his arm was placed in a cast. Mother found it strange that the minor injured his arm by falling off the bed, but denied anything or anyone else, including M.R., could have caused the injury.
The social workers accompanied mother and the minor to the Sutter Medical Foundation B.E.A.R. Clinic, a program to evaluate suspected cases of child abuse and neglect, for an examination by the clinic's medical director, Dr. Angela Vickers. Mother told Dr. Vickers she had, in the past, taken the minor to the emergency room due to throat issues and blood in his vomit and had recently taken him to the emergency room for his eye injury and arm fracture. Mother stated she did not suspect the minor's arm might be hurt because the minor was able to eat on his own the night prior to the emergency room visit and she did not notice anything unusual until the following day when the minor's arm appeared to be swollen and bruised. Mother said nothing about the minor's fall off the bed causing the arm injury.
Mother described the minor as active, stating he jumped on the furniture, knocked furniture on top of himself, went underneath the table and bumped his head, and jumped on the bed. She noted a prior incident when the minor was jumping on the bed and fell off, suffering a small bump on his head. Mother explained the minor pulled his own hair out whenever she left the room. She recalled a recent incident when she was cooking in the kitchen and the minor began hitting his head on the table and screaming. Mother stated this was typical behavior for the minor and noted he often threw tantrums. As a result, mother did not allow anyone else to watch the minor. She noted he often kicked during a tantrum and stated she held his legs to prevent him from kicking her or someone else. She had not paid attention to whether holding the minor in this manner caused any bruises or marks on the minor's legs. During the interview, the social worker noted that mother held the minor and when mother moved even slightly, the minor became upset and started kicking, banging his head, screaming, and crying. Mother then held the minor tightly in order to comfort him and prevent him from hurting himself or her.
Dr. Vickers examined the minor while mother held him in her arms. Dr. Vickers noted the minor appeared sleepy and lethargic and had substantial bruising and marks along his legs and a small but notable bruise on the left side of his abdomen. She discussed privately with the social workers her concern that the combination of injuries and bruises were suspicious of abuse and ordered immediate blood work and imaging. The social workers accompanied mother to complete the tests.
Pending the results of the minor's scans, Dr. Vickers and the social workers completed a safety plan with mother that included mother and the minor staying at a relative's home and mother not being left alone with the minor without Agency approval.
On December 12, 2017, the Agency received Dr. Vickers's report that revealed the minor suffered acute fractures in his right arm. His right hand could not be viewed well due to the cast on his arm. His left hand showed sub-acute fractures of two of his fingers. The minor's tests were normal with no bleeding disorder that would cause easy bruising, no bone disease, and no bone metabolism disorder. Dr. Vickers concluded the fractures to the minor's hands were "most likely caused by a forceful crush injury of both hands," noting mother had given no history of any accidental trauma to the hands "so the fractures are more likely abuse." The multiple bruises on the minor's legs were likely grab marks. Dr. Vickers stated the right forearm fracture was the type that is often accidental from falling on an outstretched arm "but can sometimes be abusive," and concluded that "[a]ll of the injuries together are highly suspicious for physical abuse and at least two stages of healing." She recommended further radiological studies and followup X-rays of both hands.
The minor was placed into protective custody on December 12, 2017.
On December 14, 2017, the foster father reported the minor had only had one crying fit when he was bathed, and cried briefly the first night at bedtime until the foster father allowed more light into the bedroom. The minor was reportedly eating okay, was not picking at or banging his head, and was not having tantrum-like behaviors. The minor appeared content and was slowly opening up.
The minor's treating physician's assistant reported the new X-rays of the minor's wrist injury taken on December 12, 2017, showed "left second metacarpal irregularity, but no acute fractures," meaning the typical alignment might be altered, possibly from previous trauma. The physician's assistant noted mother held the minor during the entire visit with no safety concerns and mother seemed very caring of the minor.
Dependency Petition
On December 14, 2017, the Agency filed a dependency petition on behalf of the two-year-old minor pursuant to section 300, subdivisions (b) [failure to protect] and (e) [severe physical abuse of child under the age of five]. The petition alleged the minor suffered, or was at substantial risk of suffering, serious physical harm or illness due to the parents' failure or inability to supervise or protect him adequately based on the December 11, 2017 examination revealing the minor sustained multiple injuries, including fractures to his hands and forearm, all of which taken together were highly suspicious of physical abuse and would not have occurred except as a result of the unreasonable or neglectful acts or omissions of mother. The petition further alleged the minor, who was under the age of five, suffered severe physical abuse by a parent or another person known to the parent, and the parent knew or reasonably should have known the person was physically abusing the minor. In particular, the petition alleged the hand injuries sustained by the minor were most likely caused by a forceful crush and, since mother gave no history of accidental trauma, were more likely the result of abuse. It was further alleged that the injuries, taken together, were highly suspicious of physical abuse that would not occur except as the result of the unreasonable or neglectful acts or omissions of mother.
Mother submitted on the detention report. The court found the petition provided a prima facie case for removal and ordered the minor detained.
Jurisdiction/Disposition Report
According to the jurisdiction/disposition report, the notes from the December 10, 2017 emergency room visit indicated mother reported M.R. told her the minor fell off the bed. It was noted that the fractures of the minor's wrist and his little finger "were concerning for non-accidental injury" and "the bone thickening seen on his x-rays is not typical in children of this age (indicative of prior fractures)." It was also noted that there were "irregularities in densities" at the bases of the minor's fingers, which were indicative of prior factures. However, the police were not contacted at the time and mother was instructed to followup with the minor's pediatrician within the week and obtain a referral to orthopedics.
Mother's counsel provided the Agency with a report authored by mother's investigator, who reported she interviewed M.V.S., the owner of the club where mother worked as a Zumba instructor, and M.V.S.'s two sons, six-year-old A.V. and eight-year-old J.V. A.V. told the investigator he and his brother played with the minor at the club. A.V. reported an incident when he accidentally stepped on the minor's hands. He heard the minor "make a mumbling noise kind of like he was crying." A.V. rubbed the minor's hands and said he was sorry. Mother picked up the minor and carried him. When the minor stopped crying, he started throwing a DVD player and some cards around. J.V. also recalled an incident when A.V. stepped on the minor's hand but was uncertain whether A.V. stepped on both of the minor's hands or just one. J.V. recalled that the minor began to cry and mother picked him up and sat with him. Then the minor got off of his mother's lap and began throwing a DVD "box" and some CD's around.
The investigator also interviewed M.V.S. who stated mother was a Zumba instructor at her club. M.V.S. described mother as overly protective of the minor and took him to the doctor or the emergency room whenever he was the slightest bit sick. M.V.S. reported she reminded mother of the incident when A.V. stepped on the minor's hands. M.V.S. recalled that, prior to the incident, she and mother were sitting at a table in the club having a meeting when they heard the minor crying. When she and mother walked over to see what had happened, the minor was crying and pointing to A.V., who explained he accidentally stepped on the minor's hands. M.V.S. admonished A.V. to be careful with the minor because the minor was a lot smaller than A.V. who, according to M.V.S., weighed 90 pounds. Mother took the minor in her arms and sat with him on her lap. After a few minutes, the minor went right back to where the kids were and began throwing the DVD "box" and CD's on the ground. Mother picked up the minor and then left a few minutes later.
That report stated that, according to Dr. Vickers, metacarpal fractures are frequently seen in small children who have had their hand slammed in a door jam or a car door, and accidental metacarpal fractures are generally only seen in one hand. Dr. Vickers opined that the minor's broken arm/wrist was consistent with the type of fall off the bed described by mother, but the minor's "crushed" bones in his hands were not. Dr. Vickers stated she had never heard of a child stepping on another child's hands resulting in the type of hand injuries suffered by the minor and asked whether the minor's hands were stomped on purposefully. She noted the breaks in the minor's hands were older than the breaks to his arm/wrist. As for the grab marks on the minor's legs, Dr. Vickers could not definitively conclude they were the result of child abuse.
Attached to the report were letters of support for mother, including letters from her ex-husband, daughters, educators, and friends, all of whom extolled her good virtues as a loving and caring friend and mother.
Contested Jurisdiction Hearing
At the contested jurisdiction hearing, the court heard testimony from a number of witnesses, including the following:
Dr. Angela Vickers
Dr. Vickers testified for the Agency as a stipulated expert in forensic child abuse. Dr. Vickers stated she examined the minor on December 11, 2017, following the minor's visit to the emergency room the previous day. The minor had several fractures to his right forearm, which was casted. She determined the injury was less than a week old. The X-rays showed the minor also had fractures in both hands, which, according to Dr. Vickers, could have happened accidentally by a "forceful crush injury" like slamming a car door completely closed on the hand, or by abuse like a forceful blow to the hand causing crushing force or causing the hand to bend back. Dr. Vickers testified that mother could only recall that the minor fell frequently and specifically stated there had been no additional trauma. Mother did not report that the minor complained of pain in his hands or that he refused to use his hands.
Dr. Vickers opined that a 90-pound child stepping on the minor's hands three to four weeks prior to the examination could not have caused the type of hand injuries suffered by the minor, noting the 90-pound child would have had to stomp on, or jump off a bed and land on, the minor's hands to cause similar injuries. She opined that, even in an accidental situation, this type of injury would almost always be to one hand not both. Dr. Vickers also noted that a child with these injuries would have been in great pain for hours if not days and would not have been able to go back to regular play, throw things, or play with his hands. She opined that the minor's right hand injury looked to be approximately one to four weeks old and would not have happened at the same time as his arm injury.
Dr. Vickers testified the bruises and fingernail marks on the minor's thighs and calves could have been caused by mother holding the minor so he would not kick her. The fact that there were multiple bruises indicated the minor had been grabbed at least a few times. Nothing in the lab results indicated the minor was particularly susceptible to fractures or bruising. She testified the patches of baldness on the minor's head could have been caused by the minor pulling out his own hair or someone else pulling his hair out.
Dr. Vickers concluded that while the cause of some of the minor's injuries, taken individually, may have been accidental, all of the injuries and findings taken together led her to conclude it was more likely than not they were caused by abuse. She noted that, at the time of the examination, mother did not provide any explanation of accidental causes and never told her the minor had fallen off the bed. Dr. Vickers conceded it was possible the minor could have fallen and fractured his arm when no one was watching, and a fall off a bed would have explained the minor's arm/wrist fracture. However, she was more concerned that the hand fractures were the result of some type of abuse given that a child with that type of injury would have had limited use of his hands and would have been complaining of pain for several hours or days. She rejected the notion that a child wearing boots and walking over the minor's hands would have been enough force to cause the hand injuries suffered by the minor.
When asked about the fact that mother took the minor to obtain medical care several times, Dr. Vickers conceded that an offending parent is less likely to bring a child in for care and treatment, but noted that delayed care or no care at all for the minor's injuries pointed toward abuse. She also conceded that mother and the minor appeared to have a strong bond during the examination and that the minor reached out to mother for comfort.
S.E.
S.E., the minor's 14-year-old half sister, testified she lived with mother and the minor in Texas. She witnessed her mother and the minor's father screaming at each other and saw the minor's father become physically violent with mother on one occasion. After mother and the minor left Texas, S.E. stayed in Texas with her father for a period of time but continued to communicate with mother weekly and texted almost every day.
S.E. testified the minor was playful, sometimes aggressive, ran and climbed a lot, and occasionally hurt himself when he was frustrated. He would on occasion bang his head on the floor and would pull his own hair out when he was frustrated, angry, sleepy, or hungry. She never saw mother hurt the minor. On the other hand, she saw mother hold the minor in a such a way as to protect him from hurting himself by hugging him to contain his hands and holding him to keep him from kicking his feet. She never saw bruises on his thighs or calves and did not know him to have broken bones. He was only taken to the emergency room for allergies.
Kori Ramirez
Kori Ramirez, the minor's speech therapist, testified she first assessed the minor on November 16, 2017, and thereafter saw him in sessions with both mother and the foster family. She noted the minor had a normal activity level compared to other children his age and did not seem to be afraid of mother. He did exhibit extreme emotions with no particular cause, such as tensing his body, squealing, falling to the floor, and attempting to swipe away toys, but she never saw him hurt himself or bang his head on the floor. She observed mother soothing the minor by holding him, but never saw mother hold him tightly or attempt to hold his legs down.
Ramirez testified she determined the minor had a "disorganized attachment" based on mother's reports that the minor played separately from familiar people, showed fear when another adult left the room, frequently hit his caregivers, cried when mother came to pick him up, and exhibited decreased imitation skills from his parents and peers, behaviors Ramirez did not observe during her assessment of the minor and behaviors the minor did not exhibit while in foster care. In particular, the minor never had an episode where he needed to be held tightly or de-escalated and did not have difficulty taking verbal direction from his foster parents. Ramirez found the minor easy to engage. She never saw the minor jump off furniture or crawl under it and hit his head or body, nor had she seen him pull his hair, although his hair had been cut short prior to her visit with him. She did observe the minor get very upset over nothing in sessions with mother, but not when he was with his foster family. In short, Ramirez determined the minor functioned much better than reported by mother.
Robin Palmer
Social worker Robin Palmer testified she conducted her initial investigation on December 11, 2017. She interviewed mother, who was unsure about the minor's injuries and speculated they were probably the result of him falling off the bed while she was in the shower. Mother did not hear the minor fall off the bed, but assumed he had because he was on the floor. Mother stated she did not observe any type of injury that Friday night and she did not have any explanation regarding his hand injuries other than to state that "he's an active child." She claimed she was unaware of the hand fractures until Palmer brought them to her attention. Mother described the minor as active, stating he climbed on furniture and jumped off, knocked furniture over on top of himself, hit his head, and fell off the bed, and noting he had suffered a small bump on his head a few weeks prior.
Mother held the minor on her lap during the entire interview with Palmer. Mother explained to Palmer that the minor pulled his own hair out when she left the room and when he had tantrums, which consisted of him kicking, hitting, pulling his hair, and crying. Mother stated she held him when he kicked. At one point during the interview, the minor started kicking. Mother put her arm over both of the minor's legs. Palmer never saw mother grab either of the minor's legs or calves. Whenever mother tried to move even slightly, the minor would "start fussing quite a bit." He also tried to hit mother.
Mother told Palmer she had been living with M.R. a few months, but had known him since childhood. She never left the minor alone with M.R. because of the minor's reaction when she left the room, which included crying and pulling his hair out. Mother had no suspicions that M.R. could have hurt the minor and described him as very patient with the minor.
Palmer testified mother never told her about the prior incident of another child accidentally stepping on the minor's hands, and gave her no other details as to how the minor might have been injured.
M.V.S.
M.V.S. testified she owned the nutrition club where mother taught Zumba class. She had three sons, F.V. (15 years old), J.V. (nine years old), and A.V. (seven years old). Mother brought the minor with her to Zumba class all the time and placed him on a mat next to where she was teaching. The minor never wandered further than the door of the Zumba room and would not leave mother's sight. M.V.S. never saw mother discipline the minor. She felt the minor did what he wanted, had mother "wrapped around his little finger," and was "very clingy to mother." M.V.S. never saw bruises on the minor, but she did see the minor pull out his own hair when he was upset. When she asked mother about it, mother told her the minor did it himself.
M.V.S. testified about an incident that occurred sometime in mid-November 2017 when she and mother were sitting at a table at the club and talking. She could not recall the exact date of the incident, testifying it could have occurred in September, October, or November 2017. She was watching her kids, who were bigger than the smaller kids and tended to play rough, when she saw A.V. run and then heard the minor crying. M.V.S. and mother rushed over to see what happened. The minor was crying and pointing at A.V., who said, "It was an accident. I'm sorry." Mother picked up the minor, told A.V. to "be careful next time," and walked away with the minor. The minor only cried until mother calmed him down. Then, he became upset and slammed the DVD player and began throwing CD's on the ground with his right hand. He continued to whine until mother took him home. M.V.S. testified she thought A.V. might have been wearing boots that day. She did not see A.V. actually step on the minor's hands.
When M.V.S. went to find mother after the incident, she was told mother left and took the minor to the emergency room because his hand was swollen. The next day, M.V.S. saw mother, who said she thought the minor was having an allergic reaction that caused the swelling in his hands. M.V.S. confirmed having told the investigator that mother took the minor to the emergency room three weeks after the incident.
M.V.S. testified her son A.V. told the investigator he accidentally stepped on the minor, and her son J.V. told the investigator he was unsure if A.V. stepped on the minor and did not see what happened because he was watching television.
M.R.'s Roommate
M.R.'s roommate testified he lived with M.R. for nearly two years and had known him since 2005. He had only known mother since she moved in with them in September or October 2017. M.R.'s six- or seven-year-old son also lived with them on some evenings and every weekend. When the roommate was home, he never saw the minor without mother and noted the minor never left mother alone.
The roommate recalled an incident on a Sunday when mother called for him to come and see the minor's swollen arm. Mother and M.R. told him the minor had fallen off the bed and they were taking the minor to see a doctor. He thought the minor's arm was broken. The minor was not crying, but when the roommate tried to look more closely at the minor's arm, the minor moaned and moved his arm away. He never observed the minor's hands to be swollen, nor did he see the minor refusing to use his hands. He never saw the minor pull his own hair out, but he had noticed bald patches on the minor's head prior to the minor getting his hair cut sometime in November.
The roommate testified that M.R.'s son was very careful when he played with the minor. He never saw the minor climbing on top of things or jumping off of things, nor did he see the minor run into walls or fall down and hurt himself. The only injury he ever observed on the minor was his swollen right arm. He did see the minor kick his mother, but mother did nothing in response to the kicking.
The roommate was not aware of any other injuries sustained by the minor during the time the minor and mother lived with him. He never saw anyone hurt the minor, and he never observed mother to be harsh, angry, short-tempered, or loud with the minor. He noted the minor was fearful of him and M.R. but not of mother.
Detective Benjamin Yen
Benjamin Yen, a detective with the Woodland Police Department, was qualified as an expert in child abuse investigations. Yen testified that, based on his investigation of the case, as well as his interviews with Dr. Vickers, Dr. Vickers's reports, the medical reports from the hospital, and his conversations with Detective Towle about mother, and conversations with M.R., he strongly believed the minor was the victim of child abuse by both mother and M.R. It was his opinion that mother had knowledge of the minor's injuries and was not willing to implicate M.R. if responsible. Yen noted mother refused his request for an interview. When Yen reviewed prior interviews of mother, he noted various inconsistencies in mother's statements regarding how the minor sustained his injuries. He also noted the minor was under the care of mother and M.R. "one hundred percent of the time."
Yen conceded that Dr. Vickers told him the injuries to the minor's arm could have been caused by a fall on an outstretched arm, and that he had no information that mother hurt the minor. He interviewed a number of people close to mother and none of them had anything negative to say about mother. Nonetheless, Yen believed either mother or M.R. hurt the minor. He based that opinion on his conversations with Dr. Vickers, the different stages of healing of the minor's hands, the fractured arm, and all the bruises on the legs. He opined that the totality of the circumstances, his investigation, and the fact that mother either had no satisfactory explanation for the minor's injuries or her explanations changed over time led him to his conclusion.
Foster Father
The court accepted the Agency's offer of proof that the foster father would have testified that he had never seen the minor pull his own hair out, jump on or off beds, or climb under furniture. When the minor was originally placed with the foster family, the minor was fearful of showers and baths but now loved them. The minor had severe tooth decay and a broken left tooth. Since being placed with the foster family, the minor's hair had almost fully grown back, he was eating well and had no aversion to eating, and his eczema was completely eradicated. The minor still had a scar on his left eye due to a corneal abrasion, and he did not show any excitement when he communicated with mother via Facetime.
Mother
Mother testified that, when she lived in Texas with the minor and her two other children, the minor was present during many of the domestic violence incidents between mother and the minor's father. Child Protective Services (CPS) became involved in one of those incidents. CPS referred mother to domestic violence therapy. Mother completed domestic violence victim classes but was told by the social worker that the father could legally come into her home and take the minor. Given the father's prior threats and the fact that he was stalking her, mother felt she had no other option than to go to California and move in with her boyfriend, with whom she had already started a relationship, and leave her two older children with their father. She did not tell the social worker she was moving in with M.R. and instead said she was moving in with some friends because she was ashamed and embarrassed to leave one relationship due to domestic violence to seek shelter in another relationship.
Mother moved to California with the minor in mid-September 2017, and moved in with M.R. Mother knew M.R.'s brother, with whom M.R. had lived for a time. She was unaware, prior to the dependency case, that his brother's son suffered a brain injury when M.R. was living with him.
Mother testified that the minor's temperament changed after he witnessed the domestic violence incidents by his father and then mother moved in with M.R. in California. She stated he "had a stronger temper."
Mother testified that, when she lived in Texas, she took the minor to the doctor, obtained well-baby checkups, and had him fully vaccinated. Once in California, she saw a doctor to obtain a prescription for allergy medication for the minor and to obtain a hearing evaluation and speech therapy for the minor. The doctor did a full evaluation of minor.
Mother also took the minor to the emergency room or clinic several times. She first visited the emergency room on November 17, 2017, because the minor would not stop vomiting.
The second visit to the emergency room occurred on November 20, 2017. The minor had a swollen testicle and his right testicle and scrotum were bruised. Mother told staff the minor's testicle had been swollen for about four days. She did not mention the swollen testicle during the previous emergency room visit because she had not yet noticed it and nobody in the emergency room noticed it either. She thought the injury resulted from the same fall that resulted in the minor's bruised chin and broken tooth. Although mother testified that she told staff the injury was the result of a fall, the emergency room records did not reflect that mother told anyone about an alleged fall.
Mother testified that, on December 9, 2017, the minor scratched his eye and was unable to open it. Mother told emergency room staff the minor had been rubbing his eye and it was swollen shut when he woke up. The doctor prescribed drops for the minor's eye and did not note anything unusual about the minor's hands. At the time of the examination, mother did not tell the doctor about the minor falling off the bed the day prior because she was not aware of any hand or arm injuries. She did, however, tell the doctor about the fall at some point thereafter.
The next morning, December 10, 2017, the minor was quiet and refused to use his hand. When mother went to breakfast with the minor and M.R., she noticed the minor was holding his right arm and supporting it with his left hand. At no time prior thereto had the minor refused to use his hand or complained of pain in his hand, even after the Zumba incident. That evening, mother noticed the minor's hand was swollen and purple. She asked M.R. and M.R.'s roommate to look at the minor's hand and then decided to take the minor to the emergency room.
At the emergency room, doctors X-rayed the minor's arm, determined it was broken, and placed it in a cast. Mother told staff the minor had fallen off the bed. The doctors recommended Tylenol with Motrin and told mother someone would contact her to arrange for another appointment. The following morning, mother was contacted by CPS and the police. During an interview at mother's home, mother explained that the minor had fallen off the bed. At the direction of CPS, mother, who was accompanied by two social workers from CPS, took the minor to the hospital for a body scan and X-rays of his hands and arm. Mother was very surprised to learn that the minor's hands were "broke." When asked how the injury occurred, she had no answer.
Mother met with Dr. Vickers, who asked about the bruising on the minor's legs. Mother explained the minor was very active. With regard to the minor's broken arm, mother told Dr. Vickers the minor had fallen off the bed. Mother also spoke with the social workers who kept asking how the minor's injuries occurred. Mother explained the minor threw tantrums and pulled out his own hair. She cut the minor's hair short to prevent him from hurting himself.
Mother denied telling the emergency room staff that M.R. told her the minor fell off the bed. She also denied telling Dr. Vickers that the minor had not had any significant falls and did not fall off the bed within the last few days. She testified she told social worker Palmer that she found the minor sitting on the floor when she came out of the shower and assumed he had fallen off the bed even though he was not crying. When asked whether she found the minor on the floor or M.R. told her the minor fell of the bed, mother testified she found the minor on the floor and denied M.R. ever told her the minor had fallen off the bed. She stated that M.R. knew the minor had fallen off the bed because mother told him when they were at dinner together.
Mother testified it was not until after the minor was removed and mother attended the first court hearing that M.V.S. reminded her about the incident at the Zumba club. Although she never called Dr. Vickers to tell her about the incident, she discussed it with the CPS social worker during her first visit with the minor.
When asked if she recalled doing anything that might have caused the bruises on the minor's legs, mother recalled an incident at the pumpkin patch when the minor attempted to kick mother and grab her hair and glasses and mother held him tightly to avoid getting hit or hurt, something she had done before.
Mother testified she always took the minor to the doctor if she felt he was ill or in need of medical attention, and she sought out speech and possible occupational therapy for the minor. She noted that, when the minor was with her, he regularly threw tantrums, cried, and hugged her tightly. With regard to the minor's broken tooth, mother testified she was in the kitchen and saw minor fall and hit his chin. She took him to the emergency room where he was seen for dehydration and prescribed medication. The doctor asked whether the minor had fallen because he had a little bruise on his chin. When she went to the pharmacy to pick up the medication, the minor put his hand in his mouth and pulled out a piece of his tooth.
Mother denied ever intentionally hurting the minor, and denied ever spanking him, hitting him in the face, or throwing him down forcefully. She had seen the minor's father throw the minor down, but denied ever seeing anyone else do those things or being aware of anyone intentionally hurting the minor. She testified that, if she were made aware of someone hurting the minor, she would get away from that person much like she got away from minor's father in Texas. She confirmed she was still in a relationship with M.R. and affirmed her belief that he was not a risk to the minor.
At the conclusion of the evidentiary portion of the hearing, the Agency argued it was proceeding under the section 355.1 presumption that the minor is a person subject to jurisdiction of the juvenile court based on competent professional evidence that the minor's injuries were of a nature as would ordinarily not be sustained except as the result of the unreasonable or neglectful acts or omissions of either mother or M.R. In particular, the Agency argued it had established prima facie evidence the minor was subject to dependency jurisdiction based on the evidence of the minor's injuries, Dr. Vickers's opinions regarding those injuries, mother's inconsistent explanations as to how those injuries occurred, and the fact that the minor's behavior had become increasingly worse since moving from Texas to California. Minor's counsel concurred.
Mother's counsel argued mother had given honest testimony regarding what happened to the minor, she had no reason to cover for M.R., whose history with other children was irrelevant because he had no criminal history, Dr. Vickers was equivocal, and mother routinely took the minor to the emergency room or clinic whenever there was a problem. March 21 , 2018 Ruling
The juvenile court concluded it lacked jurisdiction and dismissed the dependency petition. In so ruling, the court noted there was no credible evidence to demonstrate M.R. inflicted the minor's injuries; mother, M.R.'s roommate, and M.R.'s son provided testimony of M.R.'s otherwise nonviolent character; mother moved from Texas to California to escape domestic violence by the minor's father; she took initiative to enroll the minor in speech therapy and took him to the emergency room for all of his various injuries; mother and the minor had a strong bond; medical staff said mother was extremely attentive to the minor; M.V.S. said mother was overly attentive to the minor; and M.R.'s roommate said mother parented the minor in a normal way. The court also noted Dr. Vickers's testimony was equivocal despite her opinion that the injuries were the result of abuse, and felt her testimony was "not overly compelling, as to this being a child abuse." In that regard, the court added: "Dr. Vickers would have to admit that she really doesn't know how those hand injuries happened, she's speculating, and the mother offered an explanation that was credible for the hand injuries. [¶] We don't know how the wrist was broken. The mother offered an explanation for that. It's a reasonable explanation. She didn't know at the time how it happened." The court found mother's testimony to be credible and was persuaded by the letters submitted in support of her character. In contrast, the court found Detective Yen's testimony was based on very little of his own personal knowledge and therefore not to be given much weight. Finally, the court found there was no evidence that mother was violent or would have caused the minor's injuries intentionally, or that she was covering up for M.R.
Regarding application of section 355.1, the court stated: "As to whether it's [section] 355.1, whether the prima facia [sic] basis is established or not, the Court finds it's been sufficiently rebutted by the mother and I don't find -- it is the Court's job, to review the medical evidence. It's the Court's job, to be a neutral Magistrate. And you have a lot of force against this mother here. You have the social welfare agency, minor's counsel, you have Dr. Vickers, you have these stereotype prejudices that are coming into play, you have history of a 2005 incident, and there is a tremendous amount of force being pressed against this mother, and that is the role of the Court to remain neutral and to assess all this and to make reasonable inferences." Noting the Agency's burden of proof was by a preponderance of evidence, the court stated, "Really, what we have here is a failure of proof to get above the preponderance of evidence. The Court finds that the government has not met their burden as to [section] 300[, subdivision (b)]." March 22 , 2018 Ex Parte Request for Clarification of Ruling
On March 22, 2018, the Agency requested that the juvenile court clarify its March 21, 2018 ruling regarding the request for a stay of its order dismissing dependency jurisdiction and for expedited transcripts for the Agency's writ petition. The Agency argued, and minor's counsel agreed, that a stay of the court's order was proper and necessary to allow immediate appellate review of the juvenile court's orders. Mother's counsel did not object to expedited preparation of the transcripts but did object to a stay of the court's order as "a complete injustice," noting the Agency had "refused to return the child to the mother" for no reason and the court's order required immediate reunification of mother and the minor. The court denied the Agency's request. As for the likelihood of prevailing, the court found in part as follows:
"The Court applied the proper standards in this case, and the burdens of proof and the standards of proof under [section] 300 of the Welfare and Institutions Code, and [section] 355.1.
"The difference between the Government's position, joined by minor's counsel, and the Court is really credibility. It's a credibility determination in how inferences were drawn.
"The Court found the mother to be credible; the Court found the daughter who testified to be credible; the Court found the roommate who came into court to be credible; the Court found the nutrition club owner to be credible. The Court also relied on the letters in support of the mother that were attached to the report; credible.
"The Court found Dr. Vickers' opinion to be hesitant, equivocal, uncertain, and unconvincing. For example, the arm injury, she testified quite clearly, could be caused by an accidental fall. The mother explained when a fall occurred and the circumstances. There was no evidence of any kind that there was an arm twist or a bend.
"Now, the Agency is allowed to prove that by circumstances, certainly, and so, you know, we take that into account. But that arm injury, which is the one that triggered all the investigation, is not one subject to [section] 355.1. It was -- it can easily be explained by an accidental event.
"Next, the hand injury could have been caused by a stomping on the hands. Mom produced credible evidence that the kid's hand was stomped on. Now, the doctor disagreed with the amount of force and I'll address that in a moment, but there was no evidence that the hand was ever bent backwards.
"Again, does the Agency have to produce that? Not necessarily, but the Court's noting I've got an explanation, and then I'm waiting, and I don't have any counter evidence other than circumstances.
"So then you look at - -you look at reasonable inferences that are drawn. The Court drew reasonable inferences from the evidence. The mother's acting in the child's best interests; the mother escaped domestic violence in Texas; the mother enrolled the child, contacted a speech therapist, that would lead to occupational therapy as well; the mother took the child to the health clinic, to the ER room as needed; the mother was attentive and loving. All of that was before the Court.
"The Government case turned a lot on whether the mother shifted her story. I heard that from Detective Yen and others. That argument was overplayed and unconvincing to the trial court.
"The mother took the child to the hospital; the mother did not actually see the fall that caused the injury; the mother reflected upon it after being questioned and after learning this, and she recalled an unusual situation that happened on Friday night before.
"And if she were actually lying, why not say she actually saw the fall, she saw the boy crying? And she didn't -- and the fall happened on Saturday night or Sunday morning?
"So there's a lot of logic that doesn't fit with the theory that was presented to the Court, and there's a lot of logic that actually supports the mother's case. She talked to her boyfriend, she talked to her roommate, they're trying to figure out why does this kid got a swelled hand, and so they're all working on that. Okay.
"She's not an expert witness in a court deposition. The precision of her statements to the various parties, given these circumstances, she was well within the normal confines of what a mother under those circumstances would say.
"And by all accounts, she was a loving mother, and making her best efforts. She was very attentive to the child. So those are many of the reasonable inferences that were drawn. [¶] . . . [¶]
"The doctor also indicated that -- that it was unusual -- in support of the mother -- that it was unusual for a perpetrator of child abuse to actually bring the child to the hospital, and that that was actually conduct of an innocent parent. So those are all observations and matters that the Court relied upon.
"Moreover, the Agency and the minor's counsel relied on the evidence of the caretaker. Well, it was great evidence. It tells me they have a wonderful foster family that's welcoming and nurturing, and that's to be celebrated and I give that all the credit, and it was helpful. It certainly doesn't prove child abuse.
"The mother had already conceded that the child was stressed, that the child pulled hair and had tantrums. She explained the domestic violence in Texas, she explained the sudden move to California, and she explained the enrollment in therapy. So, you know, that's how that caretaker information is viewed.
"Now, we talk about Dr. Vickers, and the science of opinions is necessarily imprecise. Dr. Vickers did not lay a foundation as to how that older boy, who we know stomped on the child's hand, was not sufficient force. She didn't perform any force analysis. And I don't say that to be critical, but rather to point out that her opinion is generalized and not precise.
"In many cases, you would have a complete force analysis, and you get that all the time in civil cases, in personal-injury actions. You get somebody then that actually tells you what the force is, and how it breaks bones, and what kind of injury it applies. We didn't get any of that, it was just conclusionary.
"The hair pulling, the mother explained the boy pulls the hair out. And what did the mother do? She cut the boy's hair. Again, another piece of evidence that supports the mother actually acting in the best interests of the child.
"Bruises and grab marks, they weren't severe, the mother explained how that happened. Dr. Vickers didn't make a whole lot of those.
"And if you look at the sequence of Dr. Vickers' reports -- it's very important to go one by one through those -- she was hesitant to find abuse. She kept wanting to see results of the nonacute, healing metacarpal f[r]actures, and so she kept putting it off and putting it off until she can see those results.
"And then when she writes her report, it's a little unclear to the Court whether she really had that information about the boy stomping on the kid's hand and his reaction, that the child in this case, the minor, cried and reacted.
"And then we did some argument that the child got up, and then swatted a DVD player and so forth; totally consistent with being upset, throwing a tantrum and being outraged, and so -- anyway, that's how the Court viewed it.
"She really -- Dr. Vickers does not know how severe the injuries were. She's trying to piece it all together, and as I indicated, the testimony was vague. She was not there to see whether the boy's reaction was consistent with the force necessary to break the metacarpal bones.
"And in any event, a boy stomping on the other hands [verbatim] is not child abuse. It could be parental neglect if the mother didn't take the proper precautions, but we don't have any of that here with respect to the boy stomping on the child's hand.
"So then you get to [section] 355.1. Well, the trial court did not conclude that it applied. I assumed that it applied, but I didn't actually make that ruling. Instead, I found that even if it did apply, the mother had met the burden of production of evidence to defeat a claim of child abuse.
"The reason that [section] 355.1 is not in play is because the Court did not find Dr. Vickers' testimony convincing. It was vague and conclusory, yet hesitant and uncertain.
"Moreover, she expressly stated that the type of injuries were of a nature of accident. She said that about the hand and arm -- excuse me, the arm injury. And so that's why when the Agency tried to apply [section] 355.1, it focused on the metacarpal.
"But you have to remember, Dr. Vickers' expert opinion, it depended not just on the metacarpal in isolation, it depended on everything, the totality of circumstances.
"So she can't get to [section] 355.1, unless every injury alleged is the type that would not occur but for child abuse. So the fact that she couldn't independently make those judgments and those opinions is critical here, so -- and that's one of the problems with it.
"In the end, though, the Court did apply [section] 355.1 -- argumentatively, I allowed that -- and then I said well, the mother's met her burden of production. And if you understand the law there, at all times, the Agency holds the burden of persuasion. It's a burden shifting with respect to evidence, and the mother met that. So that's how that played out.
"The Court never received any legal brief, either then or now, regarding any of the legal issues in this case, and it really comes down to a factual matter and how you interpret the evidence.
"And so when you discuss the likelihood of prevailing on appeal, it's low. The Court is well within its discretion to decide what the facts are, to determine credibility.
"So you do have a right to appeal, it is being made in good faith. As to the child, well, the Court's order is that the Court doesn't have jurisdiction. And the child is young, and the child should be returned to the mother.
"And it's a very strong case not to issue a stay, in fact. The Court didn't have jurisdiction over the matter. This isn't a situation where the Court had jurisdiction, and we exercised reviews and then made decisions to change placement, or to return the child to the parent. Here, the Court ruled that it does not have jurisdiction." (Italics added.)
The Agency argued section 355.1 did not require that every injury must trigger the presumption, noting Dr. Vickers explained that the hand fractures could not have occurred as mother described. The court reiterated its opinion that Dr. Vickers was "hesitant the entire testimony" and "just very reluctant" until she "finally says oh yeah, by a medical certainty." The court added that it was "absolutely free to dismiss the expert opinion" but could not do so "without rational explanation" and without substituting its own expert opinion, noting, "I've done none of that; I've relied on the factual record." The court also stated Detective Yen simply repeated what Dr. Vickers said and was "not a real impressive expert on these matters in a civil case."
Minor's counsel argued section 355.1 did not require that mother or M.R. be identified specifically as the perpetrator of the alleged abuse, and the court agreed. The Agency attempted to clarify its position that, even if the court accepted mother's explanations, Dr. Vickers rejected those explanations, to which the court responded: "Well, the Court doesn't turn child abuse cases over to experts, okay? What we do is we take -- we value the expert's opinion to the extent they're credible, based on the foundational facts that they have. And so it's the Court's job -- that's why you have to emphasize all the testimony that the Court heard. [¶] And I can't reject Dr. Vickers without a rational basis to do so, and I've explained how that is. But we do not turn these cases over to an expert or a police officer, whatever, we take their evidence and we balance it with all the other facts. [¶] And I want to emphasize, in no way am I just dismissing and substituting my own opinion here. I'm basing it on the facts that we have, and that's really important."
At the conclusion of the hearing, the court denied the request for stay, but granted the Agency's request for expedited transcripts.
Minor's counsel filed a timely notice of appeal.
DISCUSSION
I
Sufficient evidence supports the juvenile court's jurisdictional finding that the minor's injuries were not the result of abuse.
The minor contends mother failed to overcome the presumption that he was subject to the jurisdiction of the juvenile court pursuant to section 355.1. He claims mother did not sufficiently rebut the prima facie evidence that the injuries to his hands were not of a nature as would ordinarily not be sustained except as the result of the unreasonable or neglectful acts or omissions of either mother or another person in the household.
Mother argues the juvenile court found the section 355.1 presumption did not apply and instead found there was a failure of proof by the Agency as to the allegations in the dependency petition. She further argues that where, as here, "the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law." (In re I.W. (2009) 180 Cal.App.4th 1517, 1528.) In any event, she argues, even if section 355.1 applied, there was sufficient evidence to support the juvenile court's findings that she overcame the presumption and the court's conclusion that it had no basis for dependency jurisdiction.
The minor responds that, at the conclusion of the March 21, 2018 contested jurisdiction hearing, the juvenile court did in fact apply the section 355.1 presumption, but found mother sufficiently rebutted it, dismissing the petition on those grounds. Thus, the proper standard of review is sufficiency of the evidence.
Section 355.1 provides that, "[w]here 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." (§ 355.1, subd. (a).)
"[N]othing in the plain language of section 355.1 prohibits the juvenile court from dismissing a section 300 petition when it finds that the allegations of the petition have not been proven by a preponderance of the evidence. Section 355.1 merely creates a presumption affecting the burden of producing evidence." (In re Larissa W. (1991) 227 Cal.App.3d 124, 132.)
The presumption only survives until there is rebuttal evidence submitted. (In re Esmeralda B. (1992) 11 Cal.App.4th 1036, 1041.) In other words, " '[t]he 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 the existence or nonexistence of the presumed fact from the evidence and without regard to the presumption.' (Evid. Code, § 604; see In re James B. (1985) 166 Cal.App.3d 934, 937 [discussing former § 355.2, § 355.1's predecessor].) Section 355.1, subdivision (a) 'shifts to the parents the obligation of raising an issue as to the actual cause of the injury or the fitness of the home.' (In re James B., supra, at p. 937, fn. 2, italics added.) If the parents raise rebuttal evidence, the Agency maintains the burden of proving the alleged facts. (Ibid.)" (In re A.S. (2011) 202 Cal.App.4th 237, 242-243.)
"When section 355.1, subdivision (a) is inapplicable . . . , the Agency must show by a preponderance of the evidence that the child is a person described by section 300. (§ 355, subd. (a).)" (In re A.S., supra, 202 Cal.App.4th at p. 244.)
We review the juvenile court's jurisdictional findings for substantial evidence. (In re I.J. (2013) 56 Cal.4th 766, 773.) Under this standard, we review the record to determine whether there is any substantial evidence, contradicted or uncontradicted, to support the juvenile court's findings and conclusions, and we view the record in the light most favorable to the court's determinations and draw all reasonable inferences from the evidence to support the determinations. (Ibid.) 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. (Ibid.) That is to say, " '[i]t is the trial court's role to assess the credibility of the various witnesses, to weigh the evidence to resolve the conflicts in the evidence. We have no power to judge the effect or value of the evidence, to weigh the evidence, to consider the credibility of witnesses or to resolve conflicts in the evidence or the reasonable inferences which may be drawn from that evidence. [Citation.] Under the substantial evidence rule, we must accept the evidence most favorable to the order as true and discard the unfavorable evidence as not having sufficient verity to be accepted by the trier of fact.' [Citation.]" (In re A.S., supra, 202 Cal.App.4th at p. 244.) Thus, the pertinent inquiry is whether substantial evidence supports the finding, not whether a contrary finding might have been made. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)
Here, the juvenile court made conflicting statements regarding whether or not it was applying section 355.1, including statements such as "Well, the trial court did not conclude that it [section 355.1] applied," "[i]n the end, though, the Court did apply [section] 355.1 . . . and then I said well, the mother's met her burden of production," and "Well, I applied [section] 355.1, so there." Assuming the court did apply section 355.1, we conclude there was sufficient evidence to support the court's finding that mother overcame the presumption of dependency jurisdiction. We explain.
The Agency's stipulated expert in forensic child abuse, Dr. Vickers, opined that while the cause of some of the minor's injuries taken individually may have been accidental, it was more likely than not that all of the injuries and findings taken together were caused by abuse. Dr. Vickers based her opinion on, among other things, her physical examination of the minor, the X-rays taken of the minor's injuries, mother's initial failure to identify any trauma other than the fact that the minor fell frequently, the absence of any explanation by mother at the time of the examination of possible accidental causes for the injuries, the nature and extent of the minor's various injuries, and the fact that the minor was not particularly susceptible to fractures or bruising.
Mother rebutted Dr. Vickers's testimony by presenting evidence in the form of her own testimony and the testimony of other witnesses to explain the minor's injuries. First, M.V.S. testified her 90-pound child accidentally stepped on the minor's hands while playing at the Zumba studio, causing the minor to cry, become upset, throw things in the studio, and whine until mother took him home. Next, M.R.'s roommate testified he lived with mother, the minor, and M.R., and observed the minor's swollen arm. He was told by mother and M.R. that the minor had fallen off the bed. The minor's half sibling, S.E., testified she witnessed mother holding the minor tightly to prevent him from kicking her or hurting himself, but she never saw mother do anything to hurt the minor.
Mother testified she left an abusive relationship in Texas and moved to California to live with M.R., whom she had known since childhood and whom she believed was not a risk to the minor. She took the minor to the emergency room on several occasions for various injuries including a swollen and bruised testicle, a scratched cornea, a broken arm, and broken hands. Mother explained the broken arm was the result of an accidental fall off the bed while mother was in the shower. With regard to the injuries to the minor's hands, mother explained she was reminded by M.V.S. about the incident in the Zumba club when M.V.S.'s son accidentally stepped on the minor's hands. Mother also explained the minor pulled out his own hair, suffered bruises on his legs when she held him tightly during tantrums to prevent him from hurting himself or her, and broke his tooth when he fell in the kitchen and hit his chin.
Despite Dr. Vickers's conclusion of abuse, she nonetheless conceded the bruises and marks on the minor's legs could have been caused by mother holding the minor so he would not kick her, the forearm fracture was often the result of an accidental fall on an outstretched arm, stress could have caused the minor to pull his own hair out, and the broken tooth and scratched cornea were fairly common accidental injuries. While Dr. Vickers rejected mother's explanation that the minor's hand injuries were caused by a 90-pound child stepping on the minor's hands, she testified the type of hand injuries suffered by the minor could have been accidental as the result of a "forceful crush injury" such as slamming both hands in a car door or bending the hands backward. It was also her opinion that the hand injuries could have been caused by a 90-pound child in boots only if the child stomped on, or jumped off of something and landed on, the minor's hands.
The juvenile court found mother to be credible and her explanation of how the minor's injuries occurred to be reasonable. The court also expressly found the testimony of S.E., M.V.S., and M.R.'s roommate to be credible and was persuaded by the character letters received in support of mother. The court noted mother's credibility was reinforced by the fact that she acted in the minor's best interests, she escaped domestic violence in Texas, she enrolled the minor in speech therapy, she took the minor to the emergency room as needed, and she was attentive and loving. Finally, the court found there was no evidence that mother was violent, that she caused the minor's injuries intentionally, or that she was covering up for M.R.
In contrast, the court found Dr. Vickers's opinions to be "hesitant, equivocal, uncertain, and unconvincing," noting she testified clearly that the cause of the arm injury could have been accidental and she conceded it would be unusual for a perpetrator to bring the injured victim to the hospital. The court further found Dr. Vickers failed to lay a foundation to support her opinion regarding the force required for a 90-pound child to break another child's hands by stomping on them, noting Dr. Vickers did not know how severe the minor's hand injuries were and her testimony in that regard was vague. Finally, the court stated it did not find Dr. Vickers's testimony convincing, due in part because she based her opinion of abuse on the totality of circumstances but expressly conceded some of the injuries could have been accidental.
The minor contends mother's explanation for the hand injuries in particular was insufficient to overcome the section 355.1 presumption because the evidence "permits but one conclusion" that the minor suffered serious physical abuse. In support of the claim, the minor relies on Dr. Vickers's testimony, as discussed above, that the explanation given by mother—the incident at the Zumba studio when M.V.S.'s child accidentally stepped on the minor's hands—would not have been sufficient force to cause the type of injuries suffered by the minor. Acknowledging that Dr. Vickers allowed that mother's explanation was theoretically "possible" but "unlikely," the minor contends that, even assuming mother's explanation were truthful, the minor would have suffered immediate and intense pain and swelling, would have had limited use of his hands for days if not weeks, and would have been unable to use his hands without pain, all symptoms that would have alerted mother and everyone else at the studio that the minor was seriously injured. The minor notes the fact that none of these symptoms were observed and the episode was so unremarkable that mother forgot about it until M.V.S. reminded her of it sometime after the minor was removed from her care. The minor asserts that these facts make mother's explanation "not just implausible, it is medically fantastical and patently false."
As the juvenile court noted, the difference between the Agency's and minor's positions and the court's assessment of the evidence was "a credibility determination in how inferences were drawn." The court found mother credible and found Dr. Vickers unconvincing and "not overly compelling" as to her conclusion that the minor's injuries were the result of abuse. The court also found there was no evidence mother was violent or covering for M.R., and no credible evidence that M.R. inflicted the minor's injuries. Inasmuch as the minor is urging us to take our own view of the evidence or assess the credibility of Dr. Vickers, mother, or any of the other witnesses, we decline to do so. As we stated above, " '[i]t is the trial court's role to assess the credibility of the various witnesses, to weigh the evidence to resolve the conflicts in the evidence. We have no power to judge the effect or value of the evidence, to weigh the evidence, to consider the credibility of witnesses or to resolve conflicts in the evidence or the reasonable inferences which may be drawn from that evidence. [Citation.]' " (In re A.S., supra, 202 Cal.App.4th at p. 244.)
The juvenile court's finding that it had no basis for dependency jurisdiction is supported by substantial evidence.
II
Sufficient evidence supports the juvenile court's jurisdictional finding that the minor was not at risk of serious physical harm.
The minor contends there was insufficient evidence to support the juvenile court's jurisdictional finding that the minor was not at risk of serious physical harm as a result of mother's failure or inability to supervise and protect him. The minor asserts that, even assuming mother's explanations for the numerous injuries suffered by the minor were true, the evidence demonstrates a "major underlying breakdown in the relationship and bond between mother and [the minor]" and, as a matter of law, there was substantial evidence to demonstrate the minor had suffered, and was at immediate risk of suffering, serious physical harm pursuant to section 300, subdivision (b)(1). The claim is untenable.
The juvenile court may take dependency jurisdiction over a child only if the court finds the child to be a person described by one or more of the section 300 subdivisions. A child falls within the jurisdiction of the juvenile court under section 300, subdivision (b)(1) if "[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child, or the willful or negligent failure of the child's parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left . . . ." (§ 300, subd. (b)(1).)
"The statutory definition consists of three elements: (1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) 'serious physical harm or illness' to the minor, or a 'substantial risk' of such harm or illness." (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.) " 'In determining whether the child is in present need of the juvenile court's protection, the court may consider past events.' " (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1135, disapproved on another ground in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.)
The minor asserts there was a risk of serious physical harm due to his "defective" and "unhealthy and abnormal relationship" with mother, as evidenced by the minor's atypical behaviors displayed when he was with mother but not when he was in foster care. But that is not the test. The question is not whether the child had an unhealthy or abnormal relationship with mother or suffered injuries while in mother's care but whether those injuries were the result of the abuse or neglect of mother or someone known to mother. As discussed at length above, the juvenile court determined mother sufficiently rebutted the presumption that the minor's injuries were the result of abuse or neglect by either mother or M.R. We concluded there was sufficient evidence to support the court's determination. Therefore, the first two of the three elements—neglectful conduct by the parent and causation—were not met. (In re Rocco M., supra, 1 Cal.App.4th at p. 820.)
We conclude there is substantial evidence in the record to support the juvenile court's jurisdictional finding that the minor was not at risk of serious physical harm. Accordingly, on this record, we find no error.
DISPOSITION
The juvenile court's order is affirmed.
RAYE, P. J. We concur: DUARTE, J. RENNER, J.