Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. CK77884, Marguerite D. Downing, Judge.
Lori A. Fields, under appointment by the Court of Appeal, for Objector and Appellant L.Z.
Amy Z. Tobin, under appointment by the Court of Appeal, for Objector and Appellant O.M.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Aileen Wong, Deputy County Counsel, for Plaintiff and Respondent.
MOSK, J.
INTRODUCTION
Two-month-old J.M. came to the attention of the Los Angeles County Department of Children and Family Services (Department) because she was found to have a medical condition of chronic subdural hematomas. Her parents L.Z. and O.M. had no explanation as to how the injuries occurred. An expert concluded that birth trauma was a possible explanation for the injuries. Others said it was unlikely. At the time of her injuries, she was under the exclusive care of the parents. J.M’s 14-month-old sister, L.C., whose father is J.C., had no evidence of injury.
The Department filed a petition, and the juvenile court assumed jurisdiction over the two children. The juvenile court’s assumption of jurisdiction was based on the sustaining of the count under Welfare and Institutions Codesection 300, subdivision (b). When the juvenile court sustained the section 300, subdivision (b) count, it found that J.M.’s injuries were consistent with either inflicted trauma or birth trauma and that the parents’ failure to explain the injuries endangered J.M.’s physical and emotional health and created a detrimental home environment. Furthermore, the juvenile court dismissed the corresponding counts under section 300, subdivisions (a), (e), and (j). The juvenile court sustained section 300, subdivision (g) count with respect to L.C. on the basis that her father failed to provide for her and his whereabouts were unknown. We affirm the juvenile court’s order under section 300, subdivision (g). We reverse the juvenile court’s remaining orders and, for the reasons set forth below, remand the matter for the juvenile court to clarify its findings and make orders consistent therewith.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Section 300, subdivision (b) provides, in part, that a child comes within the jurisdiction of the juvenile court if the child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of the parent to adequately supervise or protect the child.
Section 300, subdivision (a) provides that a child comes within the jurisdiction of the juvenile court if the child has suffered or there is substantial risk that the child will suffer, serious physical harm inflicted nonaccidentally upon the child by the parent.
Section 300, subdivision (g) provides that a child comes within the jurisdiction of the juvenile court if the child has been left without support or a parent is incarcerated and cannot arrange for the care of the child.
BACKGROUND
On June 13, 2009, the Department received a referral that two-month-old J.M. was an alleged victim of severe neglect/physical abuse by an unknown perpetrator, and her sibling was also at risk. The referral alleged that on June 12, 2009, J.M. was brought into the hospital by mother for a follow-up appointment that was recommended by J.M.’s regular physician. J.M.’s physician noticed that the circumference of J.M.’s head had recent abnormal growth. The caller stated that Dr. Lairize Fathi from the hospital’s emergency unit opined that J.M.’s medical condition was “highly suspicious, ” as mother had reported J.M. did not fall, was not dropped, and did not have an accident that would cause the condition. Dr. Fathi said that further medical examinations were needed to better determine if J.M’s medical condition was a nonaccidental injury. The referral reported that J.M. would be in the hospital for a long time because her condition was serious and might require surgery. The parents had another 14-month-old child at home. Mother informed the caller that she and father were the only adults who took care of the children.
On January 13, 2009, the social worker interviewed mother, who stated that one month ago she noticed J.M. had a small bump on the right side of her head. Mother was not very concerned because the bump was very small and the baby was not in distress. In time J.M’s bump grew larger, and after five days mother took the child to Dr. Jenny Pan. Dr. Pan examined the baby and referred her to Long Beach Memorial Hospital for further examination as the head growth was abnormal. Mother brought J.M. to the emergency room. Mother denied that J.M. fell or was physically abused. Mother stated that her family shared the apartment with an older lady, A.A., but A.A. did not watch the children.
Mother informed the social worker that the baby slept in her crib and denied that the baby slept with the parents in the same bed. Mother also denied that the children slept together in the same bed. Mother said she disciplines the children by redirection and putting them on time out. Mother stated she usually was calm with the children and tried to show them love, care, and affection. Mother denied ever getting frustrated with the children even though she was a young mother.
Father told the social worker that he had no knowledge of how J.M. sustained her head injury. He said he worked five days a week, Monday through Friday from approximately 6:30 a.m. to 3:30 p.m. He and mother were careful with the children because they were little. Father reported that J.M. slept in between him and mother on the mattress on the floor while L.C. slept in her toddler bed. Father denied that J.M. had fallen or was hit by any object accidentally. Father stated mother was very caring and patient. During the interview, father was very emotional and did not say much, and, most of the time, he placed his hands on his head and sobbed.
The social worker reported when she visited the family residence, she observed J.M.’s crib was dismantled and not in use. The social worker also observed J.M.’s head to be slightly bigger than normal for her age, and the social worker felt a bump on the right side of J.M.’s head.
According to the hospital, J.M. had a normal birth without complications. J.M.’s MRI (Magnetic Resonance Imaging) findings were that nonaccidental trauma must be excluded. The bone skeletal survey indicated no evidence of acute or healing injury, and there was an indication of intracranial fluid. The baby’s ophthalmology exam reported no ocular evidence of nonaccidental trauma. Due to the severity of J.M.’s injuries and an unknown cause of the injuries, the social worker placed a hospital hold on the child. The social worker observed that L.C. did not have any visible marks or bruises. She appeared to be growing well, and her height and weight seemed appropriate.
The social worker spoke with the family’s neighbor Y.R. Y.R. said she knew father for about three years, and he was a very good father. Father was dedicated and worked to support the family. Y.R. stated even though L.C. was not father’s child, father assumed the role of her parent. Y.R. did not believe that the parents would intentionally hurt the children. Y.R. said she knew father longer than she knew mother, as mother only moved into the apartment a month ago. Y.R. informed the social worker that the children basically were cared for by the parents and mostly by mother, as she was a stay-at-home mother. Y.R. never observed the parents lose their temper with the children or do anything that jeopardized the children’s safety.
On June 14, 2009, Nurse Becky Ferris of Long Beach Memorial Hospital informed the social worker that J.M.’s skeletal survey indicated no evidence of acute or healing injuries. Nurse Ferris said the hospital’s goal was to rule out accidental and nonaccidental trauma.
On June 15, 2009, Nurse Amanda Feigerle reported that J.M. was stable and the parents had been calling to find out about the progress of treatment. Later that afternoon, Dr. Rachael Zweige, J.M.’s attending pediatrician at Long Beach Memorial Hospital, stated that the medical team caring for J.M. made a final decision that J.M. probably was born with her medical condition. The MRI, ophthalmology, and skeletal bone survey results all ruled out nonaccidental trauma. Based upon Dr. Zweige’s statement, the social worker lifted J.M.’s hospital hold and released L.C. to the parents.
On June 19, 2009, the social worker received a telephone call from Sonia Chavez, the hospital’s social worker. Ms. Chavez reported J.M. had surgery on June 18, 2009. The surgery was performed by Dr. Jahavery, a neurosurgeon. Dr. Jahavery concluded J.M.’s subdural hematoma was nonaccidental and caused by some type of unknown trauma. Ms. Chavez stated there was suspicion the trauma may be abuse. Nurse Christina reported that J.M. had surgery and during the surgery, Dr. Jahavery determined that the bleeds in the brain were definitely due to trauma. Further, Dr. Jahavery opined that birth trauma was highly unlikely. Originally, it was thought that J.M.’s injuries were from a cyst or tumor, but once Dr. Jahavery performed the surgery, he was able to determine that trauma was the cause of J.M.’s bleeds in the brain. The main concern was that the parents denied any trauma. Two bleeds in the brain were found, and they were of different ages. The social worker opined that since the parents denied accidental trauma, the only other cause would be inflicted trauma, which was highly suspicious of abuse.
On July 19, 2009, mother informed the social worker that she had no idea how J.M. sustained two injuries on her head. Mother denied that anyone hit J.M. and said the children were not physically disciplined. Mother stated the children were never left alone with father because whenever they needed to run errands, they went as a family. Mother said A.A. worked from 10:00 a.m. to 10:00 p.m. and was rarely home on the weekends. Mother adamantly denied that anyone hit J.M. or that J.M. was in any accident. Mother told the social worker that she loved her children and would not have taken J.M. to the hospital if she did not care about her child.
Father informed the social worker that he did not know how J.M. sustained two injuries to her head. Father denied that anyone had hit J.M. or that she had been in any accidents. Father said that the parents did not physically discipline the children. Mother told the social worker that she did not know the whereabouts of L.C.’s father. She reported he lived in Los Angeles, but she did not know his address and he did not participate in L.C.’s welfare.
The Department took the children into protective custody. L.C. was detained in a foster home. J.M. was on a hospital hold.
On June 21, 2009, Dr. Babitt, an intensivist at Long Beach Memorial Hospital, stated that in the absence of any retinal hemorrhage and a negative skeletal survey, he could not conclusively say it was a shaken baby injury. J.M.’s subdural hemorrhage was likely caused from trauma. Dr. Babitt stated there was a history of peripheral delivery, which meant that the head of the baby delivered before the doctor was ready to deliver. Dr. Babbitt’s report of “rapid, uncontrolled delivery of the head at birth before OB had his gloves on” came from the family. Dr. Babitt informed the social worker that the hospital was requesting the family’s medical records from St. Mary’s Hospital.
On June 23, 2009, Dr. Jahavery informed the social worker that the baby had a subdural hemorrhage, likely caused by a nonaccidental trauma to the head. Dr. Jahavery could not confirm if it was abuse.
On June 24, 2009, the Department filed a section 300 petition alleging the following under subdivisions (a), (b), (e), (g), and (j): (1) on or about June 12, 2009, two-month-old J.M. was medically examined and found to be suffering a detrimental condition consisting of two subdural hematomas in different stages of healing, the parents gave no explanation of the manner in which the child sustained the injuries, the injuries were consistent with inflicted trauma and child abuse, such injuries would not ordinarily occur except as a result of deliberate, unreasonable, and neglectful acts by the parents who had care, custody, and control of the child, which endangered the child’s physical and emotional health, safety, and well-being, creating a detrimental home environment and placing the child and L.C. at risk of physical and emotional harm, damage, and danger, and (2) J.C. failed to provide L.C. with the necessities of life, including food, clothing, shelter, and medical care, and his whereabouts were unknown, which endangered L.C.’s physical, and emotional health, safety, and well-being.
At the June 24, 2009, detention hearing, the juvenile court detained the children. The juvenile court set the matter for a Pre-Trial Resolution Conference (PRC). In the July 22, 2009, jurisdictional/disposition report, the social worker reported that on July 2, 2009, J.M. was discharged from Long Beach Memorial Hospital and placed in the same foster home as L.C.
The Department recommended no family reunification services to the parents. The Department reported that it referred J.M. to Harbor UCLA Child Crisis Center for a forensic examination, which would include a review of all the medical reports and x-ray films. Attached to the jurisdiction/dispositional report were J.M.’s medical records. The April 29, 2009, Northeast Community Clinic report indicated that there were no abnormal findings for J.M. In the June 11, 2009, Northeast Community Center report, it was noted that J.M. had a lump on the right side of her head and for the past two weeks mother noticed J.M.’s head was growing. The physician’s assistant noted that J.M. had a very large head that was more prominent on the sides and somewhat flat in the back. In the June 12, 2009, Well Child Report, mother informed the medical staff that J.M. cried a lot for the past two weeks. J.M. had a large head that was in the 95th percentile range. Mother stated that everyone on father’s side had a big head.
Dr. Ramin reported in his June 12, 2009, pediatric neurosurgery consultation that the parents noticed J.M. had increasing pressure on her fontanelle and swelling over the last 10 days. The parents denied any recent trauma, falls, or other events. The parents stated J.M. had been with them since birth and had never been with anyone else. Dr. Pan, J.M.’s pediatrician, noticed that J.M.’s head circumference jumped dramatically from the 5th percentile to over the 95th percentile so she obtained an ultrasound and CT scan. Dr. Ramin noted J.M.’s medical history was unremarkable as she had a full-term vaginal delivery with no complications. Dr. Ramin reported J.M.’s head circumference was 42.5 cm and her anterior fontanelle was bulging and pulsatile with her sutures split consistent with elevated intracranial pressure. Dr. Ramin stated that the medical staff had to rule out nonaccidental trauma. J.M.’s June 13, 2009, MRI of the brain report indicated that given the findings of prominent subdural hygromas along the bifrontal, parietal and temporal convexities, nonaccidental trauma must be excluded.
At the July 23, 2009, PRC hearing, the juvenile court granted the Department discretion to release the children to mother. The juvenile court set the matter for an adjudication hearing. In the first August 10, 2009, Information to Court Officer, the social worker reported that on July 30, 2009, J.M. was hospitalized at UCLA Medical Center due to a high grade fever. J.M. was scheduled for a forensic examination on August 3, 2009, but the examination was not completed because J.M. was discharged prior to completion. Dr. Egge agreed to finish the examination on August 6, 2009. Upon J.M.’s discharge from the hospital, the children were placed in the care of the paternal second cousin, L.A.
On August 6, 2009, mother informed the social worker that father was arrested due to a domestic dispute between the parents. Law enforcement responded and arrested father. Father was incarcerated at Men’s Central Jail in Los Angeles, California, and there was an immigration hold on him.
In the second August 10, 2009, Information to Court Officer, the social worker reported that on August 7, 2009, Dr. Egge of the UCLA Child Crisis Center indicated that J.M. had pustules on her head, which were tested, and the child was found to have a low grade fever. The child had a further examination on August 12, 2009, and her assessment was to be completed a week after an additional test. Dr. Egge commented that everyone was impressed by how massive J.M.’s bleed were.
On August 7, 2009, mother contacted the social worker to report that she attended father’s criminal hearing on August 7, 2009. He was sentenced to 30 days of jail time for domestic violence and was to be deported after serving his jail sentence.
In the September 15, 2009, interim review report, the social worker reported that the August 19, 2009, forensic examination conducted by Drs. Egge and Sara Stewart concluded that it seemed that “‘the likely explanation for the older subdural hemorrhage [was] trauma.’” Drs. Egge and Stewart opined that “[g]iven that [J.M.’s] head circumference remained in the 5th percentile at 18 days of age, it seems unlikely that the bleeding was due to birth-related trauma... and even though [J.M.’s] medical evaluation for evidence of other injury was negative, the possibility of inflicted trauma as an explanation for the subdural bleeding remains of significant concern.” In the November 23, 2009, Last Minute Information for the Court, the social worker reported that on November 13, 2009, mother completed a 10-week parenting class at the YWCA.
The jurisdiction and disposition hearing took place on November 24, 25, December 8, 21, 2009, and January 7, 12 and 19, 2010. In a delivered service log, the social worker reported that on June 24, 2009, the child’s caretaker, I.D., reported that on the first day L.C. was placed in the home, L.C. was a bit scared. I.D. noted L.C.’s stomach was a bit swollen. When I.D. changed L.C.’s diaper, L.C. was scared, sweating and crying. I.D. did not notice any marks on L.C.’s buttock, but I.D. thought L.C. had been spanked in the past, as L.C. was fearful. I.D. stated L.C. was doing well.
Mother had informed the social worker that at J.M.’s birth, the medical staff had her wait for 15 minutes before they would let her push, as the doctor was helping a patient next to her. Father said during J.M.’s birth, the medical staff had her breathing hard for 15 minutes and told her not to push, as the doctor was not ready. When the doctor came in the room, he put his right glove on and while he was putting on his second glove, the baby came out. A doctor told father that mother’s obstetrician may have grabbed or pulled the baby too hard, which could be the reason for J.M.’s injuries.
In the St. Mary Medical Center medical records, it was reported that there was the delivery complication of precipitous labor, which was less than three hours. In September 2009, mother told the social worker that father was soon to be deported to Guatamala. Mother was working at a restaurant and continued to visit the child twice weekly.
At the hearing, mother testified that she had not seen J.C. for a long time and he never provided support for his daughter L.C. Mother denied that J.M. was born without medical complications, and she had a normal birth. J.M.’s first checkup yielded normal examination results. Mother later testified that when J.M. first came out of mother, the doctor was not in the room and there was no one there to catch the baby. Father saw J.M.’s head. Mother did not know if J.M.’s head hit anything when she came out. Mother did not speak to any doctors about J.M.’s birth. Mother noticed J.M.’s head was big, but thought it was inherited from father, who had a big head.
When mother took J.M. for an examination, she mentioned J.M.’s big head and that it may be due to heredity. She also told Dr. Jahavery that J.M.’s big head was due to heredity. Mother denied it was stressful to care for L.C. while she was pregnant. Mother said it was not stressful to care for both children.
Mother stated that when J.M. was first taken home, she slept in a crib. Then mother said that J.M. slept between the parents on a mattress on the floor, as her crib had not arrived. J.M.’s crib did not arrive until she was one month old. Later, during cross-examination, mother said J.M. slept in a crib when they lived at a different address.
Mother said that father was arrested because he punched her in the stomach area. Mother reported father to the police. Mother did not sustain an injury from the punching. Mother admitted that father hit her before, but she did not know when. However, both children were already born when father hit her. Mother denied that the children were present when father hit her, as they were asleep in another room. Mother stated that she did not call the police the first time father hit her because they always argued. Mother said the first domestic violence incident involved grabbing each other. She called the police during the second domestic incident because she was really angry. Mother denied ever seeing father angry or violent with the children.
On January 7, 2010, the juvenile court designated Dr. Stewart as an expert for the purpose of the hearing, over mother’s objection. Dr. Stewart testified she was a board certified pediatrician since 1998 and was employed at UCLA Medical Center. Dr. Stewart said she and Dr. Egge reviewed medical records, reports, and radiologic studies. Dr. Stewart stated that her opinion in the letter of August 2009, continued to be her opinion. Dr. Stewart saw J.M. once. Dr. Stewart diagnosed J.M. with chronic subdural hematomas that would have existed for approximately four weeks. Dr. Stewart had no way of knowing if it had been six or eight weeks that the bulk of the blood was in J.M.’s skull. Dr. Stewart could not say with medical certainty that this was a nonaccidental traumatic injury.
Dr. Stewart said that it was unlikely that the birthing process caused J.M.’s condition. She said that the key point in her conclusion that the subdural hematomas were not birth-related was because when J.M. was born, her head circumference was in the fifth percentile. Further at 18 days of age, J.M.’s head circumference was in the fifth percentile. If the subdural hemorrhages had been due to birth, J.M. would have started to increase the size of her head disproportionately such that she would have plotted out at a higher percentile than at 18 days of age. Dr. Stewart noted a significant change in J.M.’s head circumference. Dr. Stewart stated that a change from the fifth to greater than 95th percentile was atypical. Dr. Stewart hypothesized that it was possible that a baby who had a normal head circumference in the fifth percentile at 18 days of age could have a process inside the skull that was abnormal, but the head circumference remained normal.
According to Dr. Stewart, a traumatic event was needed to cause the subdural hemorrhage. The force needed was analogous to a motor vehicle crash, where a head would whip back and forth. Dr. Stewart said that there may be other injuries to the child, associated with subdural bleeding, but there did not have to be as the other issues may have resolved. An example provided was retinal hemorrhages which resolved in four weeks. Dr. Stewart testified that she could not rule out inflicted trauma because it was as if she was “backed into” the inflicted trauma conclusion, as the medical team looked into birth-related trauma, bleeding disorders, anatomic, metabolic, and collagen abnormalities, which J.M. did not have. Therefore, the only conclusion was birth trauma or inflicted trauma. Dr. Stewart found that since birth trauma was unlikely, the likely diagnosis was inflicted trauma. Dr. Stewart said that she did not say that it could not be birth-related trauma. Dr. Stewart stated that if J.M.’s condition had been left untreated, it could have led to disfigurement and ultimately to cardiorespiratory arrest and then death.
Dr. Stewart said she was aware that J.M. had a precipitous delivery, which meant that it was a rapid delivery. Dr. Stewart said that even if the baby’s head came out rapidly and no one was there to catch it, it would not necessarily be enough trauma to the baby’s head to cause the hematoma. Dr. Stewart said that forceps and vacuums increased the likelihood of birth-related subdural hemorrhages.
The dependency investigator, Veronica Sandoval, testified that a second referral resulted from Dr. Jahavery’s report indicating that after he did exploratory surgery, it was found that the subdural bleeding was due to nonaccidental trauma. The investigator stated that there were no injuries or history of injuries prior to the Department’s referrals regarding L.C. The Department recommended no reunification services for the parents due to the severity of J.M.’s injury.
Dr. Charles Imbus, whose specialty was neurology with specialized training in child neurology, testified over the Department’s objections that he had explained that nothing he reviewed gave him any indication as to the causation of J.M.’s injury. He said that normal vaginal births could be associated with subdural hematomas. He said that a study showed about a 21 percent incidence of subdural hematomas when looked at over several weeks with an MRI. Dr. Imbus testified that the children in the study who had asymptomatic subdural hematomas did not require medical intervention, unlike J.M., who required medical intervention. Dr. Imbus was unable to find any evidence of a cause for the subdural hematoma, and opined, speculatively, that it may have occurred at birth. Dr. Imbus further opined that the subdural hematoma was more likely than not caused at birth because his records did not reflect any other event in J.M.’s life that he could point to to say when the hematoma occurred. He said he could not find any evidence to support any specific cause of the subdural hematomas. Dr. Imbus did not see any evidence of shaken baby syndrome in J.M.
At the close of Dr. Imbus’s testimony, the Department’s counsel moved to strike Dr. Imbus’s testimony on the ground that his opinion was based on speculation. The juvenile court denied the Department’s request.
During closing argument, the children’s counsel joined in part with the Department requesting that the section 300, subdivision (b) allegation be sustained, as there was expert testimony and evidence that J.M.’s injury did not occur as a result of a medical condition and the doctrine that the injury would not have occurred absent abuse or neglect. The children’s counsel requested that the allegations in section 300, subdivisions (a), (e), (g), and (j), be dismissed.
The juvenile court amended and sustained the following allegations in the section 300 petition under section 300, subdivisions (b) and (g): “(b)(1) [¶] On or about 06-12-09, two month old [J.M.] was medically examined and found to be suffering a detrimental condition consisting of two subdural hematomas in different stages of healing. The child’s mother, [L.Z.] and the child’s father, [O.M.] gave no explanation of the manner in which the child sustained the child’s injuries. The child’s injuries are consistent with either inflicted trauma or birth trauma. The failure to explain [J.M.’s] injuries on the part of the child’s parents endangers the child’s physical and emotional health, safety and well being and creates a detrimental home environment and places the child at risk of physical and emotional harm, damage, and danger. [¶]... [¶] (g)(1) [¶] The child [L.C.’s] father, [J.C.] has failed to provide the child with the necessities of life including food, clothing, shelter and medical care. The child’s father’s whereabouts are unknown. Such failure to provide for the child on the part of the father endangers the child’s physical and emotional health, safety and well-being and places the child at risk of physical and emotional harm and damage.”
The juvenile court dismissed the other allegations in the section 300 petition. The juvenile court stated that there was an injury, but the evidence did not disprove or prove birth trauma. The court did not see “enough evidence” of child abuse.
The juvenile court ordered that the children be placed in mother’s home under the Department supervision. The juvenile court ordered family preservation services for mother, including parent education, and for mother to comply with all medical appointments. The juvenile court denied reunification services for J.C., as he was found to be an alleged father. The juvenile court granted father monitored visits after he contacted the Department and set the matter for a review hearing on July 20, 2010.
On January 22, 2010, mother filed a Notice of Appeal. On January 28. 2010, father filed a Notice of Appeal. On March 18, 2010, the Department filed a Notice of Cross-Appeal.
DISCUSSION
I. The Findings Regarding Jurisdiction Over J.M. Under Section 300 Require
Remand
Mother contends that the juvenile court erred in finding that J.M. is a child described by section 300, subdivision (b) because the Department did not meet its burden of proving that mother was responsible for any neglectful or willful act that caused J.M.’s injuries or that there was a nexus between J.M.’s injuries and parental neglect or conduct. Mother bases her argument on the juvenile court’s finding that J.M.’s injuries “are consistent with either inflicted trauma or birth trauma.” On the same grounds, father argues the juvenile court erred in its section 300, subdivision (b) finding. Each parent joins the other parent’s argument.
In its cross-appeal, the Department contends that the juvenile court erred in amending the allegation in section 300, subdivision (b), to include birth trauma as one of the causations of J.M.’s injury; striking the language that the injury would not ordinarily occur except as a result of deliberate, unreasonable, and neglectful acts by the parent; and in dismissing the allegations under section 300, subdivisions (a), (e), and (j). According to the Department, the evidence demonstrated that J.M. sustained inflicted trauma that would not have occurred but for abuse or the neglectful acts of the parents. In light of its asserted errors, the Department contends that the juvenile court ’s reunification plan was insufficient and that the reunification plan also should be remanded so that the juvenile court may reformulate the plan.
A. Standard of Review
“We review questions of law de novo and factual findings for substantial evidence. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 800-801; Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632.) ‘In juvenile cases, as in other areas of the law, the power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the verdict, if possible. Where there is more than one inference which can reasonably be deduced from the facts, the appellate court is without power to substitute its deductions for those of the trier of fact.’ (In re Katrina C. (1988) 201 Cal.App.3d 540, 547.)” (In re David H. (2008) 165 Cal.App.4th 1626, 1633.)
B. Relevant Principles
Under section 300, subdivision (a), jurisdiction over a child is appropriate when a parent “nonaccidentally” inflicts serious physical harm on a child or there is a substantial risk that the child will suffer such harm. Pursuant to section 300, subdivision (b), a child comes within the jurisdiction of the juvenile court if the child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of the parent to adequately supervise or protect the child. (In re David M. (2005) 134 Cal.App.4th 822, 829.) “‘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.’ [Citation.]” (Ibid.) Subdivision (e) of section 300 provides for jurisdiction when a child not yet five years old 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.” Subdivision (j) of section 300 provides for jurisdiction when, in relevant part, a child’s sibling has been abused or neglected within the meaning of subdivisions (a), (b), or (d) of section 300.
“Proof by a preponderance of evidence must be adduced to support a finding that the minor is a person described by Section 300.” (§ 355, subd. (a).) The preponderance of the evidence standard requires the trier of fact “‘“to believe that the existence of a fact is more probable than its nonexistence....”’ [Citation.]” (In re Angelia P. (1981) 28 Cal.3d 908, 918.) The Department has the burden of proving that a child is within the juvenile court’s jurisdiction. (In re Brison C. (2000) 81 Cal.App.4th 1373, 1379; In re Shelley J. (1998) 68 Cal.App.4th 322, 329.)
In its ruling sustaining the allegation under section 300, subdivision (b), the juvenile court amended the allegation to state that J.M.’s injuries “are consistent with either inflicted trauma or birth trauma.” The juvenile court struck the language that the injuries are consistent with “child abuse.” The juvenile court further amended the allegation to state that “The failure to explain [J.M.’s] injuries on the part of the child’s parents endangers the child’s physical and emotional health, safety and well-being and creates a detrimental home and places the child at risk of physical and emotional harm and danger.” The juvenile court specifically struck the language “Such injuries would not ordinarily occur except as the result of deliberate, unreasonable and neglectful acts by the child’s parents, ” and the language, “Such deliberate, unreasonable and neglectful acts on the part of the child’s parents” endanger the child. The juvenile court sustained the section 300, subdivision (g) allegation and, as relevant here, struck the allegations under subdivisions (a), (e), and (j).
Explaining its ruling, the juvenile court stated, “The court’s view is that we have an injury, and the real issue is that [J.M.] came to the court’s attention at such a young age, and the concern was that the evidence did not necessarily disprove there was a birth trauma, but it didn’t prove the issue as well. [¶] And when you have a child that’s so young that has an injury, the court’s view is I don’t see evidence of child abuse. That’s why I specifically struck it. One doctor said she was backed into a finding that this was child abuse only because there was no other explanation. [¶] To some degree, the court was backed into sustaining a count in this case because there wasn’t sufficient evidence to show that it was birth trauma. But there wasn’t enough evidence to show that it was child abuse. And since the Department has such a very low burden, the court sustained a (b) count as amended.”
At some point, the juvenile court appears to be finding that it was backed into its conclusion because there is no explanation for the cause of the injury, and the parents failed to explain the injury. Yet, the juvenile court expressly struck the language necessary for a finding under section 355.1, subdivisions (a) and (c). Moreover, the juvenile court specifically found “the Department has met their burden beyond a preponderance of the evidence, ” but in explaining this finding stated that there was insufficient evidence of birth trauma and of child abuse. The juvenile court said nothing about child neglect, except that it struck the allegations of neglectful acts. It is possible that by intending to strike “deliberate” acts, the juvenile court inadvertently struck “neglectful” acts.
Those subdivisions provide as follows:
A finding of a deliberate act is unnecessary under section 355.1.
The findings are inconsistent and cannot be comprehended. The juvenile court found it had jurisdiction, but its oral findings and the sustained allegations after modification do not clearly support its order striking the allegations under section 300, subdivisions (a), (e), and (j), and its ultimate order of jurisdiction under section 300, subdivision (b).
There is no doubt that a conclusion that there was inflicted trauma and therefore jurisdiction under section 300 would be deemed supported by substantial evidence. Two doctors testified that the injuries were consistent with such inflicted trauma and that because of the size of J.M.’s head, birth-related trauma was unlikely. Two other doctors opined that the hematomas were not accidental and caused by trauma. The parents gave no explanation for how J.M. suffered the injuries. Nevertheless, the juvenile court’s findings do not clearly support a conclusion that there has been an inflicted trauma and therefore jurisdiction under section 300.
In situations, as here, in which necessary findings are not made or are ambiguous, courts have reversed a judgment and remanded the matter to make necessary findings and enter judgment in accordance with those findings without the necessity of a retrial. (See Perry v. Jacobsen (1960) 184 Cal.App.2d 43, 49-50; Stallings v. Foster (1953) 119 Cal.App.2d 614, 620.) Under Code of Civil Procedure section 43, an appellate court “may affirm, reverse, or modify any judgment or order appealed from, and may direct the proper judgment or order to be entered, or direct a new trial or further proceedings to be had.” (Italics added.)
Long ago, our Supreme Court stated, “The findings of fact are not as definite and clear as could be desired, but we are unable to construe them in such a way as to make them warrant the conclusions of law, or support the judgment of the Court.... We have, therefore, concluded to reverse the judgment and remand the cause, with directions to the Court below to make its findings of fact as to the relative rights of the parties more definite and clear; and that the conclusions of law and judgment be so framed as to correspond with the findings of fact.” (Evans v. Jacob (1881) 59 Cal. 628, 628-629.)
Because the findings here are confusing and do not explicitly support the jurisdictional orders, we reverse the orders and remand the matter for the juvenile court to clarify its findings and make the appropriate orders consistent with those findings without the necessity of a retrial.
II. The Section 300, Subdivision (g) Allegation
Mother contends that if we hold that the juvenile court erred in sustaining the allegation as to J.M. under section 300, subdivision (b), then the juvenile court’s finding of jurisdiction as to L.C. under section 300, subdivision (g) may not stand. Mother does not otherwise contend that the juvenile court’s order with respect to the subdivision (g) allegation is error. We disagree with mother’s contention.
Mother relies upon In re Janet T. (2001) 93 Cal.App.4th 377, 383, in which the juvenile court sustained a petition as to four of the mother’s children under section 300, subdivisions (b), (g), and (j). These counts alleged, among other things, that the mother had failed to protect her children because she did not ensure that two of the children attended school and the mother had demonstrated numerous mental and emotional problems. (Ibid.) On appeal, the Court of Appeal reversed the juvenile court’s findings under subdivisions (b) and (j) on the ground that the allegation in the petition were not sufficient to support jurisdiction. (Id. at pp. 391-392.) Here we do not deal with the sufficiency of the pleading. Because mother does not challenge the sufficiency of the evidence to support jurisdiction under section 300, subdivision (g), we need not reach that issue.
III. Cross Appeal
Because we reverse for the juvenile court to clarify its findings, and render orders consistent with those findings, including the orders dismissing the allegations under section 300, subdivisions (a), (e), and (j) and the family reunification plan, we need not further address the specific contentions of the Department in its cross appeal.
DISPOSITION
The order under section 300, subdivision (g), is affirmed. The remaining orders are reversed and the matter remanded for the juvenile court to clarify its findings and make orders consistent therewith.
I concur: KRIEGLER, J.
I concur in the judgment of reversal, except as to the provision of support finding. First, I am in complete agreement with my colleagues’ stated reasons that the Welfare and Institutions Code section 300, subdivisions (a), (b), (e) and (j) findings cannot be sustained. Second, I agree with the position of the Department of Children and Family Services-the testimony of Dr. Charles Imbus was based, as he admits under oath, entirely on speculation. A speculative opinion does not constitute substantial evidence. (People v. Ramon (2009) 175 Cal.App.4th 843, 851; People ex rel. Brown v. Tri-Union Seafoods, LLC (2009) 171 Cal.App.4th 1549, 1567-1568.) Thus, I would direct the juvenile court to enter orders sustaining the Welfare and Institutions Code section 300, subdivisions (a), (b), (e) and (j) allegations.
TURNER, P. J.
Section 300, subdivision (e) provides that a child comes within the jurisdiction of the juvenile court if a child is under the age of five years 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 abusing the child.
Section 300, subdivision (j) provides that a child comes within the jurisdiction of the juvenile court if the child’s sibling has been abused or neglected, as defined by subdivisions (a), (b), (d), (e), or (i), and there is substantial risk that the sibling will be abused or neglected.
“(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.”
“(c) The presumption created by subdivision (a) constitutes a presumption affecting the burden of producing evidence.”