Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, Super. Ct. No. CK71957, Marguerite Downing, Judge.
Catherine C. Czar, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, O. Raquel Ramirez, Deputy County Counsel, for Plaintiff and Respondent.
KLEIN, P. J.
Defendant and appellant A.V. (father) appeals the juvenile court’s October 2, 2008 order, in which the court declared J.H. (the minor) a dependent child under Welfare and Institutions Code section 300, subdivisions (a) and (b), and placed the minor in the mother’s home under DCFS supervision.
All further statutory references are to the Welfare and Institutions Code.
The minor suffered a serious, unexplained head injury while in father’s care. We conclude substantial evidence exists to support the juvenile court’s jurisdictional finding that minor is a person described by section 300. The record further supports the court’s removal of minor from father’s custody due to this unexplained head injury, coupled with a broken femur previously suffered by a half-sibling while in father’s care.
Therefore, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On January 17, 2008, mother took the minor, a five-month-old boy, to Pomona Valley Hospital’s emergency department after she noticed a bump on his head following a stay at his father’ home. A CT scan of the head revealed “left frontal scalp edema, anterior left convexity, and intrahemispheric extraaxial blood.” The principal diagnoses were subdural hematoma and suspected child abuse. The following day, the minor was discharged to his mother in stable condition. The matter was referred to the Department for investigation.
Mother indicated she was uncertain how the minor was injured but she believed the injury occurred while the minor was in father’s care.
Father stated: he did not know how the minor got the head injury; he never dropped the minor or saw the minor sustain any injuries while he was with him; the minor was never out of his sight while in his care; he allowed minor’s little brothers to hold him, but only while they were seated on the couch, and he would place the baby in their laps; he never left the minor unsupervised with his brothers.
Due to the seriousness of minor’s head injury, and the fact that in 2006, a one-year-old half-sibling, A.V., was removed from father’s care due to a broken femur, the Department detained the minor from father and released him to mother. On March 14, 2008, the Department filed a section 300 petition under subdivisions (a) [serious physical harm] and (b) [failure to protect].
On October 2, 2008, the juvenile court held the contested adjudication and disposition hearing. The court declared the minor a dependent child pursuant to section 300, subdivisions (a) and (b). The court found by clear and convincing evidence pursuant to section 361 that substantial danger existed to the physical health of the minor and there was no reasonable means to protect without removal from father’s physical custody. The court ordered monitored visitation for father as well as reunification services, and ordered him to complete a parenting class.
Father appealed the October 2, 2008 order.
CONTENTIONS
Father challenges the sufficiency of the evidence to support (1) the order assuming jurisdiction over the minor under section 300, subdivisions (a) and (b); and (2) the order removing the minor from his custody and ordering monitored visitation.
DISCUSSION
1. Substantial evidence supports juvenile court’s dependency jurisdiction.
The juvenile court sustained allegations under subdivision (a) [serious physical harm] as well as subdivision (b) [failure to protect] of section 300. However, either of these separate bases is sufficient to establish dependency jurisdiction. (In re Jonathan B. (1992) 5 Cal.App.4th 873, 875-876.)
The standard of proof at the jurisdictional stage of a dependency proceeding is a preponderance of the evidence, and we affirm the juvenile court’s jurisdictional findings if they are supported by substantial evidence. (In re Mariah T. (2008) 159 Cal.App.4th 428, 438.)
The circumstances of this case are similar to In re E.H. (2003) 108 Cal.App.4th 659, which employed the doctrine of res ipsa loquitur to support a jurisdictional finding under section 300, subdivision (e) [severe physical abuse]. In that case, there was “severe physical abuse of a child under five (E.’s broken bones) and the child was never out of her parents’ custody and remained with a family member at all times; therefore, [the parents] inflicted the abuse or reasonably should have known someone else was inflicting abuse on their child, bringing E. within the language of section 300, subdivision (e).” (In re E.H., supra, at pp. 669-670.) The E.H. court held “the only reasonable conclusion which may be drawn from the evidence is that [the parents] reasonably should have known E. was being physically harmed by someone in the house. The infant, pursuant to the admissions of everyone who resided in the house, was never alone.... The only reasonable conclusion to be drawn from the facts of the instant case was that someone in the home was causing E.’s injuries, and that [the parents] reasonably should have known (since they lived there) the identity of the perpetrator.” (Id. at p. 670, certain italics added.)
This doctrine provides a rebuttable presumption of negligence where the instrumentality causing the injury was in the defendant's exclusive control, and the accident was of the type that ordinarily does not happen in the absence of negligence. (In re E.H., supra, 108 Cal.App.4th at p. 669, fn. 6.)
In the instant case, father admits the minor was never out of his sight while in his care, yet father denies any knowledge of how the minor sustained his head injury. Given the facts of this case, the juvenile court properly could conclude father reasonably should have known how the minor sustained a subdural hematoma. We conclude substantial evidence supports the juvenile court’s finding that father’s failure to appropriately supervise and protect the minor endangers the minor and places him at risk of serious harm. (§ 300, subd. (b).)
Accordingly, the juvenile court properly found the minor came within the jurisdiction of the dependency court.
2. Substantial evidence supports juvenile court’s removal of minor from father’s custody.
Section 361 states in relevant part at subdivision (c): “A dependent child may not be taken from the physical custody of his or her parents or guardian or guardians with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence of any of the following circumstances listed in paragraphs (1) to (5), inclusive.... [¶] (1) There is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor’s physical health can be protected without removing the minor from the minor’s parent’s or guardian’s physical custody.” (Italics added.)
On appeal, we review the juvenile court’s removal of a child from a parent’s custody pursuant to the substantial evidence standard. (In re Henry V. (2004) 119 Cal.App.4th 522, 529.)
Substantial evidence supports the juvenile court’s dispositional finding that there was substantial danger to the minor’s physical health if he were returned to father’s physical custody, and that there was no reasonable means to protect the minor without removal from father’s physical custody. As indicated, the minor was in father’s care when he sustained the subdural hematoma, father asserted the minor was never out of his sight while in his care, yet father denied knowledge of how the injury occurred. Further, previously, the minor’s half-sibling had suffered an unexplained broken femur while in father’s care. These circumstances amply support the order removing the minor from father’s custody.
DISPOSITION
The October 2, 2008 jurisdictional/dispositional order is affirmed.
We concur: KITCHING, J., ALDRICH, J.