In re Clay W. (1999)

[As modified Sept. 17, 1999.]

In re CLAY W., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. PATRICIA W., Defendant and Appellant.

(Superior Court of Los Angeles County, No. CK33810, Debra Losnick, Temporary Judge. fn. * )

(Opinion by Zebrowski, J., with Boren, P. J., and Nott, J., concurring.)

COUNSEL

Michael A. Salazar for Defendant and Appellant. [74 Cal. App. 4th 1344]

Lloyd W. Pellman, County Counsel, Sterling Honea, Principal Deputy County Counsel, and Jill Regal, Auxiliary Legal Services, for Plaintiff and Respondent.

OPINION

ZEBROWSKI, J.-

Patricia W. (Mother) appeals from the juvenile court's finding her son Clay to be a dependent of the court under Welfare and Institutions Code section 300, subdivision (b). fn. 1 There was substantial evidence that the minor sustained fractured ribs on at least two occasions. The principal contention on appeal is that there is no substantial evidence demonstrating that the injuries were the result of her unreasonable or neglectful acts or omissions. fn. 2 We agree and therefore shall reverse.

Procedural History and Statement of Facts

The minor was born December 19, 1997, six weeks premature. He was noticed to be "grunting" soon after birth; X-rays were therefore taken. His parents regularly took him to a pediatrician for well-baby care. When the minor was taken to the hospital on May 2, 1998, because of "respiratory, asthmatic, bronchial problems" and returned the following day, the chief complaint was "wheezing and coughing." His X-rays revealed eight fractured ribs. fn. 3 A bone scan was completed on May 6, 1998.

The treating physician notified the Los Angeles County Department of Children and Family Services (Department), resulting in the minor's detention and placement with the paternal grandmother on May 7 and in a juvenile dependency petition filed on May 11, 1998. All of the allegations stem from [74 Cal. App. 4th 1345] the following alleged facts: "On or about 5/4/1998 minor Clay [W.] was found to have sustained 8 lateral rib fractures which were at different stages of healing. Further such condition would not ordinarily occur except as the result of unreasonable or negligent acts and/or omissions by minor's parents Patricia and Michael [W.] or by minor's day care provider Katrina [B.] or any other caretaker. Further such acts and omissions by minor's parents and/or such failure to protect by minor's parents endanger minor's physical and emotional [health] and safety, and places minor at serious risk of harm."

The petition alleged that the quoted facts supported findings under Welfare and Institutions Code section 300, subdivisions (a), (b), (c), and (i). fn. 4 Only subdivision (b) remains on appeal. As alleged in the petition, the remaining allegation is that the child "has suffered, or there is a substantial risk that the child will suffer, serious harm or illness, as a result of the failure or inability of his or her parent or legal guardian to supervise or protect the child adequately [and/or] as a result of the willful or negligent failure of the child's parent or legal guardian to supervise or protect the child adequately from the conduct of the custodian with whom the child has been left."

The children's social worker (CSW) reported that the ribs were "in different stages of healing" indicating there "may have been several incidents of trauma" to the minor's ribs. Further, according to the treating physician, Dr. Deborah Stewart, "the fractured ribs may have been caused by squeezing or shaking the infant." The parents "had no idea" that the minor had any fractured ribs. Dr. Stewart told the CSW that the "parents are very loving and very concern[ed] for Clay's health and well being. The parents are very appropriate. There [have] been many studies with children with fractured ribs. Clay would not have experienced any discomfort or a change in behavior due to the fractured ribs." The CSW stated that the minor "is a happy and healthy baby boy. He does not appear to be in any pain and is adapting well to the medication for his asthma. His mother and father are very concerned and very loving towards minor ...." Mother and the father each gave statements, stating they are careful and protective of the minor. [74 Cal. App. 4th 1346]

The court report addendum states that Dr. Deborah Stewart "stated that minor's rib fractures were the result of hard squeezing, harder than one would apply during CPR. MD stated that parents were very appropriate, attentive, and concerned about minor. MD stated that she does the [section] 730 evaluations for LA County and is the Scan team expert at Long Beach Memorial Hospital, and has been doing this work since 1983. MD stated that in her opinion, parents seemed very appropriate. MD stated that a full skeletal scan was done and no other injuries were found. Also minor did not have osteogenesis or any other bone disease that could be detected. There was no evidence of retinal hemorrhage. MD had no plans for further testing." The CSW was unable to contact Mother but did notify the father, who stated that the parents would be present and he had retained an attorney to represent them.

At the initial hearing on May 12, 1998, Mother argued that parents had taken all medical precautions to protect their child and had been extremely cautious in choosing daycare for their baby, interviewing about 70 potential caretakers. Temporary custody of the minor was vested with the Department. The court ordered that the parents could move into the caretaker's home or the caretaker into the parents' home, so long as the parents were not left alone with the minor. The court asked for further input from Dr. Stewart regarding whether or not the injuries could have occurred during birth.

The juvenile court report for June 2, 1998, added further observations of Dr. Stewart, who opined that the injuries were "absolutely not" caused during childbirth or by bone disease and could not have been caused, as thought by the father, from another child stepping on the minor. The juvenile court report stated that Dr. Stewart believed the injuries could have been caused, by way of example, "if an adult stood on [the minor] and jumped up and down ...." fn. 5 Moreover, the report stated that Dr. Stewart opined that contrary to popular belief "it is quite probable that the child did not exhibit overt signs of distress" or "necessarily feel pain."

The minor's primary physician, Dr. Prosser, had seen the child December 22 and December 29, 1997, January 6, 1998, February 12, 1998, March 2 and 23, 1998, and April 24, 1998. He never saw any bruises or other signs of external trauma. He thought it "possible, but less likely given [the] different stages of healing" that the injuries could have been a result of the birth process. Unlike Dr. Stewart, he believed the child "would have experienced pain as a result of the injuries" and the parents had not reported any such pain. He did not feel the fact that the child took Dimetapp on a regular basis would have resulted in a sedating effect, a theory proffered by the daycare worker. [74 Cal. App. 4th 1347]

Katrina B., the daycare provider, thought they must have looked at the wrong X-rays in that this minor never screams or cries. His only problems are with bowel movements; she treats his constipation with Pedialite and rubbing his back. She denied causing the injuries.

Mother and the father both denied any misconduct and thought that, if injuries were caused at child care, it was accidental. Both parents, neither of whom had a criminal background, described Mother as a very cautious "paranoid" mother who took the child to the doctor at the slightest hint of trouble. The CSW found both parents to be "loving in their interactions with their son." In addition, the child seemed to be emotionally bonded to the parents. However, the CSW opined that given "that it has not been to possible to establish who the perpetrator is in this case, it is not felt that it is safe to return Clay to the care of his parents."

The adjudication hearing

The adjudication hearing began June 2, 1998, and continued over a period of months. Dependency worker Pat Breit, who has a Ph.D. in clinical psychology, prepared the Department's report for the minor. At the June 2, hearing the court ordered that any other Department-approved person may assist the paternal grandmother and may reside in the home of the parents to care for the minor.

Pat Breit was cross-examined on the report. Though she spoke to Mother only in English, which Mother spoke fluently, the emergency response worker input that Mother's primary language is Farsi. Someone else also noted that Mother was of Asian Pacific Islander heritage.

Mother was in bed for several weeks prior to delivery, and the baby was born six weeks prematurely and with jaundice. After discharge from the hospital, he was left with both parents; the caretaker Katrina B., who told the CSW that she never absented herself from the daycare center and was never more than a room away from the minor; and all of the minor's grandparents, none of whom had a criminal history. Ms. Breit questioned the baby's regular pediatrician, Dr. Prosser, about the baby's history and postnatal care; the doctor had no concerns about Mother's ability to provide proper care for the child. Neither did anyone else indicate that Mother had been inadequate in her postnatal care of the infant. fn. 6 [74 Cal. App. 4th 1348]

Ms. Breit knew of no act by Mother, the father, Katrina B., or any other specific person that caused the alleged eight lateral rib fractures. fn. 7 When asked if she knew of anything Mother should have done but failed to do to protect her son from suffering the alleged rib fractures, she replied "I do have information. I have a baby who has eight rib fractures. That's the information I have that Mother may have made an [omission] that resulted in her baby sustaining injuries." While she does not "know specifically what she should have done," she assumes Mother failed to protect the physical well-being of her son. fn. 8 The court noted: "I don't think we have anyone that saw what happened to this child. I think we can all agree to that."

Moreover, according to Ms. Breit, Mother has been cooperative and has signed releases and talked to Ms. Breit. Mother "seemed appropriate and loving" with the child, who appeared bonded with her and not fearful of her. The emergency response worker did not report any contrary information.

There was no indication the minor had been shaken. If Dr. Stewart knew how the injury occurred, she did not convey it to Ms. Breit. However, she did say that she could not believe the injuries would be accidental.

Following Ms. Breit's testimony, the father moved to dismiss the petition and not allow Dr. Stewart to testify. The court wanted to hear from Dr. Stewart and denied the motion. Mother joined the motion and asked that at least the section 300, subdivision (i) allegations (acts of cruelty) be dismissed. The court denied the motion to dismiss the petition but was inclined to dismiss the subdivision (i) allegations of cruelty; however, the court wanted to hear the rest of the Department's case, including the medical testimony, before again entertaining a motion to dismiss the subdivision (i) allegations.

Dr. Deborah Stewart, a board-certified pediatrician with extensive experience in child abuse issues, testified as follows: She had been called to review the case by the doctor taking care of the four-and-a-half-month-old infant in the hospital as well as by the social worker assigned to the case. [74 Cal. App. 4th 1349] She viewed the X-rays and determined there were definite rib fractures, some posterior medial, some posterior lateral and anterior lateral, and they appeared to be of different ages. Posterior rib fractures are indicative of child abuse, are not caused by CPR, and are often caused by a squeezing mechanism from the front of the body to the back; most often in very small children, it happens from an adult-size hand encircling the rib cage and compressing the chest wall. Such injury is caused by a "slow accelerating squeezing force that was tremendous and greater than that which one would have in CPR." Eight rib fractures are "indicative of either very significant force and/or multiple forces and/or multiple episodes of force" much more so than one, two, or three fractures would be. In addition, although it is impossible to give an exact time when the injuries occurred, a bone scan established at least two separate ages of the rib fractures and a range of ten to fourteen days to about six weeks, three months at the side but "much more likely" six weeks. It is possible that a significant but less major insult could reinjure a previously fractured healing rib.

According to Dr. Stewart, there was no information about any evidence of bruising or external trauma to the boy's body. Nor did the parents or anyone else report that he was expressing any pain or discomfort, except for difficulty breathing. fn. 9 Aside from the X-ray results, she saw no signs of abuse. Dr. Stewart did not believe these fractures were the result of someone jumping on the minor but could happen with someone standing on him with gradually increasing force. While she might not have the force to do so with her hands, it would not take an amount of strength significantly greater than hers to do so.

In Dr. Stewart's opinion the injuries were caused by nonaccidental trauma, in the absence of metabolic disease of which there was no evidence and in the absence of an appropriate history of an accident, which the parents did not provide. She testified that a physician might detect such rib fractures with a history of an accidental trauma such as a car accident, bruising or swelling, or if detected on an X-ray when the child has suspected pneumonia or asthma or something wrong with the breathing. fn. 10

Dr. Stewart testified that her interviews with the infant's parents caused her no concern in that she observed they "were very loving. They were very [74 Cal. App. 4th 1350] appropriate. They were very cooperative, which in my experience is one of the things that [can] be very helpful to us in trying to determine how a child might have been hurt.... . This family was very understanding, very, very loving, very concerned about this child, very horrified that anything had happened to their child. Very surprised. I had a very positive feeling about them as parents to Clay as did all the rest of the staff and everyone I spoke to who had interacted with them." Although she found the parents to be very cooperative, loving and appropriate, she still found this to be child abuse in some form.

After the Department rested, Mother filed a motion to dismiss the petition based on the Department's failure to present evidence sufficient to prevail under section 355.1 or section 300, subdivision (a), (b), or (i). fn. 11 The motion was supported by the declaration of Dr. Thomas J. Grogan, who opined that there was no evidence of acute or healing fractures, that the X-rays did not show them, and there was no evidence of child abuse. The court stated it would read the motion save the portion regarding Dr. Grogan and the attachments applying to him. Counsel for the Department stated, "I am not going to argue Esmeralda B. [(1992) 11 Cal. App. 4th 1036 [14 Cal. Rptr. 2d 179]] because I am not relying on 355.1 to prove my case. I put on my case. I put on Dr. Stewart. I put on the social worker. I put in my documents, and I believe that the Department has met its burden by a preponderance of the evidence." Mother's counsel asked the court if he should argue 355.1 in addition to his other points in light of the county counsel's statement; the court replied: "I would prefer to have as clean and as complete a record as possible. I would like you to argue whatever bases you feel appropriate for your motion to dismiss ...." Mother's counsel proceeded to argue section 355.1 as well as his other points. The court granted the motion to dismiss the [74 Cal. App. 4th 1351] section 300, subdivision (i) allegations of acts of cruelty, but denied the motion to dismiss the other allegations. The court stated it wished to hear more evidence and "I do believe at this time the Department has met its burden irrespective, quite frankly, of 355.1. They have shown me by way of Dr. Stewart's testimony that this child suffered seven or eight broken ribs which were nonaccidental or inflicted in nature ...."

Instead of calling Mother to testify, the court suggested an offer of proof in that her statements were in the report and "I have heard nothing [but] glowing remarks from the Department's witnesses." The offer of proof was that many people, who were named, have held or been with the minor since his birth. After Mother reviewed between 60 and 70 prospective daycare providers, she personally spoke with 40 and interviewed about 10, choosing Katrina B., a licensed daycare provider who employs two assistants. Further, the child was treated in the hospital for jaundice on December 23 and 25, 1997, and was left overnight on the 23d and 24th and was also not seen by Mother during some time during the days and at lunch. Mother would also testify that on at least one occasion in the morning, Katrina B. was not present when she dropped off the child; she had called Mother the previous day to tell her she would not be present because she had errands to run. On at least one occasion in the afternoon, Katrina B. was not personally present when Mother went to pick up the minor; she had first called Mother and informed her she had to take her car in. fn. 12 There were other occasions during the relevant period when the minor was left with grandparents.

Over the objection of the Department, Mother's request to continue the matter for the testimony of Dr. Grogan, then on vacation, was granted. The parties stipulated to the testimony of Katrina B. She has monitors in her daycare facility, which is only about 1,400 square feet, and can hear whatever is happening in another room. She never heard the minor scream out or make any noise.

Dr. Grogan, a board-certified pediatric orthopedist, testified as follows: He holds a licensure as an X-ray and neuroscopy supervisor, and has seen roughly 20,000 patients, with about 2,500 under the age of 6 months. Of those, about 10 to 12 percent have been X-rayed or diagnosed or treated for rib injuries or rib-related injuries. While his voir dire was unclear, at one point he testified that only three or four have been under the age of six months; at another point, he testified approximately a dozen-and then four [74 Cal. App. 4th 1352] or five-patients under six months with nonaccidental rib injuries. fn. 13 He had seen no children with isolated rib fractures under the age of six months. There are so few in that category because "It takes a pretty hard amount of force to do this. In patients this requires a tremendous crush injury, usually in my experience it's been from literally a car running you over." fn. 14 He would expect to see thumb marks, soft tissue injury, and compression-type injuries, but he did not find any evidence of injuries to the thoracic cage.

Dr. Grogan testified that he reviewed the minor's medical records, X-rays, and bone scan report. On the morning he testified, Dr. Grogan examined the minor for any evidence of external trauma, decrease or abnormalities in the range of motion of his limbs, and other noninvasive inquiries. He displayed the X-rays in court and testified he saw no fractures on the ribs or any healing rib fractures. Neither did he see any callus formation present in many points.

Dr. Grogan testified that a "hot bone scan" very accurately detects a fracture that is four to six weeks old. In his opinion, the X-ray interpretation by Dr. Gyepes does not overlap any of the hot findings on the bone scan taken of this minor, and the inconsistency refutes the X-ray analysis. Rather, he believed that Dr. Gyepes was seeing "some nodularity or unusual calcification" but not fracture. He opined that the conceded "unusual appearance" of the ribs might be because of the child's history of bronchitis and asthma problems. In addition, he disagreed with Dr. Stewart regarding an infant experiencing pain from a rib fracture and testified the infant would "absolutely" experience pain if, for example, one hugged the child and that there would be internal bleeding. He saw no evidence of bruising or bleeding or any sustained trauma to the heart and lungs. Neither did he find any evidence of congenital problems that would cause any rib fractures.

The Department in rebuttal called Dr. Philip Stanley, who is board certified in radiology and has been head of diagnostic radiology at Children's Hospital since 1975, personally examining one-fourth to one-third of the department's 70,000 patient X-rays a year. He testified that each year for the last few years, he has seen about 30 to 40 patients under the age of 1 with rib fractures. Dr. Stanley examined the minor's medical records and X-rays and demonstrated the healing fractures to the court; he stated that he had "absolutely no doubt whatsoever" that fractures were present in the X-rays [74 Cal. App. 4th 1353] of the minor and "no doubt whatsoever that [the expansion in the ribs] are due to healing rib fractures" and not various other possible causes. His analysis was consistent with the findings of Dr. Gyepes and disagreed with Dr. Grogan. Further, he found the bone scan (which he found to show fractures at various times within four to six weeks and eight to ten weeks) to be consistent with the healing rib fractures. He stated that such fractures are caused by severe squeezing and require tremendous force in an infant, certainly much more than half an inch of depression. fn. 15 In his experience, in over 90 percent of the cases he has seen, rib fractures are often a sole manifestation, without internal injuries. He testified that, with squeezing injuries, it is unusual to see external trauma or internal trauma of the thoracic cage.

Dr. Stanley did not believe the child's asthma or bronchitis had any affect on the rib cage or the X-rays in this case. He stated that rib fractures in infants heal quickly and are difficult to pick up within 8 weeks and almost impossible within 10 to 12 weeks because the bones heal and model so well. He had no problem seeing the fractures and estimates they were four to six weeks old. Because of the difference in the X-ray and the bone scan, he opined there is an earlier fracture on the left than on the right, so at least two occasions when trauma occurred to the child, breaking the ribs.

As for pain, he testified that it hurts to break a bone but they may be painful and they may not be, even when the trauma is very recent and particularly when the fractures are healing. The child might cry or favor one side if the other were fractured. He would not expect pain in a four-month-old infant with rib fractures at this stage of healing.

The Department also wanted to call Dr. Gyepes as a rebuttal witness. The court decided to hear from only one rebuttal radiologist, Dr. Stanley.

The minor presented an offer of proof that Dr. Shaw would testify the child did suffer rib injuries. Having heard from three doctors on the subject, the court denied the request to call Dr. Shaw.

After several days devoted to the adjudication hearing, on September 2, 1998, the court sustained count 1 regarding section 300, subdivision (b) (that the minor "has suffered, or there is a substantial risk that the child will suffer, serious harm or illness, as a result of the failure or inability of his or her parent or legal guardian to supervise or protect the child adequately [and/or] as a result of the willful or negligent failure of the child's parent or legal guardian to supervise or protect the child adequately from the conduct [74 Cal. App. 4th 1354] of the custodian with whom the child has been left.") The court dismissed the section 300, subdivision (a) allegations but, over the objection of minor's counsel and the Department, released the minor to his parents. fn. 16 The court expressed its belief in the two expert radiologists who found eight lateral rib fractures and stated it did not "feel that Dr. Grogan is as qualified to testify about rib fractures as the other two doctors are." Moreover, the court found that the fractures were of at least two different stages of healing. However, the court expressly "finds it somewhat difficult and in large part due to [the father's counsel's] argument about if, in fact, this child had no pain symptomatology, how the parents could have known that there was an injury. However, that is not what the court needs to look at. [¶] The court feels that it is statutorily sound and case law sound to find that the parents are responsible for injury caused to their children, in this case, their child. [¶] I'm troubled by the fact that I know no more who caused the injury to this child today than I did when the case was first filed before the court."

In finding the section 300, subdivision (b)(1) allegations to be true, the court stated: "I am not satisfied that for my purposes that Katrina [B.] or any other caretaker has been ruled out as a possible perpetrator. The difference, of course, is that these parents are responsible for the acts that occur to their children whereas Katrina [B.] and any other caretaker would not be so responsible before this court, and obviously Katrina [B.] could be responsible for her license in another agency, but that is not for me to address today."

The court ordered a supplemental report to address the progress of the parents and minor in the home of the parents.

Disposition hearing

The disposition hearing was set for October 5, 1998. The supplemental report prepared for that hearing recommended that the court maintain jurisdiction. The parents were still denying that Clay sustained any injury, notwithstanding their report that their pediatrician had follow up X-rays done and the minor "is said to have healed from his fracture ribs. It is ... of interest [stated the CSW] that [Mother] would say that Clay healed from his injuries if he in fact, suffered no injuries." Mother's counsel argued the lack of a nexus between the child's injuries and any willful or negligent failure by the parents.

The court observed regarding the June 2 and October 5 reports that "This is the most glowing, positive report I've probably ever seen for purposes of [74 Cal. App. 4th 1355] a trial as regard to parents. I myself have taken a parenting class. I think everyone could benefit from them. I don't think that it is necessarily something that you have done wrong in order to take one. I think it enlightens and educates." The court declared the child a dependent child under section 300, subdivision (b) and placed the minor in the home of the parents under the supervision of the Department, with parents to complete a parenting class and to keep all medical appointments. The court ordered the next report, which it scheduled for January 5, 1999, to address termination of jurisdiction.

Mother appeals from the contested disposition proceedings of October 5, 1998.

Discussion

Substantial evidence does not support the juvenile court's contested decision as to the Mother.

Reference Note[1a] Mother contends that the evidence supports a finding that the minor did not suffer eight lateral rib fractures and, even if he did, there is no evidence supporting a finding that his parents were neglectful in any way. Realizing that the test on appeal is whether "substantial evidence" supports the findings and that all conflicts must be resolved in favor of respondent (In re Katrina C. (1988) 201 Cal. App. 3d 540, 547 [247 Cal. Rptr. 784]; accord, Elijah R. v. Superior Court (1998) 66 Cal. App. 4th 965, 969 [78 Cal.Rptr.2d 311]), she concedes that substantial evidence supports a finding that the minor sustained the rib fractures and concentrates her appeal on whether there is solid, credible evidence to support a finding under section 300, subdivision (b) that, as alleged, "such condition would not ordinarily occur except as the result of unreasonable or negligent acts and/or omissions by minor's parents Patricia and Michael [W.] or by minor's day care provider Katrina [B.] or any other caretaker. Further such acts and omissions by minor's parents and/or such failure to protect by minor's parents endanger minor's physical and emotional [health] and safety, and places minor at serious risk of harm."

Reference Note[2] The Department relies in large part on section 355.1, subdivision (a), which provides: "Where the court finds, based upon competent professional evidence, that an injury, injuries, or detrimental condition sustained by a minor, of such 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 evidence shall be prima facie evidence that the minor is a person described [74 Cal. App. 4th 1356] by subdivision (a), (b), or (d) of Section 300." As Justice Epstein, writing for Division Four, wrote in In re Larissa W. (1991) 227 Cal. App. 3d 124, 132 [277 Cal. Rptr. 802], "Section 355.1 merely creates a presumption affecting the burden of producing evidence." (Accord, In re Esmeralda B. (1992) 11 Cal. App. 4th 1036 [14 Cal. Rptr. 2d 179]; § 355.1, subd. (c).)

The Court of Appeal in In re Esmeralda B., supra, 11 Cal. App. 4th 1036, reversed the juvenile court's sustaining of a section 300, subdivision (b) petition where a child with caring parents and no other evidence of molestation had been taken to a hospital after a tiny bit of dried blood was found in her panties. fn. 17 The court found section 355.1 to be inapplicable for two reasons: "First, it applies only '[w]here the court finds, based upon competent professional evidence, that an injury ... sustained by a minor, of such a nature as would ordinarily not be sustained except as the result of the unreasonable or neglectful acts or omissions of either parent, ... that evidence 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), italics added.) Here, no professional or other person testified the single incident, even if a sexual molest, was such that ordinarily it does not occur except as a result of unreasonable or neglectful acts of either parent. Esmeralda was a second grade student and was not always under the direct observation of her parents and, on these facts, there is nothing about a single incident of sexual molest which suggests it ordinarily would not have occurred except for inadequate parental supervision or neglect. [¶] Second, even had there been evidence to establish the predicate for the presumption, it is not one which affects the burden of proof, but only the burden of producing evidence (§ 355.1, subd. (c); In re James B. (1985) 166 Cal. App. 3d 934, 937 ...) and only survives until there is rebuttal evidence submitted. Here, that evidence was submitted through the Department's own social worker and absent any evidence to support a finding under section 300, subdivision (b), the petition should have been dismissed." (In re Esmeralda B., supra, 11 Cal.App.4th at pp. 1040-1041.)

Reference Note[1b] In the case rebuttal evidence was presented which would support a finding of appropriate parental supervision and behavior. This evidence fully rebutted the presumption on which the Department now relies, section 355.1, rendering it a nullity. That presumption is only a presumption affecting the burden of producing evidence. (§ 355.1, subd. (c).) Evidence Code section 604 expressly provides that "[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 [74 Cal. App. 4th 1357] would support a finding of its nonexistence, in which case the trier of fact shall determine the existence or nonexistence of the pressumed fact from the evidence and without regard to the presumption." (Italics added.) Section 355.1 may support a jurisdictional finding in an uncontested case, but not where the parent produces substantial evidence converting the Department's showing (Cf., e.g., BAJI No. 2.01 ["The testimony of one witness worthy of belief is sufficient to prove any fact."].) Here the evidence showed that Mother had conducted an extraordinary search for quality child care for her infant and placed the baby in a licensed facility where there was no reason to suspect anything but good care. She took the baby to the pediatrician for well-baby visits and when the child was sick. The pediatrician never suspected any injuries. Indeed, untill the X-rays were taken by the physicians investigating the baby's bronchitis/asthma, no doctor had an inkling that the minor had been injured. Futhermore, there is no direct or inferential evidence that appellant Mother in any way injured the baby. Nor is there evidence that she neglected her child. Thus, the section 355.1 presumption was thoroughly rebutted and became a nullity.

In many dependency cases, there is medical evidence of injuries occurring contrary to the version of "accidents" related by the parent(s). Or there are visible signs of injuries that should alert a parent to abuse. Neither is present in the case at bench. Here, there is evidence that an infant, less than five months old, sustained nonaccidental rib fractures on more than one occasion. Given that such injuries were missed by doctors, and would reasonably be missed by other responsible adults, there is no evidence that Mother was in any way negligent in failing to notice that the infant had sustained the fractured ribs. fn. 18 There is no evidence, for example, that this child cried when placed in a certain position, as opposed to random crying. When he was seen by doctors, he was described as a happy baby, who was not in pain.

Neither is this a case where an infant was cared for solely, or even primarily by the Mother, or where the mother exercised negligent judgment in choosing or retaining child care providers. Mother cannot be held responsible for the possible actions of others under the facts presented in the case at bench.

Like the trial court, we are troubled by the possibility that Clay W. sustained serious injuries, as the trial court permissibly found he did. Such [74 Cal. App. 4th 1358] injuries, especially when nonaccidental, present a serious threat to a child. However, we are not appling a "strict liability" standard. A parent's rights cannot be supplanted by the Department's jurisdiction merely on a finding that a child was injured. Children can be injured through no fault of the parents. In this case, there is no substaintial evidence to support a determination that Mother was responsible by either act or omission. Hence the child should have been left in the care of the parent. There was no basis, on this limited evidence, for the Department to be given jurisdiction over the child.

Disposition

The order appealed from is reversed as to Mother.

Boren, P. J., and Nott, J., concurred.

FN *. Pursuant to California Constitution, article VI, section 21.

FN 1. The court did not sustain any other of the initial allegations. Welfare and Institutions Code section 300, subdivision (b), provides in part that the juvenile court may adjudge a child to be a dependent of the court if the child meets the following description: "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 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, or by the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent or guardian to provide regular care for the child due to the parent's or guardian's mental illness, developmental disability, or substance abuse."

FN 2. Only Mother appealed from the juvenile court's determination. Counsel for appellant has informed this court that on March 18, 1999, the juvenile court terminated jurisdiction over the minor but stayed the proceeding until resolution of this appeal. Counsel urges that the instant appeal is not moot and an opinion should be rendered.

FN 3. There was a conflict in the evidence regarding whether the ribs were fractured, but Mother concedes on appeal that substantial evidence by reputable physicians supports that finding.

FN 4. Welfare and Institutions Code section 300, subdivision (a) provides that the child has suffered, or there is a substantial risk that the child will suffer, serious physical harm inflicted nonaccidentally upon the child by the child's parent or guardian. That allegation was dismissed on September 2, 1998, when the court made its adjudication decision.

Subdivision (c) relates to serious emotional damage as a result of the conduct of the parent or guardian and because the child has no parent or guardian capable of providing appropriate care. This allegation was dismissed in June 1998.

Subdivision (i) provides that the child has been subjected to an act or acts of cruelty by the parent or guardian or a member of the child's household and that the parent or guardian knew or reasonably should have known that the child was in danger of being subjected to an act or acts of cruelty. This allegation was dismissed July 28, 1998. All further statutory references are to the Welfare and Institutions Code.

FN 5. Dr. Stewart denied this analysis in her testimony at the adjudication hearing.

FN 6. In a discussion of section 355.1, the court remarked: "I have not heard anything that causes me to believe that the mother provided any inappropriate postnatal care based on the testimony given and Ms. Breit's conversation with Dr. Prosser."

FN 7. Dr. Stewart testified that both lateral and medial rib fractures are those along the side of the body. Posterior rib fractures, which were also sustained, are fractures of the rib itself which are close to the vertebral column. Anterior fractures are those rib fractures located in the front part of the body near the breastbone.

Ms. Breit specifically had information from the parents that the paternal grandmother was not caring for the child during the time the injuries were believed to occur, which she understood to be two to six weeks prior to the detention. Ms. Breit believed only the parents, Katrina B., and two workers at the daycare facility had contact with the infant during that period of time.

FN 8. Ms. Breit concluded that the injury occurred while the infant was in the care of Mother, the father, or babysitter.

FN 9. However, unlike the experience of adults with rib fractures, infants might not exhibit symptoms of pain. Doctors and parents might not necessarily observe any pain or expression of discomfort. While an adult might fracture a rib by coughing, an infant would not do so without a metabolic abnormality. Neither would grunting, an infant's response to respiratory distress, be a case of rib fractures, though it could be in response to a trauma to the thoracic cage.

FN 10. Dr. Stewart knew that Clay was administered corticosteroids at least twice, once prior to birth (the mother received three injections), and once upon discharge from the hospital. Such medication causes calcium excretion and, in some rare cases, osteoporosis. It is not a known cause of posterior rib fractures. Neither are rib fractures caused by normal handling.

FN 11. Section 355.1, subdivision (a), provides: "Where the court finds, based upon competent professional evidence, that an injury, injuries, or detrimental condition sustained by a minor, of such 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 evidence shall be prima facie evidence that the minor is a person described by subdivision (a), (b), or (d) of Section 300."

As alleged in the petition, section 300, subdivision (b) provides that the child "has suffered, or there is a substantial risk that the child will suffer, serious harm or illness, as a result of the failure or inability of his or her parent or legal guardian to supervise or protect the child adequately [and/or] as a result of the willful or negligent failure of the child's parent or legal guardian to supervise or protect the child adequately from the conduct of the custodian with whom the child has been left."

Section 300, subdivision (i) provides that the child has been subjected to an act or acts of cruelty by the parent or guardian or a member of the child's household and that the parent or guardian knew or reasonably should have known that the child was in danger of being subjected to an act or acts of cruelty.

FN 12. Mother was then examined by the Department and testified that on both occasions, an assistant of Katrina B. was present.

FN 13. Over the Department's objection, the court found Dr. Grogan qualified as an expert in pediatric orthopedic surgery. The four or five infants he examined were all seen immediately after the trauma, not months after as in the case at bench.

FN 14. He had never seen fractured ribs in a child under six months in the absence of massive trauma or osteogenous imperfecta, so-called brittle bones.

FN 15. Such fractures can occur with excessive force used in CPR.

FN 16. The Department's application for a rehearing was denied. The application included the statement that the juvenile court "found that DCFS had met its burden of proof under section 355.1."

FN 17. A pelvic examination of Esmeralda revealed "an injury to the posterior fourchette and a small tear of the hymen." (In re Esmeralda B., supra, 11 Cal.App.4th at p. 1038.)

FN 18. In an effort to prove that the baby's ribs were not fractured, Mother's expert testified that a baby would cry if such injuries were sustained and that the failure of this child to cry was an indication there were no fractures. Even if a trier of fact believed the part of the expert's testimony that a baby with such injuries would necessarily cry, testimony contradicted by other pediatric experts, mere crying by a four-month-old is common. Without more, crying would hardly alert even the most diligent parent that something of the nature involved here was wrong.