In re D.P.

Filed 2/10/21 In re D.P. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re D.P., a Person Coming
Under the Juvenile Court Law.
B301135
(Los Angeles County
Super. Ct. No.
19CCJP00973B)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
T.P. et al.,
Defendants and Appellants.
APPEALS from orders of the Superior Court of Los Angeles
County, Craig Barnes, Judge. Dismissed as moot.

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Megan Turkat-Schirn, under appointment by the Court of
Appeal, for Defendant and Appellant T.P.
Landon Villavaso, under appointment by the Court of
Appeal, for Defendant and Appellant Y.G.
Mary C. Wickham, County Counsel, and William D.
Thetford, Principal Deputy County Counsel, for Plaintiff and
Respondent.
I. INTRODUCTION
T.P. (father) and Y.G. (mother) appeal from the juvenile
court’s order finding jurisdiction over their now two-year-old son
D.P. (the child) under Welfare and Institutions Code section 300,
subdivision (b)(1)1 and order of a period of informal supervision
by the Los Angeles County Department of Children and Family
Services (Department). Because the juvenile court terminated
jurisdiction over the child during the pendency of the parents’
appeals, we dismiss the appeals as moot.
II. BACKGROUND2
On February 5, 2019, the parents took the child, then two
months old, to the hospital because he was having trouble
breathing. A chest x-ray revealed possible viral bronchitis or
1 All statutory references are to the Welfare and Institutions
Code unless otherwise stated.
2 As we dismiss the parents’ appeals on a ground not
dependent on the underlying facts, we provide a limited
background for context.

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pneumonia and a healing rib fracture. The parents were
surprised to learn of the fractured rib and could not explain how
it occurred. Hospital staff notified the Department and the
police.
On February 13, 2019, the Department filed a petition that
alleged the child and his then five-year-old sister, B.P., were
described by section 300, subdivisions (a), (b), and (j).3 As to the
child, the petition alleged that he had suffered a rib fracture; the
parents’ explanation for the fracture was inconsistent with the
injury; and such an injury would not occur but for the parents’
deliberate, unreasonable, and neglectful acts. At the detention
hearing the following day, the juvenile court denied the
Department’s request that the children be detained and released
them to the parents under the Department’s supervision.
Dr. Karen Imagawa, the Director of the CARES team at
Children’s Hospital Los Angeles and an expert in forensics and
suspected child abuse, reviewed the child’s medical records and
prepared a report.4 According to Dr. Imagawa, rib fractures are
uncommon injuries in healthy infants with normal bone density.
Such injuries have a high degree of specificity for non-accidental
trauma and are generally due to a significant compression of the
chest from front to back on an unsupported back. Due to the
pliability of an infant’s rib cage, significant force is necessary to
3 Because the juvenile court ultimately dismissed the
petition as to B.P. and she is not a subject of the parents’ appeals,
we do not recite the allegations as to her.
4 Dr. Imagawa also testified at the jurisdiction and
disposition hearing. We limit our recitation of the evidence Dr.
Imagawa provided to her report.

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fracture a healthy infant’s rib. A non-offending caregiver would
not necessarily know that an infant’s crying or irritability was
related to a rib fracture and might attribute such crying or
irritability to causes like fatigue or colic.
Dr. Thomas Grogan, a pediatric orthopedic surgeon and an
expert in child abuse forensics, also reviewed the child’s medical
records and prepared a report.5 Dr. Grogan explained that rib
fractures such as the child’s typically result from a compressive-
type force. That force could be from someone picking up a child
incorrectly and applying too much pressure to the chest. Even a
child as young as two years old could supply the force necessary
to fracture a rib. Absent an x-ray, a caregiver who did not cause
such an injury would never realize a child had a fractured rib.
Because there was no evidence of trauma in this case, the child’s
rib fracture could have been sustained accidentally, but Dr.
Grogan could not rule out that the injury resulted from
intentional conduct.
At the jurisdiction hearing, on September 20, 2019, the
juvenile court sustained the section 300, subdivision (b)(1) count
as amended—it struck the language that the child’s rib fracture
resulted from “deliberate” or “unreasonable” conduct by the
parents.6 The court stated, among other things, “I think this is—
5 Like Dr. Imagawa, Dr. Grogan also testified at the
jurisdiction and disposition hearing. We limit our recitation of
the evidence Dr. Grogan provided to his report.
6 As amended by the juvenile court, the sustained petition
alleged, “On or about 02/06/2019, the two-month old child . . . was
medically examined and found to be suffering from a detrimental
condition consisting of a healing right posterior 7th rib fracture.
[M]other[’s] explanation of the manner in which the child

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at its most—a possible neglectful act in the way this compression
fractured occurred.” It dismissed the remaining counts. As for
disposition, the juvenile court ordered the child to remain
released to the parents under the Department’s informal
supervision pursuant to section 360, subdivision (b) for a period
consistent with section 301, namely, six months. (§§ 301; 16506.)
On September 30, 2019, father timely filed his notice of
appeal. On October 18, 2019, mother timely filed her notice of
appeal. The Department did not file a petition pursuant to
section 360, subdivision (c) or otherwise bring the case back
before the juvenile court. Accordingly, the parties do not dispute
that the court’s jurisdiction has since terminated.
III. DISCUSSION
In their appeals, father and mother challenge the juvenile
court’s jurisdictional and dispositional orders. We requested that
the parties submit supplemental letter briefs addressing whether
the parents’ appeals are moot.
“As a general rule, an order terminating juvenile court
jurisdiction renders an appeal from a previous order in the
sustained the child’s injury is inconsistent with the child’s injury.
[F]ather . . . has not provided an explanation of the manner in
which the child sustained the child’s injury. Such injury would
ordinarily not occur except as the result[] of neglectful acts by the
child’s mother and father, who had care, custody and control of
the child. Such neglectful acts on the part of the child’s mother
and father endanger the child’s physical health, safety and well-
being, create a detrimental home environment and place the
child . . . at risk of serious physical harm, damage, danger and
physical abuse.”

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dependency proceedings moot. [Citation.] However, dismissal for
mootness in such circumstances is not automatic, but ‘must be
decided on a case-by-case basis.’” (In re C.C. (2009) 172
Cal.App.4th 1481, 1488.) “[T]he critical factor in considering
whether a dependency appeal is moot is whether the appellate
court can provide any effective relief if it finds reversible error.”
(In re N.S. (2016) 245 Cal.App.4th 53, 60.)
A court ordinarily will dismiss an appeal when it cannot
grant effective relief, but may “exercise its inherent discretion to
resolve an issue when there remain ‘material questions for the
court’s determination’ [citation], where a ‘pending case poses an
issue of broad public interest that is likely to recur’ [citation], or
where ‘there is a likelihood of recurrence of the controversy
between the same parties or others.’” (In re N.S., supra, 245
Cal.App.4th at p. 59.) The party seeking such discretionary
review, however, must demonstrate the specific legal or practical
negative consequences that will result from the jurisdictional
findings they seek to reverse. (In re I.A. (2011) 201 Cal.App.4th
1484, 1493.)
The parents contend their appeals are not moot because the
jurisdictional finding7 that they were responsible for the child’s
fractured rib will impair their ability to serve as a placement
option for other family members under section 361.3, subdivision
(a)(5). (See In re Drake M. (2012) 211 Cal.App.4th 754, 763
[generally, an appellate court will exercise its discretion to reach
the merits of a challenge to any jurisdiction finding if that finding
7 In their supplemental letter briefs, the parents do not
contend that their appeal of the juvenile court’s dispositional
order is not moot. Father expressly concedes his appeal as to
that order is moot.

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“‘could have other consequences for [the appellant], beyond
jurisdiction’ [citation]”].) Under subdivision (a)(5), when
considering the appropriateness of a relative placement, a social
worker must consider, among factors, “[t]he good moral character
of the relative and any other adult living in the home, including
whether any individual residing in the home has a prior history
of violent criminal acts or has been responsible for acts of child
abuse or neglect.” The parents do not assert that they have
relatives that might be subject to a placement under section
361.3, and thus have failed to identify a specific legal or practical
negative consequence resulting from the jurisdictional finding.
(In re I.A., supra, 201 Cal.App.4th at p. 1493.)
The parents also contend that the jurisdictional finding
subjects them to registration on the Child Abuse Central Index
(CACI) under the Child Abuse and Neglect and Reporting Act
(the Act) (Pen. Code, § 11164 et seq.). The parents allege that
registration on CACI is stigmatizing and will negatively impact
their ability to participate in their children’s extracurricular
school activities or athletic endeavors; mother also alleges that
CACI registration will jeopardize her employment as a teacher
and limit future employment opportunities involving children.
Thus, apart from jurisdiction, the parents contend their challenge
to the juvenile court’s section 300, subdivision (b)(1) finding
involves a dispute as to which this court can grant effective relief.
We disagree.
Under the Act, the Department is required to report to the
Department of Justice substantiated cases of known or suspected

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child abuse or severe neglect.8 (Pen. Code, § 11169, subd. (a).) A
report is substantiated and the Department’s reporting duty is
triggered when, based on evidence, an investigator determines it
is more likely than not that child abuse or neglect has occurred.
(Pen. Code, § 11165.12, subd. (b), italics added.) Thus, the
Department’s reporting duty is not dependent on a juvenile court
sustaining a section 300 petition.9
8 Penal Code section 11165.6 defines “‘child abuse or neglect’
[as] physical injury or death inflicted by other than accidental
means upon a child by another . . . .”
Penal Code section 11165.2 of the Act defines “‘[s]evere
neglect’ [as] the negligent failure of a person having the care or
custody of a child to protect the child from severe malnutrition or
medically diagnosed nonorganic failure to thrive. ‘Severe neglect’
also means those situations of neglect where any person having
the care or custody of a child willfully causes or permits the
person or health of the child to be placed in a situation such that
his or her person or health is endangered, as proscribed by [Penal
Code s]ection 11165.3, including the intentional failure to provide
adequate food, clothing, shelter, or medical care.”
9 The parents have not demonstrated that the Department
here made a CACI referral even though under Penal Code,
section 11169, subdivision (c), the Department would have been
required to provide written notice to the parents had it made
such a referral.

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IV. DISPOSITION
The appeals are dismissed as moot.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
KIM, J.
I concur:
BAKER, J.

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In re D.P./ DEPARTMENT OF CHILDREN AND FAMILY
SERVICES v. T.P. et al., B301135
RUBIN, P. J., Dissenting:
In lieu of filing the type of Respondent’s Brief typical of
dependency cases, county counsel on behalf the Department of
Children and Family Services (Department) filed a four-page,
informal letter brief. In its letter, county counsel stated that the
Department did not oppose the reversal of the jurisdictional
finding “because of the parents’ cooperation and their successful
completion of the section 360, subdivision (b) disposition
[informal supervision by the Department].” Months later county
counsel did an about-face that would make any staff sergeant
proud. In response to a question from this court, the Department
took the position that this appeal was actually moot. No
dependency proceedings had occurred in the interim to explain
the change of position. Today, the court’s opinion accepts the
Department’s U-turn.
This case stands out not only for the inconsistent positions
the Department has taken to the great detriment of D.P.’s
parents (and likely to D.P.), but in three other respects. First, in
my view, the juvenile court’s jurisdictional findings were based
on insufficient evidence, requiring reversal. Second, the majority
concludes that a parent’s effort to avoid being labeled a child
abuser is not sufficient to preserve appellate jurisdiction and
decide an appeal on its merits. Finally, as county counsel
acknowledged in its letter of nonopposition to reversal, the
parents’ cooperation with the authorities during the time they
were placed on informal supervision by the juvenile court was

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exemplary. Taking this latter point first, both parents enrolled in
parenting education classes and counseling. Mother participated
in sixteen sessions of individual counseling, and nine sessions of
family counseling, and completed a 20-week parenting program.
Mother’s therapist provided a report stating mother continued to
remain highly motivated, was engaged in treatment, and
demonstrated good insight and an excellent ability to parent her
young children. Father completed ten sessions of a parenting
program and five months of weekly individual counseling.
Father’s therapist noted father had made “steady progress” and
demonstrated good insight and a very good ability to parent
young children. How frequently have we seen parents struggle
with or even ignore the Department’s directives? Not here.
Insufficient Evidence
This family came to the Department’s attention when a
chest X-ray of two-month-old son revealed a healed rib fracture
that the parents could not explain. The court received evidence
from two physicians on potential causes of son’s injury: one
doctor opined the injury was likely non-accidental; the other
concluded the injury could be accidental, but he could not rule out
an intentional act.1 This conflict, of course, does not establish
1 Both doctors testified on what imaging of the son did or did
not reveal. There is apparently some debate on the validity of
this forensic technique. (See Dr. Patrick Barnes, Child Abuse-
Nonaccidental Injury (Nai) and Abusive Head Trauma (Aht)-
Medical Imaging: Issues and Controversies in the Era of
Evidence-Based Medicine (2017) 50 U. Mich. J.L. Reform 679, 681
[“[I]maging can’t distinguish skeletal injury [in infants] due to
non-accidental trauma from that due to accidental injury or from

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that evidence is legally insufficient. Courts are often called upon
to assess the credibility and persuasiveness of competing expert
witnesses. I observe only that the juvenile court expressly found
the parents’ expert, Dr. Thomas Grogan, more persuasive. This
finding provides context for the additional findings and
conclusions that the court made.
In my view, the juvenile court’s own words when it
sustained the allegation of neglect demonstrate that the evidence
was insufficient:
“What I have is an unanswered explanation as to how this
fracture occurs from a compression force, but I don’t lay at the
parents’ feet because I don’t think they affirmatively through a
deliberate act or some act on their part or omission on their part
caused the injury. And it may, in fact, be that while the child is
in the care of the maternal grandmother or some other event
occurred that was outside their view that this compression force
was applied.”
Then after explaining why the court assumed jurisdiction,
the court stated:
“Again, I think this is—at its most—a possible neglectful act
in the way this compression fracture occurred.” (Italics added.)
The court thus finds that (1) the origin of the injury has not
been demonstrated; (2) this lack of explanation is not the parents’
fault; (3) because the parents did not “affirmatively through a
those due to predisposing or medical conditions, including the
bone fragility disorders. There is a differential diagnosis for the
bone abnormalities, and that differential diagnosis has been
reported as far back as you can go in both the child abuse
literature and the bone health literature”].)

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deliberate act or some act on their part or omission on their part
cause[] the injury”; (4) it may be that while the child was in the
care of the “maternal grandmother or some other event occurred
that was outside their view that this compression force was
applied”; and (5) at most this was “a possible neglectful act.”
(Italics added.) These findings are not the stuff of substantial
evidence.
As California appellate courts have held innumerable
times, “possible” evidence is not substantial evidence. “[A] mere
possibility is nothing more than speculation, and speculation does
not amount to substantial evidence.” (People v. Ramon (2009)
175 Cal.App.4th 843, 851.) A finding of “a possible neglectful act”
is antithetical to substantial evidence of that act. “To be
sufficient, evidence must of course be substantial. It is such only
if it ‘reasonably inspires confidence and is of “solid value.” ’ ”
(People v. Perez (1992) 2 Cal.4th 1117, 1133 [internal quotes
omitted].) Substantial evidence “is not synonymous with any
evidence. A decision supported by a mere scintilla of evidence
need not be affirmed on appeal. Furthermore, ‘[w]hile
substantial evidence may consist of inferences, such inferences
must be “a product of logic and reason” and “must rest on the
evidence”; inferences that are the result of mere speculation or
conjecture cannot support a finding. The ultimate test is whether
it is reasonable for a trier of fact to make the ruling in question in
light of the whole record.’ ” (In re Savannah M. (2005)
131 Cal.App.4th 1387, 1393–1394 [citations omitted].)
In my view there was insufficient evidence to support the
jurisdictional finding.

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Mootness
I also disagree that this appeal is moot. I look initially to
the oft-cited dependency case on the subject, In re Drake M.
(2012) 211 Cal.App.4th 754 (Drake M.). There the court refused
to dismiss the appeal as nonjusticiable because “we generally will
exercise our discretion and reach the merits of a challenge to any
jurisdictional finding when the finding (1) serves as the basis for
dispositional orders that are also challenged on appeal [citation];
(2) could be prejudicial to the appellant or could potentially
impact the current or future dependency proceedings [citations];
or (3) ‘could have other consequences for [the appellant], beyond
jurisdiction’ [citation].” (Id. at pp. 762–763.)2 This case falls
squarely under Drake M.’s third category and arguably its second
as well.
Drake M’s third factor states plainly that an appeal is not
moot if a resolution would have consequences beyond jurisdiction,
which is the situation here. The second factor is stated in the
alternative: “could be prejudicial to the appellant or could
potentially impact the current or future dependency proceedings.”
(Italics added.) Drake M. thus holds that the prejudice to a
parent if the appellate court does not decide the appeal on its
2 “Mootness” and “nonjusticiable” may not be synonymous
but courts apply both to avoid addressing the merits of an appeal
when a decision will have no real consequence. “An appeal
becomes moot when, through no fault of the respondent, the
occurrence of an event renders it impossible for the appellate
court to grant the appellant effective relief.” (In re Esperanza C.
(2008) 165 Cal.App.4th 1042, 1054.)

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merits does not have to be tethered to present or future
dependency proceedings.
A dismissal of this case on mootness grounds takes us far
afield from the foremost purposes of the dependency system—the
protection of children and the preservation of the family. (Welf.
& Inst. Code, § 202, subd. (a).) Rather than acting to protect the
child and support the family’s well-being, to preserve the
jurisdictional finding here creates potentially serious challenges
for the parents in their efforts to provide for their family and
actively participate in their child’s upbringing.
Mother, an elementary school teacher, argues that the
sustained finding of neglect against her will limit her ability to
remain employed. That makes sense. Father contends that the
court’s sanctioning of the neglect finding will prevent him from
volunteering in school-related activities for their children. That
also makes sense.
We do not have to take the parents’ word for this because
we need look no further than California law for validation. The
Penal Code mandates that the Department report every
substantiated claim of child abuse or severe neglect to the
Department of Justice for inclusion on the child abuse central
index (CACI). (Pen. Code, §§ 11169, subd. (a) & 11170, subd.
(a)(1).) The CACI is made available to government agencies,
including social services departments that provide licenses for
employment related to childcare and school districts which
conduct background checks on volunteers. (Pen. Code, § 11170,
subds. (b)(3), (b)(4); see also Los Angeles Unified School District
Policy No. BUL-050298 [the school district’s policy is to
fingerprint certain volunteers to check for inclusion on the
CACI].) If the juvenile court’s finding of neglect is affirmed

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parents lose their right to challenge their inclusion on the CACI.
(Pen. Code, § 11169, subds. (d) & (e).) Here, mother and father
now have sustained a jurisdictional finding of child abuse
against them, apparently disqualifying them from challenging
the CACI entries.
But CACI aside, common sense tells us that no parent
wants to be branded a child abuser, which is exactly what
happened in this case. These consequences are neither
speculative nor unreasonable, and they are inconsistent with a
declaration that this appeal is “moot.”
RUBIN, P. J.

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