Filed 12/3/21 In re K.N. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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or ordered published for purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re K.N. et al., Persons Coming 

Under the Juvenile Court Law.

SAN DIEGO COUNTY HEALTH 

AND HUMAN SERVICES 

AGENCY,

Plaintiff and Respondent,

v.

I.N. et al.,

Defendants and Appellants.

 D079164

 (Super. Ct. No. EJ4604)

APPEAL from a judgment of the Superior Court of San Diego County, 

Gary M. Bubis, Judge. Affirmed. 

Diana W. Prince, under appointment by the Court of Appeal, for 

Defendant and Appellant I.N. 

Joseph T. Tavano, under appointment by the Court of Appeal, for 

Defendant and Appellant S.M. 
2

Lonnie J. Eldridge, County Counsel, Caitlin E. Rae, Chief Deputy 

County Counsel, and Eliza Molk, Deputy County Counsel for Plaintiff and 

Respondent. 

INTRODUCTION

Five-month-old twin sisters, Z.N. and Za.N., were each diagnosed with 

broken blood vessels under the surface of the eye, or subconjunctival 

hemorrhages. The twins were under the sole care and supervision of their 

parents when the injuries presented, and their parents were unable to 

account for how the injuries occurred. A child abuse pediatrician determined 

that under these circumstances, the twins’ injuries likely resulted from 

nonaccidental trauma and indicated a risk of more severe abuse in the future. 

The juvenile court assumed jurisdiction over the twins and their threeyear-old sibling and returned the children to the parents’ home pursuant to a

family maintenance plan. I.N. (Father) and S.M. (Mother) appeal from those 

orders, contending there was insufficient evidence to establish the twins 

suffered serious injury inflicted nonaccidentally by the parents, and as such, 

all three children’s petitions should be dismissed. The parents also challenge 

the juvenile court’s dispositional orders conditioning the children’s placement 

in the parents’ custody on their compliance with a family maintenance plan. 

Finding no error, we affirm the juvenile court’s orders. 

FACTUAL AND PROCEDURAL BACKGROUND

A. Initiation of Dependency Proceedings and Detention

Z.N. and Za.N. were born nine weeks premature.1 They were 

hospitalized in the neonatal intensive care unit (NICU) because of their 

1 “ ‘In accord with the usual rules on appeal, we state the facts in the 

manner most favorable to the dependency court’s order.’ ” (In re Janee W.

(2006) 140 Cal.App.4th 1444, 1448, fn. 1.) 
3

premature birth. Upon release from the NICU, they began receiving physical 

therapy, occupational therapy, and other medical services. The twins’ older 

sister, K.N., was also born premature and required early intervention 

services in physical therapy and speech therapy.

On the morning of February 6, 2021, Mother noticed a red dot in Z.N.’s 

eye. The redness worsened as the day went on, prompting the parents to 

bring her to the emergency room. The emergency room physician diagnosed 

her with a subconjunctival hemorrhage (SCH) to her right eye, and a “[v]ery 

mild” lateral conjunctival hemorrhage in the left eye. Z.N. did not present 

with other signs of injury, trauma, fractures, or bruising. She had no known 

allergies. Although forceful coughing or crying can cause an SCH, the doctor 

found these were unlikely explanations for Z.N.’s injury. Instead, the doctor 

suspected nonaccidental trauma and referred the case to the hospital’s child 

protection team (CPT) for a physical abuse assessment. 

A child abuse physician with the CPT, Dr. Nienow, confirmed that, 

absent a history of accidental trauma, Z.N.’s injury was “highly concerning” 

for physical abuse. Dr. Nienow described the injury as “sentinel,” meaning a 

“seemingly minor injur[y] in non-mobile infants that [is] often [a] harbinger 

for future more serious abusive trauma.” Dr. Nienow indicated that SCHs 

are generally not self-inflicted for children of Z.N.’s age and would not be 

caused by routine infant care or normal infant activity, such as eye rubbing, 

crying, vomiting, or sneezing. Noting that premature infants such as Z.N.

and Za.N. are at a higher risk of abuse and neglect, Dr. Nienow 

recommended services be provided to support the family and to mitigate the 

risk of future harm. 

After the San Diego County Health and Human Services Agency 

(Agency) was notified by the hospital of Z.N.’s injury, a social worker 
4

interviewed the parents. Mother had no explanation for Z.N.’s injuries. She

reported that Father was the children’s primary caretaker, as she worked 

Monday through Friday from 8:00 a.m. to 5:00 p.m. and every other 

Saturday. Only the parents and the three children resided in the home. She 

denied anyone frequently visited the home or cared for the children, and the 

parents were especially cautious due to the COVID-19 pandemic. She 

indicated that older sister K.N. could not have caused the injury, since K.N.

was not left alone with the twins. Mother also denied that Father could be 

responsible. 

Father largely confirmed Mother’s account during his interview with 

the social worker. As the children’s primary caregiver, he denied that he or 

Mother would have injured Z.N. Father had researched Z.N.’s condition on 

the internet and thought the injury could have been caused by vomiting, 

crying, sneezing, or Z.N. grabbing her own eyes. When the social worker 

explained the doctor’s conclusion that the injury was caused by someone 

pressing on Z.N.’s face or chest, Father denied this ever occurred while he 

was caring for the children. Father also noted the twins have three 

therapists who come to the home three times per week, and that the twins 

cry “a lot” around the therapists and he does not always supervise their 

visits. However, none of the therapists were in the home on February 5, the 

day before Z.N.’s injury presented. 

The Agency attempted to safety plan with the parents, but the parents 

were unwilling to identify a support network or alternate placement options. 

Due to their lack of cooperation, the Agency took protective custody over the 

children and detained them in a foster home. 
5

On February 10, 2021, the Agency filed a petition under Welfare and 

Institutions Code2 section 300, subdivision (a) on behalf of Z.N., alleging 

there was a substantial risk she would suffer serious physical harm inflicted 

nonaccidentally. Pursuant to section 355.1,3 the petition alleged Z.N. had 

suffered an SCH, a condition which would not ordinarily be sustained except 

as a result of the unreasonable acts of the child’s parents. The Agency also 

filed petitions under section 300, subdivision (j) on behalf of Za.N. and K.N.

based on the abuse of their sibling. At the detention hearing on February 11, 

the juvenile court appointed counsel for the parentsand the children, 

detained the children out-of-home, and ordered the Agency to provide the 

parents with voluntary services. It further ordered supervised visitation for 

the parents. 

Around this time, Za.N. was also diagnosed with an SCH in one eye. 

The foster parent noticed marks in the outside corner of Za.N.’s eye when the 

children arrived at the foster home on February 8, 2021. The twins’ primary 

care provider examined Za.N. on February 10 and diagnosed her with an

SCH in the right eye. This was the first time the primary care provider found 

an unexplained injury in either twin. When asked by the social worker if she 

believed the twins’ injuries were nonaccidental, the primary care provider

2 All further statutory references are to the Welfare and Institutions 

Code unless otherwise specified. 

3 Section 355.1, subdivision (a) provides, in relevant part: “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, . . . that finding shall be prima 

facie evidence that the minor is a person described by subdivision (a), (b), or 

(d) of Section 300.” 
6

stated “the general teaching is that there is always concern when children of 

that age have injuries like that.” After moving the children from the foster 

home to a children’s center for a few days, the Agency placed the children

with nonrelative extended family members. 

Za.N. was referred to Dr. Nienow for further examination. Dr. Nienow 

agreed Za.N. had an SCH in one eye, and the presence of this injury 

confirmed her suspicions of physical abuse in the parents’ home. Dr. Nienow

opined that: “As with [Za.N.’s] sister, there has been no history provided to 

explain [Za.N.’s] injury. Subconjunctival hemorrhages are broken blood 

vessels under the surface of the eye and are the result of direct impact 

trauma to the globe itself, or more rarely secondary to increased intrathoracic 

pressure events. These are not the result of self-inflicted injury in this age 

group, are not caused by routine handling/care or crying/coughing/vomiting, 

nor are they sequela of prematurity or indicators of eye disease. In [the] 

absence of a reasonable accidental trauma history these findings are highly 

concerning for inflicted injury. It is very concerning that this is the second 

child in this family [who] has presented for this kind of trauma, further 

reinforcing the concern for physical abuse.” K.N. was also examined and no 

injuries were identified. 

At the parents’ request, the twins’ ophthalmologist, Dr. Robbins, 

provided letters to the Agency. Dr. Robbins had examined the twins for eye 

conditions following their premature birth, and determined their eyes were 

developing well as of their last exam in November 2020. Even though Dr. 

Robbins found the presence of Z.N.’s injury “alarming,” she indicated there 

were many reasons why infants develop SCHs that are unrelated to abuse, 

such as coughing, sneezing, straining, rubbing, or hitting the eye. She stated 

that most SCHs in infants are caused by the infant hitting themselves in the 
7

eye or accidentally being hit by a sibling. She also noted that a pediatric 

ophthalmologist had conducted a full dilated eye exam of Z.N. within 24 to 48 

hours of her presenting with the injury, and no other pathology was found. 

Dr. Robbins described the parents as “devoted” and “caring,” and she did not 

suspect any inappropriate behavior during her interactions with them. 

On February 16, 2021, the Agency received a referral indicating that 

K.N. disclosed that Father hit her in the face. Mother confirmed that K.N. 

had made the same disclosure to her during a visit with the children on 

February 16, but both parents denied Father ever hit K.N. or used physical 

discipline. K.N. was examined and received a CT scan, but no injuries were 

noted. K.N. was also interviewed by the social worker but was unable to 

provide any details due to her difficulties communicating.4

During subsequent interviews with the social worker, the parents 

continued to lack an explanation for the twins’ injuries. Mother maintained 

there was no abuse or neglect in the home and denied that she would benefit 

from services. During his interview, Father confirmed he was the children’s 

primary caregiver and was currently unemployed. He denied ever leaving 

the children unsupervised. He stated he was usually present for the twins’ 

in-home therapies, and K.N. was always supervised around the twins. 

Dr. Nienow examined Z.N. and Za.N. during a follow-up appointment 

on February 22, 2021. Their SCHs had completely resolved, and there were 

no further injuries that indicated abuse or neglect. Dr. Nienow had reviewed 

the letters from Dr. Robbins but maintained that the twins’ injuries were 

likely caused by physical abuse. Dr. Nienow noted that SCHs in infants are 

4 Although Father initially indicated that K.N. was autistic, he 

subsequently claimed he had been misquoted and that she had not been 

diagnosed with autism. 
8

“extraordinarily rare” and are the result of trauma in the majority of cases. 

She repeated her opinion that SCHs would not be, in this age group, the 

result of self-inflicted injury or routine infant care or normal infant activity. 

Following Dr. Nienow’s assessment of Za.N.’s injury, the Agency filed 

an amended petition on Za.N.’s behalf on March 5, 2021, alleging she was a 

child described by section 300, subdivision (a) and that the section 355.1 

presumption applied. 

Pending the jurisdiction and disposition hearing, Z.N. and Za.N.

underwent bloodwork to determine if either child had a condition that may 

have contributed to their respective injuries. Their bloodwork came back 

normal, and no blood conditions were found. K.N. also participated in a 

forensic interview regarding her disclosure that Father hit her in the face. 

The allegation was deemed inconclusive due to K.N.’s inability to 

meaningfully participate in the interview. As for the parents, they had been 

successfully participating in Agency-approved parenting classes, but stopped 

attending child abuse group classes at some point and refused to resume 

participation unless it was court-ordered. 

Dr. Nienow provided a final assessment regarding her findings on April 

29, 2021. She noted that blood disorders in the twins had been ruled out as a 

cause. She also indicated that other evidence of abuse, such as bruising on 

the face or other areas, is not always seen in conjunction with eye 

hemorrhages if force was applied directly to the eye globe and not to other 

parts of the body. Additionally, there may not be additional injuries or 

bruising if smothering, strangulation, or suffocation was involved. 

B. Contested Jurisdiction and Disposition Hearing 

The contested jurisdiction and disposition hearing was held over the 

course of several days in May and June 2021. The Agency recommended that 

the juvenile court find the children’s petitions true, continue to detain the 
9

children out-of-home, and offer the parents family reunification services. It 

further recommended supervised visitation for the parents, with the Agency 

to have the discretion to lift supervision upon the parents’ progress in the 

recommended services. In its reports, the Agency expressed concerns 

regarding the children’s vulnerability given their young ages, complete 

reliance on their parents for protection, and developmental needs. In the 

Agency’s view, the parents’ failure to provide a plausible explanation for the 

twins’ injuries indicated there was a continuing risk of future harm to all 

three children, which could increase in severity.

At the contested hearing, Mother called Dr. Robbins to testify, and she 

was designated as an expert in medicine and pediatric ophthalmology. Dr. 

Robbins examined the twins twice while they were in the NICU after their 

premature birth, and twice as outpatients in her office. According to Dr. 

Robbins, SCHs could occur for a variety of reasons, although they were 

uncommon in childhood generally, and were generally the most noticeable 

within the first 24 hours. In her opinion, the most common cause of an 

isolated SCH in infants was accidental trauma, such as a finger poke, and an 

infant of the twins’ age possessed the ability to poke themselves in a manner 

that could cause an SCH. Dr. Robbins would not suspect child abuse absent 

additional injuries, and believed that a full eye exam would be necessary to 

accurately determine whether an SCH was caused by abuse. She testified, 

however, that abuse should be considered where the infant presents with an 

SCH and there is no accidental trauma history, and she agreed that SCHs 

can be a sentinel injury. She also agreed it was unusual that each twin 

suffered an SCH around the same time, which “heightened” the concern of 

nonaccidental trauma. She indicated that other than trauma, the second 

most likely cause of an SCH in infants was an infection, but this was a “far 
10

second.” Dr. Robbins was unable to provide any studies or data to support 

her opinions, and she indicated that she had only prepared to testify as a 

treating physician and not as an expert in child abuse. 

Father called his own expert, Dr. Tawansy, who was also designated by 

the juvenile court as an expert in medicine and pediatric ophthalmology. In 

Dr. Tawansy’s opinion, the twins’ injuries were not related to child abuse but 

rather eye rubbing and eye inflammation caused by a viral infection. Dr. 

Tawansy agreed with Dr. Robbins that a child of the twins’ age could selfinflict an SCH. He would also expect to see other physical injuries if an SCH 

had been caused by abuse, such as bruising or other injuries to the eye. Dr. 

Tawansy testified he had not personally examined the twins but formed his 

opinion that their injuries were caused by a virus based on the twins’ medical 

records, information from the foster parents, and photographs of the twins. 

He noted the infants’ eyes looked glazed and there was also evidence of eye

secretions in the photographs, which indicated to him the existence of a viral 

infection. He believed that where child abuse is suspected, a comprehensive 

eye exam was “mandatory” to make an accurate diagnosis. During crossexamination, Dr. Tawansy admitted that his curriculum vitae was out of date 

and did not accurately reflect the hospitals where he had admitting 

privileges. He also admitted that he had been investigated by the California 

Medical Board for violating the standard of care, including combining

syringes from different patients, and was in jeopardy of losing his surgeon 

certificate and his authority to supervise physicians. He ultimately settled 

the dispute. 

The Agency called Dr. Nienow as its expert. Dr. Nienow testified that

she evaluates around 1,500 children for suspected child abuse each year. Of 

those cases, she had determined only 50 percent were caused by abuse or 
11

neglect, while the remaining 50 percent she determined were accidental or 

indeterminate causes. Following this testimony, the juvenile court 

designated Dr. Nienow as an expert in pediatric child abuse. 

Regarding the twins’ injuries, Dr. Nienow testified in line with her 

earlier reports, maintaining that their injuries were most likely caused by 

some form of abuse. Although not an ophthalmologist, Dr. Nienow completed 

a fellowship rotation in ophthalmology, and considered herself an authority 

on eye problems that were commonly presented in pediatrics, including 

SCHs. She testified that SCHs were extraordinarily rare in normal, healthy

infants, and were caused by direct trauma to the globe in most cases. An

SCH could be observed immediately and tended to darken during the first 24 

hours. According to Dr. Nienow, the most recent study conducted on 

nonambulatory infants with SCHs found 97 percent of the injuries to be 

related to nonaccidental trauma. Dr. Nienow disagreed with the parents’ 

experts that an infant of the twins’ ages could produce enough force to cause 

their own SCHs. She also did not believe that other markings were likely to 

be present if the twins’ injuries were caused by abuse, noting that she had 

seen this before in other infants with SCHs who were abused. She also 

discussed the potential that SCHs were caused by a virus, but found this 

unlikely, noting that the bloodwork for the twins did not indicate a viral 

infection, and the twins had not displayed any other signs or symptoms that 

would suggest a virus had contributed to their injuries. She stated that Z.N.

and Za.N.’s individual cases were peer-reviewed twice by seven other child 

abuse pediatricians, all of whom agreed with her conclusions. Lastly, Dr. 

Nienow noted that prematurity was a significant risk factor for nonaccidental 

trauma generally, and premature infants were at twice the risk as their 

same-aged normative peers for abuse or neglect.
12

Two social workers were also called to testify regarding their reports 

and interactions with the family. The current social worker assigned to the 

children’s cases testified that she believed all three children were at risk of 

abuse given their young ages and various developmental needs,the 

unexplained injuries in the twins, and the parents’ lack of progress in child 

abuse classes. She expressed specific concerns about the Father’s stress level 

as the children’s primary caregiver. She also testified that Father was alone 

with the children on February 5, 2021, from 8:00 a.m. to 5:00 p.m. while 

Mother was at work, and he was also alone with Za.N. the following three 

days while Mother took the other two children to the hospital. 

The juvenile court also heard testimony from one of the in-home infant 

educators for the twins, who had worked with the twins two hours each week 

for eight weeks. Although this educator did not suspect any abuse or neglect 

by the parents, she also did not believe that any of the service providers from

her company could have caused the twins’ injuries. The foster parent who 

first identified Za.N.’s injury testified she first noticed the injury on the 

evening of February 8, 2021, and that the injury was still observable the 

following morning. She did not observe either twin rub or itch their eyes or 

observe any signs of sickness in either twin. 

The juvenile court also admitted into evidence the Agency’s reports, the 

curriculum vitae for the medical experts, medical records documenting the 

twins’ injuries, and a 45-second video taken by the children’s current 

caregiver showing Za.N. putting her hands on her face and around her eyes. 

The court also admitted the medical articles that Dr. Nienow relied on in 

formulating her opinion, to determine whether the literature supported Dr. 

Nienow’s opinion and not for the truth of the matter asserted in the articles. 
13

After the close of evidence and closing arguments by counsel, the 

juvenile court addressed the credibility of the witnesses, starting with the 

medical experts. It found Dr. Nienow “highly credible,” noting that she had 

testified in his courtroom before, while Dr. Robbins was also found to be 

“highly qualified” with “very impressive credentials.” However, the court 

expressed reservations about Dr. Tawansy’s credibility, noting that his 

failure to update his resume was “lazy,” and that he gave opinions without 

sufficient evidence to support them. Lastly, the court found the current social 

worker and foster parent credible. As to the social worker, the court 

indicated that he had experience hearing testimony from her in his previous 

cases, and that her reports demonstrated that she is “competent” and 

“professional.” 

The juvenile court made a true finding on the petitions based on a 

preponderance of the evidence and assumed dependency jurisdiction over the 

children. The court concluded that the section 355.1 presumption applied 

and was unrebutted by competent evidence, finding no reasonable 

explanation for the twins’ injuries outside of “just theories.” The court 

disbelieved the testimony provided by the parents’ experts, finding it unlikely 

that infants of the twins’ age would injure their own eyes with the force 

necessary to create an SCH, and that none of the treating doctors noted any 

viral infections. The court expressly found that these were sentinel injuries, 

so although not life-threatening, the existence of the injuries raised the 

potential of future, more serious abuse. The court emphasized these injuries 

were uncommon for children of this age, noting the doctors who had treated 

the twins shared Dr. Nienow’s concerns that the injuries were caused by child 

abuse. The court further noted that, even if the presumption was rebutted, it 
14

would have still found the children’s petitions true by a preponderance of the 

evidence. 

The juvenile court then ordered the return of the children to their 

parents’ care, conditioned on the parents’ compliance with a family 

maintenance plan. In rejecting the Agency’s request for out-of-home 

detention, the court found that detriment for removal had not been 

established by clear and convincing evidence. The court also expressed 

empathy for the parents’ circumstance and the difficulties in caring for 

premature infants, finding “that anybody who may have had a moment of 

weakness or had a difficult time that potentially caused these injuries would 

not necessarily do them again.” The court concluded that although the 

children could return to their parents’ care, it was necessary to continue 

monitoring the parents under a family maintenance plan to ensure the 

children’s safety. The safety plan required two adults to be present in the 

home at all times; all relatives and support persons who interacted with the 

family pursuant to the safety plan were to provide the Agency with general 

updates and any safety concerns; an assigned advocate would check on the 

family twice per month; and the Agency was authorized to conduct 

announced and unannounced visits. The parents were also ordered to 

participate in child abuse and group parenting courses, and Father was 

required to attend individual therapy if recommended by his child abuse 

group provider. 

Father and Mother timely appealed.5

5 Although Father and Mother have separately briefed this appeal, they 

have joined the arguments raised in each other’s respective briefs. 
15

DISCUSSION

On appeal, the parents contend the evidence before the juvenile court 

was insufficient to support the true findings for jurisdiction under section 

300, subdivisions (a) and (j). They argue the testimony provided by their 

respective experts rebutted the section 355.1 presumption by which the 

subdivision (a) petitions were predicated, and that the evidence failed to show 

the twins suffered serious injury inflicted nonaccidentally by either parent. 

As such, K.N. was not an at-risk sibling under section 300, subdivision (j). 

They also assert the juvenile court abused its discretion by ordering their 

compliance with a family maintenance plan. They further contend that the 

juvenile court was biased against them. 

As we shall explain, even if the statutory presumption was rebutted, 

there is substantial evidence in the record to support the juvenile court’s 

jurisdictional findings. The parents’ challenge to the dispositional orders is 

also unsuccessful because the family maintenance plan was tailored to 

address the best interests of the children and does not otherwise constitute 

an abuse of discretion. Lastly, the parents’ accusations of judicial bias lack 

support in the record. 

A. The Juvenile Court’s Jurisdictional Findings Are Supported by 

Substantial Evidence

“The court asserts jurisdiction with respect to a child when one of the 

statutory prerequisites listed in section 300 has been demonstrated.” (In re 

I.A. (2011) 201 Cal.App.4th 1484, 1491.) Section 300, subdivision (a) 

authorizes the juvenile court to adjudge a minor a dependent child of the 

court when “[t]he 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.” (§ 300, subd. (a).) Subdivision (j) 

provides a basis for jurisdiction when a child’s sibling has been abused or 
16

neglected under section 300, subdivisions (a), (b), (d), (e), or (i), and there is a 

substantial risk the child will be abused or neglected, as defined in those 

subdivisions. (§ 300, subd. (j); In re Ricardo L. (2003) 109 Cal.App.4th 552, 

566.) The juvenile court need only find the allegations of the petition under 

the subdivisions of section 300 true by a preponderance of the evidence. 

(§ 355; Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 248; In re Brison C. 

(2000) 81 Cal.App.4th 1373, 1379.) 

In addition, under section 355.1, “[w]here the court finds, based upon 

competent professional evidence, that an injury, injuries, or detrimental 

condition sustained by a minor is of a nature as would ordinarily not be 

sustained except as the result of the unreasonable or neglectful acts or 

omissions of either parent, . . . that finding shall be prima facie evidence that 

the minor is a person described by subdivision (a), (b), or (d) of Section 300.” 

(§ 355.1, subd. (a).) The presumption created by section 355.1, subdivision 

(a), “constitutes a presumption affecting the burden of producing evidence.” 

(§ 355.1, subd. (c).) Once the Agency establishes a prima facie case under 

section 355.1, the burden of producing evidence “merely shifts to the parents 

the obligation of raising an issue as to the actual cause of the injury or the 

fitness of the home.” (In re James B. (1985) 166 Cal.App.3d 934, 937, fn. 2

(James B.) [discussing former section 355.2, section 355.1’s predecessor].) 

“The general rule is that ‘the juvenile court’s exercise of jurisdiction 

over a child will be upheld if substantial evidence supports any one of the 

statutory bases for jurisdiction enumerated in the petition.’ ” (In re M.R.

(2017) 7 Cal.App.5th 886, 896.) Under this standard, we consider the entire 

record to determine whether the evidence is “ ‘ “reasonable, credible, and of 

solid value.” ’ ” (In re S.A. (2010) 182 Cal.App.4th 1128, 1140.) We do not 

pass on the credibility of witnesses, attempt to resolve conflicts in the 
17

evidence, or weigh the evidence. Instead, we draw all reasonable inferences 

in support of the findings, view the record favorably to the juvenile court's 

orders, and affirm the orders even if other evidence supports a contrary 

finding. (In re Casey D. (1999) 70 Cal.App.4th 38, 52−53 (Casey D.)

disapproved of on other grounds by In re Caden C. (2021) 11 Cal.5th 614, 

635−636.) Substantial evidence is not synonymous with any evidence. (In re 

Savannah M. (2005) 131 Cal.App.4th 1387, 1393 (Savannah M.), abrogated 

on different grounds by In re R.T. (2017) 3 Cal.5th 622, 628−631.) The 

ultimate test is whether, considering the entire record, a reasonable trier of 

fact would make the challenged ruling. (Savannah M., at pp. 1393−1394.) 

We begin our analysis with the statutory presumption set forth by 

section 355.1, subdivision (a). As noted, that presumption is only a 

presumption affecting the burden of producing evidence. (§ 355.1, subd. (c).) 

“ ‘The effect of a presumption affecting the burden of producing evidence is to 

require the trier of fact to assume the existence of the presumed fact unless 

and until evidence is introduced which would support a finding of its 

nonexistence, in which case the trier of fact shall determine the existence or 

nonexistence of the presumed fact from the evidence and without regard to 

the presumption.’ (Evid. Code, § 604.)” (In re D.P. (2014) 225 Cal.App.4th 

898, 903–904 (In re D.P.).) “Thus, when the party against whom such a 

presumption operates produces some quantum of evidence casting doubt on 

the truth of the presumed fact, the other party is no longer aided by the 

presumption. The presumption disappears, leaving it to the party in whose 

favor it initially worked to prove the fact in question.” (Rancho Santa Fe

Pharmacy, Inc. v. Seyfert (1990) 219 Cal.App.3d 875, 882.) In comparison, a 

presumption affecting the burden of proof imposes a much more onerous 

burden, placing the burden on the opposing party to disprove the presumed 
18

fact by a preponderance of the evidence (or other appropriate standard). 

(Evid. Code, § 606; In re Heather B. (1992) 9 Cal.App.4th 535, 560−561.) 

In this case, we assume without deciding that the parents’ expert 

testimony⎯opining that the twins’ injuries were most likely unrelated to 

abuse⎯was sufficient to rebut the statutory presumption under section 

355.1. (Cf. In re Quentin H. (2014) 230 Cal.App.4th 608, 615 [evidence in the 

record showing father had always behaved appropriately with his children 

was sufficient to rebut the section 355.1 presumption that his children were 

described by section 300, subdivisions. (b) and (d)]; In re Esmeralda B. (1992) 

11 Cal.App.4th 1036, 1041 [father rebutted the section 355.1 presumption 

with contradictory evidence in social worker’s report regarding the physical 

cause of the child’s injury]; James B., supra, 166 Cal.App.3d at p. 937 

[discussing section 355.2, section 355.1’s predecessor, and concluding the 

juvenile court erred by applying the statutory presumption where the parents 

had presented rebuttal evidence, which included expert testimony indicating 

that the child’s injuries could have been caused accidentally]; with In re J.L. 

(2014) 226 Cal.App.4th 1429, 1433−1435 [presumption under section 355.1 

applied where mother’s testimony that she did not know or have any reason 

to know of her child’s abuse was “completely beside the point” to disproving 

the allegations in the petition]; In re Richard H. (1991) 234 Cal.App.3d 1351, 

1363 [expert testimony indicating that child’s injuries were nonaccidental 

established a section 355.1 presumption, which was not rebutted by the 

parents].) 

However, even without applying the statutory presumption, we 

conclude there is substantial evidence in the record to support the juvenile 
19

court’s jurisdictional findings.6 Although the court found Dr. Robbins and 

Dr. Tawansy to be qualified experts in pediatric ophthalmology, it concluded 

that Dr. Nienow provided the most persuasive testimony on the issue of 

abuse. Dr. Nienow, who the juvenile court certified as an expert in child 

abuse pediatrics, reported that SCHs were extraordinarily rare in normal, 

healthy infants, occurring in only 0.5 percent of that population. She 

testified that in the most recent study conducted on infants presenting with 

SCHs, 97 percent of the SCHs were found to be related to nonaccidental 

trauma. She also explained that other causes unrelated to abuse had been 

ruled out, as the twins presented with no symptoms of upper respiratory 

illness, no history of illness or underlying medical condition, and no history of 

accidental trauma was provided by the parents. Dr. Nienow further testified 

that of the 1,500 child abuse cases she evaluates each year, she determined 

child abuse was the cause of the child’s condition in only 50 percent of those 

cases. 

Dr. Nienow’s conclusion that abuse was the most likely explanation for 

the twins’ injuries was not an isolated opinion, as numerous other doctors 

shared her concerns that the twins’ injuries were inflicted intentionally. For 

instance, Dr. Nienow’s opinion was peer-reviewed twice by seven other child 

abuse pediatricians, all of whom agreed with Dr. Nienow that abuse was the 

most likely explanation. The twins’ primary care provider also stated that 

the circumstances of the twins’ injuries were concerning for abuse. And even

before Dr. Nienow became involved in the case, the emergency room 

physician who examined Z.N. suspected nonaccidental trauma. 

6 The juvenile court expressly noted that, even if the presumption was 

rebutted, it would have still found the children’s petitions true by a 

preponderance of the evidence. 
20

Further, although Dr. Robbins differed with Dr. Nienow’s ultimate 

findings, she agreed with Dr. Nienow’s opinion in significant respects. For 

instance, she conceded it was “odd” both twins had the same injury absent 

any underlying conditions. Additionally, it was her opinion that trauma, 

such as a finger poke, is the most common cause of an SCH, while SCHs 

caused by infections are much rarer. Even though Dr. Robbins believed that 

the most common cause of an isolated SCH was accidental trauma, she 

admitted SCHs could constitute a sentinel injury, and that nonaccidental 

trauma could still be considered as a potential cause in this instance. 

The parents raise various contentions to challenge the juvenile court’s 

reliance on Dr. Nienow’s testimony, asserting that the testimony provided by 

their respective experts should have been given greater weight. For example, 

they contend that Dr. Nienow’s opinion was unpersuasive because she is not 

an ophthalmologist. They also challenge the validity of the reports Dr. 

Nienow relied on in formulating her opinion. But these challenges overlook 

the governing standard of review, as we do not reweigh the credibility of 

witnesses or the evidence and we are required to affirm the orders even if 

other evidence supports a contrary finding. (See Casey D., supra, 70 

Cal.App.4th at pp. 52−53 [Under the substantial evidence standard, “[w]e 

have no power to judge the effect or value of the evidence, to weigh the 

evidence, to consider the credibility of witnesses or to resolve conflicts in the 

evidence or the reasonable inferences which may be drawn from that 

evidence.”].) 

The juvenile court was entitled to discount the testimony provided by 

Dr. Robbins and Dr. Tawansy and find that Dr. Nienow’s conclusions were 

the only reasonable explanation of what caused the twins’ injuries. 

Moreover, the court reasonably questioned the veracity of Dr. Tawansy’s 
21

testimony; he made a diagnosis of a viral infection in the twins based on 

pictures and blood tests. He never personally examined the twins, and the 

court correctly noted that none of the treating doctors noted any viral 

infections. The court was permitted to rely on the totality of this evidence in 

determining the probative value of Dr. Tawansy’s testimony, and we lack the 

authority to supplant the court’s credibility determinations with our own. (In 

re Cole Y. (2015) 233 Cal.App.4th 1444, 1451−1452.) 

We are similarly unpersuaded by the parents’ contentions that the

juvenile court’s section 300, subdivision (a) findings are legally flawed. They 

assert, for instance, that the court’s finding that the twins’ injuries were 

“sentinel” and therefore relatively minor demonstrates that the twins did not 

fall within the definition of section 300, subdivision (a). Under that 

subdivision, “a court may find there is a substantial risk of serious future 

injury based on the manner in which a less serious injury was inflicted, a 

history of repeated inflictions of injuries on the child or the child’s siblings, or 

a combination of these and other actions by the parent or guardian that 

indicate the child is at risk of serious physical harm.” (§ 300, subd. (a).) 

Even though the court found the injuries were sentinel, it was appropriately 

concerned that both twins presented with the same injury. The

circumstances of Za.N. and Z.N.’s injuries therefore fell directly within the 

definition of section 300, subdivision (a), as there was a “history of repeated 

inflictions of injuries on the child or the child’s siblings[.]” (Italics added.)

Contrary to the parents’ contentions, there were additional factors in 

this case indicating that the twins were vulnerable to suffering from future, 

more serious abuse, which provides further support for sustaining the 

petitions under section 300, subdivision (a). For instance, it is undisputed 

that the twins’ injuries likely occurred while under their parents’ supervision.
22

According to Dr. Robbins and Dr. Nienow, the twins’ SCHs would have been 

visible within the first 24 hours, and the twins were in the parents’ exclusive 

care during the 24 hours leading up to the discovery of the injuries. While

Dr. Robbins suggested an SCH could be caused by an older sibling

accidentally, both parents maintained that K.N. was never left alone with the 

twins. Dr. Nienow also provided uncontroverted testimony that premature 

infants generally are more susceptible to abuse. 

The parents also focus on the lack of a definitive cause for the twins’ 

injuries, suggesting that such circumstances are insufficient for a 

jurisdictional finding under section 300, subdivision (a). However, appellate 

courts have determined that allegations under section 300 may be sustained 

even if the cause of the child’s injuries is unknown. (See, e.g., In re A.S.

(2011) 202 Cal.App.4th 237, 245−246 (In re A.S.) [where the parents could not 

be ruled out as perpetrators for the child’s injuries, a finding of jurisdiction 

under section 300, subdivision (b), was proper], disapproved of on other 

grounds by Conservatorship of O.B. (2020) 9 Cal.5th 989; In re Christina T. 

(1986) 184 Cal.App.3d 630, 640 [jurisdiction under section 300, subdivisions

(a) and (d), was supported when it could not be ascertained whether the 

father or mother’s boyfriend sexually abused the child]; In re E.H. (2003) 108 

Cal.App.4th 659, 670 [“where there is no identifiable perpetrator, only a cast 

of suspects, jurisdiction under subdivision (e) is not automatically ruled 

out”].) As the court in In re A.S. explained: “ ‘Unlike criminal proceedings, 

where establishing the identity of the perpetrator is paramount, the purpose 

of dependency proceedings [is] to fashion appropriate orders in the best 

interest of the child. . . .’ [Citation.] If a perpetrator’s identity must be 

conclusively established, ‘a family could stonewall the [social services 

department] and its social workers concerning the origin of a child’s injuries 
23

and escape a jurisdictional finding. . . .’ [Citation.] The prerequisite of a 

conclusive identification could lead to absurd results: the potential return of 

a seriously injured child to an unidentified perpetrator. The purpose of 

dependency law ‘is to provide maximum safety and protection’ for currently 

abused and neglected children and to ensure the safety of children at risk of 

harm.” (In re A.S., at pp. 245–246.) 

At the time of the contested adjudication, the parents could not be 

ruled out as the perpetrators of the twins’ injuries. As explained ante, the 

twins were under their parents’ exclusive care when the injuries presented, 

and multiple medical professionals agreed that the absence of any 

explanation for the injuries suggested nonaccidental trauma. Such evidence 

supports a reasonable inference that the twins were at a substantial risk of 

serious physical harm and was sufficient to sustain the jurisdictional findings 

under section 300, subdivision (a). (See In re D.P., supra, 225 Cal.App.4th at 

p. 903 [“The undisputed evidence of nonaccidental trauma and mother’s

failure to explain how [her minor son] was injured in her care constituted 

substantial evidence that mother was responsible for inflicting these injuries 

on [the minor].”].) 

The parents also highlight statements made by the juvenile court when 

ruling on disposition, which they argue could suggest there was no longer a 

risk of future harm. In this section of its ruling, the court noted that the 

parents were hardworking, loved their children, and that having “a really bad 

moment . . . doesn’t make you a really bad person.” The court also stated that 

although the abuse may have occurred in “a moment of weakness,” this did 

not necessarily mean it would happen again. The parents deduce that these

dispositional findings indicated there was no substantial danger to the 

children’s well-being and were therefore inconsistent with the court’s 
24

jurisdictional findings that the children were at substantial risk of serious 

harm. 

None of the statements the parents emphasize, however, are 

necessarily inconsistent with the juvenile court’s jurisdictional findings. 

While jurisdictional findings require only a preponderance of the evidence 

(§§ 300, 355, subd. (a)), a dependent child may not be taken from the physical 

custody of the parent under section 361 at the dispositional stage unless the 

court finds there is clear and convincing evidence of a substantial danger to 

the child’s well-being if returned home, and there are no reasonable means to 

protect the child’s physical health without removing the child (§ 361, subd. 

(c)(1)). The court in this case expressly found that although the evidence was 

sufficient to establish jurisdiction by a preponderance of the evidence, it did 

not find clear and convincing evidence to justify the children’s continued 

removal from the home. Rather than establishing an inconsistency, these 

findings reflect the court’s compliance with the heightened burden of proof 

required for establishing disposition relative to jurisdiction. 

As we have explained, there is substantial evidence in the record to 

support the juvenile court’s jurisdictional findings under section 300, 

subdivision (a). Correspondingly, the court’s assumption of jurisdiction over 

K.N. pursuant to section 300, subdivision (j) is also supported. Under section 

300, subdivision (j), “[t]he court shall consider the circumstances surrounding 

the abuse or neglect of the sibling, the age and gender of each child, the 

nature of the abuse or neglect of the sibling, the mental condition of the 

parent or guardian, and any other factors the court considers probative in 

determining whether there is substantial risk to the child.” In this case, the 

Agency was unable to confirm K.N.’s allegation that Father hit her in the 

face. However,“[t]he juvenile court need not wait until a child is seriously 
25

injured to assume jurisdiction if there is evidence that the child is at risk of 

future harm from the parent’s negligent conduct.” (In re Yolanda L. (2017) 7 

Cal.App.5th 987, 993.) In the absence of any confirmed injuries to K.N., the 

court could still reasonably conclude that the unexplained injuries to K.N.’s 

siblings placed her at a substantial risk. K.N. was similarly situated to the 

twins given her young age, complete reliance on her parents for care, and her 

own developmental needs. Further, K.N.’s difficulties communicating with 

the social workers throughout these proceedings indicated she may be unable 

to report abuse. Thus, the similarities in the circumstances of these siblings 

are sufficient to sustain the jurisdictional allegations in K.N.’s petition. 

B. The Juvenile Court Did Not Abuse Its Discretion in Ordering Family 

Maintenance Services

After the juvenile court makes a true finding at the jurisdictional phase 

of a dependency case, the court must then consider whether a minor should 

be declared a dependent and whether he or she would be at substantial risk 

of harm if not removed from the parent’s care. (§§ 358, subd. (a), 360, 361; 

see In re Austin P. (2004) 118 Cal.App.4th 1124, 1129.) In general, “ ‘[t]he 

juvenile court has broad discretion to determine what would best serve and 

protect the child’s interest and to fashion a dispositional order in accordance 

with this discretion.’ ” (In re Neil D. (2007) 155 Cal.App.4th 219, 225.) The 

juvenile court’s order “ ‘will not be reversed absent a clear abuse of 

discretion.’ ” (Ibid.) 

In challenging the dispositional orders, the parents assert that the 

juvenile court impliedly found that the abuse “was a one-time event, and that 

it would not happen again.” They highlight statements the court made

complimenting the parents for being hardworking and loving their children, 

and the court’s indication that there was not “necessarily a propensity” for 

further abuse. Based on these comments, combined with the court’s decision 
26

to return the children to the parents’ care, the parents assert that their

continued supervision under a court-ordered family maintenance plan is

arbitrary. 

The parents’ challenge to the juvenile court’s dispositional findings, 

however, takes the court’s statements out of context. The court did not find 

that the abuse was a “one-time event.” Rather, it was optimistic that the

children could safely return to the parents’ care but believed that a family 

maintenance plan was necessary to ensure there were no further instances of 

abuse. The court also cited the appropriate legal standards throughout its 

decision, and as explained previously, the dispositional and jurisdictional 

findings reflected the Agency’s differing burdens of proof. (§§ 300, 355, subd. 

(a), 361, subd. (c)(1).) Thus, sustaining the jurisdictional allegations while 

also returning the children to the parents’ care was neither arbitrary nor 

inherently inconsistent. 

The specific aspects of the family maintenance plan further 

demonstrate that the juvenile court acted within its discretion when it made 

its dispositional orders. For instance, the family maintenance plan included 

the requirement that two adults be present in the home with the children at 

all times, and that the parents attend child abuse classes. Both provisions 

specifically addressed concerns the Agency raised regarding Father’s stress 

level as the sole caregiver for the children while Mother is at work, and the 

parents’ refusal to attend child abuses classes unless it was court-ordered. 

Overall, the court was entitled to fashion its dispositional orders in the 

manner it determined would serve the children’s best interests, and requiring 

the parents to comply with a family maintenance plan does not constitute an 

abuse of discretion under the circumstances of this case. (In re Nada R. 

(2001) 89 Cal.App.4th 1166, 1179.) 
27

C. The Juvenile Court Was Not Biased Against the Parents

The Due Process Clause “ ‘entitles a person to an impartial and 

disinterested tribunal in both civil and criminal cases.’ ” (Brown v. American 

Bicycle Group, LLC (2014) 224 Cal.App.4th 665, 673.) That right extends not 

only to criminal defendants but to civil litigants as well. (People v. Scott

(1997) 15 Cal.4th 1188, 1206.) However, as the California Supreme Court 

has explained, “[m]ere expressions of opinion by a trial judge based on actual 

observation of the witnesses and evidence in the courtroom do not 

demonstrate a bias.” (People v. Guerra (2006) 37 Cal.4th 1067, 1111

(Guerra), overruled on another point in People v. Rundle (2008) 43 Cal.4th 76, 

151.) 

On appeal, our task is to “assess whether any judicial misconduct or

bias was so prejudicial that it deprived [the appellant] of ‘ “a fair, as opposed 

to a perfect, trial.” ’ ” (Guerra, supra, 37 Cal.4th at p. 1112.) This standard is 

“an objective one,” and it requires a showing of bias on the part of the trial 

judge that is so great as to become “ ‘ “constitutionally intolerable.” ’ ” (People 

v. Freeman (2010) 47 Cal.4th 993, 1001.) 

The parents’ assertion that the juvenile court was biased against them 

relies on comments the judge made indicating his familiarity with Dr. 

Nienow and one of the social workers who testified in this matter. The 

parents contend that rather than basing its credibility determinations on the 

testimony presented at trial, the court had predetermined the credibility of 

these witnesses.

We perceive no judicial bias in our review of the record. For instance, 

in finding that Dr. Nienow was credible, the juvenile court expressly referred 

to the testimony Dr. Nienow provided in this matter to support the present 

petitions. The court was particularly persuaded by her testimony that she 
28

finds child abuse in only about half of the cases she reviews. Similarly, the 

court made a positive credibility finding of the social worker based on her 

“work product,” indicating that the court had relied on the quality of the

reports the social worker provided in these proceedings. Thus, although 

there were passing references to the court’s prior cases that involved these 

witnesses, the credibility determinations were rooted in the evidence 

presented in this matter.7

The record is otherwise replete with examples showing that the 

juvenile court treated the parties fairly and even-handedly, and with 

empathy. For instance, the court rejected the Agency’s request for out-ofhome detention, instead allowing the children to return to the parents’ care. 

In making these dispositional findings, the court described the parents as 

“very good people,” “hardworking,” and that they appeared to love their 

children⎯compliments the parents have expressly recognized in this appeal. 

Even though the court ultimately found the Agency’s evidence more 

persuasive as to the jurisdictional allegations, the court also found Mother’s 

expert, Dr. Robbins, to be “a very highly qualified witness” with “very 

impressive credentials” in her own right. (Cf. Guerra, supra, 37 Cal.4th at 

p. 112 [“a trial court’s numerous rulings against a party—even when 

erroneous—do not establish a charge of judicial bias”].) This record, on the 

whole, does not support the parents’ claims of judicial bias.

7 We note that the juvenile court’s stray remarks regarding its prior 

experiences with these witnesses were unnecessary to the court’s ultimate 

findings in this case, and thus it may have been preferrable for the court to 

refrain from such commentary. Nevertheless, “[t]he role of a reviewing court 

‘is not to determine whether the trial judge’s conduct left something to be 

desired, or even whether some comments would have been better left unsaid.’ 

[Citation].” (People v. Harris (2005) 37 Cal.4th 310, 347.) 
29

DISPOSITION

The orders of the juvenile court are affirmed. 

DO, J.

WE CONCUR:

IRION, Acting P. J.

GUERRERO, J.