Filed 6/28/22 In re D.G. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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

FIRST APPELLATE DISTRICT

DIVISION ONE

In re D.G., et al., Persons Coming 

Under the Juvenile Court Law.

ALAMEDA COUNTY SOCIAL 

SERVICES AGENCY,

Plaintiff and Respondent,

v.

DANIEL G., et al.,

Defendants and Appellants.

 A162737

 (Alameda County

 Super. Ct. Nos. JD032451 & 

JD032452)

G.G. (Mother) and Daniel G. (Father) (parents) appeal from the 

juvenile court’s jurisdictional findings under Welfare and Institutions Code 

section 300, subdivision (e) —severe physical abuse.

1 Parents’ sole contention 

on appeal is that the juvenile court erred in applying a res ipsa loquitur 

theory of negligence to sustain its jurisdictional finding. We affirm. 

I.

BACKGROUND

We summarize only the facts necessary to resolve this appeal. 

1 Father has joined in all of the arguments mother presented in her 

opening brief. 
2

D.G. and Ezekiel G. (minors) were the subjects of a dependency petition 

filed by Alameda County Social Services Agency (agency) under Welfare and 

Institutions Code2 section 300, subdivisions (b)(1), (e), and (j). Under 

subdivision (e), the petition alleged that parents were the sole care providers 

for five-week-old Ezekiel and two-year-old D.G, and that while in their care, 

Ezekiel sustained “several unexplained, non-accidental injuries consisting of 

two abdominal horizontal bruises, bruises on the tip of the index finger, torn 

inner top lip, bruises on the penis, subdural hematoma, left and right wrist 

fracture as well as a left corner fracture.” The petition further alleged D.G.

had sustained “bruises to his left cheek and above his right knee.” 

The agency’s jurisdictional report noted that parents had been married 

eight years, and had two children, D.G. and Ezekiel. After Ezekiel’s birth, 

mother and father were his only caregivers and they had not had any visitors

in the home. The parents had no explanation for Ezekiel’s injuries. The 

report noted that although parents “continuously blame [D.G.] for the

injuries Ezekiel has sustained,” the medical expert opined that “ ‘[D.G.] could 

be the cause of maybe one bruise, but it does not explain weeks and weeks of 

bruising.’ ” 

At the contested jurisdictional hearing, which took place over the 

course of five months, several witnesses testified. For the agency, the social 

worker testified, as did Dr. Casey Brown, a medical expert in child abuse

pediatrics. Dr. Brown, who treated Ezekiel at Oakland Kaiser pediatric 

intensive care unit and was the only medical witness to examine Ezekiel in 

person, testified that he had multiple nonaccidental injuries and that his 

injuries resulted from physical abuse on more than one occasion. Dr. Brown 

also opined Ezekiel’s injuries were not the result of any underlying medical 

2 All statutory references are to the Welfare and Institutions Code. 
3

condition (including rickets), birth injury, or D.G. hurting Ezekiel. For the 

defense, Dr. David Ayoub, a general radiologist expert, and Dr. Steven 

Gabaeff, an expert in emergency medicine, general medicine, and 

clinical/forensic medicine, testified. Dr. Ayoub opined Ezekiel suffered from 

infantile rickets. Dr. Gabaeff testified that Ezekiel’s injuries had medical 

explanations other than child abuse. Mother and Father both testified as 

well. 

The juvenile court found true the allegations of the petition. The court 

gave a lengthy ruling from the bench with explicit findings on the credibility 

of each of the witnesses, including parents’ expert witnesses. The court 

observed the case “boil[ed] down to . . . the battle of the experts.” The court 

found Dr. Brown credible, Dr. Gabaeff “not especially credible,” and Dr. 

Ayoub not “specifically credible.” Under the totality of the circumstances, 

including the COVID-19 pandemic, the absence of visitors to the home, and 

parents being the sole caretakers, the juvenile court concluded that “Ezekiel 

was physically abused in the home of the parents,” and specifically that his 

parents knew or reasonably should have known the abuse was occurring.

The court declared the children dependents of the court, and ordered them 

removed from parental custody pending the provision of family reunification 

services. 

II.

DISCUSSION

Parents’ sole contention on appeal is that the juvenile court erred in 

relying on In re E.H. (2003) 108 Cal.App.4th 659 (E.H.) and a res ipsa 

loquitur theory to support its jurisdictional finding under section 300, 
4

subdivision (e) (section 300(e)).

3 The agency urges us to dismiss the appeal, 

arguing it fails to raise a justiciable issue. In the alternative, the agency

contends the juvenile court’s order was supported by substantial evidence. 

We conclude that even assuming the appeal is not moot, parents have failed 

to demonstrate that the juvenile court erroneously employed a res ipsa 

loquitur theory to sustain its findings. 

A. Justiciability 

The agency argues parents fail to raise a justiciable issue for two 

reasons. First, parents contest only a single jurisdictional finding of the court

(the section 300(e) allegation), without challenging the other bases for 

jurisdiction. Second, while this appeal was pending, the juvenile court 

dismissed the dependency, terminating its jurisdiction.

4 In light of those 

orders, the agency urges us to dismiss the appeal as moot. 

“It is a fundamental principle of appellate practice that an appeal will 

not be entertained unless it presents a justiciable issue.” (In re I.A. (2011) 

201 Cal.App.4th 1484, 1489.) “ ‘ “A judicial tribunal ordinarily may consider 

and determine only an existing controversy, and not a moot question or 

abstract proposition. . . . [A]s a general rule it is not within the function of the 

court to act upon or decide a moot question or speculative, theoretical or 

abstract question or proposition, or a purely academic question, or to give an 

advisory opinion on such a question or proposition. . . .” ’ ” (Id. at p. 1490.) 

3 Mother expressly concedes she is not challenging the sufficiency of the 

evidence supporting the juvenile court’s jurisdictional finding under 

section 300(e), nor does her appeal challenge the other bases for jurisdiction 

under section 300, subdivisions (b)(1) and (j). 

4 Because we will decide the case on the merits, we deny Mother’s 

request for judicial notice of the juvenile court’s June 2, 2021, July 1, 2021, 

and December 21, 2021 minute orders as they are unnecessary to our 

resolution of the case. 
5

“The termination of juvenile court jurisdiction does not categorically 

prevent a reviewing court from granting effective relief in all cases. Thus, 

mootness of an appeal from a juvenile court order followed by the unappealed 

termination of juvenile court jurisdiction ‘must be decided on a case-by-case

basis’ [citations], and such termination will not moot an appeal if, on the facts 

of the particular case, the appellate court can still grant the appellant 

effective relief.” (In re S.G. (2021) 71 Cal.App.5th 654, 663–664.) Mother 

argues in her reply brief that we should address the validity of the trial 

court’s jurisdictional finding because it may have some consequence in a 

future dependency proceeding. Specifically, she argues that the sustained 

jurisdictional finding under section 300(e) could be the basis for future 

allegations under section 300, subdivisions (a) and (j), or for application of 

section 361.5, subdivisions (b)(3) or (b)(6) to bypass reunification services in a 

future dependency case. Mother also argues we may exercise our discretion 

to resolve a moot question when there has been actual error in the 

jurisdictional findings. (See, e.g., In re M.W. (2015) 238 Cal.App.4th 1444, 

1452.) Finally, citing In re S.G., at pages 664, 668, Mother argues that we 

can require the juvenile court to correct its erroneous decision by way of the 

remittitur notwithstanding the termination of dependency jurisdiction. 

Although we seriously question whether Mother has sufficiently 

demonstrated justiciability, in light of the possibility parents would be 

affected in a future proceeding and out of an abundance of caution, we will 

exercise our discretion to consider the merits.

B. The Juvenile Court Did Not Err By Relying on a Presumption of 

Negligence

Parents argue the juvenile court erred when it applied a res ipsa 

loquitur theory to sustain the section 300(e) allegation. 
6

The juvenile court can assert jurisdiction under section 300(e) if it finds 

by a preponderance of the evidence that (1) the minor is under five, (2) the 

minor suffered severe physical abuse, and (3) the abuse was by a parent or a 

person known to the parent if the parent knew or reasonably should have 

known the person was physically abusing the minor. (§ 300(e); E.H., supra, 

108 Cal.App.4th at p. 668; K.F. v. Superior Court (2014) 224 Cal.App.4th 

1369, 1381–1382.) Parents do not challenge the sufficiency of the evidence 

supporting these findings in this case, but argue only that the juvenile court 

erred in sustaining the section 300(e) allegations based on the same res ipsa 

loquitur theory employed in E.H.

In E.H., an infant sustained multiple bone fractures at different stages 

of healing ranging from one to six weeks old. (E.H., supra, 108 Cal.App.4th 

at p. 661.) The child welfare department filed a dependency petition alleging 

the child came within the juvenile court’s dependency jurisdiction under 

section 300, subdivisions (a), (b), (e), (i), and (j). A doctor who examined the 

child concluded her injuries were likely nonaccidental. (E.H., at pp. 661–

662.) The mother testified that she lived with several family members, but 

denied that anyone would hurt the child. (Id. at p. 662.) The juvenile court 

found the injuries were intentionally inflicted and were caused by someone in 

the household, but the evidence did not establish who injured the child. (Id. 

at pp. 661, 667.) The juvenile court sustained the petition as to section 300, 

subdivisions (a), (b), and (j), but dismissed the allegations as to 

subdivision (e). (E.H., at pp. 661, 667.) 

The child welfare department appealed, asserting a “ ‘res ipsa loquitur’ 

type of argument” and the appellate court reversed. (E.H., supra, 

108 Cal.App.4th at pp. 669, 671, fn. omitted.) The appellate court noted that 

there was severe physical abuse (the child’s broken bones) and that the child 
7

was never out of her parents’ custody. (Id. at pp. 669–670.) The court 

concluded that “[t]he only reasonable conclusion to be drawn from the facts of 

the instant case was that someone in the home was causing [the child’s] 

injuries, and that [the parents] reasonably should have known (since they 

lived there) the identity of the perpetrator.” (Id. at p. 670.) 

Although parents contend the juvenile court employed a res ipsa 

loquitur presumption to reach its finding here, we find no evidence of that in 

the record. In its lengthy ruling setting forth the basis for its ruling, the

court made detailed findings regarding the credibility of the testifying 

witnesses and the substance of the evidence that supported the allegations of 

the petition. The only reference the court made at all to E.H., supra, 

108 Cal.App.4th 659, was the following comment: “And as I re-read, and I 

don’t have the cite of the ‘E.H.’ case, again it was clear to me that this is one 

of very similar factually, in a lot of ways these are.” (Sic.) (Italics added.) 

In any event, parents have failed to demonstrate that any reliance by 

the juvenile court on E.H. was erroneous. The case, published in 2003, has 

been widely followed and parents cite no legal authority questioning its 

rationale. As the E.H. court explained, “where there is no identifiable 

perpetrator, only a cast of suspects, jurisdiction under [section 300(e)] is not 

automatically ruled out. A finding may be supported by circumstantial 

evidence as it is here. Otherwise, a family could stonewall the Department 

and its social workers concerning the origin of a child’s injuries and escape a 

jurisdictional finding under [section 300(e)].” (E.H., supra, 108 Cal.App.4th

at p. 670, italics added; see K.F. v. Superior Court, supra, 224 Cal.App.4th at 

pp. 1382–1383 [juvenile court could sustain § 300(e) allegation where the 

parents were primary caretakers, were new parents taking care of their first 

child, and only other caretakers were older and had raised children 
8

apparently with no abuse allegations].) Here, substantial evidence supported 

findings that Ezekiel’s injuries were the result of abuse, he was never out of 

his parents’ custody during the time his injuries occurred, and it was not 

possible that the injuries were caused by his two-year-old brother. Based on 

the evidence before it, the juvenile court could reasonably conclude that 

Mother or Father caused Ezekiel’s injuries, or, they reasonably should have 

known the other parent caused his injuries.5

Parents also argue the juvenile court’s reliance on E.H. amounts to an 

application of the section 355.1 presumption to section 300(e). In dependency 

cases, when child abuse is cited as the ground for jurisdiction under section 

300, subdivisions (a), (b), or (d), the Legislature has authorized the juvenile 

court to rely on a presumption affecting the burden of production of evidence. 

(§ 355.1, subds. (a) & (c).) “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.” (§ 355.1, 

subd. (a).) Under section 355.1, the juvenile court must presume the child is 

subject to its jurisdiction unless the parent produces evidence “ ‘as to the 

actual cause of the injury’ ” or detrimental condition. (In re D.P. (2014) 

225 Cal.App.4th 898, 903.) If the parent introduces such evidence, the court

5 Parents cite In re Roberto C. (2012) 209 Cal.App.4th 1241, 1254–1256, 

but that case, decided by the same appellate court that decided E.H., is 

distinguishable. In Roberto C., the juvenile court did not abuse its discretion 

in declining to assume the parents knew or should have known the child was 

injured or being severely abused when the child was happy and healthy at all 

times prior to his sudden collapse and hospitalization. (Roberto C., at 

pp. 1254–1256.)
9

must make its jurisdictional findings without regard to the presumption, and 

by weighing the evidence. (Id. at p. 904.) The statutory presumption does 

not, however, apply to section 300(e). (§ 355.1, subd. (a).) Parents contend 

the E.H. court’s reliance on a res ipsa loquitur theory “is functionally 

equivalent to, if not broader than, the statutory presumption in section 355.1, 

subdivision (a),” and accordingly, the juvenile court erred in applying it to 

find Mother and Father knew or reasonably should have known Ezekiel was 

being abused to sustain the section 300(e) finding. 

As parents acknowledge, however, res ipsa loquitur is a presumption 

affecting the burden of producing evidence that requires the trier of fact to 

assume the existence of the presumed fact unless the defendant introduces 

evidence to the contrary. (See Evid. Code, §§ 604, 646.) But here, the 

juvenile court did not rely on a presumption of negligence because the 

parents did introduce evidence to the contrary, including opinions from two 

medical experts—evidence that the juvenile court carefully discussed and 

expressly weighed on the record. We may not second-guess those 

determinations on appeal. (E.H., supra, 108 Cal.App.4th at p. 669.) 

Moreover, as the E.H. court explained, resort to the presumption found 

in section 355.1 is not required in a case involving a section 300(e) allegation. 

A finding under section 300(e) does not require knowledge of the actual 

identity of the abuser; rather, a juvenile court may exercise jurisdiction if the 

parents knew or reasonably should have known that their child was being 

abused. (E.H., supra, 108 Cal.App.4th at p. 670.) Here, as discussed above, 

there is no dispute that the juvenile court’s finding was amply supported by 

the circumstantial evidence that Ezekiel, a five-week-old, nonmobile infant 

suffered serious physical abuse and that Mother and Father were the sole 

caretakers. Under the totality of the evidence, the juvenile court could 
10

reasonably conclude that Mother and Father should have known Ezekiel was 

harmed by the other parent. 

III.

DISPOSITION

The juvenile court’s jurisdictional order is affirmed.
11

MARGULIES, J.

WE CONCUR:

HUMES, P. J.

BANKE, J.

A162737

In re D.G.