Filed 5/29/15 In re Leonardo A. CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE


In re LEONARDO A., a Person Coming                                       B256710
Under the Juvenile Court Law.
_____________________________________                                    (Los Angeles County
LOS ANGELES COUNTY DEPARTMENT                                            Super. Ct. No. DK02907)
OF CHILDREN AND FAMILY SERVICES,

         Plaintiff and Respondent,

         v.

LEONARDO A., Sr.,

         Defendant and Appellant.




         APPEAL from orders of the Superior Court of Los Angeles County,
Annabelle Cortez, Judge. Affirmed in part and reversed in part with directions.
         Patti L. Dikes, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Mark J. Saladino, County Counsel, Dawyn R. Harrison, Assistant County Counsel,
and Jacklyn K. Louie, Principal Deputy County Counsel.

                                        _________________________
       Leonardo A., Jr. (Leonardo), born January 2009, is the child of Leonardo A., Sr.
(father) and R.H. (mother). Prior to the events described in this opinion, Leonardo lived
with both parents, his thirteen-year-old half-sister Z., and his baby brother Adrian. On
December 7, 2013, Adrian was brought to the hospital not breathing, with significant
intracranial bleeding and a broken rib. He died ten days later after being removed from
life support.
       Doctors suspected that Adrian’s injuries may have been nonaccidentally caused by
father, who had been caring for Adrian immediately before he was injured and who
claimed to have dropped Adrian accidentally while preparing a bottle. The juvenile court
concluded that Adrian was the victim of child abuse and assumed jurisdiction over
Leonardo. The court ordered Leonardo removed from father’s custody and denied father
any reunification or enhancement services. Father appealed.1
       We affirm the finding of jurisdiction, but reverse the dispositional order removing
Leonardo from father’s custody, concluding it was not supported by clear and convincing
evidence of substantial danger to Leonardo. Although several of Adrian’s doctors said
they were suspicious that Adrian’s injuries may have been intentionally caused, none
opined that he or she believed they had been intentionally caused, and although the
juvenile court held three separate hearings on the jurisdictional and dispositional issues,
no doctor or medical expert ever testified. As a result, the juvenile court did not have the
benefit of a medical expert to interpret test results, explain their significance, or render an
opinion on the ultimate question of whether Adrian had been the victim of intentional
child abuse. In short, although our record is replete with suspicions of child abuse, such
suspicions fall well short of the high probability that the clear and convincing evidence
standard requires. Further, there was no evidence that Leonardo, who had lived with
father his entire life, had ever been abused.



1
        Counsel for father and DCFS both filed notice of their intention to waive oral
argument before this court. However, because of the significance of the issues raised in
this case, we directed all counsel to appear for argument.
                                                2
       For all of these reasons, we conclude that the record lacks clear and convincing
evidence of substantial danger to Leonardo if he were to remain in father’s custody. We
are mindful, however, of the fact that nearly a year has passed since the juvenile court
entered its dispositional order, and thus there may be new information and evidence
available to the parties and the court. We therefore do not order Leonardo immediately
returned to father’s custody, but instead remand this matter to the juvenile court with
directions to hold a new dispositional hearing under Welfare and Institutions Code
section 361, subdivision (c).2
                 FACTUAL AND PROCEDURAL BACKGROUND
                                             I.
                          Death of Leonardo’s Infant Brother
       On December 7, 2013, Leonardo’s six-week-old brother, Adrian, was brought to
the hospital in full cardiac arrest. Father reported that he had been home alone with
Adrian while the rest of the family was at Z.’s soccer game. Adrian woke up crying, and
father picked him up and held him while preparing a bottle. As father opened a bottle of
water to mix with formula, Adrian slipped through father’s left arm and fell four feet to
the kitchen floor. Father said Adrian cried, then stopped crying, closed his eyes, and
began to breathe slowly. Father grabbed the bottle of milk and placed it in the baby’s
mouth, but Adrian’s eyes and mouth remained closed. Father called 9-1-1 and, at the
operator’s directions, performed CPR until the paramedics arrived. Father said he called
the paramedics within a minute or two of Adrian’s fall.
       Adrian did not have a pulse when he arrived at the hospital emergency room and
he was placed on a ventilator. His documented time without a pulse was about 38
minutes. A brain MRI revealed global hypoxic-ischemic encephalopathy and bilateral
subdural hematomas.3 Hospital records state that “[s]uspicion for nonaccidental trauma

2
       All subsequent statutory references are to the Welfare and Institutions Code.
3
       Hypoxic-ischemic encephalopathy “is the brain injury caused by oxygen
deprivation to the brain, also commonly known as intrapartum asphyxia.”
(<http://cerebralpalsy.org/about-cerebral-palsy/cause/hypoxic-ischemic-
                                             3
was high.” Subsequent tests indicated that Adrian had no corneal, gag, or cough reflex,
no spontaneous movements in his extremities, and a hemorrhage of his right retina.
Doctors observed bruising along the left side of Adrian’s neck.
       The hospital social worker said hospital personnel suspected Adrian’s injuries
were not accidentally caused. A doctor’s note in Adrian’s chart said, “Rare to have short
fall cause extensive injury.”
       On December 13, the parents were told that Adrian’s prognosis was extremely
poor and they would have to decide whether to keep him on life support. Adrian’s pupils
appeared not to react to light and he did not respond to loud noises. Both parents were
described as visibly upset and crying. On December 17, the parents agreed to remove
Adrian from life support, and he died the same day.
                                           II.
                                       Detention
       The hospital made a referral to the Los Angeles County Department of Children
and Family Services (DCFS), which began an investigation. Mother told a children’s
social worker (CSW) that she had known father for five years and lived with him for four
years. She denied any domestic violence. She said that on December 7, the family had
planned to attend Z.’s morning soccer game together, but because it was very cold, she
took Z. and Leonardo to the game, and father stayed home with Adrian. Just after noon,
father called her and said he had accidentally dropped the baby and she should come
home. She said father was a great husband and father, she trusted him completely, and
she believed Adrian’s injuries were accidental.



encephalopathy/> [as of May 29, 2015].) A subdural hematoma, also called a subdural
hemorrhage, occurs “when blood vessels — usually veins — rupture between [the] brain
and the outermost of three membrane layers that cover [the] brain (dura mater). The
leaking blood forms a hematoma that compresses the brain tissue. If the hematoma keeps
enlarging, a progressive decline in consciousness occurs, possibly resulting in death.”
(<http://www.mayoclinic.org/diseases-conditions/intracranial-
hematoma/basics/causes/con-20019654> [as of May 29, 2015].)

                                            4
       Z. told the CSW that mother and father got along well and cared for Adrian
together. She had never seen physical violence between them. She said father took good
care of her and her brothers, and she denied any physical abuse. She said mother
disciplined her when necessary by taking away her phone; father did not discipline her.
       The CSW attempted to interview Leonardo but he was sleeping. The CSW did not
observe any marks or bruises indicative of physical abuse. Leonardo was clean and
appeared to be in good health. Subsequently, he told the CSW that he loved his mommy
and daddy.
       DCFS reported both Leonardo and Z. appeared to be in good physical health and
were doing exceptionally well in school. The family appeared to be strongly bonded.
There were no prior DCFS referrals and neither parent had a criminal record.
       Adrian’s attending physician, Dr. Daphne Wong, told the CSW that doctors had
found older and newer bleeds, and she said father’s account of dropping Adrian did not
account for his extensive injuries. Dr. Wong could not determine whether Adrian’s
injuries were accidentally or intentionally inflicted, however. Dr. Wong also could not
determine whether father had timely called for medical treatment. She said it was
“suspicious” how much damage Adrian had suffered from a short fall.
       Detective Burke of the Los Angeles County Sheriff’s Department said, “Based on
injuries that the baby had such as bleeding in the brain and retinal hemorrhaging it points
to the baby being shaken. The dad’s story is inconsistent. It doesn’t explain how the
baby has damage to the eye area which couldn’t have been caused by the fall.”
       On December 18, the CSW told the parents that Leonardo would be detained from
father and placed with mother. The parents consented and agreed that father would
remain in the family home, and mother and the children would move in with the maternal
grandmother. Mother said she would do everything she was asked to do to avoid having
her other children taken from her. Father said: “I would never do anything to hurt any of
my kids. I want to keep us together and even if that means I have to be apart from them
for a while I’ll do it. It’s just real hard because we haven’t been apart since [mother] and
me got together. I’ll do what I need to do to get through this for my family.”

                                             5
       Based on the extensive injuries to Adrian, DCFS opined that Leonardo appeared to
be at risk of physical abuse by father. On January 2, 2014, the court found a prima facie
case for detaining Leonardo from father, ordered family maintenance services for mother,
and ordered monitored visitation for father.
                                            III.
                             Jurisdiction/Disposition Report
       The jurisdiction/disposition report said that mother believed Adrian’s injuries were
accidental because father had never been abusive to her or any of the children. She said
father was very “hands on” with the children and never seemed frustrated when caring for
them, even when they cried. Mother said she had never seen father act abusively towards
her children or any other children.
       Z. said she did not know why father was being blamed for Adrian’s injuries
because “he has never hit him or us.” She said she had never known father to be abusive
in any way. She said father took good care of her and her siblings and she liked living
with mother and father.
       Both maternal grandparents said they were shocked that father was being accused
of hurting Adrian because they had known him for more than six years and had never
seen him act in an abusive or inappropriate way towards his or any other children.
Maternal grandmother said she had asked Z. whether father had ever abused her or her
siblings, and Z. said he had not.
       Leonardo’s preschool teacher described him as a happy child who played well
with other children. She had never seen anything unusual about Leonardo, and he had
never reported any abuse or neglect.
       Leonardo was examined by a physician for possible child abuse on January 14,
2014. The physician found no evidence of abuse. Leonardo said he felt safe with mother
and father and liked living with them.
       On March 13, 2014, the coroner ruled Adrian’s death a homicide. Among other
things, the coroner’s report noted “very faint and old contusions seen around the bilateral
perioral area,” a “very faint old contusion noted over the upper aspect of the lateral

                                               6
neck,” an “old fracture” to the right paravertebral rib, and “focal areas of hemorrhage at
the areas of the bilateral optic nerves.” Subsequent microscopic examination of optic
nerve and bone tissue suggested the rib fractures and optic hemorrhages had occurred
approximately 10-14 days before Adrian’s death, i.e., on approximately the day Adrian
was brought to the hospital. The report also noted evidence of “subdural hemorrhage of
the upper cervical spinal canal which is most likely extending from the subdural
hemorrhage of the base of the brain” and “possible subarachnoid hemorrhage noted over
the posterior surface of the lumbar spinal cord.” The report said that a neuropathology
examination of the brain was pending,4 but the results of that examination, if it occurred,
were never made part of the coroner’s report.
                                             IV.
                                  First Amended Petition
       On April 7, 2014, DCFS filed an amended juvenile dependency petition alleging
jurisdiction pursuant to section 300, subdivisions (a), (b), (f), and (j), as follows: “On
12/07/2013, [Leonardo’s] six week old now deceased sibling, Adrian . . . was
hospitalized and found to be suffering from . . . global hypoxic-ischemic encephalopathy,
bilateral subdural hematoma, posterior fossa subarachnoid hemorrhage, large left retinal
hemorrhage and respiratory failure. The sibling suffered from cardiac arrest and was
intubated. The sibling required a blood transfusion. Additionally, the sibling suffered
from an old rib fracture of [the] right paravertebral 9th rib. The sibling was pronounced
dead[] on 12/17/2013. The cause of death was determined to be traumatic brain injury.
The deceased sibling was in the exclusive care, custody and control of the child’s father,
Leonard[o] [A.] Sr., at the time the deceased sibling was injured. The child’s father’s
explanation of the manner in which the sibling sustained the sibling’s injuries is not
4
       A subarachnoid hemorrhage “is bleeding in the space between [the] brain and the
surrounding membrane (subarachnoid space). Bleeding usually results from the rupture
of an abnormal bulge in a blood vessel in [the] brain (brain aneurysm). . . . A
subarachnoid hemorrhage may lead to permanent brain damage or death if not treated.”
(<http://www.mayoclinic.org/diseases-conditions/subarachnoid-
hemorrhage/basics/definition/con-20036606> [as of May 29, 2015].)

                                              7
consistent with the sibling’s injuries in that the injuries were extensive. The sibling’s
injuries are consistent with non-accidental trauma. The sibling’s death was determined to
be a homicide by the Coroner. Such injuries would ordinarily not occur except as the
result of deliberate, unreasonable, and neglectful acts by the child’s father . . . .”
                                               V.
                                        Adjudication
       At a contested jurisdictional hearing on May 5, 2014, county counsel urged the
court to sustain all four jurisdictional counts, arguing that “the statements made by
Dr. Wong [and] . . . the ultimate finding of the coroner of homicide . . . proves that the
sibling’s injuries are consistent with nonaccidental trauma.”
       Father’s counsel asked that petition be dismissed in its entirety, urging that there
was no evidence that father inflicted nonaccidental trauma on Adrian. Counsel noted:
“[A]ll of the individuals interviewed, including the children who are with the mother,
report . . . that we have an appropriate person, an adult who has been caring and
appropriate around the children, never engaging in domestic violence, any sort of
corporal punishment, or any act that would rise to a level of being of concern to those
who are involved with this family.”
       Leonardo’s counsel argued that the court should sustain only the section 300,
subdivision (f)(1) count (parent caused the death of another child through abuse or
neglect). Counsel conceded that Adrian’s death had been caused by “this very
unfortunate incident,” but she urged that DCFS had provided “no evidence of any other
sort of physical abuse or any other injury or any kind of intentional harm.” Counsel
asked the court to dismiss counts (a)(1), (b)(1), and (j)(1), urging that there was “no
evidence of risk to Leonardo, Jr., no evidence that he has or will suffer severe injury,
either intentionally or because of neglect.”
       The juvenile court found by a preponderance of the evidence that counts (a)(1),
(b)(1), (f)(1), and (j)(1) of the petition were true and that Leonardo was a person
described by section 300. The court made the following findings:


                                               8
       “[O]n page 12 of the adjudication, disposition report, . . . Dr. Wong indicates that
she did observe some bruising on the infant’s body but cannot determine if the bruising is
a result of physical abuse or were caused during C.P.R. efforts. [¶] And Dr. Wong then
goes on to explain some of the bruising . . . could have been explained by C.P.R. efforts,
and that includes – she stated bruising to the left eye could have possibly resulted from a
mask placed on his face during C.P.R. efforts as well as on his neck. And according to
Dr. Wong, she could not conclude how bruising on his left clavicle, left neck side, and
behind the ear were caused.
       “Page 12 also indicates that Dr. Wong noted – she’s also concerned about why
infant Adrian’s heart stopped. She stated that ‘An infant . . . who’ – ‘falls to the ground
of a short distance does not normally result in the heart to stop.’ [¶] . . . [¶]
       “The court . . . notes that, in looking at the totality of the facts, the court can make
a reasonable inference that the extent of injuries sustained by Adrian were not consistent
with the father’s explanation that this was accidental.
       “The court would specifically note the information, both in the adjudication report
and also in the detention report . . . where Dr. Wong from Children’s Hospital was asked
a series of questions, including whether the child’s injuries were in different stages of
healing.
       “[Dr. Wong said:] ‘He [Adrian] did have two different stages of healing. There
were older bleeds and newer bleeds. And with respect to whether or not the injuries were
accidental, we can’t determine that because it is difficult to rule if retinal hemorrhaging is
old or new. I can say that the injuries and how the father said they happened do not
account for the extensive damage that Adrian sustained.’
       “That section also indicates, according to Dr. Wong, that ‘There are phone records
that show that he called 9-1-1. But, if it was the accidental fall that he said happened,
then he would have called right away. And, if he had, maybe there could be a different
outcome for Adrian. Again, the father’s story does not match the medical results. It is
suspicious how there was extensive damage from such a short fall.’


                                               9
       “The court also notes . . . the information provided from Children’s Hospital on
page 58 – and this is page 13, and it’s also included in the detention report – after the –
the MRI pointed to suspicious nonaccidental trauma. And that’s – although . . . there
were no bone fractures, . . . the injuries were suspicious for nonaccidental trauma. . . .
       “The court also notes that Petitioner’s Exhibit No. 3 indicates that Adrian’s cause
of death was a result of traumatic brain injury. The child’s death was determined to be a
homicide, according to the autopsy report.
       “With respect to the timeliness of the call, the court notes the information
concerning the initial referral [is] that normally, when a child hits their head such as this,
there is normally room in the brain to swell and the child would not go into full cardiac
arrest before the paramedics could arrive.
       “The court notes the information provided in the detention report [says,] ‘It’s rare
to have such short . . . fall cause . . . extensive injury.’ And I’m quoting page 7 of the
detention report.
       “The court also notes the information on page 8 from Detective Burke. ‘Based on
the injury that the baby had, such as bleeding in the brain and retinal hemorrhaging,
points to the baby being shaken. [Dad’s] story is inconsistent. It doesn’t explain how the
baby has damage to the eye area, which could not have been caused by the fall.’
       “The court also notes, as pointed out by [deputy county counsel], that the baby
was unquestionably in the sole care and custody of the father when the injuries occurred.
And, again, the father’s story did not match the medical results . . . concerning the
extensive injuries that were . . . suffered by the baby.”
                                             VI.
                                   Dispositional Hearing
       At the dispositional hearing on May 30, 2014, mother testified that since the
children had been detained, her relationship with father had been “on hold.” Mother said
she did not believe father intentionally hurt Adrian. She explained: “[W]e planned our
son. . . . With my other kids, you know, we just got pregnant. But with Adrian – he was
planned. We wanted him. And just reading that report, I – I can’t – you know, I don’t

                                              10
believe it. . . . [M]y baby was so loved.” When asked whether she believed father was
responsible for Adrian’s death, she said she did not: “[I]n my heart, I don’t. I – he loved
him so much. He’s – I think this was just – you know, he slipped from his arms while he
was making a bottle.”
       Mother said she was doing everything she could to keep her kids with her and
keep them safe. She said she spoke with father two or three times a week, and saw him
once or twice a week at the cemetery. She said she would live with father again if the
court permitted it.
       Mother said interactions between father and Leonardo were “great. . . . My son
adores him.” She said father and son were “always playing. They’re always, you know,
playing football, soccer, talking about the Steelers, a football team, cars. I mean, if you
were to see them, you know, playing, you could just see the joy in my son’s face. He
adores his daddy.” She said when the family lived together, she and father would jointly
bathe Leonardo, read him a story, and put him to bed. Father had been to all of
Leonardo’s doctor’s appointments and attended most of Leonardo’s school functions.
She had never seen father act inappropriately with Leonardo.
       Mother said Leonardo had not seen father in about a month, but talked about him
“all the time.” Leonardo told mother, “I miss daddy.”
       Father testified that he and Adrian were home alone when Adrian was injured. He
agreed that a couple of doctors told him they did not believe Adrian’s injuries were
accidental. When asked who he thought was responsible for his son’s death, father
answered, “He was under my care.” Father said, however, that the injuries were inflicted
accidentally, when Adrian slipped out of his arms and fell to the floor.
       Father said his goal was to reunify with Leonardo: “I want to be able to put my
son to sleep, take him to school, do things that we used to do before that I can’t do now.”
       Following the testimony, counsel for DCFS requested that Leonardo remain
released to mother, that mother be ordered to participate in parenting classes and
individual counseling, that father have no contact with Leonardo or Z., and that father
receive no reunification or enhancement services.

                                             11
       Leonardo’s attorney noted that father and son had a very close relationship and
suggested it would be in Leonardo’s best interests to have monitored visitation with
father. Leonardo’s attorney also asked the court to order enhancement services for father
and to provide “an outline of what we would like to see from him to assess if it’s . . .
possible for him to at some point return home, as both parents have stated would be their
intention and desire.”
       Mother’s attorney and father’s attorney joined in Leonardo’s attorney’s request,
suggesting that the evidence before the court demonstrated it would be in Leonardo’s best
interests to permit visitation and offer father enhancement services. Mother’s counsel
further suggested: “I don’t think that the court has enough reason to – to deny
Leonardo’s father an opportunity to prove himself. . . . [¶] There is no domestic
violence, no drugs, no inappropriate fighting or other issues in the home, no shady
characters coming around. . . . [T]his is . . . a family that has experienced something
horrific and unfortunate. And they are compliant and cooperative with you, Your Honor.
[¶] I would ask that you – that you find that it is in Leonardo’s best interests to give them
this chance to show . . . that they can reunify . . . .” Father’s counsel urged similarly.
Counsel noted that the court had the option to place Leonardo with mother and terminate
its jurisdiction, and that the only reason to keep the case open was for the purpose of
allowing father and Leonardo to reunify. Father’s counsel said: “The goal of this court is
reunification, Your Honor. And I don’t believe this court can find that the child would
not benefit from . . . reunification-like services, through enhancement services, for the
father. . . . [¶] . . . [¶] . . . I believe [father] should be given an opportunity to comply
with [enhancement services] to ensure that, perhaps, we may liberalize those visits
[between father and son], perhaps even reunifying at a future date.”
       Following argument, the court ordered Leonardo removed from father and placed
with mother, finding by clear and convincing evidence pursuant to section 361,
subdivision (c), that there would be a substantial danger if Leonardo were returned home
to father and there were no reasonable means to protect Leonardo without removing him
from father. In support of its order, the court “adopte[d] by reference the facts noted for

                                               12
the adjudication of this case with respect to the clear and convincing evidence for 361
(c).” The court further ordered mother to participate in family maintenance services,
including “parenting, family preservation, individual counseling to address child
protectiveness, child death, grief, and other case issues.” Finally, because Leonardo
would continue to live with mother, the court said that father’s entitlement to services
was governed by the statutory provisions addressing enhancement services (§ 362,
subd. (d)), not reunification services. As to enhancement services for father, the court
stated it took into account Leonardo’s best interests, and it specifically noted the
closeness between Leonardo and father. However, the court said, “that’s outweighed by
the fact that we have a deceased sibling, where the autopsy – the coroner’s report deemed
it a homicide and Adrian was strictly under the care of [father].” The court explained:
        “[T]he court finds that Leonardo’s closeness to [father] is significantly outweighed
by the fact that this case involves the death of a child . . . under [father’s custody].
        “The court cannot make a finding, by clear and convincing evidence, that offering
enhancement services, which are discretionary, is in the best interests of the child.
        “The court also notes that, during [father’s] testimony, while he is participating in
services, [father] is still essentially in denial of the sustained petition.
        “. . . [W]ith respect to . . . the need for the court to retain jurisdiction, the basis for
the court adopting the department’s recommendation is not just to monitor whether the
mother can . . . be protective of Leonardo. That’s certainly one of the reasons.
        “However, . . . there’s also a need to provide services for [mother] given the loss
of the child. . . .
        “[Mother] at this point, testified that she still believes it was an accident, despite
the sustained petition. The court finds that jurisdiction . . . is warranted. So that way
[mother] can address child protectiveness, child death, grief, . . . and other related case
issues as part of the programs to be . . . referred to by the department. [¶] . . . [¶]
        “Again, . . . based on the totality of the circumstances, the seriousness of the
reason that this petition came before the court, and, specifically, the death of a child, the
court is exercising its discretion to not offer enhancement services to [father].

                                                13
       “. . . [T]he court is not adopting the department’s recommendation to not offer
visitation to [father]. The court’s going to maintain in full force and effect its order . . .
given that Leonardo is close to [father], monitored visitation, D.C.F.S. office, minimum
two to three times per week, minimum two to three hours per visit.”
       Father timely appealed the jurisdictional and dispositional orders and findings.
                                        DISCUSSION
       Father challenges the juvenile court’s jurisdictional and dispositional findings. He
contends: (1) the evidence was insufficient to support the court’s jurisdictional findings;
(2) the evidence was insufficient to support the court’s removal order; (3) the court
abused its discretion in failing to order reunification services under section 361.5; and
(4) the court abused its discretion in failing to order enhancement services.
                                               I.
                         Sufficiency of the Evidence to Establish
                              Jurisdiction Under Section 300
       Father contends that the evidence was insufficient to establish jurisdiction under
section 300, subdivisions (a), (b), (f), and (j), because it “failed to prove father inflicted
non-accidental trauma to his son, Leonardo’s infant brother Adrian, that resulted in his
death, and failed to prove father would place Leonardo at risk of future harm or that
Leonardo suffered any physical harm inflicted non-accidentally by father.” For the
reasons that follow, we do not agree.
       In a challenge to the sufficiency of the evidence to support a jurisdictional finding,
“the issue is whether there is evidence, contradicted or uncontradicted, to support the
finding. In making that determination, the reviewing court reviews the record in the light
most favorable to the challenged order, resolving conflicts in the evidence in favor of that
order, and giving the evidence reasonable inferences.” (In re Alexis E. (2009)
171 Cal.App.4th 438, 450-451.) When a dependency petition alleges multiple grounds
for its assertion that a minor comes within the dependency court’s jurisdiction, “a
reviewing court can affirm the juvenile court’s finding of jurisdiction over the minor if
any one of the statutory bases for jurisdiction that are enumerated in the petition is

                                               14
supported by substantial evidence. In such a case, the reviewing court need not consider
whether any or all of the other alleged statutory grounds for jurisdiction are supported by
the evidence.” (Id. at p. 451.)
       We begin by considering the juvenile court’s jurisdictional finding under section
300, subdivision (f). That section provides that a child is within the jurisdiction of the
juvenile court if “[t]he child’s parent or guardian caused the death of another child
through abuse or neglect.” Father contends Leonardo is not within this section because
the evidence did not establish intentional harm.
       We do not agree with father that jurisdiction under section 300, subdivision (f)
requires evidence of intentional harm. In In re Ethan C. (2012) 54 Cal.4th 610, our
Supreme Court considered whether “the lethal neglect to which section 300(f) refers
require criminal negligence, i.e., a degree of culpable misfeasance or malfeasance that
would support the parent’s or guardian’s criminal conviction for causing a child’s
death[.]” (Id. at p. 617.) In that case, the father transported his 18-month-old daughter in
a car without securing her in a child safety seat, and the child was fatally injured when
another vehicle collided with the father’s car. There was no indication that father was at
fault for the traffic accident. (Id. at p. 619.) Following the child’s death, DCFS filed a
dependency petition alleging that father’s two surviving children came within the
jurisdiction of the juvenile court pursuant to section 300, subdivision (f), among other
provisions. (In re Ethan C., at p. 620.) The juvenile court sustained the section 300,
subdivision (f) allegation, and father appealed, urging that the allegations under that
section could not be sustained on the basis of his mere civil negligence in failing to
secure his child in a child safety seat. (In re Ethan C., at p. 622.) The Court of Appeal
affirmed, and father petitioned for review. (Id. at p. 623.)
       The Supreme Court affirmed. Among other things, the court concluded that
“neglect” within the meaning of section 300, subdivision (f) does not require that the
parent be guilty of criminal negligence. Instead, it is enough that the parent caused a
child’s death through “a mere want of ordinary care.” (In re Ethan C., supra, 54 Cal.4th


                                             15
at pp. 626-627.)5 The court explained: “[T]he Legislature could rationally conclude that
when a parent’s or guardian’s negligence has led to the tragedy of a child’s death, the
dependency court should have the power to intervene for the safety and protection of
children remaining in the parent’s or guardian’s custody, even if the parent’s lethal
carelessness cannot necessarily be characterized as sufficiently ‘gross,’ reckless, or
culpable to be labeled ‘criminal.’ ” (Id. at p. 636.) Accordingly, because father’s failure
to secure his young daughter in a child safety seat constituted, “at a minimum, a breach of
ordinary care,” the juvenile court’s findings based upon section 300, subdivision (f) did
“not fail on grounds that [father] failed to meet the statutory standard of ‘abuse or
neglect.’ ” (In re Ethan C., at p. 637.)
       The present case is analogous. Father has admitted to dropping Adrian while
preparing a bottle, and he appears not to dispute that Adrian’s fall caused the injuries that
precipitated the child’s death. Because the facts of this case constitute, at a minimum, a
breach of ordinary care, the juvenile court did not err in sustaining the jurisdictional
allegation under section 300, subdivision (f).6




5
        The court explained: “Black’s Law Dictionary (8th ed. 2004) (Black’s) defines
the noun ‘neglect’ as ‘1. [t]he omission of proper attention to a person or thing, whether
inadvertent, negligent, or willful; the act or condition of disregarding’ or ‘2. [t]he failure
to give proper attention, supervision, or necessities, esp. to a child, to such an extent that
harm results or is likely to result.’. . . [¶] . . . [¶] We also note the definition of ‘neglect’
contained in the Child Abuse and Neglect Reporting Act. . . . For purposes of this statute,
‘neglect’ is defined as ‘the negligent treatment or the maltreatment of a child by a person
responsible for the child’s welfare under circumstances indicating harm or threatened
harm to the child’s health or welfare. The term includes both acts and omissions on the
part of the responsible person.’ ” (In re Ethan C., supra, 54 Cal.4th, at pp. 628-629,
fn. omitted.)
6
       Having so concluded, we need not reach the other statutory grounds on which the
juvenile court based jurisdiction. (In re Alexis E., supra, 171 Cal.App.4th, at pp. 450-
451.)

                                               16
                                             II.
                    Sufficiency of the Evidence to Justify Removing
                       Leonardo From Father’s Physical Custody
                           Under Section 361, Subdivision (c)
       Father contends that even if we find the evidence sufficient to support a
jurisdictional finding, the dispositional order removing Leonardo from father should be
reversed because there was insufficient evidence to support a finding of likely substantial
danger under section 361, subdivision (c). For the reasons that follow, we agree.
       A.     Governing Statutory Provisions and Standard of Review
       Section 361, subdivision (c) governs the removal of a child from his or her
parents’ physical custody. It provides: “A dependent child shall not be taken from the
physical custody of his or her parents or guardian or guardians with whom the child
resides at the time the petition was initiated, unless the juvenile court finds clear and
convincing evidence of any of the following circumstances . . . : [¶] (1) There is or
would be a substantial danger to the physical health, safety, protection, or physical or
emotional well-being of the minor if the minor were returned home, and there are no
reasonable means by which the minor’s physical health can be protected without
removing the minor from the minor’s parent’s or guardian’s physical custody.” (Italics
added.)
       Clear and convincing evidence “requires ‘a high degree of probability, such that
the evidence is so clear as to leave no substantial doubt. [Citation.]’ [Citations.]” (In re
C.M. (2014) 232 Cal.App.4th 1394, 1401.) “ ‘The high standard of proof by which this
finding must be made is an essential aspect of the presumptive, constitutional right of
parents to care for their children.’ ” (In re A.E. (2014) 228 Cal.App.4th 820, 825.) It
reflects “the Legislature’s recognition of the rights of parents to the care, custody and
management of their children, and further reflects an effort to keep children in their
homes where it is safe to do so. [Citations.] By requiring clear and convincing evidence
of the risk of substantial harm to the child if returned home and the lack of reasonable
means short of removal to protect the child’s safety, section 361, subdivision (c)

                                             17
demonstrates the ‘bias of the controlling statute is on family preservation, not removal.’
[Citation.] Removal ‘is a last resort, to be considered only when the child would be in
danger if allowed to reside with the parent.’ [Citation.]” (In re Hailey T. (2012)
212 Cal.App.4th 139, 146 (Hailey T.).)
       On appeal, “[w]e review the record in the light most favorable to the court’s order
to determine whether there is substantial evidence from which a reasonable trier of fact
could find clear and convincing evidence that placement would be detrimental to the
child. Clear and convincing evidence requires a high probability, such that the evidence
is so clear as to leave no substantial doubt. [Citation.]” (In re Patrick S. (2013)
218 Cal.App.4th 1254, 1262; see also In re Michael G. (2012) 203 Cal.App.4th 580, 589
[“On review, we determine whether the record contains substantial evidence from which
the juvenile court could find clear and convincing evidence.”].)
       B.     In re Hailey T.
       In Hailey T., supra, 212 Cal.App.4th 139, four-month-old Nathan was diagnosed
with a subconjunctival hemorrhage to his right eye after a day in which he had been, at
various times, in the custody of his mother, father, and maternal grandmother. Neither
the parents nor the grandmother could explain how Nathan had been injured other than
suggesting that his three-year-old sister Hailey could have accidentally hurt him while
she was combing his hair or playing with him. (Id. at p. 142.)
       The social worker reported that mother and father had been married for nearly
nine years, had no child welfare history, and had no prior reports of physical abuse. The
grandmother, who lived a block away, said she had never witnessed domestic violence
between mother and father, and said father had a good relationship with the children and
played with them after work. Hailey said no one fought or yelled in her home and she
denied any physical or sexual abuse. (Hailey T., supra, 212 Cal.App.4th at p. 143.)
       At the contested jurisdictional hearing, a social worker testified that Nathan’s
injuries were not consistent with the parents’ explanations that Hailey might have caused
them. A physician testified that Nathan’s injuries were nonaccidental and he appeared to
have been struck more than once. The physician could not determine whether Nathan

                                             18
sustained the injuries during a single or multiple episodes, and she testified it was highly
unlikely that Hailey inflicted Nathan’s injuries. (Hailey T., supra, 212 Cal.App.4th at
p. 144.)
       The juvenile court sustained the dependency petition and found, by clear and
convincing evidence, that there would be a substantial risk of harm to both children if
they were returned to the family home. Noting the identity of the perpetrator was
unknown and the young ages of the children, the court found there were no alternatives to
removal and ordered the children placed in the care of relatives. (Hailey T., supra, 212
Cal.App.4th at p. 145.) Father appealed.
       The Court of Appeal reversed the dispositional order as to Hailey, finding that the
record did not support findings that there was substantial danger to Hailey if she were
returned home and that there were no less drastic alternatives than removal for protecting
her. The court explained as follows:
       “The record contains no evidence suggesting Hailey was ever a victim of abuse in
the parents’ home, or that she suffered any harm as a result of the abuse that the court
found with respect to Nathan. Evidence of past abuse is probative in determining
whether a child is in need of the juvenile court’s future protection [citation], but such
evidence alone does not meet the clear and convincing standard of proof required to
justify removal of a child from his or her parents’ custody, much less to justify removal
of a sibling of the abused child. If it did, section 361, subdivision (c)(1) would be
superfluous.
       “Further, the record in this case provides ample grounds to differentiate between
Nathan and Hailey and shows the risk to Hailey of future abuse was strikingly less than
the risk facing Nathan. Hailey was not an infant of only a few months old, who would be
unable to articulate any abuse to which she might be subjected, and who would be
completely isolated from the observations of mandated reporters of abuse. By the time of
the disposition hearing, Hailey was a four-year-old child, with good language skills and
an outgoing and social nature. She attended school where she had regular contact with
teachers and other mandated reporters of any suspected abuse.

                                             19
       “Moreover, there was abundant evidence that [father] and [mother] were good
parents who enjoyed a healthy relationship. There was no evidence of ongoing physical
domestic violence between the parents; indeed there was no evidence of any physical
domestic violence between the parents during their nine-year marriage. Neither parent
had substance abuse problems, and there was no evidence that either suffered from
mental health conditions, developmental delays or other social issues that often are at the
root of dependency cases and might place children at continuing risk in the home.
[Father] and [mother] were parents who started services at the earliest opportunity,
showed progress in the services and had meaningful and productive visits with the
children. Even [social services agency] participants in a team decision meeting early on
in the case recognized [father] and [mother] were good parents.
       “As noted above, there is no indication in the record that either parent ever
personally inflicted any physical harm on Hailey, and the only evidence that either parent
inflicted Nathan’s eye injuries is disputed expert evidence that Hailey could not have
done so. . . . The evidence was sufficient to support the court’s determination, by a
preponderance of the evidence, that as the sibling of an abused child, Hailey was at risk
of future harm, and thus was appropriately found to be a dependent child. But the proof
required to support the dispositional determination that Hailey should be removed from
her parents’ custody requires a greater degree of proof than merely by a preponderance of
the evidence. Given all the circumstances presented here, the evidence with respect to
the risk of harm to Hailey if she were not removed from the parents’ home, does not so
clearly satisfy the requisite ‘clear and convincing’ standard of proof.” (Hailey T., supra,
212 Cal.App.4th at pp. 147-148.)
       C.     Analysis
       Having carefully reviewed the evidence presented in this case and for the reasons
that follow, we conclude that as in Hailey T., the record does not support a finding that
there was a substantial danger to Leonardo if he were to remain in father’s care.




                                            20
              1.     No clear and convincing evidence that Adrian’s injuries were not
                     caused accidentally
       Noting that the coroner had ruled Adrian’s death a homicide and that Adrian’s
treating physician was suspicious that father may not have been truthful, the juvenile
court made a finding by clear and convincing evidence that Adrian’s injuries were
nonaccidentally caused. As we now explain, the record does not support this conclusion.
       Hospital records. Adrian’s hospital records state that the etiology of his injuries is
“suspicious for nonaccidental trauma,” and they reflect that doctors ordered a series of
tests as part of a “complete . . . workup for nonaccidental trauma.”7 However, the
hospital records do not report any conclusions regarding the doctors’ initial suspicions of
nonaccidental trauma. That is, although the records suggest Adrian’s doctors were
suspicious that Adrian’s injuries were caused intentionally and ordered testing to attempt
to determine how Adrian was injured, no doctor expressed the opinion that the tests
confirmed their initial suspicions or established to any degree of medical certainty that
Adrian was the victim of intentional abuse.
       Dr. Wong’s statements. Dr. Daphne Wong, Adrian’s treating physician, told a
CSW that father’s account of dropping Adrian did not account for the extensive injuries
he sustained and it was “suspicious” how much damage there was from such a short fall.
However, when she was asked whether it was likely that Adrian’s injuries were not
accidental, Dr. Wong said, “We can’t determine that.” Similarly, when asked whether
father had timely obtained medical treatment for Adrian, Dr. Wong said, “It’s hard to say
if the father did obtain treatment timely.” Finally, Dr. Wong noted that some bruising
was observed on Adrian’s body when he was admitted to the hospital, but reported that
she “cannot determine if bruising is a result of physical abuse or . . . caused during CPR
efforts.”


7
       We note that one of the tests the doctors ordered, a hematology consult to rule out
bleeding disorders, remained pending on the day of Adrian’s death and apparently was
never completed.

                                              21
       Coroner’s report. The coroner’s report was similarly ambiguous as to the cause of
Adrian’s injuries. The coroner ruled Adrian’s death a homicide, a determination that the
juvenile court apparently interpreted as a conclusion that Adrian’s injuries were
intentionally caused. “Homicide” does not imply an intentional killing, however.
Homicide “ ‘is the killing of one human being by another, either lawfully or unlawfully.
Homicide includes murder and manslaughter, which are unlawful, and the acts of
excusable and justifiable homicides, which are lawful.’ ” (People v. Carter (2005)
36 Cal.4th 1114, 1184, fn. 32, quoting CALJIC No. 8.00; see also Penal Code, § 195
[homicide is excusable “[w]hen committed by accident and misfortune . . . .”].)
Accordingly, the coroner’s classification of Adrian’s death as a homicide meant the
coroner believed Adrian’s injuries were caused “by another”—something never in
dispute in this case—but not that they were caused intentionally.
       The coroner’s report also does not demonstrate that Adrian suffered any injuries
prior to December 7, 2013, the day he was brought to the hospital. Although the
coroner’s report refers to an “old” rib fracture, a subsequent microscopic examination of
the fracture revealed it to have occurred 10-14 days before Adrian’s death on December
17—i.e., on approximately the date of his hospital admission. The coroner’s report
estimates the retinal hemorrhages to have occurred at about the same time, i.e., 10-14
days before Adrian’s December 17 death. Finally, the coroner’s report references
“possible older contusions” at the base of the bilateral frontal lobes of Adrian’s brain and
says that a neuropathology report was pending, but we have no record that the report was
ever completed or received.
       In short, although several doctors said they were suspicious that Adrian’s injuries
may have been intentionally caused, none opined that he or she believed they had been
intentionally caused. To the contrary, when Dr. Wong was asked whether it was likely
that Adrian’s injuries were not accidental, she said, “We can’t determine that,” and she
was similarly unwilling to opine that father had not timely obtained medical treatment for
Adrian. (Italics added.) Further, although the juvenile court held three separate hearings
on the jurisdictional and dispositional issues, no doctor or medical expert ever testified.

                                             22
As a result, the juvenile court did not have the benefit of a medical expert to interpret test
results, explain their significance, or render an opinion on the ultimate question of
whether Adrian had been the victim of intentional child abuse. Thus, although our record
is replete with suspicions of child abuse, such suspicions fall well short of the high
probability that the clear and convincing evidence standard requires.
       Family history. The inconclusive nature of the medical evidence is particularly
problematic when viewed in light of the entire record before the juvenile court. Leonardo
was five-and-a-half years old at the time of the dispositional hearing and had lived with
father since birth. He had received regular medical care from a pediatrician and attended
preschool. Notwithstanding Leonardo’s regular contact with mandated reporters, none
had ever suspected child abuse. To the contrary, Leonardo’s preschool teacher said he
was a happy child who played well with other children and who had never reported any
abuse or neglect. Further, a “suspected child abuse” examination conducted on January
14, 2014, found no evidence of abuse.
       Leonardo’s mother and teenage half-sister, Z., both said father had never been
abusive toward any member of the family. According to mother, father was very “hands
on” with the children and never seemed frustrated when caring for them, even when they
cried. Z. said she did not know why father was being blamed for Adrian’s injuries
because “he has never hit him or us.” Z. also said father took good care of her and her
siblings, and she liked living with mother and father. Mother’s parents were in accord:
Both said they had known father for more than six years and had never seen him act in an
abusive or inappropriate way towards his or any other children.
       Finally, there was evidence that mother and father were loving parents who had a
healthy relationship with one another. There was no evidence that either parent abused
drugs, engaged in domestic violence, or had mental health issues that might put Leonardo
at risk. In short, nothing in the family’s history prior to December 7, 2013 suggested that
father’s conduct put his children at risk of physical abuse.




                                              23
              2.     The record requires a reversal of the dispositional order and a
                     remand for additional proceedings
       This case is a difficult one, resulting as it does from the death of an infant under
what doctors have characterized as suspicious circumstances. For the reasons stated
above, however, we cannot affirm the dispositional order on the present inconclusive
record. The statute requires clear and convincing evidence of substantial danger before a
child can be taken from his parents’ physical custody, and such clear and convincing
evidence was not present here.
       We are mindful of the fact that nearly a year has passed since the juvenile court
entered its dispositional order, and thus there may be new information and evidence
available to the parties and the court. We therefore remand this matter to the juvenile
court with directions to hold a dispositional hearing under section 361, subdivision (c).
We express no opinion as to the outcome of that hearing. Further, nothing in this opinion
should be construed to prevent the court from considering new evidence or changed
circumstances arising during the pendency of this appeal. To the contrary, we urge the
parties to marshal the medical and other evidence that was lacking at the prior
dispositional hearing.
       Having concluded that the order removing Leonardo from father’s custody must
be reversed, we do not reach father’s alternative contentions that the juvenile court erred
in denying father reunification and/or enhancement services.




                                             24
                                     DISPOSITION
       We affirm the order finding jurisdiction over Leonardo, but reverse the
dispositional order removing Leonardo from father’s custody. The matter is remanded to
the juvenile court to conduct a new dispositional hearing guided by the principles set
forth herein.



       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                 EDMON, P. J.


We concur:




                     KITCHING, J.




                     EGERTON, J.*




*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

                                            25
