Filed 2/28/14 In re L.L. CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                      SIXTH APPELLATE DISTRICT


In re L.L., a Person Coming Under the                                H039271
Juvenile Court Law.                                                 (Santa Clara County
                                                                     Super. Ct. No. JD21307)

SANTA CLARA COUNTY
DEPARTMENT OF FAMILY AND
CHILDREN’S SERVICES,

         Plaintiff and Respondent,

         v.

T.N.,

         Defendant and Appellant;

L.L.,

         Appellant.



         T.N. and T.L. are the parents of L.L., who was born in September 2011. T.N., the
minor’s mother, appeals from an order declaring him to be a dependent of the court
pursuant to Welfare and Institutions Code section 300.1 The mother contends: there was
insufficient evidence to support the juvenile court’s determination that the minor was


1
      All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
described in section 300, subdivision (a); and the juvenile court failed to consider and
weigh the conflicting evidence under the correct legal standard. The minor has also
appealed from the order and contends: the juvenile court erred when it dismissed the
section 300, subdivision (e) allegations; the juvenile court violated his right to due
process when it dismissed these allegations without following the correct procedures and
without determining whether the dismissal was in the interests of justice and the welfare
of the minor; and the juvenile court abused its discretion when it denied his request to
conform the petition to proof. For the reasons stated below, the order is affirmed.


                          I. Procedural and Factual Background
                                       A. The Petitions
       On July 12, 2012, the Department filed a petition alleging that the minor, who was
then nine months old, came within the provisions of section 300, subdivisions (a) (serious
physical harm), (b) (failure to protect), and (e) (severe physical abuse). The section 300,
subdivisions (a), (b), and (e) allegations of the petition stated: the minor had suffered
severe physical abuse that resulted in serious brain trauma and seizures; when he was
brought to the hospital on July 7, 2012, the physicians determined that the minor had
suffered two brain hemorrhages; and the attending physician opined that the injuries were
most consistent with an abusive head injury. The petition also stated: T.L., the father,2
placed the minor at risk of severe physical harm by holding him over a second story
balcony and threatening to drop him if the mother ended their relationship; and the
mother, a pharmacist, gave the minor a half dose of an adult relative’s Phenergan to
control his vomiting despite manufacturer warnings that state the drug should not be
given to children under the age of two. The section 300, subdivision (b) allegations


2
        Presumed father status for the minor was confirmed at the detention hearing. The
father is not a party to this appeal.
                                              2
included the additional facts: the father had a history of domestic violence against the
mother while in the minor’s presence; there were charges pending against the father for
domestic battery and false imprisonment; the mother obtained a restraining order
restricting the father’s contact with the mother and the minor; the minor developed
normally until he was three months old when he started losing weight despite being
treated for gastroesophageal reflux (GERD); and his condition was diagnosed as psycho-
social failure to thrive since test results provided no medical or organic explanation for
the minor’s slow development.
       On the same day that the petition was filed, the Department placed the minor into
protective custody pursuant to a warrant issued by the juvenile court. Four days later, the
Department filed a first amended section 300 petition to reflect that the minor had been
placed into protective custody and to consolidate the domestic violence allegations. At
the detention hearing, the juvenile court detained the minor and ordered supervised
visitation for the mother three times per week for two hours. It ordered supervised
visitation for the father twice per week for two hours once the restraining order
prohibiting contact with the minor was modified.
       In August 2012, the Department filed its second amended petition. The second
amended petition removed the section 300, subdivisions (a), (b), and (e) allegations that
the mother used Phenergan to control the minor’s vomiting and that the father had held
the minor over the balcony.
       In November 2012, the Department filed its third amended petition. The
section 300, subdivisions (a) and (b) allegations were amended to also include: the minor
was in the custody of the mother or the maternal grandmother when he suffered his
injuries; the mother denied abusing the minor but she could not offer an explanation that
was consistent with the head injury he sustained; and pursuant to section 355.1,
subdivision (a), the minor suffered an injury of a nature that ordinarily would not be

                                             3
sustained except as the result of the unreasonable or neglectful acts or omissions of either
parent. The section 300, subdivision (e) allegations remained the same.


                          B. The Jurisdiction/Disposition Report
       The jurisdiction/disposition report, dated August 8, 2012, recommended that the
juvenile court sustain the second amended petition and that the parents be provided
family reunification services. The report referred to the prior child welfare history. On
May 29, 2012, the police responded to a family disturbance in which the mother reported
that the father slapped and strangled her. She also stated that there had been 12 to 15
unreported physical incidents between her and the father. The father was arrested and
booked into jail. A social worker met with the mother who stated that the father had held
the minor over a balcony and threatened to drop him if she left. The social worker
provided the mother with domestic violence resources.
       The report also summarized the minor’s medical records. At 1:38 a.m. on
July 2, 2012, the mother summoned an ambulance after finding the minor face down in
his pack crib and not moving. When the mother picked him up, he was limp and
unresponsive.3 He eventually took deep irregular breaths and “stared off.” En route to
the Kaiser emergency room, the minor had an episode of grunting for approximately 30
seconds. The treating physician opined that the episode was related to his positioning in
a pack crib.
       Two days later, at 11:31 p.m., the mother brought the minor back to the
emergency room and reported that he had been projectile vomiting and exhibiting
seizure-like movements. Shortly thereafter, medical personnel observed the minor on a
gurney where he lay “unresponsive, not moving his extremities, with a blank stare, which


3
       However, the mother told the paramedics that the minor had been lying in bed
next to her.
                                             4
lasted 1 minute.” The mother did not report any trauma to the minor but later admitted
that she had given him half of a Phenergan rectal 12.5 mg. suppository earlier in the
evening. Dr. Eugene Shek stated that Phenergan was not recommended for children
under the age of two. The minor was admitted for further testing and evaluation.
       The magnetic resonance imaging (MRI) results indicated three areas in the
minor’s brain which suggested “multiple large vessel acute infarcts.” The results of his
electroencephalogram (EEG) were “highly suspicious for increased risk for focal onset
seizures and the focality correlate[d] with the diffusion abnormality on MRI.” When
Dr. Ann Lewis discussed the results of these tests with the mother, the mother asked
about the possibility of trauma causing the most recent episode or the episode on July 2.
She denied any knowledge of trauma but noted that the minor had a bump on his
forehead. Dr. Ramin Saket was then asked to review the MRI for indications of trauma.
Dr. Saket reviewed the MRI and stated that his findings were “suggestive of multiple
hematomas of varying ages raising the possibility for traumatic injury.”
       On July 10, 2012, Dr. Catherine Albin completed a child protection evaluation of
the minor. The minor’s MRI identified two brain hemorrhages of different ages. There
was a “chronic right front subdural hygroma,” which was estimated to be several weeks
old and “a subacute cerebellar bleed which include[d] a subarachnoid component,” which
was days old. There was also evidence of diffuse brain injury. Dr. Albin stated that
prolonged seizures could create the diffusion pattern seen on the MRI, but the findings
would be temporary. Since abuse-related injuries would be expected to show permanent
findings, a follow-up MRI was recommended in two months. According to Dr. Albin,
the minor did not have any metabolic problems that would have accounted for the brain
hemorrhages and thus she concluded that “the finding of subdural blood collections of
different ages with no evidence of other medical diagnosis is most consistent with
abusive head injury.”

                                            5
       Dr. Albin also noted that the minor grew well until he was three and one-half
months old. While in the hospital, he was “demonstrating good weight gain.” Since the
diagnosis of GERD was based on history and weight loss, the minor was going to be
tested that day to define the current level of reflux. Though the minor was prescribed
medication for GERD, the mother had stopped giving it to him without medical advice.
The minor was diagnosed with eczema in December 2011. However, it was described as
mild in February and as dry skin in June.
       Dr. Albin spoke with the mother, who stated that the minor had had no contact
with the father since May 28, 2012. The mother also stated that the maternal
grandmother had provided daycare “on occasion,” but most of his care had been provided
at a daycare home since June 1, 2012. At that time, Dr. Albin stated that the most acute
of the bleeding episodes was less than two to three weeks old and could have been
consistent with the minor’s presentation at the emergency room on July 2, 2012. The
other was likely more than a month old and could have occurred when the father was
present, but he could not have been responsible for both injuries. The mother reported
that the maternal grandmother witnessed the minor fall from a bed to a carpeted floor on
June 23, 2011. The mother also witnessed the minor fall from a bed approximately two
months earlier. According to Dr. Albin, neither of these incidents were “likely to have
resulted in injuries that would lead to intracranial hemorrhage, neurologic
injury/seizures,” and the mother and the maternal grandmother “seem[ed] to be the most
consistent care providers during the cumulative time frame.”
       Extensive diagnostic testing failed to identify any medical cause for the minor’s
brain injuries. Dr. Albin also noted that other factors suggesting abuse were: domestic
violence between the parents, weight loss consistent with psycho-social failure to thrive,
and the mother’s decisions that seemed contrary to her training as a pharmacist. Since
some tests were pending, there remained some uncertainty as to the cause of the minor’s

                                             6
injuries. However, Dr. Albin opined that the evidence supported a diagnosis of abuse and
that the most recent episodes occurred while the minor was in the care of the mother or
the maternal grandmother.
       Dr. Albin discussed her current diagnoses of abusive head injury and psycho-
social failure with the mother. The mother seemed unable to accept that a fall from a bed
to a carpeted floor was unlikely to have caused serious brain injury and seizures. The
mother was also aware that the minor’s feeding assessment was normal, and she blamed
the childcare providers and the maternal grandmother for not encouraging him to eat.
The mother then revealed that that she had forgotten to tell Dr. Albin the previous day
that she had seen the minor fall from a bed and hit his head on a coffee table a couple of
months ago. Though the mother acknowledged that Dr. Albin had asked her for all the
details and that she was not hurried during the interview, she claimed that she had simply
forgotten to mention it. Dr. Albin did not believe her. In Dr. Albin’s experience, the
mother’s statement was a common fabrication to explain serious injuries.
       The jurisdiction/disposition report included the mother’s statements to the social
worker. On July 13, 2012, the social worker met with the mother. The mother denied
hurting the minor and stated that he rolled off the bed onto a carpeted floor on several
occasions. The first incident occurred on May 14, 2012. The minor was swaddled and
sleeping on her bed while she and the father were downstairs. When they heard
something hit the ground, she immediately went to her bedroom and found the minor on
the floor between her bed and the crib. She stated that he was fine after the fall. The
minor also fell off the bed while the maternal grandmother was caring for him on
June 23, 2012. The grandmother observed a bump on his head and stated that he was
fine. The mother claimed that she first learned of this fall from the maternal grandmother
on the way to the emergency room on July 4, 2012. However, the maternal grandmother
told the social worker that she had told the mother about the fall four to five days after it

                                              7
occurred. The next incident occurred on June 28, 2012. The minor rolled off the
mother’s bed and his head became stuck between the bed frame and the end table. His
body remained on the mattress and he appeared to be fine. On July 1 or 2, 2012, the
mother was changing the minor’s diaper on a bed. As she reached for the wipes, he
rolled off the bed and hit the end table. The minor cried and she noticed a bump on the
left side of his head and a blank stare on his face. On July 3, 2012, the mother found the
minor’s head stuck between her bed and the mesh railing that she had installed on her
bed. He appeared fine.
       The mother told the social worker that she did not tell Dr. Albin about all of the
incidents in which the minor fell because she felt Dr. Albin was “intimidating.” She did
not believe that hematomas are caused by trauma. The mother also denied giving
Phenergan to the minor.
       A couple of weeks later, the social worker spoke again with the mother. The
mother stated that she told Dr. Shek on July 4, 2012, that she administered .25 of an adult
dose of Phenergan to the minor, “because she wanted to take the blame for it.” The
mother explained that her father administered the medication to the minor.
       The jurisdiction/disposition report summarized the information from the initial
police report. On July 7, 2012, the mother told the police that the minor had had seizures
in the past and that was not uncommon. She learned that he had fallen off the bed on
June 24, 2012, while he was in the maternal grandmother’s care. She told the police that
the minor became very ill, was vomiting and had trouble breathing on July 2, 2012.
Though she brought him to Kaiser, he was released. Two days later, he began vomiting
and was very lethargic. The minor was taken to the hospital and the physicians found
that he had brain hemorrhages.
       On July 19, 2012, the mother met with the police at her home and demonstrated
how the minor had fallen off beds. She stated that the first incident occurred at the end of

                                             8
May 2012 when the minor fell from the bed to the floor in the master bedroom. He also
fell from the bed to the floor in the baby room during the first week of June. The minor
wedged himself between the mattress and guard rail towards the end of June. He also
wedged himself between the mattress and a night stand table during the same time period.
The officer told her that it was difficult to believe that the minor had lodged his head
between the guard rail and the mattress and that the minor had made the movements she
had described. The mother also stated that being a victim of domestic violence “was very
stressful and she cried a lot.”
       The social worker also interviewed Mr. and Mrs. G., the daycare providers, in
mid-July 2012. They have known the minor’s parents for approximately two and one-
half years. The minor began day care on June 1, 2012. The mother informed them of his
GERD and eczema. She told them that he was on medication for GERD, but they had
never seen the medication. The minor was always wearing mittens to deter him from
scratching himself. They suggested to the mother that the mittens be removed, and that if
he began scratching himself, Aquaphor could be applied. The mother told them that his
condition would worsen if the treatment for eczema was not followed consistently. She
also told them that the minor was fed two ounces of formula every two hours. The G.’s
noticed, however, that the minor drank four ounces of formula every two hours. They
also stated that the minor had never fallen while in their care and he always slept in a
crib. Though the minor could roll well, he could not crawl. The daycare providers stated
that the minor’s last day in their care was July 3, 2012. On that day, he was healthy and
laughing and he ate and slept well. They had never seen the minor have seizures while he
was in daycare.
       The daycare providers stated that the mother told them that on July 1, 2012, the
minor rolled over while she was in the kitchen. When she checked on him, he was on his
stomach and breathing heavily as if he was unable to roll onto his back. They were told

                                              9
that the minor was not admitted to the hospital at that time because his condition was not
life-threatening.
       On July 4, 2012, the mother told the daycare providers that the minor had had
seizures and been admitted to the hospital. The mother told Mr. G. that when she tried to
feed the minor that day, he began vomiting. He vomited five to six times by
approximately 12:00 p.m. The mother then called her parents and they came to her
home. The maternal grandfather, a retired pharmacist, brought prescription medication.
When the maternal grandparents told the mother that the minor needed the medication,
she argued with them. After they called her a “bad mother,” she reluctantly allowed the
maternal grandfather to administer a diluted dose of the medication. Mr. G. did not
remember the name of the medication but the mother told them that the medication had a
black box warning. Approximately 25 minutes after the maternal grandparents left, the
minor had his first seizure which lasted about three to four minutes. She called her
parents again. While they were on the way to the hospital, the minor had another seizure
in the car. As the mother was recounting the events of that day to the G.’s, she kept
saying, “I’m going to jail.” When Mrs. G. asked the mother what she and her parents
talked about on the way to the hospital, the mother did not answer her.
       According to the daycare providers, the father kept the mother organized. He
arranged the child care schedule for the minor before he entered daycare, and he helped
her clean her home. Mr. G. stated that the mother’s home would appear clean one day
and look like it had been hit by a hurricane the following day. In his view, it became
very difficult for the mother after the father left the home. The G.’s met with the mother
on July 13, 2012, to discuss the minor’s placement with them. They felt that she
contacted them only to “line up their statements” with hers. The G.’s did not feel that she
was truthful with them and they severed their relationship with her.



                                            10
       On July 17, 2012, the maternal grandmother told the social worker that the mother
returned to work when the minor was four months old and worked four days per week.
The maternal grandmother took care of the minor at least three days per week while the
paternal grandparents helped care for him during the weekend. She stated that the minor
was a “picky eater” and had “severe” eczema so they carried him a lot and did not allow
him to crawl.
       About a week later, the social worker met with the father. He stated that the minor
cried between 9 and 10 p.m. for at least an hour most days when he was one to two
months old. Since the mother became frustrated by his crying and yelled at the minor,
the father took him away from her. The mother also took the minor out of his car seat
while the father was driving. He told the mother several times that it was not safe. After
the parents agreed that the minor would sleep in the spare bedroom, the father installed a
camera similar to a webcam in the room so he could see the minor even when he was at
work. The mother removed the camera from the room.
       According to the father, when the minor was about seven to eight months old, he
and the mother heard a thump. The minor had fallen from the bed and was on the floor
on his stomach. He was also swaddled because they did not want him to scratch himself
due to the eczema. The father thought that the mother had put the minor in his crib and
she did not tell him that the minor was on the bed.
       On July 26, 2012, the social worker met with the mother and Dr. Albin at Kaiser.
Dr. Albin discussed her findings, showed them the MRI images, and stated that the MRI
needed to be repeated to show more accurate findings. Dr. Albin also discussed the
minor’s growth. He was in the 25th percentile at birth and was growing well at three
months and one week. However, two weeks later, the minor had lost “a lot” of weight
and dropped to the 8th percentile. Since that time, he “had consistently fallen off his
growth chart.” Dr. Albin explained that the minor should have been in the 25th

                                            11
percentile. When the minor was two months old, it was noted that he had dry skin.
Dr. Albin stated that eczema does not cause children “to fall off the growth chart.”
       Dr. Albin also explained psycho-social failure to thrive. She stated that it could be
the result of a combination of factors, such as the refusal to feed the child, personality
conflicts, a power struggle between the caregiver and the child, or the child’s refusal to
eat. Dr. Albin stated that GERD was not the cause of the minor’s weight issues, because
the occupational therapist had found that he had “great feeding mechanics.” When the
mother stated that she was the only person who could feed the minor, Dr. Albin disagreed
and pointed out that he was able to eat for the occupational therapist.
       Dr. Albin also discussed the minor’s injuries. She stated that the July 5, 2012 MRI
revealed a hemorrhage that was more than six weeks old. This injury was not caused by
falling off the bed. She described the injury as being from an acceleration/deceleration
motion, such as a car crash or a whiplash. It was possible to sustain such an injury from
falling off a high area at a high velocity. When the mother pointed out that the minor had
elevated white blood counts, which meant he had an infection, Dr. Albin responded that
his test for encephalitis was negative. She also noted that the minor “did not present with
febrile seizures, which would not appear on MRI or EEG. She stated that L[.] has more
complex seizures.” Dr. Albin stated that the minor did not have a stroke or a tumor and
that differential diagnoses, such as metabolic diseases or genetics, had been ruled out.
She explained that there was a “very low suspicion of abuse” when the minor was
admitted due to the mother’s professional standing at Kaiser. According to Dr. Albin,
“something dramatic” happened when the minor was between three months, one week
old and three months, three weeks old. She also stated that the most recent injury could
have happened on July 1, 2012, not July 3, 2012. She asked if anyone else had cared for
the minor on July 1, 2012.



                                             12
       The father told the social worker that the mother came to his place of employment
on July 16, 2012. The father provided the social worker with photographs captured by
the security camera and screen shots of his iPhone to show that the mother was calling
him on that day. When the social worker asked the mother about the incident, she denied
being at the father’s place of employment. She stated that she attempted to call the father
to discuss the minor. Though the social worker explained that the no-contact order was
to protect her, the mother stated that she had a right to talk to the father.
       On July 23, 2012, the social worker met with the paternal grandparents. They
reported that the mother came to their home four days earlier and was screaming at them.
The paternal grandmother told her to leave or she would call the police. The mother
wanted her to come with her to visit the minor. After the mother left, she went to a
paternal aunt’s house. The paternal uncle told her that they did not want to have anything
to do with her and the mother became very upset.
       About three days later, the social worker met with the mother, the maternal
grandmother, the paternal grandparents, and the paternal aunt and uncle to discuss
placement. The mother objected to placement with the paternal grandparents due to their
age and stated that she would prefer that the minor be placed in foster care. It was
decided that visitation occur outside the paternal grandparents’ home. The following day,
the minor was placed in the paternal grandparents’ home.
       Dr. Albin provided a follow-up report, dated August 6, 2012. The tests, which
were pending at the time of her last report, showed no abnormalities that would explain
the minor’s failure to thrive or brain hemorrhages. Thus, the diagnosis was trauma.
Dr. Albin also noted that, in retrospect, the episode which brought him to the emergency
room on July 2, 2012, “seems likely to have been precipitated by a possible seizure . . . .”
If the first seizure occurred on that date, it was “reasonably occurring at the same time of
the most recent trauma noted on the basis of the MRI/spinal tap results.” Dr. Albin

                                              13
acknowledged that there were many published studies of falls of less than three feet and
skull fractures in a small percentage of infants. However, these studies did not describe
the onset of seizures or subdural hemorrhages.
         During the first supervised visit, the mother held, talked to, fed, and changed the
minor. However, when she began talking about Dr. Albin’s findings, she became very
upset and frustrated. The social worker told her that the visits were for her and the minor
to spend time together. A week later, the mother arrived for a visit with the maternal
grandparents. The social worker told her that if the maternal grandparents wanted to visit
the minor, their visits could be arranged separately. The maternal grandmother held the
minor most of the time during the visit, and thus the mother did not have the same level
of interaction with the minor that the maternal grandmother did.
         In evaluating the case, the social worker expressed concern that the mother did not
fully understand the severity of the minor’s injuries. She noted that the mother had
presented her, Dr. Albin, and the police with different accounts of the minor rolling off
the bed. The social worker stated that there was “no doubt” that the parents loved the
minor.
         Regarding the mother’s case plan, the social worker recommended: a certified 52-
week Child Abuser’s Treatment program; counseling or psychotherapy; a psychological
evaluation; and a domestic violence victims’ support group.


                                   C. The Addendum Report
         An addendum report, dated August 22, 2012, recommended that the juvenile court
sustain the second amended petition and that the parents be provided with reunification
services. On August 10, 2012, the social worker spoke with the mother on the phone.
The mother became very upset when she talked about the jurisdiction/disposition report.
She did not think that the falls caused the minor’s injury and she wanted to know what

                                              14
caused it. The mother also stated that the social worker only felt sorry for the father and
that she had never stood up for her. The mother then stated that the father sat on her
stomach when she was pregnant with the minor. When the social worker asked her why
she had not provided this information before, the mother responded, “I didn’t have to tell
you that.” The mother also stated that she did not think the social worker believed her
regarding the domestic violence.
       On August 15, 2012, the social worker received an e-mail from the paternal uncle.
He explained that the paternal grandparents kept the mother informed of the minor’s
well-being and allowed her to get his medication from the pharmacy. The previous day,
the paternal grandparents had taken him to Kaiser due to fever and the pediatrician
prescribed .8 ml. or 80 mg. of Tylenol every four hours. The mother told them that she
had some Tylenol at home, but the paternal grandparents thought it would be more
convenient to get it at Kaiser. The mother obtained the medication from the pharmacy
and told the paternal grandmother to administer 250 mg. of Tylenol. When the paternal
grandmother questioned her, the mother confirmed the dosage. Dr. Krishnan, the minor’s
pediatrician, stated that the maximum amount of Tylenol for the minor was 100 mg.
Dr. Krishnan also stated that she initially thought that the minor’s weight issues were due
to GERD. However, though the minor gained a little weight after he was prescribed
medication, his weight was not where it should be.


                             D. The Second Addendum Report
       The second addendum report, dated November 30, 2012, recommended that the
juvenile court sustain the third amended petition and that the parents be provided with
family reunification services. The social worker attached a report by Dr. Lewis.
According to Dr. Lewis, the minor’s follow-up MRI showed evidence of permanent
injury. She expected him “to do well, though learning/processing deficits may become

                                             15
more apparent with school performance.” She also noted that there was no evidence of a
metabolic disorder that could have predisposed the minor to bleeding. The social worker
spoke with Dr. Albin about the follow-up MRI. According to Dr. Albin, it showed
permanent damage with evidence of atrophy and her opinion that the minor’s injuries
were caused by trauma remained unchanged. Though the 14-month-old minor was now
able to crawl, sit up, and walk with assistance, he was about six months delayed in his
development.
       Regarding the mother’s visitation with the minor, the social worker stated that the
mother provided basic care, including feeding, changing diapers, and rocking him to
sleep. However, the visitation notes also indicated that the mother rocked the minor to
sleep in almost all the visits even though he was not sleepy and was quite active. She
also attempted to feed him after being informed that he had already been fed prior to
coming to the visits.


                          E. The Jurisdiction/Disposition Hearing
       The Department submitted the jurisdiction/disposition report, the addendum
report, and the second addendum report. The Department also sought to strike the
section 300, subdivision (e) allegations in the third amended petition. The mother’s
counsel stated that it was not submitting any evidence and argued that there was
insufficient evidence to support the section 300, subdivision (a) allegations. The minor’s
counsel objected to the dismissal of the section 300, subdivision (e) allegations, argued
that the third amended petition be sustained as to the section 300, subdivisions (a), (b),
and (e) allegations, and that the petition be conformed to proof to add an allegation
regarding the mother’s improperly administering medication to the minor. Following
argument, the juvenile court granted the Department’s request to strike the section 300,
subdivision (e) allegations, denied the minor’s request to conform the petition to proof,

                                             16
and sustained the section 300, subdivisions (a) and (b) allegations in the third amended
petition.


                                          II. Discussion
                                   A. The Mother’s Appeal
       In order to exercise its jurisdiction over a child in a dependency case, the juvenile
court must find that the child is a person described by one or more of the section 300
subdivisions. (In re Michael D. (1996) 51 Cal.App.4th 1074, 1082.) It is the
Department’s burden to prove the jurisdictional facts by a preponderance of the evidence.
(§ 355, subd. (a).)
       Here, the mother challenges the sufficiency of the evidence to support the
jurisdictional finding under section 300, subdivision (a). To adjudge a minor a dependent
child pursuant to this subdivision, a court must find that “[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.” (§ 300, subd. (a).)
       The Department contends that the appeal should be dismissed, because the mother
did not challenge the juvenile court’s jurisdiction under section 300, subdivision (b).
“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 supported by substantial evidence.” (In
Alexis E. (2009) 171 Cal.App.4th 438, 451.) The mother responds, however, that there is
a sharp distinction in the degree of risk to the minor in the section 300, subdivisions (a)
and (b) orders. She points out that she was found to have inflicted serious physical harm
on the minor under section 300, subdivision (a) while she was found to have failed to
protect him from serious physical harm under subdivision (b). She thus contends that the

                                              17
section 300, subdivision (a) findings could prejudicially affect future dispositions,
placements, or parental rights. Since we agree that the finding on the section 300,
subdivision (a) allegations could potentially affect future dependency proceedings, we
will exercise our discretion and consider the merits of the mother’s appeal. (In D.C.
(2011) 195 Cal.App.4th 1010, 1015.)
       In the present case, the juvenile court relied on the presumption in section 355.1 in
sustaining the section 300, subdivision (a) allegations. Section 355.1, subdivision (a)
states: “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).)
Subdivision (c) of section 355.1 provides that “[t]he presumption created by subdivision
(a) constitutes a presumption affecting the burden of producing evidence.” (§ 355.1,
subd. (c).) Rebuttal evidence may be in the form of the social worker’s report. (In re
Esmeralda B. (1992) 11 Cal.App.4th 1036, 1041.)
       In re James B. (1985) 166 Cal.App.3d 934 (James B.) discussed the proper
application of the presumption in former section 355.2, which was similar to section
355.1.4 James B. explained that former section 355.2 involved two presumed facts. “The
first requires the court to presume a child’s injury actually occurred by injury or neglect
when the court finds the injury is of the sort which ordinarily would not occur except by

4
       Former section 355.2 provided in relevant part: “Where the court finds, based
upon competent professional evidence, that an injury . . . sustained by a minor, of such a
nature as would ordinarily not be sustained except as the result of the unreasonable or
neglectful acts or omissions of either parent, [or] guardian, . . . such evidence shall be
prima facie evidence that the minor’s home is an unfit place . . . and such proof shall be
sufficient to support a finding that the minor is described by subdivision (d) of Section
300.”
                                             18
abuse or neglect. The second permits the court to presume that, given such an injury, the
child’s home is unfit. The presumption only survives, however, until the parents or
guardian(s) present rebuttal evidence as to either or both presumed facts. Where rebuttal
evidence is offered, the presumption in no way relieves the court of its obligation to make
factual findings as to the cause of the injury and the fitness of the home.” (James B., at
p. 937.) Thus, if the parent produces evidence rebutting a prima facie showing, the
Department maintains the burden of proving the case on the merits of conflicting
evidence. (Ibid.) In James B., the parents offered rebuttal evidence, which included their
own testimony and that of an expert that the minor’s injuries resulted from falls from his
bed and the couch as well as testimony regarding the fitness of the home. (James B., at
p. 937, fn. 3.) James B. held that the juvenile court erred when it “explicitly refrained
from finding . . . how the injury actually occurred and whether [the minor’s] home was
unfit.” (James B., at pp. 937-938.)
       In the present case, the juvenile court stated: “I do think that Welfare and
Institutions Code section 355.1(a) is relevant here. I think there is competent medical
evidence that supports the fact that the injuries to this child would not have been
sustained without unreasonable or neglectful acts of the parent or guardian. That is prima
facie evidence the child is described by sections 300(a), (b) or (d). [¶] The head injuries
for this child were fairly significant for his age. Having at least two doctors, Dr. Albin
and . . . Dr. Lewis . . . opine that these injuries don’t occur in the absence of the abuse or
neglect from the parent weighs heavily for this Court. The burden does shift for the
parent to explain what happened. The explanation just doesn’t make sense to the Court.
[¶] And just to be very clear, you know, particularly for appellate purposes, I would say
that even if the child falling from the bed . . . did cause these injuries, and even if there is
not support for the 300(a), a child this age falling off of a bed repeatedly is certainly
neglect on behalf of the parent’s part. I do find it problematic for both (a) and (b). I do

                                               19
believe the medical evidence that was presented that falling off of a bed is really not an
explanation for these injuries.”
       The mother argues that the juvenile court “made no reference to rebuttal evidence
or to a finding of fact on conflicting evidence” in applying the presumption. She further
argues that the juvenile court “employed a legal standard that is not supported by any
statutory or case precedent when it ruled that the presumption must necessarily be
rebutted by the parent with an explanation of ‘what happened.’ ”
       Here, the juvenile court referred to the medical evidence regarding the minor’s
injury and correctly stated the presumption. It then considered conflicting evidence that
the injuries had been sustained when the minor fell off the bed. Unlike in James B.,
however, the juvenile court did not state that the statutory presumption relieved it of
making findings of fact as to how the injury occurred and whether the minor was a person
described in section 300, subdivisions (a) and (b). When there is no evidence to the
contrary, we presume that the juvenile court made the correct findings. (In re Merrick V.
(2004) 122 Cal.App.4th 235, 254.) In sustaining the section 300, subdivision (a)
allegations, the juvenile court implicitly found that the injuries were caused by abuse
perpetrated by the mother.
       We next consider whether there was substantial evidence to support the juvenile
court’s findings as to the section 300, subdivision (a) allegations.
       “On appeal, the ‘substantial evidence’ test is the appropriate standard of review for
both the jurisdictional and dispositional findings. [Citations.] The term ‘substantial
evidence’ means such relevant evidence as a reasonable mind would accept as adequate
to support a conclusion; it is evidence which is reasonable in nature, credible, and of solid
value. [Citation.]” (In re J.K. (2009) 174 Cal.App.4th 1426, 1433.) “It is the trial
court’s role . . . to weigh the evidence [and] to resolve the conflicts in the evidence. We
have no power to judge the effect or value of the evidence, to weigh the evidence, . . . or

                                             20
to resolve conflicts in the evidence or the reasonable inferences which may be drawn
from that evidence. [Citations.] Under the substantial evidence rule, we must accept the
evidence most favorable to the order as true and discard the unfavorable evidence as not
having sufficient verity to be accepted by the trier of fact. [Citation.]” (In re Casey D.
(1999) 70 Cal.App.4th 38, 52-53 (Casey D.).)
       The mother contends that there was insufficient evidence that she “nonaccidentally
inflicted severe physical harm on the minor.” She focuses on Dr. Albin’s statements in
the Child Protection Evaluation, dated July 10, 2012, that the minor’s first traumatic brain
injury was described as “ several weeks old,” and later “likely more than a month old,”
and that the more recent injury was described as “days old” and “likely less than two-3
weeks old.” She points out that the medical evidence established that the minor suffered
both his brain injuries after she returned to work at Kaiser four and one-half months prior
to his admission to the hospital on July 4, 2012. Noting that the maternal grandmother
and the father cared for the minor prior to May 29, 2012, and the maternal grandmother
and daycare providers cared for him between June 1 and July 3, 2012, she argues that she
rebutted the presumption of section 355.1 and the Department failed to prove the method
of injury or the perpetrator of the injury.
       As to the method of injury, the minor focuses on Dr. Albin’s statement that “falls
from a bed would not generally result in this injury unless he fe[l]l directly on his head.
A 9 month old would be expected to have some protective reflexes . . . .” The minor
points out that Dr. Albin failed to consider that he was typically swaddled in a blanket
while sleeping to protect him from scratching his skin. However, this court does not
weigh the evidence or resolve conflicts. (Casey D., supra, 70 Cal.App.4th at pp. 52-53.)
Here, extensive medical testing of the minor failed to identify any medical cause for the
minor’s brain injuries and two physicians concluded that the minor had been physically
abused. Moreover, though some studies indicated that falls of less than three feet resulted

                                              21
in skull fractures in a small percentage of infants, these studies did not describe the onset
of seizures or subdural hemorrhages. Thus, the preponderance of the evidence
established that the minor’s injuries were caused by abuse.
       As to the perpetrator of the abuse, we note that the July 5, 2012 MRI showed a
hematoma which was more than six weeks old and thus occurred before May 24, 2012.
The most recent injury occurred within a week of the onset of the seizures in early July
2012. Since the mother took care of the minor when she was not working, the only other
individual who cared for the minor during the two periods when he suffered each injury
to his brain was the maternal grandmother. However, there was substantial evidence that
the mother, not the maternal grandmother, was responsible for the minor’s injuries.
       Here, when the mother discussed the events of July 4, 2012, she “kept saying, ‘I’m
going to jail.’ ” There was also evidence that she was experiencing severe stress and the
minor was not safe in her care. The mother admitted that caring for the minor was
difficult and that “the father’s presence was necessary for her to manage.” When the
minor was one or two months old, the mother would yell at him for crying and the father
would care for him. The father kept the mother organized and helped clean the home,
and it became very difficult for her when he was no longer in the home. The mother
acknowledged that being a victim of domestic violence “was very stressful and she cried
a lot.” She also engaged in behaviors that were potentially very harmful to the minor,
such as removing him from his car seat while the father was driving and discontinuing
prescribed medication for him without medical advice. Though she was a pharmacist, the
mother either gave or allowed the maternal grandfather to give medication to the minor
despite the manufacturer’s warnings. On another occasion, she told the paternal
grandmother to give the minor more than twice the recommended dosage of Tylenol.
She also insisted that the minor wear mittens, which prevented him from learning to
crawl, and kept him swaddled even after medical reports stated that his condition was

                                             22
“dry skin,” and not eczema. In addition, the minor was diagnosed with psycho-social
failure to thrive. While others had no difficulty feeding the minor, the mother insisted
that he had feeding problems and could only take two ounces of formula.
       Moreover, though the mother was told that falls from the bed could not have
caused his injuries, she provided different accounts of his falls to Dr. Albin, the social
worker, and the police. She initially stated that he fell twice and later stated that he fell
five times. She also later added the significant detail that he had hit his head on a table
though she did not see the fall. When she demonstrated how the minor had become
lodged between the mesh rail and the mattress, the police officer told her that he had a
“hard time believing” her. The mother’s credibility was further challenged by her
inconsistent statements to various individuals. On July 2, 2012, she told the paramedics
that she had been co-sleeping with the minor when he began breathing irregularly.
However, she told medical personnel at the hospital that she had found him face down
and not moving in a pack crib. The mother initially told the police that she had seen the
minor have a seizure and that it was not uncommon for him. About a week later, she told
the social worker that she had never seen him have a seizure. The mother told a doctor
that she had given Phenergan to the minor and later denied giving him the medication.
She claimed that she did not go to the father’s place of employment and there was
security footage of her presence.
       In sum, the Department met its burden of proving the jurisdictional facts by a
preponderance of the evidence. There was evidence that the minor suffered two brain
hemorrhages as well as evidence of the mother’s consciousness of guilt, her severe stress
in taking care of the minor, her potentially dangerous behaviors involving him, and her
lack of credibility. Thus, there was substantial evidence to support the juvenile court’s
finding that the minor suffered serious physical harm inflicted by the mother.



                                              23
                                  B. The Minor’s Appeal
                  1. Dismissal of Section 300, Subdivision (e) Allegations
       Relying on In re Sheila B. (1993) 19 Cal.App.4th 187 (Sheila B.), the minor
contends that the juvenile court erred when it dismissed the section 300, subdivision (e)
allegations, because there was substantial evidence to support them. The minor’s reliance
on Sheila B. is misplaced. In that case, the juvenile court declined to take jurisdiction
over the minor after a contested five-day hearing. (Sheila B., at pp. 192-193.) Noting the
equivocal nature of the medical evidence and the minor’s recantation against her initial
allegations, this court held that there was substantial evidence to support the juvenile
court’s determination that the minor did not come within the provisions of section 300,
subdivisions (c) and (d). (Sheila B., at p. 200.) Sheila B., however, did not discuss the
issue presented in this case, that is, whether the juvenile court erred in granting the
Department’s request that the section 300, subdivision (e) allegations be stricken.
       The minor also contends that the juvenile court violated his right to due process by
failing to hold an order to show cause hearing in which the Department would be
required to establish why the section 300, subdivision (e) allegations should be dismissed.
He also contends that the juvenile court failed to consider whether the dismissal was in
the interests of justice and the welfare of the minor. According to the minor, “the only
rationale that appears to be the basis for the dismissal was court expediency.”
       Procedural due process requires notice to interested parties and a meaningful
opportunity to be heard. (In re Melinda J. (1991) 234 Cal.App.3d 1413, 1418.) Allen M.
v. Superior Court (1992) 6 Cal.App.4th 1069 (Allen M.) outlined the procedure to be
followed when the Department seeks to dismiss a section 300 petition. In that case, the
Department filed a petition pursuant to section 300, subdivision (d) and alleged the father
sexually abused one of his daughters. (Allen M., at p. 1071.) Jurisdiction over his other
daughter was based upon the abuse of her sister pursuant to section 300, subdivision (j).

                                              24
(Allen M., at p. 1071.) After the Department filed a second petition pursuant to section
300, subdivision (b) and alleged the minors were at risk due to domestic violence and the
father’s abuse of alcohol, the Department sought to dismiss the initial petition on the
grounds that there was insufficient evidence to sustain it and the parents had indicated
that they would admit the section 300, subdivision (b) allegations. (Allen M., at pp. 1071-
1072.) The minors’ counsel opposed the dismissal. (Id. at p. 1072.)
       After the juvenile court denied the motion to dismiss, the father sought a writ of
mandate. (Allen M., supra, 6 Cal.App.4th at p. 1072.) The reviewing court held that the
Department had no discretion to dismiss a petition under section 300 and stated: “We
conclude that when the Department wishes to dismiss a petition (or one of several bases
for jurisdiction) it must notify all interested persons in order to afford each the
opportunity to object and be heard. If a parent or minor does object, resolution of the
matter is properly by an order to show cause hearing requiring the Department to
establish why the petition should be dismissed. The evidence may be presented by
declaration and, if necessary, by testimony. Although the court may accord great
deference to the Department’s expertise, the primary focus of the court is the
determination of whether dismissal is in the interests of justice and the welfare of the
minor. On that basis the court may either grant the dismissal or order the Department to
proceed with the petition.” (Allen M., at p. 1074.)
       Here, the Department provided notice to the parties of its intention to seek
dismissal of the section 300, subdivision (e) allegations. At the jurisdiction/disposition
hearing, counsel for the Department stated: “[W]e actually believe the evidence as
contained in the reports would suffice to sustain an (e) petition. However, the (e) petition
is used when we intend to bypass. The Department does not intend to bypass this mother.
Therefore, we do not need the (e) petition. We will be proceeding on the (a) and the



                                              25
(b).”5 The minor’s counsel requested that the petition be sustained as pleaded, including
the section 300, subdivision (e) allegations, and did not oppose reunification services for
the mother. The minor’s counsel did not seek to present any additional evidence.
       Following argument, the juvenile court stated: “What I wanted to make the record
clear about was the fact that this matter was set for a long cause trial. This Court
received a phone call this afternoon that counsel thought, with an hour of argument, we
could go forward. I was willing to do that. [¶] I read the three reports, the
jurisdiction/disposition report, as well as the two addendum reports. I want the record to
be clear I did not have time to read the briefs that counsel submitted. So your arguments
to me are the first time I’ve heard these arguments. I didn’t have time to read them. I did
specifically read Dr. Albin’s letters that were attached to the back of the jurisdiction
report. [¶] . . . [¶] . . . I am going to drop the 300(e) petition as requested. There’s
nothing in the code that says the Court shall use every single jurisdiction ground that is
available to it. The code is written fairly loosely. It says any child who comes within any
of the following descriptions is within the jurisdiction of the juvenile court which adjudge
that person to be a dependent child of the court. And then it lists all of these. [¶] And
nobody argued case law, and in particular, [minor’s counsel] did not argue case law.
Given that the Department is not looking at a bypass, the 300(e) petition seems
superfluous to the Court.”
       Even assuming that the juvenile court erred by failing to hold an order to show
cause hearing and by using an improper standard for granting the Department’s request to
strike the section 300, subdivision (e) allegations, the minor has failed to show prejudice.
The minor contends that the “dismissal was inconsistent with the juvenile court’s duty to

5
       When a minor is declared to be within the jurisdiction of the court under
section 300, subdivisions (a) or (b), reunification services are mandatory. However,
when jurisdiction is based on section (300), subdivision (e), there is a presumption
against reunification services. (In re Troy Z. (1992) 3 Cal.4th 1170, 1174.)
                                              26
protect [the minor’s] welfare and act in the interests of justice,” and that a section 300,
subdivision (e) finding would have affected the nature of the services provided to the
mother. There is no merit to this argument.
       We first note that the section 300, subdivisions (a) and (e) allegations in the
petition pleaded the same facts, that is, that “the minor had suffered severe physical abuse
that ha[d] resulted in serious brain trauma and seizures,” and that the most recent injury
occurred while he was in the care of the mother. After seeking the dismissal of the
section 300, subdivision (e) allegations, the Department did not change the case plan
recommendations for the mother. Following the hearing, the juvenile court adopted the
Department’s recommendations and ordered the mother, among other things, to attend a
certified 52-week Child Abuser’s Treatment program, complete a psychological
evaluation, and participate in counseling or psychotherapy to address the issues of the
minor’s removal, discipline, and responsibility for the minor’s injuries. The minor did
not seek a different case plan for the mother at the hearing. Nor does he now claim that
the juvenile court should have ordered other services for the mother.
       The minor also contends that the dismissal of the section 300, subdivision (e)
allegations will affect the juvenile court’s determinations regarding whether the mother
will receive additional time to reunify beyond the six month period or whether he should
ever be returned to her custody. However, the Department’s assessment and the juvenile
court’s determination at the six-month review will be governed by section 366.21,
subdivision (e). With the exception of section 300, subdivision (g),6 section 366.21
makes no distinction between the subdivisions of section 300 under which the minor was
adjudicated a dependent of the court. Regardless of whether the section 300,
subdivision (e) allegations were sustained, the Department’s recommendation and the
6
       When a child is removed under subdivision (g) of section 300 and the parents’
whereabouts remain unknown, the juvenile court may set a section 366.26 hearing.
(§ 366.21, subd. (e).)
                                              27
juvenile court’s determination as to whether the mother will reunify or receive additional
services will be based on the mother’s progress on her reunification case plan.
       The minor next argues that if the mother reunifies with him and he is injured
again, the juvenile court’s history of this case will not accurately reflect the severe nature
of the abuse. We disagree. The history will reflect that the juvenile court sustained the
section 300, subdivision (a) allegations which state that the minor suffered nonaccidental
brain trauma perpetrated by the mother. Moreover, in any future dependency, the
juvenile court’s finding of jurisdiction must be based on current circumstances. (In re
J.N. (2010) 181 Cal.App.4th 1010, 1022.)
                        2. Amendment of Third Amended Petition
       The minor contends that the juvenile court abused its discretion by denying his
counsel’s request to conform the petition to proof.
       Section 348 provides that the provisions in the Code of Civil Procedure relating to
the amendment of pleadings in civil actions shall apply to juvenile dependency petitions
and proceedings. Amendments to conform to proof are permissible. (Code Civ. Proc.,
§ 470.) “The court may likewise, in its discretion, after notice to the adverse party, allow,
upon any terms as may be just, an amendment to any pleading or proceeding in other
particulars . . . .” (Code Civ. Proc., § 473, subd. (a)(1).) “[T]he court’s discretion will
usually be exercised liberally to permit amendment of the pleadings. [Citation.]”
(Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428.)
       In the present case, the original petition alleged that in the beginning of June 2012,
the mother, a pharmacist, used a half dose of a relative’s Phenergan prescription to
control the minor’s vomiting despite manufacturer warnings against use for children
under two years of age. The second amended petition removed the allegations that the
mother had used Phenergan. In conducting the investigation, the social worker had
learned that the Phenergan was given to the minor on July 4, 2012, not in June. Though

                                              28
the mother initially stated that she administered the Phenergan, she and the maternal
grandfather later claimed that the maternal grandfather administered the medication and it
was unclear whether the mother was present when it was given to the minor. It was also
not known how much Phenergan the minor was given. The mother initially stated that
she gave him half of a Phenergan rectal 12.5 mg. suppository. The mother later stated
that the minor was given “.25 of adult dose.” The paternal grandfather told the social
worker that he “cut a little bit of” Phenergan, gave it to the minor, and later told the
mother what he had done. The mother subsequently told Mr. G. that the minor was given
“a diluted dose” of Phenergan.
       Prior to the jurisdiction/disposition hearing, the minor requested that the
section 300, subdivisions (a), (b), and (e) allegations be sustained with the amendment
that “[t]he mother has knowingly administered or knew that [the minor] was being
administered an adult dose of prescription strength Phenergan, an adult anti-seizure and
anti-nausea medication that was not prescribed to [him] and was administered at an
unknown dose.” The minor also requested that the juvenile court find true the allegation
that “the mother attempted to administer higher dosages of Tylenol than directed by his
attending physician.”
       The juvenile court exercised its discretion and denied the minor’s request to
conform the petitions to proof. The juvenile court noted that “[w]hile it may be
problematic that the mother engaged in the behavior she did with the medication, I don’t
think we need it as a supportive allegation. There is information about it in the reports.
In the furtherance of justice, I don’t think it’s necessary in this case.”
       Here, the evidence does not support the proposed amendments. First, no evidence
was presented to the juvenile court to determine the amount of an adult dose of
Phenergan. Second, there was no evidence that the mother attempted to give the minor
higher doses of Tylenol on more than one occasion. Instead, the evidence was that the

                                              29
mother told the paternal grandmother to give the minor a higher dose of Tylenol, and the
paternal family members followed the attending physician’s direction and then alerted the
social worker.
       Given that the evidence did not support the proposed amendments to the petition,
the juvenile court did not abuse its discretion by denying the request.
       Even assuming that the juvenile court abused its discretion, the minor has shown
no prejudice. The minor argues that he suffered prejudice because “the true nature of the
abuse . . . should have been reflected in the allegations found true.” We disagree. The
juvenile court authorized the psychological evaluator, the mother’s therapist, and the
Child Abuse Treatment program to have access to the court reports. Thus, the service
providers will have the necessary information to address the medication issues with the
mother.7


                                     III. Disposition
       The order is affirmed.

                                          _______________________________
                                          Mihara, J.

WE CONCUR:

______________________________
Elia, Acting P. J.

______________________________
Grover, J.




7
       The minor also claims that the Phenergan interfered with his receiving a correct
diagnosis when he was first brought to the hospital. This was not, however, the result of
the juvenile court’s order.
                                             30
