In re A.B.

Filed 10/24/07 In re A.B. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Tulare County. Charlotte A. Wittig, Juvenile Court Referee.

Kathleen Murphy Mallinger, under appointment by the Court of Appeal, for Defendant and Appellant.

Kathleen Bales-Lange, County Counsel, and John A. Rozum, Deputy, for Plaintiff and Respondent.

-ooOoo-

K.B. (Mother) appeals a dispositional order dated December 1, 2006, entered with respect to now one-year-old B. and six-year-old A. (collectively, the minors). Mother contends the evidence was insufficient to support the juvenile courts findings that B. was within the courts jurisdiction under Welfare and Institutions Code^[1]section 300, subdivision (e), and that A. was within the courts jurisdiction under section 300, subdivision (a) and subdivision (b). Mother also challenges the courts order removing A. from her care and custody. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND^[2]

B. was born in the latter part of January 2006. He lived with Mother and his father, Sean S. (Father) (collectively, the parents), at a residence on a dairy farm where Father was employed. A., Mothers son from a previous relationship, also resided with the parents.

On March 7, 2006, Father called 911 and reported that the infant B. had stopped breathing. The ambulance log reflected that the paramedics responded to the parents residence within 14 minutes of the call.

When the paramedics arrived, Father met them outside and directed them inside the house where Mother was performing rescue breathing and chest compressions on B. As the paramedics started working on the baby, one of the paramedics asked the parents what happened. They both told him that the baby had been crying a lot then just stopped breathing.

Later, on the way to the hospital, another paramedic asked Father exactly what happened. Father responded that B. had been crying and crying and would not stop. Father said he fed the baby, changed his diaper, and then noticed the baby was not breathing.

The paramedics transported B. to Tulare District Hospital. Father told the attending emergency room physician that he had been holding B. when the baby started coughing and quit breathing. The physician described his contact with the parents as limited, and stated that they were distraught and that it took great effort just to calm them down.

B. remained at Tulare District Hospital several hours before arrangements were made to transport him to Childrens Hospital. Some time during this period, Father began to tell medical personnel that, when B. was crying, he took the baby outside the house where he stumbled. When Father stumbled, B.s head hit his shoulder. Shortly afterwards, the baby stopped breathing.

The parents accompanied B. to Childrens Hospital and were joined by a number of their family members. When approached, the parents declined to discuss with the social workers and detectives what happened to B., explaining their family had advised them not to speak with them and that they were going to obtain attorneys.

Father did talk to doctors at Childrens Hospital, and later made a statement to a social worker, about what happened on March 7, 2006. Father said that when he returned home from work around 6 p.m., B. was fussier than usual. Father picked the baby up and took him outside to comfort him. Once outside the house, Father slipped on some steps. When he slipped, B. fell back against him and hit his head against Fathers shoulder. Moments later, B. stopped breathing and Father took him inside the house to alert Mother. Mother began to administer CPR while Father called 911. Because the parents lived out in the country, it took 20 to 25 minutes for the paramedics to arrive.

On March 8, 2006, social workers from the Agency and the hospital met with Tulare County detectives and other hospital staff to discuss B.s case. During the meeting, Dr. Donald Fields, M.D., a child abuse expert and head of the hospitals child advocacy program, explained that his consultation with the neurosurgeon and ophthalmologist and his review of the CT scans showed that B. had retinal hemorrhages behind both eyes, multiple brain hemorrhages, and brain swelling. Dr. Fields explained that these injuries were consistent with shaken baby syndrome, a form of child abuse, and that the outcome for B. was very grim. Dr. Fields further explained that the number one cause of retinal hemorrhaging was shaken baby syndrome, and it was caused by the head being shaken violently back and forth. In this case, B.s injuries would have required a form of severe trauma and would not have been caused by just hitting his head against someones shoulders.

Dr. Fields then met with the parents and other family members to explain his assessment of B. Dr. Fields explained that B. was gravely ill, and that shaken baby syndrome was at the top of his list. At this point, the family began to ask him a number of what if questions about other possible causes of the infants injuries. Mother mentioned that B. had recently fallen from a bouncer and landed on the floor. Dr. Fields replied that such a fall would not have caused the type of injuries B. had. Mother then said that her five-year-old had picked B. up and brought him to her in the kitchen, and asked what if he had dropped the baby without telling her. Dr. Fields answered that B.s injuries were too severe to be consistent with this scenario.

Mother expressed that she was upset because no one was trying to prove her innocence. She stated she could understand if the baby was burned or had visible bruises, but this was not the case. Dr. Fields stated that although there were no visible signs, the baby was nonetheless in critical condition. Mother told social workers that she and Father had been planning to get married in two months and that they had ruined her wedding. She also threatened to get her attorney and the media involved.

Over the next few weeks, extensive testing was conducted on B. to determine the cause of his injuries. Mother reported to doctors and social workers that she had done research on the Internet and in the hospital library and found many conditions and diseases that could mimic shaken baby syndrome. Based on their Internet research, the parents requested that B. be tested to determine if he had a metabolic disorder that might account for his injuries. As of March 13, 2006, the hospitals metabolic specialist had reviewed the case and had begun running laboratory tests to rule out a metabolic disorder. However, the specialist did not believe the injuries were related to a metabolic disorder based on the presentation of the infant. On March 15, 2006, the testing came back negative for a metabolic disorder.

On March 16, 2006, Mother told one of the social workers that a doctor at Childrens Hospital had spoken to the family and indicated that B.s injuries could have been caused by the onset of SIDS and that the lack of oxygen to the brain might have accounted for the injuries. Mother stated that the doctor was going to run tests to determine if that was the case.

On March 28, 2006, social workers met with medical staff and the parents at Childrens Hospital to discuss B.s status. Dr. Fields stated that he and the other doctors had reached a consensus that B.s injuries were directly related to child abuse and shaken baby syndrome, and that the hospital had ruled out other causes of the injuries. Dr. Fields then began to explain the severity of B.s injuries. B. was neurologically permanently brain devastated and would require help with every activity of daily living. B. would not be able to feed by mouth but would require a G-Tube. B. was also going to be receiving surgery to wrap his stomach closer to his intestines.

During the meeting, Dr. Fields explained why the doctors had ruled out all the causes the parents had suggested for B.s injuries and concluded he suffered from shaken baby syndrome. The baby had experienced severe retinal hemorrhages, where both eyes were detached from the retina. There was also massive, diffuse hemorrhaging in the brain. In addition, B. was spasming and required splints on his arms and legs. All the medical professionals in the meeting agreed that it was impossible for B.s injuries to have been caused by SIDS.

During the meeting, Mother expressed a belief that B. had made considerable improvements. Mother stated that she and Father took turns watching over the baby during the night, and that B. could hear them talking and was moving his arms and legs. Medical professionals explained that B.s movements were involuntary and caused by spasms.

The same day an Agency nurse and social worker met with Mother at the hospital. B. was asleep during part of the visit. The nurse noted spasms in his upper extremities and asked Mother how long they had been occurring. Mother responded by asking, What to you mean, whats that? After the nurse explained what spasms were, Mother replied, Oh, he probably just had a bad dream.

Following a detentional hearing on March 13, 2006, A. was initially placed in foster care, pending assessment of family members for placement, and thereafter placed with his maternal grandmother in Orange County. B. initially remained hospitalized at Childrens Hospital and was subsequently placed in a foster home.

In the jurisdiction/disposition report filed on April 7, 2006, the social worker recommended that the minors be adjudged dependents of the juvenile court and recommended denial of reunification services. It was further recommended that the court terminate parental rights as to both parents, and for A. to be adopted by the maternal grandmother. Due to the severity of his medical condition, the report recommended that B. be placed in long term foster care with certified care providers equipped and trained to meet his medical needs. It was further recommended that the case be set for a permanent planning hearing.

In support of these recommendations, the social worker noted, among other things, that on March 28, 2006, medical staff from Childrens Hospital reported that all tests on B. had been completed and they had concluded the baby suffered from shaken baby syndrome. Neither parent had shed light on the allegations of child abuse. It was quite possible that the parent who did not harm the infant was protecting the parent who did and was therefore equally culpable. B. was diagnosed to be in a lifetime vegetative state. He was blind and possibly deaf. Physicians at Childrens Hospital did not believe B. would ever be able to function as a normal child; he would not be able to walk, talk, or eat on his own. He was presently being fed through a tube that ran through his nasal cavity, and was slated for a surgical procedure that would insert a feeding tube into his belly and connect directly to his gastrointestinal system.

On July 31, 2006, the matter came on before a juvenile court referee for a contested jurisdictional hearing. The court took judicial notice of and received into evidence the entire file including all the social workers reports.

At the hearing, Dr. Fields testified he saw B. the first night the baby was at Childrens Hospital. Some of the medical records noted that B. had severe hypoxic ischemic encephalopathy. Dr. Fields explained that hypoxia occurs when the brain is swollen or deprived of oxygen. Ischemia is the lack of blood flow to the brain. Severe hypoxic ischemic encephalopathy implies there was poor oxygenation or no blood flow to the brain. The medical records also noted that B. had bilateral cerebral infarction, which, in laymans terms, meant B.s cerebral cortex had strokes on both sides. There was also bleeding in the space between the brain and the skull. The report noted that B. suffered massive bilateral retinal hemorrhages. Dr. Fields explained the retina is the last layer on the back of the eye used to produce images. The ophthalmologist who examined B. told Dr. Fields that B. appeared to have acute and subacute hemorrhages, indicating that B. had suffered retinal hemorrhaging on more than one occasion.

Dr. Fields testified he interviewed B.s parents to see if he had suffered any trauma. The history Dr. Fields obtained regarding the injury to B. was that about 6 p.m., Mother was beginning to fix dinner when Father came in. B. was a little fussy. Father picked him up and walked outside. As he was walking down the steps, he slipped. He did not fall but B. came away from his shoulder and then snapped back and landed on his shoulder.

Dr. Fields opined that the incident Father described would not have caused B.s symptoms, and that B.s symptoms were caused by being shaken. When asked to describe B.s current condition, Dr. Fields testified that B. was neurologically devastated, explaining:

He doesnt track, which leads me to believe that I think he doesnt see. I understand that he is potentially going to have blood drained from his eyes so perhaps that will help. Repeat CTs show no cerebral cortex. Theres just a thin rim left there, so all the higher sort of order processes that the brain does, the part of the brain that does that no longer exists. Its gone. Its been reabsorbed.

Dr. Fields described what B.s future would be like without a cerebral cortex:

He never the cerebral cortex is what sets us apart from lower animals, essentially, and so [B.] will not be producing meaningful thoughts. He will essentially be bed bound. He slowly over time will stiffen up and likely if, based on seeing many, many, many children in this condition, will begin to become very rigid, likely not even on both sides. He is likely to develop some type of lordoscoliosis and his body will twist and contort. He likely will have pneumonias throughout his life. As he gets older and people are not able to lift him, then you run into the issue of bed sores, and that sort of thing. He will be all of his activities of daily living essentially will be dependent on another person, and thats what I believe is likely for his future.

Dr. Fields further testified that B. was experiencing infantile spasms, a form of a seizure, five to ten times per day. Spasms are difficult to control. According to Dr. Fields, as B. ages and goes through different developmental stages, frequent adjustment of his medication will be required.

Dr. David Sine, the medical director and pediatric hospitalist at Kaweah Delta Hospital, testified he became familiar with B.s case when he was asked by county counsel to review his medical records. Based on his review of B.s records, Dr. Sine opined that B. was a victim of nonaccidental trauma as a result of shaken baby syndrome, and explained the bases for his opinion.

Mother testified that on March 7, 2006, Father came home at approximately 6:00 p.m. Mother had A. sit at the kitchen table to do homework. She sat B. behind him in a car seat and started cooking dinner. During this time, Father was in the living room. He told Mother he was going to take a shower. B. had just woken up and started to cry while Father was in the shower. Five to ten minutes later, Father came back out and took B. into the bedroom to change his diaper. They were in the bedroom for a few minutes. When they returned, Mother did not notice anything out of the ordinary. She gave B. some medicine to help him keep his food down.

Father then took B. outside while Mother went to the playroom to find crayons for A. While she was in the playroom, she heard a thump. Mother testified she stopped everything that [she] was doing and tried to see [if she could] hear anything so far as crying or someone needing help . Mother described the sound she heard as follow: [T]he way our stairs are theyre very hollow and what it sounded to me was someone stepping hard on the actual step itself. She confirmed that she heard the thumping sound around the time Father would have been walking down the front steps.

About a minute later, Father came running into the kitchen and said something was wrong with B. Mother told him he was probably overreacting. Mother explained Father had acted similarly after another incident where B. fell out of his bouncy chair. When B. fell, Father rushed over to the office where Mother was working on her college homework. He told Mother that B. had slipped out of the bouncer and was breathing hard. Father acted like B. was dying. But when Mother looked at him, B. was not even crying and had only a little scratch on his eye. B. was able to follow her finger and was alert. Mother testified that she thought Father responded as an overreacting, caring father.

This time, however, Father told Mother, No, somethings wrong with him. Mother went to look at B. and immediately observed his body was limp, his face was purple, and he was not breathing. She started giving him breaths and told Father to call 911. The 911 operator instructed Father to tell Mother to put him on the ground and start compressions. It seemed like it took 20 minutes for the ambulance to arrive. Mother kept giving B. compressions and air until they arrived. The ambulance transported him to the Tulare District Hospital. Five or six hours later, B. was transferred to Childrens Hospital.

Mother denied that she or Father had ever shaken B. or done anything physical to him other than what was necessary to care for him. Mother estimated Father had been outside with B. for approximately two minutes. At the time of the jurisdictional hearing Mother was no longer engaged to Father, but she was five months pregnant with his child and was wearing a promise ring he had given her.

Mothers cousin, Darla J., testified. Darla was at Childrens Hospital on March 8, 2006, and was present when Mother was talking with a social worker. Darla testified that Mother was focused on finding out from the doctors what she could do regarding B. and what tests could be taken. The doctors wanted to know if Father was A.s father. Mother said no but explained that they were going to get married in two months and that he was going to adopt A. Darla never heard Mother say that the event was ruining her wedding.

Mothers aunt, Barbara L., testified she saw Mother on March 7, 2006. They met for lunch at Rosas Restaurant at 1:00 p.m., and were there about two hours. B. slept during most of the lunch. Barbara did not notice anything unusual in his appearance. Barbara further testified that Father was very good with A. and has always shown him love. She has never seen him act violently towards either A. or B.

After the juvenile court referee took the matter under submission, the Agency moved to reopen the case and admit further evidence based on information it had received suggesting Mothers relatives possibly colluded in their testimony. On August 18, 2006, the referee granted the Agencys motion, and all parties agreed to waive the requirement that the matter be resolved within six months from the date of detention.

On October 10, 2006, the juvenile court referee heard further testimony from various witnesses at the reopened jurisdictional hearing. Mother testified she blamed the paramedics for B.s prognosis and the amount of time he went without oxygen. Mother also testified she did not believe Father hurt B. She testified: If he was injured, I dont think it was due to a shaking matter. But I dont know.

On October 23, 2006, the juvenile court found that the dependency petition was true, and that B. came within the provisions of section 300, subdivisions (a), (b), and (e), and that A. came within the provisions of section 300, subdivisions (a) and (b).

A contested dispositional hearing was scheduled for November 8, 2006. On November 8, 2006, the parties met in chambers and reached a proposed agreement as to a disposition case plan. The referee asked counsel for the Agency to restate on the record the provisions of the agreement that had been discussed in chambers. Under the agreement, B. would be placed under a legal guardianship with the paternal grandparents. A. would continue in out-of-home placement with Mother receiving reunification services. The referee further noted:

The other thing we discussed that we should probably put on record is due to the numerous continuances in this matter to prepare for trial and with the new evidence, we actually have now exceeded the 366.21, subdivision (e) date and wed be looking at an (f) hearing as the next date that is set. [] I just wanted to make a record that we discussed that and that is the Courts opinion. If anyone has a different opinion, provide me some authority at the next hearing.

On December 1, 2006, the matter came on for an uncontested dispositional hearing. The December 1, 2006, minute order reflects the juvenile court referee made the following rulings consistent with the agreement the parties discussed on November 8, 2006:

As to [B.]: Child will be under Legal Guardianship with Parental Grandparents, Robyn and Alvin [S.] An adoption assessment has been filed with the Social Workers report.

As to [A.]: Reunification services will be provided only to the mother and not to the father as the father is an alleged father. [] []

The parents are in agreement with the Legal Guardianship as to [B.]. Parents understand that reunification services will not be offered as to [B.] if they proceed with the Legal Guardianship.

The court finds 361.5(b) 5 and 6 are applicable as to [A.].

The court finds by clear and convincing evidence that it would be in the best interests of [A.] for mother to receive reunification services based on competent evidence contained in various reports that services are likely to prevent re-abuse and failure to try to reunify would be detrimental to [A.] as the child is very bonded to the mother.

The referee also scheduled the matter for a section 366.21, subdivision (f) hearing as to A., and a section 366.3 hearing as to B.

On January 11, 2007, Mother filed a notice of appeal from the judgment of disposition entered on December 1, 2006.

DISCUSSION

I. Notice of appeal

As a preliminary matter, we reject the Agencys claims that Mothers notice of appeal from the dispositional order was defective because (1) it was signed by Mothers attorney instead of Mother, and (2) it failed to specify the courts jurisdictional findings made on October 23, 2006, and thereby failed to preserve Mothers appellate challenge to those findings.

As Mother correctly notes in her reply brief, current law authorizes a parents attorney to sign the notice of appeal. (In re Helen W. (2007) 150 Cal.App.4th 71, 77-79; Cal. Rules of Court, rule 8.400(c).) Moreover, there is no evidence that Mother engaged in conduct demonstrating she had no true interest in pursuing the case and therefore the authority on which the Agency relies is inapplicable here. (See In re Sean S. (1996) 46 Cal.App.4th 350 [mother failed to sign notice of appeal and demonstrated no true interest in preserving her parental ties by not appearing at the social services agencys selection and implementation hearing].)

We also conclude the notice of appeal was sufficient to preserve Mothers challenge to the jurisdictional findings of the juvenile court. A notice of appeal shall be liberally construed in favor of its sufficiency. (Cal. Rules of Court, rule 8.400(c); see also Cal. Rules of Court, rule 8.100(a).) Section 395 provides that: A judgment in a proceeding under Section 300 may be appealed in the same manner as any final judgment, and any subsequent order may be appealed as an order after judgment. In juvenile dependency matters, all orders starting chronologically with the dispositional order are appealable judgments, except an order setting a permanency planning hearing. (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1150.) Although jurisdictional findings are not appealable, an appeal from a dispositional order allows an appellate court to consider errors in connection with nonappealable jurisdictional findings. (See In re Tracy Z. (1987) 195 Cal.App.3d 107, 112.) In light of the liberality in construing notices of appeal, we shall construe Mothers appeal from the dispositional order as an appeal from all aspects of the jurisdictional and dispositional orders.

II. Sufficiency of the evidence to support the jurisdictional findings as to B.

Mother contends there was insufficient evidence to support the juvenile courts finding that B. was a dependent child under section 300, subdivision (e), because the Agency presented no evidence that she physically abused B. or that she knew, or reasonably should have known, B. was being physically abused by Father. We disagree.

When the sufficiency of the evidence is challenged on appeal, the reviewing court must determine if there is substantial evidence supporting the finding or order. (In re Ricardo L. (2003) 109 Cal.App.4th 552, 564.) In making this determination, all conflicts in the evidence are resolved in favor of the prevailing party. (In re Steve W. (1990) 217 Cal.App.3d 10, 16.) The juvenile courts determination should not be disturbed unless it exceeds the bounds of reason. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) When two or more inferences reasonably can be deduced from the evidence, or two or more conclusions reached, a reviewing court has no authority to substitute its decision for that of the juvenile court. (Id. at p. 319.)

Section 300, subdivision (e) provides that the court has jurisdiction over a child who is under the age of five years and has suffered severe physical abuse by a parent, or by any person known by the parent, if the parent knew or reasonably should have known that the person was physically abusing the child. As relevant here, severe physical abuse is defined as any single act of abuse which causes physical trauma of sufficient severity that, if left untreated, would cause permanent physical disfigurement, permanent physical disability, or death, or more than one act of physical abuse, each of which causes bleeding, deep bruising, significant external or internal swelling, bone fracture, or unconsciousness . ( 300, subd. (e).)

The statute does not require the parents actual or constructive knowledge that the minor in fact suffered severe physical abuse within the statutory definition. Indeed, several of the listed injuries, such as bleeding (internal), internal swelling, and bone fracture, may not be visible; they may be discovered only after medical examination or testing. (In re Joshua H. (1993) 13 Cal.App.4th 1718, 1729.)

In In re E.H. (2003) 108 Cal.App.4th 659, the appellate court confirmed that a true finding under section 300, subdivision (e), does not require that the parent have actualknowledge that the child is being abused. Rather, the court stated that the only requirement is that they reasonably should have known. (In re E.H., supra, 108 Cal.App.4th at p. 670, italics added.) In that case, the appellate court agreed with the social services agency that a res ipsa loquitur type of argument can support a jurisdictional finding under section 300, subdivision (e):

There was severe physical abuse of a child under five (E.s broken bones) and the child was never out of her parents custody and remained with a family member at all times; therefore [the parents] inflicted the abuse or reasonably should have known someone else was inflicting abuse on their child .... [This is] the only reasonable conclusion which may be drawn from the evidence . (In reE.H., supra, 108 Cal.App.4th at p. 669.)

Applying the same rationale here, the infant B. suffered severe physical abuse and was never out of his parents custody; therefore, the parents inflicted the abuse or reasonably should have known one of them was inflicting abuse on their child, bringing B. under section 300, subdivision (e). Mothers attempt to distinguish In re E.H., supra, 108 Cal.App.4th 659 and In re Joshua H., supra, 13 Cal.App.4th 1718 on the basis that B. had no external signs of trauma is unavailing. Those decisions clearly do not turn on the existence of visible injury, and Mother fails to address language directly contradicting her position on appeal, including that actual or constructive knowledge is not required.

Moreover, contrary to Mothers assertions, the evidence before the juvenile court does not necessarily support the conclusion that Father was the perpetrator of the abuse, as opposed to Mother, or that if he was the perpetrator, Mother was ignorant of the abuse or was not present when B.s injuries were inflicted. The only evidence supporting this conclusion is the parents own account of the events of March 7, 2006, in which they claimed B. was taken outside the house by Father while Mother remained inside. However, numerous circumstances evidenced in the record could have reasonably led the court to reject the parents account and conclude that, even if Mother did not inflict the injuries herself, she knew of their cause and did nothing to stop further abuse, instead attempting to cover it up by explaining away the injuries.

For example, none of the doctors involved in B.s evaluation and treatment at Childrens Hospital believed Fathers explanation as to how B. could have been injured. Despite this universal rejection of Fathers explanation, Mother offered testimony that could be fairly construed as an attempt to corroborate Fathers claim that he slipped on a step outside the house while carrying B., thereby causing B. to hit his shoulder. Mother testified at the jurisdictional hearing that after Father took B. outside, she heard a thumping noise that sounded like someone stepping down hard on one of the front steps. The court rationally could have rejected all or part of Mothers testimony, including her claim that Father went outside of the house with B. (See In re Jessica C. (2001) 93 Cal.App.4th 1027, 1043 [A trier of fact is free to disbelieve a witness, even one uncontradicted, if there is any rational ground for doing so.].) Accordingly, we disagree with Mothers assertion that the only reasonable inference from the evidence is that B. was injured when he was alone with his father outside the home.

Another circumstance which calls into question the parents version of events includes their failure to mention it to the paramedics who responded to the scene, despite their being directly questioning about what had happened to B. Instead, both parents reportedly stated that B. had been crying intensely and then suddenly stopped breathing. The account of Father slipping outside the house did not emerge until sometime after [B.] had been taken to Tulare District Hospital. This delay and other circumstances discussed support an inference the story was developed after the fact to try to provide an innocent explanation for B.s nonaccidental injuries.

Further indication that Mother was attempting to cover up the abuse was her persistence in seeking and presenting alternative theories for B.s injuries, and expressing disbelief that he was shaken, despite overwhelming evidence to the contrary. For example, at the continued jurisdictional hearing, more than six months after B. was initially hospitalized, Mother testified that she did not believe B.s injuries resulted from a shaking matter and appeared to blame medical personnel for B.s bleak prognosis. Mother also expressed disbelief that Father abused B., even though she and Father were B.s sole caretakers, she denied abusing B., and offered no plausible explanation for how he could have sustained such traumatic injuries under their care if neither she nor Father were responsible.

In any event, as the Agency correctly notes, identification of the perpetrator is not required to sustain a finding under section 300, subdivision (e). The courts concluding analysis in In re E.H. is instructive:

[T]he dependency court impliedly concluded that the statute required actual knowledge, i.e., direct evidence of abuse. Because [the parents] and other members of their extended family expressly disavowed any knowledge of how E.s injuries were sustained, the court erroneously concluded they reasonably could not have known how those injuries were sustained. This logical leap is unsupportable. Whether [the parents] actually knew E. was being injured by someone else is not required by the language of subsection (e) or In re Joshua H.; the only requirement is that they reasonably should have known. Furthermore, where there is no identifiable perpetrator, only a cast of suspects, jurisdiction under subsection (e) is not automatically ruled out. A finding may be supported by circumstantial evidence as it is here. Otherwise, a family could stonewall the Department and its social workers concerning the origin of a childs injuries and escape a jurisdictional finding under subsection (e). (In re E. H., supra, 108 Cal.App.4th at p. 670.)

In sum, the only reasonable conclusion which may be drawn from the evidence is that Mother either abused B. or reasonably should have known B. was being abused by Father, as the parents were B.s sole caretakers and he was injured at home while both parents were there. Accordingly, the juvenile court properly found that B. came within its jurisdiction under section 300, subdivision (e).

III. Sufficiency of the evidence to support the jurisdictional findings as to A.

Based on the allegations of severe, nonaccidental injuries suffered by B. while in his parents custody, the dependency petition also alleged there was a substantial risk that his sibling, A., would suffer nonaccidental infliction of serious physical harm and that said injury would occur as a result of Mothers failure or inability to protect A. adequately. ( 300, subds. (a), (b).) The juvenile court sustained the allegations in the petition, finding that both A. and B. came within its jurisdiction under section 300, subdivisions (a) and (b).

Mother does not challenge the courts findings as to B., but contends the court erred in finding that A. was a dependent child under subdivisions (a) and (b) of section 300 because there was insufficient evidence that he was at substantial risk of harm. In support of her contention, Mother repeats her assertions that the evidence indicated that Father was the perpetrator of the abuse and that she had no reason to know he was abusing or would abuse B. For the reasons discussedabove, we disagree with Mothers reading of the evidence, and conclude there was substantial evidence supporting the courts jurisdictional findings as to A.

A child comes within section 300, subdivision (a), when he or she has suffered, or there is a substantial risk that the child will suffer, serious physical harm inflicted nonaccidentally upon the child by the childs parent or guardian. Section 300, subdivision (a) further provides: For the purposes of this subdivision, a court may find there is a substantial risk of serious future injury based on the manner in which a less serious injury was inflicted, a history of repeated inflictions of injuries on the child or the childs siblings, or a combination of these and other actions by the parent or guardian which indicate the child is at risk of serious physical harm.

Here, the court found that A.s brother, B., had been abused, as defined in section 300, subdivision (e). The medical evidence showed that B. suffered from shaken baby syndrome, while he was in his parents custody. There was also evidence he sustained retinal hemorrhaging on a prior occasion. The parents consistently refused to accept responsibility for B.s injuries, yet provided no plausible explanation for his injuries. At the time of the jurisdictional hearing, Mother offered testimony coinciding with Fathers specious story that he slipped on a step while he was holding the infant in his arms. At the continued hearing, Mother expressed disbelief that B. was a victim of shaken baby syndrome. The severity of B.s injuries combined with the parents continuing refusal to accept responsibility reveal a substantial risk of nonaccidental harm to his brother, A., under section 300, subdivision (a).

We also find sufficient evidence supports the juvenile courts finding under section 300, subdivision (b). Section 300, subdivision (b) permits a juvenile court to assume jurisdiction over a child when he or she has suffered, or there is a substantial risk that he or she will suffer, serious physical harm or illness as a result of a parents failure or inability to adequately protect or supervise the child. This requires a showing of neglectful conduct by the parent, causation, and serious physical harm or illness to the child, or a substantial risk of such harm or illness. (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.)

Mother relies on the statement in Ricardo L. that, regardless of evidence of past conduct, there must be a showing that, at the time of jurisdictional hearing, the child is subject to a risk of harm. (In re Ricardo L., supra, 109 Cal.App.4th at p. 565.) Mother claims there was no evidence of such a risk presented in this case. This contention fails. There clearly was sufficient evidence to demonstrate B. and his brother, A., were at substantial risk of harm given the severe, irreparable brain injury B. suffered while in his parents care. Based on Mothers unchallenged failure to provide adequate supervision in connection with B.s injuries, the juvenile court properly could find both B. and his sibling A. remained at risk of serious physical harm if left in the home.

IV. Forfeiture of remaining claims

Finally, we agree with the Agency that Mother has forfeited her remaining claims on appeal. Specifically, Mother contends the juvenile court erred in (1) ordering A. removed from her custody, and (2) setting a 12-month review hearing ( 366.21, subd. (f)) rather than a six-month review hearing ( 366.21, subd. (e)).

In dependency litigation, nonjurisdictional issues must be the subject of objection or appropriate motions in the juvenile court; otherwise those arguments have been waived and may not be raised for the first time on appeal. (In re Christopher B. (1996) 43 Cal.App.4th 551, 558.) Here, Mother did not merely remain silent on the issue of out-of-home placement, she agreed to the proposed disposition case plan which called for removal. He [or she] who consents to an act is not wronged by it. (In re Richard K. (1994) 25 Cal.App.4th 580, 590.) Mother may not now argue on appeal that the juvenile court should have returned the minor to her custody when she assented to a disposition that called for out-of-home placement.^[3] Similarly, because mother never raised any objection after the court specifically expressed its intention to set a 12-month review hearing and asked for authority if any one objected, Mother has forfeited her argument that the court erred in this regard.

DISPOSITION

The juvenile courts jurisdictional findings and dispositional order are affirmed.

_____________________

HILL, J.

WE CONCUR:

_____________________

HARRIS, Acting P.J.

_____________________

DAWSON, J.

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^[1] All further code references are to the Welfare and Institutions Code.

^[2] The facts are gleaned from the social workers reports and testimony presented at the jurisdictional hearing.

^[3] We have reviewed and find inapposite the authorities Mother cites to support her argument that the juvenile court, acting in loco parentis, had an independent duty to review the agreed-upon disposition case plan and determine whether it was in A.s best interests by deciding whether there was clear and convincing evidence A. would be at substantial risk of harm if returned to Mothers custody. (See e.g., Code Civ. Pro.,  372, subd. (a) [requiring court approval of minors compromises]; Scruton v. Korean Air Lines Co. (1995) 39 Cal.App.4th 1596 [guardian in wrongful death action cannot repudiate settlement favorable to ward without court approval]; Berry v. Chaplin (1946) 74 Cal.App.2d 652 [guardian in filiation action cannot effectively waive trial on behalf of ward by submission of cause exclusively on unfavorable evidence].)