Filed 9/30/26 In re Noel N. CA4/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re NOEL N. et al., Persons
Coming Under the Juvenile Court
Law.
ORANGE COUNTY SOCIAL
SERVICES AGENCY,
Plaintiff and Respondent,
G066909
v.
(Super. Ct. Nos. 25DP1068,
NOEL N. et al., 25DP1069)
Minors and Appellants; OPINION
N.J. et al.,
Objectors and Respondents.
Appeal from orders of the Superior Court of Orange County,
Daphne G. Sykes, Judge. Affirmed.
Leon J. Page, County Counsel, Debbie Torrez and Aurelio Torre,
Deputy County Counsel, for Plaintiff and Respondent.
William D. Caldwell, under appointment by the Court of Appeal,
for the Minors and Appellants.
Jenie S. Chang, under appointment by the Court of Appeal, for
Objector and Respondent N.J.
Melissa A. Chaitin, under appointment by the Court of Appeal,
for Objector and Respondent A.N.
* * *
N.J. (Mother) brought her six-month-old child Levi N. (Levi) into
a hospital with two broken arms. The Orange County Social Services Agency
(the Agency) received a referral regarding possible child abuse. The Agency
took Levi, and his two-year-old brother Noel N. (Noel), away from their
parents Mother and A. N. (Father). The Agency placed the children with a
relative of Father, where they remained throughout the proceedings.
The Agency filed a dependency petition in the juvenile court as
to both children. (Welf. & Inst. Code, § 300 et seq.) 1 The agency alleged: (1) a
substantial risk of serious physical harm; (2) a failure to protect; (3) severe
physical abuse of a child under the age of five; and (4) a substantial risk of
sibling abuse or neglect. (§300 (a), (b), (e) & (j).)
Mother and Father are both in their early 30s, married, and
employed. The two boys are their only children. The parents have no reported
substance abuse, mental health, or domestic violence issues. Neither parent
has a criminal record, nor any prior history with child welfare.
At the combined jurisdiction and disposition hearings, the court
found insufficient evidence the parents intentionally caused the injuries to
Levi, but the court found true the failure to protect allegation. The court then
ordered the children to be returned to the custody of Mother and Father with
family maintenance. The court further ordered weekly unannounced visits,
and scheduled follow-up hearings with progress reports.
Appellants (the children through their attorney) claim the court’s
jurisdictional findings must be reversed because “the court did not address
1
Undesignated statutory references are to the Welfare and
Institutions Code. We will also generally omit the word “subdivision” or its
abbreviation, and generally refer to the juvenile court as the court.
2
section 355.1” at the jurisdiction hearing. Section 355.1 creates a rebuttable
presumption, thereby shifting the burden of producing exculpatory evidence
to the alleged offending parent. (§ 355.1 (a) & (b).) “‘Burden of producing
evidence’ means the obligation of a party to introduce evidence sufficient to
avoid a ruling against him on the issue.” (Evid. Code, § 110.)
Appellants did not object on section 355.1 grounds, nor did they
raise this evidentiary issue during the hearing, so their claimed error has
been forfeited for purposes of appeal. In any event, in the absence of contrary
evidence, we presume the lower court understood and followed the applicable
law. (See People v. Stowell (2003) 31 Cal.4th 1107, 1114 [“‘a trial court is
presumed to have been aware of and followed the applicable law’”].)
Thus, we affirm the orders of the juvenile court.
I.
FACTS AND PROCEDURAL HISTORY
On September 19, 2025, Mother noticed in the morning that Levi
was not “feeling well and was ‘not acting like himself.’” At about 3:15 p.m.,
Mother picked up Levi from daycare and noticed swelling on his left arm, and
that he did not want to move it. Mother took Levi to his primary doctor for a
six-month wellness exam. The pediatrician observed the child’s swollen arm,
and advised Mother that if gets worse to take Levi to an emergency room.
The following morning, Mother took Levi to the emergency room
at Children’s Hospital of Orange County. The digital right and left femurs
showed healing fractures, as well as the proximal right tibia. A child abuse
pediatrician was concerned that the parents had no explanation for Levi’s
injuries. The parents speculated that the railings of the child’s crib could
have caused the fractures. The doctor found such an explanation implausible.
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The doctor was concerned that the baby was being physically abused. The
doctor opined that Levi “would have been in a lot of pain and would have
indicated pain every time his clothes were changed.”
The Agency took Levi and Noel into custody and placed them
with a paternal cousin. The Agency further investigated the circumstances.
The children live with Mother, Father, and Paternal Grandmother. Father
took eight weeks of paternity leave and recently returned to work when Levi
entered daycare. The children are only cared for by the daycare, the parents,
and Paternal Grandmother, who watches the children about once a month.
Mother works as a teacher at the same private school where the children
attend daycare. Both parents attend college part time.
On September 23, 2025, the Agency filed a juvenile dependency
petition alleging: (1) a substantial risk of serious physical harm; (2) a failure
to protect; (3) severe physical abuse of a child under the age of five; and (4) a
substantial risk of sibling abuse or neglect. (§300 (a), (b), (e) & (j).)
As to the first two allegations, the Agency alleged: “Pursuant to
Welfare and Institutions Code section 355.1, the injury or detrimental
condition sustained by the child, Levi . . . , 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, the guardian, or other person who has the care or
custody of the child.”
On September 24, 2025, at a detention hearing, the court
detained the children, confirmed Father’s presumed status, inquired about
Native American ancestry, and scheduled a jurisdictional hearing.
Afterwards, the children continued to live with the paternal cousin. Levi was
evaluated further by medical professionals. Levi did not appear to have any
marks or bruises that indicated abuse. Bone testing ruled out genetic bone
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abnormalities as a cause of Levi’s fractures. The child abuse pediatrician
stated that a child of Levi’s age could have obtained such a fracture of the
arm by twisting or contortion, but the child would have expressed pain, which
should have been observed by his caregivers. The parents voluntarily
participated in predispositional services, and visited their children under
supervision. Police continued to investigate.2 The Agency’s social worker
telephonically interviewed daycare staff at the children’s school; they denied
noticing Levi’s injuries.
In reports filed prior to the combined jurisdiction and disposition
hearings, the Agency recommended that the court find the allegations in the
petition true; declare the children dependents; remove them from their
parents’ physical custody; and bypass family reunification services.
On March 26, 2026, the court began the combined hearings (the
proceedings and the court’s jurisdiction rulings and findings will be covered
in greater detail in the discussion section of this opinion). The court found
true the substantial risk of physical harm allegation and dismissed the
remaining allegations with prejudice.
On May 4, 2026, the court ordered the children returned to the
custody of their parents with family maintenance. The court further ordered
one unannounced visit to the home per week until further notice, and
scheduled three follow-up hearings for status review and progress reports.
2
There is nothing in the record indicating the parents have ever
been charged with any crimes related to Levi’s injuries.
5
II.
DISCUSSION
Appellants claim this court “must reverse the jurisdictional
findings” because the lower court found true the substantial risk of physical
harm allegations, but “the section 355.1 presumption was not resolved or
otherwise addressed when the court made its [jurisdictional] findings.”
(Capitalization & boldface omitted.) We disagree.
The question of whether a lower court has properly applied an
evidentiary presumption is a legal question that we review de novo. (See In re
Quentin H. (2014) 230 Cal.App.4th 608, 613–614.)
In this discussion, we shall: A) review relevant principles of law;
B) summarize the relevant proceedings; and C) apply the law to the facts.
A. Relevant Legal Principles
“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, the
guardian, or other person who has the care or custody of the minor, 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 (a).)
“The presumption created by subdivision (a) constitutes a
presumption affecting the burden of producing evidence.” (§ 355.1 (c).)
“‘Burden of producing evidence’ means the obligation of a party to
introduce evidence sufficient to avoid a ruling against him on the issue.”
(Evid. Code, § 110.) It is well settled “that nothing in the plain language of
section 355.1 prohibits the juvenile court from dismissing a section 300
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petition when it finds that the allegations of the petition have not been
proven by a preponderance of the evidence. Section 355.1 merely creates a
presumption affecting the burden of producing evidence.” (In re Larissa W.
(1991) 227 Cal.App.3d 124, 132, italics added.)
The section 355.1 rebuttable presumption only survives until
rebuttal evidence is submitted. (In re Esmeralda B. (1992) 11 Cal.App.4th
1036, 1041.) That is, “[t]he effect of a presumption affecting the burden of
producing evidence is to require the trier of fact to assume the existence of
the presumed fact unless and until evidence is introduced which would
support a finding of its nonexistence, in which case the trier of fact shall
determine the existence or nonexistence of the presumed fact from the
evidence and without regard to the presumption.” (Evid. Code, § 604.)
Section 355.1, subdivision (a) “shifts to the parents the obligation
of raising an issue as to the actual cause of the injury or the fitness of the
home.” (In re James B. (1985) 166 Cal.App.3d 934, 937, fn. 2.) “If the parents
raise rebuttal evidence, the Agency maintains the burden of proving the
alleged facts.” (In re A.S. (2011) 202 Cal.App.4th 237, 242–243.)
“It is presumed that official duty has been regularly performed.”
(Evid. Code, § 664.) Absent a showing to the contrary, we presume that the
lower court understood and followed the law. (People v. Braxton (2004) 34
Cal.4th 798, 814; D.M. v. Superior Court (2009) 173 Cal.App.4th 1117, 1125
[Evidence Code section 664 presumption applies in dependency cases].)
B. Underlying Proceedings
On March 26, 2026, the court began the combined jurisdiction
and disposition hearings. An Agency social worker (ASW) testified that the
parents told her that they believed Levi suffered his injuries in daycare. The
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ASW testified that she conducted an investigation of the daycare personnel
over the phone.
The ASW testified on cross-examination that the parents
appeared to be loving and bonded to Levi, and he did not have any kind of
apprehension of being picked up by either of them. The ASW testified the
parents did not have “insight as to the Agency’s concerns.” However, the ASW
claimed the parents were not required to admit that they were at fault. The
ASW said the parents had participated voluntarily in counseling and
parenting education. The ASW testified that the Agency was recommending
removal of the children and no reunification services because the parents
could not be excluded as the cause of Levi’s injuries.
The Agency’s attorney argued in support of finding the
allegations true and sustaining the petition. Father’s attorney and Mother’s
attorney each argued in favor of dismissing the allegations. The children’s
attorney argued the Agency met its burden, and even if the parents didn’t
cause Levi’s injuries, “they reasonably should have known that their child
was harmed.” No party mentioned section 355.1 (the rebuttable
presumption).
The court later sustained the count alleging a substantial risk of
serious physical harm to both children and dismissed the remaining counts.
Prior to its ruling, the court said:
“First of all, thank you to all counsel. Your presentations were
very helpful to the Court. The issue is whether the Agency has established by
preponderance of the evidence or whether it’s more likely than not that each
of the allegations is true.
“The court finds the following:
“This six-month-old infant cannot walk, cannot get around by
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himself, can’t really injure himself. The injuries are undisputed. This infant
suffered significant serious injury. This was not a bruise or two; these were
breaks. This was not just an injury to one arm. It was both arms. This
was not a superficial injury. The left break -- left arm break, rather, was
through and through. And this wasn’t the first time the child had an injury.
He was seen some three months earlier for a problem with his left arm.
“From the doctor’s examination and conclusion, this most recent
injury happened at least seven days before the doctor’s appointment. The
doctor’s opinion is important to the Court here. These injuries would have
had pain, pain every time clothes would be put on or off, pain such that the
parents would have known there was a problem.
“Genetic bone abnormalities were ruled out. Nothing genetically
was amiss with the child to cause this. The fact that the parents decided to
ignore the doctor’s directive to take the child right away to the emergency
department and instead waited to take the child to the emergency
department—they went home and came back the next day—that is suspect.
But it does not, by itself—or even with the other evidence—does not lead this
Court to conclude even at the low standard of evidence that it was the
parents who intentionally inflicted injury upon the child.[3]
“And even more so, this child is with someone at all times as a
six-month-old. This child is never unaccompanied, whether he is at daycare
or with Mother or Father or both, or with Paternal Grandmother. And by the
3
There appears to be a factual discrepancy here. According to the
detention report, Mother told a social worker that the pediatrician at the six-
month wellness exam advised her to take Levi to an emergency room if the
swelling in his arm got worse. Mother did not say that the pediatrician
advised her to take Levi to the emergency room “right away.” In any event,
the court said this fact was not dispositive.
9
way, Grandmother’s claim that she never looked after the child—when
I believe the grandmother even lives with them. But whether or not she does,
it does not ring true; rather, the parents both said that on rare occasion
Grandma would watch the child while they go out to dinner for a few hours or
sleep. That’s much more likely. And the Court finds it’s likely that Grandma,
on occasion, has cared for this child.
“The investigation into the daycare staff does not tell the Court
much as far as including or excluding the workers as potential abusers. The
‘investigation’ was not done in person. There was no . . . follow-up
questioning. The Court has no idea how the facility is physically set up or
whether there is always one or more staff person present with the infant at
all times, whether the infant is left alone with the staff person.
“It sounds like the employees might have passed . . . the phone
around to each other. In the same phone call . . . . [¶] . . . [¶] The Court does
not have any idea . . . what was going on during this ‘investigation’ of the
daycare workers, whether they were making faces, laughing in between,
passing notes whether they had talked to each other ahead of time. So that
‘investigation’ was not terribly helpful to the Court.
“Mother apparently is always within reach of her child and can
see him. Although it’s not reasonable to believe [she] always has her eyes on
what’s going on in the other room because she’s tending to her own work
duties. Father routinely cares for the child . . . when Mother is at school.
“So when the Court looks at all of the evidence and the potential
people who could have done this, everyone that touches this child, pun not
intended—all the daycare workers, Mother, Father, Grandma—everyone
denied causing the injury, and there is insufficient evidence of specifically
who caused it. There’s also insufficient evidence that either or both parents
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intentionally caused the injury. Not saying that they did not, but there’s just
not enough evidence presented . . . to conclude that the parents did it.
“So [section] 300 (a), the Court finds the child has suffered
serious physical harm. But there’s insufficient evidence that it was inflicted
intentionally by the parents.
“[Section] 300 (e) -- the child is under the age of five, but there is
insufficient evidence that he suffered severe abuse by either parent or a
parent known by them.
“[Section] 300 (b)(1) -- the Court finds the child has suffered
serious physical harm resulting from failure of a parent to supervise or
protect the child adequately. The Court finds this allegation to be true by
preponderance of the evidence.
“Regarding the sibling, the sibling was healthy when he was
checked out. He was in good condition, apparently well cared for, with no
complaints, healthy, no previous incidents, no prior concerns. Parents have
no abuse or otherwise criminal history. So on these facts, the Court finds
insufficient evidence of risk to the sibling [section 300 (j)].”
C. Application and Analysis
In order to raise an alleged error on appeal, the issue must first
have been brought to the attention of the lower court; otherwise, the issue is
generally forfeited for purposes of appeal. (People v. Gomez (2018) 6 Cal.5th
243, 286–287.) This doctrine is usually referred to as “‘waiver,’” but it is more
accurately described as “‘forfeiture.’” (In re S.B. (2004) 32 Cal.4th 1287, 1293,
fn. 2.) “The purpose of this rule is to encourage parties to bring errors to the
attention of the [lower] court, so that they may be corrected.” (Id. at p. 1293.)
The forfeiture rule applies to parties in juvenile dependency
11
proceedings. (See, e.g., In re S.B., supra, 32 Cal.4th at p. 1293 [dependency
matters are not exempt from forfeiture rule], superseded on other grounds as
stated in In re M.R. (2005) 132 Cal.App.4th 269, 273–274]; In re G.M. (2010)
181 Cal.App.4th 552, 563–564 [mother forfeited argument regarding legal
impediment to adoption]; In re A.E. (2008) 168 Cal.App.4th 1, 5 [father
forfeited appellate challenge by failing to object to order directing him to
participate in counseling session].)
Here, Appellants are challenging the court’s jurisdictional orders
on the grounds that the court never addressed the section 355.1 rebuttable
presumption during the jurisdiction hearing. But Appellants were present for
the entirety of the hearing, and they never objected or raised this issue at any
point during the hearing. Accordingly, Appellants’ section 355.1 rebuttable
presumption challenge has been forfeited for purposes of appeal. (See People
v. Gomez, supra, 6 Cal.5th at p. 286.)
In any event, section 355.1 was cited by the Agency in the
dependency petition, so we presume the court understood and followed the
dictates of the section 355.1 presumption at the jurisdiction hearing. (See
People v. Braxton, supra, 34 Cal.4th at p. 814 [absent a showing to the
contrary, we presume that the lower court understood and followed the law].)
Indeed, there is no language in the statute that requires the court
to state its findings on the record concerning the section 355.1 rebuttable
presumption. (Compare § 366.26 (f)(1) [“the court shall appoint counsel
unless the court finds that the child would not benefit from the appointment
of counsel. The court shall state on the record its reasons for that finding”].)
Finally, some arguably exculpatory rebuttal evidence was elicited
during the hearing (e.g., the Agency’s “not terribly helpful” telephonic
investigation of the children’s daycare facility). Thus, the court appears to
12
have appropriately disregarded the rebuttable presumption concerning the
burden of producing evidence. (See In re Esmeralda B., supra, 11 Cal.App.4th
at p. 1041 [the section 355.1 rebuttable presumption only survives until
rebuttal evidence is submitted].) We also note that the court weighed the
evidence under the appropriate preponderance of the evidence standard, and
neither the burden of proof, nor the sufficiency of the evidence is being
challenged by any party to this appeal.
III.
DISPOSITION
The juvenile court’s orders are affirmed.
MOORE, J.
WE CONCUR:
MOTOIKE, P. J.
MACAULAY, J.
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