38 Cal.App.5th 1124
Cal. Ct. App.2019Background
- Six adopted children (ages 3–10) were detained after A.E.1 (age 4 at time of injury) suffered skull fracture, subdural hematoma, and concussion; siblings reported witnessing severe physical discipline by Mother and Father.
- Forensic medical examiners concluded A.E.1’s head injury was consistent with abuse; exams of other children revealed bruising and scars of concern.
- Multiple interviews (initial CFS interviews, CAC forensic interviews) produced consistent disclosures by several children that Mother (and at times Father) threw children against walls/floors and used a wooden "spanking spoon."
- Parents consistently denied wrongdoing, insisted injuries were accidental, attended therapy and parenting classes but never admitted abuse; psychologist found Mother lacked a propensity to abuse but could not rule on actual conduct.
- Juvenile court sustained section 300 allegations, found clear-and-convincing evidence of severe physical abuse, applied reunification bypass provisions (§ 361.5(b)(5) for A.E.1; § 361.5(b)(6) for the others) but nonetheless ordered reunification services under §§ 361.5(c)(3) and (c)(2), respectively.
- Court of Appeal reversed the dispositional orders granting reunification services and remanded with directions to deny reunification and set a § 366.26 selection hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether substantial evidence supports court’s § 361.5(c)(2) finding that reunification is in children’s best interest (bypass § 361.5(b)(6)) | Children: No — record lacks evidence that services would prevent reabuse or benefit children because parents deny abuse and gave no meaningful acceptance of responsibility | CFS/Father: Parents engaged in services; continued services were appropriate; father argued bypass may not apply to him | Held: Reversed — no substantial evidence supports § 361.5(c)(2) findings; parents’ denials and lack of meaningful change make success of services speculative |
| Whether § 361.5(c)(3) findings (for A.E.1 under § 361.5(b)(5)) were "based on competent testimony" showing services likely to prevent reabuse or that failure to reunify would be detrimental due to close attachment | Children: No — statutory phrase "competent testimony" requires in-court live-witness oral testimony and none supports those findings | Parents/CFS: Court had reports, interviews, expert evaluations, and other evidence supporting findings (attachment and likelihood services would prevent reabuse) | Held: Reversed — "testimony" means in-court oral statements by live witnesses; record contains no competent testimony satisfying § 361.5(c)(3) predicates, so reunification order unsupportable |
| Whether parents’ testimony/invocation of Fifth Amendment affects reliance on their denials | Mother: Invoked privilege concerns; argued denials should not be held against her | Children: Mother voluntarily testified, so court/appellate review may rely on her testimony; Fifth does not protect from consequences of voluntary testimony | Held: Court may consider parents’ voluntary testimony; Fifth Amendment not a bar here |
| Whether CFS’s investigatory duties under § 361.5(c)(3) excuse lack of competent testimony for reunification findings | Mother: CFS failed to investigate attachment and likelihood of success, so record silence should favor reunification | Children: Parents bore burden to produce competent testimony; CFS’s investigative duty does not obligate calling witnesses to support reunification contrary to its recommendation | Held: Failure by CFS to further investigate does not create competent testimony; parents still required to present testimony supporting § 361.5(c)(3) findings |
Key Cases Cited
- In re A.M., 217 Cal.App.4th 1067 (Cal. Ct. App. 2013) (services will not suffice where parent refuses to acknowledge abuse)
- In re Madison S., 15 Cal.App.5th 308 (Cal. Ct. App. 2017) (no evidence services likely to prevent reabuse where parents deny nonaccidental injury)
- In re Jessica B., 207 Cal.App.3d 504 (Cal. Ct. App. 1989) (definition of "testimony")
- In re William B., 163 Cal.App.4th 1220 (Cal. Ct. App. 2008) (standard of review for reunification determinations)
- In re G.L., 222 Cal.App.4th 1153 (Cal. Ct. App. 2014) (juvenile court discretion in reunification findings)
- In re Baby Boy H., 63 Cal.App.4th 470 (Cal. Ct. App. 1998) (reunification services default rule and bypass framework)
- In re Rebekah R., 27 Cal.App.4th 1638 (Cal. Ct. App. 1994) (discussed regarding agency investigatory obligations)
- United States v. Wong, 431 U.S. 174 (U.S. Sup. Ct. 1977) (Fifth Amendment does not shield a witness from perjury consequences once testifying)
- Hollywood Cleaning & Pressing Co. v. Hollywood Laundry Service, Inc., 217 Cal. 131 (Cal. 1932) (irreconcilable findings require remand)
- Pineda v. Bank of America, N.A., 50 Cal.4th 1389 (Cal. 2010) (plain language governs statutory interpretation)
- In re Austin P., 118 Cal.App.4th 1124 (Cal. Ct. App. 2004) (different statutory terms presumed to have different meanings)
- Romano v. Mercury Ins. Co., 128 Cal.App.4th 1333 (Cal. Ct. App. 2005) (same statutory-term interpretation principle)