81 Cal.App.5th 447
Cal. Ct. App.2022Background
- Three minors (A.C., J.K., E.C.) were detained after A.C., an infant, was found with a parietal skull fracture, subdural hematomas, multiple facial bruises and lacerations; hospital providers concluded injuries were nonaccidental and inconsistent with parents’ explanations.
- Father admitted delay in calling 911; medical personnel and social worker concluded father was the direct perpetrator.
- Mother had purchased alcohol for father, left the children in his care despite his alcohol/mental-health issues, received photos of A.C.’s injuries while three hours away, and did not personally summon emergency services.
- Juvenile court sustained jurisdiction and, at disposition, concluded mother either consented to or omitted actions leading to severe physical harm and denied reunification services under Welf. & Inst. Code § 361.5(b)(5), (b)(6), (b)(7); a § 366.26 permanency hearing was set.
- Mother filed a writ petition challenging the bypass of reunification services and asserting ICWA inquiry/notice deficiencies.
- Court of Appeal granted the writ as to reunification (vacating denial and remanding to provide reunification services), and declined to decide the ICWA claim as premature.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether juvenile court properly denied mother reunification services under §361.5(b)(6) (parent inflicted severe physical harm) | Mother: insufficient evidence she inflicted, consented to, or by omission caused severe physical harm to A.C.; delay in care does not show her omissions inflicted the severe injury | Agency: mother’s acts (buying alcohol, leaving kids with father, not personally seeking care) and knowledge of father’s problems support bypass under (b)(6) | Court: Insufficient evidence to find mother inflicted, consented to, or by omission caused severe physical harm; (b)(6) denial overturned and services must be provided |
| Whether juvenile court properly denied services under §361.5(b)(5) (child brought under §300(e) because of that parent's conduct) | Mother: no substantial evidence she knew or should have known father was physically abusing A.C.; prior belt ‘‘whoopings’’ not shown to be known or severe | Agency: mother’s knowledge of father’s alcoholism/blacking out and alleged prior discipline supports finding she knew or should have known | Court: Insufficient evidence mother knew or should have known of abuse to A.C.; (b)(5) denial overturned; (b)(7) as to siblings fails if (b)(5)/(b)(6) fail |
| Whether Agency complied with ICWA inquiry/notice duties | Mother: Agency failed to comply given reported Choctaw/Cherokee/other heritage — ICWA may apply | Agency: contends its inquiry/notice steps were adequate | Court: ICWA claim is premature because no final ICWA finding was made at dispositional hearing; decline to review now |
Key Cases Cited
- In re Lana S., 207 Cal.App.4th 94 (2012) (reunification services generally required unless narrow statutory exceptions apply)
- Tyrone W. v. Superior Court, 151 Cal.App.4th 839 (2007) (§361.5(b)(6) applies where parent inflicted or consented to deliberate severe physical harm)
- In re Kenneth M., 123 Cal.App.4th 16 (2004) (clarifies application of §361.5 exceptions to offending parent)
- Amber K. v. Superior Court, 146 Cal.App.4th 553 (2006) (parent may be denied services for consenting to another’s sexual abuse)
- Pablo S. v. Superior Court, 98 Cal.App.4th 292 (2002) (failure to seek medical care can constitute infliction of serious injury by omission)
- L.Z. v. Superior Court, 188 Cal.App.4th 1285 (2010) (reversing bypass where insufficient evidence mother knew or should have known of abuse)
- In re M.R., 7 Cal.App.5th 886 (2017) (ICWA challenge premature where no final ICWA ruling at dispositional hearing)
- In re Levi U., 78 Cal.App.4th 191 (2000) (overview of ICWA purposes and protections)