*1 Dist., Div. Onе. May Fourth 2007.] D049824. [No. W., Petitioner, v.
TYRONE COUNTY, OF SAN DIEGO Respondent; THE SUPERIOR COURT AGENCY, SERVICES HEALTH AND HUMAN SAN DIEGO COUNTY in Interest. Party Real
Counsel
Neil R. for Petitioner. Trap
No for appearance Respondent. Sansone, Counsel,
John J. John E. County Chief Philips, Deputy County Counsel, Bird, Counsel, and Katharine R. for Real Deputy County Party Interest.
Opinion McINTYRE, J. Tyrone W. seeks writ review of court orders juvenile bypassing family reunification services at disposition and.setting hearing son, T.W., select and implement for his permanency plan under Welfare and Institutions Code (All section 366.26. references are to the Welfare statutory and Institutions Code unless otherwise Tyrone contends the court specified.) under
erred when it denied him on T.W.’s he severe harm physical without inflicted by act or omission. sibling court to juvenile
We hold that section requires act, find the child omission harm on severe parent physical or consent before it reunification services may deny parent (b)(6) to apply did not intend subdivision rather, the must reunification services to a deny negligent parent; child. Identification of been in the deliberate abuse of the have complicit when the harm a child is. who inflicted severe on required injured evidence show both knew the child severely does not identified We conclude being knew child was abused. further it the amended offending jurisdiction as an when sustained Tyrone both (j) alleging under section petition parents inflicted we severe abuse on sibling. Accordingly, petition. T.W.’s FACTUAL AND PROCEDURAL BACKGROUND children, T.W., two now Tyrone W. and Camela W. had (together, parents) months, and Y.W. were on active with the United age duty The parents States In Navy. Navy colleagues reported States September United several and Camela often been Tyrone injured Camela argued, had November, con- occasions their altercations. tribunal during military his fist. victed two Camela in head with striking counts hand told his Colleagues Tyrone placed also Camela them reported *5 over and head his crib. T.W.’s mouth T.W.’s banged against County
The were to the San Diego of child abuse referred allegations Camela Health for investigation. and Human Services Agency (Agency) old, T.W., and denied she told asserted never harmed then months Tyrone two allegation her T.W. The concluded the Tyrone Agency abused colleague to was and offered Camela voluntary unfounded minimized the violence in address issues of domestic violence. Camela household, military and reunited he was released from Tyrone and she when Y.W., bom on 2006. custody. Their was June daughter, 3, 2006, Camela had an argument. and During evening July Tyrone and told the home. Tyrone dispatcher left Camela telephoned arrived, Camela refused to press kicked When officers hit and her. Tyrone room hotel Tyrone’s 3:00 a.m. on Camela went charges. July Around them, he did. to return with which with the children and asked him home Later that morning, Tyrone fed Y.W. from 8:45 approximately a.m. to 9:00 a.m. and placed baby back in her crib. He went back to Camela sleep. awoke at 10:00 a.m. She did not check on the because it was baby not her shift to watch the noon, children. When checked on Y.W. at he discovered she was not breathing called for assistance. emergency to resuscitate Attempts Y.W. were not successful. The medical examiner suspected cause of death was sudden infant death (SIDS). syndrome Officers called to the home to assist with Y.W. observed Camela had a swollen left She said she and eye. Tyrone argued but her previous night, injury accidental. 17, 2006,
On July filed a Agency petition (b) T.W. was at alleging substantial risk of serious suffering harm or illness as a result of domestic violence between his parents July January 2005. The September an order Agency sought temporarily T.W. from detaining his parents’ custody, which the court granted. T.W. Agency placed in foster care. 2006 the August medical examiner released the of its report investiga-
tion into Y.W.’s death. Y.W.’s death was not inconsistent with SIDS. How- ever, the revealed the autopsy had fractures baby ribs eight right posterior similar, smaller, and had but fractures on heading three left ribs. pоsterior Swalwell, Dr. examiner, Christopher medical deputy Y.W.’s rib opined fractures resulted from “trauma inflicted by another The fractures person.” death, were not related directly to the cause of described “sudden officially death in unexplained infant with rib fractures.” The healing medical examiner listed manner of “undetermined.” death as Because of reports possible domestic violence in the household and Y.W.’s unexplained injuries, Dr. Swalwell considered the death “suspicious.” Kaufold,
A child abuse Dr. expert, Marilyn estimated the injuries Y.W.’s ribs were right approximately old. The the three days condition of left ribs posterior these suggested fractures were older than on the those right, consistent with two to four weeks of Dr. healing. Kaufold the rib opined *6 fracturеs were indicative of child “likely abuse” and did not occur from birth or natural disease. 2006,
In late August conducted a physicians full skeletal on survey 13-month-old T.W. His test results were normal.
After the medical exanliner issued its the filed Agency an additional report, 300, count to the (e), under section petition later amended at the 300, counsel to request county and to include both (j),
845 delete the to request phrase The court also counsel’s granted county parents. and the knew “and abuse the by has suffered severe physical the abusing the was physically should have known reasonably person 300, (e).) (§ the subd. sibling” child’s from petition. and abuse Y.W. suffered severe alleged
The final amended petition and there was substantial inflicted nonaccidentally by damage parents аs by defined risk T.W. would suffer severe parents 300, (e) court The recommended the (j)- Agency subdivisions and to and set a select hearing both reunification services and parents T.W. an out-of-home for permanency plan implement hearing, At the court admitted disposition the contested jurisdiction evi- evidence. The no affirmative into Agency’s reports presented T.W. dence and did the social workers. The court found not cross-examine (b) was a child in section subdivisions and removed (j), described him and the severe from In view conduct parental custody. parents’ Y.W., safely found was T.W. could be injuries it unlikely reunification and it to custody period returned within 12-month parental not in T.W.’s best interests to offer reunification services either parent. (§ (h), (i).) subds. The reunification services under section court bypassed (§ 366.26.) (b)(6) and hearing. set permanency plan writ under California and Camela each filed a for review petition Court, 8, 2007, this January Rules of former rule now rule 8.452. On abandoned, court deemed the notice intent filed Camela to be an this court issued dismissed her case. With to Tyrone’s petition, respect argument. order to show cause and waived oral parties
DISCUSSION A. reunification services a critical role
Family dependency play (In re Alanna A. 563 135 proceedings. Cal.App.4th juvenile Unless statutory exception applies, specific reunify family court must within provide designed A., re see In Alanna 361.5; (§ 629a(a)(7); time U.S.C. statutory period. § 563-564.) statutory exceptions provid pp. Cal.App.4th referred to under section 361.5 have been reunification services ing see, (§ (b)(1)—(15); e.g., provisions. “bypass” v. Francisco G. Court Superior *7 679]; Sheila S. v. Court Superior 872,
Cal.Rptr.2d 187].) There no general is the court Cal.Rptr.2d provision; must bypass find clear and by evidence that one or more convincing of the subparts 361.5, enumerated in (b) section subdivision before it apply may deny (§ 361.5, reunification to services (b)(1)—(15); subd. see also parent. 42 U.S.C. 671(a)(15)(D).) § 361.5,
The issues raised in this are primary whether section proceeding (b)(6) subdivision to a who applies “reasonably should have known” parent abuse, the child was being abused and failed to the physically prevent whether the subdivision the identification of the requires offending parent. Because of the arguments by raised the the parties and concerns expressed by scheme, our we in concurring colleague, describe detail the includ- statutory law, ing case the court applicable to reunification permits bypass services (b)(5) subdivision of section 361.5. Section (b)(5) subdivision authorizes the court to reunification services to a when the has child been within the parent brought jurisdiction the court under (e), section because of “the conduct of that (§361.5, subd. (b)(5).) (e), Section parent.” when applies child under the is of five and has suffered age years “[t]he severe physical by known if the knew parent, any person parent, parent should have Imown that the was reasonably person physically abusing child.”
When (e) section to applies parent, (c) the court from for prohibits ordering that, “it finds parent unless based those services competent testimony, are to reabuse or continued of the child likely neglect or that failure prevent try reunification will be detrimental to the . . child . .’’In considering successful, whether reunification services court likely are be may consider that a fact no with an guardian longer living is parent “[t]he (§ (c).) individual who child.” severely abused the “the of that conduct interpreting scope phrase parent” an court held “the intended appellate who, section 361.5 to knowing apply other, abuser, actual or reasonably knows should have known that the person - child, as well as to who mistreating physically personally (In re H. Joshua abuses his child.” or her 1732 & 13 Cal.App.4th H.).) (Joshua H. Joshua fn. specifically 282] rejected was limited to the whose argument subdivision *8 In its analysis, the injuries. was the actual cause of child’s physical “conduct” 361.5, H. in section Joshua language the relied in on statutory court part the had parent court to consider whether (c) the that permitted H., (Joshua of the abuse. from the actual perpetrator separated 361.5, Thus, the (b)(5), 1732.) under section to a negligent parent. court reunification services may 361.5, 361.5, (b)(5), section In contrast to section “child been adjudicated dependent when a has applies . the a result of. . of Section as any subdivision pursuant infliction of aby to-the child ... sibling parent... severe harm physical [or] defined subdivision, it would not in this the makes that finding and a factual with the offending par benefit the child to reunification services pursue 361.5, (§ (b)(6), added.) . .” subd. italics ent.. on, is not limited to: harm” be based but finding may
A of “severe physical a child’s or the body body serious infliсted to or on injury and “[D]eliberate the or or of child act or of half-sibling by parent the an omission sibling the with the consent of or another individual or animal guardian, parent child, confinement or or of the sibling, deliberate torturous guardian; torturous act or omission a closed or other half-sibling space; any emotional damage.” would be understood cause serious reasonably (§ (b)(6).) subd. (c) the court from ordering
Section prohibits harm on the child reunification for a who has inflicted physical severe parent act, or child’s or under (offending parent) the omission consent sibling by finds, (b)(6) unless the court clear convinc by evidence, If the of the child. the court that reunification is in best interests ing an under subdivision denies reunification services to offending parent court is to read into the the basis for the record required the factual findings of severe harm and also specify infliction must the offending to determine the of reunification services provision used (§ (i).) the would not benefit child. child, will benefit the whether reunification services determining relevant, it including the court is to consider information deems required any (1) act omission severe following comprising factors: or specific (2) the circum child or the child’s sibling; harm inflicted the child or the or harm inflicted on stances which trauma suffered the child (3) the emotional sibling; severity child’s of other children child’s of abuse any history sibling; offending guardian; (5) likelihood that the child be may safely returned to the care of the offending guardian within 12 months with continuing no not the supervision; whether or child desires tо be *9 361.5, reunified (§ (h).) with the offending parent guardian. 361.5,
The section statutory requirements (b)(5) subdivision and are below, distinct. As we believe explain we the in section statutory language 361.5, stated, (b)(6) subdivision is and not clearly does authorize the court to is, deny reunification services to a a negligent who did not parent, parent know the child was the being abused or physically injured (¿though parent should have the known of abuse or reasonably injury).
B. 361.5, Tyrone (b)(6) contends section subdivision court the to requires child, who identify inflicted severe harm to the parent physical argues the evidence does he inflicted Y.W.’s act or support finding injuries by on In re Kenneth M. omission. relies 123 16 Cal.App.4th [19 (Kenneth Cal.Rptr.3d M.) in which the court concluded appellate 752] trial court erred when it denied father rеunification services under (b)(6) subdivision based on the that either the mother or the father of the injured child was for the severe infliction the child’s responsible but did not physical injuries, either as the identify actual parent perpetrator. (123 at 21.) Cal.App.4th p.
The asserts Y.W. was while in her care Agency injured parents’ argues child’s even if one knew parent caused other only injuries, parent should have known abuse. The contends section reasonably Agency 361.5, (b)(6) should not be to court to interpreted require which on the and which identify severe harm child parent committed an act of in the child’s parent resulting omission injuries. in Kenneth M. the statement to Agency opines regarding necessity who inflicted
identify severe harm the child under section parent dicta, (b)(6) our nonbinding ignore is us to urges colleagues’ nonbinding analogy conclusion and erroneous. an to Drawing (e) and section the Agency contends the definition of an should offending under subdivision parent include a who knew reasonably should have known the other H., (Joshua supra, the child and failed physically mistreating to intervene. 1732.) 13 at p. Cal.App.4th
849 (b)(5) allows the that section holding We accept of a severely services to a negligent parent H., at (Joshua 13 supra, Cal.App.4th abused child under five. age physically & Com. 1732; (1996) 12 Cal.4th Housing see Smith v. Fair Employment p. have construed P.2d courts 913 909] [when its without changing and the thereafter reenacts that statute statute Legislature of and to have been aware acquiesced is language, presumed Notes, construction]; West’s in the see also Historical and judicial Statutory However, 361.5.) we do not find (2007 Ann. Welf. & Inst. Code foil. supp.) § H., Kenneth M. Joshua reexamine (See Cal.App.4th it necessary 1732; Amber K. v. Court Superior K.).) (Amber Kenneth M. did not examine the application Cal.Rptr.3d 701] who inflicted physical *10 K., (Amber 562.) at p. supra, omission or consent. 146 to deny We review whether applies the court is reunification services to a and discuss whether negligent parent, to abuse the who did not act identify required specifically child to that before (nonacting parent) denying (b)(6). (Ghirardo Antonioli (1994)
Issues of law de 8 Cal.4th are reviewed novo. v. v. 791, 418, Lockyer ex rel. 960]; People 883 P.2d 799 Cal.Rptr.2d [35 415,432 200, Shamrock Foods Co. (2000) 24 11 P.3d Cal.4th Cal.Rptr.2d [101 956].)
C. Here, should “reasonably contends the Agency nonacting parent it, and and acted to prevent have known” Y.W. was abused being physically within the an act of omission his or her failure to the abuse was prevent were the evidence definition of section Even should have “reasonably to establish that a nonacting parent sufficient abuse, did not intend subdivision known” of the we conclude the Legislature (b)(6) to reunification services to a negligent parent. apply Our are well established.
“The rules construction governing statutory (City intent. is to ascertain and effectuate legislative objective [Citations.]” of 462, 4 468 Beach v. Board Administration (1992) Cal.4th Huntington [14 intent, 514, we first 1034].) In determining legislative 841 P.2d Cal.Rptr.2d 657, 663 Reed v. 31 Cal.4th (Mejia look to the itself. statutory language 850 390, 166].) clear and unambiguous 74 P.3d “If is language
[3 construction, there is no need for nor is it to resort to indicia of the necessary 727, (Lungrеn Deukmejian intent . . .” 45 Cal.3d . v. 115, 299].) 755 P.2d Cal.Rptr. [248 context, “The words of the statute must be construed in in mind keeping and statutes or sections to the same statutory statutory relating purpose, harmonized, other, must be each to the extent both with subject internally Inc. v. Fair & Com. (Dyna-Med, Employment Housing possible. [Citations.]” ,P.2d 67, Thus, (1987) 43 Cal.3d Cal.Rptr. statute should be construed with reference to the whole of law system “every (Moore v. it have which is so that all be harmonized and effect.” part, may Panish 32]; (1982) 32 652 P.2d see also Cal.3d Cal.Rptr. Reed, Mejia v. 663.) 31 Cal.4th at p. harm” as “delib
Section defines “severe physical erate and or on a child’s . . an act or body serious injury omission of- the ... or of individual . . . with the consent of another The word “inflict” means “to cause to be parent.” harm] [severe endured,” Diet. (Webster’s sоme action. 11th New Collegiate implies 641; (b)(6).) see The word “deliberate” suggests § “[i]ntentional[,] infliction of harm must have been premeditated[, or] (Black’s (8th 2004) 2.) *11 considered.” Law Dict. ed. col. fully p. in, and the
The inclusion of the words “deliberate” and “inflicted” omission from, 361.5, known” “reasonably should have phrase (b)(6) indicates the did not intend the court to apply standard of when whether to negligence deny considering - to a We the Legislature under subdivision parent, presume scheme, to intended in a and we do not read statutes omit everything statutory (In re Dakota H. (2005) or to include omitted language language. expressed “ ‘ “ 337].) When statute on 132 225-226 Cal.Rptr.3d Cal.App.4th [33 .‘a such a omits a the inclusion of subject a particular particular provision, an a related -matter indicates in another statute concerning provision intent which it was is not to the statute from provision applicable ” ’ ” (Katie V.v. Court Superior (2005) omitted.’ 130 595 Cal.App.4th [30 re J. 320], 1186 In Gerald 1 Cal.Rptr.3d quoting Cal.App.4th [2 Cal.Rptr.2d 361.5, (b)(6)
The other to section statutory apply provisions to (h)(1) our Section directs the support analysis. act or omission ... severe comprising physical consider specific “[t]he sibling.” harm inflicted on the child or the child’s Section
851 (i) of “the the court to state the basis for its requires infliction of severe harm.” physical (b)(6)
We do not believe section applies parent because that who should have known” of the abuse “reasonably parent act, omission or consent. in the infliction of harm complicit by physical actual As defined in subdivision omission and consent both require itself, abusive acts. if not of the harm then of another’s knowledge, physical inflicted (b)(6) We hold that subdivision to the who applies parents act, consent, child severe harm to the whether omission or M., ante, cf. Kenneth 848; (See, does not to a at apply negligent parent. p. K., supra, supra, 21; Amber 562.) 123 at at p. Cal.App.4th 146 Cal.App.4th p. D. limited
Section is not to the K., (Amber whose act caused the child’s 146 directly injury. 562.) at courts have discussed the Cal.App.4th p. Appellate proper application of subdivision reunification services to a who inflicted in Pablo Superior S. the child’s v. injury by omission consent. For example, (Pablo S.), Court Cal.App.4th Cal.Rptr.2d 523] that, court concluded reviewing in view of the awareness of their parents’ child’s constant their broken failure pain disfigured leg, provide medical attention to the for child two months constituted the infliction (Id. serious 301.) physical injury by omission. in Deborah Superior S. Court v.
Similarly, (Deborah S.), court concluded the father reviewing 858] serious on the child omission or consent. injury elbow, an four-year-old child’s included a new fracture of his injuries right fracture, face, old ankle of his to both sides swollen swelling bruising teeth, two right eye, stages front bruises various missing multiple *12 face, arms, stomach, chest, and buttocks and healing scars the child’s legs, (Id. 744-745.) and and eight lacerations. The nature extent scalp pp. .at child’s and the father’s observation of the mother’s acts of injuries, physical abuse, harm on conclusion father inflicted serious supported physical consent, the child identified an offending omission or and was properly within the parent meaning S. and in Pablo
Here, in contrast to the children’s injuries S., Deborah no obvious signs Y.W.’s were not visible there were injuries that, if only The record no evidence injury. finding contains to support child, knew on the the other parent one inflicted serious harm parent it, thus to it or failed to act prevent about the abuse and either consented severe, were although the abuse to continue. Y.W.’s allowing injuries, Y.W., or other marks on and no bruising reports obvious. There was no She had had a recently well-baby pediatric had been in distress. Y.W. witnessed the other visit. There is no evidence either parent physically of domestic violence or mistreat the baby. Although Tyrone’s history may raise a reasonable inference Gamela’s lies reрeated certainly suspicion, 1117, 1133 v. 2 Cal.4th not be based on alone. (People suspicion Perez 831 P.2d that when the child’s injury We do not with proposition quarrel act, the failed to they were obvious to the child’s caretakers injuries and which inflicted the abuse act is not which identify parent required case, the evidence omission or consent. In such a inflicted the abuse by parent or being knew the child was injured a conclusion that both parents supports abused, S., S., 292; supra, Deborah (See, Pablo supra, Cal.App.4th e.g., However, both 741.) where there is no evidence to show Cal.App.4th who the court must identify knew the child was abused injured, to that reunification services the child’s before injuries denying M., (b)(6). (Kenneth under section 21.) E. Y.W.’s injuries a finding contends the evidence does not support in section of “severe harm” defined
came within the meaning to support the evidence is insufficient (b)(6), and argues Y.W.’s were inflicted. deliberately Tyrone posits Y.W.’s finding injuries inattention, as a result of a accidentally parent’s have occurred injuries may while Y.W. holding inadvertence or ignorance picking up Y.W.’s clearly asserts evidence supports Agency abuse. resulted from injuries the basis of insufficient order on challenges disposition
When the trial court evidence, most fávorable to review the record in the light we trier a reasonable from which substantial evidence determine whether there is convincing clear and based on findings make the necessary of fact could such evidence a high probability, Clear and convincing requires evidence. *13 (In re C. Isayah doubt. to leave no substantial the evidence is so clear as 198]; re Luke M. In Cal.Rptr.3d 118 694-695 Cal.App.4th [13 907].) Cal.Rptr.2d 107 Cal.App.4th We that Y.W.’s resulted from Tyrone’s argument injuries parental reject carelessness or and Camela were Y.W.’s ignorance. Tyrone only caregivers 3, 2006, time from the her June until her death on 2006. July of birth on The record the trier of infer the knew how reasonably allows fact parents hold and handle a newborn. In 2005 a social worker properly September examined T.W. She did or observe any two-month-old not note bruises any (other violence) risk factors than in the home to indicate the domestic bom, did not know how to care for or handle their first child. When Y.W. was At Camela received instruction on newborn care befоre she left the hospital. death, time of her Y.W. was a well-nourished child well-developed, without visible injuries.
Dr. Kaufold rib fractures in infants occur when usually explained posterior an adult the infant around the chest and his or her tightly fingers grips the infant’s back near the with undue force. The different pressure spine of of the two stages healing sets of fractures made it unlikely injuries were inflicted Dr. Swalwell the fractures to Y.W.’s ribs accidentally. opined not have would occurred for the in an by handling caring baby ordinary inflicted manner and resulted from “trauma Drs. by another Swalwell person.” and Kaufold concluded that Y.W.’s rib fractures were indicative of child “likely abuse.” the doctors’ conclusions are worded and do
Tyrone argues tentatively not constitute clear and evidence of deliberate We convincing injury. disagree. context, in Used this is of “likely” “having high defined probability Dict., (Webster’s true.” 11th New occurring being Collegiate (Id. 721.) 634.) “Indicative” Far means as a serving sign symptom. p. tentative, from and Kaufold being of Drs. Swalwell opinions support evidence, finding, by clear and Y.W.’s rib fractures resulted from convincing a deliberate and serious another injury by person. standard mind the
Keeping proof imposed (b), Y.W. finding we conclude substantial evidence supports within the meaning suffered severe harm inflicted re Amy (b)(6). (Cf. A. F. (b)(6), the court will make “an under section
Generally, . . harm as a pre-condition on-the-record . severe express, subdivision, the existence reunification under the notwithstanding denying *14 854 (In re Rebekah R. on the same finding subject.”
of an earlier jurisdictional 1638, Here, the court (1994) 1651 Cal.Rptr.2d.265].) 27 Cal.App.4th [33 300,(cid:127) (b) аnd (j) by under section subdivisions findings made its jurisdictional evidence, standard of required clear and convincing requisite proof 355, (b). (See services under section subdivision § bypass 1373, In re Brison C. (a); 81 1379 Cal.App.4th Cal.Rptr.2d subd. [97 of the is a stage of at the jurisdictional proceeding standard proof 746] [the evidence].) preponderance of the the-identification concerning their arguments parties, despite the trial court’s effect of do not consider
offending preclusive parent, petition on this issue. The findings allegations jurisdiction jurisdictional modified, 300, to read: without objection, under were (j) section 13, 20, 2006, child’s sibling, 2006 to June “On or about and between June [Y.W.], under the of five suffered. severe years, who was age non- rib fractures 11 bilateral including posterior and damage, the court . .” The record shows clearly the child’s . . accidentally by (The court of negligence. not base its findings allegations did jurisdictional (fid 300, (e).) of T.W. under not take jurisdiction § for the “the as the responsible The trial court identified parents” persons does Tyrone that caused Y.W.’s rib fractures. Significantly, deliberate acts trial court in this proceeding. jurisdictional findings challenge “ 1 therefrom, and no is taken “If an order is . . . timely appeal appealable ’ ” v. (Melinda Superior K. determined the order are res judicata.” issues In re 129], Court quoting 1156 Cal.Rptr.3d 116 Cal.App.4th L. 1705 Cicely 28 Cal.App.4th R., In re Rebekah supra,
Here, the trial court in contrast to the requirements at the court adhered procedural Cal.App.4th page under section reunification services when the cоurt bypasses imposed section the factors under The court addressed (b)(6). specifically findings referred to its (h). The court explicitly reasons for finding read into the record its (j), section T.W., as required by reunification services would not benefit R., 1651-1652.) (i). (In re Rebekah supra, pp. Cal.App.4th parents,
We conclude the court’s their infant Camela, abuse on and severe physical inflicted nonaccidental meaning within the offending identify is sufficient to daughter at, M., (Kenneth 361,5, *15 K., 21; Amber Further, see also 562.) 146 p. Cal.App.4th 361.5, substantial evidence the court’s under section supports findings (h) that the of reunification services to would provision (In re S.G. not benefit (2003) the child. 112 1260 Cal.App.4th [5 Cal.Rptr.3d
DISPOSITION is denied. petition Nares, J., concurred.
BENKE, Acting J., P. I concur in the Concurring. result reached I majority. write with separately express my disagreement the majority’s analysis of Welfare application and Institutions Code1 section (b). My colleagues hold section (b)(6), cannot to cases apply is, where the have been parents where negligent, have parents Rather, failed to unreasonably their child from severe protect abuse. to Pablo S. v. Superior Court pointing 98 292 Cal.App.4th [119 523], and Deborah S. v. Superior Court Cal.Rptr.2d 43 Cal.App.4th 858], cases where the Cal.Rptr.2d child’s were obvious and injuries act, the parents failed to my conclude that to colleagues services under omission must parental rise to level where the knew of the abuse and parents failed to intervene. Relying upon re Kenneth M. 752], they then conclude that where such of abuse or specific knowledge pain record, does not suffering on the there must be identification of the appear actual of the perpetrator abuse. us, its to the case before
Applying analysis states the record is majority devoid virtually evidence knew the child was beaten or parents being was in it therefore was to name the actual pain, necessary perpetrator identification, beatings. This it occurred at the time of the urges, jurisdiction child, where the hearing trial found both abused the actually the failure to that ruling W. from appeal precludes Tyrone challenging finding or the (b)(6). of section application 1 statutory All further references are to the Welfare and Institutions unless otherwise Code specified. law, I disagree area of in an admittedly complicated Respectfully, from my colleagues I the majority opinion. part company levels with multiple (b)(6) and that section’s of section on the interpretation from favor statutes. I also separation the reunification bypass relationship M., actual which states an perpetrator in In re Kenneth the dicta denied under subdivision can be before reunification services must be named out, in the record of is no evidence there as Finally, Tyrone points a conclusion he was hearings supporting jurisdictional disposition Thus, for the Y.W. suffered. counsel parties, the injuries actual perpetrator itself, discover that be trial court will likely surprised well as the *16 need to determination it did not court’s the trial notwithstanding express suffered, Y.W. it nonetheless of the injuries the actual identify perpetrator of abuse. the actual physical both were indeed perpetrators found parents I 361.5, Code Section and Institutions
Welfare (b)(6) Subdivision circumstances sets out 15 (b) separate of section 361.5 Subdivision to a or guardian. need not be provided parent which reunification services 361.5, (5), a (b)(3), negligence, parent’s Under section subdivision services. alone, reunification an order denying will standing support a child where of reunification services (b)(3) a Subdivision deprives parent or because of physical the home been taken from parents’ has previously occasion on a second taken from the home and has been sexual abuse of subdivision on the face nothing recurred. There is such abuse has because more than or the be be identified parent the (b)(3) perpetrator which requires abuse. Subdivision the child from repeated in to failing protect negligent of a the death has caused when (b)(4) parent a of services deprives parent (b)(4) terms subdivision its Plainly, by or neglect.” child “through (b)(5), Under subdivision than neglect. level of culpability no greater requires severe of five has suffered a child under the age are denied where services “because (e) of section 300 of subdivision meaning abuse within out, points As majority that guardian.” of the conduct of parent to “conduct of parent its limitation (b)(5), notwithstanding subdivision have known or should knew where parent has been applied guardian,” 1718, 1732 H. (See In re Joshua about abuse. falls within provisions where а court finds Importantly, be may 361.5, (b)(3) (4), reunification section evidence reunification and convincing finds clear the court ordered unless 361.5, is (c).) Where a subd. (§ child. interest of the in the best is 361.5, found to be described section the court has even (b)(5) less to provide services. Where subdivision the court power applies, child, must not the best only find reunification is in interests of addition it must also find “those services are reabuse or continued likely prevent of the child or that will neglect failure be detrimental try the child because the child is attached to that closely positively parent.” (§ (c).) short,
In Legislature believes that in the circumstances described in section (b)(3), (4) (5), a failure to act when parent’s knew or should have known requires about harm to child an context, order services in the absence of additional denying findings. this in which the has services be denied to required who are isit difficult to find in the related negligent, anything closely provisions which standard of requires higher culpabil- ity. Such a standard is certainly not found in the higher express language
Contrary to the majority does not opinion, restrict “severe term harm” to inflicted” “deliberately injuries. *17 My colleagues quite take to out we must properly pains the point presume Legislature intended a and everything in scheme cannot statutory any omit In re Dakota H. (See express (2005) language. 225-226 however, Their (b)(6), of subdivision analysis omits the of express language subdivision The which col- language my leagues fail to consider the words appears immediately “deliberate” preceding and harm, “A “inflicted”: of the infliction of severe for the on, to, subdivision, be based but is limited of may not purposes this deliberate and serious a to or on child’s ... an act or injury omission body 361.5, of the or . . guardian (§ (b)(6), added.) . .” subd. italics The on, be phrase “may based but is not limited to” defeats entirely my the of the colleagues’ suggestion later use words “deliberate” and “inflicted” were in manner intended any (b)(6) to limit of subdivision application Rather, on, actual read the be perpetrators. literally, “may based but is phrase consider, not limited to” the trial court in addition to expressly permits acts, deliberate other where a act or circumstances omission has parent’s resulted in serious injury. also the fails to afford term its majority “omission” and ordinary
common meaning. “Omission” mеans “something neglected or left undone” (Webster’s neglect (11th toward of Diet. ed. “apathy duty.” Collegiate 361.5, 2006) added.) the using italics word “omission” in section (b)(6), subdivision the intended failure to clearly parent’s from protect child serious would trial court to injury permit deny reunification services. is, 361.5, (b)(6)—that one
A literal of subdivision which reading section on, not to” and to the be based but its limited the gives meaning “may phrase 361.5, (b)(6) word also when section subdivision is suggested “omission”—is 361.5, (b)(3), (4) and with the section subdivision compared provisions noted, (b)(3), (4) (5). As I under subdivision have denial services is required child, the are in of the (5) and unless the court finds services the best interest (b)(5) in the court also finds services and cases where subdivision applies, Thus, detriment to the child. subdivision will further abuse prevent prevent child (5) services will"not bеnefit a if a (b)(3), and contains presumption conduct, is covered subdivi- including negligence, guilty (b)(3), (4) Once the court finds the circumstances set forth in subdivision sion. (5), and without further making any findings. it services may 361.5, (b)(6) Section subdivision is not so harsh and nearly provides (b)(6) protections. Significantly, with important procedural child it' does not finds will benefit unless apply 361.5, 361.5, Thus, (b)(6).) reunification. unlike (§ section pursue (5), notwithstand- (b)(3), presumes subdivision, services conduct described in ing parental Moreover, be may will benefit a child. unlike other services provisions, the court factors denied under subdivision if considers the only specific it (i) findings forth in section after its only puts set (§ (i).) (h), to those in the record. subds. factors then, scope To a court finds which is within negligence summarize if (5), must services (b)(3), the court presume further any it without may deny making will not benefit child and services hand, described if the court finds the conduct On other findings. parental nonetheless it must presume will *18 findings if makes only benefit child and can it specific the child. The reunification services will not benefit the the record which show the of the Legislature varying by requirement presumptions employed is to demonstrate (b)(6) clearly when subdivision be findings applied, express (b)(6) in subdivision the viewed the conduct Legislature encompassed parental a the in section less hazardous to child than conduct encompassed as relatively believes (5). clearly Because the. (b)(3), subdivision (b)(6) less conduct in subdivision somewhat poses the described parental children, logical to find subdivision simply of a risk to it is than level of higher contemplates parentаl culpability short, the of (5). In (b)(3), majority’s interpretation subdivision the statute and is the of express language subdivision contradicted by of section 361.5. with the related provisions by comparison M., on In re Kenneth note the reliance Finally, majority’s I 16, that section for the conclusion of abuse. Dicta in Kenneth M. the the of actual requires naming perpetrator that, does indeed for me is support majority’s position. difficulty M. Kenneth I do not believe the dicta in It respectfully, is correct. does not - find in the language or construction of support II Law Case
Application to This of My colleagues find because did not jurisdictional appeal he is bound it. The finding, in majority concludes that opinion finding jurisdiction, trial court necessarily found the deliberately inflicted bеcause, harm on Y.W. This is it analysis unpersuasive respectfully, seriously mischaracterizes the trial court’s jurisdictional findings.
The agency’s alleged T.W. petition jurisdiction over arose under section 300, and (e). subdivisions In (j) the trial discussing jurisdictional court’s findings, majority opinion makes no reference to the section (e), in the allegation This is petition. interesting because jurisdic- tion under subdivision is not (j) without reference to at possible least one other substantive of provision section 300. Subdivision (j) for only provides jurisdiction over a child when the child’s sibling has been neglected abused within the meaning of one of the other substantive provisions (§ short, section 300. subd. (j).) finding jurisdiction under (j) under one requires finding of the other of section provisions 300 as sibling.
It follows that for the doctrine of res the trial purposes applying judicata, court’s under finding included a (j) finding other substantive of section 300 in the provision alleged agency’s petition, (e). (e) Subdivision when a child under the provides jurisdiction has age five been severely injured by “or by any known person if the knew parent, should have known that reasonably Thus, person (§ (e).) the child.” physically abusing *19 (e), under jurisdiction subdivisions the trial court did no (j) more than find both should knew or have known about the abuse their parents (e), suffered. Because of the daughter scope trial court’s be jurisdictional cannot used in finding simply place evidence one or both of the deliberately inflicted on Y.W. parents injuries deliberately Because the record will not support order cannot be the trial court’s upheld on their daughter, inflicted injury I (b)(6) of section 361.5. of subdivision the majority’s interpretation instead the trial court’s but would grant uphold Tyrone’s petition would under a statute. interpretation order literal