Opinion
B193247
12-15-2006
S. H., Petitioner, v. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES, Respondent. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES et al., Real Parties in Interest.
Miran Kim for Petitioner. No appearance for Respondent. Amir Pichvai for Real Party in Interest Los Angeles County Department of Children and Family Services. Childrens Law Center of Los Angeles and Estaire Press for the Minors.
Petitioner S.H. (mother) is the mother of two boys, ages one and seven, respectively. The Los Angeles County Department of Children and Family Services (Department) initiated this dependency proceeding after the then two-month-old baby was hospitalized in critical condition with severe head injuries, which medical professionals opined were likely not caused by accident. After sustaining the dependency petition on numerous grounds, the juvenile court denied mother reunification services and it scheduled a hearing for the selection and implementation of a permanent plan for the children (Welf. & Inst. Code, § 366.26).
The children share the same initials and have fairly distinctive names. To protect their anonymity (see Cal. Style Manual (4th ed. 2000), § 5:10), we will refer to them as the older boy and the baby, respectively.
All undesignated statutory references are to the Welfare and Institutions Code.
Mother filed a writ petition (Cal. Rules of Court, rule 38.1) challenging the juvenile courts decision. She claims (1) substantial evidence does not support the order sustaining the dependency petition under two of the five statutory provisions upon which the court relied (§ 300 subds. (e) & (i)); (2) the juvenile court abused it discretion when it denied her reunification services; and (3) the juvenile court lacked jurisdiction to enter its order because it failed to find that the notices issued by the Department under the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) were adequate.
Both the Department and the children oppose the granting of relief.
The attorney who represents both children filed a joinder in the Departments answer. Through apparent inadvertence, counsel referenced only the older child. We assume counsel meant to file the joinder on behalf of both children.
We agree with mother that substantial evidence does not support the juvenile courts order sustaining the petition under section 300, subdivision (e), and that the juvenile court abused its discretion when it denied mother reunification services. Accordingly, we grant the petition with directions to the juvenile court (1) to vacate only those portions of its order sustaining the dependency petition under section 300, subdivision (e), and denying mother reunification services, and (2) to enter a new disposition order providing for reunification services. Although mothers contention regarding the ICWA notice is moot, we also direct the juvenile court to ensure forthwith that the Department complies with its obligations under the ICWA.
FACTUAL AND PROCEDURAL BACKGROUND
This matter came to the Departments attention on January 12 of this year when it received a report indicating that mothers then two-month-old baby had been the victim of physical abuse. That morning, the baby was transported by ambulance to Daniel Freeman Memorial Hospital (Daniel Freeman). He was having seizures on the right side of his body and a CT scan revealed multiple brain hemorrhages. Later that day, the baby was transferred in critical condition to Harbor UCLA Medical Center (Harbor UCLA) where he was admitted to the pediatric intensive care unit. While at Harbor UCLA, the baby was placed in a medically induced coma.
A Department social worker spoke with mother at Harbor UCLA. Mother stated that the day before, she went to her job as a security officer and left her two children with a person she described as her live-in boyfriend nicknamed "Junior." Mother returned around midnight and observed the baby crying more than usual. She took the baby to St. Francis Medical Centers emergency room where a triage nurse stated that the baby may be crying due to thrush. Mother took the baby home from the emergency room at around 2:00 a.m., before the baby could be seen by a doctor.
A couple days earlier, the baby had been diagnosed with thrush.
When mother awoke at home later that morning, the baby was crying continuously and the right side of his body was shaking. Mother asked the older child if anything had happened to the baby while she was at work. At some point, the older child reported that while Junior was in the shower and the older child was playing video games, the baby fell from the bed. Mother took the baby to a fire station behind her house and asked for help. Firefighters called 911 and an ambulance transported the baby to Daniel Freeman.
The bed in question was approximately 18 inches off of a carpeted floor.
Mother told the Department social worker that she had known Junior for over four years. She stated that she started dating him on December 24, 2005, and that he began living with her and the children on that date. Mother stated that Junior was a known gang member and was on probation for making terrorist threats. She also stated that Junior "smokes weed but not in the house." Mother expressed concern that Junior was hiding from police because of the circumstances. She expressed guilt over leaving the baby with someone she did not know very well.
When the children were detained, mother was unable to provide the Department social worker with any information regarding the identities of the childrens fathers. During the adjudication, the court found two persons to be the childrens alleged fathers , but they did not appear in any of the juvenile court proceedings and they are not involved in this writ proceeding.
The Department detained the two children. It placed the older child with the maternal grandmother, while the baby remained at Harbor UCLA on a hospital hold. The Department also filed a dependency petition on the childrens behalf, alleging in essence that the baby had been the victim of severe physical abuse while in the care of mother or mothers boyfriend, whom mother reasonably should have known was abusing the baby.
On the date of the detention hearing, the Department submitted a last minute report advising the court that while mother was at Harbor UCLA, a doctor took her to the psychiatric emergency room after she expressed concern that she could be a danger to herself. Mother was transferred to Pacific Hospital in Long Beach where she was involuntarily admitted and prescribed medication.
The last minute report also stated that Junior was arrested over the previous weekend, but he was scheduled to be released after mother failed a polygraph test.
According to the last minute report, the maternal grandmother had stated that the family had American Indian heritage through the Creek and Choctaw tribes.
At the conclusion of a detention hearing, the court found the Department had made a prima facie case for detaining the children. The court ordered that the oldest boy remain with his maternal grandmother and it authorized the Department to place the baby with a relative or extended family member after his release from the hospital. The court approved monitored visits for mother. It also ordered the Department to fully investigate the potential Indian heritage of the children and to provide notice to the Bureau of Indian Affairs (BIA) and to both the Creek and Choctaw tribes.
Mother remained hospitalized for seven days. Before her hospitalization, she reported hearing voices blaming her for her babys condition. She was also reported to have suicidal ideations.
The baby remained in intensive care for several weeks. After some time, his condition improved markedly, he stopped having seizures, and he was released and placed with the maternal grandmother.
The Department submitted a jurisdiction/disposition report in mid-February. According to the report, mother consistently denied harming the baby. She believed Junior had done something to the baby. The maternal grandmother stated that she did not know Junior very well and was not happy that her daughter was seeing him. She stated that mother makes poor choices when it comes to men. The grandmother found it odd that mother left the children with Junior instead of bringing them to her before going to work.
The Department also reported that mother had a history of mental illness, which included at least three involuntary hospitalizations.
The jurisdiction/disposition report also included information regarding the Departments investigation into the childrens possible Indian heritage. A social worker spoke with the maternal grandmothers mother, who stated that her grandfather had Choctaw and Creek heritage. However, the great grandmother also reported that she had received a letter from the Choctaw Nation in 1998, stating that it did not identify any Choctaw heritage. The Department also advised that it had sent notices to both the Choctaw and Creek tribes, as well as to the Secretary of Interior and the BIA. It attached copies of at least eight notices it had sent to these entities.
The jurisdiction and disposition were continued to April. In late March or early April, the Department submitted an addendum to its jurisdiction/disposition report. The Department provided a report from Dr. Sara Stewart, an assistant professor of pediatrics and the medical director of the Child Crisis Center at Harbor UCLA, who stated that the findings of an MRI taken of the baby in late January were, "in the absence of a history of significant accidental injury such as a motor vehicle crash, . . . consistent with a diagnosis of nonaccidental head trauma." When interviewed, Dr. Stewart opined that the injuries could not have been caused by a fall from a bed. The Department also supplied copies of the eight return receipts for the ICWA notices it had sent.
In addition, the Department provided copies of documentation from the Los Angeles County Sheriffs Department regarding a 2005 incident in which mother was found sitting on the lap of a male in a vehicle which contained 14 small plastic baggies with a substance resembling marijuana, as well as an electronic scale. The male admitted the marijuana belonged to him and he was arrested. Mother was booked for "warrants."
The minute order for April 12 reflects that the court found the Department had "failed to follow through on claims of Indian heritage." The order did not specify the nature of the alleged failure.
On April 20, the Department submitted another addendum report. In it, the Department reported that a social worker had finally been able to locate Junior, who was living in his mothers home. Among other things, Junior stated: "Ive only known [mother] like 2 weeks before this happened. I knew her from when she used to stay in Compton. Then we lost contact. The brief relationships generally last like 2 weeks. Then we lose contact with one another and I would not see her for a while. I ran into her again and we happened to hook up. . . . She wanted me to keep the kids and stuff. I would always tell her to take her kids to her mothers house. I would tell her to take them there. She would say she needed to save her gas or she was low on money. I did not really want to keep them[.] I wanted to go back home to get some more clothes. I would take like a few changes of clothes to her house and stay a few days. Then go back home and get additional clothes. There is no relationship between us. We are not boyfriend and girlfriend. We had a sexual relationship." Junior stated that mother had left the baby with him "like twice." He claimed not to know how the baby was injured. He stated that the older boy never told him the baby had fallen from the bed while he was in the shower. He also stated that when he got out of the shower, the baby was asleep in the room.
The adjudication took place over numerous dates between late April and August. Dr. Sara Stewart, the medical director of the Child Crisis Center (as well as the Suspected Child Abuse and Neglect (SCAN) team) at Harbor UCLA was the first witness to testify. She testified as an expert in head trauma and its causes. Dr. Stewart explained that the baby had suffered very severe damage to the left side of his brain, as well as to the right occipital lobe (in the back of the brain), and some injury to the front of the brain. She could not say for sure whether the injuries were the result of one or more traumatic events. Dr. Stewart opined that the cause of injury was more likely than not nonaccidental. Dr. Stewart did not believe the injuries could have been caused by a fall from the bed as the older boy claimed. Dr. Stewart could not say for sure when the injuries occurred, though she noted that typically someone with babys clinical presentation would have sustained trauma within the prior 24 hours. She also stated that the injuries could not have been caused during birth. Dr. Stewart opined that the baby would have future medical problems. She was concerned the baby would have significant vision problems and could become blind. There was potential for other problems, but it was still too early to tell for sure.
During the adjudication, the court admitted into evidence the reports and documentation referenced above.
After Dr. Stewart testified, the matter was continued for five days. However, when proceedings were set to resume, the court was advised that mother had been involved in a car accident earlier that day. The court continued the matter. A few days later, a Department social worker called mother, who denied being involved in a car accident. Mother questioned whether her mother had stated she had been involved in a car accident. Mother claimed she hurt her knee while at work. She did not go to the hospital.
A few days later, mother was hospitalized for three days at a mental health facility pursuant to section 5150. While at the hospital, mother tested positive for PCP. Mother denied using PCP, saying "[a]ll I use is Marijuana." Later, she stated she drank alcohol and used marijuana because being away from her kids was killing her.
The Department reported these events to the court in a last minute information form. In the form, the Department also reported that the Department had attempted to obtain information regarding the childrens possible Indian heritage from the childrens maternal great grandmother, but she stated she could not deal with that issue at the time because of mothers situation. However, she faxed the Department social worker a copy of the 1998 letter she had received from the Choctaw Nation of Oklahoma, advising that tribe officials reviewed tribe rolls for the years 1899-1906 and did not locate any of the names the great grandmother had provided. The Department provided the court with copies of this letter, as well as what appeared to be the great grandmothers initial letter to the tribe.
When the adjudication resumed, mothers counsel called the older boy as a witness. He testified in chambers. He related that while Junior was in the shower taking what the boy described as a "long" shower, he played video games in the living room and the baby was on the bed in the bedroom. The boy heard a boom and ran to the bedroom where he found the baby on his back on the floor. The baby was crying, but he did not cry for long. The boy told Junior about the fall after Junior got out of the shower.
The boy stated that Junior never hit him and he never saw Junior hit mother or the baby. Mother never hit him or the baby.
The maternal grandmother testified that she had babysat for the children only once. The children stayed overnight a couple of days before the baby was hospitalized. The mother left the children with her and went home. She did not go to work. The grandmother reiterated she found it odd that on the night before the babys hospitalization, mother left the children with Junior instead of bringing them to her. The grandmothers home was located on mothers way to work.
The grandmother again stated that mother made bad choices in men. "Theyre like thuggish." She also testified that mother uses only marijuana and no other drugs. The grandmother has never seen mother abuse the children.
The grandmother also testified that she had not said a couple weeks earlier that mother had been hurt in a car accident. Mother was injured at work, when she got into an altercation with someone. Mother called her from the hospital after this incident.
Mother testified over a two-day period, beginning in May and concluding in August. She stated that until the baby was hospitalized, she was on maternity leave and had gone to work only twice (both times as a favor to her boss) — once on New Years Eve and the other on January 11, the day before the babys hospitalization. She left the children with Junior on both occasions. On the second occasion, mother did not leave the children with her mother because her mother had to go to work herself.
When asked if she used drugs, mother responded: "Recently I have been." Mother claimed she only smoked marijuana. She claimed she did not even know what PCP was. In some very unclear testimony, mother seemed to claim that she was smoking marijuana and someone included PCP in a marijuana cigarette. Mother stated she smoked marijuana a "couple" times before the children were detained. She testified that she smoked marijuana with Junior when she left the children with her mother on January 9.
Mother knew Junior about four years ago when they went out for about six months. She ran into him again around Christmas Eve 2005, and he immediately moved in with her.
At the end of the first day of mothers testimony, the court expressed its concerns about the childrens placement with the maternal grandmother, in light of indications she had lost custody of her own children and had a criminal record. Shortly thereafter, when it was confirmed that the grandmother had a lengthy substance abuse history which resulted in the permanent removal of her children from her custody, the children were removed from her home. In addition, outside counsel was appointed to represent the Department after it was determined that the Department had a conflict of interest. The court continued the adjudication for a couple months to afford new counsel an opportunity to prepare.
In early July, the Department submitted an addendum report (later admitted into evidence), advising the court that (1) the children were in foster care; (2) the 72-year-old maternal great grandmother was very concerned about the children, but she was unwilling for them to be placed with her because she had health problems and could not adequately care for the children; (3) the maternal great grandmother claimed mother was a habitual liar; (4) the maternal grandmother went back to work and to school and was determined to have the children returned to her until mother could regain custody; (5) mother was arrested in May; (5) both mother and the maternal grandmother had been visiting regularly with the children and the visits reportedly went well; (6) mother was attending a parenting class; and (7) Regional Center services that were being provided to the baby were suspended after the children were removed from the maternal grandmother, but services were expected to resume soon.
The Department submitted another addendum report (also admitted into evidence) in late July. Among other things, the Department provided the arrest report from the May incident, which reflected that mother was a passenger in the vehicle in which an open bottle of alcohol was found. Mother was arrested for an outstanding misdemeanor bench warrant. The Department also reported that a neurologist at Harbor UCLA opined that the baby has severe cranial damage and his problems were expected to persist throughout his lifetime.
After another two-week continuance, the adjudication resumed in early August. Before mother continued with her testimony, the court accepted a stipulation of the parties that Dr. Stewart would testify that (1) infants who had been dropped from a caretakers arms or fallen off a table would not have sustained the kind and extent of injuries as suffered by the baby in this case, and (2) typically, infants are not ambulatory until they are four months of age.
Mother confirmed that aside from the two instances when Junior looked after the children and the one night when the children stayed with the maternal grandmother, mother had not left the children with anyone else.
Mother also testified that her relationship with Junior ended immediately after the baby was taken to the hospital. Mother stated that Junior had never been violent towards her and she had never seen him hitting or abusing the children in any way. Prior to the night when the baby was taken to the hospital, mother had no concerns about leaving the children with Junior. When she last left the baby with Junior, the baby seemed fine.
Mother claimed she was not currently using drugs. She claimed she last used marijuana in May or June. She never used drugs in the childrens presence. Mother also confirmed that she had been hospitalized for approximately three days in early May.
According to mother, before the babys hospitalization, he never scooted, moved or rolled over. He was too young.
Mother stated that after the baby was hurt, she was mad at Junior because the injury would not have happened if he had been watching the children better. At the same time, she did not believe Junior had caused the babys injuries because "its not in his character." When Junior smoked marijuana, he would do so mostly outside. However, when it was cold outside, he would smoke in the bathroom.
The court heard argument on August 18. Both counsel for the Department and the children urged the court to sustain the petition on all grounds alleged in the original petition, and to sustain an amendment allegation based on mothers use of drugs. Mothers counsel asked the court to strike all counts. The court sustained the petition on the grounds alleged, including the drug use allegation. Thus, the court sustained the petition under section 300, subdivisions (a), (b), (e), (i), and (j). In sustaining the petition, the court stated that it was not deciding whether the baby was injured at the hands of mother or Junior. The court found that Junior was "[a] person mother reasonably should have known was physically abusing the child"
The court also commented: "This is in some ways by far the strangest in regards to mothers credibility. [¶] Ms. Press [childrens counsel] appropriately pointed out mothers inappropriate behaviors. Her laughter on the witness stand in regards to so many of these issues when she talked about the drug use, the physical abuse. [¶] Ms. Kim [mothers counsel] argued that mother is devastated by what happened to her child. I would never know that from a single date of her being here in court. She seems to think that this is a joke. And the only thing that I might be able to chalk that up to is in spite of . . . the fact that mother denied it many times, I still suspect mother was under the influence on several occasions in which she testified. Her testimony was not credible."
In addition, the court stated: "But what really struck this court . . . was that mother remained with him [Junior]. She knew that her child was diagnosed with these horrible, horrible, life threatening, forever-altering injuries and mother saying, `oh, he must have done it. And she stayed with him. She continued to smoke with him, she brought him to court with her." The court also noted that section 361.5 cites the fact that a parent has remained with the abuser of the child as a factor to consider in determining whether reunification services should be ordered. (See § 361.5, subd. (c) ["The fact that a parent or guardian is no longer living with an individual who severely abused the child may be considered in deciding that reunification services are likely to be successful"].)
When mothers counsel asked to "address . . . one point about" the courts ruling (an apparent effort to advise the court that there was no evidence mother remained with Junior after the incident), the court declined to listen (perhaps because it had already proceeded to the disposition), telling mothers counsel to "argue it to the appellate court."
The court proceeded to disposition. Counsel for the children asked the court not to order any reunification services, noting mothers history of drug use and mental health problems. Mothers counsel asked for reunification services.
Before announcing its decision regarding reunification services, the court noted that it still had "some issues with Indian notice. Theres [sic] issues being that I ordered a full investigation of the American Indian heritage and I still dont have that. Although, I do have some notices, but without the investigation that does not assist me." However, the court stated it would proceed with the disposition because it had previously found that it had no reason to believe the children would fall under the ICWA.
The court then denied reunification services pursuant to section 361.5, subdivisions (b)(5) and (b)(6). The court stated that it could not find such services would be in the childrens interests, "given not only the original allegations here, but the continuing circumstances which the court noted in its findings as to the adjudication." The court then noted "mothers continued involvement with who she indicates would probably be the perpetrator is one of the factors that this court has considered [in] not ordering reunification services, as well as mothers drug use throughout the course of the lengthy trial in this matter."
We note that in its original jurisdiction/disposition report and in all addendums to that report, the Department cited only subdivision (b)(6) as a basis to deny reunification services to mother.
The court then set a hearing for the selection and implementation of a permanent plan for the children (§ 366.26).
The court also scheduled a hearing for September 15, before which it expected to receive the "investigation of the American Indian heritage and appropriate notices." Mother then declared: "Were not Indian. My momma lied."
Mother filed a writ petition challenging the courts order. Mother does not challenge the sustaining of the dependency petition per se. Rather, her focus is on the denial of reunification services. Mother also contends that the juvenile court was without jurisdiction to proceed with the disposition because it did not find that adequate notice under the ICWA had been given.
Mother challenges the sufficiency of the evidence to support the juvenile courts sustaining of the petition under subdivisions (e) and (i) of section 300. However, because mother does not challenge the sustaining of the petition under subdivisions (a), (b) and (j) of the same statute, there is no basis to vacate the order declaring the children to be dependents of the juvenile court.
It appears that mothers challenge to the sufficiency of the evidence supporting the findings under subdivisions (e) and (i) is part of her challenge to the denial of reunification services, as findings under at least one of those subdivisions are relevant to the issue of reunification services. Accordingly, we will address mothers challenges to the findings under subdivision (e) and (i) in the context of our discussion concerning the propriety of denying mother reunification services.
The Department filed an answer opposing the granting of relief. The children filed a joinder in the Departments answer.
DISCUSSION
1. The Standard of Review.
We review the juvenile courts findings of fact under the substantial evidence test, which requires us to determine whether there is reasonable, credible evidence of solid value to support the order. (In re Brian M. (2000) 82 Cal.App.4th 1398; Curtis F. v. Superior Court (2000) 80 Cal.App.4th 470.) In so doing, we must resolve all conflicts in support of the courts determination and indulge all legitimate inferences to uphold the courts order. If substantial evidence exists, we must affirm. (James B. v. Superior Court (1995) 35 Cal.App.4th 1014, 1020-1021; In re Rocco M. (1991) 1 Cal.App.4th 814, 820; In re Katrina C. (1988) 201 Cal.App.3d 540, 547; In re Tracy Z. (1987) 195 Cal.App.3d 107, 113.) The substantial evidence standard also applies to findings that must be made by clear and convincing evidence. (In re Jasmon O. (1994) 8 Cal.4th 398, 422-423; In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.) Whether the court made the correct decision based upon its findings of fact is reviewed under the abuse of discretion standard. (In re Brian M., supra, at p. 1401, fn. 4; In re Brequia Y. (1997) 57 Cal.App.4th 1060, 1068.)
2. The Denial of Reunification Services.
"Section 361.5, subdivision (a) explicitly directs the juvenile court to order child welfare services for the minor and the minors parents whenever a minor is removed from a parents custody. This requirement implements the laws strong preference for maintaining the family relationship if at all possible." (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 474.) "The exceptions to this rule, listed in subdivision (b), are limited in number, narrow in scope, and subject to proof by the enhanced `clear and convincing standard." (In re Rebecca H. (1991) 227 Cal.App.3d 825, 843.)
In this case, the juvenile court invoked two of these exceptions to deny reunification services — those contained in section 361.5, subdivisions (b)(5) and (b)(6). We begin with subdivision (b)(5).
a. Section 361.5, Subdivision (b)(5).
Under subdivision (b)(5), reunification services need not be provided to a parent or guardian when the court finds, by clear and convincing evidence, "[t]hat the child was brought within the jurisdiction of the court under subdivision (e) of Section 300 because of the conduct of that parent or guardian."
Mother attacks the finding under this provision by claiming there is no substantial evidence to support the sustaining of the petition under section 300, subdivision (e). We agree.
Section 300, subdivision (e), provides in pertinent part that a court may adjudge a child to be a dependent of the court if: "The child is under the age of five years and has suffered severe physical abuse by [1] a parent, or [2] by any person known by the parent, if the parent knew or reasonably should have known that the person was physically abusing the child." (Italics added.)
In this case, the Department alleged that the baby was physically abused either by mother or by Junior. The court did not find it necessary to determine which of these two committed the abuse because it found that Junior was "a person mother reasonably should have known was physically abusing the child." We agree with mother that substantial evidence does not support this finding.
Because the juvenile court did not find that mother personally inflicted the abuse, we have no occasion to consider whether such a finding, if it had been made, would be supported by substantial evidence.
There was evidence in the record that (1) mother did not know Junior very well; (2) Junior was a known gang member; (3) Junior was on probation for making terrorist threats; (4) Junior smoked marijuana; and (5) Junior wanted mother to leave the children with her mother and not with him. Based on these facts, there is little question that mothers decision to leave her two-month-old baby with Junior was not a wise one. However, that is not the issue. The issue is whether mother "knew or reasonably should have known" that Junior would "physically abuse" the baby. In this case, there was no such evidence.
The Department cites In re E. H. (2003) 108 Cal.App.4th 659 as supporting the juvenile courts finding under section 300, subdivision (e). It does not. In that case, a three-month-old baby was brought to the hospital with multiple fractures that ranged from one to six weeks old. (108 Cal.App.4th at pp. 661, 664.) The babys mother lived with her own mother, an older brother and two sisters. Other household members or the childs father cared for the baby when mother was not at home, including when mother went to school several days a week. Although it was determined that the babys injuries were likely not caused by accident, it was not possible to determine who inflicted the injury. The Court of Appeal held there was no requirement that the perpetrator be identified. As the court explained, either "[1] Tiffany and Jeremy [the parents] inflicted the abuse or [2] reasonably should have known someone else was inflicting abuse on their child, bringing [the baby] within the language of section 300, subdivision (e). . . . In the instant case, the only reasonable conclusion which may be drawn from the evidence is that Tiffany and Jeremy reasonably should have known [the baby] was being physically harmed by someone in the house." (In re E. H., supra, 108 Cal.App.4th at p. 670.) The court added that "[w]here 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." (Ibid.)
In re E. H. is clearly distinguishable because, assuming the parents themselves were not abusing the baby, they either knew or reasonably should have known that someone in the house was abusing the baby over a period of time, yet they continued to leave the baby with the perpetrator(s).
Here, in contrast, there is no evidence that mother knew or reasonably should have known, before leaving the children with Junior, that he would physically abuse the baby. The baby was not injured over an extended period of time. Although Dr. Stewart could not say for sure that the babys injuries were the result of one or more traumatic events, virtually all indications were that the injuries were sustained during the 24 hours preceding the babys hospitalization, i.e., while the children were with Junior.
In light of the above, the denial or reunification services cannot be sustained under section 361.5, subdivision (b)(5).
b. Section 361.5, Subdivision (b)(6).
Under section 361.5, subdivision (b)(6), reunification services "need not" be provided to a parent or guardian when the court finds, by clear and convincing evidence, "[t]hat [1] the child has been adjudicated a dependent pursuant to any subdivision of Section 300 as a result of severe sexual abuse or the infliction of severe physical harm to the child, a sibling, or a half-sibling by a parent or guardian, as defined in this subdivision, and [2] the court makes a factual finding that it would not benefit the child to pursue reunification services with the offending parent or guardian."
Under the first prong of this subdivision, the abuse must have been inflicted by the parent (or guardian). As discussed above, however, the juvenile court declined to find that mother was the one who abused the baby. Thus, there was no basis to deny reunification services under subdivision (b)(6).
Even if the first prong of subdivision (b)(6) was satisfied, the juvenile court still abused its discretion in denying reunification services. As discussed above, in denying services, the juvenile court emphasized that mother had chosen to remain with Junior after the baby was abused. However, there was no evidence to support this assertion. On the contrary, the only evidence was that mothers relationship with Junior came to an end when the baby was hospitalized. Mother so testified at the adjudication. And when the Department interviewed Junior in April, he was no longer living with mother and he referred to his relationship with mother in the past tense, noting: "There is no relationship between us. We are not boyfriend and girlfriend. We had a sexual relationship."
The juvenile courts mistaken assumption is important for at least two reasons. First, the denial of reunification services under subdivision (b)(6) is discretionary. Discretion must be exercised with a correct understanding of the relevant facts. (See People v. Bruce G. (2002) 97 Cal.App.4th 1233, 1247 ["An erroneous understanding by the trial court of its discretionary power is not a true exercise of discretion"].) Second, the denial of services under the subdivision requires "a factual finding that it would not benefit the child to pursue reunification services with the offending parent or guardian." (§ 361.5, subd. (b)(6).) Such a finding cannot be based on erroneous factual assumptions.
If this were the only problem with the juvenile courts denial of services under subdivision (b)(6), the remedy would be to remand to the juvenile court for it to exercise its discretion based on a correct understanding of the facts. However, in light of the fact that there was no basis to invoke subdivision (b)(6) for the reason discussed above, such remand is not warranted. Mother is entitled to reunification services.
As noted above, mother also challenges the sustaining of the petition under section 300, subdivision (i), claiming it is not supported by substantial evidence. In light of our holding, this finding does not appear to be of any practical significance. However, because it was raised, we address it and conclude that mothers contention lacks merit. Under subdivision (i), a child may be adjudged a dependent of the court if "[1] [t]he child has been subjected to an act or acts of cruelty by the parent or guardian or a member of his or her household, or [2] the parent or guardian has failed to adequately protect the child from an act or acts of cruelty when the parent or guardian knew or reasonably should have known that the child was in danger of being subjected to an act or acts of cruelty." According to mothers testimony, when baby was injured, Junior was residing with her. Therefore, he was part of her household. Therefore, we will not disturb the juvenile courts finding under section 300, subdivision (i).
3. Notice Under the ICWA.
Mother asserts that the juvenile court lacked jurisdiction to enter its disposition order because it never found the Department had complied with the notice requirements of the ICWA. Because we are directing the juvenile court to vacate its disposition order, this contention is moot. However, because the matter is being remanded to the juvenile court so it can conduct another disposition hearing, we will direct the court to ensure that the Department comply with the requirements of the ICWA.
DISPOSITION
The writ petition is granted. The juvenile court is directed to (1) vacate only those portions of its August 18, 2006 order sustaining the dependency petition under section 300, subdivision (e), and denying mother reunification services, and (2) enter a new disposition order which provides mother with reunification services. The juvenile court is also directed to ensure forthwith that the Department complies with its obligations under the ICWA.
This opinion is final as to this court forthwith. (Cal. Rules of Court, rule 24(b)(3).)
We concur:
RUBIN, J.
FLIER, J.