Opinion
F064278 & F064282
05-30-2012
D.W. et al., Petitioners, v. THE SUPERIOR COURT OF KERN COUNTY, Respondent; KERN COUNTY DEPARMENT OF HUMAN SERVICES, Real Party in Interest. K.W. et al., Petitioners, v. THE SUPERIOR COURT OF KERN COUNTY, Respondent; KERN COUNTY DEPARMENT OF HUMAN SERVICES, Real Party in Interest.
Rory E. McKnight for Petitioner, D.W. Marc D. Widelock for Petitioner, H.L. James V. Sorena for Petitioners, K.W., C.L., and T.L. No appearance for Respondent. Theresa A. Goldner, County Counsel, and Elizabeth M. Giesick, Deputy County Counsel, for Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. Nos. JD125347, JD125348, JD125349)
OPINION
THE COURT
Before Gomes, Acting P.J., Poochigian, J., and Franson, J.
† Judge Anspach presided over the jurisdictional hearing and Judge Vega presided over the dispositional hearing.
ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Robert Anspach and Louie L. Vega, Judges.†
Rory E. McKnight for Petitioner, D.W.
Marc D. Widelock for Petitioner, H.L.
James V. Sorena for Petitioners, K.W., C.L., and T.L.
No appearance for Respondent.
Theresa A. Goldner, County Counsel, and Elizabeth M. Giesick, Deputy County Counsel, for Real Party in Interest.
Petitioners, D.W. (hereafter, mother), H.L. (hereafter, father), and minors, ten-year-old K.W., three-year-old C.L., and one-year-old T.L., challenge the juvenile court's jurisdictional findings and dispositional orders removing the children from parental custody, denying reunification services, and setting a Welfare and Institutions Code section 366.26 hearing. We find error in the juvenile court's orders denying reunification services and in setting the section 366.26 hearing and grant relief accordingly. In all other respects, we deny the petitions.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL SUMMARY
These dependency proceedings were initiated in October 2010 when the Kern County Department of Human Services (department) took then eight-year-old K.W., one-year-old C.L., and seven-week-old T.L. into protective custody. At the time, mother and her fiance, father, were living together with mother's son, K.W., and their two sons in common, C.L. and T.L. K.W.'s father died during the dependency proceedings.
The event precipitating the children's removal occurred on a morning in October 2010 when T.L. was evaluated in the emergency room because he was having seizures. He was diagnosed with bilateral subdural hematomas and transferred to a medical center for a higher level of care. The police and department were notified.
Police Officer Ryan Sloan spoke to mother and father at the emergency room. They said that T.L. slept in a crib in their bedroom and that around 10:00 a.m., they placed him in his crib for a nap and went outside so father could smoke a cigarette. They heard T.L. scream as if he were being hurt and rushed into the bedroom where they saw him lying on his back in his crib. His left arm was stiff and extended directly in front of him. Father picked T.L. up and took him into the living room where T.L. displayed further signs of distress. They then called 911. Officer Sloan asked mother and father if any of the other children could have injured T.L. They stated it was highly unlikely because there was a baby gate blocking their entry to the master bedroom.
T.L. was admitted to the hospital where he remained for 16 days. During that time, he underwent extensive diagnostic testing and evaluation and was clinically monitored for seizures. One of the diagnostic tests was a retinal scan that revealed numerous retinal hemorrhages.
Dr. Amy Young, a forensic pediatrician and child abuse expert, was consulted in T.L.'s case. Dr. Young interviewed mother who stated that T.L. did not display any unusual behavior before he had the seizures. She recounted that she and father were outside when they heard T.L. scream. She said father ran into the bedroom while she ran to the bathroom. Before she did, she looked in the bedroom and saw that T.L. was rigid as if he were having a seizure. When she returned from the bathroom, T.L. was unresponsive and listless. He had several more seizures before the ambulance arrived.
Mother also told Dr. Young that she did not know of any trauma that T.L. suffered but said that K.W. "confessed" to father that when the parents were out smoking, he picked T.L. up and placed him with a pillow on the couch and T.L. fell off. She said that K.W. was very good with the baby and did not pick him up. She said she sometimes got frustrated with the baby's crying and set him down hard in the bassinet but never anything else. Mother also told Dr. Young that C.L. was the size of a three-year-old and could have hurt T.L.
After examining T.L., Dr. Young concluded that he suffered "severe head trauma typical of abusive head trauma." She reported, "This patient [referring to T.L.] has findings of traumatic head injury. The history as provided does not explain the extent nor severity of injury. There is no evidence of underlying medical condition to account for the findings. These findings are most consistent with inflicted head injury, child abuse."
Dr. Jason Reed, also on staff at the medical center, told the investigating social worker that T.L.'s head injury could only be caused by blunt force trauma and that the retinal hemorrhaging could only be caused by repeated shaking by an adult. He said that when mother was told that T.L. was shaken, she changed her story to place blame on K.W. Dr. Reed also stated that he observed mother become aggressive when T.L. was crying, which concerned him under the circumstances.
Following its investigation, the department filed dependency petitions alleging that there was a substantial risk that K.W., C.L. and T.L. would suffer serious physical harm inflicted nonaccidentally by their parent (§ 300, subd. (a)) and that they had suffered, or there was a substantial risk they would suffer, serious physical harm (§ 300, subd. (b)). The petition filed on behalf of T.L. also alleged that he was under the age of five years and suffered severe physical abuse by a parent, or by a person known by the parent, and the parent knew or reasonably should have known the person was physically abusing him (§ 300, subd. (e)).
In October 2010, the juvenile court ordered the children detained pursuant to the petitions, ordered supervised visitation, and set the jurisdictional hearing for December 2010. Mother and father signed an initial case plan in which they agreed to enroll in parenting classes and counseling for perpetrators of physical abuse. The children were placed together in foster care.
After numerous continuances, the jurisdictional hearing was conducted in July 2011. Meanwhile, in March 2011, mother and father completed parenting classes and enrolled in a 52-week child abuse program. Also during this interim period, mother's attorney solicited the opinion of Dr. G. Alexander Merrill, a pediatrician and medical expert in child abuse cases.
Dr. Merrill opined that the mainstream medical consensus had shifted with respect to shaken baby syndrome and that the presence of an unexplained subdural hematoma and retinal hemorrhaging was no longer the gold standard for the diagnosis. Dr. Merrill stated that he found no evidence from his review of T.L.'s medical records "to even suggest suspicion" that T.L. was abused. He further opined that K.W. "would be capable of shaking [T.L.] to some unknown extent necessary to produce brain trauma" and that it was likely that T.L. was predisposed to "'injury' resulting from less pronounced accelerations - or even ordinary forces on the head."
Dr. Young refuted Dr. Merrill's claim that medical consensus vis-à-vis shaken baby syndrome had shifted. She stated that she formed her opinion in T.L.'s case after physically examining him, reviewing the diagnostic test results, and conferring with an array of pediatric subspecialists. The department appended Dr. Merrill and Dr. Young's letters to a supplemental report, which it filed in June 2011.
In July 2011, at the contested jurisdictional hearing, mother and father testified that they did not know how T.L. was injured. Mother also testified that, although she had never seen K.W. pick T.L. up, K.W. told father that, while they were outside, he lifted T.L. out of his bassinet and dropped him. K.W. told father that he got scared and put T.L. back in his bassinet. Mother conceded that it would not be easy for K.W. to lift T.L. out of the bassinet given K.W.'s height and the depth of the bassinet.
Social Worker Ruben Alonzo testified that he did not see any indication of outward trauma to T.L. such as bruising or any mention of spinal cord injury or fractures in T.L.'s medical records. He further testified that, to his knowledge, T.L.'s medical conditions were resolving. He also testified that mother and father did not have any history of child neglect or abuse and he had not come across any law enforcement reports concerning them. He also said he interviewed K.W. who did not report any mistreatment.
Family friends, Bradley Kirby and his wife, Laura Harkey, testified that they had frequent contact with the family and never saw any indication of child abuse.
At the conclusion of the hearing, the juvenile court sustained the petitions, finding the section 300, subdivisions (a), (b) and (e) allegations true as to T.L. and the subdivisions (a) and (b) allegations true as to K.W. and C.L. The juvenile court set the dispositional hearing for August 2011.
In July 2011, the department prepared its report for the dispositional hearing and recommended that the juvenile court deny mother and father reunification services pursuant to section 361.5, subdivision (b)(5). The department opined that there was not a risk of detriment to the children if services were not ordered for mother and father because the children had been out of their custody for 10 months and could easily bond to a new caretaker. In addition, the caretakers were willing to adopt C.L. and T.L. and become K.W.'s legal guardian. The department further opined that it would be more detrimental to the children to provide reunification services based on the severe acts of violence inflicted on T.L. and mother and father's failure to take responsibility for T.L.'s injuries. The department also advised the juvenile court that mother and father were no longer participating in child abuse counseling because they could not afford it but that, even if the juvenile court ordered the services for them, it was unlikely they would complete them within the allowable statutory timeframe.
Section 361.5, subdivision (b)(5) provides, in part:
"(b) Reunification services need not be provided to a parent ... described in this subdivision when the court finds, by clear and convincing evidence, ... [¶] ... [¶] (5) [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 ...."
On August 17, 2011, the department prepared a supplemental report informing the juvenile court that mother and father enrolled in a 52-week child neglect/abuse program through Legacy Behavioral Services (Legacy) and were scheduled to begin counseling on August 4. The department also reported that only C.L. and T.L. were appropriate for adoption and K.W. would be assessed for legal guardianship.
The juvenile court continued the dispositional hearing to October 2011. Meanwhile, at the request of minors' counsel, the juvenile court appointed psychologist Dr. Thomas Middleton to conduct a bonding study.
Dr. Middleton evaluated the family and reported that mother and father were caring and consistent with the children. In turn, the children responded positively to their parents and wanted to live with them. Dr. Middleton stated that K.W. was strongly attached to the family and would suffer significant and lasting emotional harm if not permitted to reunify. Dr. Middleton opined that T.L. would suffer the same detrimental effect. Dr. Middleton also opined that it would be in the children's best interest for mother and father to receive reunification services.
Dr. Middleton recommended that reunification services, if provided, include mental health counseling and psychological evaluations for mother and father. He also recommended family counseling and a graduated increase in the duration of visitation commensurate with a reduction in supervision with a goal of returning the children to their parents.
In October 2011, at county counsel's request, the juvenile court appointed Dr. Middleton to conduct psychological evaluations of mother and father. The psychological evaluations were conducted in November 2011 and filed with the juvenile court in January 2012. Dr. Middleton opined that neither parent required psychiatric treatment but recommended that they both participate in individual counseling.
In January 2012, the department filed a supplemental report for the dispositional hearing and reiterated its recommendation that the juvenile court deny mother and father reunification services under section 361.5, subdivision (b)(5). The department reported that mother and father completed 11 of the child neglect/abuse counseling sessions and were dropped from the program in November for poor attendance. Mother and father explained that they were dropped from the program after Legacy was audited and implemented a new policy requiring prepayment for counseling sessions. They told the social worker that they could not resume counseling until they could pay their balance. Mother said that she lost her job and could not pay for it but planned to attend school and hoped to receive financial aid.
In support of its recommendation to deny mother and father reunification services, the department cited their inability to "attain the means" to comply with counseling despite 15 months of receiving services from the department and the 18-month limitation on reunification services which the department projected would occur in April 2012. The department opined that it was unlikely that mother and father would successfully complete a plan of reunification even if services were ordered, since mother and father were not enrolled in counseling and had not accepted responsibility for T.L.'s injuries.
In January 2012, the juvenile court conducted a contested dispositional hearing. At the beginning of the hearing, county counsel informed the court that it recommended an additional statutory basis for denial of reunification services; that being section 361.5, subdivision (b)(6). The department, however, did not file a supplemental report analyzing the evidence to support a denial on that basis.
Section 361.5, subdivision (b)(6) provides, in part:
"(b) Reunification services need not be provided to a parent . described in this subdivision when the court finds, by clear and convincing evidence, ... [¶] ... [¶] (6) [t]hat the child has been adjudicated a dependent pursuant to any subdivision of Section 300 as a result of ... the infliction of severe physical harm to the child, a sibling, or half sibling by a parent ., as defined in this subdivision, and the court makes a factual finding that it would not benefit the child to pursue reunification services with the offending parent .... [¶] ... [¶]
"A finding of the infliction of severe physical harm, for the purposes of this subdivision, may be based on, but is not limited to, deliberate and serious injury inflicted to or on a child's body or the body of a sibling or half sibling of the child by an act or omission of the parent ...."
Also, at the beginning of the hearing, mother's counsel made an offer of proof as to mother and father's inability to finance their counseling sessions. Mother's attorney explained that mother was the only employed member of the household and that she was only able to pay for the parenting class for herself and father. Once they finished that class, they sought counseling through Legacy but were told that they had to pay for their sessions since it was not a court-ordered service. They did not have the money to pay and asked for assistance from the department. In August, a facilitator of the program told them they could attend as long as they paid some amount for each class and that they could carry a balance. As a result, they began attending in August and completed 11 sessions. In the meantime, the facilitator left the program and the program was audited. When mother and father arrived in October for their 12th session, they were told they could not attend unless they paid the balance due. They missed the next five sessions and were dropped from the program. Subsequently, mother was approved to attend the program through a state-funded program. Father was not eligible for the program but a friend agreed to pay for his sessions. Mother and father were scheduled to resume counseling on February 2, 2012. The juvenile court accepted the offer of proof.
Social worker Veronica Cox testified that she supervised over 100 hours of visitation and spent two hours in the car with the children every week transporting them to visits. She said the visits were very positive and that father and mother were effective disciplinarians. She said that K.W. consistently voiced his desire to return home and that a "few weeks ago, [C.L.] asked why he couldn't stay." She said that she had never observed any violent tendency on the part of mother or father, only frustration which they expressed by walking away. She said in the year that she worked with the family, she did not observe any behavior indicating that the children would be at risk if returned home.
Following argument, the juvenile court ordered the children removed from parental custody, adjudged K.W., C.L. and T.L. dependents pursuant to section 300, subdivisions (a), (b) and (e) and denied mother and father reunification services as to T.L. pursuant to section 361.5, subdivision (b)(5) and as to C.L. pursuant to section 361.5, subdivision (b)(5) and (6). The juvenile court denied mother reunification services as to K.W. pursuant to section 361.5, subdivision (b)(5) and (6). Lastly, the juvenile court set a section 366.26 hearing as to all three children.
The appellate record is silent as to why the juvenile court adjudicated K.W. and C.L. dependents under section 300, subdivision (e) when the department did not allege in their dependency petitions that they came within the provisions of subdivision (e) and the juvenile court did not amend the petitions to include subdivision (e) findings at the jurisdictional hearing.
--------
In rendering its judgment, the juvenile court stated that it reviewed and considered Dr. Middleton's psychological evaluations of mother and father and the family bonding study. The court also addressed what it believed to be a conflict in the statutes. The court stated:
"This is a matter that brings the apparent conflict between statutory requirements. And as far as time lines are concerned, we have an 18-month deadline. The children were removed in October of 2010. And that 18-month time line expires in April. And we are now in the last day of January, 2012. Notwithstanding the argument and the offer of proof of counsel for the mother, during this 15-month period, there's been ... an opportunity to complete programs that would be consistent with or part of a reunification plan, whether it's initial or ordered thereafter. But now that the time limit will run in April, the court can't conclude there is a substantial probability that the parent would successfully complete a program within that now very narrow time frame."
This petition ensued.
CONTENTIONS
Petitioners contend that the juvenile court erred in sustaining the section 300, subdivisions (a) and (e) allegations and must therefore terminate its dependency jurisdiction. Alternatively, they contend that the juvenile court erred in ordering the children removed from parental custody and in denying reunification services pursuant to section 361.5, subdivision (b)(5) and (6). It is not clear, however, in some instances whether petitioners are challenging a particular finding or ruling as to all of the children or as to a particular child. Consequently, where the petitioners challenge the applicability of a specific statutory provision, we will review it as to each child to whom it was applied. (Cal. Rules of Court, rule 8.452(a)(1).)
LEGAL PRINCIPLES
The primary purpose of dependency proceedings is to protect the child. (In re Kerry O. (1989) 210 Cal.App.3d 326, 333.) To that end, the juvenile court stands in loco parentis to the minor over whom it has jurisdiction. (In re Hadley B. (2007) 148 Cal.App.4th 1041, 1048.) In order to exercise its dependency jurisdiction over a minor, the juvenile court must first find by a preponderance of the evidence that the minor child is described by one or more of the subdivisions set forth in section 300. (In re Veronica G. (2007) 157 Cal.App.4th 179, 185.)
After finding that a child is a person described in one of the subdivisions of section 300 and therefore the proper subject of dependency jurisdiction, the juvenile court must determine the proper disposition to be made of the child, including whether to remove the child from parental custody and order services to reunify the family. (§§ 361, subd. (c), 361.5.)
Dependency law presumes that services will be provided to reunify the family unless the juvenile court finds by clear and convincing evidence that any one of 15 exceptions set forth in section 361.5, subdivision (b) applies. (§ 361.5, subds. (a) & (b).)
With these principles in mind, we turn to the merits of this case.
DISCUSSION
I. Jurisdiction
Petitioners contend that the juvenile court erred in finding that K.W., C.L. and T.L. were minors described by section 300, subdivisions (a) and (e). We need not review the juvenile court's jurisdictional findings under subdivisions (a) and (e) because, as we explain, the court had jurisdiction over the children on other grounds.
As stated above, the juvenile court only needs to find that each of the children is described under one of the subdivisions of section 300 in order to exercise its dependency jurisdiction. In this case, the juvenile court found that the children were also described under section 300, subdivision (b), which petitioners do not challenge. Consequently, the children remain dependents of the juvenile court under the properly sustained allegations under section 300, subdivision (b). Thus, for purposes of jurisdiction, the section 300, subdivisions (a) and (e) findings are of no consequence.
II. Removal
Petitioners contend that the juvenile court's removal order was error, arguing it was not supported by clear and convincing evidence. More specifically, they contend that the evidence supports at most one isolated act of abuse, which is insufficient to order the children removed, especially in light of the absence of any history of abuse and positive observations by the social worker or friends. We conclude that the juvenile court properly ordered the children removed from mother and father's custody.
"At the dispositional hearing, ... there is a statutory presumption that the child will be returned to parental custody.... [T]he burden is on the state to prove, by clear and convincing evidence, that removal of the child from the parent's custody is necessary." (In re Marilyn H. (1993) 5 Cal.4th 295, 308.) Section 361, subdivision (c), the governing statute, provides, in relevant part:
"A dependent child may not be taken from the physical custody of his or her parents ... with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence .... [¶] ... [t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's ... physical custody." (§ 361, subd. (c)(1).)
"The juvenile court has broad discretion to determine what would best serve and protect the child's interest and to fashion a dispositional order in accordance with this discretion. [Citations.]" (In re Jose M. (1988) 206 Cal.App.3d 1098, 1103-1104.) "A removal order is proper if it is based on proof of parental inability to provide proper care for the minor and proof of a potential detriment to the minor if he or she remains with the parent. [Citation.] The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child. [Citations.]" (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136.) In addition, the juvenile court may properly consider a parent's level of denial in assessing the risk of returning the child to his or her parent. (In re Esmeralda B. (1992) 11 Cal.App.4th 1036, 1044.)
On a challenge to the juvenile court's dispositional finding, we employ the substantial evidence test, bearing in mind that the clear and convincing standard requires a heightened burden of proof. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.) Under the substantial evidence test, we view the evidence in the light most favorable to the juvenile court's determination, drawing all reasonable inferences in favor of the determination and affirm the order even if there is other evidence supporting a contrary conclusion. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610; In re Misako R. (1991) 2 Cal.App.4th 538, 545.) On the facts of this case, we conclude substantial evidence supports the juvenile court's removal order as to all three children.
T.L. sustained a severe head injury while in the primary care of mother and father which neither could adequately explain. In addition, they refused to accept responsibility for his injury. Therefore, a risk of harm remained and returning the children to mother and father would have exposed them to that risk. Consequently, the juvenile court could reasonably conclude that K.W., C.L. and T.L. would be in substantial danger if returned to mother and father's care and that there was no other means to ensure the children's safety, absent continual monitoring.
III. Denial of Reunification Services
Petitioners contend the juvenile court erred in denying mother and father reunification services pursuant to section 361.5, subdivision (b)(5) as to T.L. and pursuant to section 361.5, subdivision (b)(5) and (6) as to K.W. and C.L. We find error in the juvenile court's orders denying mother and father reunification services under both paragraphs of section 361.5, subdivision (b).
A. Section 361.5, Subdivision (b)(5)
Section 361.5, subdivision (b)(5) (subdivision (b)(5)) allows the juvenile court to deny reunification services 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." A child may be brought within the jurisdiction of the juvenile court under section 300, subdivision (e) if "[t]he child is under the age of five years and has suffered severe physical abuse by a parent, or by any person known by the parent, if the parent knew or reasonably should have known that the person was physically abusing the child." "'[S]evere physical abuse'" as applicable here is defined as "any single act of abuse which causes physical trauma of sufficient severity that, if left untreated, would cause permanent physical disfigurement, permanent physical disability, or death...." (§ 300, subd. (e).)
Section 361.5 further provides under subdivision (c) that the juvenile court "shall not order reunification in any situation described in paragraph (5) of subdivision (b) unless it finds that, based on competent testimony, those services are likely to prevent reabuse or continued neglect of the child or that failure to try reunification will be detrimental to the child because the child is closely and positively attached to that parent." Subdivision (c) further requires the social worker to "investigate the circumstances leading to the removal of the child and advise the court whether there are circumstances that indicate that reunification is likely to be successful or unsuccessful and whether failure to order reunification is likely to be detrimental to the child."
Petitioners contend that subdivision (b)(5) does not apply because there is no evidence that T.L.'s injury met the definition of "'severe physical abuse'" under section 300, subdivision (e) and because the juvenile court could not deny mother and father services merely because it did not know which one injured T.L. Finally, petitioners contend the juvenile court was required but failed to address whether reunification services were likely to prevent reabuse and whether failure to provide services would be detrimental to the children.
We begin our discussion by addressing the juvenile court's denial orders with respect to K.W. and C.L. In order to deny a parent reunification services under subdivision (b)(5), it is foundational that the juvenile court took jurisdiction over the child under section 300, subdivision (e). Yet, that is not the case here and the juvenile court erroneously operated on that assumption as to all three children. The court stated, "The jurisdictional hearing was held and findings under [section 300,] subdivision (e) applied, and that is the basis for the denial of services under [section 361.5,] subdivision (b)(5) and the as amended or added here, subdivision (b)(6)." !(6RT: 899)! In fact, at the jurisdictional hearing in July 2011, the juvenile court sustained a subdivision (e) allegation only as to T.L. Consequently, there was no basis for denying mother and father reunification services as to K.W. and C.L. under subdivision (b)(5).
T.L., by contrast, was adjudged a dependent child under subdivision (e), thus satisfying the initial threshold requirement under subdivision (b)(5). In addition, Dr. Young established that his head injury was "severe" and implicated mother and/or father as the perpetrator(s). Thus, the evidence supports the juvenile court's application of subdivision (b)(5) to the extent that T.L. was severely injured by a parent.
The problem, however, is that mother and father presented undisputed evidence that it would be detrimental to T.L. not to offer them reunification services and, though the juvenile court considered that evidence, it did not make an express finding with regard to detriment or otherwise comment on the detrimental effect of ordering or not ordering services. Further, it appears that the juvenile court's concern about the time limitations on services may have unduly influenced its decision to deny services. The statutes that impose such limitations (i.e., §§ 361.5, subd. (a), 366.21 & 366.22) presume that a dispositional hearing was previously conducted. Moreover, while the timelines are intended to guide the course of dependency to an expeditious resolution, the child's best interest is always the paramount concern.
On a silent record, we may infer a finding if it is supported by substantial evidence. (In re Corienna (1989) 213 Cal.App.3d 73, 83.) However, there is not substantial evidence on this record to support the juvenile court's decision to deny mother and father reunification services as to T.L. The evidence reflects that the family was strongly bonded and that it would be detrimental to T.L. if reunification services were not offered. It also reflects that mother and father were doing their best within their means to reunify.
In light of the foregoing, we find error in the juvenile court's orders denying mother and father reunification services as to K.W., T.L. and C.L. under section 361.5, subdivision (b)(5).
B. Section 361.5, Subdivision (b)(6)
We also find error in the juvenile court's denial of reunification services as to K.W. and C.L. under section 361.5, subdivision (b)(6) (subdivision (b)(6)). Subdivision (b)(6) allows the juvenile court to deny a parent reunification services if it finds that the child was adjudicated a dependent pursuant to any subdivision of section 300 as a result of severe physical harm to the child by a parent as defined in subdivision (b)(6) and the court makes a factual finding that it would not benefit the child to pursue reunification services. A finding of severe physical harm for purposes of subdivision (b)(6) "may be based on, but is not limited to, deliberate and serious injury inflicted to or on a child's body or the body of a sibling or half sibling of the child by an act or omission of the parent .... "
Assuming, for the sake of argument, the evidence supports a finding that K.W. and C.L. were adjudged dependents under subdivision (a) because T.L. sustained severe physical harm, the evidence does not support a finding that reunification services would not benefit K.W. and C.L. According to Dr. Middleton's undisputed opinion, K.W. would suffer significant and lasting emotional harm if not allowed to reunify and it would be in his and C.L.'s best interest for mother and father to receive reunification services. Consequently, substantial evidence does not support the juvenile court's orders denying mother and father reunification services as to K.W. and C.L. under subdivision (b)(6) and the juvenile court erred in so ruling.
DISPOSITION
Let an extraordinary writ issue directing the juvenile court to vacate (1) its findings issued on January 31, 2012, that K.W. and C.L. are dependent children described by section 300, subdivision (e); and (2) its orders issued on January 31, 2012, denying mother and father reunification services pursuant to section 361.5, subdivision (b)(5) as to K.W., C.L. and T.L., denying mother and father reunification services pursuant to section 361.5, subdivision (b)(6) as to K.W. and C.L., and setting a section 366.26 hearing as to K.W., C.L. and T.L.; and to thereafter reconsider these issues, conduct a new dispositional hearing, and, after taking into consideration any new evidence or change in circumstances, make new orders on these issues as the juvenile court deems appropriate. This court emphasizes that nothing in this opinion determines what new orders should be made by the juvenile court.
Insofar as the petitions seek extraordinary writ relief from the juvenile court's jurisdictional findings pursuant to section 300, subdivision (e) as to T.L. and section 300, subdivision (a) as to K.W., C.L. and T.L. and its orders removing K.W., C.L. and T.L. from mother and father's custody, they are denied.
This opinion is final forthwith as to this court.