Tyrone v. Superior Court

60 Cal.Rptr.3d 486

151 Cal.App.4th 839

TYRONE W., Petitioner, v. The SUPERIOR COURT of San Diego County, Respondent San Diego County Health and Human Services Agency, Real Party in Interest.

No. D049824.

Court of Appeal, Fourth District, Division 1.

May 31, 2007.

Neil R. Trop, for Petitioner.

No appearance for Respondent.

John J. Sansone, County Counsel, John E. Philips, Chief Deputy County Counsel, Katharine R. Bird, Deputy County Counsel, for Real Party in Interest.

McINTYRE, J.

Tyrone W. seeks writ review of juvenile court orders bypassing family reunification services at disposition and setting a hearing to select and implement a permanency plan for his son, T.W., under Welfare and Institutions Code section 366.26. (All statutory references are to the Welfare and Institutions Code unless otherwise specified.) Tyrone contends the court erred when it denied him reunification services under section 361.5, subdivision (b)(6) without finding he inflicted severe physical harm on T.W.'s sibling by act or omission.

We hold that section 361.5, subdivision (b)(6) requires the juvenile court to find that a parent inflicted severe physical harm on the child by act, omission or consent before it may deny reunification services to that parent under subdivision (b)(6). The Legislature did not intend subdivision (b)(6) to apply to deny reunification services to a negligent parent; rather, the parent must have been complicit in the deliberate abuse of the child. Identification of the parent who inflicted severe physical harm on a child is required when the evidence does not show both parents knew the child was severely injured or knew the child was being abused. We further conclude the court identified Tyrone as an offending parent when it sustained the amended jurisdiction petition under section 300, subdivision (j) alleging both parents inflicted severe physical abuse on T.W.'s sibling. Accordingly, we deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

Tyrone W. and Camela W. (together, parents) had two children, T.W., now age 21 months, and Y.W. The parents were on active duty with the U.S. Navy. In September 2005, U.S. Navy colleagues reported Tyrone and Camela often argued, and Camela had been injured on several occasions during their altercations. In November, a military tribunal convicted Tyrone of two counts of striking Camela in the head with his fist. Colleagues also reported Camela told them Tyrone placed his hand over T.W.'s mouth and banged T.W.'s head against his crib.

The allegations of child abuse were referred to the San Diego County Health and Human Services Agency (Agency) for investigation. Camela asserted Tyrone never harmed T.W., then two months old, and denied she told her colleague that Tyrone abused T.W. The Agency concluded the allegation of physical abuse was unfounded and offered Camela voluntary services to address issues of domestic violence. Camela minimized the violence in the household, and she and Tyrone reunited when he was released from military custody. Their daughter, Y.W., was born on June 3, 2006.

During the evening of July 3, 2006, Tyrone and Camela had an argument. Tyrone left the home. Camela telephoned 911 and told the dispatcher that Tyrone hit and kicked her. When officers arrived, Camela refused to press charges. Around 3:00 a.m. on July 4, Camela went to Tyrone's hotel room with the children and asked him to return home with them, which he did.

Later that morning, Tyrone fed Y.W. from approximately 8:45 a.m. to 9:00 a.m. and placed the baby back in her crib. He went back to sleep. Camela awoke at 10:00 a.m. She did not check on the baby because it was not her shift to watch the children. When Tyrone checked on Y.W. at noon, he discovered she was not breathing and called for emergency assistance. Attempts to resuscitate Y.W. were not successful. The medical examiner suspected the cause of death was sudden infant death syndrome (SIDS).

Officers called to the home to assist with Y.W. observed Camela had a swollen left eye. She said she and Tyrone argued the previous night, but her injury was accidental.

On July 17, 2006, the Agency filed a petition under section 300, subdivision (b) alleging T.W. was at substantial risk of suffering serious physical harm or illness as a result of domestic violence between his parents in July 2006, and January and September 2005. The Agency sought an order temporarily detaining T.W. from his parents' custody, which the court granted. The Agency placed T.W. in foster care.

In August 2006 the medical examiner released the report of its investigation into Y.W.'s death. Y.W.'s death was not inconsistent with SIDS. However, the autopsy revealed the baby had fractures on eight posterior right ribs and had similar, but smaller, healing fractures on three posterior left ribs. Dr. Christopher Swalwell, the deputy medical examiner, opined Y.W.'s rib fractures resulted from "trauma inflicted by another person." The fractures were not directly related to the cause of death, officially described as "sudden unexplained death in infant with healing rib fractures." The medical examiner listed the manner of death as "undetermined." Because of reports of possible domestic violence in the household and Y.W.'s unexplained injuries, Dr. Swalwell considered the death "suspicious."

A child abuse expert, Dr. Marilyn Kaufold, estimated the injuries to Y.W.'s right ribs were approximately 10- to 14-days old. The condition of the three left posterior ribs suggested these fractures were older than those on the right, consistent with two to four weeks of healing. Dr. Kaufold opined the rib fractures were "likely indicative of child abuse" and did not occur from birth or natural disease.

In late August 2006, physicians conducted a full skeletal survey on 13-month-old T.W. His test results were normal.

After the medical examiner issued its report, the Agency filed an additional count to the petition under section 300, subdivision (e), later amended at the request of county counsel to section 300, subdivision (j), and to include both parents. The court also granted county counsel's request to delete the phrase "and has suffered severe physical abuse by the parent and the parent knew or reasonably should have known that the person was physically abusing the child's sibling" from the petition. (§ 300, subd. (e).)

The final amended petition alleged Y.W. suffered severe physical abuse and damage inflicted non-accidentally by the parents and there was a substantial risk T.W. would suffer severe physical abuse by the parents as defined by section 300, subdivisions (e) and (j). The Agency recommended the court deny both parents reunification services and set a hearing to select and implement an out-of-home permanency plan for T.W.

At the contested jurisdiction and disposition hearing, the court admitted the Agency's reports into evidence. The parents presented no affirmative evidence and did not cross-examine the social workers. The court found T.W. was a child described in section 300, subdivisions (b) and (j), and removed him from parental custody. In view of the parents' conduct and the severe injuries inflicted on Y.W., the court found it was unlikely T.W. could be safely returned to parental custody within a 12-month reunification period and it was not in T.W.'s best interests to offer reunification services to either parent. (§ 300, subds. (h), (i).) The court bypassed reunification services under section 361.5, subdivision (b)(6) and set a permanency plan hearing. (§ 366.26.)

Tyrone and Camela each filed a petition for writ review under California Rules of Court, rule 38.1, now rule 8.452. On January 8, 2007, this court deemed the notice of intent filed by Camela to be abandoned, and dismissed her case. With respect to Tyrone's petition, this court issued an order to show cause and the parties waived oral argument.

DISCUSSION

A.

Family reunification services play a critical role in dependency proceedings. (In re Alanna A. (2005) 135 Cal.App.4th 555, 563, 37 Cal.Rptr.3d 579.) Unless a specific statutory exception applies, the juvenile court must provide services designed to reunify the family within the statutory time period. (§ 361.5; 42 U.S.C. § 629a(a)(7); see In re Alanna A., supra, 135 Cal.App.4th at pp. 563-564, 37 Cal. Rptr.3d 579.) The statutory exceptions to providing reunification services under section 361.5 have been referred to as reunification "bypass" provisions. (§ 361.5, subd. (b)(1)-(15); see, e.g., Francisco G. v. Superior Court. (2001) 91 Cal.App.4th 586, 595, 110 Cal.Rptr.2d 679; Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 874, 101 Cal.Rptr.2d 187.) There is no general bypass provision; the court must find by clear and convincing evidence that one or more of the subdivisions described in section 361.5, subdivision (b) apply before it may deny reunification services to a parent. (§ 361.5, subd. (b)(1)-(15); see also title 42 U.S.C. § 671(a)(15)(D).)

The primary issues raised in this proceeding are whether section 361.5, subdivision (b)(6) applies to a parent who "reasonably should have known" the child was being physically abused and failed to prevent the abuse, and whether the subdivision requires the identification of the offending parent. Because of the arguments raised by the parties and the concerns expressed by our concurring colleague, we describe in detail the statutory scheme, including applicable case law, that permits the court to bypass reunification services under subdivisions (b)(5) and (b)(6) of section 361.5.

Section 361.5, subdivision (b)(5) authorizes the court to deny reunification services to a parent when the child has been brought within the jurisdiction of the court under section 300, subdivision (e), because of "the conduct of that parent[.]" (§ 361.5, subd. (b)(5).) Section 300, subdivision (e), applies when "[t]he child is under the age of five years and has suffered severe physical abuse...