Filed 7/2/24 In re E.M. CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re E.M., et al., Persons Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, E082706
Plaintiff and Respondent, (Super.Ct.No. J297939)
v. OPINION
C.M.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Cara D. Hutson,
Judge. Affirmed.
Tracy M. De Soto, by appointment of the Court of Appeal, for Defendant and
Appellant, C.M.
Tom Bunton, County Counsel, and Dawn M. Martin, Deputy County Counsel, for
Plaintiff and Respondent.
1 I. INTRODUCTION
C.M. (Mother) appeals from a dispositional order denying her reunification
services with her infant child, E.M., under the “bypass” provisions set forth in Welfare
and Institutions Code1 section 361.5.2 The juvenile court denied reunifications services
after finding that (1) Mother was not receiving reunification services for E.M.’s half
siblings after they were removed as the result of either severe sexual or physical abuse
(§ 361.5, subd. (b)(7)); and (2) Mother had previously failed to reunify with E.M.’s half
siblings and had not subsequently made reasonable efforts to address the problems
resulting in the half siblings prior removal (§ 361.5, subd. (b)(10).)
On appeal, Mother argues that the order denying her reunification services should
be reversed because: (1) the juvenile court’s findings that section 361.5,
subdivisions (b)(7) and (b)(10) applied are not supported by substantial evidence; (2) the
juvenile court applied an incorrect legal standard by purportedly requiring Mother to
disprove the application of section 361.5, subdivision (b)(10); and (3) the best interests of
E.M. justified granting reunification services notwithstanding the application of any
bypass provision. We conclude that the record does not support Mother’s contention that
the juvenile court applied an incorrect legal standard to bypass reunification services and
that Mother has forfeited any claim that the juvenile court should have provided
reunification services notwithstanding the application of a bypass provision. We also
1 Undesignated statutory references are to the Welfare and Institutions Code. 2 “The statutory exceptions to providing reunification services under § 361.5 have been referred to as reunification ‘bypass’ provisions.” (Tyrone W. v. Superior Court (2007) 151 Cal.App.4th 839, 845-846.) 2 conclude that substantial evidence supports the juvenile court’s bypass findings under
section 361.5, subdivision (b)(10) and affirm the dispositional order on this basis.
II. BACKGROUND
A. Facts and Dependency Petition
C.M. (Mother) is the biological mother and R.M. (Father)3 is the presumed father
of E.M. In July 2023, Mother and Father were involved in an altercation that resulted in
the arrest of both parents. As a result of this incident, E.M. was transported by
San Bernardino County Sheriff’s deputies to the hospital for a physical evaluation; a
referral was made to San Bernardino County Children and Family Services (CFS); and a
petition was filed on behalf of E.M. pursuant to section 300 et seq. With respect to
Mother, the petition alleged she was unable to provide for or protect E.M. as the result of
substance abuse, domestic violence, and untreated mental health issues; was unable to
provide for E.M. as the result of her incarceration; and that there was a substantial risk of
harm to E.M. as the result of Mother’s past neglect or abuse of E.M.’s half siblings.
B. Jurisdictional and Dispositional Hearing
On November 20, 2023, the juvenile court held a contested jurisdictional and
dispositional hearing on E.M.’s petition. At the time of hearing, CFS requested that the
juvenile court consider its detention report, a jurisdictional and dispositional report, and
an additional information report dated November 2023, and the juvenile court received
these reports into evidence without objection.
3 Father is not a party to this appeal.
3 1. Detention Report
According to the detention report, E.M. was brought to the hospital by
San Bernardino County Sheriff’s deputies for a physical evaluation on July 23, 2023.
Mother and Father had each been arrested following an incident involving a physical
altercation between the two; an attempt by Mother to drive an automobile while
simultaneously holding E.M.; and E.M. being “dropped” by Mother.
A social worker interviewed Mother regarding the incident while Mother was still
incarcerated. According to Mother, on the night of the incident she accompanied Father
to his place of work at a casino and consumed a significant amount of alcohol while
Father was working. Father drove the two home and, after picking up E.M. from a
babysitter, Mother and Father began to argue. When they arrived at their apartment,
Mother took E.M. from a car seat located in the back of the vehicle and moved to the
driver’s seat of the vehicle with E.M. in her arms. She then started the vehicle’s ignition
in an attempt to repark the vehicle. Father reacted by jumping into the front passenger
seat of the vehicle and attempting to place the vehicle back into park. In response,
Mother punched Father and Father called 911. During this interview, Mother denied that
Father ever struck, pushed or otherwise harmed her or E.M. and further expressed that
she was unsure why Father had been arrested since she believed Father was only trying to
stop her from driving while intoxicated.
When the social worker asked Mother about prior dependency proceedings
involving two other children, Mother reported that she had been trying to escape a
domestic violence situation and was ultimately unable to reunify with her other children
4 because she did not have a place to live. When asked about her alcohol consumption,
Mother reported that she did not drink often, but acknowledged that things often went
wrong when she did drink.
A social worker also interviewed Father at his home. Father confirmed that on the
night of the incident, Mother had become intoxicated while Father was working, Father
drove Mother to pick up E.M. from a babysitter, and he and Mother began to argue.
However, when they arrived home, Mother stated she no longer wished to live with
Father, carried E.M. into the driver’s seat of their vehicle, and started the vehicle’s
ignition. In response, Father got into the front passenger seat of the vehicle, told Mother
she could not drive because she was intoxicated. Mother repeatedly attempted to drive
the vehicle as Father repeatedly attempted to switch the vehicle’s gear back to park.
During this time, Father was on the phone with a 911 operator and Mother hit Father
several times. Father reported that he was initially arrested along with Mother because
sheriff’s deputies were uncertain whether Father had willingly permitted Mother to drive
while intoxicated. He expressed that he no longer had any desire to reunite with Mother,
intended to obtain a restraining order against Mother, and that he desired to regain
custody of E.M.
Father also provided the social worker with six videos taken from his cellphone
during the incident. The videos depicted (1) Mother intoxicated while in the driver’s seat
of a vehicle, simultaneously holding E.M. and attempting to drive; (2) Father attempting
to forcibly place the vehicle into park and pleading with Mother to stop; and (3) Mother
holding E.M. while simultaneously hitting, punching and biting Father.
5 2. Jurisdictional and Dispositional Report
According to the jurisdictional and dispositional report, two of E.M.’s half siblings
had previously been removed from Mother’s custody in September 2019 as the result of
Mother’s substance abuse and domestic violence. The juvenile court terminated
Mother’s reunification services in that proceeding in February 2021; and the case was
closed after the half siblings were able to reunify with their father in November 2022.
A social worker conducted a second interview with Mother in August 2023.
During this interview, Mother denied having a substance abuse problem and claimed that
she rarely consumes alcohol; but also acknowledged that she consumes alcohol when she
feels overwhelmed and that consumption of alcohol impairs her judgment. Mother
admitted that on the night of the incident for which she was arrested, she was intoxicated;
attempted to drive a vehicle while holding E.M. in her arms; and physically struck Father
while still holding E.M. in her arms; and at some point, E.M. fell from her arms onto the
ground. Mother further admitted that her relationship with Father involved domestic
violence; the incident for which she was arrested was not an isolated incident of domestic
violence; and that she likely has unresolved mental health issues requiring treatment.
When asked about the prior dependency case involving E.M.’s half siblings, Mother
claimed that she had previously successfully completed all her reunification services, but
was unable to reunify due to her inability to obtain adequate housing.
A social worker also conducted a second interview with Father. In this interview,
Father denied committing any acts of domestic violence against Mother and accused
Mother of being the abuser in their relationship. Father stated he had already engaged in
6 therapy and been taking parenting classes in preparation for seeking custody of E.M.
from Mother. Father stated he had obtained a restraining order against Mother; stated
that he does not intend to continue any relationship with Mother; and further stated that
his only interest was to regain custody of E.M.
3. Additional Information Report
According to the additional information report, Mother had been regularly
participating in a substance abuse program for approximately two months; had tested
negative on all drug screens during this program; and had obtained generally positive
feedback from the program counselor regarding her participation thus far. Social workers
had requested a progress report regarding Mother’s involvement in a domestic violence
program and individual therapy, but had not yet received a response from the service
provider.
The report also summarized an exchange between Mother and a social worker that
occurred approximately one week prior to the scheduled hearing date.4 During this
exchange, Mother was “hostile”; expressed the view that social workers were not
accurately reporting her progress in services; and complained that she was unable to work
full time as a result of the predisposition services and visitation schedule set by CFS. She
further complained that CFS failed to provide her with gas cards to reimburse her for the
cost of attending visits.
4 The documented exchange occurred on November 14, 2023, and the contested jurisdictional and dispositional hearing was conducted on November 20, 2023. 7 When the social worker attempted to address Mother’s complaints, Mother
repeatedly spoke over the social worker and would not allow the social worker to
respond. Mother expressed the view that it was the social worker’s job to make things
“easier” for Mother and that the social workers assigned to this case were not doing their
jobs. Mother expressed the same sentiment regarding the social workers in her previous
dependency case, claiming that her failure to reunify with E.M.’s half siblings resulted
from a social worker’s failure to secure adequate housing for Mother. When the social
worker attempted to explain that reunification required Mother to be proactive, Mother
began to angrily curse at the social worker. The social worker advised that she would
discontinue the call if Mother could not discuss matters respectfully and, in response,
Mother stated she no longer wished to speak with the social worker and abruptly ended
the call.
Finally, CFS provided documents from the dependency proceeding involving
E.M.’s half siblings. The documents included the petition filed on behalf of E.M.’s half
siblings alleging Mother’s inability to provide or protect as the result of Mother’s serious
substance abuse, untreated mental health issues, and permitting a boyfriend to perpetrate
acts of physical abuse on the children. The documents also included copies of minute
orders showing that: (1) the half siblings were removed from Mother’s custody after the
juvenile court found true the allegations of the petition; (2) the juvenile court terminated
reunification services after finding that Mother “failed to participate regularly and make
substantive progress in a court-ordered treatment plan.”
8 4. Mother’s Testimony
Mother testified at the hearing. Mother acknowledged that she was involved in a
prior dependency proceeding and explained that the reason for the dependency was
because she “was in a domestic violence situation.” Mother stated that she recently
completed two domestic violence courses in April and July 2023; had been participating
in individual therapy since July 2023; and had been participating in a substance abuse
program for approximately three months. Mother acknowledged that her substance abuse
program involved several additional months of engagement before completion, but stated
that she was committed to completing the program.
5. Findings and Disposition
Following the presentation of evidence, Mother argued that the bypass provision
of section 361.5, subdivision (b)(10) did not apply because she had made reasonable
efforts to treat the issues that led to removal of E.M.’s half siblings in the prior
dependency action.5 Mother did not address CFS’s recommendation that reunification
services be bypassed pursuant to section 361.5, subdivision (b)(7); did not request the
trial court grant reunification services despite the application of any bypass provision;
and did not request any findings on these issues.
The juvenile court found true the allegations of the petition as to Mother; ordered
E.M. removed from parental custody; and denied reunification services to Mother upon a
5 Specifically, Mother’s counsel argued that the “issue is whether ultimately [Mother] has made reasonable efforts to treat the issues that brought her before the Court in Riverside County.” 9 finding that the bypass provisions of section 361.5, subdivision (b)(7) and (b)(10)
applied. Mother appeals from this dispositional order.
III. DISCUSSION
A. General Legal Principles and Standard of Review
Generally, “[t]he juvenile court has broad discretion in crafting a disposition
pursuant to a child’s best interest” (In re Nada R. (2001) 89 Cal.App.4th 1166, 1179), and
a reviewing court “cannot reverse the juvenile court’s determination, reflected in the
dispositional order, of what would best serve the child’s interest, absent an abuse of
discretion.” (In re Ethan N. (2004) 122 Cal.App.4th 55, 64-65; In re A.E. (2019) 38
Cal.App.5th 1124, 1140-1141 (A.E.) [juvenile court’s decisions regarding provisions of
reunification services in dispositional order are generally subject to review for abuse of
discretion].) However, “[t]he abuse of discretion standard is not a unified standard; the
deference it calls for varies according to the aspect of a trial court’s ruling under review.
The trial court’s findings of fact are reviewed for substantial evidence, its conclusions of
law are reviewed de novo, and its application of the law to the facts is reversible only if
arbitrary and capricious.” (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711-712;
In re Miguel R. (2024) 100 Cal.App.5th 152, 165.)
With respect to the denial of reunification services at the dispositional stage, the
juvenile court’s discretion is statutorily limited. Under section 361.5, subdivision (a),
“[r]eunification services must be provided to the mother and statutorily presumed father
of children who have been removed from their parents’ custody, unless a statutory
exception applies. [citations.]” (In re A.E., supra, 38 Cal.App.5th at p. 1141; In re T.R.
10 (2023) 87 Cal.App.5th 1140, 1148 (T.R.); § 361.5, subd. (a).) The enumerated statutory
exceptions include circumstances in which (1) a sibling or half sibling has previously
been removed from the parent’s custody as the result of severe sexual or physical abuse
and the parent is not receiving reunification services with respect to the sibling or half
sibling (§ 361.5, subd. (b)(7)); and (2) a sibling or half sibling has been removed from
parental custody in a prior dependency proceeding, a court has ordered termination of
reunification services as a result of the parent’s failure to reunify in that prior proceeding,
and the parent has not subsequently made reasonable efforts to address the problems that
led to removal of the sibling or half sibling (§ 361.5, subd. (b)(10).)
If the juvenile court determines that the bypass provisions set forth in
section 361.5, subdivision (b)(7) or (b)(10) applies, it is statutorily prohibited from
ordering reunification services unless it also makes a countervailing finding that
reunification is in the best interest of the child. (§ 361.5, subd. (c)(2).) The relevant
social services department bears the initial burden of proving the threshold issue of
whether a bypass provision applies by clear and convincing evidence, while the parent
bears the burden to prove, by clear and convincing evidence, that a bypass provision
should be overridden because reunification would be in the best interest of the dependent
child. (In re T.R., supra, 87 Cal.App.5th at p. 1148; In re Jayden M. (2023) 93
Cal.App.5th 1261, 1272-1273 (Jayden M.).)
We proceed to consider each of Mother’s contentions on appeal. However, as we
explain, we find no abuse of discretion warranting reversal of the juvenile court’s
dispositional order denying Mother reunification services.
11 B. The Record Does Not Show the Juvenile Court Applied an Incorrect Legal Standard
Initially, we address Mother’s argument that the juvenile court applied the wrong
legal standard in determining the application of section 361.5, subdivision (b)(10).
Specifically, Mother argues that the evidentiary burden on this issue was improperly
placed upon her because she was required to show she had made progress since the
termination of reunification services as to E.M.’s half siblings. We conclude that this
argument is unsupported by the record.
We agree with Mother that under the plain language of section 361.5,
subdivision (b)(10), a showing that the parent “has not subsequently made a reasonable
effort to treat the problems that led to removal of the . . . half sibling of that child” is a
prerequisite to application of the statutory bypass provision (§ 361.5, subd. (a)) and, as a
result, CFS bears the burden to present evidence in support of such a finding. (In re T.R.,
supra, 87 Cal.App.5th at p. 1148 [“the department bears the burden of proving the
threshold issue of whether a bypass provision applies”].) Thus, if the juvenile court had
placed the evidentiary burden upon Mother to show she had made reasonable efforts in
order to disprove the application of section 361.5, subdivision (b)(10), doing so would
have been an abuse of discretion. (L.C. v. Superior Court (2024) 98 Cal.App.5th 1021,
1034-1035 [the juvenile court “abuses its discretion when it applies the wrong legal
standard”].) However, “[t]he general rule is that on a silent record the ‘trial court is
presumed to have been aware of and followed the applicable law’ when exercising its
discretion.” (Ruelas v. Superior Court (2015) 235 Cal.App.4th 374, 383; In re Julian R.
(2009) 47 Cal.4th 487, 498.)
12 Here, Mother has not identified anything in the record to suggest the juvenile court
misunderstood the law regarding the parties’ respective burdens at the dispositional
hearing. Instead, Mother cites to the arguments made by CFS and E.M.’s counsel at the
time of hearing. However, merely showing that an incorrect legal argument was
advanced by counsel at the time of hearing is not dispositive of the inquiry. It is the
juvenile court and not the relevant child welfare agency that “maintains ultimate control
over the delivery of services.” (In re Z.C. (2009) 178 Cal.App.4th 1271, 1287.) On a
silent record, we presume the juvenile court was aware of and followed the applicable
law and Mother has not met her burden on appeal to show the juvenile court abused its
discretion on this point.
C. Substantial Evidence Supports the Juvenile Court’s Order
We turn next to Mother’s contention that the juvenile court’s findings in support
of bypassing reunification services were not supported by substantial evidence.
Generally, “a trial court abuses its discretion when the factual findings critical to its
decision find no support in the evidence.” (In re Nicole H. (2016) 244 Cal.App.4th 1150,
1154.) And in reviewing this aspect of the juvenile court’s order, “we ask whether there
is sufficient evidence in the record that is reasonable, credible and of solid value—when
viewed in the light most favorable to the juvenile court’s determination—for a reasonable
trier of fact to conclude that the Department carried its burden by clear and convincing
evidence.” (In re Jayden M., supra, 93 Cal.App.5th at p. 1273.) However, we conclude
that Mother’s challenge to the juvenile court’s section 361.5, subdivision (b)(7) findings
have been forfeited and further conclude that, even in the absence of forfeiture, reversal is
13 not required because the juvenile court’s section 361.5, subdivision (b)(10) finding is
supported by substantial evidence.
1. Forfeiture
“In dependency proceedings, as elsewhere, a litigant forfeits an appellate argument
by failing to raise it before the trial court.” (In re D.P. (2023) 92 Cal.App.5th 1282,
1292-1293; In re S.B. (2004) 32 Cal.4th 1287, 1293.) The forfeiture rule has been
specifically applied where a parent fails to object to a recommendation that reunification
services be denied based upon a statutory bypass provision. (D.T. v. Superior Court
(2015) 241 Cal.App.4th 1017, 1034 [Because “[n]o party objected to the court’s use of
section 361.5, subdivision (b)(10)” to bypass reunification services, “any objection based
on the court’s use of the wrong statute has been forfeited”]; In re T.G. (2015) 242
Cal.App.4th 976, 984 (T.G.) [mother’s failure to object to application of bypass
provision at the time of disposition forfeited the issue on appeal].)
Here, the jurisdictional and dispositional report filed by CFS expressly
recommended that the juvenile court deny Mother reunification services based upon the
bypass provisions in both section 361.5, subdivision (b)(7) and (b)(10). Despite this,
Mother did not object to the recommendation with respect to section 361.5,
subdivision (b)(7) and did not address this point at the time of the dispositional hearing.
Even after the juvenile court stated its findings on the record, Mother did not raise the
issue, despite requesting modification of other orders. Given this record, we conclude
that Mother has forfeited her claim that the juvenile court’s findings pursuant to
section 361.5, subdivision (b)(7) are not supported by substantial evidence.
14 2. Merits
Even in the absence of forfeiture, we would conclude that reversal of the juvenile
court’s dispositional order is not warranted because its finding that the bypass provision
in section 361.5, subdivision (b)(10) is supported by substantial evidence in the record.
Under this bypass provision, the juvenile court is not required to order reunification
services if a sibling or half sibling of the dependent child has been removed from parental
custody, a court has ordered termination of reunification services as a result of the
parent’s failure to reunify with the sibling or half sibling, and the parent has not
subsequently made reasonable efforts to address the problems that led to removal of the
sibling or half sibling. (§ 361.5, subd. (b)(10).)
Here, CFS submitted copies of the dependency petition and minute orders related
to the dependency proceeding involving E.M.’s half siblings. Mother admitted in her
interviews with social workers that two of E.M.’s half siblings had been removed from
her custody and she was unable to reunify; and Mother did not dispute any of these facts
at the time of the hearing in this case. Thus, the evidence was clearly sufficient to show
that two of E.M.’s half siblings had previously been removed from Mother’s custody in a
prior dependency proceeding and that Mother’s reunification services were terminated in
that proceeding.
With respect to whether Mother has made subsequent reasonable efforts to address
the problems that prevented her from reunifying with E.M.’s half siblings, the evidence in
this case showed that E.M.’s half siblings were removed from Mother’s custody as the
result of both substance abuse and domestic violence; and that Mother’s reunification
15 services were terminated with respect to E.M.’s half siblings after the juvenile court
found that Mother “failed to participate regularly and make substantive progress in a
court-ordered treatment plan”. However, even after the incident in which Mother was
arrested for attempting to drive a vehicle while intoxicated and holding E.M. in her arms,
Mother repeatedly denied to social workers that she struggled with substance abuse, and
instead repeatedly expressed her view that her inability to reunify in the prior dependency
proceeding was solely the result of her failure to obtain adequate housing. Further, while
the record shows that Mother voluntarily engaged in domestic violence classes and
individual therapy in April and July 20236, she did not participate in any programs
attempting to address the issue of substance abuse until more than two years after
reunification services were terminated in the prior proceeding and after E.M. was
detained in this proceeding, resulting in only three months of services related to this issue
by the time of the dispositional hearing.
In light of Mother’s failure to acknowledge substance abuse as one of the primary
reasons for the removal of E.M.’s half siblings from her custody; Mother’s repeated
denial that she struggles with substance abuse even during the course of the present
dependency proceeding; and Mother’s belated attempt to participate in a substance abuse
treatment program, the juvenile court could reasonably conclude that Mother had not
made reasonable efforts to address the problems that previously led to the removal of
E.M.’s half siblings from her custody. (Jennifer S. v. Superior Court (2017) 15
6 We observe that even then, these efforts occurred more than two years after termination of reunification services as to E.M.’s half siblings. 16 Cal.App.5th 1113, 1121-1122 (Jennifer S.) [juvenile court may conclude that a parent has
not made sufficiently reasonable efforts to address the problem where no efforts were
made until after the birth and detention of the parent’s most recent child].) Thus, we
conclude that substantial evidence supports the juvenile court’s finding that the bypass
provision in section 361.5, subdivision (b)(10) applied.
Further, “only one valid ground is necessary to support a juvenile court’s decision
to bypass a parent for reunification services.” (In re Madison S. (2017) 15 Cal.App.5th
308, 324; Jennifer S., supra, 15 Cal.App.5th at p. 1121 [“only one valid ground is
necessary to uphold the juvenile court’s bypass decision”]; In re T.G., supra, 242
Cal.App.4th at p. 986 [same].) Thus, even in the absence of forfeiture regarding
Mother’s claim that the juvenile court’s section 361.5, subdivision (b)(7) finding is
unsupported by substantial evidence, it is unnecessary to reach the merits of Mother’s
contention regarding this finding7 and we would affirm the juvenile court’s order denying
reunification services to Mother.
D. Mother Has Forfeited Her Claim that Reunification Services Should Have Been
Granted in the Best Interests of E.M.
Finally, Mother contends that even if substantial evidence in the record supports a
finding that a bypass provision applies in this case, the juvenile court should have granted
7 We acknowledge that on appeal, CFS concedes that section 361.5, subdivision (b)(7) is inapplicable. Ultimately, we need not reach the issue because this concession does not impact the disposition in this case. 17 reunification services to her because doing so would be in the best interests of E.M. We
conclude that this argument has been forfeited for failure to raise the issue below.
Under section 361.5, subdivision (c)(2), the juvenile court may order reunification
services despite the application of a bypass provision if the juvenile court finds, by clear
and convincing evidence, that reunification is in the best interest of the child. (§ 361.5,
subd. (c)(2).) However, the parent bears the burden of showing the best interest of the
child triggering the application of this provision. (In re T.R., supra, 87 Cal.App.5th at
p. 1148; In re Jayden M., supra, 93 Cal.App.5th at pp. 1272-1273.) At least once Court
of Appeal has observed that “[t]his subdivision becomes relevant only if . . . the juvenile
court contemplates exercising its discretion to order services” and the juvenile court is
not required to make any findings related to this subdivision if it does not consider
provision of reunification services. (R.T. v. Superior Court (2012) 202 Cal.App.4th 908,
913, fn. 3.)
Here, the record shows that the only argument advanced by Mother at the time of
the contested dispositional hearing was that the bypass provision of section 361.5,
subdivision (b)(10) did not apply. Mother did not request that the juvenile court consider
granting reunification services despite the application of a bypass provision; did not argue
that the evidence supported a finding that reunification services would be in the best
interest of E.M.; and did not request the juvenile court make any findings under section
361.5, subdivision (c)(2). Consequently, the juvenile court never reached the issue and
made no findings under this subdivision. Given this record, we must conclude that
Mother’s argument has been forfeited on appeal.
18 Nor does this case present a circumstance in which we should exercise our
discretion to reach the merits of the issue. The determination of whether reunification
services should be offered despite the application of a statutory bypass provision is a
matter within the juvenile court’s discretion based upon weighing numerous factors. (See
In re Jayden M., supra, 93 Cal.App.5th at pp. 1272-1273.) Review of this aspect of a
juvenile order requires a reviewing court to evaluate whether the juvenile court’s factual
findings are supported by substantial evidence (See In re A.E., supra, 38 Cal.App.5th at
pp. 1140-1145) and whether the juvenile court’s weighing of those factors in reaching its
ultimate determination was arbitrary and capricious. (In re G.L. (2014) 222 Cal.App.4th
1153, 1166-1167 [juvenile court may order reunification services despite competing
evidence on the issue].) This court cannot conduct such an analysis where the juvenile
court was never asked to make any factual findings related to the matter and never asked
to exercise its discretion in the first instance. Thus, we decline to reach the merits of this
argument and instead apply the general rule of forfeiture to this claim on appeal.
19 IV. DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS J.
We concur:
McKINSTER Acting P. J.
RAPHAEL J.