S.V. v. Superior Court of San Bernardino Cnty.

239 Cal. Rptr. 3d 411, 28 Cal. App. 5th 671
CourtCalifornia Court of Appeal, 5th District
DecidedSeptember 24, 2018
DocketE070931
StatusPublished
Cited by3 cases

This text of 239 Cal. Rptr. 3d 411 (S.V. v. Superior Court of San Bernardino Cnty.) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
S.V. v. Superior Court of San Bernardino Cnty., 239 Cal. Rptr. 3d 411, 28 Cal. App. 5th 671 (Cal. Ct. App. 2018).

Opinion

McKINSTER, Acting P. J.

*673Petitioner S.V. (mother) filed a petition for extraordinary writ pursuant to California Rules of Court, rule 8.452 (8.452), challenging the juvenile court's denial of reunification services under Welfare and Institutions Code 1 section 361.5, subdivision (b)(3), and setting a section 366.26 hearing. Mother argues the court erred in applying section 361.5, subdivision (b)(3), to bypass reunification services with regard to her child, M.C. (the child). We disagree and deny mother's petition.

*413PROCEDURAL BACKGROUND

Prior Dependency

In November 2016, the San Bernardino County Children and Family Services (CFS) filed a section 300 petition on behalf of the child, who was a newborn at the time. The petition alleged that she came within section 300, subdivisions (a) (serious physical harm), (b) (failure to protect), and (j) (abuse of sibling). It specifically alleged that, while in mother's care, the child's half-sibling, D.C., sustained injuries including a second degree burn on his foot, a fractured skull, and a broken leg ; thus, the child was at risk for severe physical harm.2 The court found that the child came within the provisions of section 300, subdivisions (a), (b), and (j). On December 14, 2016, the court declared the child a dependent, removed her from the custody of mother and father (the parents), and placed her in the home of paternal relatives. The court ordered reunification services for the parents.

The court held a six-month review hearing on July 31, 2017, and found that the parents had made substantial progress in their services and ordered the child to be returned to their custody, under a plan of family maintenance. On January 31, 2018, the parents reunified with the child, and the court dismissed the case.

Current Dependency

A few months later, on April 5, 2018, CFS filed another section 300 petition on behalf of the child. The petition alleged that she came within section 300, subdivisions (b) (failure to protect) and (j) (abuse of sibling). It specifically alleged that mother knew or reasonably should have known that *674her live-in boyfriend, father, was physically abusing his children, and she did not take any actions to protect the child.

On June 27, 2018, CFS filed an amended petition with different supporting allegations. The amended petition alleged that mother "used escalating violence toward" two of the child's half siblings. Her actions included pulling them by the ears and dropping them, grabbing one child by the shirt and throwing him to the floor, slapping the other child in the face, as well as hitting her on the hand with hangers, which caused her to bleed. These actions placed the child at risk of similar abuse. The amended petition also alleged the court found allegations of physical abuse against the child's half sibling, D.C., true in the prior dependency, which was dismissed after mother successfully reunified with him. However, he was again removed on April 3, 2018, due to similar allegations of physical abuse of the child's other half siblings. On July 3, 2018, the court detained the child in foster care.

On July 13, 2018, the court held a contested jurisdiction/disposition hearing. It found that the child came within section 300, subdivisions (b) and (j), declared her a dependent, and removed her from the parents' custody. Mother's counsel requested reunification services and argued that the bypass provision under section 361.5, subdivision (b)(3), did not apply. He acknowledged that the child was previously removed and returned to mother's custody, and that she has now been removed again due to physical abuse. However, he argued that the bypass provision did not apply since the physical abuse did not happen to the child. Under his reading of the statute, the additional abuse had to have occurred to the particular child that was being removed, *414not to other children in the home. County counsel disagreed with mother's counsel's view that it had to be the same child that was physically abused. He asserted that section 361.5, subdivision (b)(3), says a child or sibling of the child must have been previously adjudicated a dependent as a result of physical or sexual abuse, which was the case here. The child was previously removed and was now being removed again, due to additional physical or sexual abuse. County counsel further argued that it was not in the child's best interest to grant services since mother recently completed services in the prior case, and within a few months, the instant case arose. County counsel concluded that mother had obviously failed to benefit from services and asserted that it was unclear what more could be done to ensure the child would be safe in her custody.

After hearing argument from counsel, the court found that the case involved serious physical harm under section 361.5, subdivision (b)(6). The court also noted that this was not the mother's first dependency, that her children were recently returned, and within a few months of the dismissal of the prior case the instant petition was filed alleging significant physical abuse.

*675As to section 361.5, subdivision (b)(3), the court noted that the parties discussed the plain language of the statute. It observed that the child was previously removed because of physical abuse, not to her but her half-sibling, and she was at risk of severe physical abuse. The court stated that the child was being removed again due to physical abuse, but the statute "does not indicate that the abuse-either the initial abuse or the second abuse has to be to this child." The court concluded that section 361.5, subdivision (b)(3), applied. Therefore, it declared the child a dependent, removed her from the parents' custody, and denied mother services under section 361.5, subdivision (b)(3). The court also found that it was not in the child's best interest to reunify and set a section 366.26 hearing.

ANALYSIS

The Court Properly Applied Section 361.5, Subdivision (b)(3), to Bypass Reunification Services

Mother contends that the juvenile court erred in denying her reunification services under section 361.5, subdivision (b)(3), since it did not apply here. She argues that, pursuant to the plain language of the statute, it only applies when the minor who was previously removed and subsequently returned has been the victim of physical or sexual abuse by the parent. Specifically, she states that the child's initial removal did not have to be the result of any abuse perpetuated on her; however, upon return and subsequent removal, the additional abuse must have been perpetuated on the child in order for the bypass provision to apply. We disagree.

Mother presents a question of law that we consider de novo. ( Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 300-301, 55 Cal.Rptr.3d 647

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Cite This Page — Counsel Stack

Bluebook (online)
239 Cal. Rptr. 3d 411, 28 Cal. App. 5th 671, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sv-v-superior-court-of-san-bernardino-cnty-calctapp5d-2018.