Filed 10/19/16; pub. order 11/17/16 (see end of opn.)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re Z.G. et al., Persons Coming Under the
Juvenile Court Law.
ORANGE COUNTY SOCIAL SERVICES
AGENCY,
G053232
Plaintiff and Respondent,
(Super. Ct. Nos. DP025984,
v. 15DP0044)
Z.G. et al., OPINION
Real Parties in Interest and Appellants;
C.G. et al.,
Defendants and Appellants.
Appeal from orders of the Superior Court of Orange County, Gassia
Apkarian, Judge. Affirmed in part and reversed in part.
Leslie A. Barry, under appointment by the Court of Appeal, for Real Parties
in Interest and Appellants Z.G. and I.L.
Michele Anne Cella, under appointment by the Court of Appeal for
Defendant and Appellant C.G.
Marsha F. Levine, under appointment by the Court of Appeal for Defendant
and Appellant H.L.
Leon J. Paige, County Counsel, Karen L. Christensen and Aurelio Torre,
Deputy County Counsel, for Plaintiff and Respondent.
* * *
Orange County Social Services Department (SSA) sought to remove Z.G.
and I.L. (Children) from the custody of their parents (Parents), C.G. (Mother) and H.L.
(Father), after Children’s sibling, H.L., Jr. (Junior), died. The juvenile court found
Parents’ “neglect” was a cause of Junior’s death. (Welf. & Inst. Code, §§ 300, subd. (f),
361.5, subd. (b)(4); all further statutory references are to this code.) Even so, and
although Parents essentially did nothing to move the family towards reunification, the
court found reunification was in the “best interest” of Children. (§ 361.5, subd. (c).)
Parents appeal from the jurisdiction and disposition orders and argue there
is insufficient evidence to support the court’s finding their neglect was a cause of Junior’s
death. Thus, they contend the court erred by concluding Children were subject to
jurisdiction under section 300, subdivision (f), and that Parents were subject to the
reunification services bypass provisions of section 361.5, subdivision (b)(4).
Children appeal from the disposition order and contend there is insufficient
evidence to support the finding reunification with Parents is in the best interest of
Children. Hence, they argue, the court abused its discretion by ordering reunification
services for Parents under section 361.5, subdivision (c). SSA joins in this argument.
We conclude there is sufficient evidence to support the court’s finding
Parents’ neglect was a cause of Junior’s death, but there is insufficient evidence to
support the court’s finding reunification with Parents was in Children’s best interest.
Therefore the court abused its discretion by ordering reunification services for Parents.
Consequently, we will reverse that portion of the disposition order, but affirm the
jurisdiction and disposition orders in all other respects.
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FACTS AND PROCEDURAL HISTORY
1. Removals and Petitions
Seven-month-old Junior died on March 9, 2015, while sleeping in a bed
with Mother and Z.G. Mother found his body wedged between the bed, a pillow and a
rolling portable desk. The coroner later determined Junior died from positional asphyxia,
and ruled his death was an accident.
Twenty-two-month-old Z.G. was taken into protective custody the day
Junior died. SSA then filed a juvenile dependency petition on her behalf. The petition
alleged: Z.G. was at risk of physical harm as a result of Mother’s failure to protect and
inability to care for Z.G. (§ 300, subd. (b)), all due to Mother’s unresolved substance
abuse and mental health problems, and her criminal conviction history, including child
abuse; and Mother caused Junior’s death (§ 300, subd. (f)).
At an initial detention hearing on March 13, the court: found there was a
prima facie showing Z.G. was a person within section 300 and should be detained by
SSA; ordered SSA to provide reunification services to Parents; made temporary
placement, visitation and drug testing orders; and set a combined jurisdiction and
disposition trial.
Nine months later I.L. was born and tested positive for methamphetamine,
and Mother tested positive for amphetamine, methamphetamine and marijuana. SSA
took I.L. into protective custody and filed a juvenile dependency petition. The petition
alleged: I.L. was at risk of physical harm as a result of Parents’ failure to protect and
inability to care for her (§ 300, subd. (b)) due to their unresolved substance abuse and
mental health problems, and their criminal histories; Parents caused Junior’s death
(§ 300, subd. (f)); Parents were not participating in counseling services or drug testing
(§ 300, subd. (j)), as ordered in Z.G.’s case; and Parents were not consistently visiting
with Z.G.
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At an initial detention hearing on December 16, the court: found the
petition made a prima facie showing I.L. was a person within section 300 and ordered
I.L. detained; ordered SSA to provide reunification services to Parents; again made
temporary placement, visitation and drug testing orders; and set a combined jurisdiction
and disposition trial with Z.G.
2. SSA Reports
Almost a year elapsed between the initial detention of Z.G. and the
jurisdiction and disposition trial for Z.G. and I.L. In that time SSA prepared eighteen
reports which were ultimately admitted into evidence and considered by the court at trial.
The salient portions of the SSA reports are summarized below.
a. Prior Child Abuse and Neglect Reports
There had been numerous prior child abuse and neglect reports concerning
the family, mostly pertaining to Mother’s substance abuse. For example, an August 2014
report noted Mother had used both methamphetamine and marijuana while she was
pregnant with Junior.
A December 2014 report noted Mother and Father had been riding in a car
driven by a third person. Mother was holding Z.G. in her arms, instead of securing her in
a car seat. The driver possessed methamphetamine and Mother marijuana, and both
drugs were within reach of Z.G. Mother was arrested for possession of marijuana and
child endangerment and was ordered to attend a 52-week child abuse program and a six-
month parent education program.
b. Death of Junior
An investigation into the circumstances of Junior’s death revealed that
around 2:30 p.m. on Saturday, March 7, 2015, Mother smoked methamphetamine after
she returned home from a court ordered parenting class for the criminal case. Mother did
not sleep at all that night or the next day.
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About 9:00 p.m. on Sunday, Parents put Z.G. and Junior in Mother’s bed
for the night. They had another bed and a crib for the kids but often did not use them.
Around 10:00 p.m., Mother smoked concentrated cannabis wax.
Around 1:00 a.m. on Monday, March 9, Mother and Father went to sleep in
the bed with Junior and Z.G. Around 6:00 a.m., Father put Junior back in the bed, on his
side, between Mother and the wall. Father woke Mother, told her both children were in
bed with her, and then left for work. When Mother woke about 8:30 a.m. she found
Junior face down at the end of the bed, purple and not breathing.
c. Reunification Services
At the detention hearings in March and December 2015, the court ordered
reunification services. The case plan and services included drug treatment, individual
counseling, and parenting and child abuse programs. Mother said she had started her
previously ordered child abuse and parent education programs but never provided proof
of enrollment for either. Father had been terminated from his previously ordered
parenting program due to absences. Mother attended only a few of her individual
counseling sessions and Father never participated in individual counseling.
d. Mental Health, Substance Abuse, Testing and Treatment
Mother has a substantial mental health history, including bipolar, manic-
depression, depression, and cutting issues. Mother admitted she had not taken her
prescribed medications for over three years.
Mother also has a substantial illegal substance abuse history, including
methamphetamine, cocaine, and marijuana use. Mother started using marijuana regularly
when she was 15, and at times had a medical marijuana card. She admitted she had used
methamphetamine while pregnant with both Z.G., and Junior.
Two days after Junior died, Mother acknowledged methamphetamine and
marijuana had been found in her system, but denied she had used those drugs. The next
day Mother admitted she had used marijuana the night before, but still claimed she had
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not used methamphetamine, and insisted she was not an addict and was not under the
influence when Junior died.
Father admitted using marijuana and “occasionally” methamphetamine, but
denied knowing Mother used methamphetamine while she was pregnant.
At both detention hearings, the court ordered Parents to submit to random
drug testing and encouraged Parents to participate in drug treatment. SSA suggested
twice weekly self-help (Alcoholics Anonymous/Narcotics Anonymous) meetings and a
drug treatment program.
Mother tested positive for marijuana seven times and missed two tests in
March and April 2015. Father also missed two tests but otherwise tested negative in
March and April. In May, both Parents stopped drug testing altogether, because, as
Mother said: “The whole thing is just pissing me the hell off now.” Mother never
enrolled in a drug treatment program, and neither Parent ever participated in any 12-step
meetings.
e. Placements and Visitation
Z.G. was initially placed in a group home, and was moved to a foster home
in October 2015. I.L. was placed directly in the same foster home as Z.G. when she was
released from the hospital in December, and both Children remained there together until
the time of the trial in February 2016.
At Z.G.’s detention hearing in March 2015, the court ordered monitored
visits for Parents, for a minimum of six hours per week. Parents agreed to visit three
times a week, for two hours per visit.
At first Parents visited Z.G. consistently and it appeared Z.G. was
“attached” to them. Father continued to visit consistently through April and May 2015,
but Mother started missing visits, and at one point Father reported Mother was “no longer
interested” in visiting Z.G.
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In late May, Mother resumed visiting Z.G., but from then on she and Father
both cancelled many scheduled visits. As a result, they only visited Z.G. a few times
each month from May to December.
After I.L. was detained in December, Mother’s visitation was increased to
eight hours per week. Parents did not visit Children at all between January 7, 2016 and
February 4, when Mother appeared to be under the influence.
When Parents did visit Z.G., their visits went well. Mother was attentive,
nurturing, and appropriate. Z.G. did not always go to her immediately, but smiled and
welcomed her hugs. Z.G. once asked, “did my mommy die?” At one visit, Z.G. said she
did not want to go away from Mother. Mother was sometimes overly emotional during
the visits.
f. SSA Recommendations
In November and December 2015, SSA recommended the court sustain the
Z.G. petition, remove Z.G. from parental custody, and provide reunification services.
SSA continued to make these same recommendations, even after I.L. was born, and
despite Parents’ lack of progress toward reunification.
However, in January 2016, SSA changed its position, recommending the
court sustain the petitions, declare Children dependents, remove them from parental
custody, bypass reunification services under section 361.5, subdivision (b)(4), and set a
selection and implementation hearing.
A social worker explained the change was based on Junior’s death, which
was a product of: “[M]other’s altered state as a result of lack of sleep and being under
the influence”; and Father’s decision “to leave the children in [M]other’s care despite her
substance abuse and lack of sleep.”
3. Trial Evidence
The petitions were tried together in February 2016. Parents both failed to
appear, but were represented by counsel. The court admitted the SSA reports into
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evidence. The only witness who testified was Shelley Manzer, the social worker who
prepared the SSA reports.
Manzer testified she was the dependency investigator in both cases from
the initial detentions through the time of trial. Manzer recommended the court bypass
reunification services for both Parents.
Manzer felt Junior’s death was caused by Parents’ neglect. She opined
Mother was neglectful by cosleeping with the children while under the influence of
drugs. Manzer believed Mother’s recent use of methamphetamine and potent
concentrated cannabis wax, together with Mother’s lack of sleep for two days, had left
her in an altered state that contributed to Junior’s death.
Manzer noted Junior died after he rolled over onto his stomach. He was
found face down at the foot of the bed. He “would have had to pass . . . [M]other in order
to get over there. And if she didn’t wake up to his movements or his cries because of an
altered state, either being too tired or under the influence, that that could have resulted in
how [Junior] passed away.”
Manzer did not assume a “stone-sober mother” would have woken up, but
she knew cosleeping was not safe, and opined being under the influence of drugs would
exacerbate the risk. Manzer had no “hard evidence” Mother was under the influence
when Junior died, and did not know how long the drugs would have stayed in Mother’s
system, but said the drug use “could have played a role.”
Manzer testified Father’s neglect also contributed to Junior’s death. She
believed Father failed to protect Junior from Mother’s drug use. She noted Father left
Junior and Z.G. with Mother, despite knowing Mother had used methamphetamine and
marijuana and had not slept for two nights. Manzer later testified Father only admitted he
knew Mother had used marijuana.
Manzer explained her reunification services recommendations changed
after conferring with her supervisor and county counsel, reevaluating Z.G.’s case, and
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conducting a full investigation in I.L.’s case. While her understanding of the
circumstances of Junior’s death had not changed, Parents had been “extremely
inconsistent” in their visitation, and they had not engaged in any reunification services,
plus I.L. had been born drug exposed.
4. Trial Court Findings and Rulings
The court found the jurisdiction allegations true under section 300,
subdivision (b) (failure to protect Z.G. and I.L.), section 300, subdivision (f) (death of
Junior through neglect), and section 300, subdivision (j) (abuse of Z.G. - failure to
participate in reunification services, I.L. petition only). The court also found the
reunification service bypass provisions of section 361.5, subdivision (b)(4) (death of
Junior through neglect) applied; Parents’ progress toward alleviating or mitigating the
causes necessitating placement was “none”; continued placement was “necessary and
appropriate”; and SSA had complied with the case plan.
The court expressed hesitation regarding the section 300, subdivision (f)
finding. It noted the coroner had ruled Junior’s death was an accident, and it did not
know if Mother was still under the influence at the time Father put Junior back in the bed.
The court further explained, “[t]here’s a lot of dots I have to connect between mom and
that dead child.” But after extended discussion and careful consideration, the court
specifically found Parents’ neglect and drug use were “substantial or contributing . . .
sufficient” causes of Junior’s death.
However, the court then found reunification was in the best interest of
Children and ordered SSA to provide reunification services to Parents under section
361.5, subdivision (c). The court explained, “To expect parents who lost a child to death
to deal with their grieving process and expect them to just stand up and go to parenting
programs and drug programs I think is next to impossible. [¶] . . . [¶] At the end of the
day, the best parents would be the biological parents or the presumed father and
biological mother of any child. [¶] And the court does not feel that it is fair to size them
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up immediately after they’ve lost a seven-month-old child to death. People who don’t
have drug problems can start a drug habit once they’re faced with the death of a child.
[¶] So I am going to make the finding by clear and convincing evidence that pursuant to
[section] 361.5 [subdivision] (b)(4), even though the court shall not provide services,
there is clear and convincing evidence that it is in the best interests of the two surviving
siblings for parents to receive services for purposes of reunification. And I don’t think
it’s asking much to give these parents another chance. It’s just not.”
DISCUSSION
1. There is Sufficient Evidence Parents’ Neglect Was A Cause of Junior’s Death.
Parents contend the court erred by concluding Children were subject to
jurisdiction under section 300, subdivision (f) (section 300(f)), and Parents were subject
to reunification services bypass under section 361.5, subdivision (b)(4) (section
361.5(b)(4)), all because there is insufficient evidence to support the court’s finding
Parents’ neglect was a cause of Junior’s death. Specifically, Mother argues there is
insufficient evidence to support the court’s finding Parents’ actions or omissions were a
“substantial factor” in Junior’s death, or to show that “but for” those actions or omissions,
Junior would not have died. Father insists the causation evidence was speculative at best,
not clear and convincing as required by section 361.5(b)(4), and thus it cannot support the
finding Junior’s death was caused by Parents’ neglect. We are not persuaded.
The substantial evidence standard of review applies to the jurisdiction
findings under section 300(f), and the reunification services bypass findings under section
361.5(b)(4). (In re Mia Z. (2016) 246 Cal.App.4th 883, 891 (Mia Z.); In re Harmony B.
(2005) 125 Cal.App.4th 831, 843.) “Under this test, we resolve all conflicts in the
evidence, and indulge all reasonable inferences that may be derived from the evidence, in
favor of the court’s findings. [Citation.]” (Mia Z., at p. 891.)
Section 300(f) provides a child is subject to the jurisdiction of the juvenile
court and may be declared a dependent, when: “The child’s parent or guardian caused
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the death of another child through abuse or neglect.” Similarly, section 361.5(b)(4) states
reunification services need not be provided to a parent or guardian when the court finds,
by clear and convincing evidence “[t]hat the parent or guardian of the child has caused
the death of another child through abuse or neglect.”
The word “caused” as used in section 300(f) has the commonly understood
meaning found in both criminal and civil law. (In re Ethan C. (2012) 54 Cal.4th 610,
639-640 (Ethan C.).) “Nothing in the plain language, or the history, of section 300(f)
suggests the Legislature had a more restrictive concept of ‘cause[]’ in mind for purposes
of that statute.” (Id., at p. 640.) The same is equally true with respect to the word
“caused” as used in section 361.5(b)(4).
“One’s wrongful acts or omissions are a legal cause of injury if they were a
substantial factor in bringing it about. [Citations.] If the actor’s wrongful conduct
operated concurrently with other contemporaneous forces to produce the harm, it is a
substantial factor, and thus a legal cause, if the injury, or its full extent, would not have
occurred but for that conduct. Conversely, if the injury would have occurred even if the
actor had not acted wrongfully, his or her conduct generally cannot be deemed a
substantial factor in the harm. [Citations.]” (Ethan C., supra, 54 Cal.4th at p. 640; see
Mia Z., supra, 246 Cal.App.4th at p. 892. “Moreover, the ‘substantial factor test’
subsumes the ‘but for’ test.” (Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1052.)
These causation principles were discussed and applied in Mia Z. There,
“Destiny [the child] walked away from Mother’s apartment and ended up about 120 feet
away, in a well-trafficked alley fronting a commercial parking lot. While Destiny was
standing in the alley, a heavy metal rolling gate at the access to the parking lot fell off its
track and landed on Destiny, striking her in the head,” and killing her. (Mia Z., supra,
246 Cal.App.4th at p. 885.)
Destiny’s mother argued the evidence was not sufficient to support the
jurisdictional finding, “because, while it undisputedly showed a lack of parental
11
supervision at the time of Destiny’s death, it did not show that this lack of parental
supervision ‘caused’ Destiny’s death within the meaning of section 300, subdivision (f)
in that it did not show that the lack of parental supervision was a ‘substantial factor’ in
causing the child’s death.” (Mia Z., supra, 246 Cal.App.4th at p. 891.)
The court disagreed and explained: “In actuality Mother’s neglect was that
she allowed her three-year-old child to walk away unattended from the family home, thus
exposing her to dangers of all kinds. That is, she did not keep an eye on her child at the
family home in the first instance. [¶] . . . [¶] Mother’s neglect . . . was a substantial
factor, along with Destiny’s own locomotion, and along with the children who pushed
down the gate, in causing her death. Mother’s argument . . . focuses too much on the end
event causing Destiny’s death, and ignores that there may be multiple concurrent causes
of an end event. [Citation.] Mother’s causation argument fails because it overly focuses
on the specific instrumentality of Destiny’s death, the falling gate, and ignores that
Mother’s conduct put Destiny on the path to be in the place where that instrumentality
was ultimately applied. In answering the question of what elements contributed to cause
Destiny’s death, it is appropriate to look at the entire chain of events leading to her death,
not merely the final event directly causing her death. . . . The evidence in the record
supports a finding of factual, ‘but for,’ causation between Mother’s negligent supervision
and her daughter’s death.” (Mia Z., supra, 246 Cal.App.4th at pp. 891-892.)
Much the same can be said regarding the causation evidence here. Parents’
neglect was putting seven-month-old Junior in the same bed with Parents and 22-month-
old Z.G., instead of putting him in his crib in the first instance, thus exposing him to
dangers of all kinds. As Manzer testified based upon her training, infant cosleeping is not
safe because, “you run the risk of potentially rolling over on your child or extra blankets
or pillows that could potentially suffocate the child.”
Plus, the ordinary risks of cosleeping were magnified by the undisputed
links in the chain of events leading to Junior’s death. Mother had not slept for two days,
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after using methamphetamine. She had also used concentrated cannabis wax, a potent
form of marijuana, the night before Junior died. It is reasonable to infer, as Manzer
testified, these circumstances left Mother in an “altered state.” Father, aware of these
circumstances, still put Junior back in the bed with Mother and Z.G and left.
Thus, substantial evidence supports the finding Parents’ neglect was a
substantial factor, along with Junior’s own locomotion, in causing his death. Regardless
of the specific instrumentality of his death, positional asphyxia, Parents’ conduct put him
on the path to be in the place where that instrumentality was ultimately applied, under
circumstances which increased the risk that instrumentality would in fact be applied. In
short, Junior’s death would not have occurred “but for” Parents’ neglect.
Our conclusion obtains regardless of whether Mother was or was not under
the influence of illegal drugs at the time of Junior’s death. It may be reasonable to infer,
as Manzer testified, these things “could have played a role.” But we need not do so
because the undisputed evidence in the record supports the factual finding of causation
between Parents’ neglect and Junior’s death.
The two infant cosleeping cases cited by Mother do not compel a contrary
conclusion. In re A.M. (2010) 187 Cal.App.4th 1380 (A.M.) and In re Ashley B. (2011)
202 Cal.App.4th 968 (Ashley B.) both held substantial evidence supported the trial courts’
findings the parents’ neglect was the cause of the infant’s death while cosleeping.
In A.M., six-day-old James died, while sleeping in the same bed as his
father, D.M., his mother, Tiffany, and his brother, Gavin M. (A.M., supra, 187
Cal.App.4th at pp. 1382, 1384-1385.) D.M. challenged the sufficiency of the evidence to
support the court’s jurisdictional findings under section 300(f).
The court rejected this challenge and explained: “Here, there is sufficient
evidence to support the [trial] court’s findings. . . . D.M. stated that when he was in the
family bed, he ‘pushed’ James as far as he could toward Tiffany in hopes that she would
wake up and attend to James’s crying. D.M. later admitted he heard James struggling to
13
breathe and that James was not breathing normally. . . . As the trial court stated, D.M.
recognized there was a risk to James and he had the ability to ‘qualify, quantify and
assess the risk, and, more importantly, [was] in a position and [had] the means to
intervene.’ D.M., however, did not intervene even though he heard James struggling to
breathe. The evidence is sufficient to support the juvenile court’s finding that D.M.
caused the death of James through neglect.” (A.M., supra, 187 Cal.App.4th at p. 1388.)
Mother contends A.M. “provides the kinds of facts necessary to show ‘but
for’ causation—facts that are missing in this case.” She further maintains “A.M.
demonstrates a situation where, but for the father’s failure to intervene when he heard the
baby’s labored breathing, the baby would not have died.”
We agree the facts in A.M. are different than the facts in this case, but we
do not agree different facts necessarily lead to different results. Nothing in A.M. or any
of the cases cited in A.M. suggests causation cannot be found in other facts, like the facts
in this case. Nor could it be so. Rather, this case, like Mia Z., merely represents a
straightforward application of the causation principles outlined in Ethan C.
Mother points to one final distinction between this case and A.M. She
notes: “[T]he coroner in the instant case did not cite ‘overlay’ as a cause of death; thus,
the cause of death was not [Mother’s] act of rolling over onto Junior, but the fact that
Junior moved himself into a position that caused him to suffocate.”
This argument, like the mother’s argument in Mia Z., “focuses too much on
the end event causing [the] death, and ignores that there may be multiple concurrent
causes of an end event. [Citation.]” (Mia Z., supra, 246 Cal.App.4th at p. 892.) To
paraphrase Mia Z., it “fails because it overly focuses on the specific instrumentality of
[Junior’s] death, [positional asphyxia], and ignores that Mother’s conduct put [Junior] on
the path to be in the place where that instrumentality was ultimately applied.” (Ibid.)
In Ashley B., one-month-old Jose died, while sleeping in the same bed as
his father, his mother, and his sister, Ashley. (Ashley B., supra, 202 Cal.App.4th at pp.
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970-971.) Ashley’s mother argued the juvenile court erred when it sustained a
jurisdiction finding under section 300, subdivision (j) (abuse or neglect of sibling) based
on the circumstances leading to the death of Jose. (Id. at p. 970.) Specifically, the
mother argued substantial evidence did not support the trial court’s implied determination
she was abusive or neglectful in connection with Jose’s death. (Id. at p. 982.)
The court of appeal rejected these arguments and noted: “The evidence
before the juvenile court showed that mother and father ignored the discharging
hospital’s instructions that Jose, a premature infant who had suffered from sleep apnea
while hospitalized, should be placed to sleep in his crib on his back. Both [family
services] and the coroner noted that Jose’s crib was broken . . . . This evidence was
sufficient to support a conclusion that neither mother nor father was ensuring that Jose
was put to bed safely.” (Ashley B., supra, 202 Cal.App.4th at p. 982.)
Mother contends “Ashley B. presents a scenario where the baby died in a
very similar way even without evidence the parents used drugs. Hence the parents’ drug
use cannot be a ‘but for’ cause of Junior’s death.” We agree Junior died in a similar way,
and Mother’s drug use alone cannot be the but for cause of his death. But Mother’s drug
use and lack of sleep, together with Father’s awareness of these events, and their decision
not to use a crib, all support the conclusion that Parents, like Jose’s parents, neglected to
ensure Junior was “put to bed safely.” (Ashley B., supra, 202 Cal.App.4th at p. 982)
Father contends the court did not actually find section 361.5(b)(4) applied,
or a least did not make that finding by clear and convincing evidence as required. It is
true the court clerk’s minutes do not reflect a section 361.5(b)(4) finding, but the court
reporter’s transcript does. We reconcile this conflict in favor of the reporter’s transcript,
since “the particular circumstances [do not] dictate otherwise.” (In re Merrick V. (2004)
122 Cal.App.4th 235, 249.) Unless it had first made the predicate finding under section
361.5(b)(4), the court would have had no reason to make the finding under section 361.5,
subdivision (c) (section 361.5(c)).
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But that does not end the matter, because the court’s oral finding is
confusing. The court stated: “So I am going to make the finding by clear and convincing
evidence that pursuant to 361.5(b)(4), even though the court shall not provide services,
there is clear and convincing evidence that it is in the best interest of the two surviving
siblings for parents to receive services for purposes of reunification.”
Father argues both of the court’s references to “clear and convincing
evidence” in this statement relate only to the section 361.5(c) best interest finding, not to
the section 361.5(b)(4) reunification services bypass finding. We are not persuaded.
Looking at the entire statement, we conclude the court’s first reference to clear and
convincing evidence relates to the section 361.5(b)(4) finding, and the second reference
relates to the section 361.5(c) finding.
Our construction of the court’s statement is consistent with the context in
which it was made. In a colloquy with Mother’s counsel the court had just acknowledged
that although the preponderance of the evidence standard applied to the section 300(f)
finding, the clear and convincing evidence standard applied to the section 361.5(b)(4)
finding. Further, “In light of . . . father’s failure to request clarification of the record
below, and the presumption the juvenile court applied the correct statutory standard of
proof, this issue fails for want of a record which affirmatively demonstrates error.”
(Armando D. v. Superior Court (1999) 71 Cal.App.4th 1011, 1025.)
Father next contends there is insufficient evidence to support the finding
under section 361.5(b)(4). He posits the court had “extraordinary difficulty” finding, by a
preponderance of the evidence under section 300(f), that Junior’s death was caused by
Parents’ neglect. From this he reasons, “it defies logic to even suggest that the record”
supports the finding, by clear and convincing evidence under section 361.5(b)(4), that
Junior’s death was caused by Parents’ neglect.
This argument fails because it ignores the limited scope and nature of our
review in three respects. First, we review the court’s ruling, not its reasoning. (In re B.L.
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(2012) 204 Cal.App.4th 1111, 1116.) So it makes no difference whether the court
expressed hesitation about the section 300(f) finding or had trouble connecting the dots.
Second, “‘“The sufficiency of evidence to establish a given fact, where the
law requires proof of the fact to be clear and convincing, is primarily a question for the
trial court to determine, and if there is substantial evidence to support its conclusion, the
determination is not open to review on appeal.” [Citations.]’ [Citation.] ‘Thus, on
appeal from a judgment required to be based upon clear and convincing evidence, “the
clear and convincing test disappears . . . [and] the usual rule of conflicting evidence is
applied, giving full effect to the respondent’s evidence, however slight, and disregarding
the appellant’s evidence, however strong.” [Citation.]’ [Citation.]” (In re J.I. (2003)
108 Cal.App.4th 903, 911.)
Third, “It is the trial court’s role to assess the credibility of the various
witnesses, to weigh the evidence to resolve the conflicts in the evidence. We have no
power to judge the effect or value of the evidence, to weigh the evidence, to consider the
credibility of witnesses or to resolve conflicts in the evidence or the reasonable inferences
which may be drawn from that evidence. [Citations.] Under the substantial evidence
rule, we must accept the evidence most favorable to the order as true and discard the
unfavorable evidence as not having sufficient verity to be accepted by the trier of fact.
[Citation.]” (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.)
For all of these reasons, we reject Parents’ claim the court erred by
concluding Children were subject to jurisdiction under section 300(f), and Parents were
subject to reunification services bypass under section 361.5(b)(4). We reiterate,
substantial evidence supports the finding Parents’ neglect was a substantial factor in
causing Junior’s death, and but for that neglect Junior would not have died. Parents have
not met their burden to show otherwise. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 947.)
2. There is Insufficient Evidence Reunification is in the Best Interest of Children.
17
Children and SSA contend the court abused its discretion by ordering SSA
to provide reunification services for Parents under section 361.5(c), because there is
insufficient evidence reunification is in Children’s best interest. We agree.
“When sufficiency of the evidence to support a finding is challenged on
appeal, the appellate court determines if there is any substantial evidence to support the
finding. [Citation.] Moreover, the 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. [Citation.]” (In re Ethan N. (2004) 122
Cal.App.4th 55, 64-65 (Ethan N.).)
Section 361.5(c) provides in relevant part: “The court shall not order
reunification for a parent or guardian described in paragraph (3), (4), . . . or (16) of
subdivision (b) unless the court finds, by clear and convincing evidence, that
reunification is in the best interest of the child.” Thus, once the court found section
361.5(b)(4) applied, “‘the general rule favoring reunification [was] replaced by a
legislative assumption that offering services would be an unwise use of governmental
resources. [Citation.]’” (Renee J. v. Superior Court (2001) 26 Cal.4th 735, 744.) At that
point, the burden shifted to Parents to affirmatively establish reunification would be in
the best interest of Children. (In re William B. (2008) 163 Cal.App.4th 1220, 1227
(William B.); Ethan N., supra, 122 Cal.App.4th at p. 66.) This they failed to do.
“Subdivision (b)(4) of section 361.5 evidences the Legislature’s recognition
that some situations are so extreme as to require extraordinary caution in recognizing and
giving weight to the usually desirable objective of family preservation. As noted in In re
Alexis M. [citation], when child abuse results in the death of a child, such abuse ‘is
simply too shocking to ignore’ in determining whether the offending parent should be
offered services aimed at reunification with a surviving child. ‘The fact of a death and a
subsequent petition . . . arising out of that death simply obliterates almost any possibility
of reunification . . . .’ [Citation.]” (Ethan N., supra, 122 Cal.App.4th at p. 65.)
18
“The Legislature has, nevertheless, left open a ‘tiny crack’ to the parent
who has been responsible for the death of his or her child. [Citation.] Subdivision (b)(4)
of section 361.5 can be overcome by a showing, made with clear and convincing
evidence, that reunification would be in a surviving child’s best interest. [Citation.]”
(Ethan N., supra, 122 Cal.App.4th at p. 65.)
“The concept of a child’s best interest ‘is an elusive guideline that belies
rigid definition. Its purpose is to maximize a child’s opportunity to develop into a stable,
well-adjusted adult.’ [Citation.]” (Ethan N., supra, 122 Cal.App.4th at p. 66.)
The factors to consider include: “a parent’s current efforts and fitness as
well as the parent’s history”; “[t]he gravity of the problem that led to the dependency”;
the relative strength of the bonds between the children and the parents and between the
children and the caretakers; and “the child[ren]’s need for stability and continuity.”
(Ethan N., supra, 122 Cal.App.4th at pp. 66-67.)
Further, “Under these circumstances, at least part of the best interest
analysis must be a finding that further reunification services have a likelihood of success.
In other words, there must be some ‘reasonable basis to conclude’ that reunification is
possible before services are offered to a parent who need not be provided them.
[Citation.]” (William B., supra, 163 Cal.App.4th at pp. 1228-1229.)
We will analyze each of these best interest factors in turn.
First, consider Parents’ histories. Mother has a substantial mental health
and substance abuse history. She used a variety of illegal drugs while pregnant with all
three children and alcohol while pregnant with Junior. She was convicted of child
endangerment for failing to secure Z.G. in a car seat after she had used marijuana. She
then failed to complete her court-ordered child abuse and parent education programs.
Father too has a substance abuse history, and knew Mother was using drugs
while pregnant with Junior and I.L. and did nothing about it.
19
Also, there had been other child abuse and neglect reports concerning the
family before, mostly pertaining to Mother’s substance abuse. And of course, Mother’s
drug use and her related lack of sleep were a substantial factor in causing Junior’s death.
Second, consider Parents’ current lack of efforts to address these issues.
They only briefly participated in both the various services offered and drug testing. The
court apparently excused their lack of participation because it was unrealistic to “expect
them to just stand up and go to parenting programs and drug programs.”
Third, consider the gravity of the problem that led to the dependency here.
“It is difficult to imagine any problem more grave than the previous death of another
child caused by abuse or neglect. Assuming, without deciding, that the factor of another
child’s death should not be weighed twice—first in connection with the section 361.5,
subdivision (b)(4) finding and again in determining best interest—we must remember
that, here, the previous death of another child is combined with a long history of drug
abuse . . ., and the abuse and neglect of other children even after extensive reunification
services had been provided.” (Ethan N., supra, 122 Cal.App.4th at p. 66.) And it is
important to note substance abuse is very difficult for parents to overcome, even when
faced with the loss of their children. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 531,
fn. 9.) Using illegal drugs instead of prescribed medications to treat mental health issues
only compounds the problem. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1652-1653.)
Fourth, consider the relative strength of the bonds between Children and
Parents, and between Children and their foster home caretakers. Parents were granted
visitation with Z.G., and later with Z.G. and I.L., for a minimum of six hours per week
(eight hours for Mother and I.L.). Parents visited only sporadically, although they
interacted appropriately with Z.G. and I.L.
Z.G., who was almost two years old, originally appeared to be attached to
Parents after her detention in 2015. However, by the time of the trial in February 2016,
she no longer evidenced any attachment to Mother or Father, perhaps because their visits
20
were not consistent. I.L. was detained at birth, and she had no opportunity to bond with
Parents because their visits were so inconsistent.
Z.G. was placed in a foster home on October 2, 2015, and I.L. was placed
in that same home when she was released from the hospital on December 14. They
adjusted well to their foster parents. By late November 2015, Z.G. called her foster
mother “mama.” The foster parents were the only parents I.L. has ever known.
Fifth, consider Children’s needs for stability and continuity. Children
“have compelling rights to be protected from abuse and neglect and to have a placement
that is stable, permanent, and that [which] allows the caretaker to make a full emotional
commitment to the child.” (In re Marilyn H. (1993) 5 Cal.4th 295, 306.)
Z.G. was neglected in the womb and throughout the time she lived with
Mother. Just before her second birthday, she was traumatized by Junior’s death. She
continued to suffer instability when she spent over six months at a group home. Thus, the
only stability Z.G. has ever known was provided by her foster home.
I.L. too was neglected before she was even born positive for
methamphetamine. She has been placed in a family foster home since she was four days
old, and that is the only stability she has ever known.
Finally, consider whether there is any reasonable basis to conclude
reunification with Parents is possible. The court did not and, on these facts, could not
make a finding that providing Parents further reunification services would have had a
likelihood of success. Parents had been provided 11 months of reunification services
between the death of Junior in March 2015, and the trial in February 2016, and they
essentially did nothing to avail themselves of those services. And nothing in the record
before us even remotely suggests they were going to change that behavior.
In sum, we conclude there is insufficient evidence to support the finding
reunification was in the Children’s best interest. In reaching the contrary conclusion, the
court does not appear to have properly considered the factors which it was required to
21
consider. Instead, the court evidently based its finding on a desire, “to give these parents
another chance.” But ordering SSA to provide further reunification services to Parents
under these circumstances was “asking much.” The court effectively placed Parents’
interest ahead of Children’s best interest, and in the process abused its discretion. (Ethan
N., supra, 122 Cal.App.4th at p. 68.)
In the end, we come back to the “enormous hurdle” faced by a parent
seeking reunification with a child after causing the death of another child by abuse or
neglect. (Ethan N., supra, 122 Cal.App.4th at p. 68.) “The cases in which a parent who
has been responsible for the death of a child through abuse or neglect will be able to
show that reunification will serve the best interest of another child or other children will
be rare.” (Ibid.) This case is not one of those rare cases.
DISPOSITION
The portion of the disposition order granting reunification services to
Parents is reversed. The challenged orders are affirmed in all other respects.
THOMPSON, J.
WE CONCUR:
O’LEARY, P. J.
BEDSWORTH, J.
22
Filed 11/17/16
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re Z.G. et al., Persons Coming Under the
Juvenile Court Law.
G053232
ORANGE COUNTY SOCIAL SERVICES
AGENCY,
(Super. Ct. Nos. DP025984,
Plaintiff and Respondent,
15DP0044)
v.
ORDER CERTIFYING OPINION
Z.G. et al.,
FOR PUBLICATION
Real Parties in Interest and Appellants;
C.G. et al.,
Defendants and Appellants.
Real parties in interest and appellants, and respondent requested that our
unpublished opinion, filed on October 19, 2016, be certified for publication. It appears
that our opinion meets the standards set forth in California Rules of Court, rule 8.1105(c).
The request for publication is GRANTED. The opinion is ordered published in the
Official Reports.
THOMPSON, J.
WE CONCUR:
O’LEARY, P. J.
BEDSWORTH, J.
2