California Welfare and Institutions Code (WIC) Section 300(E) - Interpretation

Welfare and Institutions Code section 300, subdivision (b) authorizes the juvenile court to take jurisdiction over a child when it finds the child has suffered, or there is a substantial risk the child will suffer, serious physical harm or illness as a result of: (1) the failure or inability of his or her parent to supervise or protect the children adequately; (2) the willful or negligent failure of the child's parent to supervise or protect the child adequately from the conduct of the custodian with whom the child has been left; (3) the willful or negligent failure of the parent to provide the child with adequate food, clothing, shelter, or medical treatment; or (4) the inability of the parent to provide regular care due to the parent's mental illness, developmental disability, or substance abuse. A child comes within the jurisdiction of the juvenile court under Welfare and Institutions Code subdivision (b)(1) of section 300 if, in part, "the child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child." A child comes within the jurisdiction of the juvenile court under subdivision (d) of section 300 if, in part, "the child has been sexually abused, or there is a substantial risk that the child will be sexually abused, as defined in Section 11165.1 of the Penal Code, by his or her parent or guardian or a member of his or her household." Penal Code section 11165.1 defines "sexual abuse" as "sexual assault or sexual exploitation as defined by the following: "(a) 'Sexual assault' means conduct in violation of one or more of the following sections: Section 261 (rape), subdivision (d) of Section 261.5 (statutory rape), 264.1 (rape in concert), 285 (incest), 286 (sodomy), subdivision (a) or (b), or paragraph (1) of subdivision (c) of Section 288 (lewd or lascivious acts upon a child), 288a (oral copulation), 289 (sexual penetration), or 647.6 (child molestation). "(b) Conduct described as 'sexual assault' includes, but is not limited to, all of the following: "(1) Penetration, however slight, of the vagina or anal opening of one person by the penis of another person, whether or not there is the emission of semen. "(2) Sexual contact between the genitals or anal opening of one person and the mouth or tongue of another person. "(3) Intrusion by one person into the genitals or anal opening of another person, . . . "(4) The intentional touching of the genitals or intimate parts, including the breasts, genital area, groin, inner thighs, and buttocks, or the clothing covering them, of a child, or of the perpetrator by a child, for purposes of sexual arousal or gratification, . . . "(5) The intentional masturbation of the perpetrator's genitals in the presence of a child." (Pen. Code, 1165.1, subds. (a) & (b).) A child comes within the jurisdiction of the juvenile court under subdivision (j) of section 300 if: "The child's sibling has been abused or neglected, as defined in subdivision (a), (b), (d), (e), or (i), and there is a substantial risk that the child will be abused or neglected as defined in those subdivisions. The court shall consider the circumstances surrounding the abuse or neglect of the sibling, the age and gender of each child, the nature of the abuse or neglect of the sibling, the mental condition of the parent or guardian, and any other factors the court considers probative in determining whether there is a substantial risk to the child." "In all cases in which a minor is adjudged a dependent child of the court on the ground that the minor is a person described by Welfare and Institutions Code Section 300, the court may limit the control to be exercised over the dependent child by any parent or guardian and shall by its order clearly and specifically set forth all those limitations. Any limitation on the right of the parent or guardian to make educational or developmental services decisions for the child shall be specifically addressed in the court order. The limitations may not exceed those necessary to protect the child." ( 361, subd. (a).) "If a child is adjudged a dependent child of the court on the ground that the child is a person described by Welfare and Institutions Code Section 300, the court may make any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the child, including medical treatment, subject to further order of the court." ( 362, subd. (a).) "If a child is adjudged a dependent child of the court, on the ground that the child is a person described by Section 300, and the court orders that a parent or guardian shall retain custody of the child subject to the supervision of the social worker, the parents or guardians shall be required to participate in child welfare services or services provided by an appropriate agency designated by the court." ( 362, subd. (c); see In re Pedro Z. (2010) 190 Cal.App.4th 12, 20 117 Cal. Rptr. 3d 605 "services referred to in section 362, subdivision (b) (now subd. (c)), are not reunification services but family maintenance services... ".) "The juvenile court may direct any reasonable orders to the parents or guardians of the child who is the subject of any proceedings under this chapter as the court deems necessary and proper to carry out this section ... ." ( 362, subd. (d), italics added.) "The program in which a parent or guardian is required to participate shall be designed to eliminate those conditions that led to the court's finding that the child is a person described by Section 300." (Ibid.) "Every hearing in which an order is made placing a child under the supervision of the juvenile court pursuant to Section 300 and in which the child is not removed from the physical custody of his or her parent or guardian shall be continued to a specific future date not to exceed six months after the date of the original dispositional hearing." ( 364, subd. (a).) A family maintenance review hearing "must be held within six months after the date of the original dispositional hearing and no less frequently than once every six months thereafter as long as the child remains a dependent." (Cal. Rules of Court, rule 5.706(a).) At a family maintenance review hearing, "the court must determine whether continued supervision is necessary." (Rule 5.706(e)(1); see 364, subd. (c).) It "must terminate its dependency jurisdiction unless the court finds that the petitioner has established by a preponderance of the evidence that existing conditions would justify initial assumption of jurisdiction under section 300 or that such conditions are likely to exist if supervision is withdrawn." (Rule 5.706(e)(1).) "Failure of the parent ... to participate regularly in any court-ordered treatment program constitutes prima facie evidence that the conditions that justified initial assumption of jurisdiction still exist and that continued supervision is necessary." (Ibid.) "If the court retains jurisdiction, the court must order continued services and set a review hearing within six months under this rule." (Rule 5.706(e)(2); see 364, subd. (d).) "'There is no statutory time limit on the provision of family maintenance services if the court believes the objectives of the service plan are being met.' (Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 312 55 Cal. Rptr. 3d 647; see 16506.)" (In re A.C. (2008) 169 Cal.App.4th 636, 642 88 Cal. Rptr. 3d 1.) Welfare and Institutions Code section 300 provides "a comprehensive statutory scheme establishing procedures for the juvenile court to follow when and after a child is removed from the home for the child's welfare. " (In re Celine R. (2003) 31 Cal.4th 45, 52.) As the California high court has explained: "The objective of the dependency scheme is to protect abused or neglected children and those at substantial risk thereof and to provide permanent, stable homes if those children cannot be returned home within a prescribed period of time. Although a parent's interest in the care, custody and companionship of a child is a liberty interest that may not be interfered with in the absence of a compelling state interest, the welfare of a child is a compelling state interest that a state has not only a right, but a duty, to protect. The Legislature has declared that California has an interest in providing stable, permanent homes for children who have been removed from parental custody and for whom reunification efforts with their parents have been unsuccessful. This interest is a compelling one. " (In re Marilyn H. (1993) 5 Cal.4th 295, 307.) After it has been adjudicated that a child is a dependent of the juvenile court, the exclusive procedure for establishing the permanent plan for the child is the permanency hearing as provided under section 366.26. The essential purpose of the hearing is for the court "to provide stable, permanent homes for these children." ( 366.26, subd. (b); see In re Jose V. (1996) 50 Cal.App.4th 1792, 1797.) There are six statutory choices for the permanency plan. Although the preferred choice is an order that the child be placed for adoption, coupled with the termination of parental rights (In re Celine R., supra, 31 Cal.4th at p. 53), the court--as it did here--may "appoint a relative or relatives with whom the child is currently residing as legal guardian or guardians for the child, and order that letters of guardianship issue." ( 366.26, subd. (b)(3).) "A juvenile court may order children to be dependents thereof if the Department establishes by a preponderance of the evidence that allegations made pursuant to section 300 are true." (In re Matthew S. (1996) 41 Cal.App.4th 1311, 1318.) We review the jurisdictional findings for substantial evidence and will affirm if "there is reasonable, credible evidence of solid value to support them. ." (Id. at p. 1319.) "'While substantial evidence may consist of inferences, such inferences must be "a product of logic and reason" and "must rest on the evidence" citation; inferences that are the result of mere speculation or conjecture cannot support a finding .' ." (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393.) "When a dependency petition alleges multiple grounds for its assertion that a minor comes within the dependency court's jurisdiction, a reviewing court can affirm the juvenile court's finding of jurisdiction over the minor if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence." (In re Alexis E. (2009) 171 Cal.App.4th 438, 451.) However, the Court may also exercise his discretion to reach the merits of a challenge to any jurisdictional finding when the finding may be prejudicial to the appellant. (In re D.C. (2011) 195 Cal.App.4th 1010, 1015.) Section 300, subdivision (e), provides that the court has jurisdiction where "the child is under the age of five years and has suffered severe physical abuse by a parent, or by any person known by the parent, if the parent knew or reasonably should have known that the person was physically abusing the child." In re Joshua H. (1993) 13 Cal.App.4th 1718, interpreted this statute to require the department to prove three elements to establish jurisdiction under this subdivision: (1) there is a minor under the age of five; (2) who has suffered severe physical abuse as defined in section 300, subdivision (e); (3) by a parent or any person known to the parent if the parent knew or reasonably should have known that the person was physically abusing the minor. (Joshua H., at p. 1727.) In that case, an infant boy was repeatedly beaten by his mother and the mother's live-in boyfriend. (Joshua H., supra, 13 Cal.App.4th at pp. 1722-1723.) The mother contended the case was not within section 300, subdivision (e), because she did not know how severe the abuse was although she was aware her boyfriend was hitting her son. The court rejected her contention. "When, as here, an infant suffers severe physical abuse at the hands of someone other than a parent . . . the subdivision does not require the parent's actual or constructive knowledge that the minor in fact suffered severe physical abuse within the statutory definition. Indeed, several of the listed injuries, such as bleeding (internal), internal swelling, and bone fracture, may not be visible; they may be discovered only after medical examination or testing. We do not believe the Legislature intended to so limit the reach of the statute." (Joshua H., at p. 1729.) Welfare and Institutions Code Section 300, subdivision (b)(1), provides that a child may be adjudged a dependent of the juvenile court when "the child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child . . . or by the inability of the parent or guardian to provide regular care for the child due to the parent's or guardian's mental illness, developmental disability, or substance abuse." Section 300 requires that the risk of harm be shown at the time of the jurisdiction hearing. (In re J.N. (2010) 181 Cal.App.4th 1010, 1023; In re Rocco M. (1991) 1 Cal.App.4th 814, 824.) However, as our Supreme Court noted in In re I.J., "section 300 does not require that a child actually be abused or neglected before the juvenile court can assume jurisdiction. The subdivisions at issue here require only a 'substantial risk' that the child will be abused or neglected. The legislatively declared purpose of these provisions 'is to provide maximum safety and protection for children who are currently being physically, sexually, or emotionally abused, being neglected, or being exploited, and to ensure the safety, protection, and physical and emotional well-being of children who are at risk of that harm.' ( 300.2 . . . .) 'The court need not wait until a child is seriously abused or injured to assume jurisdiction and take the steps necessary to protect the child.' ." (In re I.J., supra, 56 Cal.4th at p. 773.) In making a determination as to whether the child is currently at risk, the court can consider prior conduct of the offending parent. (In re Christopher R., supra, 225 Cal.App.4th at p. 1216; In re Rocco M., supra, 1 Cal.App.4th at p. 824.) Further, the Legislature has declared in section 300.2 that "the provision of a home environment free from the negative effects of substance abuse is a necessary condition for the safety, protection and physical and emotional well-being of the child. Successful participation in a treatment program for substance abuse may be considered in evaluating the home environment."