E.M. v. Super. Ct. CA1/1

Filed 3/20/13 E.M. v. Super. Ct. CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIRST APPELLATE DISTRICT DIVISION ONE

E. M., Petitioner, v. SUPERIOR COURT OF CONTRA A137259 COSTA COUNTY, (Contra Costa County Super. Ct. Respondent, No. J11-01732) CONTRA COSTA COUNTY CHILDREN AND FAMILY SERVICES BUREAU et al. Real Parties in Interest.

E.M. (Mother) challenges dispositional orders entered November 27, 2011, in which the juvenile court set a hearing under Welfare and Institutions Code section 366.261 to select a permanent plan for R.F. (born December 2011). Mother claims the court erroneously denied her reunification services pursuant to section 361.5, subdivision (b)(5) and (b)(6), and failed to comply with the requirements of the Indian Child Welfare Act (ICWA).2 We deny the petition. BACKGROUND The Contra Costa County Children and Family Services Bureau (Bureau) filed a petition under section 300, on December 27, 2011—four days after R.F.’s initial

1 All further statutory references are to the Welfare and Institutions Code unless otherwise indicated. 2 Title 25 United States Code section 1901 et seq.

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detention. Allegations under section 300, subdivision (e), stated R.F. had sustained severe physical injury while in the sole custody and care of his parents, during the period following his birth through the date of initial detention, in that he had suffered a non- accidental skull fracture, a non-accidental rib fracture, wounds on his face and hand that appeared to be the result of burns, and multiple non-accidental human bite wounds on his body (allegations (e)(1) through (e)(4)). Additional allegations, under section 300, subdivision (i), were stated in three sets. That is, R.F. was subjected to cruelty in that he suffered the above-alleged injuries while in the sole custody and care of Mother (allegations (i)(1) through (i)(4)), while in the sole custody and care of J.F. (Father) (allegations (i)(5) through (i)(8), and while in the sole custody and care of both parents (allegations (i)(9) through (i)(12)). The juvenile court formally detained R.F. on December 28, 2011. A significant delay ensued before commencement of the jurisdictional hearing, largely to accomplish the extensive investigation and discovery relating to the foregoing allegations of serious physical abuse and cruelty. Some nine months later, on September 21 and 27, 2012, the juvenile court entered jurisdictional orders in which it dismissed the allegations of cruelty inflicted solely by Father (allegations (i)(5) through (i)(8)), but sustained as true all the remaining allegations. In doing so, the court commented it was clear Mother was the perpetrator. “[Mother] did this[, a]bsolutely.” At the conclusion of the dispositional hearing, on November 27, 2012, the juvenile court denied reunification services to Mother under section 361.5, subdivision (b)(5) and (b)(6), and denied services to Father under section 361.5, subdivision (b)(5). Mother’s petition followed. (§ 366.26, subd. (l).) DISCUSSION I. Bypass of Reunification Services A. Under Section 361.5, subdivision (b)(5) At disposition a juvenile court may deny reunification services to a parent when, as here, it finds by clear and convincing evidence the child was brought within section 300, subdivision (e), because of the conduct of that parent. (§ 361.5, subd.