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Name: In re T.R.
Case #: E079291
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 01/18/2023
Subsequent History: Ordered published 1/27/2023

Bypass of reunification services pursuant to section 361.5, subdivision (b)(6) was improper where severe physical abuse occurred in a prior dependency case and Father had promptly engaged in predisposition services. The minors were removed from the parents due to domestic violence, excessive corporal punishment, and Mother’s sexual abuse of one of the minors. The minors had previously been removed five years earlier due in part to physical abuse by Father, who was then subsequently bypassed pursuant to section 361.5, subdivision (b)(6) [infliction of severe physical harm]. In the months leading up to the jurisdiction/disposition hearing in the present case, Father engaged in predisposition services, including parenting and domestic violence programs. After a contested jurisdiction/disposition hearing, the juvenile court bypassed Father pursuant to section 361.5, subdivision (b)(6). On appeal, the appellate court reversed the bypass order. Subdivision (b)(6) applies when a child has been adjudicated a dependent due to the infliction of severe physical harm by the parent. Subdivision (b)(6) applies to cases of current physical abuse. It also requires an additional finding that the child would not benefit from the provision of reunification services. The juvenile court is required to read into the record those findings as well as the basis for the finding of the infliction of severe physical harm. Here, the juvenile court did not make these required findings. The record contained no evidence that Father’s corporal punishment resulted in serious harm or injury to any of the minors. While a parent’s history of abuse is one of the factors a court must consider when determining whether the child would benefit from services, it cannot support the requisite finding of severe physical harm. The grounds for bypass must be based on actual injury rather than a risk of injury. Additionally, the record lacks sufficient evidence that the minors wouldn’t benefit from attempting to reunify with Father because he engaged with predisposition services and showed a willingness to change. Because Mother was already receiving services, the minors’ permanency would not have been delayed by providing Father services.

Father’s claim of ICWA error is not yet ripe. Father additionally argued on appeal that the Agency failed to comply with its duty of further inquiry under the Indian Child Welfare Act (ICWA) and related state statutes. Because this case is ongoing and the Agency and juvenile court are under a continuing duty to inquire whether the minors may be Indian children, the claim of ICWA error is not ripe. So long as proceedings are ongoing and all parties recognize the continuing duty of ICWA inquiry, both the Agency and the juvenile court have an adequate opportunity to fulfill those statutory duties.