Jose O. v. Superior Court, D053699

Jose O. v. Superior Court (D053699).

Court of Appeal - Fourth Appellate District - Decided 12/23/2008

Facts and Procedural History

In June 2008, Angel O. (then 3 years old) was detained by San Diego County Health and Human Services Agency, under Welfare & Institutions Code section 300(a). Police had responded to the home of Angel's parents, Jose O. and Beatriz O., to find Jose unconscious and Beatriz dead from multiple stab wounds. Angel was seated between them. Subsequently, the Agency filed an amended petition under Welfare & Institutions Code section 300(i), adding that Angel had been subjected to an act of cruelty.

The juvenile court sustained the allegations, denied Jose reunification services under Welf. & Inst. Code section 361.5(b)(6), and set a 366.26 hearing. Jose petitioned the court for review of the court's orders, contending that the juvenile court erred in denying reunification services and setting a 366.26 hearing.


Does section 361.5(b)(6) of the Welfare & Institutions Code authorize denial of reunification services where the party seeking reunification caused the death of the child's other parent but no physical harm to the child occurred?


Section 361.5(b)(6) of the Welfare & Institutions Code provides, in relevant part, that reunification services may be denied when:
...the child has been adjudicated a dependent pursuant to any subdivision of Section 300 as a result of severe sexual abuse or the infliction of severe physical harm to the child, a sibling, or a half sibling by a parent or guardian...and the court nakes a factual finding that it would not benefit the child to pursue reunification services with the offending parent or guardian.
A finding of the infliction of severe physical harm, for the purposes of this subdivision, may be based on, but is not limited to, deliberate and serious injury inflicted to or on a child's body or the body of a sibling or half sibling of the child by an act or omission of the parent or guardian, or of another individual or
animal with the consent of the parent or guardian; deliberate and torturous confinement of the child, sibling, or half sibling in a closed space; or any other torturous act or omission that would be reasonably understood to cause serious emotional damage.


After noting that the issue raised by the petitioner was solely a matter of law that did not involve any disputed set of facts, the court granted de novo review of whether the exemption of 361.5(b)(6) applied in this case. The court concluded, after a review of both the plain language of the statute and its legislative history, that the intent of the legislature in enacting section 361.5 had been to grant to the juvenile court discretion not to provide reunification services where the court deemed that they would not benefit the child because one of the circumstances enumerated in 361.5(b)existed.

Looking at the plain language of the statute, the court found that the emotional harm Angel O. suffered from watching his father kill his mother was sufficient to meet the definition of "infliction of severe physical harm" as that term is defined in 361.5(b)(6) by virtue of the emotional trauma such an event would create for the child. The court found that physical injury is not required for 361.5(b)(6) to apply. The court also found that, given this interpretation of 361.5(b)(6), the lower court had not clearly abused its discretion in denying reunification services.


NO, the juvenile court did not err in denying Jose O. reunification services the basis for the denial was a claim that Welf. & Inst. Code section 361.5(b)(6) includes acts - in this case, killing the child's other parent - that result in emotional harm but no physical injury to the child.


Jose O.'s petition for extraordinary relief was denied.

The full text of the opinion can be downloaded here: PDF, Word.

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