IN RE: TROY Z. (1991)

The parents of Troy Z., Sandra and John, appeal the dispositional order of August 18, 1989, declaring two year old Troy a dependent child pursuant to Welfare and Institutions Code 1 section 300, subdivisions (a), (b) and (e) and removing him from their custody and control under section 361, subdivision (b)(1).  (D010733.)  They also appeal the judgment terminating their parental rights and ordering Troy be placed for adoption.  (§ 366.26 subd. (b)(1).)  (D011549.)  We have consolidated both appeals.   We reverse.

PROCEDURAL BACKGROUND

I

On May 23, 1989, San Diego County Department of Social Services (DSS) petitioned under section 300, subdivisions (a) and (b) to declare Troy a dependent child.²  The petition alleged Troy had been subjected to serious, nonaccidental physical harm by his parents between November 1988 and May 1989, denied medical attention and was discovered to be near death from starvation which would not have resulted but for the unreasonable and neglectful acts of the parents.

DSS filed an amended petition on June 13, 1989, adding section 300, subdivision (e) ³ alleging the parents had subjected the minor to severe physical abuse, including willfully failing to feed the minor, resulting in starvation, unconsciousness, respiratory arrest, and cardiopulmonary collapse.

On the date set for trial, July 17, 1989, both parents with their respective counsel pled “no contest” to the allegations of the amended petition.  (Cal.Rules of Court, rule 1449(e).)   The social worker's report dated June 14, 1989, along with attachments, was received into evidence so the court could determine whether there was a factual basis for the plea as required by California Rules of Court, rule 1449(f)(6).   The court found the allegations were proved by clear and convincing evidence.   Psychological evaluations of both parents were ordered to be completed and made available to the social worker no later than July 25, 1989.   A contested dispositional hearing was set for August 14, 1989.  (Cal.Rules of Court, rule 1449(g).)

During the contested dispositional hearing the court received and considered two reports from the social worker, one dated July 31, 1989, the other August 14, 1989.   Carl Clark, PhD., the evaluator who examined both parents, testified.   Dr. David Chadwick and social worker Wells Gardner also testified.

The court declared Troy a dependent child of the juvenile court and removed custody from his parents under section 361, subdivision (b).   The court found Troy faced a substantial physical danger if he were returned to his parents' home and there were no reasonable means to protect him other than removing him from parental custody.   The court also found reunification services were not likely to prevent further abuse or neglect and the failure to provide such services would not be detrimental to him.   On that basis the court ordered no reunification services were to be offered the parents under section 361.5, subdivision (b).⁴  The court explained:

“[U]nder 361.5(B) ․ reunification services need not be provided to a parent described in this subdivision when the court finds by clear and convincing evidence in subparagraph (5) that the minor was brought within the jurisdiction of the court under subdivision (e) of section 300 because of the conduct of that parent.   The court makes that finding by clear and convincing evidence and actually, beyond a reasonable doubt that it was the actions of each parent that brought this matter under the jurisdiction of the court pursuant to section 300(e).

“Having made that finding, the next direction is provided in paragraph (c) of the same code section․  [T]he court shall not order mandatory reunification unless it finds that based on competent testimony those services are likely to prevent reabuse or continued neglect of the child․

“[T]he court finds that based on competent testimony, reunification services are not likely to prevent reabuse or continued neglect of the minor Troy [Z.] by either of his parents.”

The court ordered the case to proceed immediately to termination of parental rights under section 366.26.

John appealed from the judgment citing the court's denial of reunification services as prejudicial error.

II

On the same date DSS filed its assessment stating Troy's foster parents were willing and anxious to adopt him, and he was therefore considered adoptable, John moved under Code of Civil Procedure section 473 to withdraw his no contest plea and to stay further proceedings pending appeal.   Sandra later joined in this motion.

The parents argued section 300, subdivision (e) providing for dependency over a minor who suffers “severe physical abuse” where each act causes “bleeding, deep bruising, significant external or internal swelling, bone fracture or unconsciousness ․” did not include those situations where the abuse was the result of food deprivation.   Counsel asserted that as a matter of law section 300, subdivision (e) could not apply to the parents' treatment of Troy.

The court denied the parents' motions and terminated their parental rights adopting a permanent plan of adoption for Troy.   The parents also appeal this order.

DISCUSSION

I

 The case is presented to us in an unusual procedural context.   The parents do not attack the correctness of the court's determination that Troy is a dependent child under section 300, subdivisions (a) and (b).   They limit their challenge to the applicability of section 300, subdivision (e) to these proceedings and the prejudicial effect of the court's failure to permit them to withdraw their no contest plea to that section.   They explain, and we believe correctly, that prejudice arises because, while reunification services are required when the court has jurisdiction under section 300, subdivisions (a) and (b), there is a presumption against ordering such services under section 300, subdivision (e).   Consequently, even though it is clear the court correctly determined Troy was a dependent child, the prejudice resulting from the court's reliance on section 300, subdivision (e) requires we determine whether that provision includes physical abuse resulting from food deprivation.

II

 The essence of statutory construction is to ascertain the intent of the Legislature so as to effectuate the purpose of the law.  (Russ Bldg. Partnership v. City and County of San Francisco (1988) 44 Cal.3d 839, 847, 244 Cal.Rptr. 682, 750 P.2d 324.)   In determining legislative intent we “must give effect to statutes according to the ordinary import of the language used in framing them.”  (People v. Morris (1988) 46 Cal.3d 1, 15, 249 Cal.Rptr. 119, 756 P.2d 843.)   Moreover, the scope of an individual statutory provision “should be determined with reference to the whole system of law of which it is a part so that all may be harmonized and have effect.”   (Travelers Indemnity Co. v. Gillespie (1990) 50 Cal.3d 82, 100, 266 Cal.Rptr. 117, 785 P.2d 500.)

 Where the “severe physical abuse” under section 300, subdivision (e) involves more than a single abusive act, each such act must cause “bleeding, deep bruising, significant external or internal swelling, bone fracture, or unconsciousness.”   These words require specific, traumatic acts caused by some form of striking, or other conduct, such as shaking the child, which causes one or more of the specific conditions described in the statute.   Absent unique circumstances not alleged here, a single act of depriving a young child of food will not cause any of the physical conditions required by section 300, subdivision (e).

During the 1987–1988 legislative session, the Legislature amended section 300, subdivision (e) to its current form, to become effective January 1, 1989.⁵  At the time of its enactment, the Legislature was well aware that depriving a child of adequate food was a form of abuse.   It had explicitly provided in section 300, subdivision (b) that “willful or negligent failure ․ to provide [a] minor with adequate food ․” was a basis for the court to exercise jurisdiction over a dependent child.

The 1987 amendment of section 300 was “intended to clarify conditions under which children could be removed from their homes.   It would establish more specific guidelines for social workers who intervene in families when reports of abuse are filed.”  (Sen. Com. on Human Services, Analysis of Sen. Bill No. 243 (1987–1988 Reg. Sess.) as amended Sept. 9, 1987.)

The 1988 report of the Senate Select Committee on Children and Youth/SB 1195 Task Force ⁶ further “documents the intent of [the Legislature with regard to the 1987 amendment of section 300]” (Sen. Select Com. on Children and Youth, Child Abuse Reporting Laws, Juvenile Court Dependency Statutes, and Child Welfare Services, (1988) p. i (1987–1988 Reg.Sess.)):

“The reason for revising ․ Section 300 is to provide more clear-cut guidance to social workers and judges regarding the types of situations which the Legislature considers abusive or neglectful․  [G]reater specificity was needed in order to ensure more uniform application of the law throughout the state and to ensure that court intervention does not occur in situations the Legislature would deem inappropriate.

“The language of the prior Section 300 is extremely broad and vague․  [¶] ․ Vague statutes make inappropriate intervention more likely.”  (Id. at pp. 3–4.)

In light of the Legislature explicitly setting forth physical abuse resulting from food deprivation in section 300, subdivision (b) and its intent to define forms of abuse more specifically,⁷ we believe had the Legislature meant to include food deprivation within section 300, subdivision (e), it would have said so.

In addition, “ ‘[a] specific provision relating to a particular subject will govern a general provision, even though the general provision standing alone would be broad enough to include the subject to which the specific provision relates.’ ”  (Woods v. Young (1991) 53 Cal.3d 315, 325, 279 Cal.Rptr. 613, 807 P.2d 455, quoting People v. Tanner (1979) 24 Cal.3d 514, 521, 156 Cal.Rptr. 450, 596 P.2d 328.)   In light of this specificity, subdivision (b) is the applicable provision to the parental abuse Troy suffered.

It is not as if we are unconcerned for those in Troy's plight.   However, the protection afforded by section 300 must “focus on the preservation of the family whenever possible.”  (Section 300, subd. (j).)  Consistent with this legislative mandate section 300, subdivision (e) with its presumption against reunification services must be construed narrowly in order to avoid a forfeiture of parental rights.  “The rights to conceive and to raise one's children have been deemed ‘essential,’ ․ ‘basic civil rights of man’ ․ and ‘[r]ights far more precious ․ than property rights.’ ”  (Stanley v. Illinois (1972) 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551.)

Based on the foregoing we therefore hold the court erred in finding the conduct of Troy's parents brought them under section 300(e).

III

 The abiding principle in child dependency cases is the welfare and best interests of the child.  (In re Kerry O. (1989) 210 Cal.App.3d 326, 333, 258 Cal.Rptr. 448.)   Reunification services are crucial when the court removes the child from the home.  (In re Jamie M. (1982) 134 Cal.App.3d 530, 545, 184 Cal.Rptr. 778.)   Section 361.5, subdivision (a), requires that the juvenile court order the probation officer to provide reunification services to the minor and the minor's parents whenever a minor is removed from the custody of a parent.⁸  The only possible exception to that legislative mandate which can possibly apply to this case is section 300, subd. (e).⁹  Therefore, because as we have explained section 300, subd. (e) is inapplicable and the court's reliance on that section denied Troy's parents reunification services we must reverse.

DISPOSITION

The order in D010733 is reversed to the extent the jurisdictional finding was based on section 300, subdivision (e) and the trial court is instructed to offer reunification services pursuant to section 361.5, subdivision (a).   The judgment terminating parental rights in D011549 is also reversed.

FOOTNOTES

FN1. All statutory references are to the Welfare and Institutions Code unless otherwise specified..  FN1. All statutory references are to the Welfare and Institutions Code unless otherwise specified.

2.   Section 300, subdivisions (a) and (b) state that an adjudication of dependency is appropriate under the following circumstances:(a) When “[t]he minor has suffered, or there is a substantial risk that the minor will suffer, serious physical harm inflicted nonaccidentally upon the minor by the minor's parent or guardian․”(b) When “[t]he minor has suffered, or there is a substantial risk that the minor will suffer, serious physical harm or illness” because a parent either fails to provide the minor adequate food, clothing, shelter, or medical treatment, or because a parent is unable to care for the minor due to “mental illness, developmental disability, or substance abuse.”

3.   Section 300, subdivision (e) provides:(e) “The minor is under the age of five and has suffered severe physical abuse by a parent,․  For the purposes of this subdivision, ‘severe physical abuse’ means any of the following:  any single act of abuse which causes physical trauma of sufficient severity that, if left untreated, would cause permanent physical disfigurement, permanent physical disability, or death;  ․ or more than one act of physical abuse, each of which causes bleeding, deep bruising, significant external and internal swelling, bone fracture, or unconsciousness.”

4.   Section 361.5, subdivision (b)(5) provides:“(b) Reunification services need not be provided to a parent described in this subdivision when the court finds, by clear and convincing evidence ․:“․“(5) That the minor was brought within the jurisdiction of the court under subdivision (e) of Section 300 because of the conduct of that parent.”Section 361.5, subdivision (c) states:“(c) [¶]  [When subdivision (b)(5) ] is applicable, the court shall not order reunification unless it finds that, based on competent testimony, those services are likely to prevent reabuse or continued neglect of the child or that failure to try reunification services will be detrimental to the child because the child is closely and positively attached to that parent.”

5.   In 1986, the Legislature added a subdivision substantially similar to the current section 300, subdivision (e).   The subdivision, however, only applied to children under the age of three.  (See Sen. Bill No. 1195 (1985–1986 Reg. Sess.) § 2.)

6.   Pursuant to the 1986 amendment of section 300 (Sen. Bill No. 1195 (1985–1986 Reg.Sess.) § 2), the Senate established a task force to investigate the relationship between child abuse reporting laws, dependency statutes, and county welfare services.   The 1987 amendment of section 300 (Sen. Bill No. 243 (1987–1988 Reg.Sess.) §§ 4, 4.5) “is the result of the task force deliberations.”  (Sen. Com. on Human Services, Analysis of Sen. Bill No. 243 (1987–1988 Reg.Sess.) as amended Sept. 9, 1987.)

7.   In its discussion of the specificity of the 1987 legislation, the Senate Select Committee on Children and Youth said:  “[T]he legislation should lead some agencies not to file petitions in some cases which they now inappropriately bring to court.”  (Sen. Select Com. on Children and Youth, Child Abuse Reporting Laws, Juvenile Court Dependency Statutes, and Child Welfare Services, supra, p. 5 (1987–1988 Reg. Sess.).)

8.   Section 361.5, subdivision (a) provides:“Except as provided in subdivision (b), whenever a minor is removed from a parent's ․ custody, the juvenile court shall order the probation officer to provide child welfare services to the minor and the minor's parents ․ for the purpose of facilitating reunification of the family within a maximum time period not to exceed 12 months․”  (Emphasis added.)

9.   Other circumstances under section 361.5, subdivision (b) in which reunification services need not be provided are not applicable here:  (1) the parents' whereabouts are unknown;  (2) the parent is suffering from a mental disability that renders him or her incapable of utilizing such services;  (3) the minor was previously adjudicated a § 300 dependent because of physical or sexual abuse and is now being removed because of additional abuse (unless juvenile court jurisdiction had been dismissed prior to the additional abuse);  (4) the parent has been convicted of causing the death of another child through abuse or neglect.  (§ 361.5 subd. (b)(1)–(b)(4).)

WIENER, Associate Justice.

KREMER, P.J., and TODD, J., concur.