K.F.

At age three months, S.F. was removed from the custody of her parents, K.F. (Father) and M.M. (Mother) and declared a dependent of the court after her parents brought her to the emergency room and she was found to have suffered two subdural hematomas, numerous rib fractures, an elbow fracture, and bruising. After a jurisdictional hearing, the juvenile court found that (1) the parents committed, knew about, or reasonably should have known about severe abuse to a child under age five (Welf. & Inst. Code, 1 § 300, subd. (e) (hereafter section 300(e)), and (2) the parents failed or were unable to protect the child from serious physical harm (§ 300, subd. (b) (hereafter, *1373 section 300(b)). The court stated its section 300(e) abuse finding was based on a preponderance of the evidence, and its section 300(b) failure-to-protect finding was based on clear and convincing evidence. The court thereafter decided to bypass reunification services under (1) section 361.5, subdivision (b)(5) (section 361.5(b)(5)) based on its section 300(e) abuse finding and (2) section 361.5, subdivision (b)(6) (section 361.5(b)(6)) based on its section 300(b) failure-to-protect finding.

In the…

I agree with the majority’s conclusion the juvenile court erred in denying reunification services under section Welfare and Institutions Code section 361.5, subdivision (b)(5) and (6), and join in Discussion, part II. of the opinion. (Undesignated statutory references are to the Welfare and Institutions Code.) I respectfully dissent from the majority’s conclusion there is substantial evidence to support a jurisdictional finding under section 300, subdivision (e) as to K.F.

Where the identity of perpetrator cannot be established, a jurisdictional finding under section 300, subdivision (e) may be sustained where the child was constantly in the custody of his or her parents. (L.Z. v. Superior Court (2010) 188 Cal.App.4th 1285, 1293 [ 115 Cal.Rptr.3d 883 ], citing In re E. H. (2003) 108 Cal.App.4th 659 [ 133 Cal.Rptr.2d 740 ] (E.H.).) The majority applies this holding to a parent whose child was not constantly in his care and who had other caregivers during the entire period in which her injuries were likely to have been inflicted. In view of the entire record, I do not believe a trier of fact could reasonably conclude that K.F. physically abused his daughter, or knew or reasonably…