Filed 8/21/19
                              CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FOURTH APPELLATE DISTRICT

                                         DIVISION TWO



  In re A.E. et al., Persons Coming Under
  the Juvenile Court Law.

  SAN BERNARDINO COUNTY
  CHILDREN AND FAMILY SERVICES,                      E070578

           Plaintiff and Respondent,                 (Super.Ct.Nos. J274046, J274047,
                                                     J274048, J274049, J274050 &
  v.                                                 J274051)

  E.E. et al.,                                       OPINION

           Defendants and Respondents;

  A.E. et al.,

           Appellants.


        APPEAL from the Superior Court of San Bernardino County.

Christopher B. Marshall, Judge. Reversed with directions.

        Lori A. Fields, under appointment by the Court of Appeal, for Appellants.

        Michelle D. Blakemore, County Counsel, and Svetlana Kauper, Deputy County

Counsel, for Plaintiff and Respondent.

        Emery F. El Habiby, under appointment by the Court of Appeal, for Defendant

and Respondent E.E.


                                            1
       Matthew I. Thue, under appointment by the Court of Appeal, for Defendant and

Respondent, J.E.

       Six children appeal from the juvenile court’s dispositional order granting

reunification services to their parents. The court found that Welfare and Institutions

Code 1 section 361.5, subdivision (b)(5) (section 361.5(b)(5)) and (b)(6) (section

361.5(b)(6)) applied, warranting bypass of reunification services. But the court found

that the bypass provisions were overridden under section 361.5, subdivision (c)(2)

(section 361.5(c)(2)) and (c)(3) (section 361.5(c)(3)) because reunification was in the best

interest of the children, services would likely prevent reabuse, and it would be

detrimental not to provide them.

       We agree with the children that the findings under section 361.5(c)(2) and section

361.5(c)(3) are not supported by substantial evidence. We accordingly reverse.

       Although the only issue on appeal is whether substantial evidence supports the

juvenile court’s findings, our analysis requires us to address a legal issue that no prior

published decision has mentioned. We hold that in section 361.5(c)(3), the term

“testimony” refers to in-court oral statements of live witnesses, not to other forms of

evidence.




1     All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.

                                              2
                                     BACKGROUND

A. Referral and Detention

       1. Events Preceding Detention

       E.E. (Mother) and J.E. (Father) (collectively, Parents) adopted M.E. (male, age

10) 2 and twins D.E.1 and D.E.2 (males, age 8) in 2012 and adopted S.E. (male, age 5),

A.E.1 (male, age 4), and A.E.2 (female, age 3) (collectively, the children) in 2017. The

three younger children began living with Mother and Father in July 2016, and their

adoptions were finalized on November 7, 2017.

       On December 6, 2017, San Bernardino County Children and Family Services

(CFS) received an immediate response referral alleging physical abuse and general

neglect of A.E.1. Shortly after noon that day, Mother had taken A.E.1 to the hospital,

where he was diagnosed with multiple head injuries, namely, a right frontal scalp

hematoma, a nondisplaced frontal and temporal fracture, a subdural hematoma, and a

concussion. Because of the skull fracture, A.E.1 was transferred to a second hospital.

       When interviewed at the second hospital by the CFS social worker, Mother said

that A.E.1 was running in the hallway at home and fell on his face onto a tile floor.

When she approached him, she saw him “‘go woozy’ and fall once more, face first,

[o]nto the tile floor.” He was unconscious for about five minutes, woke up, vomited

twice, and was then taken to the hospital approximately 30 minutes later, vomiting twice

on the way and one more time upon arrival. Mother left the other five children at home


2    These are the children’s ages at the time of the detention report on
December 12, 2017.
                                             3
alone, awaiting a family friend who would look after them. Mother reported that A.E.1

had speech and developmental delays, visual motor integration issues, and absent

seizures. She further reported that he had fallen several times in the past but had not been

injured. Mother denied physical abuse and reported disciplining the children by giving

them time-outs, sending them to bed early, or taking away privileges.

       Father did not have any firsthand knowledge of the incident because he was at

work when it happened. He, however, corroborated Mother’s account of A.E.1 having

“physical limitations” and issues “‘with balance’” for which he said A.E.1 was being

treated by a physical therapist and an occupational therapist. Father denied that the

children were physically abused. He explained that Mother was responsible entirely for

disciplining them and that she would do so by having them “‘sit on the time-out chair.’”

       The CFS social worker attempted to interview A.E.1 at the hospital but was unable

to because of his speech delay. The two treating physicians reported that there were no

signs of physical abuse, and one of the doctors reported that A.E.1’s injuries were

consistent with him falling.

       After consulting with a CFS supervisor, the same social worker, accompanied by

another CFS social worker and two police officers, drove directly from the hospital to the

family home to interview the other children, with Parents’ permission. It was late at

night, and all of the children were sleeping. The social workers and the officers were

unable to interview S.E. (who would not wake up) and A.E.2 (who woke up but would

not respond to questions). But the social workers and officers interviewed M.E., D.E.1,

and D.E.2 separately after they were awakened by Mother’s friend (C. Martinez), and

                                             4
each of them gave the same answer when asked what happened to A.E.1: A.E.1 had been

“bugging” A.E.2, and Mother told him to stop. A.E.1 did not stop, and Mother then

grabbed A.E.1 and threw him against the wall twice. Mother then grabbed him again,

threw him to the floor, and pinned him down with her knee. Mother stopped when A.E.1

began to throw up. D.E.2 was afraid because he saw that A.E.1’s leg had twisted and

thought that A.E.1 “‘was really hurt.’”

       M.E., D.E.1, and D.E.2 also all said that Mother and Father disciplined them by

spanking them on the buttocks with a “spanking spoon” and with their hands. M.E.

explained that the children would get into “‘big scary trouble’” if they got out of bed

during bedtime so he would “hold[] it” if he had to urinate, and the other children would

either wear diapers or have accidents in bed. M.E. described “‘big scary trouble’” as the

children being thrown onto the floor and spanked. M.E. reported that Mother had

previously thrown S.E. on the floor after he touched A.E.2’s vagina.

       Early in the morning the next day, on December 7, 2017, CFS detained the

children after securing a warrant. Mother was arrested for a violation of Penal Code

section 273a, subdivision (a), willful harm or injury to a child.

       1.     Section 300 Petition and Detention

       Based on A.E.1’s injuries and the statements made by M.E., D.E.1, and D.E.2,

CFS filed a dependency petition as to all of the children, alleging pursuant to

subdivisions (a), (b)(1), and (e) of section 300 with respect to A.E.1 that Mother had

seriously harmed and injured him, that she perpetrated severe physical abuse against him,

and that Father knew or should have known of the abuse by Mother and had failed to

                                              5
protect A.E.1 from her. 3 For the remaining five children, the petition alleged under

subdivision (j) of section 300 that they were at substantial risk of harm as a result of

Mother’s abuse of their sibling, A.E.1, and Father’s failure to protect A.E.1. At the

detention hearing, the court ordered the children detained, allowed Mother and Father to

visit the children weekly with professional supervision, and ordered reunification services

for both Parents pending development of the case plan.

2.     Contested Jurisdiction and Disposition Hearing

       At the five-day contested jurisdiction and disposition hearing, the court heard

testimony from Mother, L. Heling (an instructional assistant who worked at a preschool

that most of the children attended), C. Martinez (the friend of Mother’s who watched the

children while Mother was at the hospital with A.E.1) and the social worker who

authored the detention report. In addition, the court admitted the jurisdiction and

disposition report filed by CFS in January 2018, the two additional information reports

(also referred to as 6.7 reports) filed by CFS in February and March 2018, and all of the

documents attached to those reports. The court also admitted a report from Dr. Robert L.

Suiter, a clinical and forensic psychologist who evaluated Mother over the course of two

sessions in February 2018 to determine her psychological propensity for abusing

children.




3      CFS also alleged under subdivision (b)(1) of section 300 that Mother and Father
had a history of failing to protect A.E.1 by not providing him necessary medical
treatment. The parties later stipulated to dismiss those allegations.
                                              6
       1. Documentary Evidence

          a. Interviews of the Children

       A social worker interviewed M.E., D.E.1, D.E.2, and S.E. separately for the

jurisdiction/disposition report. The social worker reported that M.E., D.E.1, D.E.2, and

S.E. confirmed the statements they made the night A.E.1 was injured. All four described

“big scary trouble” as being thrown against the wall and/or onto the ground, sometimes

repeatedly in the same incident. Mother would tell them to “‘get up’” and then throw

them against the wall and/or onto the ground again. According to the oldest three (M.E.,

D.E.1, and D.E.2), S.E. and A.E.1 were punished the most with “big scary trouble”

because they behaved the worst. All four “stated that [A.E.2] does not get thrown against

the wall or thrown onto the ground by [M]other and [F]ather.” S.E. said that Father also

had been physically abusive toward him and the other boys but with less frequency than

Mother.

       M.E., D.E.1, and D.E.2 stated that on the day A.E.1 was taken to the hospital he

got into “big scary trouble” and that they saw Mother throw him against the wall and then

onto the floor. D.E.1 and D.E.2 said that Mother told the other children to stay away but

that they did not listen to her and saw what happened to A.E.1. In addition, all four

children described the “secret spanking spoon” as a wooden spoon that was stored in the

kitchen and that both Mother and Father had used to spank them on the buttocks. All

four stated that Mother had told them that she had “since thrown the spoon away because

she was told that she cannot use it to spank them.” S.E. was the only one who expressed

that he was afraid of Mother and Father.

                                             7
       Two weeks later, on January 16-18, 2018, forensic interviews of all of the children

were conducted by Children’s Assessment Center (CAC). In his forensic interview, M.E.

provided further details about the incident, explaining that A.E.1 had gotten into “‘[b]ig,

big, big, giant, scary trouble’” and then vomited “‘yellow’” onto the carpet, which he

described as “‘almost like [A.E.1] had pee coming out of his mouth.’” He said A.E.1

threw up anytime he got into trouble “‘that big.’” The Parents disciplined the children by

throwing them against the wall, by throwing them onto the floor, or by sending them to

time-out. “‘Big, big, big, scary trouble’” happened when either Mother or Father would

throw a child against a wall or onto the floor. Both Parents participated in “‘[b]ig [s]cary

[t]rouble’” on “multiple occasions,” which resuled in the children “‘get[ting] hurt.’”

M.E. verbally expressed and demonstrated that when the children were thrown to the

floor Parents would pick them up “‘high and then drop us.’” A.E.1, D.E.1, A.E.2, and

M.E. all had gotten into “[b]ig [s]cary [t]rouble.”

       M.E., who turned 10 years old several months before the interview in

September 2017, explained that the last time he was in “‘[b]ig [s]cary [t]rouble’” was

when he was nine years old. M.E.’s brothers were tickling him, so Mother threw M.E.

onto the “‘hard’” tile floor and then immediately threw him against the back of the couch.

Mother did not allow the children to tickle each other because Mother had been hurt once

from being tickled. As a result of being thrown that day, M.E.’s hip, head, and back hurt.

Mother apologized to M.E. because she heard him “‘crying for a long time.’” M.E.’s

body shook when he was in “[b]ig [s]cary [t]rouble,” and he would feel scared.



                                              8
       D.E.2 reiterated to the forensic interviewer what he had said in previous interviews

and described witnessing Mother screaming at A.E.1, throwing A.E.1 against the wall,

and then throwing A.E.1 onto the ground because Mother wanted to know what A.E.1

was doing. When A.E.1 attempted to respond, Mother was unable to hear the response

because she was holding his throat against the wall. When Mother “‘made [A.E.1] break

his leg,’” A.E.1 stopped responding. After A.E.1 was thrown, he was unable to walk,

threw up, had a “‘flat stomach,’” and “‘was leaking blood out of his mouth.’” Mother

told D.E.2 to tell everyone that he did not see her hurt A.E.1 and that he should say that

“‘[they] were jumping on the trampoline.’” D.E.2 did not think that his siblings had seen

what happened to A.E.1 but thought they could hear Mother screaming from their

vantage point of sitting on the couch. D.E.2 said that Mother also had thrown S.E.

previously.

       In contrast to the interview with the social worker for the jurisdiction/disposition

report, S.E. did not cooperate with the forensic interviewer and repeatedly asked for the

interview to be terminated. S.E. did not know what happened to A.E.1 but also said,

“‘He didn’t get hurt … I can’t tell you. Once he gets back I’ll tell you.’” S.E. thought

that A.E.1 might never return home if S.E. said anything.

       In contrast to S.E., D.E.1 was very talkative and engaged in the forensic interview.

He explained that he always told the truth unless he was told to lie by Mother, such as

when she told him to lie and say that he was on the trampoline when A.E.1 was injured.

D.E.1 had only been in “[b]ig [s]cary [t]rouble” once and did not want to talk about it

because it was too scary.

                                             9
       D.E.1 described what happened to A.E.1 as follows: Mother picked A.E.1 up

“high in the air,” A.E.1 was screaming, crying, and bleeding, and Mother threw A.E.1

onto the ground on top of a toy, which caused A.E.1’s leg to be injured and prevented

him from getting up. Mother then hit A.E.1 “everywhere,” and Mother placed her whole

body on top of A.E.1’s. Afterward, A.E.1 was lying on the carpet and “throwing up

‘everywhere … Pedia-sure, banana, string cheese and milk.’” A.E.1 was bleeding

because Mother dug her nails into his armpits, and he had blood all over his clothes,

including his shirt, socks, pants, and underwear. D.E.1 screamed while watching because

he was “so scared.” Mother told D.E.1 to go away, but he ducked down so he could

“‘spy’” on Mother.

       As to Father, D.E.1 explained that Father was “always ‘mean to us’” and that

when the children would get into trouble Father would yell, use time-outs, spank the

children on the butt, and “do[] ‘Big Scary Trouble.’” Father used the “‘[s]panken

[s]poon’” to spank D.E.1 on his bare butt, which D.E.1 described as “really hurt[ing]”

and causing his butt to burn, to turn red, and to “feel[] really hot.” The “[s]panken

[s]poon” was a wooden spoon from the kitchen.

       A.E.2, who had not been interviewed previously, told the forensic interviewer that

on the day of the incident A.E.1 was screaming outside, and Mother had to “take [A.E.1]

to the doctors.” A.E.1 “‘goes into time out’” when he gets into trouble. A.E.2 started to

discuss someone getting “‘beat up’” but did not further elaborate.




                                             10
       A.E.1 told the forensic interviewer, “‘Mommy hit me,’” and he then pointed to his

head. When asked to provide additional details, A.E.1 refused and repeatedly stated, “‘I

don’t want to tell you.’” He also said that Mother had hit A.E.2 on the head.

       Responding to a later allegation of abuse arising from the group home at which

A.E.1 was placed, on February 21, 2018, a social worker interviewed A.E.1 about those

allegations, which he denied. During the interview, he spontaneously disclosed that

Mother had “hurt his head when she ‘throwed me against the wall,’” which he said

happened twice on the day he was taken to the hospital. He expressed being afraid of his

Parents when they got upset with him or when he was in trouble. A.E.1 said that Mother

had also thrown S.E. against the wall but denied seeing it happen with the other children.

       The social worker noted that A.E.1 appeared to have a steady gait and good

balance. Neither the social worker nor an administrator at the group home had observed

A.E.1 suffering from any kind of “falling disorder.” Neither had seen A.E.1 fall down in

the manner described by Parents. The social worker saw A.E.1 stand on his head.

          b. Police Report

       The police report presented additional information that had been gathered when

the three oldest boys, Father, Mother, and C. Martinez were interviewed on the night of

the incident. The report recounted the boys’ description of the day A.E.1 was injured,

including their description of where they were located when the incident occurred and the

vantage point of their observation. Although Father told the officer that neither he nor

Mother physically punished the children, Father indicated that he had “seen [Mother] get



                                            11
overwhelmed with the children and sometimes yell[] at them.” Father said A.E.1 fell two

to three times per day.

       C. Martinez stated that when she arrived at the house to watch the children while

A.E.1 was at the hospital, M.E. told her that A.E.1 had gotten into trouble and that

Mother had been mad at A.E.1. C. Martinez reported that she had seen Mother spank one

of the children with an open hand on their buttocks before and also had seen Mother get

overwhelmed and yell at the children.

       Mother told the officer that A.E.1 fell while running down the hall toward the

playroom, tripped, fell on his face on the tile floor in the entryway, stood up, threw up,

fell again, and then became unconscious. She said that A.E.1 fell approximately 25 times

a day. She said that the term “big scary trouble” referred to “a time out in the rocking

chair or early bed time.” The “spanking spoon” referred to a spoon in the kitchen that

Mother and Father only threatened to use on the children.

          c. Forensic Medical Examinations

       The CAC also conducted forensic medical examinations of A.E.1, S.E., and A.E.2.

For A.E.1, the forensic examiner found that the injury A.E.1 sustained the day he was

taken to the hospital, “a [right] frontal [and] anterior temporal fracture with small

associated subdural hematoma,” was consistent with physical abuse and opined that the

“[i]nitial story provided by [M]other that [A.E.1] fell from his own height while running

does not explain the injury.” The report also documented various other bruises, scars,

and lesions on A.E.1’s body. The examiner recommended protective custody.



                                             12
       For S.E., the forensic medical examiner found “bruising that [was] concerning to

bilateral flanks and forehead.” Additional “scattered” bruising was found on S.E.’s shins,

and a scar was found on his upper inner arm. The examiner concluded that the injuries

were “suspicious for physical abuse” and recommended protective custody but noted that

“more history [was] needed.”

       The forensic medical examination of A.E.2 revealed “non-specific injuries on …

various locations of her body,” including “bruising on her chest and legs, scarring on her

arms and legs, and abrasions on her face, left arm and left leg.” A.E.2 could not explain

the injuries. The examiner found that the injuries could have been “caused by abusive or

accidental mechanisms” and concluded that there were not “any findings specific for

physical abuse.” However, “[t]he absence of physical findings on [A.E.2] [did] not

negate the provided history which is suspicious for physical abuse.”

          d. Other Medical Records

       Medical records from the two hospitals at which A.E.1 was treated on

December 6, 2017, documented the injuries A.E.1 sustained, the tests conducted, and the

treatment A.E.1 received. A resident who treated him at one of the hospitals reported that

“[t]here is no suspicion of child abuse in this case.”

       Skeletal surveys were conducted of both A.E.2 and A.E.1 on December 28, 2017.

For A.E.2, “[n]o acute, healing, or healed fracture[s] [were] detected.” For A.E.1, the

skeletal survey was “concerning for anterior wedge compression deformities involving

the T5-T8 vertebral bodies, concerning for compression fractures and an irregularity

along the inferior sternum which may be artifactual.” A repeat skeletal survey was

                                             13
conducted on A.E.1 in early March 2018, and “[t]he vertebral and sternal findings

previously questioned were not seen on further imaging and d[id] not represent healing

traumatic findings.” The CAC doctor who summarized these findings opined that “[i]n

totality, [A.E.1]’s head trauma, bruising and history provided by siblings is consistent

with physical abuse.”

          e. Interviews with Parents and Progress Reports from Therapists

          Mother

       In an interview with a social worker on December 21, 2017, Mother “adamantly

denied the allegations and stated that she would never do anything to cause harm to any

of her children.” Mother denied using corporal punishment to discipline the children and

explained that the disciplinary methods she employed instead included requiring the

children to go to bed early, requiring them to do a “‘time in’ or ‘time out,’” or taking

away a privilege from them. She had no explanation for why any of the children would

allege that she had physically abused them. She noted that there were no less than 18

service providers in her home weekly, so there was “no way that she and/or [Father]

could have been abusing the children without it going unnoticed and unreported.” She

also expressed that she loved and missed the children very much and hoped to reunify

with them.

       In a progress report dated February 4, 2018, Mother’s therapist reported that

Mother continued to “maintain[] innocence of abuse but acknowledge[d] she should have

waited for her friend to arrive at the home, to care for the other children, prior to leaving

for the hospital with the injured child.” Mother had actively participated in individual

                                              14
therapy sessions and parenting classes and was willing to participate in any services

needed to reunify with the children and was “able to identify acts of protection for the

well[-]being and safety of her children.” Additional individual therapy sessions were

recommended.

            Father

         In an interview with a social worker on January 10, 2018, Father also denied the

allegations, denied that corporal punishment was ever used by him or Mother, and “stated

that [Mother] would never cause harm to any of their children.” He corroborated the

disciplinary techniques that Mother said that they used and denied that the “‘secret

spanking spoon’” was ever used for disciplinary purposes. The spoon was “something

they would joke about with the children.” He too said that he and Mother love the

children very much and were sad that they were not together.

         In a progress report dated February 8, 2018, Father’s therapist reported that Father

had actively participated in both his individual therapy sessions and parenting class

sessions, with a notable increase in participation during the more recent individual

sessions. Father denied abusing or neglecting the children himself but expressed concern

about whether Mother may have abused them and whether he had thus failed to protect

them from her. The therapist recommended additional individual therapy sessions and

parenting classes, opining that Father would need to “feel more comfortable in therapy

before being open to challenging and processing his thoughts and understanding about his

case.”



                                              15
          f. Report from Dr. Suiter

       Dr. Suiter evaluated Mother to determine whether she had a psychological

propensity for abusing children. He reported that Mother “strongly” denied ever

physically disciplining the children and said that A.E.1 had a “‘bad fall and passed out’”

on the day that he was taken to the hospital. To discipline the children, Mother explained

that she used time-in techniques, talked to them about their behavior, and talked to them

about the natural consequences of their behavior. A multitude of tests were performed to

determine Mother’s “underlying personality dynamics as well as to identify any

underlying psychopathology.” The results of the tests indicated that Mother was “likely

to be emotionally well-adjusted and psychologically robust” and did not indicate that she

had “a propensity to abuse children or to be unduly rigid in terms of parenting.” Dr.

Suiter emphasized that “the results of this evaluation [were] quite inconsistent with

[Mother] physically abusing a child.” The assessment, however, was limited to analyzing

whether an individual had “traits and characteristics that would predispose them with a

specific behavior and/or demonstrate if their traits and characteristics were consistent

with having committed a certain behavior,” and it could not “determine whether or not

someone has engaged in a particular behavior or will of a certainty engage in such a

behavior.”




                                             16
          g. Letters

       Mother and Father submitted 37 character reference letters to CFS.4 The letters

were attached to the jurisdiction/disposition report and were from friends, neighbors,

fellow church congregants, pastors from Mother’s and Father’s church, former students

of Mother’s from classes she taught at church, other parents who belonged to the same

homeschooling program, and various teachers and tutors of the children, as well as an

employee from their preschool, a speech therapist, and a mail carrier. The overall

consensus was that Parents were involved, devoted, and loving parents, the children

appeared happy, the children loved and adored Parents, Parents disciplined the children

appropriately, and the children did not exhibit any signs or symptoms of abuse.

       The licensed marriage and family therapist who taught Mother’s parenting classes

reported that Mother had completed the 12-week course, actively participated, shared

about her experiences as a parent, acknowledged “needing growth” as a parent, and

“presented as having increased her knowledge about effective parenting.”

       2. Testimony

          a. Mother

       At the outset of her testimony, Mother described the number of placements in

which the children had previously resided before Mother and Father adopted them (14 for

D.E.1 and D.E.2 over 18 months, nine for M.E. over the same period, and several for the

youngest three), their previous histories with physical and sexual abuse, the services they


4     We have counted one of the letters twice because it was signed by two people (a
married couple).
                                            17
required every week to attend to their developmental, emotional, and physical needs, and

the number of service providers (approximately 15) who were in Parent’s home weekly

for the children. Mother insisted that A.E.1 had injured himself by falling while he was

running toward her in the hallway to put his shoes on for school. A.E.1 fell to the side 20

feet away from her, she started walking toward him, he got up, and then he fell again

before she reached him. Mother thought that A.E.1 had an absent seizure, which he was

prone to do. A.E.1 had hit his head and was unconscious by the time Mother reached

him. He awoke in her arms approximately three minutes later and then threw up. He

threw up twice at home and once at the hospital. A.E.2 was the only child who may have

seen what happened because A.E.2 was sitting on the couch. The boys were outside

playing on the trampoline. As a result of her concern for A.E.1, Mother panicked and left

the rest of the children in the house alone while she took A.E.1 to the hospital. She called

C. Martinez, a family friend, to take care of them.

       A.E.1 was unsteady on his feet and bumped into things or fell on a regular basis.

But he had never suffered such a serious injury to the head from falling, though Mother

had heard he fractured a rib at a previous placement.

       Mother denied ever hitting the children or spanking the children with a spoon or

anything else and said that she and Father disciplined the children by taking away a

privilege or by giving a time-out or a time-in. Several months before the incident Mother

had seen a meme on Facebook depicting a spoon and a jail cell with a caption that read

“something to the effect of, if more parents used this, we would, referring to the spoon,

then we would need less of this, referring to the jail cell.” M.E. saw it too and asked

                                            18
Mother about it, and she explained to him that “some people think it’s okay to hit their

kids with a spoon as far as correction,” “but it’s not appropriate for our family.” M.E.

began talking to his siblings about what he learned about other parents who discipline

their children using spoons, and the children brought up the topic a couple of times

thereafter.

         Mother thought one of the superhero movies the children had watched with her

had a “big scary monster” in it. The children did not discuss the monster after seeing the

movie.

              b. C. Martinez

         C. Martinez was a friend of Mother’s who had assisted Mother with the children at

home three days per week over the previous one and one-half years. She never saw

Mother or Father physically abuse any of the children, nor did she notice any visible

injuries on them. She estimated that there were at least 10 providers in the home weekly

to help with schooling or training for the children. C. Martinez watched the children

alone at times, and the children never complained about being abused. The children have

vivid imaginations. A.E.1 had balance problems and would sometimes “just fall over”

when walking or would walk into objects like walls or chairs. When A.E.1 fell, she saw

him fall to the side or forward. When he fell forward, he braced himself with his hands.

C. Martinez never saw A.E.1 fall and hit his head.

         On the day of the incident, when C. Martinez arrived to take care of the children,

M.E. told her that Mother took A.E.1 to the hospital because A.E.1 got sick. The

children did not appear upset or distressed.

                                               19
          c. L. Heling

       Heling, an instructional assistant at a preschool that all of the children but M.E.

had attended, was familiar with all of the children because she helped Mother out at home

one day per week with tutoring and home schooling. D.E.1, D.E.2, S.E., and A.E.1 all

had problems separating fact from fiction, so they would tell stories about things that they

had seen on television or read in a book and think those things had actually happened.

S.E. would mistake movies for dreams he had. Heling occasionally showed the children

movies and recalled “big scary trouble” occurring in a Power Ranger movie.

       A.E.1 was “quite clumsy” and the most likely to fall of the children. A.E.1 fell a

lot in the playground, but Heling never saw him fall and hit his head or significantly

injure himself.

       A.E.2 continued attending the preschool for some time after she was detained and

would tell Heling every day that she missed Mother and that Father loved her. Heling

thought the children adored Parents and had a “[v]ery loving” relationship with them.

          d. Social Worker

       Mayra Bernal, the social worker who responded to the immediate response referral

and authored the detention report, was called to the stand by Mother. She described her

investigation and initial interviews at the hospital and with the children at their home.

Bernal felt M.E., D.E.1, and D.E.2 were honest during their initial interviews. She had

interviewed hundreds of children and sometimes felt the children she interviewed were

not telling the truth. The detention warrant was secured based on the injuries sustained



                                             20
by A.E.1 and the statements made by M.E., D.E.1, and D.E.2. Bernal believed that A.E.1

had suffered abuse in the home.

        3. CFS Recommendation

        In its assessment and evaluation, CFS opined that the case had a “very guarded”

prognosis. CFS noted that the disclosures made by the children who were interviewed

remained consistent and that Parents continued to deny any wrongdoing. CFS had

serious concerns about the overall safety and well-being of the children with both Parents

but especially Mother. CFS recommended that it was not in the children’s best interest to

offer reunification services for Mother and that Father would “need to complete intensive

individual counseling and parenting classes in an effort to accept and come to terms with

the disclosures of physical abuse that were made by the children and also in an effort to

gain the ability to be protective of the children.” CFS further opined that Father would

need to show that he truly benefitted from the services, not merely that he completed

them.

        4. Jurisdiction and Disposition Findings and Orders

        At the end of the hearing, the court granted the children’s request to amend the

original petition to conform to proof. Specifically, with respect to A.E.1, the court added

an allegation against Father under section 300, subdivision (e) (severe physical abuse of a

child under five years old), that he knew or reasonably should have known of the abuse

by Mother but failed to intervene and allowed Mother unsupervised access to A.E.1,

thereby placing A.E.1 “at substantial risk of serious physical harm and/or future abuse.”

With respect to M.E., D.E.1, D.E.2, S.E., and A.E.2, the court added an allegation under

                                             21
section 300, subdivision (a) (serious physical harm inflicted nonaccidentally), alleging

that the boys other than A.E.1 suffered severe physical abuse by both Mother and Father,

namely, being hit with a wooden spoon and thrown against the wall on numerous

occasions. 5

       As to A.E.1, the court then found true the jurisdictional allegations under

subdivisions (a) and (e) of section 300 as to Mother, and subdivisions (b)(1) and (e) as to

Father. The court found that the allegations under subdivision (e) of section 300 were

supported by clear and convincing evidence. With respect to the remaining children, the

court found true the jurisdictional allegations under subdivisions (a) and (j) of section

300.

       The court found that the reunification bypass provision of section 361.5(b)(5)

applied as to A.E.1 and that section 361.5(b)(6) applied as to the other children. The

court then found that reunification was nonetheless in the best interest of the children and

ordered CFS to provide reunification services to Mother and Father under section

361.5(c)(3) as to A.E.1 and section 361.5(c)(2) as to the other children.

       The court explained that “all of the children, but [A.E.1], specifically, initially,

have been to many homes before they came and—came with the [Parents]. [¶] They

finally have a family. They have a [M]other and a [F]ather who [are] committed to them

to have a family. And recognizing that all the children are special needs, these [P]arents



5      We note that the court added the allegation under subdivision (a) of section 300 as
to A.E.2 on the court’s own motion. The children requested that it be added as to M.E.,
D.E.1, D.E.2, and S.E. only.
                                              22
have concluded that they want to be able to nurture and develop these children. There’s

also no prior CFS history. [¶] And so the Court is going to find that the frustration the

[M]other and the [F]ather at times with respect to losing patience and using the wooden

spoon, throwing against the wall, are things that services would likely prevent re-abuse.”

The court acknowledged that the challenge for Parents would be “understanding and

acceptance of responsibility for what happened” but “conclude[d] that it is likely that the

children can be safely returned within 12 months.”

                                       DISCUSSION 6

       The children contend that the juvenile court abused its discretion by ordering

reunification services for both Mother and Father under section 361.5(b)(5) and section

361.5(b)(6) because the record does not contain substantial evidence supporting the

court’s findings that reunification would be in the children’s best interest, that services

would likely prevent the reabuse of A.E.1, and that A.E.1 was closely and positively

attached to Mother. We agree with the children and conclude that those findings are not

supported. The juvenile court therefore abused its discretion by ordering reunification

services for both Mother and Father.




6       At the request of Father, we take judicial notice of the minute order from the
October 5, 2018, six-month review hearing under section 366.21, subdivision (e). (Evid.
Code, § 452, subd. (e).) Father contends that the order renders the appeal moot because
the reunification services ordered at disposition have been completed and new
reunification services have been ordered. We reject Father’s contention and conclude
that the order for continued reunification services does not render the appeal moot. Our
reversal of the dispositional order will provide effective relief by terminating
reunification services for both Parents. (In re N.S. (2016) 245 Cal.App.4th 53, 60.)
                                             23
       1. Standard of Review

       “‘A juvenile court has broad discretion when determining whether . . .

reunification services would be in the best interests of the child under section 361.5,

subdivision (c). [Citation.] An appellate court will reverse that determination only if the

juvenile court abuses its discretion.’” (In re G.L. (2014) 222 Cal.App.4th 1153, 1164-

1165, quoting In re William B. (2008) 163 Cal.App.4th 1220, 1229.) If the juvenile

court’s finding that further services would be in the children’s best interest is not

supported by substantial evidence, then the order for such services constitutes an abuse of

discretion. (In re William B., supra, at p. 1229; In re S.B. (2013) 222 Cal.App.4th 612,

623; In re Ethan N. (2004) 122 Cal.App.4th 55, 65.)

       2. Reunification Bypass Under Section 361.5(b)(6) as to M.E., D.E.1, D.E.2, S.E.,
          and A.E.2

       Reunification services must be provided to the mother and statutorily presumed

father of children who have been removed from their parents’ custody, unless a statutory

exception applies. (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478 (Baby Boy H.);

§ 361.5, subd. (a).) The statutory exceptions are contained in subdivision (b) of section

361.5, which provides that “[r]eunification services need not be provided” if the court

finds “by clear and convincing evidence” that any of 17 enumerated bypass provisions

apply. (In re Allison J. (2010) 190 Cal.App.4th 1106, 1112.) Subdivision (c) of section

361.5 adds with respect to nearly all of the bypass provisions that, if a bypass provision

applies, then the court “shall not order” reunification services unless the court makes

certain countervailing factual findings. (§ 361.5(c)(2) [denial of reunification services is


                                              24
mandatory, subject to override, for parents described by § 361.5 subd. (b)(3)-(4) & (6)-

(17)], § 361.5(c)(3) [denial of reunification services is mandatory, subject to override, for

parents described by § 361.5(b)(5)].) In sum, section 361.5, subdivision (a), provides that

reunification services are mandatory unless a bypass provision applies; section 361.5,

subdivision (b), lists the bypass provisions and provides that reunification services are

discretionary if any of them apply; but section 361.5, subdivision (c), provides that denial

of reunification services is mandatory, not discretionary, with respect to nearly all of the

bypass provisions, unless the court makes certain countervailing factual findings.

       The bypass provision at issue with respect to all of the children except A.E.1 is

section 361.5(b)(6), which applies if (1) “the child has been adjudicated a dependent …

as a result of … severe physical harm to the child, a sibling, or a half sibling by a parent

or guardian,” and (2) “the court makes a factual finding that it would not benefit the child

to pursue reunification services with the offending parent or guardian.” (§ 361.5, subd.

(b)(6)(A).) If that bypass provision applies, then the court “shall not order” reunification

services “unless the court finds, by clear and convincing evidence, that reunification is in

the best interest of the child.” (§ 361.5(c)(2).)

       Here, the trial court found by clear and convincing evidence that section

361.5(b)(6) applied, but the court also found by clear and convincing evidence that it was




                                              25
overridden under section 361.5(c)(2). The children argue that the court’s findings under

section 361.5(c)(2) are not supported by substantial evidence, and we agree. 7

       The record contains no evidence to support the trial court’s finding that

reunification would be in the best interest of M.E., D.E.1, D.E.2, S.E., and A.E.2.

Although there was evidence that both Mother and Father were actively engaged in

services, there was no prospect of any substantive progress in addressing the issues that

led to the children’s removal, because both Mother and Father continued to deny that

they had ever abused the children or had even physically disciplined them.8 Rather,

Mother continued to insist that A.E.1’s injuries were caused by an accidental fall, despite

the overwhelming evidence to the contrary. The forensic medical examiner concluded

that the injuries A.E.1 sustained could not have been caused by his falling in the manner

described by Mother. And the children (except the youngest, A.E.2) consistently


7       We note that the court’s finding under section 361.5(b)(6)(A) that “it would not
benefit the child[ren] to pursue reunification services” appears to contradict the court’s
finding under section 361.5(c)(2) that “reunification is in the best interest of the
child[ren].” Were we to determine that both of those findings are supported by
substantial evidence and that they are irreconcilably contradictory, we would have to
remand the matter for further fact finding by the trial court. (Hollywood Cleaning &
Pressing Co. v. Hollywood Laundry Service, Inc. (1932) 217 Cal. 131, 137 [when the trial
court’s findings are “contradictory and irreconcilable,” but each of them “finds support in
the record,” the matter must be remanded for further fact finding].) Because the finding
under section 361.5(c)(2) is not supported by substantial evidence, however, no such
remand is necessary. We accordingly need not and do not decide whether the findings
are irreconcilably contradictory.

8      We assume the correctness of the trial court’s findings that the allegations of the
petition, amended to conform to proof, are true. Those findings are not challenged by
any party, they are supported by overwhelming evidence (though there is also conflicting
evidence, namely, Parents’ denials), and they do not conflict with any of the court’s other
findings.
                                            26
recounted that Mother had caused A.E.1’s injuries and that both Mother and Father had

repeatedly used inappropriate physical discipline.

       Mother counters that we cannot infer anything from her persistent denials of any

wrongdoing because she was merely exercising her Fifth Amendment privilege against

self-incrimination while a criminal investigation was pending. The Fifth Amendment,

however, is not implicated here because Mother chose to testify. While the Fifth

Amendment protected Mother from being compelled to testify, “the Fifth Amendment

privilege does not condone perjury” once an individual chooses to testify. (United States

v. Wong (1977) 431 U.S. 174, 178.) Mother cites no authority for the proposition that the

Fifth Amendment prohibits the juvenile court (or this court) from relying, to Mother’s

detriment, on Mother’s voluntary testimony in this case, and we are aware of none.

Moreover, testimony in juvenile proceedings (and anything said to a therapist in

connection with those proceedings) is not “admissible as evidence in any other action or

proceeding.” (§ 355.1, subd. (f); In re Mark A. (2007) 156 Cal.App.4th 1124, 1142

[“California law offers a promise to a parent that his or her testimony in juvenile

dependency proceedings, as well as his or her statements made in therapy in furtherance

of the reunification process, will not be used against the parent in a subsequent criminal

prosecution.”].) Thus, contrary to the assumption underlying Mother’s argument, she

could have testified honestly in this dependency proceeding and not suffered adverse

consequences in a future criminal proceeding. Mother made the choice to testify and

deny all responsibility for the severe abuse of A.E.1, as well as her and Father’s physical

abuse of the other children, and the Fifth Amendment does not prohibit us from relying

                                             27
on those denials in determining whether the record contains substantial evidence that

reunification would be in the children’s best interest.

       Mother further contends that her participation in both parenting classes and

individual therapy demonstrates that she “was more than able to reform her parenting

style and disciplinary techniques, learn from services, and successfully reunify with the

children.” That contention is not supported by the evidence. The evidence demonstrates

that Mother attended the prescribed individual therapy sessions and parenting classes, but

it does not support a finding that she meaningfully participated in those services. Under

the circumstances of this case, meaningful participation would require some recognition

or acknowledgement of the abusive behavior. Mother’s therapist reported that Mother

had progressed by being “able to identify acts of protection for the well[-]being and

safety of her children,” and the forensic psychologist noted that “[h]er responses on a

subjective parenting measure were quite adequate in describing how to appropriately

address the situations presented her in an adaptive manner.” Rather than tending to prove

that Mother would be able to reform and that services likely would be successful, the

reports from the therapist and the psychologist demonstrate merely that Mother was

capable of identifying appropriate disciplinary techniques. That evidence has no

tendency to show that reunification services are likely to succeed, however, because

Mother’s interview with the social worker and the police on the night of the incident

showed that Mother was already aware of (and claimed to rely exclusively upon)

appropriate disciplinary techniques, such as time-ins or time-outs, taking away privileges,

and sending the children to bed early. Despite Mother’s demonstrated awareness of such

                                             28
techniques from the inception of the investigation, the trial court found on the basis of

overwhelming evidence that Mother in fact employed inappropriate disciplinary methods,

repeatedly subjecting the children to severe physical abuse. Mother’s attendance at

counseling sessions and ability to describe appropriate disciplinary techniques in those

settings thus have no tendency to show that her actual parenting practices are likely to

improve.

       For similar reasons, the record also does not contain substantial evidence that

reunification services for Father would be in the children’s best interest. Like Mother,

Father has consistently denied abusing the children. Though he did not testify, he too

never admitted to abusing them himself. He denied responsibility for ever disciplining

the children himself at all. While he began to express concern in therapy that Mother

may have abused the children and that he may have failed to protect the children from

her, he did not take any responsibility for his own abusive actions and never admitted that

Mother had actually abused the children. Yet M.E., D.E.1, D.E.2, and S.E. all stated, and

the trial court specifically found, that Father had perpetrated the same abuse as Mother—

spanking them with the spoon and his hands and throwing them against the wall and onto

the floor. A.E.1 said that he was afraid of both Parents when he was in trouble. Given

Father’s own severe physical abuse of the children and his blanket denials, there was no




                                             29
evidence that Father would benefit from services or that services were likely to prevent

reabuse, so there was no evidence that services would be in the children’s best interest. 9

       CFS and Father argue, as an alternative basis to affirm the order for reunification

services for Father, that the section 361.5(b)(6), bypass provision does not apply to Father

because, according to them, the only allegations found true as to Father were based on his

failure to protect the children from abuse perpetrated by Mother. The argument fails

because it is based on a false premise. All of the allegations against Father in the original

petition were based on his failure to protect, but the court amended the petition to

conform to proof and sustained an amended allegation under subdivision (a) of section

300 that both Father and Mother perpetrated severe physical abuse against M.E., S.E.,

D.E.1, and D.E.2. That allegation is not based solely on Father’s failure to protect. In

relevant part, it reads: “This physical abuse by the parents against the children place[s]

the children at significant risk of physical harm.” In announcing its ruling, the trial court

expressly referred to Father’s physical abuse of the children: “[T]hat there was either

implied consent by the [F]ather with respect to what was going on by [Mother] and what

she was doing by way of the physical abuse when she would get frustrated with the



9      We do not mean to suggest that in every bypass case, a parent’s failure to take
responsibility for the alleged abuse or neglect will always, as a matter of law, prohibit the
court from making the countervailing factual findings necessary to override bypass.
Rather, in conducting substantial evidence review, we consider the entire record, which
here includes parents’ denials. Those denials are relevant on their own and also affect
interpretation of the other relevant evidence. We reverse not because parents’ denials are
inconsistent with the trial court’s findings as a matter of law but because the record,
considered as a whole, does not contain substantial evidence to support those findings.

                                             30
children, and that the children have identified that the [F]ather, also, did that at times,

again, throwing against the wall and using the wooden spoon. So the [F]ather knew that

the children were being abused by the [M]other, as well as his own acts and omissions.”

(Italics added.) We therefore reject CFS’s and Father’s contention and conclude that

substantial evidence supports the trial court’s finding that section 361.5(b)(6) applies to

Father, as he too was found to have perpetrated “severe physical abuse” against the four

oldest children.

       In sum, the record contains no evidence that reunification services could lead to

adequate protection of the children and hence no evidence that reunification services

would be in the children’s best interest, given Father’s and Mother’s ongoing insistence

that all of the physical abuse allegations were false. The record contains no evidence to

suggest that reunification services would be effective in modifying Parents’ behavior in

the future. The court’s finding to the contrary was wholly speculative. “A judgment is

not supported by substantial evidence if it is based solely upon unreasonable inferences,

speculation or conjecture.” (In re H.B. (2008) 161 Cal.App.4th 115, 120.) Considered in

light of Parents’ blanket denials, the record presents no reason to believe that further

services would prevent Mother or Father from carrying out the same physical abuse and

inflicting similar or worse injuries in the future. (See In re A.M. (2013) 217 Cal.App.4th

1067, 1077-1078 [finding no evidentiary basis supporting reunification services under

section 361.5(b)(5) and section 361.5(b)(6) where the parent was unwilling to

acknowledge abuse in the first place].)



                                              31
       We therefore conclude that the record does not contain substantial evidence to

support the juvenile court’s order granting reunification services to Mother and Father as

to M.E., D.E.1, D.E.2, S.E., and A.E.2 under section 361.5(c)(2).

       3. Reunification Bypass Under Section 361.5(b)(5) as to A.E.1

       To deny a parent reunification services under section 361.5(b)(5), the juvenile

court must have taken jurisdiction over the child under section 300, subdivision (e),

finding that the child was under five years old and suffered severe physical abuse because

of the conduct of the parent or guardian. “Pursuant to section 361.5(c)[(3)], if a juvenile

court finds the [section 361.5(b)(5)] circumstances to be supported by clear and

convincing evidence, the juvenile court is prohibited from granting reunification services

‘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 will be

detrimental to the child because the child is closely and positively attached to that

parent.’” (In re A.M., supra, 217 Cal.App.4th at pp. 1074-1075, quoting § 361.5(c)(3).)

       The trial court made the necessary findings under section 361.5(c)(3) and on that

basis ordered reunification services for both Parents as to A.E.1. The children argue that

the court’s findings under section 361.5(c)(3) are not supported by substantial evidence.

We agree.

       Section 361.5(c)(3) requires that the necessary findings be “based on competent

testimony.” The term “testimony” refers to in-court oral statements of a live witness.

(In re Jessica B. (1989) 207 Cal.App.3d 504, 518.) “Testimony” thus is not synonymous

with “evidence.” Rather, testimony is a specific type of evidence. (Evid. Code, § 140

                                             32
[‘“Evidence’ means testimony, writings, material objects, or other things presented to the

senses that are offered to prove the existence or nonexistence of a fact.”].)

       If there is no ambiguity in the statutory language, then “‘“we presume the

Legislature meant what it said and the plain meaning of the statute governs.”’” (Pineda

v. Bank of America, N.A. (2010) 50 Cal.4th 1389, 1394.) Moreover, “[w]hen different

terms are used in parts of the same statutory scheme, they are presumed to have different

meanings.” (In re Austin P. (2004) 118 Cal.App.4th 1124, 1130; Romano v. Mercury Ins.

Co. (2005) 128 Cal.App.4th 1333, 1343.) Subdivision (c)(1) of section 361.5 refers to

“competent evidence from mental health professionals.” Subdivision (c)(4) of section

361.5, in contrast, refers to “testimony by a competent professional.” Given the

Legislature’s use of different words—“evidence” and “testimony”—in different parts of

the statute, and given the plain meanings of the terms “evidence” and “testimony,” we

must presume that the Legislature meant what it said in section 361.5(c)(3): The

necessary findings for an order for reunification services under section 361.5(c)(3) must

be based on “competent testimony,” that is, in-court oral statements of a live witness.

       Here, the court found that reunification services as to A.E.1 were warranted under

both prongs of section 361.5(c)(3). For Mother, the court found that “failure to try

reunification would be detrimental to [A.E.1] because he’s positively and closely

attached to the mother.” With respect to both Mother and Father, the court found that

“services would likely prevent re-abuse.”

       The record contains no competent testimony to support those findings. The

respondent’s briefs filed by Mother, Father, and CFS do not cite any testimony that

                                             33
supports the court’s findings under section 361.5(c)(3). In the relevant sections of those

briefs, the only citation to any testimony at all is Father’s citation to pages 89-90 of the

reporter’s transcript, which contains some background testimony by Mother concerning

how and when the children came to be in her care, how many previous placements the

children had, and so forth. That testimony has no tendency to prove either that services

are likely to prevent reabuse or that A.E.1 is so closely and positively attached to Mother

or Father that failure to try reunification would be detrimental.

       In addition, having read the entire reporter’s transcript, we have independently

determined that it does not contain competent testimony to support the trial court’s

findings under section 361.5(c)(3). The only line of testimony that arguably lends some

support to the court’s findings comes from the instructional assistant at the children’s

preschool, who testified that she thought the children “adore their parents.” Considered

in light of the entire record, that single statement does not constitute substantial evidence

that A.E.1 is so closely and positively attached to Mother or Father that failure to try

reunification would be detrimental to him. Children often adore various adults with

whom they have frequent contact, including preschool teachers and babysitters, but those

individuals enter and exit the children’s lives without causing the children to suffer

detriment. Viewed in the context of all of the evidence in this case—including the

relatively brief time that A.E.1 spent in Parents’ care and the evidence of his fear of

Parents as a result of the severe physical abuse he suffered at their hands—the single,

unexplored statement that the children “adore their parents” cannot constitute substantial



                                              34
evidence that failure to try reunification would be detrimental to A.E.1 because of a close

and positive attachment between him and Parents.

       Moreover, for the reasons discussed in Part 2, ante, the record contains no

evidence, let alone testimony, that services would likely prevent reabuse, because both

Mother and Father continue to be in complete denial about the existence of the abuse. (In

re A.M., supra, 217 Cal.App.4th at p. 1077 [“there are no services that will prevent

reabuse by a parent who refuses to acknowledge the abuse in the first place”]; In re

Madison S. (2017) 15 Cal.App.5th 308, 327 [finding no evidence that services likely

would prevent reabuse where the father denied abusing the child and “neither parent was

even willing to acknowledge that nonaccidental injury occurred”].)

       Finally, Mother argues that “[t]o the extent the record is silent as to the nature of

[A.E.1’s] bond with [Mother], this was due to [CFS’s] failure to satisfy its own obligation

under section 361.5[(c)(3)], to investigate whether reunification services were likely to be

successful.” We disagree. Although section 361.5(c)(3) does require the social worker to

“investigate the circumstances leading to the removal of the child and advise the court

whether there are circumstances that indicate that reunification is likely to be successful

or unsuccessful and whether failure to order reunification is likely to be detrimental to the

child,” Mother and Father still bore the burden of proving, through competent testimony,

the factual predicates to an order for reunification services under section 361.5(c)(3).

(In re Madison S., supra, 15 Cal.App.5th at p. 327.) Parents did not introduce any such

testimony, the record contains none, and section 361.5(c)(3)’s requirement that CFS

investigate and advise the court did not further require CFS to call witnesses to testify

                                             35
against CFS’s own recommendation. Thus, assuming for the sake of argument that CFS

failed to discharge its obligation to investigate and advise the court under section

361.5(c)(3), that failure does not affect our analysis, because it does not show that the

trial court’s findings under section 361.5(c)(3) were supported by competent testimony.

They were not. 10

       For all of these reasons, we conclude that the record does not contain competent

testimony to support the juvenile court’s order granting reunification services to Mother

and Father as to A.E.1 under section 361.5(c)(3).

                                      DISPOSITION

       The portions of the dispositional orders of April 5, 2018, granting reunification

services to Mother and Father for M.E., D.E.1, D.E.2, S.E., A.E.1, and A.E.2 are

reversed. The dispositional orders are otherwise affirmed. The matter is remanded to the


10      Mother cites In re Rebekah R. (1994) 27 Cal.App.4th 1638 in support of her
argument, but we find that opinion’s analysis unpersuasive. In Rebekah R., the juvenile
court denied reunification services to the father, and the Court of Appeal reversed on the
ground that because “the department did not satisfy its investigatory obligation” under
(what is now codified as) section 361.5(c)(3), “the juvenile court’s order denying the
father reunification services is not supported by substantial evidence.” (In re Rebekah R.
supra, at p. 1656.) That analysis would appear to be unsound. Once the juvenile court
finds that section 361.5(b)(5) applies, section 361.5(c)(3) requires the court to deny
reunification services unless the court makes a countervailing factual finding that services
are likely to prevent reabuse or that denial of services would be detrimental because the
child is closely and positively attached to the parent. It appears that the trial court in
Rebekah R. made no such countervailing finding and accordingly denied reunification
services, as required by statute. Rebekah R. does not explain how the department’s
failure to provide additional information on the relevant issues could show that the trial
court’s failure to make the necessary countervailing finding is not supported by
substantial evidence. On the contrary, if the trial court did not have sufficient evidence to
make the necessary findings under section 361.5(c)(3), then the court did exactly what it
was required to do, namely, order no services.
                                             36
juvenile court with directions to enter a new order denying reunification services to both

Mother and Father as to all of the children and setting a selection and implementation

hearing under section 366.26.

       CERTIFIED FOR PUBLICATION

                                                               MENETREZ
                                                                                             J.


We concur:

McKINSTER
                Acting P. J.

SLOUGH
                          J.




                                            37
