Abuse of One Sibling Can Be Abuse of All Siblings

In November of 2016, Mother [M] gave birth to her fourth child, Daughter [D]. Shortly thereafter, the San Bernardino County Children and Family Services agency [CFS] removed D from the home M shared with D’s Father [F]. D was removed because her half-brother had been abused. He suffered from a burned foot, a fractured skull and a broken leg. Under California’s Welfare and Institutions Code Section 300, one child can be removed from a home under subdivisions (a) (serious physical harm), (b) (failure to protect), and (j) (abuse of sibling).

At a juvenile hearing regarding D’s removal, the judge agreed with CFS and placed D in the home of F’s relatives. M and F were given a six-month plan toward reunification with D. M and F followed the plan, and at the six-month follow up hearing custody of D was returned to them.

Less than three months later, in April of 2018, CFS removed D and her half-siblings again from M and F’s home. CFS filed its petition specifically alleging under WI 300 (b) and (j), that M was not protecting D from F’s abuse of the other three children in the home.

CFS later amended its petition stating that M was also violent against her other three children. She would pull their ears, drop them, throw them to the floor, slap them and/or beat them. (F was not the father of the other three children.)

At the hearing, M’s attorney argued that D should not have been removed from M’s custody because no one abused her – just the other children. The judge citing WI Section 300 (j) (abuse of sibling), agreed that D’s removal by CFS was proper.

This time, no reunification services were granted, and the children, including D, were permanently removed from M and F’s custody. The court declared it got its power to permanently remove all the children under WI 361.5. This statute states that if a court finds by clear and convincing evidence that permanent removal is in the best interests of the child, it must do so.

M appealed making the same argument to the appellate court that she made to the trial court: Since D was never harmed, she should not have been removed from M’s custody. (F did not appeal with M.) She also argued that she was entitled to reunification services with D, because D was not abused before or during the first reunification services. (In other words, M was entitled to a “second chance” with D.) Further, WI Section 361 did not include abuse of a sibling as a reason for permanent removal; therefore, D could not be permanently removed.

The appellate court agreed with the juvenile court judge stating the meaning of WI 361.5, as written, was clear: A child can be removed from custody if another sibling was abused, and permanent removal is mandated (must be removed) when it’s in the best interests of the child to do so.

The appellate court did not agree with M’s argument regarding WI 361.5 that, even though the section did not specifically say that abuse of a sibling was a reason for removal, the fact that D could be in danger was reason enough to permanently remove her from M’s custody.