Filed 10/19/16; pub. order 11/17/16 (see end of opn.) 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

In re Z.G. et al., Persons Coming Under the 

Juvenile Court Law.

ORANGE COUNTY SOCIAL SERVICES 

AGENCY,

 Plaintiff and Respondent,

v.

Z.G. et al.,

 Real Parties in Interest and Appellants;

C.G. et al.,

 Defendants and Appellants.

 G053232

 (Super. Ct. Nos. DP025984,

 15DP0044)

 O P I N I O N

Appeal from orders of the Superior Court of Orange County, Gassia 

Apkarian, Judge. Affirmed in part and reversed in part. 

Leslie A. Barry, under appointment by the Court of Appeal, for Real Parties 

in Interest and Appellants Z.G. and I.L.

Michele Anne Cella, under appointment by the Court of Appeal for 

Defendant and Appellant C.G.
2

Marsha F. Levine, under appointment by the Court of Appeal for Defendant 

and Appellant H.L.

Leon J. Paige, County Counsel, Karen L. Christensen and Aurelio Torre, 

Deputy County Counsel, for Plaintiff and Respondent.

* * *

Orange County Social Services Department (SSA) sought to remove Z.G. 

and I.L. (Children) from the custody of their parents (Parents), C.G. (Mother) and H.L. 

(Father), after Children’s sibling, H.L., Jr. (Junior), died. The juvenile court found

Parents’ “neglect” was a cause of Junior’s death. (Welf. & Inst. Code, §§ 300, subd. (f), 

361.5, subd. (b)(4); all further statutory references are to this code.) Even so, and 

although Parents essentially did nothing to move the family towards reunification, the 

court found reunification was in the “best interest” of Children. (§ 361.5, subd. (c).)

Parents appeal from the jurisdiction and disposition orders and argue there 

is insufficient evidence to support the court’s finding their neglect was a cause of Junior’s 

death. Thus, they contend the court erred by concluding Children were subject to 

jurisdiction under section 300, subdivision (f), and that Parents were subject to the 

reunification services bypass provisions of section 361.5, subdivision (b)(4). 

Children appeal from the disposition order and contend there is insufficient 

evidence to support the finding reunification with Parents is in the best interest of 

Children. Hence, they argue, the court abused its discretion by ordering reunification 

services for Parents under section 361.5, subdivision (c). SSA joins in this argument. 

We conclude there is sufficient evidence to support the court’s finding 

Parents’ neglect was a cause of Junior’s death, but there is insufficient evidence to 

support the court’s finding reunification with Parents was in Children’s best interest. 

Therefore the court abused its discretion by ordering reunification services for Parents. 

Consequently, we will reverse that portion of the disposition order, but affirm the 

jurisdiction and disposition orders in all other respects. 
3

FACTS AND PROCEDURAL HISTORY

1. Removals and Petitions

Seven-month-old Junior died on March 9, 2015, while sleeping in a bed 

with Mother and Z.G. Mother found his body wedged between the bed, a pillow and a 

rolling portable desk. The coroner later determined Junior died from positional asphyxia, 

and ruled his death was an accident. 

Twenty-two-month-old Z.G. was taken into protective custody the day

Junior died. SSA then filed a juvenile dependency petition on her behalf. The petition 

alleged: Z.G. was at risk of physical harm as a result of Mother’s failure to protect and 

inability to care for Z.G. (§ 300, subd. (b)), all due to Mother’s unresolved substance 

abuse and mental health problems, and her criminal conviction history, including child 

abuse; and Mother caused Junior’s death (§ 300, subd. (f)). 

At an initial detention hearing on March 13, the court: found there was a 

prima facie showing Z.G. was a person within section 300 and should be detained by

SSA; ordered SSA to provide reunification services to Parents; made temporary 

placement, visitation and drug testing orders; and set a combined jurisdiction and 

disposition trial. 

Nine months later I.L. was born and tested positive for methamphetamine,

and Mother tested positive for amphetamine, methamphetamine and marijuana. SSA 

took I.L. into protective custody and filed a juvenile dependency petition. The petition 

alleged: I.L. was at risk of physical harm as a result of Parents’ failure to protect and 

inability to care for her (§ 300, subd. (b)) due to their unresolved substance abuse and 

mental health problems, and their criminal histories; Parents caused Junior’s death 

(§ 300, subd. (f)); Parents were not participating in counseling services or drug testing 

(§ 300, subd. (j)), as ordered in Z.G.’s case; and Parents were not consistently visiting 

with Z.G. 
4

At an initial detention hearing on December 16, the court: found the 

petition made a prima facie showing I.L. was a person within section 300 and ordered 

I.L. detained; ordered SSA to provide reunification services to Parents; again made 

temporary placement, visitation and drug testing orders; and set a combined jurisdiction 

and disposition trial with Z.G. 

2. SSA Reports

Almost a year elapsed between the initial detention of Z.G. and the 

jurisdiction and disposition trial for Z.G. and I.L. In that time SSA prepared eighteen 

reports which were ultimately admitted into evidence and considered by the court at trial. 

The salient portions of the SSA reports are summarized below.

a. Prior Child Abuse and Neglect Reports

There had been numerous prior child abuse and neglect reports concerning 

the family, mostly pertaining to Mother’s substance abuse. For example, an August 2014 

report noted Mother had used both methamphetamine and marijuana while she was 

pregnant with Junior. 

A December 2014 report noted Mother and Father had been riding in a car 

driven by a third person. Mother was holding Z.G. in her arms, instead of securing her in 

a car seat. The driver possessed methamphetamine and Mother marijuana, and both 

drugs were within reach of Z.G. Mother was arrested for possession of marijuana and

child endangerment and was ordered to attend a 52-week child abuse program and a sixmonth parent education program. 

b. Death of Junior

An investigation into the circumstances of Junior’s death revealed that 

around 2:30 p.m. on Saturday, March 7, 2015, Mother smoked methamphetamine after 

she returned home from a court ordered parenting class for the criminal case. Mother did 

not sleep at all that night or the next day. 
5

About 9:00 p.m. on Sunday, Parents put Z.G. and Junior in Mother’s bed

for the night. They had another bed and a crib for the kids but often did not use them. 

Around 10:00 p.m., Mother smoked concentrated cannabis wax. 

Around 1:00 a.m. on Monday, March 9, Mother and Father went to sleep in 

the bed with Junior and Z.G. Around 6:00 a.m., Father put Junior back in the bed, on his 

side, between Mother and the wall. Father woke Mother, told her both children were in 

bed with her, and then left for work. When Mother woke about 8:30 a.m. she found 

Junior face down at the end of the bed, purple and not breathing.

c. Reunification Services

At the detention hearings in March and December 2015, the court ordered 

reunification services. The case plan and services included drug treatment, individual 

counseling, and parenting and child abuse programs. Mother said she had started her 

previously ordered child abuse and parent education programs but never provided proof 

of enrollment for either. Father had been terminated from his previously ordered 

parenting program due to absences. Mother attended only a few of her individual 

counseling sessions and Father never participated in individual counseling. 

d. Mental Health, Substance Abuse, Testing and Treatment

Mother has a substantial mental health history, including bipolar, manicdepression, depression, and cutting issues. Mother admitted she had not taken her

prescribed medications for over three years. 

Mother also has a substantial illegal substance abuse history, including 

methamphetamine, cocaine, and marijuana use. Mother started using marijuana regularly 

when she was 15, and at times had a medical marijuana card. She admitted she had used 

methamphetamine while pregnant with both Z.G., and Junior. 

Two days after Junior died, Mother acknowledged methamphetamine and 

marijuana had been found in her system, but denied she had used those drugs. The next 

day Mother admitted she had used marijuana the night before, but still claimed she had 
6

not used methamphetamine, and insisted she was not an addict and was not under the 

influence when Junior died. 

Father admitted using marijuana and “occasionally” methamphetamine, but 

denied knowing Mother used methamphetamine while she was pregnant. 

At both detention hearings, the court ordered Parents to submit to random 

drug testing and encouraged Parents to participate in drug treatment. SSA suggested 

twice weekly self-help (Alcoholics Anonymous/Narcotics Anonymous) meetings and a 

drug treatment program. 

Mother tested positive for marijuana seven times and missed two tests in 

March and April 2015. Father also missed two tests but otherwise tested negative in 

March and April. In May, both Parents stopped drug testing altogether, because, as 

Mother said: “The whole thing is just pissing me the hell off now.” Mother never 

enrolled in a drug treatment program, and neither Parent ever participated in any 12-step 

meetings. 

e. Placements and Visitation

Z.G. was initially placed in a group home, and was moved to a foster home

in October 2015. I.L. was placed directly in the same foster home as Z.G. when she was 

released from the hospital in December, and both Children remained there together until 

the time of the trial in February 2016. 

At Z.G.’s detention hearing in March 2015, the court ordered monitored 

visits for Parents, for a minimum of six hours per week. Parents agreed to visit three 

times a week, for two hours per visit. 

At first Parents visited Z.G. consistently and it appeared Z.G. was 

“attached” to them. Father continued to visit consistently through April and May 2015, 

but Mother started missing visits, and at one point Father reported Mother was “no longer 

interested” in visiting Z.G.
7

In late May, Mother resumed visiting Z.G., but from then on she and Father 

both cancelled many scheduled visits. As a result, they only visited Z.G. a few times 

each month from May to December. 

After I.L. was detained in December, Mother’s visitation was increased to 

eight hours per week. Parents did not visit Children at all between January 7, 2016 and 

February 4, when Mother appeared to be under the influence. 

When Parents did visit Z.G., their visits went well. Mother was attentive, 

nurturing, and appropriate. Z.G. did not always go to her immediately, but smiled and 

welcomed her hugs. Z.G. once asked, “did my mommy die?” At one visit, Z.G. said she 

did not want to go away from Mother. Mother was sometimes overly emotional during 

the visits. 

f. SSA Recommendations

In November and December 2015, SSA recommended the court sustain the 

Z.G. petition, remove Z.G. from parental custody, and provide reunification services. 

SSA continued to make these same recommendations, even after I.L. was born, and 

despite Parents’ lack of progress toward reunification. 

However, in January 2016, SSA changed its position, recommending the 

court sustain the petitions, declare Children dependents, remove them from parental 

custody, bypass reunification services under section 361.5, subdivision (b)(4), and set a 

selection and implementation hearing. 

A social worker explained the change was based on Junior’s death, which 

was a product of: “[M]other’s altered state as a result of lack of sleep and being under 

the influence”; and Father’s decision “to leave the children in [M]other’s care despite her 

substance abuse and lack of sleep.” 

3. Trial Evidence

The petitions were tried together in February 2016. Parents both failed to 

appear, but were represented by counsel. The court admitted the SSA reports into 
8

evidence. The only witness who testified was Shelley Manzer, the social worker who 

prepared the SSA reports. 

Manzer testified she was the dependency investigator in both cases from 

the initial detentions through the time of trial. Manzer recommended the court bypass

reunification services for both Parents. 

Manzer felt Junior’s death was caused by Parents’ neglect. She opined 

Mother was neglectful by cosleeping with the children while under the influence of 

drugs. Manzer believed Mother’s recent use of methamphetamine and potent 

concentrated cannabis wax, together with Mother’s lack of sleep for two days, had left 

her in an altered state that contributed to Junior’s death. 

Manzer noted Junior died after he rolled over onto his stomach. He was 

found face down at the foot of the bed. He “would have had to pass . . . [M]other in order 

to get over there. And if she didn’t wake up to his movements or his cries because of an 

altered state, either being too tired or under the influence, that that could have resulted in 

how [Junior] passed away.” 

Manzer did not assume a “stone-sober mother” would have woken up, but 

she knew cosleeping was not safe, and opined being under the influence of drugs would 

exacerbate the risk. Manzer had no “hard evidence” Mother was under the influence 

when Junior died, and did not know how long the drugs would have stayed in Mother’s 

system, but said the drug use “could have played a role.” 

Manzer testified Father’s neglect also contributed to Junior’s death. She 

believed Father failed to protect Junior from Mother’s drug use. She noted Father left 

Junior and Z.G. with Mother, despite knowing Mother had used methamphetamine and 

marijuana and had not slept for two nights. Manzer later testified Father only admitted he 

knew Mother had used marijuana. 

Manzer explained her reunification services recommendations changed 

after conferring with her supervisor and county counsel, reevaluating Z.G.’s case, and 
9

conducting a full investigation in I.L.’s case. While her understanding of the 

circumstances of Junior’s death had not changed, Parents had been “extremely 

inconsistent” in their visitation, and they had not engaged in any reunification services, 

plus I.L. had been born drug exposed. 

4. Trial Court Findings and Rulings

The court found the jurisdiction allegations true under section 300, 

subdivision (b) (failure to protect Z.G. and I.L.), section 300, subdivision (f) (death of 

Junior through neglect), and section 300, subdivision (j) (abuse of Z.G. - failure to 

participate in reunification services, I.L. petition only). The court also found the 

reunification service bypass provisions of section 361.5, subdivision (b)(4) (death of 

Junior through neglect) applied; Parents’ progress toward alleviating or mitigating the 

causes necessitating placement was “none”; continued placement was “necessary and 

appropriate”; and SSA had complied with the case plan. 

The court expressed hesitation regarding the section 300, subdivision (f)

finding. It noted the coroner had ruled Junior’s death was an accident, and it did not 

know if Mother was still under the influence at the time Father put Junior back in the bed. 

The court further explained, “[t]here’s a lot of dots I have to connect between mom and 

that dead child.” But after extended discussion and careful consideration, the court 

specifically found Parents’ neglect and drug use were “substantial or contributing . . .

sufficient” causes of Junior’s death. 

However, the court then found reunification was in the best interest of 

Children and ordered SSA to provide reunification services to Parents under section 

361.5, subdivision (c). The court explained, “To expect parents who lost a child to death 

to deal with their grieving process and expect them to just stand up and go to parenting 

programs and drug programs I think is next to impossible. [¶] . . . [¶] At the end of the 

day, the best parents would be the biological parents or the presumed father and 

biological mother of any child. [¶] And the court does not feel that it is fair to size them 
10

up immediately after they’ve lost a seven-month-old child to death. People who don’t 

have drug problems can start a drug habit once they’re faced with the death of a child. 

[¶] So I am going to make the finding by clear and convincing evidence that pursuant to 

[section] 361.5 [subdivision] (b)(4), even though the court shall not provide services, 

there is clear and convincing evidence that it is in the best interests of the two surviving 

siblings for parents to receive services for purposes of reunification. And I don’t think 

it’s asking much to give these parents another chance. It’s just not.” 

DISCUSSION

1. There is Sufficient Evidence Parents’ Neglect Was A Cause of Junior’s Death.

Parents contend the court erred by concluding Children were subject to 

jurisdiction under section 300, subdivision (f) (section 300(f)), and Parents were subject 

to reunification services bypass under section 361.5, subdivision (b)(4) (section 

361.5(b)(4)), all because there is insufficient evidence to support the court’s finding 

Parents’ neglect was a cause of Junior’s death. Specifically, Mother argues there is 

insufficient evidence to support the court’s finding Parents’ actions or omissions were a 

“substantial factor” in Junior’s death, or to show that “but for” those actions or omissions, 

Junior would not have died. Father insists the causation evidence was speculative at best, 

not clear and convincing as required by section 361.5(b)(4), and thus it cannot support the 

finding Junior’s death was caused by Parents’ neglect. We are not persuaded.

The substantial evidence standard of review applies to the jurisdiction 

findings under section 300(f), and the reunification services bypass findings under section 

361.5(b)(4). (In re Mia Z. (2016) 246 Cal.App.4th 883, 891 (Mia Z.); In re Harmony B. 

(2005) 125 Cal.App.4th 831, 843.) “Under this test, we resolve all conflicts in the 

evidence, and indulge all reasonable inferences that may be derived from the evidence, in 

favor of the court’s findings. [Citation.]” (Mia Z., at p. 891.) 

Section 300(f) provides a child is subject to the jurisdiction of the juvenile 

court and may be declared a dependent, when: “The child’s parent or guardian caused 
11

the death of another child through abuse or neglect.” Similarly, section 361.5(b)(4) states 

reunification services need not be provided to a parent or guardian when the court finds, 

by clear and convincing evidence “[t]hat the parent or guardian of the child has caused 

the death of another child through abuse or neglect.”

The word “caused” as used in section 300(f) has the commonly understood 

meaning found in both criminal and civil law. (In re Ethan C. (2012) 54 Cal.4th 610, 

639-640 (Ethan C.).) “Nothing in the plain language, or the history, of section 300(f) 

suggests the Legislature had a more restrictive concept of ‘cause[]’ in mind for purposes 

of that statute.” (Id., at p. 640.) The same is equally true with respect to the word 

“caused” as used in section 361.5(b)(4). 

“One’s wrongful acts or omissions are a legal cause of injury if they were a 

substantial factor in bringing it about. [Citations.] If the actor’s wrongful conduct 

operated concurrently with other contemporaneous forces to produce the harm, it is a 

substantial factor, and thus a legal cause, if the injury, or its full extent, would not have 

occurred but for that conduct. Conversely, if the injury would have occurred even if the 

actor had not acted wrongfully, his or her conduct generally cannot be deemed a 

substantial factor in the harm. [Citations.]” (Ethan C., supra, 54 Cal.4th at p. 640; see 

Mia Z., supra, 246 Cal.App.4th at p. 892. “Moreover, the ‘substantial factor test’

subsumes the ‘but for’ test.” (Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1052.) 

These causation principles were discussed and applied in Mia Z. There, 

“Destiny [the child] walked away from Mother’s apartment and ended up about 120 feet 

away, in a well-trafficked alley fronting a commercial parking lot. While Destiny was 

standing in the alley, a heavy metal rolling gate at the access to the parking lot fell off its 

track and landed on Destiny, striking her in the head,” and killing her. (Mia Z., supra, 

246 Cal.App.4th at p. 885.) 

Destiny’s mother argued the evidence was not sufficient to support the 

jurisdictional finding, “because, while it undisputedly showed a lack of parental 
12

supervision at the time of Destiny’s death, it did not show that this lack of parental 

supervision ‘caused’ Destiny’s death within the meaning of section 300, subdivision (f)

in that it did not show that the lack of parental supervision was a ‘substantial factor’ in 

causing the child’s death.” (Mia Z., supra, 246 Cal.App.4th at p. 891.) 

The court disagreed and explained: “In actuality Mother’s neglect was that 

she allowed her three-year-old child to walk away unattended from the family home, thus 

exposing her to dangers of all kinds. That is, she did not keep an eye on her child at the 

family home in the first instance. [¶] . . . [¶] Mother’s neglect . . . was a substantial 

factor, along with Destiny’s own locomotion, and along with the children who pushed 

down the gate, in causing her death. Mother’s argument . . . focuses too much on the end 

event causing Destiny’s death, and ignores that there may be multiple concurrent causes 

of an end event. [Citation.] Mother’s causation argument fails because it overly focuses 

on the specific instrumentality of Destiny’s death, the falling gate, and ignores that 

Mother’s conduct put Destiny on the path to be in the place where that instrumentality 

was ultimately applied. In answering the question of what elements contributed to cause 

Destiny’s death, it is appropriate to look at the entire chain of events leading to her death, 

not merely the final event directly causing her death. . . . The evidence in the record 

supports a finding of factual, ‘but for,’ causation between Mother’s negligent supervision 

and her daughter’s death.” (Mia Z., supra, 246 Cal.App.4th at pp. 891-892.)

Much the same can be said regarding the causation evidence here. Parents’ 

neglect was putting seven-month-old Junior in the same bed with Parents and 22-monthold Z.G., instead of putting him in his crib in the first instance, thus exposing him to 

dangers of all kinds. As Manzer testified based upon her training, infant cosleeping is not 

safe because, “you run the risk of potentially rolling over on your child or extra blankets 

or pillows that could potentially suffocate the child.” 

Plus, the ordinary risks of cosleeping were magnified by the undisputed 

links in the chain of events leading to Junior’s death. Mother had not slept for two days, 
13

after using methamphetamine. She had also used concentrated cannabis wax, a potent 

form of marijuana, the night before Junior died. It is reasonable to infer, as Manzer 

testified, these circumstances left Mother in an “altered state.” Father, aware of these 

circumstances, still put Junior back in the bed with Mother and Z.G and left. 

Thus, substantial evidence supports the finding Parents’ neglect was a 

substantial factor, along with Junior’s own locomotion, in causing his death. Regardless

of the specific instrumentality of his death, positional asphyxia, Parents’ conduct put him 

on the path to be in the place where that instrumentality was ultimately applied, under 

circumstances which increased the risk that instrumentality would in fact be applied. In 

short, Junior’s death would not have occurred “but for” Parents’ neglect.

Our conclusion obtains regardless of whether Mother was or was not under 

the influence of illegal drugs at the time of Junior’s death. It may be reasonable to infer, 

as Manzer testified, these things “could have played a role.” But we need not do so 

because the undisputed evidence in the record supports the factual finding of causation 

between Parents’ neglect and Junior’s death.

The two infant cosleeping cases cited by Mother do not compel a contrary 

conclusion. In re A.M. (2010) 187 Cal.App.4th 1380 (A.M.) and In re Ashley B. (2011) 

202 Cal.App.4th 968 (Ashley B.) both held substantial evidence supported the trial courts’

findings the parents’ neglect was the cause of the infant’s death while cosleeping.

In A.M., six-day-old James died, while sleeping in the same bed as his 

father, D.M., his mother, Tiffany, and his brother, Gavin M. (A.M., supra, 187 

Cal.App.4th at pp. 1382, 1384-1385.) D.M. challenged the sufficiency of the evidence to 

support the court’s jurisdictional findings under section 300(f). 

The court rejected this challenge and explained: “Here, there is sufficient 

evidence to support the [trial] court’s findings. . . . D.M. stated that when he was in the 

family bed, he ‘pushed’ James as far as he could toward Tiffany in hopes that she would 

wake up and attend to James’s crying. D.M. later admitted he heard James struggling to 
14

breathe and that James was not breathing normally. . . . As the trial court stated, D.M. 

recognized there was a risk to James and he had the ability to ‘qualify, quantify and 

assess the risk, and, more importantly, [was] in a position and [had] the means to 

intervene.’ D.M., however, did not intervene even though he heard James struggling to 

breathe. The evidence is sufficient to support the juvenile court’s finding that D.M. 

caused the death of James through neglect.” (A.M., supra, 187 Cal.App.4th at p. 1388.)

Mother contends A.M. “provides the kinds of facts necessary to show ‘but 

for’ causation—facts that are missing in this case.” She further maintains “A.M.

demonstrates a situation where, but for the father’s failure to intervene when he heard the 

baby’s labored breathing, the baby would not have died.” 

We agree the facts in A.M. are different than the facts in this case, but we 

do not agree different facts necessarily lead to different results. Nothing in A.M. or any 

of the cases cited in A.M. suggests causation cannot be found in other facts, like the facts

in this case. Nor could it be so. Rather, this case, like Mia Z., merely represents a 

straightforward application of the causation principles outlined in Ethan C. 

Mother points to one final distinction between this case and A.M. She 

notes: “[T]he coroner in the instant case did not cite ‘overlay’ as a cause of death; thus,

the cause of death was not [Mother’s] act of rolling over onto Junior, but the fact that 

Junior moved himself into a position that caused him to suffocate.” 

This argument, like the mother’s argument in Mia Z., “focuses too much on 

the end event causing [the] death, and ignores that there may be multiple concurrent 

causes of an end event. [Citation.]” (Mia Z., supra, 246 Cal.App.4th at p. 892.) To 

paraphrase Mia Z., it “fails because it overly focuses on the specific instrumentality of 

[Junior’s] death, [positional asphyxia], and ignores that Mother’s conduct put [Junior] on 

the path to be in the place where that instrumentality was ultimately applied.” (Ibid.) 

In Ashley B., one-month-old Jose died, while sleeping in the same bed as 

his father, his mother, and his sister, Ashley. (Ashley B., supra, 202 Cal.App.4th at pp. 
15

970-971.) Ashley’s mother argued the juvenile court erred when it sustained a 

jurisdiction finding under section 300, subdivision (j) (abuse or neglect of sibling) based 

on the circumstances leading to the death of Jose. (Id. at p. 970.) Specifically, the 

mother argued substantial evidence did not support the trial court’s implied determination 

she was abusive or neglectful in connection with Jose’s death. (Id. at p. 982.) 

The court of appeal rejected these arguments and noted: “The evidence 

before the juvenile court showed that mother and father ignored the discharging 

hospital’s instructions that Jose, a premature infant who had suffered from sleep apnea 

while hospitalized, should be placed to sleep in his crib on his back. Both [family 

services] and the coroner noted that Jose’s crib was broken . . . . This evidence was

sufficient to support a conclusion that neither mother nor father was ensuring that Jose 

was put to bed safely.” (Ashley B., supra, 202 Cal.App.4th at p. 982.)

Mother contends “Ashley B. presents a scenario where the baby died in a 

very similar way even without evidence the parents used drugs. Hence the parents’ drug 

use cannot be a ‘but for’ cause of Junior’s death.” We agree Junior died in a similar way, 

and Mother’s drug use alone cannot be the but for cause of his death. But Mother’s drug 

use and lack of sleep, together with Father’s awareness of these events, and their decision 

not to use a crib, all support the conclusion that Parents, like Jose’s parents, neglected to 

ensure Junior was “put to bed safely.” (Ashley B., supra, 202 Cal.App.4th at p. 982)

Father contends the court did not actually find section 361.5(b)(4) applied, 

or a least did not make that finding by clear and convincing evidence as required. It is 

true the court clerk’s minutes do not reflect a section 361.5(b)(4) finding, but the court 

reporter’s transcript does. We reconcile this conflict in favor of the reporter’s transcript, 

since “the particular circumstances [do not] dictate otherwise.” (In re Merrick V. (2004) 

122 Cal.App.4th 235, 249.) Unless it had first made the predicate finding under section 

361.5(b)(4), the court would have had no reason to make the finding under section 361.5, 

subdivision (c) (section 361.5(c)). 
16

But that does not end the matter, because the court’s oral finding is 

confusing. The court stated: “So I am going to make the finding by clear and convincing 

evidence that pursuant to 361.5(b)(4), even though the court shall not provide services, 

there is clear and convincing evidence that it is in the best interest of the two surviving 

siblings for parents to receive services for purposes of reunification.”

Father argues both of the court’s references to “clear and convincing 

evidence” in this statement relate only to the section 361.5(c) best interest finding, not to 

the section 361.5(b)(4) reunification services bypass finding. We are not persuaded. 

Looking at the entire statement, we conclude the court’s first reference to clear and 

convincing evidence relates to the section 361.5(b)(4) finding, and the second reference 

relates to the section 361.5(c) finding. 

Our construction of the court’s statement is consistent with the context in 

which it was made. In a colloquy with Mother’s counsel the court had just acknowledged 

that although the preponderance of the evidence standard applied to the section 300(f) 

finding, the clear and convincing evidence standard applied to the section 361.5(b)(4) 

finding. Further, “In light of . . . father’s failure to request clarification of the record 

below, and the presumption the juvenile court applied the correct statutory standard of 

proof, this issue fails for want of a record which affirmatively demonstrates error.” 

(Armando D. v. Superior Court (1999) 71 Cal.App.4th 1011, 1025.) 

Father next contends there is insufficient evidence to support the finding 

under section 361.5(b)(4). He posits the court had “extraordinary difficulty” finding, by a 

preponderance of the evidence under section 300(f), that Junior’s death was caused by 

Parents’ neglect. From this he reasons, “it defies logic to even suggest that the record” 

supports the finding, by clear and convincing evidence under section 361.5(b)(4), that 

Junior’s death was caused by Parents’ neglect.

This argument fails because it ignores the limited scope and nature of our 

review in three respects. First, we review the court’s ruling, not its reasoning. (In re B.L.
17

(2012) 204 Cal.App.4th 1111, 1116.) So it makes no difference whether the court 

expressed hesitation about the section 300(f) finding or had trouble connecting the dots. 

Second, “‘“The sufficiency of evidence to establish a given fact, where the 

law requires proof of the fact to be clear and convincing, is primarily a question for the 

trial court to determine, and if there is substantial evidence to support its conclusion, the 

determination is not open to review on appeal.” [Citations.]’ [Citation.] ‘Thus, on 

appeal from a judgment required to be based upon clear and convincing evidence, “the 

clear and convincing test disappears . . . [and] the usual rule of conflicting evidence is 

applied, giving full effect to the respondent’s evidence, however slight, and disregarding 

the appellant’s evidence, however strong.” [Citation.]’ [Citation.]” (In re J.I. (2003) 

108 Cal.App.4th 903, 911.)

Third, “It is the trial court’s role to assess the credibility of the various 

witnesses, to weigh the evidence to resolve the conflicts in the evidence. We have no 

power to judge the effect or value of the evidence, to weigh the evidence, to consider the 

credibility of witnesses or to resolve conflicts in the evidence or the reasonable inferences 

which may be drawn from that evidence. [Citations.] Under the substantial evidence 

rule, we must accept the evidence most favorable to the order as true and discard the 

unfavorable evidence as not having sufficient verity to be accepted by the trier of fact. 

[Citation.]” (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.)

For all of these reasons, we reject Parents’ claim the court erred by 

concluding Children were subject to jurisdiction under section 300(f), and Parents were 

subject to reunification services bypass under section 361.5(b)(4). We reiterate, 

substantial evidence supports the finding Parents’ neglect was a substantial factor in 

causing Junior’s death, and but for that neglect Junior would not have died. Parents have 

not met their burden to show otherwise. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 947.) 

2. There is Insufficient Evidence Reunification is in the Best Interest of Children.
18

Children and SSA contend the court abused its discretion by ordering SSA 

to provide reunification services for Parents under section 361.5(c), because there is 

insufficient evidence reunification is in Children’s best interest. We agree. 

“When sufficiency of the evidence to support a finding is challenged on 

appeal, the appellate court determines if there is any substantial evidence to support the 

finding. [Citation.] Moreover, the court cannot reverse the juvenile court’s 

determination, reflected in the dispositional order, of what would best serve the child’s 

interest, absent an abuse of discretion. [Citation.]” (In re Ethan N. (2004) 122 

Cal.App.4th 55, 64-65 (Ethan N.).) 

Section 361.5(c) provides in relevant part: “The court shall not order 

reunification for a parent or guardian described in paragraph (3), (4), . . . or (16) of 

subdivision (b) unless the court finds, by clear and convincing evidence, that 

reunification is in the best interest of the child.” Thus, once the court found section 

361.5(b)(4) applied, “‘the general rule favoring reunification [was] replaced by a 

legislative assumption that offering services would be an unwise use of governmental 

resources. [Citation.]’” (Renee J. v. Superior Court (2001) 26 Cal.4th 735, 744.) At that 

point, the burden shifted to Parents to affirmatively establish reunification would be in 

the best interest of Children. (In re William B. (2008) 163 Cal.App.4th 1220, 1227 

(William B.); Ethan N., supra, 122 Cal.App.4th at p. 66.) This they failed to do.

“Subdivision (b)(4) of section 361.5 evidences the Legislature’s recognition 

that some situations are so extreme as to require extraordinary caution in recognizing and 

giving weight to the usually desirable objective of family preservation. As noted in In re 

Alexis M. [citation], when child abuse results in the death of a child, such abuse ‘is 

simply too shocking to ignore’ in determining whether the offending parent should be 

offered services aimed at reunification with a surviving child. ‘The fact of a death and a 

subsequent petition . . . arising out of that death simply obliterates almost any possibility 

of reunification . . . .’ [Citation.]” (Ethan N., supra, 122 Cal.App.4th at p. 65.) 
19

“The Legislature has, nevertheless, left open a ‘tiny crack’ to the parent 

who has been responsible for the death of his or her child. [Citation.] Subdivision (b)(4) 

of section 361.5 can be overcome by a showing, made with clear and convincing 

evidence, that reunification would be in a surviving child’s best interest. [Citation.]” 

(Ethan N., supra, 122 Cal.App.4th at p. 65.) 

“The concept of a child’s best interest ‘is an elusive guideline that belies 

rigid definition. Its purpose is to maximize a child’s opportunity to develop into a stable, 

well-adjusted adult.’ [Citation.]” (Ethan N., supra, 122 Cal.App.4th at p. 66.) 

The factors to consider include: “a parent’s current efforts and fitness as 

well as the parent’s history”; “[t]he gravity of the problem that led to the dependency”; 

the relative strength of the bonds between the children and the parents and between the 

children and the caretakers; and “the child[ren]’s need for stability and continuity.” 

(Ethan N., supra, 122 Cal.App.4th at pp. 66-67.)

Further, “Under these circumstances, at least part of the best interest 

analysis must be a finding that further reunification services have a likelihood of success. 

In other words, there must be some ‘reasonable basis to conclude’ that reunification is 

possible before services are offered to a parent who need not be provided them. 

[Citation.]” (William B., supra, 163 Cal.App.4th at pp. 1228-1229.)

We will analyze each of these best interest factors in turn.

First, consider Parents’ histories. Mother has a substantial mental health 

and substance abuse history. She used a variety of illegal drugs while pregnant with all 

three children and alcohol while pregnant with Junior. She was convicted of child 

endangerment for failing to secure Z.G. in a car seat after she had used marijuana. She 

then failed to complete her court-ordered child abuse and parent education programs. 

Father too has a substance abuse history, and knew Mother was using drugs 

while pregnant with Junior and I.L. and did nothing about it. 
20

Also, there had been other child abuse and neglect reports concerning the 

family before, mostly pertaining to Mother’s substance abuse. And of course, Mother’s 

drug use and her related lack of sleep were a substantial factor in causing Junior’s death.

Second, consider Parents’ current lack of efforts to address these issues. 

They only briefly participated in both the various services offered and drug testing. The 

court apparently excused their lack of participation because it was unrealistic to “expect 

them to just stand up and go to parenting programs and drug programs.” 

Third, consider the gravity of the problem that led to the dependency here. 

“It is difficult to imagine any problem more grave than the previous death of another 

child caused by abuse or neglect. Assuming, without deciding, that the factor of another 

child’s death should not be weighed twice—first in connection with the section 361.5, 

subdivision (b)(4) finding and again in determining best interest—we must remember 

that, here, the previous death of another child is combined with a long history of drug 

abuse . . ., and the abuse and neglect of other children even after extensive reunification 

services had been provided.” (Ethan N., supra, 122 Cal.App.4th at p. 66.) And it is 

important to note substance abuse is very difficult for parents to overcome, even when

faced with the loss of their children. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 531, 

fn. 9.) Using illegal drugs instead of prescribed medications to treat mental health issues 

only compounds the problem. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1652-1653.) 

Fourth, consider the relative strength of the bonds between Children and 

Parents, and between Children and their foster home caretakers. Parents were granted 

visitation with Z.G., and later with Z.G. and I.L., for a minimum of six hours per week 

(eight hours for Mother and I.L.). Parents visited only sporadically, although they 

interacted appropriately with Z.G. and I.L.

Z.G., who was almost two years old, originally appeared to be attached to 

Parents after her detention in 2015. However, by the time of the trial in February 2016, 

she no longer evidenced any attachment to Mother or Father, perhaps because their visits 
21

were not consistent. I.L. was detained at birth, and she had no opportunity to bond with 

Parents because their visits were so inconsistent. 

Z.G. was placed in a foster home on October 2, 2015, and I.L. was placed 

in that same home when she was released from the hospital on December 14. They 

adjusted well to their foster parents. By late November 2015, Z.G. called her foster 

mother “mama.” The foster parents were the only parents I.L. has ever known. 

Fifth, consider Children’s needs for stability and continuity. Children 

“have compelling rights to be protected from abuse and neglect and to have a placement 

that is stable, permanent, and that [which] allows the caretaker to make a full emotional 

commitment to the child.” (In re Marilyn H. (1993) 5 Cal.4th 295, 306.) 

Z.G. was neglected in the womb and throughout the time she lived with 

Mother. Just before her second birthday, she was traumatized by Junior’s death. She 

continued to suffer instability when she spent over six months at a group home. Thus, the 

only stability Z.G. has ever known was provided by her foster home. 

I.L. too was neglected before she was even born positive for 

methamphetamine. She has been placed in a family foster home since she was four days 

old, and that is the only stability she has ever known. 

Finally, consider whether there is any reasonable basis to conclude

reunification with Parents is possible. The court did not and, on these facts, could not 

make a finding that providing Parents further reunification services would have had a 

likelihood of success. Parents had been provided 11 months of reunification services 

between the death of Junior in March 2015, and the trial in February 2016, and they 

essentially did nothing to avail themselves of those services. And nothing in the record 

before us even remotely suggests they were going to change that behavior. 

In sum, we conclude there is insufficient evidence to support the finding

reunification was in the Children’s best interest. In reaching the contrary conclusion, the 

court does not appear to have properly considered the factors which it was required to 
22

consider. Instead, the court evidently based its finding on a desire, “to give these parents 

another chance.” But ordering SSA to provide further reunification services to Parents 

under these circumstances was “asking much.” The court effectively placed Parents’ 

interest ahead of Children’s best interest, and in the process abused its discretion. (Ethan 

N., supra, 122 Cal.App.4th at p. 68.)

In the end, we come back to the “enormous hurdle” faced by a parent 

seeking reunification with a child after causing the death of another child by abuse or 

neglect. (Ethan N., supra, 122 Cal.App.4th at p. 68.) “The cases in which a parent who 

has been responsible for the death of a child through abuse or neglect will be able to 

show that reunification will serve the best interest of another child or other children will 

be rare.” (Ibid.) This case is not one of those rare cases. 

DISPOSITION

The portion of the disposition order granting reunification services to 

Parents is reversed. The challenged orders are affirmed in all other respects.

THOMPSON, J.

WE CONCUR:

O’LEARY, P. J.

BEDSWORTH, J.
Filed 11/17/16

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

In re Z.G. et al., Persons Coming Under the 

Juvenile Court Law.

ORANGE COUNTY SOCIAL SERVICES 

AGENCY,

 Plaintiff and Respondent,

v.

Z.G. et al.,

 Real Parties in Interest and Appellants;

C.G. et al.,

 Defendants and Appellants.

 G053232

 (Super. Ct. Nos. DP025984,

 15DP0044)

 ORDER CERTIFYING OPINION

 FOR PUBLICATION

Real parties in interest and appellants, and respondent requested that our 

unpublished opinion, filed on October 19, 2016, be certified for publication. It appears 

that our opinion meets the standards set forth in California Rules of Court, rule 8.1105(c). 

The request for publication is GRANTED. The opinion is ordered published in the 

Official Reports.
2

THOMPSON, J.

WE CONCUR:

O’LEARY, P. J.

BEDSWORTH, J.