Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. CK80553 Valerie Lynn Skeba, Juvenile Court Referee.
Donna Balderston Kaiser, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel and Frank J. DaVanzo, Deputy County Counsel on behalf of Plaintiff and Respondent.
CHAVEZ J.
Francisco G. (father) appeals from the judgment of the juvenile court declaring his daughters, Y.G. and N.G., dependents of the court under Welfare and Institutions Code section 360, subdivision (d). Specifically, father contests the court’s decision to deny him reunification services. We affirm.
All further statutory references are to the Welfare & Institutions Code unless otherwise noted.
FACTUAL AND PROCEDURAL BACKGROUND
1. Section 300 petition
On December 31, 2009, the Los Angeles Department of Children and Family Services (DCFS) filed a petition on behalf of Y.G. (born in April 1997) and N.G. (born in February 2001). The girls were the daughters of father and Teresa L. (mother). Mother and father were not legally married but lived together with their two children.
The petition alleged that on September 26, 2009, father sexually abused Y.G. Father removed the child’s clothes, removed his own clothes, and lay naked with her in bed. On September 26, 2009, father was arrested and incarcerated for sexual abuse to the child. The petition also alleged that father had a history of alcohol abuse which rendered him incapable of providing regular care for the children. Father’s sexual abuse of Y.G. placed N.G. at risk of abuse. The petition alleged that jurisdiction of the children was appropriate under section 300, subdivisions b, d, and j.
DCFS interviewed mother on October 5, 2009. Mother reported that on the evening of September 25, 2009, father had been drinking with his friends. At about 3:00 a.m. the following day, mother woke up and went to check on the children. She found father lying in bed with Y.G. Father had no clothes on and Y.G. had no clothes on. Mother immediately woke them up and asked Y.G. what had happened. Y.G. said that she had been sleeping and did not remember what had taken place. Mother asked father what he had done to the child. Father told mother that nothing had taken place, but mother did not believe father.
Mother contacted the authorities, and father was arrested. Father was incarcerated and has had no contact with mother and the children. Mother wanted to move to a different residence but keep the children in the same school. She believed that the situation had traumatized the children and that a change of home would be positive for them. Y.G. was not comfortable talking with the social worker and did not want to talk about father. N.G. reported that she had not seen father, and she also did not want to talk about him. N.G. seemed to like the idea of moving to a different house.
The DCFS social worker visited with the family several times over the next few months. The children and mother were attending individual therapy. Mother was providing for the children’s needs and they were happy in her care. Mother had requested a restraining order for both children, so that father could not retrieve them from school in the event that he was released from jail. However, the criminal court had processed a restraining order protecting only Y.G.
Mother and the children were living in fear of what father might do to them if he were released from jail or if father found out their new home address. DCFS determined that it would open a case for the family, detaining the children from father and providing restraining orders to protect mother and the children from father.
2. Detention hearing and arraignment
DCFS filed an addendum report on December 31, 2009. DCFS recommended that the children be detained in the home of mother, with monitored visits for father. DCFS asked that mother be required to attend and successfully complete parenting classes, individual and family counseling, and sexual abuse counseling for nonoffenders; and that father be required to attend a drug and alcohol treatment program, parenting classes, individual and family counseling, and sexual abuse counseling for offenders.
A detention hearing took place on December 31, 2009. The court found father to be the presumed father of both children. It ordered no discussion of the case except in therapy. It ordered no visits for father while he was in custody. The children were detained from father, and the court released the children to mother. DCFS was ordered to provide family maintenance services.
Father was present at the arraignment, which was held on January 8, 2010. Father waived a reading of the petition and entered a denial. The court set the matter for a jurisdictional hearing on February 9, 2010, and ordered that father and the minors be present.
On February 9, 2009, father’s counsel requested that the matter be set for trial.
3. Jurisdiction/disposition report
DCFS filed a jurisdiction/disposition report dated February 9, 2010. Y.G. had been interviewed on January 28, 2010. As to the allegations against father, Y.G. stated that she did not know if her father was naked on the night in question. She had on the top part of her pajamas, but not the bottom part. She had no underwear on. She didn’t feel her father touching her or taking off her clothes, but she knew she had them on when she went to bed. She stated that she is a heavy sleeper. Y.G. remembered mother entering the room yelling at her father: “What did you do? What did you do to her?” After Y.G. got dressed, mother told Y.G. and N.G. to leave the room. Mother stayed with the girls that night and the next day she told them that they needed to go to the police station, because what father had done was bad.
Y.G. stated that there was another incident when father had touched her on her vagina, although she had her clothes on. He put his hand between her legs, squeezed her vagina, and laughed. Y.G. did not say anything because she was afraid father might hit her. On another occasion, father kissed Y.G. on the mouth. Y.G. did not tell mother, because she did not know how mother would react.
N.G. confirmed Y.G.’s recollection of the events. She was on the top bunk, and she remembered waking up hearing mother yell, “What did you do to her?” Father did not answer mother. N.G. observed mother pull the sheet off Y.G. and observed that Y.G. was naked from the waist down. Y.G. stated that she did not know why her clothes were off. N.G. could not see if father had clothes on because he was holding the sheet “very close against him.”
Mother confirmed the allegations she had made the day of the incident. It was early in the morning, and mother noted that father was not in the room sleeping. When he first came home, she felt him touching her vagina to see if she had on a menstrual pad. He asked mother if she was awake, but she pretended to be sleeping because she did not feel like having sex with him that night. She heard father showering and then she fell back to sleep. She woke up again and did not sense him in bed with her, so she got up to see if he was in the living room or if he had gone back out. The door to the children’s room was cracked open so she looked inside to check on the girls, and she noticed that he was in Y.G.’s bed. When he saw her, father pulled the sheet up to his neck. Y.G. looked frightened. Mother yelled at father, asking him why he was lying in Y.G.’s bed. He wouldn’t answer. Mother tried to pull the sheet away from father but he would not let it go. Mother repeatedly asked father and Y.G. what happened but neither of them answered her. At one point, mother tried to pull the sheet off father and she saw his buttocks. She slapped him on the face and continued screaming at him, asking him what he had done. She begged Y.G. to tell her what happened but Y.G. kept saying she didn’t remember anything and she didn’t know why she was undressed. Mother stated that father’s eyes were very red, as if he were drunk or on drugs.
After father returned to mother’s bedroom, she sent the girls back to their room to sleep. Y.G. needed to sleep because she had church choir practice in the morning. Mother continued to beg father to tell her what had happened. She was afraid that he would get violent, so she calmed down and spoke to him calmly. Father did not want to talk about it and went to bed. Mother stayed with the girls that night. She stated that she was sorry for what had happened and told the girls that they would go to the police in the morning because it was still very dark outside.
Both Y.G. and N.G. reported seeing father drink. N.G. reported that he “got drunk.” They had never seen him use drugs. Mother reported that father always drank alcohol, but over time, he started drinking more and more. Mother believed father also used illicit drugs, but she was not sure. Mother expressed concern about the girls falling behind in their studies. She wants them to have “the best education.” Mother stated that she wanted father “to get all the help he needs so that one day he can come back close to his daughter and receive forgiveness. He is their father and I can’t change that. One day my daughters might have a need of their father and if he doesn’t get the help he needs, he would never be able to get close to them again.”
N.G. stated that she did not want to have visits with her father, as she was afraid. She stated that she thought father “did it because he was drunk, but I’m still scared.” Y.G. expressed mixed emotions, but indicated that she did not want to have visits with father. She stated, “I just want to stay with my mom and my sister. I’m scared of my dad.”
DCFS recommended that the petition be sustained, that mother and the children be offered family maintenance services and that father be provided with family reunification services.
4. Information for court/police report
On April 6, 2010, DCFS filed an “Information for Court Officer, ” which attached the police report from the incident. Father hid in the attic when the police came. He did not remember taking off the child’s pants. He masturbated for five minutes. Y.G. was awake but the lights were off, and she was facing away from him. He denied touching her on prior occasions, and said he believed his wife encouraged Y.G. to say that. He acknowledged that it was inappropriate for him to be in bed with his daughter naked.
Y.G. had told police that father was drinking beer with the neighbors that night. She went to bed and woke up later to find that she was not wearing any underwear or shorts. She noticed a wet spot on the sheet and a clear sticky substance on her upper left inner thigh. After she put on her clothes she wiped the substance off with water. This was the first time father had been in bed with her. Y.G. later divulged that father had rubbed her buttocks and pubic area with his hand under her underwear.
Father was charged with six counts pursuant to Penal Code section 288, subdivision (a). Father pled not guilty to the charges.
5. Contested jurisdiction/disposition hearing
The contested jurisdiction/disposition hearing took place on April 6, 2010. The reports filed by DCFS were entered into evidence without objection. Father’s counsel examined the dependency investigator. The parties presented argument. Children’s counsel pointed out that, despite father’s denial, the children and the mother had maintained very consistent stories throughout the history of the case. Children’s counsel joined with DCFS in asking that the petition be sustained.
Father’s counsel argued that the case was brought based on single interviews with each child, and that the dependency investigator did not speak with police or follow up on physical evidence that was collected from the scene. Father’s counsel pointed out that to this day, Y.G. could not explain how her clothes were removed. Father’s counsel argued that DCFS had not met its burden of proof.
Father requested that the court allow him family reunification services. Father asked for monitored visits with the children.
The juvenile court found that there was overwhelming evidence that sexual abuse occurred. The court sustained the allegations under section 300, subdivisions (b), (d), and (j), but struck the allegation regarding use of illegal drugs. The children were placed in mother’s home with family maintenance services ordered.
With respect to father, the court stated, “I’m not inclined to order services for father. He’s currently incarcerated. His date of release is speculative at best. In addition, the children are placed in the home of the mother. So it would be family maintenance services.” The court indicated it would order monitored visits for father.
Father’s counsel then stated:
“As to the -- those monitored visits, I understand that the -- that one or both of the girls may be reluctant initially. But whatever it is that needs to occur, in terms of counseling, father would encourage that. He does not want to lose touch with his children.”
Counsel for the children then interjected, indicating that the girls were not ready to visit with father.
The court then revised its order, withdrawing the monitored visits for father:
“All right. At this time, then, the court is not going to order visitation. Father’s currently incarcerated. The criminal trial is pending. The children do not want to visit. And I can understand their reluctance. I’m not offering reunification services. So I will permit the father to... write letters to the children, communicate in writing. But mother needs to review, or the social worker needs to review those letters. All right. So at this time the court finds, by clear and convincing evidence, that visitation would be detrimental to the children for all of the reasons I just specified. All right. Then, September 28th. Is there anything further?”
Mother requested tutoring to help the girls catch up in school. Father’s counsel had one last comment:
“And, without belaboring the point, Your Honor, father will not be allowed to visit with his girls for six months? Or is this -- does the social worker have a certain amount of discretion, when and if the girls are ready, to visit with a therapist?”
The court stated that if the girls were ready, any attorney could approach the court and put the matter on calendar. The proceedings then concluded.
On April 9, 2010, father filed his notice of appeal.
DISCUSSION
Father makes two contentions. First, he argues that he was denied statutory and due process notice of the denial of reunification services. Second, he argues that substantial evidence did not support the denial of reunification services under section 361.5, subdivision (e)(1).
Both of father’s arguments are premised on the misconception that he is entitled to reunification services under section 361.5, subdivision (a). Father begins his argument by claiming that the “general rule” is that, when children are removed from the home, the parents are provided with reunification services. Father cites section 361.5, subdivision (a) in support of this argument.
Contrary to father’s position, section 361.5, subdivision (a) does not mandate reunification services. Instead, it requires that the court provide “child welfare services.” Specifically, the statute states: “[W]henever a child is removed from a parent’s or guardian’s custody, the juvenile court shall order the social worker to provide child welfare services to the child and the child’s mother and statutorily presumed father or guardians.” (Italics added.)
The term “child welfare services” is defined in section 16501, subdivision (a): “Child welfare services” include “a continuum of services, including emergency response services, family preservation services, family maintenance services, family reunification services, and permanent placement services.” The term “child welfare services” does not necessarily imply reunification services. (In re A.L. (2010) 188 Cal.App.4th 138, 144.) Instead, both reunification services and family maintenance services are a subset of the term “child welfare services.”
In this case, the juvenile court satisfied the requirement of section 361.5, subdivision (a) by ordering family maintenance services. As the court noted, “the children are placed in the home of the mother. So it would be family maintenance services.” Mother was ordered to complete parenting classes; family counseling was suggested; and the children were ordered into individual counseling. In addition, father was permitted to communicate with the children through monitored letter writing.
Father’s citation to section 361.5, subdivision (a)(1)(A) is misplaced. That statute only applies when family reunification services are ordered. Because family reunification services were not ordered, the subdivision is inapplicable.
Reunification services would have been inappropriate under the circumstances. As set forth in subdivision (h) of section 16501, reunification services are “designed to provide time-limited foster care services to prevent or remedy neglect, abuse, or exploitation, when the child cannot safely remain at home, and needs temporary foster care.” Here, the children were safely in the home of mother, not in foster care. Family reunification was not necessary.
When a child is safely in the custody of one parent, “the court is not concerned with reunification, but with determining whether continued supervision is necessary in the family home. [Citation.]” (In re Gabriel L. (2009) 172 Cal.App.4th 644, 650.) As explained in In re A.L, “when a child... is not removed from her custodial parent(s) in the context of the dependency proceeding, no ‘reunification’ services are called for.” (In re A.L., supra, 188 Cal.App.4th at p. 145.)
Because the children were not removed from mother, reunification services were not called for. Therefore, we need not address father’s arguments that reunification services were improperly bypassed under the exceptions set forth in section 361.5, subdivision (b). As the court noted, family maintenance services were the appropriate type of child welfare service to be provided to the family. Father was not entitled to reunification services under section 361.5 therefore we reject his arguments and affirm the judgment of the juvenile court.
We agree with father’s position that section 361.2 is inapplicable as it applies only where a child is placed with a previously noncustodial parent.
DISPOSITION
The judgment is affirmed.
We concur: DOI TODD Acting P. J., ASHMANN-GERST J.