Opinion
A150611
10-31-2017
In re S.G. et al., Persons Coming Under the Juvenile Court Law. CONTRA COSTA COUNTY CHILDREN & FAMILY SERVICES BUREAU, Plaintiff and Respondent, v. F.G., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. Nos. J1600770, J1600771, J1600772)
This is an appeal from an order by the juvenile court to deny reunification services to F.G, father to three minor children named in this case, after another juvenile court found he had committed multiple acts of severe sexual abuse against H.G., his step-daughter and the minor children's half-sister. For reasons set forth below, we affirm.
The finding that father sexually abused H.G. was made by the Alameda County Juvenile Court, where H.G. is involved in dependency proceedings. Father is not involved in those proceedings, as he is not H.G.'s legal father but, rather, her step-father.
FACTUAL AND PROCEDURAL BACKGROUND
On July 19, 2016, a juvenile dependency petition was filed in Kern County pursuant to Welfare and Institutions Code section 300 (hereinafter, petition), alleging that mother (Y.R.) and father's three minor children, S.G., S.G., and J.G. (hereinafter, minors) came within subdivision (b) (failure to protect) and subdivision (j) (sibling abuse). Specifically, this petition alleged in regards to subdivision (b) that mother had failed to protect minors from father by allowing father unsupervised access to them despite her awareness that he had sexually abused their half-sister, H.G., by forcibly inserting his penis into her vagina and anus multiple times over a period of time spanning several years. The petition further alleged father had attempted to flee to Virginia with minors during one such an unsupervised visit, however was ultimately arrested and charged with kidnapping in Kern County. With regards to the subdivision (j) allegation, the petition reiterated that father had committed multiple acts of sexual abuse against minors' half-sister, putting them at substantial risk for likewise suffering his abuse.
Unless otherwise stated herein, all statutory citations are to the Welfare & Institutions Code.
Social worker Bonnie Holt filed a report on behalf of the department stating that father had been arrested for kidnapping in connection with the aforementioned attempt to flee with the children to Virginia. Mother had acknowledged that she was aware father had sexually abused H.G. in Honduras, where the family lived before moving to California. Mother also acknowledged father was not supposed to have unsupervised visits with minors as a condition imposed by the juvenile court in the dependency matter of H.G. pending in Alameda County. Mother explained, however, that she permitted the unsupervised visitation because she felt sorry for father. Father, in turn, told Holt that he often had unsupervised visits with minors and, on the day of his arrest, had "decided to take justice into [his] own hands" by traveling to Virginia, where he had family.
The report also described the dependency matter in Alameda County involving H.G. This petition stemmed from a report of sexual abuse filed in September 2015 that was based on an interview with H.G. In this interview, H.G. clearly described several instances of sexual abuse by father, all of which occurred in Honduras during a six or seven year period starting when she was about 4 years old. A section 300 petition was filed on behalf of H.G. in Alameda County pursuant to subdivisions (b), (d) and (g), and, following a contested jurisdiction/disposition hearing, the juvenile court sustained the allegations, specifically finding that father, nonparty to those proceedings, committed the acts of sexual abuse.
A referral was subsequently filed in Alameda County with respect to minors, but no petition was ultimately filed once it was determined mother had separated from father, was taking parenting classes, and had otherwise taken steps to protect them from father. Unfortunately, minors were detained and the Kern County petition filed following the events described above, wherein father was arrested for kidnapping and placed in custody after attempting to drive with them to Virginia.
According to the minute order, at the July 25, 2016 hearing in Kern County, "court and counsel accept offer of proof to proposed testimony of [social worker] Bonnie Holt." In addition, father was declared to be the presumed father of minors, and the allegations in the petition were found true after mother waived her right to trial. The court then detained minors after concluding a prima facie case had been made under the relevant provisions of section 300. Father, not present but represented by counsel, made no objection on the record to the case proceeding in his absence and presented no evidence. This matter was then transferred to Contra Costa County for disposition.
Social Worker Marie-Julie de la Fuente submitted a disposition report in anticipation of the disposition hearing recommending minors be adjudicated dependents of the court and mother granted reunification services, but that father be denied such services pursuant to section 361.5, subdivision (b)(6), severe sexual abuse to a half sibling by a parent. Among other things, this report noted that father denied sexually abusing H.G. The court admitted this report into evidence and took judicial notice of the Kern and Alameda County juvenile court findings.
Mother testified at the disposition hearing that she believed father sexually abused H.G., but insisted she did not allow him unsupervised visits with minors. Social worker Rosario Vidales, to the contrary, testified that both father and minor S.G. told her that unsupervised visits had occurred. S.G. also told her that she had a secret that she was too scared to tell because she feared never seeing her parents again if she did. Father told Vidales that H.G.'s accusations of abuse were "lies."
Father did not appear or present evidence at the hearing aside from documents evidencing social programs he had entered. In addition, father's attorney argued that father, stepfather to H.G., was not a party to the Alameda County proceedings involving H.G., and thus was unable to challenge her accusations of sexual abuse. Counsel acknowledged, however, at the court's prompting, that, to his knowledge, father had not attempted to reopen the Alameda proceedings to challenge the court's findings.
At the conclusion of this hearing, the juvenile court, among other things, accepted the recommendation of the department to deny father reunification services after finding clear and convincing evidence that he committed severe sexual abuse against minors' half-sibling, H.G.
DISCUSSION
Father raises essentially one argument on appeal. Specifically, father begins by pointing out that the juvenile court found that mother failed to protect minors - not that minors were at "substantial risk" of being sexually abuse d by father, or that he had violated any court order issued in this case. As such, he claims, the juvenile court lacked a valid evidentiary basis for denying him reunification services. Under these circumstances, father contends, he was denied due process in that he was denied reunification services by the juvenile court in Contra Costa County based upon a finding of sexual abuse made by a judge in Alameda County in dependency proceedings involving H.G. in which he was not named and, thus, presented no defense. For reasons that follow, we reject father's line of argument.
"As a general rule, reunification services are offered to parents whose children are removed from their custody in an effort to eliminate the conditions leading to loss of custody and facilitate reunification of parent and child. This furthers the goal of preservation of family, whenever possible. [Citation.] Nevertheless, as evidenced by section 361.5, subdivision (b), the Legislature recognizes that it may be fruitless to provide reunification services under certain circumstances. [Citation.] Once it is determined one of the situations outlined in subdivision (b) applies, the general rule favoring reunification is replaced by a legislative assumption that offering services would be an unwise use of governmental resources. [Citation.]" (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478.)
Relevant here, section 361.5, subdivision (b)(6) authorizes the juvenile court to bypass reunification services upon finding by clear and convincing evidence that "the child has been adjudicated a dependent pursuant to any subdivision of Section 300 as a result of severe sexual abuse or the infliction of severe physical harm to . . . a sibling, or a half sibling by a parent . . . and 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).) For purposes of this subdivision, "[a] finding of severe sexual abuse . . . may be based on, but is not limited to, sexual intercourse, or stimulation involving genital-genital, oral-genital, anal-genital, or oral-anal contact . . . between the parent or guardian and the child or a sibling or half sibling of the child . . . ." (§ 361.5, subd. (b)(6)(B).)
According to father, the juvenile court erred in finding that section 361.5, subdivision (b)(6) applies because minors were adjudicated dependents based upon failure to protect and sibling abuse, not based upon any finding of severe sexual abuse in this case. Given these circumstances, father insists the juvenile court's finding that minors came within this provision must be reversed on due process grounds because, as a nonparty to the dependency case involving H.G. where the finding of severe sexual abuse was made, he lacked the opportunity to defend against her accusations. Nonsense.
Issues of law (including constitutional issues) are reviewed de novo. (In re Tyrone W. (2007) 151 Cal.App.4th 839, 849.)
Notwithstanding father's position with respect to the Alameda County proceedings, as father himself notes, due process - rooted in basic fairness - is a flexible concept, the application of which depends on the particular circumstances and interests in the matter at hand. (In re A.B. (2014) 230 Cal.App.4th 1420, 1436 [in determining "what process is due," courts look to " 'the private interest that will be affected by the agency's action, the risk of an erroneous deprivation of that interest, the interest in informing parents of the basis for and consequences of the action and in enabling them to present their side of the story, and the agency's interest in expeditious decision making as affected by the burden caused by an additional procedural requirement"].) At minimum, because parents have a fundamental and compelling interest in the companionship, care, and custody of their children, due process in juvenile dependency proceedings requires they be given notice reasonably calculated to advise them that an action is pending and an opportunity to defend against adverse claims. (In re Jasmine G. (2005) 127 Cal.App.4th 1109, 1114; compare In re Jeanette V. (1998) 68 Cal.App.4th 811, 816-817 [noting that, even in hearings under section 366.26 for termination of parental rights, the parent has a due process right to " 'meaningful opportunity to cross-examine and controvert the contents of the report.' [Citations.] But due process is not synonymous with full-fledged cross-examination rights"].) And in these proceedings, father, by all accounts, had adequate opportunity to defend himself before the juvenile court against the sexual abuse allegations raised by H.G., which were documented in the social worker's report(s) and admitted into evidence. Father makes no claim that his attorney was in any way restricted in cross-examining the testifying social worker, or mother, regarding the sexual abuse allegations that were at the heart of these dependency proceedings (not just the proceedings involving H.G.). Nor does father claim the juvenile court erred in taking judicial notice of the juvenile court's findings in the Alameda County proceedings involving H.G. (See Evid. Code, § 452, subd. (d) [ court may take notice of the "[r]ecords of (1) any court of this state"].) Yet, although represented by counsel at each of the contested hearings in this matter, father declined to seriously challenge any of the evidence relating to his abuse. Under these circumstances, we conclude there was no violation of his procedural due process rights.
Finally, we hasten to add in closing that father has not challenged the sufficiency of the evidence supporting the juvenile court's section 361.5, subdivision (b)(6) findings on appeal. While father does point to his many vehement denials of H.G.'s accusations reflected in evidence (including in the social worker's report), his denials do not undermine the substantial evidence in the record supporting the court's contrary findings. The law thus provides no basis for reversal: " ' " ' "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.]' [Citation.]" (In re Z.G. (2016) 5 Cal.App.5th 705, 720.)
Accordingly, the juvenile court's section 361.5, subdivision (b)(6) findings and order denying father reunification services stand.
DISPOSITION
The findings and order denying father reunification services is affirmed.
/s/_________
Jenkins, J. We concur: /s/_________
McGuiness, P. J. /s/_________
Siggins, J.