Opinion
E068181
02-05-2018
In re B.B. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. A.B., Defendant and Appellant.
Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant. Jean-Rene Basle, County Counsel, and Dawn M. Martin, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.Nos. J268977, J268978, J268979 & J268980) OPINION APPEAL from the Superior Court of San Bernardino County. Annemarie G. Pace, Judge. Affirmed. Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant. Jean-Rene Basle, County Counsel, and Dawn M. Martin, Deputy County Counsel, for Plaintiff and Respondent.
I
INTRODUCTION
Father appeals the juvenile court order denying him reunification services under Welfare and Institutions Code section 361.5, subdivision (b)(6), based on allegations he sexually abused his step-daughter, NB (16 years old). Father argues that his two biological daughters, MB (13 years old) and BDB (11 years old), and biological son, BB (8 years old), are not at risk of sexual abuse and want to return to his care. Father contends the trial court erred in denying him reunification services because the three biological children would benefit from Father receiving reunification services, and granting him reunification services is in their best interests. We affirm the order denying Father reunification services.
Unless otherwise noted, all statutory references are to the Welfare and Institutions Code. Section 361.5, subdivision (b)(6) is referred to herein as section 361.5(b)(6).
Mother is not a party to this appeal. Her appeal was dismissed as abandoned after her attorney filed a Sade C. brief and Mother did not file a supplemental brief.
This appeal does not concern the separate juvenile dependency petition brought by the San Bernardino County Children and Family Services (CFS) regarding NB, based on Mother's failure to protect NB, and NB's biological father's (JB) failure to provide adequate care and supervision of NB. This appeal only concerns CFS's three separate petitions as to Father's biological children, MB, BDB, and BB. --------
II
FACTUAL AND PROCEDURAL BACKGROUND
On January 9, 2017, CFS filed three separate juvenile dependency petitions (Petition) on behalf of MB, BDB, and BB. The Petition is based on Father sexually abusing NB, the biological daughter of Mother and JB.
On January 5, 2017, four days before filing the Petition, CFS received four reports that Father had sexually abused NB. CFS interviewed NB while she was hospitalized for suicidal ideations. NB stated that Father had inflicted upon her "long-term abuse," beginning when she was two years old. He began sexually abusing her when she was "really young," by touching her "vaginal area." When she was in the fifth or sixth grade, he attempted to sodomize her. She cried and pushed him away. On other occasions, he put his fingers in her vagina. Father sexually abused her in her bedroom and in a small storage room outside their house. It usually happened when Mother was with the other children. NB said it had been three years since Father last abused her. NB previously told Mother and maternal relatives Father had sexually abused her. Mother did not initially believe NB, and did not contact law enforcement then or after NB recently told her. Instead, Mother moved NB to a downstairs bedroom and "put a lock on the door so that [Father] would not have access to the room."
During the interview, NB told CFS she wanted to kill herself because Mother did not believe her and NB thought it would be better if she died. In December 2006, NB's paternal aunts tried to help NB leave her home but Mother prevented her from leaving. NB believed Father would not sexually abuse MB and BDB because they were his biological daughters.
Mother told CFS she had had a relationship with Father for 13 years and that NB had told her more than once that Father had sexually abused her. Mother did not report the abuse to law enforcement because NB told her she did not want Mother to do so. Instead, Mother moved NB's bedroom downstairs and put a lock on her door. When CFS asked Mother if she believed Father had abused NB, Mother responded, "If she said it happened, I have to believe it happened."
CFS also interviewed MB, BDB, and BB. MB said she was aware of NB's sexual abuse allegations but denied any "firsthand knowledge" of it. MB stated that Father played with the children but "wouldn't touch us." MB thought NB made up the allegations because she wanted to stay with her aunt. BDB and BB also denied any past or current sexual abuse by Father. CFS removed MB, BDB, and BB from the family home on January 5, 2017. The four children were placed together in foster care.
CFS interviewed Father by telephone. He was very emotional and denied all allegations of abuse. He believed NB made up the allegations because she wanted to live with her biological father, JB. Father told CFS that NB was well behaved and he treated all his children the same. He left the family home at Mother's request, after CFS removed the children.
CFS alleged in the Petition that Mother had failed to protect NB from sexual abuse by Father. This placed MB, BDB, BB, and NB at risk of abuse and neglect. CFS also alleged that Father had sexually abused MB, BDB, and BB's siblings. Therefore MB, BDB, and BB were at risk of suffering serious harm or abuse while in Father's care and custody. At the detention hearing, the court ordered MB, BDB, BB, and NB detained in protective custody and granted Father supervised visits with MB, BDB, and BB.
Jurisdiction/Disposition Hearing
During an interview on January 19, 2017, Mother told CFS that NB reported the sexual abuse about three years earlier. NB told Mother she did not want Mother to report it to the police because she "did not want to talk about it to strangers." Mother told CFS she realized it was inappropriate to leave to NB the decision of whether to call the police. CFS also interviewed MB, BDB, and BB, who again denied they had seen or experienced any inappropriate touching by Father. NB confirmed Father molested her when she was younger and Mother did not ask Father to leave their home after NB told her about the abuse. The abuse occurred "over a period of time in different homes." She did not feel safe at home and wanted to live with her uncle. Father stated on January 20, 2017, that, in accordance with his attorney's advice, he was unable to discuss the case.
In February 2017, the four children were removed from their current foster home because of difficulties in their home. NB was placed in a foster home separate from that of MB, BDB, and BB.
In March 2017, Mother and a paternal aunt filed section 388 petitions. Mother requested placement of the children with a maternal uncle. The paternal aunt requested placement of the children with her. The juvenile court denied both section 388 petitions on the ground the court had not yet taken jurisdiction over the children or considered the disposition. Placement would be at issue and determined at the future jurisdiction/disposition hearing.
During the jurisdiction/disposition hearing on April 13, 2017, Mother testified that, "[w]hen she was little," NB first told mother Father had molested her. NB said it only happened once. The next time NB told Mother Father abused her was in July 2016. NB told Mother that the abuse occurred 10 years before. This was the last time Father abused her.
Father's attorney objected to the jurisdictional findings and to CFS denying Father reunification services. The attorney for MB, BDB, and BB informed the court that MB, BDB, and BB wanted to return to Mother and Father's home as soon as possible. However, their attorney advised against this. He believed returning MB, BDB, and BB to Mother and Father's custody was not in their best interests because there was sufficient evidence to support the sexual abuse allegations. MB, BDB, and BB's attorney also was concerned about Mother's ability to protect the children. He felt she "wishes to put her head in the sand and [he could] not advocate for [his] clients to go back until that is addressed thoroughly."
The trial court sustained the petition allegations, declared MB, BDB, and BB dependent children of the court, ordered the children removed from Mother and Father's custody, and denied Father reunification services under section 361.5(b)(6).
III
BYPASSING REUNIFICATION SERVICES
Father contends the juvenile court abused its discretion by denying him reunification services on the ground granting them was not in the best interests of MB, BDB, and BB. A. Applicable Law
Generally, the juvenile court is required to provide reunification services to a child and the child's parents when a child is removed from parental custody under the dependency laws. (§ 361.5, subd. (a).) The purpose of providing reunification services is 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." (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478.) It is also the intent, however, of the Legislature "that the dependency process proceed with deliberate speed and without undue delay." (Marlene M. v. Superior Court (2000) 80 Cal.App.4th 1139, 1151.) "Thus, the statutory scheme recognizes that there are cases in which the delay attributable to the provision of reunification services would be more detrimental to the minor than discounting the competing goal of family preservation. [Citation.] Specifically, section 361.5, subdivision (b), exempts from reunification services '"those parents who are unlikely to benefit"' [citation] from such services or for whom reunification efforts are likely to be 'fruitless' [citation]." (Jennifer S. v. Superior Court (2017) 15 Cal.App.5th 1113, 1120.)
When the juvenile court concludes reunification efforts should not be provided, it "fast-tracks" the dependent minor to permanency planning so that permanent out-of-home placement can be arranged. (Jennifer S. v. Superior Court, supra, 15 Cal.App.5th at p. 1121.) The statutory sections authorizing denial of reunification services are commonly referred to as "bypass" provisions. (Ibid.)
Under by-pass section 365.1(b)(6), reunification services need not be provided if the court finds by clear and convincing evidence that "severe sexual abuse or the infliction of severe physical harm to the child, a sibling, or a half sibling by a parent or guardian, as defined in this subdivision, 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(b)(6).)
"In determining whether reunification services will benefit the child pursuant to [section 361.5, subdivision (b)(6)], the court shall consider any information it deems relevant, including the following factors: [¶] (1) The specific act or omission comprising the severe sexual abuse or the severe physical harm inflicted on . . . the child's sibling or half sibling[;] [¶] (2) The circumstances under which the abuse or harm was inflicted on . . . the child's sibling or half sibling[;] [¶] (3) The severity of the emotional trauma suffered by the child or the child's sibling or half sibling[;] [¶] (4) Any history of abuse of other children by the offending parent . . . [;] [¶] (5) The likelihood that the child may be safely returned to the care of the offending parent . . . within 12 [*281] months with no continuing supervision[;] [¶] (6) Whether or not the child desires to be reunified with the offending parent . . . ." (§ 361.5, subd. (i).)
Once it has been determined one of the situations enumerated in section 361.5, subdivision (b) applies, such as section 361.5(b)(6), "'"the general rule favoring reunification is replaced by a legislative assumption that offering services would be an unwise use of governmental resources. [Citation.]"' [Citation.]" (In re William B. (2008) 163 Cal.App.4th 1220, 1227; in accord, In re A.G. (2012) 207 Cal.App.4th 276, 281.) Thus, under section 361.5, subdivision (c)(2), "[t]he court shall not order reunification for a parent . . . described in [section 361.5, subdivision (b)(6)] unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child." (§ 361.5, subd. (c)(2).) "The burden is on the parent to . . . show that reunification would serve the best interests of the child." (William B., at p. 1227; in accord, In re A.G, at p. 281.)
"We review an order denying reunification services under [section 361.5(b)(6)] for substantial evidence. [Citation.] Under such circumstances, we do not make credibility determinations or reweigh the evidence. [Citation.] Rather, we 'review the entire record in the light most favorable to the trial court's findings to determine if there is substantial evidence in the record to support those findings.' [Citation.] In doing so, we are mindful of the higher standard of proof required in the court below when reunification bypass is ordered." (Jennifer S. v. Superior Court, supra, 15 Cal.App.5th at pp. 1121-1122.) B. Validity of the Bypass Order Denying Father Reunification Services
Here, the juvenile court found during the jurisdiction hearing that Father committed "severe sexual abuse" against NB, based upon "clear and convincing evidence." The court further found bypassing reunification services for Father was appropriate under section 361.5(b)(6), based upon a determination that offering Father services was not in the best interests of MB, BDB, and BB.
Father concedes in his appellant's opening brief that the bypass provision, section 361.5(b)(6), is applicable. Father, however, argues that the evidence was insufficient to support the juvenile court's finding that reunification services for Father were not in the best interests of MB, BDB, and BB. The best interests determination requires consideration of (1) the parent's current efforts, (2) the parent's fitness, (3) the parent's history, (4) the seriousness of the problem that led to the dependency, (5) the strength of the parent-child and caretaker-child bonds, and (6) the child's need for stability and continuity. (In re A.G., supra, 207 Cal.App.4th at p. 281.) "A best interests finding also requires a likelihood that reunification services will succeed. [Citation.] '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.]'" (Ibid., quoting In re William B., supra, 163 Cal.App.4th at pp. 1228-1229.)
Here, there is substantial evidence supporting the juvenile court's determination that offering reunification services to Father is not in MB, BDB, and BB's best interests. The court explained that it found regarding "the allegations with respect to [NB] . . . that [NB's] disclosures are credible. The details that she gives are compelling. And the way the disclosures were made are perfectly consistent with the way these kinds of allegations or abuse get disclosed; it's not uncommon in any way." The court added that it wanted to highlight that "it's not just actual harm that we're talking about with these kids. These allegations include the risk of harm, which I find to be compelling in this case given the lack of protectiveness I saw and the actual abuse that I found to be true."
During the disposition portion of the hearing, the court stated that, as to Father, the court did "not have any clear and convincing evidence that reunification is in the kids' best interest. I'm taking into account the act comprising the sexual abuse, including digital penetration, sodomy or attempted sodomy of [NB], the circumstances under which that abuse was inflicted; including in her own home by a family member, and the severity of the emotional trauma, which is severe in this case and not unexpected, that [NB] has gone through. [¶] The likelihood that the children may be returned safely within 12 months is not very strong." The court noted it was taking into consideration that MB, BDB, and BB wished to be reunified, but the court concluded this was outweighed by the risk of harm to the children, which supported denying Father reunification services.
Father argues that reunification services were in MB, BDB, and BB's best interests because he had raised and supported the children; the children were closely bonded to him; they emphatically stated they wanted to reunify with Mother and Father as soon as possible; and there was no evidence Father ever abused MB, BDB, and BB. Father maintains that if he received reunification services addressing NB's sexual abuse allegations, he would likely succeed in reunifying with MB, BDB, and BB. But Father also held a parental role as to NB, and there was substantial evidence he committed long-term, severe sexual abuse against NB, causing her serious emotional trauma.
In addition, Mother and Father had a CFS history, which included a 2005 referral from a health care professional that NB may have been sexually abused by an unknown perpetrator when she was two years old. CFS also received a referral in 2010, from a health care professional, stating that BB may have been sexually abused by an unknown perpetrator when he was nine months old. Furthermore, it was unlikely Father would reunify with MB, BDB, and BB, because of Father's serious sexual abuse of NB, and because the evidence demonstrated it was unlikely Mother would protect the other children from Father. There was overwhelming evidence that NB informed Mother on several occasions that Father was sexually abusing her and Mother did little, if anything, to protect NB. Mother permitted Father to remain in the family home and did not contact law enforcement. Also, Mother stated she did not believe Father would abuse the other children. "[I]t is a 'commonsense notion that any child who is residing with a parent . . . who has sexually abused the child's sibling, and/or a parent who has minimized the sexual abuse of the child's sibling, is living in a dysfunctional and potentially harmful environment.'" (In re A.G., supra, 207 Cal.App.4th at p. 281, quoting In re Maria R. (2010) 185 Cal.App.4th 48, 68.) The risk would be even greater if Father was no longer living in the family home with Mother, as was the case at the inception of the instant proceedings. Absent juvenile court supervision, the children could be spending time alone with Father away from Mother's home, thereby providing greater opportunity for sexual abuse.
The improbability of Father reunifying with MB, BDB, and BB is further apparent from the fact that, although MB, BDB, and BB requested to be returned to Father's care as soon as possible, their attorney advised the court against doing so because he believed the children would be at risk of harm. This, no doubt, is because, as stated in Los Angeles County Dept. of Children & Family Services v. Superior Court (2013) 215 Cal.App.4th 962, 968, "[c]ases overwhelmingly hold that sexual abuse of one child may constitute substantial evidence of a risk to another child in the household—even to a sibling of a different sex or age or to a half sibling." "Undoubtedly, appellate courts have rarely if ever been faced with a situation in which a father sexually molests one female minor in the household and the juvenile court does not find another female minor in the household to be at risk. The cases cited categorically state that aberrant sexual behavior directed at one child in the household places other children in the household at risk, and this is especially so when both children are females." (Id. at p. 970.) "The juvenile court's distinction between a stepdaughter and a biological daughter is contrary to the holdings and language of the cases that suggest sexual abuse of one child in the household puts at risk other children in the household. As one authority has written, '"Incest," as used herein encompasses not only sexual relations between a child and a biological parent, but also between a child and an adult who has assumed a parenting role toward the child, whether that adult is married or cohabits with the child's parent.'" (Ibid.)
We conclude the juvenile court did not abuse its discretion in denying Father reunification services pursuant to section 361.5(b)(6), because substantial evidence supported its finding that Father severely sexually abused NB and offering reunification services as to his other children was not in their best interests.
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: RAMIREZ
P. J. FIELDS
J.