Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SJ12448A-B, Garry G. Haehnle, Judge.
McDONALD, Acting P. J.
Ruben S., Sr., appeals following the dispositional hearing in the juvenile dependency case of his two-year-old son, Ruben S., Jr., (Jr.) and his nearly one-year-old daughter, Angie S. (together the children). Ruben contends the court erred by denying him reunification services and by continuing a no-contact order. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In September or October 2009, 10-year-old Y.R. began living with her mother, Y.L. Also living in the home were Y.L.'s boyfriend, Ruben, and their son, Jr., who was approximately one year old. Y.L. was pregnant with Angie.
One afternoon in October 2009, Y.R. was at home, caring for Jr. while Y.L. was at work. Y.R. gave Jr. a bottle and lay on Y.L.'s bed with him. Ruben entered the room, got on top of Y.R., held her down, removed her pants and underwear and removed his own pants and underwear. Ruben penetrated Y.R.'s vagina with his penis and "kept 'moving and moving' his body." Y.R. cried and repeatedly told Ruben to stop. After he finally stopped, he hit her and told her not to tell anyone. The same thing occurred approximately one week later. Jr. was present on both occasions but was asleep the second time. Y.R. experienced pain during and after the rapes.
On October 12, 2009, the San Diego County Health and Human Services Agency (the Agency) received a report that since Y.R. had moved into the home, Ruben had been hitting her "all over, " mostly on her arms and legs, "for no reason." When the police questioned Y.R. about the hitting, she did not reveal the sexual abuse. She later explained Ruben "was a really bad person" and he had told her that if he went to jail he would send someone to hurt her family.
The Agency labeled the report of physical abuse "inconclusive." An "[i]nconclusive report" is one "that is determined by the investigator... not to be unfounded, but the findings are inconclusive and there is insufficient evidence to determine whether child abuse or neglect... has occurred." (Pen. Code, § 11165.12, subd. (c).)
Two weeks after moving in with Y.L. and Ruben, Y.R. left their home to live with an adult cousin (the cousin). Angie was born in November 2009. Ruben was the children's primary caretaker during the day while Y.L. worked.
Around April 2010, Y.R. told her best friend about the sexual abuse. Around August Y.R. told her maternal grandmother Ruben had held her down and raped and molested her. During a telephone conversation on August 22, Y.R. told Y.L. about the rapes but Y.L. did not believe her. On August 22 or 23, Y.R. told the cousin about the rapes. The matter was reported to the police.
On August 27, 2010, a babysitter employed by the cousin saw Y.R. with a pair of scissors trying to cut herself. The cousin observed cut marks on Y.R.'s wrist. When the cousin asked why she had cut herself, Y.R. responded she continued "to think about that."
In September 2010, during a forensic interview, Y.R. repeated that Ruben had raped her on two occasions. Y.R. said she had cut her wrist with the scissors "because 'of all my problems.' " A physical examination revealed a deep cleft in Y.R.'s hymen, consistent with her report, and considered abnormal. The examiner concluded that sexual abuse was suspected but indeterminate.
In September 2010, the Agency filed dependency petitions for Jr., then nearly two years old, and Angie, then nearly one year old. Each petition alleged two counts (Welf. & Inst. Code, § 300, subds. (b) ["The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent... to adequately supervise or protect the child...."] & (j) ["The child's sibling has been abused or neglected..., and there is a substantial risk that the child will be abused or neglected...."]). The petitions alleged that in October 2009, Ruben sexually abused and hit Y.R. in Jr.'s presence, and after Y.R. disclosed the abuse Y.L. left the children in Ruben's care.
All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
The children were detained with Y.L. at a confidential location. At the detention hearing in September 2010, the court found that contact with Ruben would be detrimental to the children and ordered no contact by him with them. In October Ruben was arrested and charged with two counts each of committing a lewd act on a child by force (Pen. Code, § 288, subd. (b)(1)) and sexual acts with a child (Pen. Code, § 288.7). At a hearing in the juvenile court later that month, Ruben agreed that visitation with the children would not be in their best interests. The court ordered no visitation.
Ruben was convicted in 2008 of robbery and battery with serious bodily injury. The record does not reveal the circumstances of those crimes.
At the jurisdictional and dispositional hearing in November 2010, the court made true findings on both counts of Jr.'s petition and on the section 300, subdivision (b), count of Angie's petition. The court ordered the children removed from Ruben's custody and placed with Y.L. The court denied Ruben reunification services, citing his sexual abuse of Y.R. (§ 361.5, subd. (b)(6)), and denied Ruben visitation while he remained in custody.
The court dismissed the section 300, subdivision (j), count of Angie's petition.
THE DENIAL OF SERVICES
The juvenile court may deny reunification services if it finds, by clear and convincing evidence, "[t]hat the child has been adjudicated a dependent... as a result of severe sexual abuse... to... 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...." (§ 361.5, subd. (b)(6).) "In determining whether reunification services will benefit the child..., the court shall consider any information it deems relevant, including the following factors: (1) [t]he specific act or omission comprising the severe sexual abuse... inflicted on... the child's... half sibling[;] (2) [t]he circumstances under which the abuse... was inflicted on... the child's... half sibling[;] (3) [t]he severity of the emotional trauma suffered by... the child's... half sibling[;] (4) [a]ny history of abuse of other children by the offending parent... [;] (5) [t]he likelihood that the child may be safely returned to the care of the offending parent... within 12 months with no continuing supervision[; and] (6) [w]hether or not the child desires to be reunified with the offending parent...." (§ 361.5, subd. (i).)
If the juvenile court determines that section 361.5, subdivision (b)(6) applies, it "shall not order reunification [services] for" the offending parent unless it "finds, by clear and convincing evidence, that reunification is in the best interest of the child." (§ 361.5, subd. (c).) " ' "[O]nce 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.]" ' [Citation.] The burden is on the parent to change that assumption and show that reunification would serve the best interests of the child." (In re William B. (2008) 163 Cal.App.4th 1220, 1227.) In deciding whether reunification is in the child's best interests, the court considers the parent's current efforts, fitness, and history; the seriousness of the problem that led to the dependency; the strength of the parent-child and caretaker-child bonds; and the child's need for stability and continuity. (Id. at p. 1228.) A best interests finding requires a likelihood reunification services will succeed—"some 'reasonable basis to conclude' that reunification is possible...." (Id. at pp. 1228-1229.)
Severe sexual abuse includes sexual intercourse and other sexual touching. (§ 361.5, subd. (b)(6).) Here, the juvenile court found there was clear and convincing evidence of "severe sexual abuse of [Y.R.], either sexual intercourse or general touching which I will qualify as severe sexual abuse...." The court then found, by clear and convincing evidence, that the children would not benefit from reunification services and it was not in their best interests that Ruben receive services. The court based these findings on the following factors. Ruben forcibly raped Y.R. She "tried to fight him off" and suffered severe emotional trauma. She was afraid to disclose the rape, and when she did, Y.L. did not believe her. (§ 361.5, subd. (i)(1), (2), (3); In re William B., supra, 163 Cal.App.4that p. 1228.)
"A finding of severe sexual abuse, for the purposes of this subdivision, may be based on, but is not limited to, sexual intercourse, or stimulation involving genital-genital... contact, ... between the parent... and... a... half sibling of the child...; or the penetration or manipulation of the... half sibling's genital organs... by any animate or inanimate object for the sexual gratification of the parent...." (§ 361.5, subd. (b)(6).)
Substantial evidence supports the court's findings. (Jose O. v. Superior Court (2008) 169 Cal.App.4th 703, 708 [best interests finding is reviewed for substantial evidence]; Tyrone W. v. Superior Court (2007) 151 Cal.App.4th 839, 852-853, 855 [severe sexual abuse and benefit findings are reviewed for substantial evidence]; Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96 [denial of services under § 361.5, subd. (b), is reviewed for substantial evidence].) Ruben hit and forcibly raped Y.R. on two occasions, causing her physical pain and emotional trauma. Ruben jeopardized Jr.'s safety by committing the rapes on the bed where Jr. lay. Ruben threatened to hurt Y.R.'s family. Even if Ruben received services for the maximum time allowed, the children would still be too young to protect themselves. It is clear that Ruben is unable to provide them with "permanency and stability throughout the remainder of their childhoods." (In re William B., supra, 163 Cal.App.4th at p. 1229.) Ruben's doubts about Y.R.'s credibility, the passage of time since the rapes, the characteristics that distinguish Y.R. from the children and Y.L's belief that Ruben was an excellent caregiver of the children do not undermine this conclusion.
Ruben acknowledges that the criminal charges "may land him in prison for the rest of his life." He was still in local custody 11 days after the jurisdictional and dispositional hearing, but the record does not contain the status of the criminal case.
Ruben notes that Y.R. delayed in reporting the rapes and did not testify under oath, there was no "irrefutable physical evidence" and he had not been criminally convicted. He did not object below to the evidence regarding his rapes of Y.R. and does not challenge the true findings. Ruben also argues that "any molestation ceased long before the reports were made." After the rapes, Y.R. moved away and no longer lived in Ruben's home.
Ruben notes that he is not related to Y.R., she was a recent addition to his household and she is older than the children.
To state the obvious: a person who is an excellent caregiver of his children does not rape a child in the immediate presence of his own child.
THE NO CONTACT ORDER
At the jurisdictional and dispositional hearing, Ruben acknowledged it would not be in the children's best interests to visit him in jail. He requested an order for supervised visitation so he could visit them on his release, and agreed not to exercise his visitation rights while he was in custody. Ruben expressly objected to a no-contact order.
The court denied Ruben visitation while he remained in custody, citing the true findings and Ruben's agreement that visitation at the jail would not be in the children's best interests. The court stated it would address visitation at a new hearing on Ruben's release.
Ruben now contends the children would benefit from contact with him. In the juvenile court, however, he acknowledged that jail visits were not in their best interests. Furthermore, the court agreed to reassess the visitation issue upon Ruben's release. Thus, Ruben is not aggrieved by the visitation prohibition. In any case, Ruben's threats and violence support the conclusion that contact would not be in the children's best interests. (In re J.N. (2006) 138 Cal.App.4th 450, 459.) The no-contact order was not an abuse of discretion. (Ibid.)
The record does not disclose the form or frequency of any visitation permitted by the jail. (In re Monica C. (1995) 31 Cal.App.4th 296, 307.) The children were too young for meaningful contact by telephone or letter.
DISPOSITION
The judgment is affirmed.
WE CONCUR: O'ROURKE, J., AARON, J.