Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Los Angeles County Super. Ct. No. CK53816
APPEAL from an order of the Superior Court of Los Angeles County. Richard D. Hughes, Juvenile Court Referee. Affirmed in part and dismissed in part.
Anna L. Ollinger, under appointment by the Court of Appeal, for Defendant and Appellant, S.S.
Andrea R. St. Julian, under appointment by the Court of Appeal, for Defendant and Appellant, Albert F.
Raymond G. Fortner, County Counsel, James M. Owens, Assistant County Counsel and Aileen Wong, Deputy County Counsel, for Plaintiff and Respondent.
MANELLA, J.
Appellants S.S. (Mother) and Albert F. appeal from the juvenile court’s jurisdictional finding that their daughters fall within dependency jurisdiction under Welfare and Institutions Code section 300, subdivisions (b), (d), and (j). In addition, Albert appeals the court’s disposition, which denied him reunification services and granted absolute discretion over visitation to DCFS. We affirm the jurisdictional order and affirm the portion of the dispositional order that dealt with reunification services. With respect to the portion of the disposition order that dealt with visitation, we dismiss the appeal as moot.
Unless otherwise indicated, statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
A. Original Intervention
1. Original Petition
Mother has four young daughters. Jose M. is the father of T.M., the oldest, born in April 2001. Albert is the father of the second, H.F., born in July 2003. The third -- L.F. -- was born in January 2005. The fourth girl -- C.S. -- was born in October 2006.
L.F. shares Albert’s last name and Albert was identified by Mother and in the petition that sought jurisdiction over L.F. as her biological father. However, the court found at the June 2006 detention hearing that he was an alleged father only. The finding was based on Mother’s testimony that Albert was not on the birth certificate, was not present at the birth, and had not supported or lived with L.F.
Mother identified Ivelle Jennings as C.S.’s father. Jennings denied being the father, and the court ultimately found he was not.
The two older girls -- T.M. and H.F. -- came to the attention of DCFS five years ago, in October 2003, when T.M. was 2 and H.F. was a few months old. DCFS and the police were called by T.M.’s father, Jose, who had noticed during a weekend visitation multiple bruises on her legs and arms. Jose also told the caseworker that he had noticed similar bruises on T.M. before and said that when he complained to Mother, Albert punched him in the face. Mother admitted hitting the girl with a belt or purse strap.
In the initial petition, DCFS alleged physical abuse and excessive discipline of T.M. by Mother and sought jurisdiction over both girls. Jurisdiction over H.F. was based solely on sibling abuse. Mother was the only offending parent identified.
2. Amended Petition
After further investigation, DCFS uncovered evidence that Albert had a criminal history in California and Las Vegas, Nevada which included possession of marijuana and domestic violence. DCFS filed an amended petition to add allegations concerning Albert’s history and the previously reported incident in which he struck Jose. The court sustained allegations that: (1) Mother “inappropriately physically disciplined” T.M.; (2) T.M. was exposed to a violent altercation between Jose and Albert; (3) Albert had “an unresolved history of domestic violence which include[d] criminal convictions” that endangered H.F.; and (4) H.F. was endangered due to the physical abuse of her half-sibling, T.M., by Mother.
Albert contested the petition. During his testimony, he admitted that he had been arrested multiple times for domestic violence and once for possession of marijuana. He stated that the charges arose years earlier, when he was involved with a different woman, and denied engaging in physical violence. Mother submitted on jurisdiction.
3. Albert’s Abandonment of H.F. and Third Petition
Initially, the two girls were left in the custody of their respective fathers, Jose and Albert. The disposition included family maintenance services for Albert, and Albert was offered parent education and anger management classes and individual counseling to address anger and domestic violence. Albert made some preliminary progress by enrolling in parenting classes in February 2004. Shortly thereafter, when his daughter H.F. was less than a year old, Albert left her with his mother (the paternal grandmother), telling the caseworker he was moving out of state for employment purposes.
There was conflicting evidence concerning whether Albert and Mother were living together at the time of the abuse and detention. Albert reported he had been living with H.F., apart from Mother, and that they had “broke[n] up” before H.F.’s birth; Mother reported she was “homeless.” However, Jose reported that they appeared to be living together, as he had regularly picked up and dropped off his daughter T.M. at Albert’s residence, including the day he was punched and the weekend he noticed the bruises.
The caseworker also received information (1) that Albert was leaving California to get away from DCFS pressures rather than for employment purposes; (2) that he had returned to California; and (3) that he had never left California and was still associating with Mother.
In March 2004, DCFS filed another amended petition, alleging that Albert had abandoned H.F. without support and failed to inform DCFS of his whereabouts or plans for return. DCFS transferred custody of H.F. to the paternal grandmother. At the April 2004 disposition hearing, the court ordered reunification services, including parent education and counseling, for Albert and monitored visitation once he contacted DCFS. Albert, however, had ceased all communication with DCFS, and there was no evidence he was participating in any type of services. The caseworker received reports that he was living and working in Texas and occasionally came to California to visit his daughter, but was unable to confirm an address or telephone number in Texas.
4. Mother’s Reunification with T.M. and H.F.
Mother, ordered at the original dispositional hearing to undergo counseling to address case issues, including anger management, complied with her reunification program and made significant progress. She obtained housing and employment and provided financial support for the girls. Her visitation with the girls progressed to unmonitored overnight on weekends.
In May 2005, Mother fulfilled the last of her reunification obligations -- obtaining a certificate of completion for counseling. The court returned T.M. and H.F. to her custody. At the same time, the court formally terminated reunification services for Albert. Mother was ordered not to allow any contact between the children and Albert until he had contacted DCFS “except if necessary to address issues regarding [H.F.].”
Throughout the reunification period, Jose expressed the desire to have full custody of his daughter T.M. He attempted to persuade the caseworker that T.M. would not be safe with Mother. In August 2004, he told the caseworker that T.M. had fresh bruises on her body, suggesting that Mother had beaten her again. The caseworker investigated and uncovered no evidence of abuse. In January 2005, Jose told the caseworker that Mother had not been regularly picking up T.M. for their overnight weekend visits. The caseworker confirmed with other witnesses that Mother was regularly with T.M. on the weekends. That same month, Jose reported that T.M. had told him she saw Albert hit Mother and for that reason, did not want to live with Mother. However, T.M. consistently told the caseworker she wanted to live with Mother and cried when the caseworker told her she would have to wait. At the May 2005 hearing at which T.M. was returned to Mother’s custody, Jose objected, claiming, among other things, that Mother once said Albert had molested T.M. when she was two.
By November 2005, Mother had returned T.M.’s full-time physical custody to Jose because she was working long hours and needed help with childcare. She retained H.F. DCFS recommended termination of dependency jurisdiction. However, at the November 2005 hearing, counsel for the minors informed the court she had been unable to confirm where Mother was living, and asked for a continuance in order to ascertain her status and that of the children. The court set a review hearing for May 2006. The court reiterated that there would be no visitation with H.F. by Albert unless he contacted DCFS, or the court, and only monitored visitation if he did.
In June 2006, the court made a second attempt to terminate jurisdiction. Once again, DCFS and the minor’s attorney had been unable to confirm Mother’s location and the status of the children. There were reports that Mother had moved to Las Vegas with Albert and concerns that she was deliberately evading contact with DCFS.
The court did not learn about the sexual abuse allegation that led to the second intervention until June 26, 2006.
B. Second Intervention
1. New Petitions
In March 2006, Jose informed the caseworker that some time earlier, T.M. had been inappropriately touched on her vagina by Albert. According to Jose, T.M. had reported this incident some period after the fact in separate conversations with Jose and his wife, Anne M. The caseworker interviewed T.M., who denied the touching occurred and said Jose had told her to say it had. The caseworker preliminarily concluded that the allegation was unsubstantiated but continued her investigation by speaking with Mother. Shortly thereafter, she went on medical leave and a new caseworker was assigned.
Interviewed by the new caseworker in June 2006, Jose and Anne reiterated that T.M. had, in separate conversations with each of them, accused Albert of touching her genital area. T.M. told Anne first. Anne told Jose, but Jose did not report it until T.M. repeated the accusation directly to him, sometime later. T.M. said that the abuse occurred on an occasion when she had been left alone with Albert, while Mother was out shopping.
Jose subsequently told the caseworker that he was first told on March 16, 2006 and that he informed the former caseworker a few days later. He expressed the belief that the abuse occurred during a visit with Mother in February 2006.
Interviewed by the new caseworker on two occasions in June, T.M. said that Albert touched her inappropriately “a lot of times” when Mother went out to run errands. T.M. also said that Albert touched the two younger girls; that Albert and Mother fought all the time; that Albert hit Mother; and that Albert beat her (T.M.) with a belt when she misbehaved.
A nurse examined T.M. T.M. told the nurse that Albert had digitally penetrated her and her two younger sisters at a time when Mother was not present. The examination revealed that T.M.’s hymenal tissue had been torn and had healed with a jagged edge. The nurse opined that the injury was caused by a fingernail.
When interviewed by the caseworker in June, Mother denied any contact between herself and Albert or between him and the girls, stating that he was incarcerated in California and was about to be extradited to Texas. Mother said she had not lived with Albert at any time after the last hearing. Instead, she had lived with his mother until January 2006 and then moved into a shelter. She also said she had seen very little of T.M. since relinquishing her to Jose in 2005 -- visiting with her only once in 2006, on Easter at the maternal grandmother’s house. Interviewed a second time a few days later, she said that she did not believe Albert would “do this” (molest T.M.) and that she never left T.M. alone with him, but that she believed T.M. must be telling the truth. Albert called the caseworker and said he was living in Texas and had not been in California for more than a year.
Jose and Anne reported that they had seen Mother and Albert together when Mother picked up and dropped off T.M.
Easter fell on April 16 in 2006. Jose said T.M. had had overnight visits with Mother in February 2006 and on May 16, 2006. The caseworker discovered that Mother had signed T.M. out of school on April 25, 2006 and May 16, 2006.
A statement from the maternal grandmother conflicted with Albert and Mother’s statements. The grandmother reported that Albert was not incarcerated and that she had seen him in California three months earlier (in March 2006). The grandmother also stated that Mother and Albert had lived together in Las Vegas.
According to Mother, she left the younger children with their grandmother and went on her own to live in Las Vegas from February to April 2006. At the time of the detention (June 2006), she was on a wait list for subsidized housing in Nevada, but denied she was planning to live with Albert there.
DCFS filed a new set of petitions and detained H.F. and her new baby sister, L.F., placing them in foster care. T.M. remained with Jose and Anne. The petitions alleged that Albert sexually abused T.M. by fondling her vagina and that Mother failed to take action to protect her although she “knew that [Albert] was sexually abusing the child.” With respect to H.F. and L.F., the petitions alleged that they were in danger due to Albert’s sexual abuse of their sibling. The allegations were subsequently amended to include assertions that Albert digitally penetrated T.M. and inappropriately touched H.F. and L.F.
Although L.F. had been born in January 2005, during the active phase of the first intervention, DCFS had not sought to assert jurisdiction over her until the allegations of sexual abuse arose. DCFS filed a new petition as to L.F. and a supplemental petition as to T.M. and H.F.
In August 2007, Jose was arrested for domestic violence in an altercation involving Anne, and T.M. was placed with a paternal aunt.
An allegation was also added that Albert and Mother had “a history of substance abuse” based on information provided by T.M. that they regularly smoked something with an odd smell. That allegation was ultimately not sustained.
In July 2006, Mother stated that she believed T.M. had been molested, but again denied that Albert had had contact with her or the girls. However, the maternal grandmother stated that Mother and Albert had been living together and that Mother was six or seven months pregnant. The grandmother further reported that Albert beat Mother and “the baby.”
In July 2007, Albert was arrested for molesting T.M. He was located naked and hiding in a closet in Mother’s home. Albert told the caseworker he had been in Mother’s home ten to fifteen times between March and July 2007.
Interviewed again by the caseworker in August 2006, T.M. repeated that Albert had touched her on her genital area and digitally penetrated her and that he had touched the younger girls in the same manner. In this interview, however, she said it happened only once and specifically denied ever telling Mother.
In December 2006, DCFS filed a petition seeking jurisdiction over Mother’s fourth child, C.S., who had been born in October 2006; the basis of the petition was sibling abuse. Before C.S.’s birth, Mother had denied being pregnant. Afterward, Mother briefly attempted to conceal the baby’s existence and location from DCFS.
2. Jurisdictional Hearing
Between February 8, 2007 and June 11, 2007, the court held a contested jurisdictional hearing. T.M., who was then five years old, testified that Albert had touched her with his middle finger in her private area once when she was four. She said he had also touched her sisters in that area. T.M. further testified that Albert had touched her inappropriately when she was two, and that she had been reminded of that occasion by Jose.
Jose was called and repeated the statements he had made to the caseworker: That T.M. first told Anne about the abuse shortly after it occurred and that T.M. repeated the accusation to Jose approximately one month later. In addition, he testified that in early 2006, he saw Mother and a man who looked like Albert together in the car when she returned T.M. from a visit. He also stated that in 2002 or 2003, when T.M. was two, Mother told him Albert had abused the girl in a similar fashion and that T.M. also mentioned it at the time.
The paternal grandmother testified that Albert had been living and working in Texas during the relevant period.
3. Jurisdictional Findings
The court made the following factual findings in support of jurisdiction: (1) “On or about April, 2006, [T.M.] disclosed that [Albert] sexually abused [her], including but not limited to fondling the child’s vagina and digitally penetrating her vagina”; (2) “[T.M.] disclosed [Albert] also inappropriately touched her siblings, [H.F. and L.F.] which caused the children to cry for a long time”; (3) “[Mother] failed to take action to protect the children.” In the petition, DCFS had alleged that Mother “Failed to take action to protect the child[ren] when she should have reasonably known that [Albert] was sexually abusing the children.” The court struck the italicized language. Based on these factual findings, the court concluded jurisdiction was appropriate under section 300, subdivision (b) (failure to protect); subdivision (d) (sexual abuse); and subdivision (j) (abuse of sibling).
4. Dispositional Hearing
At the contested dispositional hearing, which took place over the course of three days in September 2007, Mother testified that since the detention, she had been participating in drug counseling, drug testing and in counseling to address sexual abuse and domestic violence issues. During her testimony, she stated that Albert could not have molested T.M. because she had not allowed him to be around her daughters.
The court had ordered DCFS to provide reunification services at the detention hearing, including drug testing, drug counseling and sexual abuse counseling for non-offenders for Mother, and sexual abuse and anger management counseling for Albert.
The court concluded that with respect to T.M. and H.F., DCFS had already provided Mother over 18 months of services and that, therefore, the governing statutes precluded additional services. With respect to the younger girls, L.F. and C.S., the court ordered six months of reunification services.
With respect to Albert and his daughter H.F., the court noted he had been provided 12 months of services between April 2004 and May 2005 and concluded there was no possibility H.F. would be returned to him within six months. Accordingly, an additional period of services could not be justified. With respect to L.F., the court stated that Albert was not the presumed father and was not, therefore, entitled to services. The court also stated that reunification services would not have been required, in any event, because of the sexual abuse findings. The court allowed Albert visitation with the girls “in the discretion of [DCFS].”
Albert was incarcerated at the time of the disposition hearing, apparently awaiting trial on a sexual abuse charge. There was also apparently an outstanding warrant for his arrest in Texas.
Visitation with L.F. was discussed at the dispositional hearing. Counsel for DCFS asked that it be discretionary because Albert had not been sentenced and it was unclear where he was going to be housed. The court agreed visitation should be left up to DCFS. Counsel for Albert did not object. In discussing disposition for H.F., neither the court nor the attorneys mentioned visitation.
DISCUSSION
A. Jurisdiction
A court’s responsibility at a jurisdictional hearing is to determine whether the child or children come within dependency jurisdiction under the criteria listed in section 300. Here the court found jurisdiction existed under subdivisions (b), (d) and (j). Subdivision (b) applies where “[t]he 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 . . . .” Subdivision (d) applies where “[t]he child has been sexually abused . . . by his parent . . . or the parent . . . has failed to adequately protect the child from sexual abuse when the parent . . . knew or reasonably should have known that the child was in danger of sexual abuse.” Subdivision (j) applies where “the child’s sibling has been abused or neglected . . . and there is a substantial risk that the child will be abused or neglected.”
Albert and Mother both contend the jurisdictional findings were not supported by substantial evidence. Albert contends the testimony and statements of T.M. and her father Jose cannot be trusted. Mother contends the findings as to her are unsupported because of the lack of evidence that she knew or reasonably could have known that Albert would sexually molest the children.
1. Standard of Proof and Standard of Review
The standard of proof at the jurisdictional stage of a dependency proceeding is a preponderance of the evidence . . . .” (In re Mariah T. (2008) 159 Cal.App.4th 428, 438.) When asked to determine whether a juvenile court finding is supported by substantial evidence, our task “begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the verdict, if possible.” (In re Katrina C. (1988) 201 Cal.App.3d 540, 547.) Issues of fact and credibility are the province of the trial court and we defer to it when the credibility of a witness is called into question. (In re Albert T. (2006) 144 Cal.App.4th 207, 216; In re Heather A. (1996) 52 Cal.App.4th 183, 193.) “[T]he testimony of a single witness is sufficient to uphold a judgment even if it is contradicted by other evidence, inconsistent or false as to other portions.” (People v. Leigh (1985) 168 Cal.App.3d 217, 221.)
2. Sexual Abuse
Seeking to undermine the finding that he sexually abused the girls, Albert’s brief describes at length the discrepancies in the witnesses’ testimony and statements, focusing particularly on Jose, and arguing that he raised unfounded charges in the past in order to interfere with Mother’s attempts to reunite with T.M. Noting that the first caseworker believed Jose had coached T.M., Albert contends “[t]he evidence that [T.M.] made up the allegations at the direction of her father is overwhelming.”
As we have said, credibility issues are for the trier of fact to decide. The court was familiar with the reports and statements of the caseworkers and witnesses and heard the testimony of both T.M. and Jose. Despite her youth, T.M. repeated the accusation consistently over the course of being questioned by Jose, Anne, the caseworker, the examining nurse, the court and the parties’ attorneys. The only significant change concerned whether the abuse happened “a lot of times,” as T.M. initially told the caseworker, or only once. The court gave Albert the benefit of the doubt, finding that it had happened only once. A child’s testimony alone can support a court’s finding of physical or sexual abuse. (In re Veronica G. (2007) 157 Cal.App.4th 179, 185; see also In re Lucero L. (2000) 22 Cal.4th 1227, 1248-1249 [court may rely solely on child victim’s hearsay statement as long as it meets test of reliability].) Here, however, there was also corroborating physical evidence -- the torn hymenal tissue. Particularly in light of this supporting evidence, the juvenile court’s finding that the abuse occurred cannot be overturned by this court merely because there was also evidence casting doubt on the primary witnesses’ credibility.
Albert further contends that the evidence established that he lacked access to T.M. during the relevant period. It is true that Mother, Albert and Albert’s mother represented that Albert had no access to the girls and was not in California during the relevant period. However, this testimony was contradicted not only by T.M.’s testimony and statements, but also by Jose’s testimony that he saw Albert on at least one occasion in early 2006 when Mother picked T.M. up for visitation, and by the maternal grandmother’s statement that Mother and Albert were together in early 2006. The court was not obliged to give credence to the claim that Albert was out of the state, when evidence indicated he was not. Its findings that Albert had opportunity to, and did in fact, commit abuse in early 2006 was supported by substantial evidence.
Albert also attempts to overturn the jurisdictional finding by pointing to a DCFS report -- the detention report for C.S. written in December 2006 -- stating that T.M had been fondled by “her mother’s boyfriend, Frank.” The detention report described the abuser elsewhere as “[T.M.’s] sisters’ father,” i.e., Albert. We do not place undue significance on what appears to be a clerical error.
3. Failure to Protect
T.M. consistently stated that the abuse occurred when Mother was absent and that she never told Mother about it. Mother contends that because there was no evidence she was aware that Albert had sexually abused the girls, the finding that jurisdiction existed should be reversed as to her. Preliminarily, we point out that DCFS “‘is not required to prove two petitions, one against the mother and one against the father, in order for the court to properly sustain a petition [pursuant to § 300] or adjudicate a dependency.’” (In re Jeffrey P. (1990) 218 Cal.App.3d 1548, 1554, quoting In re La Shonda B. (1979) 95 Cal.App.3d 593, 599.) Imposition of juvenile dependency jurisdiction depends on the welfare of the child, not the fault or lack of fault of a particular parent. (In re V.M. (1987) 190 Cal.App.3d 753, 757.) The court may properly find that a minor comes within dependency jurisdiction where only one parent has been abusive or otherwise inappropriate. (In re Jeffrey P., supra, 218 Cal.App.3d at p. 1554; accord, In re James C. (2002) 104 Cal.App.4th 470, 482 [court may declare jurisdiction over children based on actions of the mother alone]; In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1135 [“[A] finding against one parent is a finding against both in terms of the child being adjudged a dependent.”].)
Moreover, we do not agree that Mother was free from fault. “[C]hild abuse includes not only a parent’s own physical abuse of his or her child, but also a failure to protect the child from harm caused by others. [Citation.]” (In re Rico W. (1986) 179 Cal.App.3d 1169, 1177.) Section 300, subdivision (b) applies where the child has suffered, “or there is a substantial risk that the child will suffer,” serious physical harm as a result of the failure or inability of his or her parent to adequately protect the child. (Italics added.) In In re Rico W., the court concluded the mother would be unable to provide an adequate home for her children because she did not appreciate the necessity of keeping the children apart from her abusive husband. (In re Rico W. supra, 179 Cal.App.3d at pp. 1177-1178.) In In re Angelia P. (1981) 28 Cal.3d 908, 924, the court similarly found that the mother’s passivity and “firm intention to reunite with [the offending parent]” were relevant to whether she could properly care for her children. (See also In re V.M., supra, 190 Cal.App.3d at p. 757 [“The more likely it is that the offending parent will have further contact with the nonoffending parent, the more the child’s welfare is jeopardized by being placed unsupervised with the nonoffending parent.”].)
Mother’s actions over the course of the entire proceeding fully support the finding that the children were likely to suffer a substantial risk of harm due to her inability to protect them. In 2004 and 2005, Mother was ordered to keep the children away from Albert. She not only failed to do so, but she repeatedly lied about or concealed the nature and extent of her contacts with him -- which included leaving all three girls alone with him on at least one occasion in 2006. Apart from her relationship with Albert, Mother engaged in other actions that indicated an inability to comply with court orders or cooperate with DCFS to ensure the safety of the children. Mother admitted that, despite the pendency of jurisdiction under the original petitions, she moved to Las Vegas for several months in 2006, without informing the court or the caseworker of her plans or location. When pregnant with C.S., she concealed that fact from the caseworker and attempted to conceal the baby’s birth and location from DCFS as well. All of these actions supported the jurisdictional finding under section 300, subdivision (b).
Mother contends her past actions with respect to Albert should not be held against her because until T.M. accused Albert of sexual abuse, “there was no reason for [Mother] to suspect her children needed to be protected from [him].” The finding that jurisdiction was warranted based on Mother’s inability to protect the children from Albert was not supported entirely by actions that preceded the abuse. Even after T.M. reported the sexual abuse and the children were detained, Mother maintained a close relationship with Albert, as evidenced by the fact that Albert was found hiding in her closet by the police in July 2007 and by his own admission that he had been with her ten to fifteen times between March and July. Moreover, even after becoming aware of T.M.’s allegations of abuse, Mother continued to defend Albert and to deny that Albert had or could have abused T.M. These facts supported the juvenile court’s finding that jurisdiction was warranted under section 300, subdivision (b) for Mother’s failure to protect.
B. Denial of Reunification Services
Albert contends the juvenile court erred in denying him reunification services and an opportunity to reunify with H.F. and L.F. He contends there were only two potentially applicable statutory grounds for denial of reunification -- section 361.5, subdivision (b)(3) and subdivision (b)(6) -- and that neither applies here.
1. Denial Based on Section 361.5, Subdivision (a)
Albert ignores the court’s stated reason for denying reunification with respect to H.F. -- that he had been given 12 months of services earlier and there was no basis to believe an additional six months of effort would result in the girl being released to his custody. Section 361.5, subdivision (a), the provision relied on by the court, states that the juvenile court shall order DCFS to provide reunification services to the mother and statutorily presumed father “whenever a child is removed from a parent’s . . . custody . . . .” It goes on to state, however, that court-ordered services can be extended up to a maximum of 18 months after the date of removal, but only if the court finds at the 12-month review hearing “that there is a substantial probability that the child will be returned to the physical custody of his or her parent or guardian within the extended time period or that reasonable services have not been provided to the parent or guardian.” It specifically provides that “[p]hysical custody of the child by the parent . . . during the applicable time period . . . shall not serve to interrupt the running of the period.”
Albert erroneously states that the trial court did not refer to a specific code section in denying him reunification services but merely stated the denial was based on the finding of sexual abuse. On the first day of the dispositional hearing, the court discussed with counsel how long a period of services the parents had already received, which is a consideration under section 361.5, subdivision (a). Prior to making its dispositional ruling with regard to T.M. and H.F., the court specifically discussed with counsel the proper interpretation of section 361.5, subdivision (a), and stated: “[I]t seems to me that the statute is clear [referring to section 361.5, subdivision (a)] . . . [¶] It, basically, says that once the reunification services are ordered, the case continues. And if [the] minor goes home and then is redetained, the period that the minor is home [does] not toll the statute. . . . [¶] That being the case, [Mother] has already had almost four years of reunification services.” Although the court did not cite section 361.5, subdivision (a) in its dispositional order, the basis for its order denying services for both parents with respect to the older girls was clear from its comments on the record.
For H.F., dependency jurisdiction began in 2003. The petition filed in June 2006, was a supplemental petition. The general rule in these situations, where the court sustains a supplemental petition and dependency jurisdiction was never terminated, is that “the case does not return to ‘“square one”’ with regard to reunification efforts.” (Carolyn R. v. Superior Court (1995) 41 Cal.App.4th 159, 166.) “Instead, the question becomes whether reunification efforts should resume. The answer is yes[,] if: The parent has received less than 12 months of child welfare services [citation]; the parent did not receive reasonable child welfare services [citation]; or the case has passed the 12-month mark but there is a substantial probability that the child will be returned within 18 months of the date the child was originally removed from the parent’s physical custody [citation].” (Ibid.; accord, In re N.M. (2003) 108 Cal.App.4th 845, 853, fn. omitted.)
As explained in In re Barbara P. (1994) 30 Cal.App.4th 926, 933: “A subsequent petition is filed when new, independent allegations of dependency can be made after the court has initially declared a minor to be a dependent child. (§ 342.) A supplemental petition is filed, inter alia, when a dependent child has been placed with a parent, but the department now seeks to remove the child, effectively requesting the court to modify its previous placement order. (See § 387, subd. (a).)”
In 2003, when H.F. was first under dependency jurisdiction, Albert was offered family maintenance services, including parent education and anger management classes and individual counseling to address anger and domestic violence. He did little beyond signing up for parenting classes. Later, when H.F. was detained from Albert’s custody due to abandonment, Albert was offered family reunification services. Albert did not participate and ceased all communication with DCFS. When the children were detained under the new set of petitions and the court immediately ordered DCFS to provide reunification services to both parents, Albert made no attempt to take advantage of the services offered. The court could reasonably find that after Albert had failed three times to participate in services, there was no reasonable possibility that an additional six months of services -- the maximum allowed under the statutory scheme -- would lead to correction of the problems that led to jurisdiction. (See § 361.5, subd. (c) [factors that may be taken into consideration in determining whether reunification services are likely to be successful include “[t]he failure of the parent to respond to previous services”].)
In his reply brief, Albert cites In re Barbara P., supra, 30 Cal.App.4th 926 for the proposition that the failure to order further reunification services represented an abuse of discretion. His reliance on that authority is misplaced. In Barbara P., the court stated that failure to order additional reunification services after finding true a subsequent petition could demonstrate an abuse of discretion if the services previously offered were not “adequate,” which the court defined as not geared toward addressing the concerns raised by the subsequent petition. (In re Barbara P., supra, 30 Cal.App.4th, at p. 934.) The court explained that there was no such abuse in the case before it because the services originally offered were relevant to the allegations of the subsequent petition, and the parent had made no significant progress in achieving the goals of the original reunification plan. (Ibid.) Here, as in Barbara P., Albert was initially offered services relevant to the concerns raised by the supplemental petition -- counseling and parenting classes. In addition, at the detention hearing, the court ordered DCFS to provide additional services relevant to the supplemental charges -- including sexual abuse counseling for offenders. He failed to take advantage of the services offered. Accordingly, the court did not abuse its discretion in refusing to order further services.
2. Denial Based on Albert’s Alleged Father Status
Turning to L.F., the primary basis for the court’s order was that as an alleged father, Albert was not entitled to reunification services. Albert does not dispute that generally only presumed fathers are entitled to reunification services. (§ 361.5, subd. (a); see In re Kobe A. (2007) 146 Cal.App.4th 1113, 1120; Fam. Code § 7611.) Albert contends that as a biological father, he was entitled to services because they were in L.F.’s best interests.
Section 361.5, subdivision (a) provides that the juvenile court “may” order services for a biological father if it determines that the services will benefit the child. The statute further states that “a finding and declaration of paternity by the juvenile court or proof of a prior declaration of paternity by any court of competent jurisdiction” must support the father’s status and precede the provision of services. No such finding was made here. Moreover, the evidence does not indisputably support Albert’s claim of biological fatherhood. He was not listed on the birth certificate and there is no indication of a paternity test. Mother identified him as L.F.’s biological father in court, but in August 2007, Albert told the caseworker he was “not sure.”
More importantly, even if Albert had proven himself to be L.F.’s biological father, we do not agree it would have been in the child’s best interests to attempt reunification. He was not present at her birth and has never lived with or supported her. He has a lengthy criminal record, was incarcerated at the time of the dispositional hearing, and was possibly subject to a Texas warrant. That he had no relationship with L.F., made no effort to develop one during her short life, and would likely have no opportunity to develop a relationship due to his ongoing legal problems support the conclusion that L.F.’s best interests lie elsewhere.
At Albert’s request, we took judicial notice of court documents showing that in January 2008, he pled nolo contendere to a misdemeanor violation of Penal Code section 273a, subdivision (a) (willful injury to a child) and was sentenced to time served. We have no information on whether he still faces criminal charges in Texas.
3. Denial Based on Section 361.5, Subdivision (6)
As we have seen, the juvenile court made reference to the sexual abuse finding as an alternative basis for denial of services to Albert. (See § 361.5, subd. (b)(6).) Contrary to Albert’s assertions, reunification services were properly denied on that ground as well.
Section 361.5, subdivision (b)(6) applies where a child has been adjudicated a dependent as a result of “severe sexual abuse . . . to the child, a sibling, or a half[-]sibling” and “the court makes a factual finding that it would not benefit the child to pursue reunification services with the offending parent . . . .” Albert contends there was no finding of severe sexual abuse. To the contrary, the court specifically found that Albert digitally penetrated T.M. The statute defines severe sexual abuse to include “penetration” of genital organs “by any animate or inanimate object . . . .” Accordingly, the existence of severe sexual abuse was supported by an express finding.
Albert alternatively contends that to the extent denial of reunification services was based on subdivision (b)(6), reversal is required because the court made no specific finding that provision of reunification services would not benefit H.F. or L.F. Section 361.5, subdivision (b)(6) provides that reunification may be denied where the parent has severely sexually abused the child or a sibling or half-sibling of the child “and the court makes a factual finding that it would not benefit the child to pursue reunification services with the offending parent . . . .” In addition, section 361.5, subdivision (i) provides: “The court shall . . . specify the factual findings used to determine that the provision of reunification services to the offending parent . . . would not benefit the child.” Albert is correct that the court did not specify the factual findings that supported the lack of benefit to the children. However, no explicit finding is necessary, provided the implicit finding is supported by substantial evidence. (In re S.G. (2003) 112 Cal.App.4th 1254, 1260.) For the reasons already discussed, reunification with Albert would not have been in L.F.’s best interests: He has barely been a presence in her young life and is unlikely to have an opportunity to become one in the near future. The same is true with respect to H.F. The only difference -- the brief period in which he had custody of her when she was an infant -- is insignificant. Albert’s lack of personal contact with the girls, his failure to develop a relationship with either of them, and the fact that he had never made a home for them, financially supported them, or cared for them, all support the determination that there would be no benefit to either girl in pursuing reunification. No evidence supports a contrary conclusion.
In S.G., the court explained that ambiguous language in its earlier decision -- In re Rebekah R. (1994) 27 Cal.App.4th 1638, the case relied on by Albert -- should not be read to require explicit findings. (In re S.G., supra, 112 Cal.App.4th at pp. 1259-1260.)
C. Visitation
Albert contends the court erred in giving complete discretion to DCFS over whether to allow him visitation with H.F. and L.F. Numerous courts, including this one, have said that the juvenile court errs when it grants unlimited discretion to a person or entity to determine whether visitation will take place, whether that grant be to the caseworker, DCFS, a therapist, or the children themselves. (In re Julie M. (1999) 69 Cal.App.4th 41, 48-51; In re Donnovan J. (1997) 58 Cal.App.4th 1474, 1476-1478; In re Moriah T. (1994) 23 Cal.App.4th 1367, 1373-1374; In re Kristin W. (1990) 222 Cal.App.3d 234, 256). However, at DCFS’s request, we have taken judicial notice that a May 2008 visitation order granted Albert monitored visits with both girls. Based on that order, DCFS contends this issue is moot.
We agree with DCFS on the question of mootness. “‘[A]n action that originally was based on a justiciable controversy cannot be maintained on appeal if all the questions have become moot by subsequent acts or events’” because “‘[a] reversal in such a case would be without practical effect.’” (In re Dani R. (2001) 89 Cal.App.4th 402, 404, quoting, 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 642, p. 669.) “‘“It necessarily follows that when . . . an event occurs which renders it impossible for this court, if it should decide the case in favor of [appellant], to grant . . . any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal.”’” (City of L.A. v. County of L.A. (1983) 147 Cal.App.3d 952, 958, quoting, Consol. etc. Corp. v. United A. etc. Workers (1946) 27 Cal.2d 859, 863.) As the juvenile court has given Albert monitored visitation with both girls, we cannot grant him any effective relief by reversing its earlier order. Albert contends “the determination of whether the September 28, 2007 order was appropriate will impact future findings as to whether Albert received reasonable services,” citing In re Dylan T. (1998) 65 Cal.App.4th 765. Here, unlike in Dylan T., reunification services were denied for Albert, a ruling which we affirm. Accordingly, there will be no future determination of whether reasonable services were offered and thus no impact on future proceedings.
DISPOSITION
The court’s dispositional and jurisdictional orders are affirmed with the exception of the portion of the dispositional order that concerned visitation. The appeal from that portion of the dispositional order is dismissed as moot.
We concur: EPSTEIN, P. J., SUZUKAWA, J.