Opinion
E067897
11-15-2017
In re J.H. et al., Persons Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. A.H., Defendant and Appellant.
William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, and James E. Brown, Guy B. Pittman, and Carole Nunes Fong, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.No. SWJ1600596) OPINION APPEAL from the Superior Court of Riverside County. Judith C. Clark, Judge. Affirmed. William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, and James E. Brown, Guy B. Pittman, and Carole Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant and appellant, A.H. (Mother), is the mother of three children, J1, J2, and J3, born in 2002, 2003, and 2006, respectively. Mother appeals from the juvenile court's February 27, 2017, dispositional order denying or bypassing reunification services for Mother. (Welf. & Inst. Code, § 361.5, subd. (b)(6).)
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
The bypass order is based on the court's dispositional finding that Mother knew of and impliedly consented to allow Mother's former boyfriend, D.W., to severely sexually abuse Mother's daughter, J1, beginning in 2014 when J1 was only 11 years old. (§ 361.5, subd. (b)(6).) The abuse ultimately resulted in J1's pregnancy at age 13 in 2016.
In this appeal, Mother concedes she was negligent in failing to prevent D.W. from sexually abusing J1. Mother claims, however, that the bypass order must be reversed for two reasons: (1) insufficient evidence shows Mother knew of or impliedly consented to the abuse; and (2) the court failed to find that reunification services for Mother would not benefit any of the children. (§ 361.5, subd. (b)(6)(A).) We affirm the order.
II. BACKGROUND
A. The 2014 Sexual Abuse Investigation
On March 31, 2014, J1, then age 11, disclosed to Mother that Mother's boyfriend, D.W., who lived in the family home, had been sexually abusing J1 by touching J1's breasts. Mother reported the matter to the police on March 31, and the police investigated the matter along with plaintiff and respondent, Riverside County Department of Public Social Services (DPSS). Mother said she was unsure whether J1's allegations of sexual abuse were true. Mother also said D.W. was a "very sexual person" who would often "beg[]" Mother to have sex multiple times each day.
On April 1, 2014, Mother applied for a temporary restraining order against D.W., but her request was denied because she was too "embarrassed" to tell the court that D.W. was being investigated for the sexual battery of J1. Mother later obtained a restraining order, but she dismissed it on June 25, 2014.
J1 was to be interviewed by the Riverside County Assessment Team (RCAT) on May 22, 2014, but Mother missed taking J1 to the appointment because Mother claimed she was not told the interview had been scheduled. The interview took place on June 2, 2014. During the interview, J1 reported D.W. had vaginally penetrated her six times and had anally penetrated her six times, over the course of several weeks in the family home while Mother was asleep.
A June 2014 medical examination of J1 was "normal," and the examiner could neither confirm nor negate that J1 had been sexually abused. The examiner noted, however, that Mother insisted on being present during the examination and "'made it difficult to obtain details of [J1's] potential injuries.'"
D.W. moved out of the home and his whereabouts were unknown. He had no known criminal history, and the police were unable to locate him. Mother claimed he was in Mexico, and she had no way of contacting him. The police inactivated the sexual abuse investigation until D.W. could be located and possibly interviewed. Unbeknownst to the police or DPSS, by October 2014, D.W. was living with the family again.
In October 2014, DPSS substantiated a referral alleging Mother's general neglect of J1. Mother failed to provide J1 with a "high level of mental health care," even though Mother knew J1 was a special needs child with unresolved anger issues, and was physically harming herself and J2 and J3. At this time, DPSS discovered that D.W. was living with the family, but by this time J1 had "recanted" her March 2014 claims of sexual abuse. Mother agreed to a safety plan, which required her not to leave any of the children alone with D.W. B. D.W.'s Ongoing Sexual Abuse of J1
The family again came to the attention of DPSS on September 27, 2016, when DPSS received a referral alleging sexual abuse and general neglect of J1. J1, then age 13, saw her pediatrician for abdominal pain, and a pregnancy test showed J1 was pregnant. J1 initially denied anyone had touched her sexually, and Mother was reportedly "shocked" by the positive pregnancy test. J1 was being "teased" at school for looking pregnant. On September 28, it was reported that further testing showed J1 was six months' pregnant, but only several days later, minor's counsel claimed J1 was eight months' pregnant. J1 disclosed that D.W. had "raped" her "multiple times," most recently on September 11. J1 claimed that, since January 2015, she had repeatedly told Mother about D.W. raping her. D.W. moved out of the family home on September 14, 2016, due to an argument with Mother about a car, and Mother was still in contact with D.W.
On September 29, a social worker met with J2, then age 12, at J2's middle school. J2 told the social worker he knew J1 was pregnant, although J2 did not seem to know how J1 became pregnant. J2 rubbed his stomach and said D.W. had "'done something to [J1].'" J2 also made statements about a "'nice family'" that was going to take the baby, and that Mother told J2 "no one can know about the baby." J2 also said the manager at Mother's work could not know J1 was pregnant. According to J2, D.W. had not lived in the family home since August 2016.
The social worker also met with J3, then age 10, at J3's elementary school. J3 told the social worker that J1 had "a little person inside her" and, like J2, made comments about a family that was going to take the baby. J3 also said that, two years earlier, J1 "'made up a bunch of lies'" about D.W. touching J1. J3 said he knew J1 had lied because Mother told him J1 lied, and there was not a "'baby in [J1's] belly or any DNA proof.'" Mother also told J3 that the family had to be "nice" to J1 right now, and that J3 was not to tell anyone J1 was pregnant.
Also on September 29, the social worker met with Mother at Mother's home. Mother made multiple statements about J1 and D.W. before the social worker asked any questions, including that Mother had no idea anything was happening between D.W. and J1. According to Mother, J1's pregnancy was neither Mother's fault nor J1's fault, and only D.W. was to blame. Mother said that every night before she goes to bed, she takes a melatonin, then goes to sleep, and this was when D.W. would molest J1. When asked how she knew this, Mother said J1 had "just told her" about the molestations since they found out J1 was pregnant.
When asked whether J1 had ever said anything to make Mother think anything "inappropriate" was happening between D.W. and J1, Mother said that, around 18 months earlier, J1 told Mother that D.W. was touching J1's breasts, and Mother believed J1. Mother responded by asking J1 whether J1 had asked D.W. to "'stop.'" When asked why she allowed D.W. to stay in the family home knowing he was inappropriately touching J1, Mother said D.W. was "'doing his part'" with the bills and helping her with the children. Mother said she had asked D.W. to leave the family home at one point during their relationship, but D.W. did not want to leave.
When asked what had happened two years earlier, during the 2014 sexual abuse investigation, Mother said she could not remember what had happened during the investigation or its outcome. Mother adamantly denied knowing J1 was pregnant before September 27. Mother said D.W. had been out of the home since September 14 and would not be returning. Mother said D.W. left the home because Mother told him he could no longer use Mother's car.
Mother made "multiple statements" about how the family could not afford to keep the baby, and she knew a "'nice family'" in Las Vegas that was willing to take the baby. Mother seemed "very concerned" about her coworkers and her manager finding out her daughter was pregnant, and made statements about "the gossip that occurs at work" and what people would think of her as a parent if they knew. On September 28, Mother texted D.W., telling him J1 was pregnant, the police were involved, and Mother would be pressing charges.
The social worker also met with J1 at the family home on September 29. J1 said she was not "comfortable" meeting with the social worker without Mother present, and said she felt safe at the home now that D.W. was gone. J1 said she was not angry with Mother for not believing her 2014 allegations of sexual abuse; she was angry at D.W. for doing "'that'" to her. September 11 was the last time D.W. had done "'something inappropriate'" to her. When asked when she last told Mother about what D.W. was doing to her, J1 said that, earlier in September 2016, J1 told Mother that every time J1 went to bed, J1 found D.W. "on top" of her. J1 also said she had been telling Mother this since January 2015.
Before the social worker left the family's home on September 29, she and Mother agreed to a "safety plan," consisting of the following: (1) Mother would obtain a restraining order against D.W.; (2) Mother would not allow D.W. to have any contact with the family; and (3) Mother would follow DPSS directives during the sexual abuse investigation, including a forensic interview of J1. Mother had no criminal history. Mother agreed to obtain the restraining order against D.W. by September 30, 2016, but by October 3, 2016, she had not done so. On October 4, 2016, J1 participated in another RCAT interview, and again reported D.W. had vaginally penetrated her and was the father of her unborn child.
Since 2003, the family had had over 16 investigations by child protective services agencies in Los Angeles, San Diego, and Riverside Counties. These referrals alleged emotional abuse, physical abuse, and general neglect by the children's father, N.M., or by Mother, against N.M.'s older children or J1, J2, and J3. Through some of these referrals, Mother had participated in services, including parenting education, anger management, and individual therapy. C. The Petition and Detention Hearing
On October 4, 2016, DPSS filed a section 300 petition for all three children. The petition alleged D.W. began sexually abusing J1, beginning when J1 was 11 years old; that the abuse most recently occurred on September 11, 2016; and that Mother "knew, or reasonably should have known" of the abuse, but failed to protect J1 from further abuse and failed to take any action to ensure J1's safety. (§ 300, subds. (b), (d).) The alleged acts of abuse against J1 included "sexual touching" and "penile/vaginal intercourse." The petition alleged J2 and J3 were at similar risk of abuse and neglect. (§ 300, subd. (j).)
At the detention hearing on October 5, the court found a prima facie showing had been made that the allegations of the petition were true, and ordered the children detained outside parental custody. Mother was granted predispositional services and visitation, supervised by DPSS. The court also ordered DPSS to investigate D.W.'s alleged physical abuse of J2 and J3. D. DPSS's Further Investigation
During an October 12, 2016, interview, when asked about the allegation that D.W. began sexually abusing J1 at age 11, Mother claimed she did not remember what had happened when J1 was age 11, and said, "I'm not sure I understand. I don't know what to say." Regarding the allegation that Mother knew or should have known D.W. was sexually abusing J1, Mother responded, "I don't know that he was doing that. On that one, I will disagree."
During an October 13 interview, J1 was "very angry" with D.W. and said she wanted him to go to jail so "'bad people'" could "'hurt him.'" J1 also said D.W. was "'rude to [J2 and J3] and had hit them.'" The foster mother reported J1 was "slowly opening up and starting to express anger and frustration toward [Mother] for not protecting her from her abuser." J1 wanted to continue going to therapy because she did not "'want to hate the baby.'" J1 felt she had "lost enough of her childhood" and wanted to "go back to being a 'kid' again."
On November 1, 2016, the court approved an ex parte request for J1 to give birth by caesarian section based on the recommendation of hospital medical staff. J1 was due to give birth in November, and medical staff believed, based on their treatment of J1, that J1 would be unable to "emotionally handle a vaginal birth," or a birth during which she was awake, due to "the psychological trauma of the sexual abuse." The baby was born in November.
During an October 20 interview, J2 said he had seen D.W. having sex with J1 "'a lot,'" and Mother knew about the abuse because J2 told Mother about the abuse. J2 had "a great deal of anger" toward D.W. for sexually abusing J1, and J2 made several comments about repeatedly hitting D.W. in the face. J2 also said D.W. once threw him on the ground, causing J2 to limp and cry. D.W. had also "dangled" J1 and J2 from the upstairs railing and "choke[d]" J2. E. Mother's Predispositional Progress
In January 2017, Mother completed a domestic violence course. By February 2017, Mother had also completed eight individual counseling sessions and was on a waiting list for a parenting class.
On January 27, Mother wrote a letter to the social worker, saying she loved her children and explaining what she had learned. In the letter, Mother acknowledged she "was not listening to what each of [her] children were telling [her] or saying." But, during a February 2, 2017, phone conversation with the social worker, Mother was very angry and repeatedly called the social worker an obscene name. Mother blamed DPSS for "holding what [D.W.] did against [Mother]," and also complained that she now "liv[ed] in a bad neighborhood because [DPSS] took her kids . . . ." DPSS reported Mother "continues to minimize what happened to [J1] and take[s] little accountability[,] as shown in the February 2, 2017 conversation." On February 25, Mother wrote another letter to the social worker, saying she took accountability for what happened to J1, apologizing for speaking to the social worker as she did, and saying her goal was to show the children she was a "brand new mom" and would "do anything to protect them . . . ." F. The Jurisdictional Findings and Dispositional Order
On February 27, 2017, DPSS filed an amended petition, which restated and did not change the sexual abuse-related allegations of the original petition. On the same date, the jurisdictional/dispositional hearing was held, and Mother waived her right to contest the jurisdictional allegations.
The original petition alleged a "j-1" allegation (§ 300, subd. (j)) (sibling at risk) on Judicial Council form JV-126, the form for alleging section 300, subdivision (g) allegations (no provision for support). The amended petition corrected this error by alleging the j-1 allegation on Judicial Council form JV-129.
The amended petition added a "b4" allegation that the children's father, N.M., had a criminal history, including a conviction for sexually abusing a nineyearold child, for which N.M. had served six years nine months in Mexico, and which placed the children at risk of serious physical and emotional harm. (§ 300, subd. (b).) The court also found this allegation true.
The court found all of the sexual abuse-related allegations true, namely, that J1 was sexually abused by Mother's live-in boyfriend, D.W., while J1 was in the care and custody of Mother; the abuse began when J1 was 11 years old and occurred as recently as September 11, 2016; the abuse included, but was not limited to, "sexual touching" and "penile/vaginal intercourse"; J1 was pregnant with D.W.' s child, and this placed J1 at risk of serious physical and emotional harm; Mother "knew, or reasonably should have known" D.W. was sexually abusing J1, but Mother failed to protect J1 from further sexual abuse or ensure J1's safety; and as a result, all of the children were at risk of serious physical and emotional harm. (§ 300, subds. (b), (d).) The court also found true the "j-1" allegation that J1 had been abused or neglected as described in section 300, subdivisions (b) and (d), and there was a substantial risk that J2 and J3 would suffer similar abuse or neglect. (§ 300, subd. (j).)
The court denied Mother reunification services on the ground Mother knew D.W. was sexually abusing J1 and Mother "affirmatively chose not only not to act in a protective manner but to subject [J1] to the ongoing abuse . . . ." (§ 361.5, subd. (b)(6).) The court granted Mother monthly visitation with the children, supervised by DPSS, and reasonable telephone contact. Mother appealed.
III. DISCUSSION
Mother claims the order denying her reunification services pursuant to section 361.5, subdivision (b), must be reversed because (1) insufficient evidence shows Mother "knew" about or impliedly consented to D.W.'s severe sexual abuse of J1 and (2) the juvenile court erroneously failed to find that reunification services for Mother would not benefit any of the children. (§ 361.5, subd. (b)(6).)
We address these issues in turn. A. Substantial Evidence Supports the Order Denying Mother Reunification Services
By its express terms, section 361.5, subdivision (b)(6)(A), allows the court to deny reunification services to a parent if the court finds by clear and convincing evidence that (1) "the child has been adjudicated a dependent . . . as a result of severe sexual abuse . . ." and (2) "the court makes a factual finding that it would not benefit the child to pursue reunification services with the offending parent . . . ."
Section 361.5, subdivision (b)(6)(B), further provides, in relevant part, that "[a] finding of severe sexual abuse" may be based, among other things, on "sexual intercourse" or "anal-genital" "contact" between the child and another person "with the actual or implied consent of the parent . . . ." Thus, "[b]y its express terms, section 361.5, subdivision (b)(6) applies to a parent who gave actual or implied consent to the [severe] sexual abuse of the child by another person . . . ." (Amber K. v. Superior Court (2006) 146 Cal.App.4th 553, 561, italics added.)
We affirm an order denying reunification services if it is supported by substantial evidence. (In re Gabriel K. (2012) 203 Cal.App.4th 188, 194.) In applying this standard, we must bear in mind that the court's findings supporting the bypass order must have been based on clear and convincing evidence. (In re Harmony B. (2005) 125 Cal.App.4th 831, 839-840.) We resolve all evidentiary conflicts in favor of the court's findings. (Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 600.)
Here, substantial evidence shows Mother knew of and impliedly consented to allow D.W. to have sexual intercourse with J1, beginning in 2014, and from January 2015 through September 2016, when J1's pediatrician confirmed J1 was pregnant. Indeed, the record shows Mother must have known D.W. was severely sexually abusing J1 in 2014, and between January 2015 through September 2016, and that Mother impliedly consented to D.W.'s severe sexual abuse of J1 during these periods.
J1 first disclosed D.W.'s sexual abuse of her in March 2014, when J1, then age 11, told Mother that D.W. had touched her breasts. Mother reported the matter to the police, and both the police and DPSS began investigating the matter. Mother said she was unsure whether J1's allegations were true, but Mother also reported D.W. was a "very sexual person" who would often "beg[]" Mother to have sex multiple times each day. Then, during J1's RCAT interview on June 2, 2014, J1 disclosed that D.W. had anally penetrated her six times and had vaginally penetrated her six times over the course of several weeks in the family home while Mother slept. Thus, by June 2, 2014, Mother knew D.W. had been subjecting J1 to severe sexual abuse at home while Mother slept. Nonetheless, Mother almost immediately took steps that were almost certain to expose J1 to further severe sexual abuse by D.W.: During J1's June 9, 2014, medical examination, Mother insisted on being present and made it difficult for the examiner "to obtain details of [J1's] potential injuries." And, on June 25, Mother dismissed a restraining order against D.W. which Mother had obtained in April 2014. Most egregiously, by October 2014, D.W. was living in the family home again.
Two years later, in September 2016, J1's pediatrician confirmed J1 was pregnant at age 13. At this time, J1 revealed that D.W. had raped J1 multiple times, most recently on September 11. J1 said she had repeatedly been telling Mother about the rapes since January 2015. J2 had also seen D.W. having sex with J1 "'a lot,'" and J2 also told Mother about the abuse. Despite Mother's knowledge that D.W. was severely sexually abusing J1, D.W. did not move out of the family home until September 14, 2016.
All of this evidence shows Mother knew about D.W.'s severe sexual abuse of J1, as early as June 2014, and impliedly consented to the abuse by allowing D.W. to move back into the family home after June 2014 and continue living there until September 2016. Mother admitted she did not make D.W. leave the home because he was "'doing his part'" with the bills and helping with the children. Mother also admitted she took a melatonin before she went to sleep each night, even though Mother knew, as early as June 2014, that D.W. would molest D.W. while Mother slept. Mother's failure to take any steps to protect J1—despite J1's and J2's repeated warnings about the abuse—also shows Mother impliedly consented to the abuse.
Mother claims the evidence only shows she was negligent, or "should have known" D.W. was severely sexually abusing J1, but argues the evidence is insufficient to show she "knew" or gave her "implied consent" to D.W.'s severe sexual abuse of J1. (Tyrone W. v. Superior Court (2007) 151 Cal.App.4th 839, 849-850 [parent's negligent failure to prevent severe physical abuse of child by another insufficient to support denying parent reunification services under § 361.5, subd. (b)(6)].) Mother also argues "[t]here is no evidence that, before the September 2016 pregnancy test, [that Mother] either knew [J1] was pregnant or knew D.W. was sexually abusing [J1]," and "[t]o conclude otherwise would be speculating." These arguments disregard the substantial evidence that Mother knew about severe sexual abuse and impliedly consented to it, in June 2014, and between January 2015 and September 2016.
As DPSS argues, this case is similar to but involves more egregious facts than Amber K. v. Superior Court, supra, 146 Cal.App.4th 553, in which this court found "undisputed evidence" supported a finding that the mother had "by her actions, impliedly consented to the sexual abuse" of the mother's daughter, S.M., by the father. (Id. at p. 561.) The evidence showed the mother had allowed the father to stay overnight in the family home during Christmastime, and the father sexually abused S.M. during that time. (Ibid.) The mother allowed the father to stay overnight in the home, despite knowing the father had previously sexually abused S.M.'s older sibling, D.L. (Id. at pp. 555-556, 560-561.) D.L. had told the mother about the father's abuse "every time" it occurred. (Id. at p. 560.) This was sufficient to support the juvenile court's finding that the mother was "an offending parent" for purposes of section 361.5, subdivision (b)(6). (Id. at p. 561.)
Similarly here, Mother knowingly exposed J1 to D.W.'s severe sexual abuse and impliedly consented to the abuse by allowing D.W. to live in the family home from June 2014 through September 2016. Mother did this even though she knew about the abuse as early as June 2014, and even though J1 and J2 told Mother about the abuse, many times, between January 2015 and September 2016. B. Substantial Evidence Supports the Court's Implied Finding That Reunification Services Would Not Benefit Any of the Children
Mother next argues the order denying her reunification services must be reversed because the court did not expressly find or "sufficiently state factual bases" to support a finding that reunification services for Mother would not benefit the children. As noted, section 361.5, subdivision (b)(6)(A), requires the court to make "a factual finding that it would not benefit the child to pursue reunification services with the offending parent" in order to deny reunification services to the parent. Here, the court did not expressly find that reunification services would not benefit the children. But findings supporting a denial of reunification services pursuant to section 361.5, subdivision (b)(6), may be implied when the record contains substantial evidence to support such implied findings. (In re S.G. (2003) 112 Cal.App.4th 1254, 1260-1261.) And here, the record contains substantial evidence to support the court's implied finding that reunification services for Mother would not benefit the children.
Subdivision (i) of section 361.5 provides: "In determining whether reunification services will benefit the child pursuant to paragraph (6) or (7) of subdivision (b), the court shall consider any information it deems relevant, including the following factors": These six factors include: "(1) The specific act or omission comprising the severe sexual abuse or the severe physical harm inflicted on the child or the child's sibling or half sibling. [¶] (2) The circumstances under which the abuse or harm was inflicted on the child or 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 or guardian. [¶] (5) The likelihood that the child may be safely returned to the care of the offending parent or guardian within 12 months with no continuing supervision. [¶] (6) Whether or not the child desires to be reunified with the offending parent or guardian."
The record shows the court considered the factors set forth in section 361.5, subdivision (i), and concluded, based on substantial evidence, that reunification services for Mother would not benefit any of the children. First, the court acknowledged that the children wished to reunify with Mother. (§ 361.5, subd. (i)(6).) But the court also observed that Mother's failure to protect J1 was "extreme" and that Mother had "repeatedly" shown she could not or would not protect the children. The court pointed out that Mother "affirmatively chose" not to protect the children, and chose to subject J1 to D.W.'s severe sexual abuse, even after Mother had been warned not to allow D.W. near the children. (§ 361.5, subd. (i)(1), (2).)
Indeed, in October 2014, Mother agreed not to allow D.W. to return to the family home pursuant to a safety plan with DPSS. But Mother violated that agreement and knowingly subjected J1 to D.W.'s ongoing abuse for the next two years. The abuse stopped only when, in September 2016, J1's pediatrician reported J1 was at least six months pregnant, and DPSS again became involved with the family.
Mother also had a lengthy history of failing to benefit from the services she had received through multiple prior referrals. As late as February 2017, Mother still had an explosive temper and a tendency to blame DPSS and D.W. for her own failure to protect her children. Mother consistently minimized the extent of and her knowledge of J1's abuse, and had little insight into the emotional trauma the abuse had inflicted on all of the children. In sum, by its comments the court made it manifestly clear it was finding that none of the children would benefit from reunification services for Mother, and substantial evidence supports this finding.
IV. DISPOSITION
The February 27, 2017, dispositional order denying Mother reunification services pursuant to section 361.5, subdivision (b)(6), is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: MILLER
Acting P. J. SLOUGH
J.