Opinion
E066078
04-19-2017
In re M.E., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. C.E., Defendant and Appellant.
William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman, Carole A. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIJ104991) OPINION APPEAL from the Superior Court of Riverside County. Timothy F. Freer, Judge. Affirmed. William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman, Carole A. Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.
C.E. (mother) appeals from the denial of her Welfare and Institutions Code section 388 petition requesting the juvenile court modify its order bypassing reunification services as to her daughter, M.E, under section 361.5, subdivision (b)(3) (section 361.5(b)(3)). To change or set aside a prior order under section 388, a parent must satisfy two elements: (1) there must be new evidence or a change of circumstance and (2) the modification he or she is requesting must be in the best interest of the child. At the hearing on her petition, mother argued the new evidence or change in circumstances to warrant modification was the fact her trial counsel had rendered ineffective assistance by failing to argue section 361.5(b)(3) was inapplicable as a matter of law. The court found mother failed to satisfy both elements of section 388 and denied the petition.
Unlabeled statutory citations refer to the Welfare and Institutions Code.
On appeal, mother argues the court misinterpreted section 361.5(b)(3) as a matter of law and thus erred in denying her section 388 petition. According to mother, the bypass provision never should have applied to her in the first place. To put it charitably, mother's challenge comes late. She should have raised her claim of ineffective assistance in a petition for writ of habeas corpus in the juvenile court. (In re Jackson W. (2010) 184 Cal.App.4th 247, 258 (Jackson W.).) Or, at the very least, she should have preserved her right to direct appellate review of the bypass order by filing a writ petition with this court after the juvenile court set M.E.'s section 366.26 hearing. (In re Tabitha W. (2006) 143 Cal.App.4th 811, 816-817.) By failing to pursue either of these routes and instead raising the issue under section 388, mother has made things harder for herself. Section 388 was not designed to accommodate purely legal challenges like the one mother raises, and, as a result, it requires mother to satisfy additional evidentiary requirements and confront a deferential standard of review on appeal. In short, mother is trying to shoehorn an argument she should have made in other, much earlier proceedings into a section 388 petition.
This is mother's second appellate challenge to the court's bypass order. In her earlier appeal, she argued the order was not supported by sufficient evidence (but she did not raise the legal argument she raises here). We dismissed that appeal (case No. E064506) because she had failed to preserve the issue by filing a writ petition after the court set M.E.'s section 366.26 hearing. Three months after we issued remittitur, she filed a motion to recall remittitur. Several months later, after we issued a tentative opinion refusing to recall remittitur, she abandoned her challenge by filing a request for dismissal.
Turning to the merits, we conclude the juvenile court properly denied the petition because mother satisfied neither element of section 388. First, section 361.5(b)(3) is open to two reasonable interpretations. No California court has chosen between them, and at least two treatises have adopted the one the juvenile court and the parties used below. As a result, mother cannot demonstrate her attorney was objectively deficient by using one interpretation over the other. Second, even if the attorney was ineffective for failing to object to section 361.5(b)(3)'s applicability, mother was not prejudiced because the court could have bypassed services under a different provision. Third, regardless of the success of her ineffective assistance claim, mother cannot satisfy the second element of section 388 because providing reunification services would not be in M.E.'s best interest. Mother has repeatedly failed—in numerous dependency proceedings and over a period of several years—to protect her children from severe sexual abuse, and has taken no steps to treat her problem.
I
FACTUAL BACKGROUND
A. The Dependency Petition
Mother has three children. Her youngest daughter, M.E., was 16 months old at the time of the petition. Her son J.B. was nine, and her oldest daughter, B.R., was 12. In June 2015, Riverside County Department of Public Social Services (DPSS), received a referral alleging B.R. had been molested by Mario, who is B.R.'s stepfather and M.E.'s biological father. At the time, mother and her children were living with Mario in Hemet.
During a child abuse and neglect examination, B.R. told the examiner Mario had been sexually abusing her since April 2015, every Friday night after her mother and siblings had gone to bed. B.R. reported Mario would orally copulate her and put his penis in her mouth. On several occasions, he forced her to have vaginal and anal sex until "white stuff came out." B.R. also reported her great-uncle Walter used to molest her as well. The examination revealed she had tearing to her hymen, a blood blister in her anus, a hickey on her breast, and chapped nipples.
When the social worker informed mother of B.R.'s allegations, mother "immediately began sticking up for [Mario]," stating multiple times that he "would not do anything to [B.R.]" She claimed there was "no way" Mario had ever molested B.R. because he was always at work and she was always home at night. A Hemet police detective also questioned mother about the allegations. When the detective told her the allegations had come from B.R., who was "telling the truth," mother "shook her head right and left as if to imply 'No,' that it did not happen." Mother theorized B.R.'s father had made up the allegations.
The detective asked mother what she would have done about the sexual abuse had she known about it. She responded, "I don't know. I don't know." The detective continued to provide mother with information supporting B.R.'s allegations, but she remained in denial.
Eventually, mother acknowledged to the social worker her sex life with Mario had "drastically minimized" within the last year or so. She admitted B.R. had been cutting herself and would tell her things like, "'there's stuff I can't tell you. You'll get mad.'"
Mother also admitted B.R. had been sexually molested in the past. Child protective services (CPS) had removed her children in 2002 after the police searched her house and found drugs, and another time because of Walter's sexual abuse of B.R. Mother stated she was shocked she had let this "happen again," and said it was her fault because she cannot protect her daughter. The social worker observed mother did not appear genuinely upset by the allegations.
When asked what she would do to protect her children and ensure their safety, mother "continually kept saying she did not know." The social worker tried to help mother "come up with a plan to protect her children," but she was "unable to do so."
J.B. and the maternal grandparents reported having noticed Mario acting inappropriately toward B.R. J.B. told the social worker he had sensed something was "not right" between Mario and B.R. J.B. also told the social worker that the year before his same age cousin had molested him about 15 separate times. He described the abuse—which involved forced sodomy and oral copulation—as "scary in every way." J.B. had told mother about it when it happened.
On June 8, 2015, DPSS removed all three children from mother. The next day, it filed a dependency petition alleging, among other things, mother failed to protect B.R. from Mario's sexual abuse. The petition also alleged mother had failed to protect B.R. from sexual abuse by other perpetrators over the past nine years. On June 18, DPSS filed an amended petition adding the allegation mother also failed to protect J.B. from sexual abuse. The petition alleged M.E. fell under section 300, subdivision (j) (abuse of sibling).
B. Prior Dependencies
DPSS's reports detail mother's prior history with CPS. In 2002, when mother was living with B.R.'s biological father and B.R. was just a few months old, the police searched their residence and found both parents under the influence of methamphetamine and in possession of drug paraphernalia. Mother admitted using methamphetamines and reported there had been domestic violence between mother and B.R.'s father. CPS removed B.R. from both parents. In 2003, mother successfully reunified with B.R.
In 2006, when B.R. was four years old, she reported being sexually molested by mother's uncle, Walter. Walter lived at the maternal grandmother's house, where the grandmother cared for B.R. during the day. B.R. said Walter would show her his penis and touch himself when they played hide and seek. DPSS provided mother with referrals for counseling with victim assistance, and she agreed to prohibit Walter from having any further contact with B.R. DPSS closed the case because mother appeared protective.
In 2007, DPSS received a referral alleging Walter was molesting B.R. again and B.R. had been taken to the hospital after urinating blood. Mother said it was "a possibility" Walter had been molesting B.R. again and that "they would have to possibly move again." During this investigation, mother was arrested because she had outstanding felony warrants (one of which was for child endangerment/abuse), as well as four misdemeanor warrants. The juvenile court placed B.R. and J.B. in foster care. According to the jurisdiction and disposition report, in January 2008, the juvenile court found the parents had been participating in services, dismissed the petition, and awarded "[j]oint physical custody" to mother and B.R.'s biological father.
In 2009, when B.R. was six years old, a child abuse and neglect examination confirmed she had once again been molested by Walter at her grandmother's house, where she and mother were currently living. Mother denied any knowledge of the abuse. She reportedly quit her job to watch her children and once again DPSS believed she appeared protective.
C. Jurisdiction and Disposition
DPSS recommended the court bypass reunification services for mother for all three children under section 361.5(b)(3) (previous removal for physical or sexual abuse). At the jurisdiction and disposition hearing, mother testified about her history with CPS and the facts surrounding B.R.'s and J.B.'s prior molestation. She said she had received reunification services in the second dependency involving Walter's sexual abuse of B.R., the one that commenced in 2007 and ended in 2008. She said the court ultimately "returned [B.R.] to the care of her father," but two weeks later he left B.R. on her doorstep.
Mother said she had also participated in reunification services in the first dependency involving Walter's sexual abuse, the one that started in 2006. She said she attended parenting classes and counseling, and addressed issues of sexual abuse and molestation. In therapy, she learned how to identify sexual predators as well as children who are being victimized.
She admitted that when J.B. told her his cousin had been sexually abusing him, she did not report the abuse to law enforcement or seek counseling for J.B. She figured they were "just messing around as children" and allowed J.B. to continue going to the same school as the cousin because the boys were not in the same class.
At the end of her testimony, the court asked: "[D]id you have any concerns, knowing your daughter was molested before, that she might be hiding the real truth as to why she was cutting herself [on her arms]?" Mother replied that would have been the "last thing" to cross her mind.
The court found the petition's allegations against mother true and found removal necessary for all three children. (§ 361, subd. (c)(1).) It stated: "There are three children, two of them have been molested significantly in mother's care and protection . . . [¶] Clearly, there is a demonstration by clear and convincing evidence that mother not only has a failure to protect and an inability to protect, or an inability to recognize the signs, despite going through parenting classes, despite all the warning signs, despite her daughter cutting herself, despite the fact that her daughter came and said, there's something I need to tell you, but I can't because you might get mad, despite all the red flags there's a significant molestation."
In family law orders, the court placed B.R. and J.B. with their fathers and terminated their dependency cases. It then bypassed reunification services for mother for M.E. under section 361.5(b)(3), finding clear and convincing evidence services would not be in the child's best interest, and set a section 366.26 hearing to determine her permanent plan.
D. Section 388 Petition
Mother did not file a writ petition after the court set the section 366.26 hearing. In February 2016, while her motion to recall remittitur in her previous appeal was pending in this court, mother filed a section 388 petition with the juvenile court seeking modification of the bypass order. Her petition stated reunification services were in M.E.'s best interest because she had "taken steps to ensure the safety of her child by filing for dissolution of marriage from [Mario], who is now incarcerated." She also stated she had "learned from past mistakes and is ready and able to provide a protective and loving home for [M.E.]" She believed she was "in a better position in life to benefit from services and is a stable and protective mother." However, she attached no documents indicating what action, if any, she had taken to address the problem that led to M.E.'s removal—her repeated failure to protect her children from sexual abuse. Regarding new evidence or change of circumstances, her petition stated there was insufficient evidence to support the bypass order, however, as we describe below, by the time of the hearing on her petition, mother had changed her argument to ineffective assistance of counsel.
DPSS filed an addendum report recommending the court deny mother's petition. When the social worker interviewed mother in May 2016, mother "spoke about how she wants to be present in her children's lives." She said she was participating in weekly counseling, living in a home in Riverside, and working full time as a waitress. She said she had not been in contact with Mario and loves seeing M.E. once a month during visits. "She commented that she knows [M.E.] is in a very good prospective adoptive home, but her preference would be for her daughter to be raised by her."
When the social worker asked how her circumstances had changed, mother replied that through counseling she had "gained more insight into why CPS became involved and ha[d] acquired some healthier coping skills to help her deal with her emotions." The social worker contacted mother's therapist, who reported mother was doing well but noted they had only had two or three sessions together. The therapist said mother "can be emotional at times" and as a result they were working on "coping skills for depression."
The social worker reported M.E. was doing well in her prospective adoptive home, where she had been living for almost a year. She had developed a "strong bond" with her prospective adoptive parents, and they were "eager to offer [her] . . . a permanent home and . . . to continue moving forward toward the adoption." The social worker concluded that while mother seemed to be maintaining her sobriety, working full time, and going to therapy, DPSS still had "significant concerns" about disrupting the permanency of M.E.'s current home, which was "quite stable and safe."
At the hearing on her petition, mother testified she desired to reunify with M.E., still shared a bond with the child, and had attended all of her visits. She testified M.E. was happy to see her during visits and called her "mommy." Abandoning the claim of insufficient evidence, mother's counsel argued mother's previous attorney had rendered ineffective assistance by failing to argue section 361.5(b)(3) was inapplicable as a matter of law. Counsel argued the provision did not apply to M.E. because this was M.E.'s first dependency and section 361.5(b)(3) required M.E. herself—not her sister B.R.—to have been previously removed. DPSS disagreed with mother's interpretation of section 361.5(b)(3) and argued the provision applied equally when a sibling had been previously removed as a result of sexual abuse. M.E.'s counsel argued services were not in M.E.'s best interests because mother's inability to protect her children from sexual abuse was serious and mother had allowed it to go untreated for several years.
The court found mother had not satisfied either element of section 388. In so ruling, it remarked on the lack of evidentiary support in mother's petition: "[W]hat was written in [mother's petition] was simply that she had gained insight. Gained insight. And with little documentation, little supporting evidence, if none at all. It would be as if somebody realized after years of abuse of their children, that they finally had gained insight that they have an obligation and duty to protect their children and to look for certain signs. And just saying that you have insight, saying that you're going to protect, without anything more or any demonstration that you have . . . that ability or that you have been able to do something with that, does not show this Court there is really a valid change of circumstance."
II
DISCUSSION
Mother contends the juvenile court erroneously denied her petition. She argues section 388 is a proper mechanism for raising a claim of ineffective assistance of counsel and that her claim is meritorious because her attorney misinterpreted section 361.5(b)(3) and, as a result, failed to object to bypass.
A. Section 388 Petitions as a Mechanism for Ineffective Assistance Claims
Section 388 permits a parent of a dependent child to petition the juvenile court to modify or set aside a previous order if the parent can demonstrate new evidence or changed circumstances and show why his or her request is in the best interests of the child. (§ 388; see also In re Ernesto R. (2014) 230 Cal.App.4th 219, 223.) We review a bypass order for abuse of discretion and will affirm "unless the trial court exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination." (In re A.S. (2009) 180 Cal.App.4th 351, 358.)
In Jackson W., our colleagues in Division One considered whether a parent may raise a claim of ineffective assistance in a section 388 petition. The mother had filed a section 388 petition to set aside a bypass order on the ground her counsel was not trained in juvenile dependency law and had made "numerous tactical decisions and failings . . . which were not known to [her] earlier." (Jackson W., supra, 184 Cal.App.4th at p. 259.) The Jackson W. court concluded section 388 was sufficiently broad to encompass mother's claim, but it noted, however, that the "customary way" to challenge an order based on ineffective assistance is by filing a petition for writ of habeas corpus in the juvenile court. (Id. at pp. 258-259.) The court observed that pursuing ineffective assistance under section 388 was "superfluous" and "unnecessarily burdensome" because, unlike the habeas statutes, section 388 requires the parent demonstrate new evidence or changed circumstances, as well as show his or her request is in the best interests of the child. (Id. at p. 259 & fn. 6.)
The court queried whether a claim of ineffective assistance could satisfy the new evidence or changed circumstances element of section 388 or whether a parent who could show ineffective assistance also had to show new evidence or changed circumstances (as in, completion of treatment programs, proof of stable housing, etc.). Ultimately, the court held it need not answer the question because the mother had not demonstrated the modification she sought was in her child's best interest (the second element of section 388). (Jackson W., 184 Cal.App.4th at p. 260 ["Even assuming [the mother's] realization she had received ineffective assistance of counsel could be a change of circumstances or new evidence within the meaning of section 388, [the mother] did not make a prima facie showing the proposed modification—having the minors returned to her custody or receiving services—would be in the minors' best interests"].)
Here, we are skeptical mother's particular claim of ineffective assistance (if successful) could constitute new evidence or a changed circumstance under section 388. "[T]he term 'new evidence' in section 388 means material evidence that, with due diligence, the party could not have presented at the dependency proceeding at which the order, sought to be modified or set aside, was entered." (In re H.S. (2010) 188 Cal.App.4th 103, 105 [expert opinion based on evidence available at jurisdiction hearing did not constitute new evidence].) When an attorney's alleged deficient conduct pertains to factual matters (e.g., failing to call a particular witness or pursue a line of questioning during cross examination), one can argue the ineffective assistance constitutes new evidence. That argument is harder to make in situations like this, however, where the alleged error is the interpretation of a statute, which is a pure question of law.
In any case, we agree with the Jackson W. court that—whether or not an ineffective assistance claim can satisfy the first element of section 388—the better route is to file a writ petition with the juvenile court. We therefore urge juvenile dependency counsel not to wait until the last minute to challenge orders made at disposition hearings where the juvenile court sets a section 366.26 hearing. Raising an ineffective assistance claim in a section 388 petition saddles a parent with at least the extra burden of showing best interests and possibly the additional burden of showing new evidence and change of circumstances, or that ineffective assistance of counsel affected the introduction of evidence. Mother had opportunities for direct appellate review of the interpretation of section 361.5(b)(3), and failed to seize them.
B. Mother's Attorney Did Not Render Ineffective Assistance
Even if counsel's failure to object to bypass could constitute new evidence or change of circumstance under section 388, we conclude mother's claim of ineffective assistance fails on the merits. To succeed on her claim, she must demonstrate her attorney's performance fell below an objective standard of reasonableness and prejudiced her. (Jackson W., supra, 184 Cal.App.4th at p. 261, citing Strickland v. Washington (1984) 466 U.S. 668, 688.) We review ineffective assistance claims under a strong presumption the attorney's performance was reasonable, affording deference to his or her conduct. (Strickland v. Washington, at pp. 689-690; People v. Leonard (2014) 228 Cal.App.4th 465, 484.)
Mother's claim centers on the interpretation of section 361.5(b)(3). Had her attorney interpreted that provision correctly, her argument goes, the attorney would have realized it did not apply to mother as a matter of law and objected to the juvenile court's bypass finding. The flaw in this argument is that section 361.5(b)(3) is subject to two reasonable interpretations, no California court has interpreted the provision, and at least two treatises on California dependency law follow the interpretation DPSS and the juvenile court used, and her attorney accepted.
Section 361.5(b)(3) authorizes a court to bypass reunification services if it finds by clear and convincing evidence that: "the child or a sibling of the child has been previously adjudicated a dependent pursuant to any subdivision of Section 300 as a result of physical or sexual abuse, that following that adjudication the child had been removed from the custody of his or her parent or guardian pursuant to Section 361, that the child has been returned to the custody of the parent or guardian from whom the child had been taken originally, and that the child is being removed pursuant to Section 361, due to additional physical or sexual abuse." (Italics added.) At issue here is the meaning of the italicized references to "the child" in the second, third, and fourth clauses of the provision.
Put another way, section 361.5(b)(3) has four elements. First, the juvenile court must declare "the child or a sibling" a dependent as a result of physical or sexual abuse. Second, there must be a removal from a parent or guardian "following that adjudication." (§ 361.5, subd. (b)(3), italics added.) Third, there must be a return to the parent or guardian. And fourth, there must be a second removal "due to additional physical or sexual abuse." (Ibid., italics added.) The question is: Which child is the subject of the second, third, and fourth elements? Is it the child for whom services are currently being denied, or can it also be his or her sibling?
Mother argues the term refers to the child for whom the court is currently denying services—here, M.E. DPSS argues the term refers to the child who was previously adjudicated a dependent as a result of physical or sexual abuse from the first clause of the provision—regardless of whether that child is the child for whom the court is currently denying services or her sibling. This is the interpretation DPSS used when it recommended bypassing services for mother for M.E., and it is the interpretation the court used when it found the provision applied because B.R. had been previously declared a dependent based on Walter's sexual abuse, removed from mother, and returned.
In our view, the answer to this question is not clear from the text of the statute itself. At first read, it may seem obvious that the term "the child" in the subsequent clauses refers exclusively to the child in the first clause based on the simple fact the legislature chose to use the same phrase—"the child"—throughout. Had the legislature intended otherwise, it easily could have used the term "that child" in the subsequent clauses to clarify it was referring to whichever child had been adjudicated a dependent.
While we suspect mother's interpretation is the correct one, this was by no means clear at the time of the disposition hearing when the court issued the bypass order. First of all, no California court has interpreted this aspect of section 361.5(b)(3). Second, at least two treatises follow the interpretation DPSS and the juvenile court used, that is, that the bypass provision is triggered when either the child whose welfare is at issue or a sibling was removed, returned, and is now being removed again. Seiser & Kumli on California Juvenile Courts Practice and Procedure explains the bypass provision applies: "If the child or a sibling of a child had been previously adjudicated a dependent pursuant to any subdivision of Welf. & Inst. Code § 300 (grounds for dependency) as a result of physical or sexual abuse; following that adjudication, the child who was adjudicated a dependent had been removed from the custody of his or her parent or guardian pursuant to Welf. & Inst. Code § 361 (grounds for removal); the child who was removed has been returned to the custody of the parent or guardian from whom the child had been taken originally; and the child currently being removed pursuant to Welf. & Inst. Code § 361 is being removed because of additional physical or sexual abuse, reunification services shall not be provided. . . ." (Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure (2016 ed.) § 2.129[3][b], pp. 2-461-2-462, italics added.) Similarly, Dependency Quick Guide states the provision applies when "[t]he child or a sibling was previously found to be a dependent because of physical or sexual abuse, was returned to the parent after a period of removal under section 361, and has once again been removed because of additional physical or sexual abuse." (Jud. Council of Cal., Admin. Off. of Cts., Dependency Quick Guide (2d ed. 2011) p. H-101.)
It is likely the treatises adopt this interpretation of section 361.5(b)(3) because it makes practical sense and expands protection to not only siblings who were alive at the time of the prior abuse (and therefore would have been adjudicated dependents under section 300, subdivision (j)) but also to siblings who were born after the prior abuse, like M.E. This is arguably a more natural reading of the provision, as it follows the chronological progression of a dependency case, from dependency adjudication (first clause), to removal (second clause), to reunification (third clause), if services are successful.
Which is the correct interpretation of section 361.5(b)(3) is far from clear and—because of the unique procedural posture of this case—is not actually the issue in this appeal. Rather, all we must decide is whether the trial court properly denied mother's section 388 petition. In that vein, the fact both interpretations are reasonable and no court has decided between them makes it impossible for mother to show her attorney was deficient for failing to choose one over the other.
For the first time at oral argument, mother's counsel argued DPSS's interpretation of section 361.5(b)(3) renders superfluous the bypass provision in section 361.5, subdivision (b)(7), which authorizes a court to bypass services if "the parent is not receiving reunification services for a sibling or a half sibling of the child pursuant to paragraph (3), (5), or (6)." (§ 361.5, subd. (b)(7), italics added.) It is improper to raise issues for the first time in a reply brief or at oral argument because the other party has no opportunity to brief the issue. (E.g., People v. Dixon (2007) 153 Cal.App.4th 985, 996.) In any event, we need not consider the interplay between these two bypass provisions because it is not necessary to our review of the juvenile court's order denying mother's petition.
And, even if mother could convince us her attorney was ineffective, she would not be able to demonstrate her attorney's conduct prejudiced her. As the juvenile court remarked at the hearing on her petition, other bypass provisions may have applied to mother. The one that comes immediately to mind is section 361.5, subdivision (b)(6), which authorizes bypass when the child has been adjudicated a dependent "pursuant to any subdivision of Section 300" as a result of severe sexual abuse of a half sibling by a parent or guardian "and the court makes a factual finding that it would not benefit the child to pursue reunification services with the offending parent or guardian." (Italics added; see also Pablo S. v. Superior Court (2002) 98 Cal.App.4th 292, 301 [section 361.5, subdivision (b)(6) applies not only to parents who personally inflict the abuse but also to those who allow the abuse to occur through omission or consent]; Amber K. v. Superior Court (2006) 146 Cal.App.4th 553 [same].) Here, the court declared M.E. a dependent under section 300, subdivision (j) as a result of her father's severe sexual abuse of her half sister, B.R. As discussed below, mother allowed this abuse to take place, despite obvious signs from B.R. that she was being molested, and mother continued to deny the abuse when the social worker and the police confronted her with it.
C. Reunification Services Would Not Serve M.E.'s Best Interests
Denial of mother's petition was proper for the additional and independent reason that mother did not demonstrate reunification services were in M.E.'s best interests. On appeal, mother contends DPSS "fail[ed] to identify the 'issues' she needs to resolve or what she must do to resolve them." This is simply not the case. The record is replete with examples of mother's inability to recognize the signs of molestation and DPSS's attempts to provide her with services to help her protect her children from sexual abuse.
Before this dependency, mother was aware both B.R. and J.B. had suffered sexual abuse from family members. CPS had intervened in her life on three separate occasions—in 2006, 2007, and 2009—due to her uncle Walter's sexual abuse of B.R. Despite this history of abuse, by the spring of 2015, mother's husband was molesting B.R. on a weekly basis in mother's home. Yet mother again failed to detect anything was amiss, even after B.R. began self-cutting and telling mother there were "things she couldn't tell her." Other family members could see something was not right between B.R. and Mario, but mother, who had been trained to identify signs of sexual abuse, could (or would) not. Even after the police and DPSS assured mother B.R. was telling the truth about Mario, she refused to believe them and defended her husband.
In short, the record shows mother engaged in a pattern of convincing CPS she is able to protect her children from sexual abuse then failing to follow through. Given her prolonged and serious failure to protect her children from sexual abuse, we are compelled to reach the same conclusion the juvenile court reached: mother is, at best, reckless with her children's safety and unable to protect them from sexual abuse.
Mother claims she did not know what kind of evidence she needed to include in her 388 petition, but the answer is obvious from the record. In order to convince the juvenile court that reunifying with M.E. was in M.E.'s best interest, mother had to demonstrate she had broken her pattern of claiming she could protect her children from sexual abuse and failing to do so. Such a showing might have consisted of completing classes on protective parenting, classes similar to the ones she took in prior dependencies. Instead, her petition contained only the conclusory statements that she had "learned from past mistakes" and was "able to provide a protective and loving home."
At the hearing on her petition, mother's counsel pointed out she had recently been participating in therapy. However, the few therapy classes she attended after M.E.'s removal were not even focused on her problems with identifying sexual abuse. Mother's therapist told the social worker she had seen mother two or three times and they were focusing on depression and controlling emotions.
Mother argues her bond with M.E. is sufficient to demonstrate best interests because M.E. used to live with her and "the two regularly visit each other." However, "[a]fter the termination of reunification services . . . 'the focus shifts to the needs of the child for permanency and stability.'" (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) M.E. lived with mother for only the first 18 months of her life; she is currently about to turn three and has spent the majority of her young life in the prospective adoptive home. She has formed a strong bond with her prospective adoptive parents, who have provided a safe and stable home environment and are committed to adopting her.
Providing mother reunification services would only delay selection of a permanent home for M.E. and would not serve her best interests. (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) "'Childhood does not wait for the parent to become adequate.'" (In re Ernesto R., supra, 230 Cal.App.4th at p. 224.) Mother utterly failed to explain in her petition and on appeal how returning M.E. to her care would benefit M.E. Her statements focus on how much she wants to be in M.E.'s life and how she is ready to care for M.E. Mother may well feel a strong bond with her daughter; however, we cannot conclude the juvenile court acted unreasonably or arbitrarily in finding it would be detrimental to disturb the bond between M.E. and her prospective adoptive parents and to introduce further delay in the adoption process. Denial of the petition was proper.
III
DISPOSITION
We affirm the juvenile court's order.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J. We concur: HOLLENHORST
Acting P. J. MILLER
J.