Opinion
A154534
08-03-2018
In re Z.G., Person Coming Under the Juvenile Court Law. R.M. et al., Petitioners, v. SUPERIOR COURT OF CALIFORNIA, COUNTY OF CONTRA COSTA, Respondent; CONTRA COSTA COUNTY CHILDREN AND FAMILY SERVICES BUREAU, Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J17-01238)
I.
INTRODUCTION
Petitioners F.G. (Mother) and R.M. (Father) each filed a petition for an extraordinary writ seeking review of the court order setting a hearing under Welfare and Institutions Code section 366.26 to consider termination of parental rights and a permanent plan for their infant daughter, Z.G. They contend the court erred in bypassing reunification services pursuant to section 361.5, subdivision (b)(6) and (b)(10) due to the termination of reunification services with Z.G.'s siblings and half-sibling, and the sexual abuse of the half-sibling. We deny the writ petitions on the merits.
All further statutory references are to the Welfare and Institutions Code unless otherwise identified.
II.
FACTUAL AND PROCEDURAL BACKGROUND
In December 2017, the Contra Costa County Children and Family Services Bureau (the Bureau) filed a Juvenile Dependency Petition under section 300 subdivision (d)(1), (d)(2), and (j)(1)-(5), alleging four-day-old Z.G. was at risk in Mother's and Father's care because Z.G.'s half-sibling, J.H., had been sexually abused by Father on numerous occasions and Mother had failed to protect the half-sibling.
Mother and Father have three children, eight-year-old H.M., six-year-old Z.M., and one-year-old Z.G. Mother has a daughter, 18-year-old J.H.
The parents had failed to reunify with Z.G.'s half-sibling J.H. and her siblings, H.M. and Z.M., and the court had terminated reunification services. The parents appealed to this court and we affirmed the disposition. (In re Z.M. (Apr. 10, 2018, A153575) [nonpub. opn.] 2018 WL 1724972, at *1.)
A. Z.G.'s Siblings' Dependency
We summarize the relevant facts as taken from our prior decision:
"On September 27, 2016, [the Bureau] filed two separate Juvenile Dependency Petitions under section 300 alleging H.M[.] and Z.M[.] were at risk in Mother's and Father's care because their half-sibling, J.H., had been sexually abused by Father on numerous occasions.
"The detention report alleged that 16-year-old J.H. had been sexually abused by Father (her stepfather) and alleged general neglect by Mother. The abuse began in 2010 and consisted of oral copulation and attempted sexual intercourse. J.H. had reported the abuse to Mother and Mother told Father who stated J.H. was lying and 'crazy' and Mother believed Father. Mother never contacted the police or sought treatment for J.H.
"J.H. reported the sexual abuse to a friend and a counselor at school. When interviewed, Mother stated there had been prior allegations of sexual abuse and they had been investigated without any finding of abuse. Mother stated Father had never touched J.H. inappropriately. She stated J.H. was the product of incest between Mother and her father, J.H.'s grandfather, and J.H. was making allegations because she was confused. Mother admitted the Bureau, the school, and friends had all told her J.H. needed therapy.
"One year prior, J.H. had been committed under section 5150 for suicidal thoughts due to her stepfather's abuse. J.H. had been prescribed anxiety medication. Mother said J.H. took the medication for one week and stopped and Mother never took her for any follow up appointments with a doctor or therapist. Mother failed to seek care for her emotionally distraught child.
"Mother refused to create a safety plan for J.H. to stay at a friend's home while the abuse allegations were investigated.
"After holding a detention hearing, the court ordered both children detained. On November 9, 2016, neither parent appeared for the jurisdictional hearing. The court sustained the petitions as written and found that the sexual abuse had occurred." (In re Z.M., supra, 2018 WL 1724972, at *1, fns. omitted.)
The juvenile court ordered reunification services for Mother and Father including individual therapy, group therapy, couples therapy, and parenting education classes. (In re Z.M., supra, 2018 WL 1724972 at *1.) After 12 months, the Bureau recommended that the court terminate reunification services for both parents. The Bureau concluded that Mother had not actively engaged in her case plan. (Id. at *2.) She had not engaged in therapeutic services to address her own past trauma or her daughter's disclosure of abuse. Father was found to be a low to moderate risk for sexually abusing the younger children " 'which is extremely concerning' " given the assessment that he demonstrated hostility to women and justified sexually abusive behavior. (Id. at *2.)
The court held a hearing on January 25, 2018 and found there was clear and convincing evidence it would be detrimental to return H.M. and Z.M. to Mother or Father. (In re Z.M., supra, 2018 WL 1724972 at *2-*3.)
B. Z.G.'s Dependency
In the detention report, the Bureau stated that it discussed with Mother its concerns for Z.G. due to sexual abuse in the home. Mother stated: " 'The court believes my older daughter, but I don't care.' " Mother continued to state that the sexual abuse did not occur.
At a contested jurisdiction hearing, the court found the allegations in the petition were true.
In the disposition report, the Bureau again interviewed Mother who stated that she now believed J.H. but still had doubts about her disclosures. Father continued to deny the sexual abuse allegations. The parents claimed to be in the process of getting a divorce. Father failed to visit Z.G. since January 2018. Mother has participated in all visits except one.
The Bureau concluded that despite many months of services, both parents continued to deny the abuse making it difficult to mitigate safety concerns for Z.G. The Bureau recommended no reunification services for either parent. The Bureau recommended the court find by clear and convincing evidence that there is a substantial danger to Z.G. under section 361, subdivision (c)(1) and Z.G.'s sibling had been sexually abused pursuant to subdivision (c)(4). The Bureau recommended the court also find by clear and convincing evidence pursuant to section 361.5 subdivision (b)(6) that Z.G.'s half-sibling had been the victim of severe sexual abuse by Father and it would not benefit Z.G. to pursue reunification services. Finally, the Bureau recommend the court find by clear and convincing evidence, pursuant to section 361.5, subdivision (b)(10), reunification services had been terminated for Z.G.'s siblings and half-sibling because Father and Mother failed to reunify and Father and Mother have failed to make a reasonable effort to treat the problems that led to removal of the siblings and half-sibling.
The court held a contested disposition hearing on May 30, 2018. No additional evidence was presented, but both parents objected to the Bureau's recommendation to bypass reunification services. Mother argued that Father was no longer living in the home with her.
The Bureau responded that even if Mother was separated from Father, she had never acknowledged the abuse. Mother conceived Z.G. during the dependency and reunification period for the older children. The Bureau argued that the parents had not truly separated and it was "sham" as found by the court at the disposition hearing for the older children.
The court found that Mother has been in "steadfast denial" that her husband sexually abused J.H. Even as recently as after Z.G.'s birth, she continued to deny the allegations. The court found the parents were given an extensive period to address the issues that brought the three older children before the court, and neither parent "has really moved the needle in any way towards addressing those issues." Mother has suffered profound sexual abuse herself, ignored the abuse of her daughter, failed to keep her daughter safe, and continued to deny the abuse. Under these circumstances, it was not in Z.G.'s best interest to return to her parents' care. "[T]o put this child through what the other children have been through, which is prolonged lack of stability in foster care, really seems to me to be inappropriate and not warranted given the services that have been offered for well over a year to these two parents." The court adopted the findings and recommendation of the Bureau. The court set a section 366.26 hearing for September 26, 2018.
III.
DISCUSSION
A. The Juvenile Court Properly Ordered the Bypass of Reunification Services
Both parents argue the juvenile court improperly denied them reunification services pursuant to section 361.5, subdivision (b)(6) and (b)(10).
As we recently stated, it is "the 'intent of the Legislature, especially with regard to young children, . . . that the dependency process proceed with deliberate speed and without undue delay.' [Citation.] Thus, the statutory scheme recognizes that there are cases in which the delay attributable to the provision of reunification services would be more detrimental to the minor than discounting the competing goal of family preservation. [Citation.] Specifically, section 361.5, subdivision (b), exempts from reunification services 'those parents who are unlikely to benefit' [citation] from such services or for whom reunification efforts are likely to be 'fruitless' [citation]." (Jennifer S. v. Superior Court (2017) 15 Cal.App.5th 1113, 1120-1121 (Jennifer S.).)
Here the trial court identified two bypass provisions, section 361.5, subdivision (b)(6) and (b)(10). Under section 361.5, subdivision (b), reunification services need not be provided to a parent if the court finds by clear and convincing evidence, any of the following:
"(6) [¶] (A) That the child has been adjudicated a dependent pursuant to any subdivision of Section 300 as a result of severe sexual abuse or the infliction of severe physical harm to the child, a sibling, or a half sibling by a parent or guardian, as defined in this subdivision, and the court makes a factual finding that it would not benefit the child to pursue reunification services with the offending parent or guardian.
"[¶] . . . [¶]
"(10) That the court ordered termination of reunification services for any siblings or half siblings of the child because the parent or guardian failed to reunify with the sibling or half sibling after the sibling or half sibling had been removed from that parent or guardian pursuant to Section 361 and that parent or guardian is the same parent or guardian described in subdivision (a) and that, according to the findings of the court, this parent or guardian has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from that parent or guardian."
As only one valid ground is necessary to support a juvenile court's decision to bypass a parent for reunification services, we will focus on the court's bypass determination pursuant to section 361.5, subdivision (b)(10). (In re Madison S. (2017) 15 Cal.App.5th 308, 324.)
Both parents claim the court failed to support its finding by clear and convincing evidence under section 361.5, subdivision (b)(6). As we conclude the court properly bypassed reunification services pursuant to subdivision (b)(10), we need not address these claims. (Jennifer S., supra, 15 Cal.App.5th at p. 1121; In re Madison S., supra, 15 Cal.App.5th at p. 324.)
"The applicable standard of review is sufficiency of the evidence. [Citation.] ' "If there is substantial evidence supporting the judgment, our duty ends and the judgment must not be disturbed." ' [Citations.]" (Amanda H. v. Superior Court (2008) 166 Cal.App.4th 1340, 1346.)
Neither parent disputes the reunification services were terminated for their other children, but they argue they have made reasonable efforts to alleviate the problem leading their removal. Mother contends she participated in individual therapy and she separated from Father and was seeking a divorce. Mother admits that at the time Z.G. was detained, she was still denying the abuse of J.H., but by the time of the disposition hearing, "Mother had her doubts, but was more accepting of her daughter's disclosures."
However, even on appeal, Mother has not admitted Father sexual abused J.H. In her writ petition, Mother states she is "more accepting of her daughter's disclosures" but this is far from an acknowledgment that Father abused J.H. over a substantial period of time and Mother failed to help or protect her.
On the issue of the parents' separation, in the prior hearing for H.M. and Z.M. the juvenile court found the divorce to be a " 'sham.' " (In re Z.M., supra, 2018 WL 1724972, at *3.) The juvenile court found Mother was still in a relationship with Father and they were " 'playing a game' " for the court to think they were separated. (Ibid.) The Bureau presented evidence here that when Father was questioned about the divorce, he could not state when they had separated or provide an address where he was currently living.
In Jennifer S., we considered a bypass of reunification services to both parents under section 361.5, subdivision (b)(10). The mother claimed she had made reasonable efforts to address her long-time substance abuse issues that had resulted in the removal of her older children. (Jennifer S., supra, 15 Cal.App.5th at pp. 1121-1122.) The mother had submitted clean drug tests, been attending a treatment program, and regularly attended visits with her infant daughter. (Id. at p. 1122.) While we commended the mother's recent efforts, we concluded substantial evidence supported the juvenile court's bypass order. (Ibid.) The juvenile court found the mother's efforts came extremely late and she continued to deny her drug use during her pregnancy. (Ibid.) The juvenile court further found the mother's denial of domestic violence not credible. (Ibid.) The father's reunification services with his older children were terminated due to his failure to participate regularly and make substantive progress. (Id. at p. 1123.) The father's efforts to finally seek treatment after years of substance abuse merely weeks before the contested hearing was not a reasonable effort to treat the issues leading to bypass. (Id. at p. 1124.)
Here, Mother's partial acceptance of her daughter's disclosures came extremely late. J.H. first reported the sexual abuse to Mother in 2010 and seven years later after Z.G.'s birth, Mother continued to deny it. (In re Z.M., supra, 2018 WL 1724972, at *1.) Mother has never fully admitted Father's conduct or acknowledged Father presents a danger to all four children. Father has never admitted the sexual abuse.
Mother cites to In re Albert T. (2006) 144 Cal.App.4th 207, where the court found a mentally impaired mother had made reasonable efforts with her second child where her first child was removed because she lacked the ability to handle the child's mental health issues and there was domestic violence in the home. The mother participated and completed court-ordered treatment and separated from the fathers of both children, but continued to be in relationships with domestic violence. The case before us is distinguishable because the juvenile court found Mother has been in "steadfast denial" that Father abused J.H. The juvenile court found Mother was given an extensive period to address the issues that brought her three older children before the court and she has failed to do so.
Father argues he had made reasonable efforts as evidenced by letters submitted by his therapist. In the January 31, 2018 letter, the therapist states: Father "has always been adamant that the allegations are false, but he has come to understand that there is something in regards to family dynamics and difficulties that may have contributed to the situation." In letter dated March 21, 2018, the therapist repeats that Father denies the allegations but states he is working on how his response could have been different to support his stepdaughter and family.
The therapist's letters support the fact that Father has been "adamant" that no sexual abuse occurred. The juvenile court found that he had been given an extensive period to address the issues and had not "moved the needle in any way towards addressing those issues."
There is substantial evidence to support the juvenile court's finding by clear and convincing evidence pursuant to section 361.5, subdivision (b)(10).
B. The Juvenile Court Correctly Found It Was in Z.G.'s Best Interests to Terminate Reunification Services
Pursuant to section 361.5, once the juvenile court determines subdivision (b)(10) applies, it shall not order reunification services for that parent "unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child." (§ 361.5, subd. (c)(2).) "The best interests determination encompasses a consideration of the parent's current efforts, fitness and history; the seriousness of the problem that led to the dependency; the strength of the parent-child and caretaker-child bonds; and the child's need for stability and continuity. [Citation.]" (In re A.G. (2012) 207 Cal.App.4th 276, 281.)
"A juvenile court has broad discretion when determining whether further reunification services would be in the best interests of the child under section 361.5, subdivision (c). (In re Angelique C. (2003) 113 Cal.App.4th 509, 523.) An appellate court will reverse that determination only if the juvenile court abuses its discretion. [Citation.]" (In re William B. (2008) 163 Cal.App.4th 1220, 1229.)
Both parents argue it is in Z.G.'s best interests to continue reunification services. Mother argues that she attended all her visits, except one, with Z.G. and she was loving and appropriate. Mother made an effort to engage in therapeutic services and distance herself from Father.
In Jennifer S., the mother argued that reunification was in the child's best interest. (Jennifer S., supra, 15 Cal.App.5th at p. 1125.) She claimed she and the father had established a bond with their daughter through visitation, but they had never parented their daughter who had been removed almost immediately after birth. (Ibid.) "[A]lthough we recognize and applaud mother's recent efforts in this case—given the extent of her substance abuse history, her clear resistance to prior court-ordered treatment for this and related issues, her relatively recent engagement in services, and the young age of the minor, we would be extremely hard pressed to find error on the part of the court below based on its analysis of K.S.'s best interest." (Id. at pp. 1125-1126.)
Here, not only did the juvenile court make a finding that Father had sexually abused J.H., but Mother had failed to protect J.H. It was therefore unlikely Mother would protect the other children from abuse. J.H. had informed Mother on multiple occasions that Father was sexually abusing her and Mother did not believe her or take any action. Even after J.H. attempted suicide, Mother did not pursue therapy or require J.H. to take her medication. (In re Z.M., supra, 2018 WL 1724972, at
Father argues that it is Z.G.'s best interest to reunify with her family. He makes a puzzling argument that his stepdaughter, J.H., is "now an adult." It is unclear to us how J.H. reaching age 18 impacts the issues before us. He also states that given his other two children have also been removed from the home, the "focus would only be on one child." This, however, in no way lessens the concerns for Z.G.'s safety given the allegations of ongoing sexual abuse by Father. "[I]t is a 'commonsense notion that any child who is residing with a parent . . . who has sexually abused the child's sibling, and/or a parent who has minimized the sexual abuse of the child's sibling, is living in a dysfunctional and potentially harmful environment.' " (In re A.G., supra, 207 Cal.App.4th at p. 281, quoting In re Maria R. (2010) 185 Cal.App.4th 48, 68.)
The juvenile court found it was not in Z.G.'s best interest to return to her parents' care. "[T]o put this child through what the other children have been through, which is prolonged lack of stability in foster care, really seems to me to be inappropriate and not warranted given the services that have been offered for well over a year to these two parents." This finding is not an abuse of discretion.
C. Reduction of Visitation
Mother's final argument is the juvenile court abused its discretion in reducing visitation to once per month. The Bureau recommended visitation be one hour, one time per month. Mother did not object before the juvenile court and the court did not address the issue of visitation on the record at the hearing.
"After the termination of reunification services, the parents' interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point 'the focus shifts to the needs of the child for permanency and stability[.]' [Citation.]" (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) Even after reunification services have been terminated, visitation must continue unless the court finds it would be detrimental to the child. (§ 366.21, subd. (h); In re Hunter S. (2006) 142 Cal.App.4th 1497, 1504.) We review an order setting visitation for an abuse of discretion. (Los Angeles County Dept. of Children & Family Services v. Superior Court (2006) 145 Cal.App.4th 692, 699, fn. 6.)
Mother argues the court did not set forth reasons for reducing visitation to once per month at the disposition hearing. The juvenile court is not required to make a finding that visitation was determinantal to Z.G. where visitation is reduced rather than terminated. (Cf. In re Jasmine P. (2001) 91 Cal.App.4th 617, 621.) However, we note the record supports the juvenile court's implied finding that reduced visitation was beneficial to Z.G. The court accepted the recommendation of the Bureau and followed the same visitation schedule as it set for the older children. (In re Z.M., supra, 2018 WL 1724972, at *7.) Although Mother had been visiting Z.G. regularly once per week, Z.G. had never been in Mother's care since she was removed at four days old. As the court stated, it was concerned with stability and permanency for Z.G. Since reunification was no longer the goal in this case, it was appropriate for the juvenile court to fashion a visitation order balancing mother's right to contact with her daughter and Z.G.'s best interests. (In re Shawna M. (1993) 19 Cal.App.4th 1686, 1690.) We find no abuse of discretion in the court's order.
IV.
DISPOSITION
The petitions for writ of mandate are denied on the merits. (§ 366.26, subd. (l)(1)(c); Cal. Rules of Court, rule 8.452.) The request for a stay is denied. Our decision is final as to this court immediately. (Cal. Rules of Court, rule 8.490(b)(2)(A).)
/s/_________
SMITH, J. We concur: /s/_________
STREETER, Acting P. J. /s/_________
REARDON, J.
Judge of the Superior Court of California, County of Alameda, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------