In re B.C.
Filed 11/19/13 In re B.C. CA6
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opinion has not been certified for publication or ordered published for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.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH
APPELLATE DISTRICT
In re B.C., a Person Coming Under
the Juvenile Court Law.
H040170
(MontereyCounty
Super. Ct.
No. J47237)
B.C.,
Petitioner,
v.
MONTEREY
COUNTY SUPERIOR
COURT,
Respondent,
MONTEREY COUNTY DEPARTMENT OF
SOCIAL & EMPLOYMENT SERVICES,
Real Party in
Interest.
I. Introduction
B.C. (the
minor) is the child at issue in this juvenile
dependency case. She has filed a
petition for extraordinary writ seeking review of the juvenile court’s orders
terminating reunification services for her mother, E.C. (Mother), and setting a
Welfare and Institutions Code section 366.26
permanency planning hearing. (See Cal.
Rules of Court, rule 5.695(h)(15).
name="_ftnref2" title="">[2])
In her
petition, the minor claims: (1) the
juvenile court failed to make the statutorily required findings to support
denial of reunification services, and
the disposition report failed to provide sufficient information upon which the
court could make appropriate findings; (2) negligence cannot support the denial
of reunification services based upon infliction of severe sexual abuse pursuant
to section 361.5, subdivision (b)(6); and (3) the juvenile court failed to make
a finding that denial of reunification services would be in the minor’s best
interest.
Mother has
filed a letter indicating she joins in the minor’s challenge to the juvenile
court’s orders. For the reasons stated
below, we will deny the petition for writ of mandate.
II. Factual
and Procedural Background
A. Section
300 Petition
On May 28,
2013, the Monterey
County Department of Social Services (the Department) filed a petition
alleging that the minor, who was 11 years old, came within the jurisdiction of
the juvenile court pursuant to section 300, subdivisions (b) [failure to
protect], (d) [sexual abuse], and (g) [no provision for support]. The petition alleged the following:
The minor’s alleged father was M.S. (Father), who was in
state prison.
title="">[3]
lived with their fathers and did not need the court’s protection.
On May 14, 2013, the minor disclosed
that her step-grandfather, D.S., had been sexually abusing her since she was
seven years old. The minor had been
forced to perform oral copulation and digital anal penetration; D.S. had also
performed those acts on the minor.
Additionally, D.S. had rubbed his penis on the minor’s vagina, manually
rubbed her vagina, and forced the minor to masturbate his penis. The sexual abuse took place in locked rooms
in the family home. A forensic medical
examination was consistent with the minor’s reported history of sexual abuse.
D.S., who
was arrested, “had been the subject of a nation-wide manhunt due to internet
child pornography.†In the family home,
D.S. had set up “computer and video equipment to record the sexual abuse acts.â€
Mother
admitted “she suspected†that D.S. was abusing the minor, although the minor
had denied that “anything was happening†when Mother asked. Mother knew that D.S. had been locking the
minor in rooms. She knew that the home
was “covered by surveillance cameras.†At
some point, she told D.S. not to lock the doors any more, but she continued to
allow the minor to be alone with D.S. and to sleep in a bed with D.S. and G.S. (Grandmother).
Following
the police intervention, Grandmother “refused to believe the allegations and
was attempting to get [the minor] to recant.â€
Grandmother “showed no empathy or concern of the abuse to [the minor] by
her husband.†When shown a video of the
minor orally copulating D.S., Grandmother said, “ ‘Well, if that’s all he
wanted he could have asked me.’ â€
Mother had
initially “refused to move,†despite being instructed to leave the house due to
Grandmother’s attempts to have the minor recant. However, after three days she agreed to allow
the minor to temporarily live with her paternal grandparents, R.P. and L.P.
In addition
to the sexual abuse, the minor had “an ongoing problem with severe encopresis.†The minor was “defecating in her pants almost
daily.†Mother claimed to have taken the
minor to the hospital some time during the prior two to three years. Mother had received medication for the minor,
but she stopped administering it because it made the problem worse. Mother had “allowed†D.S. and Grandmother to
take the minor for a follow-up appointment, and at some point, Mother had
signed a notarized form giving D.S. and Grandmother custody of the minor. Mother herself had never attended any
follow-up appointments, and she did not know the name of the doctor that the
minor had seen.
The
Department had received a prior referral in 2001, about nine months before the
minor was born. At that time, Mother was
17 years old. Police had found Mother, who
was involved with the Youth Diversion Program, violating curfew with
Father. Mother told the police “she did
not like to be at home because her stepfather, [D.S.], sexually and physically
abuses her.†Mother stated that she had
reported D.S.’s abuse to Grandmother, but that Grandmother did not believe her
and told her not to talk to the social worker.
“The referral was evaluated out.â€
A December 2012 prior referral, “for neglect of [the minor]†by Mother,
was also “evaluated out.â€
B. Detention
Hearing
At the May
29, 2013 detention hearing, attorneys were appointed for Mother, Father, and
the minor. The juvenile court ordered
the minor detained and committed to the temporary care and custody of the
Department.
C. Police
Reports
Police reports
were filed with the juvenile court on July 1, 2013. The reports summarized interviews with the
minor, Mother, and Grandmother and provided further details of the sexual abuse
and medical issues.
An
investigation into D.S.’s criminal activity had been initiated when United
States Immigration and Customs Enforcement (ICE) discovered that certain child
pornography videos in Denmark had been produced in North America. The Department of Homeland Security circulated
a news release requesting the public’s assistance in identifying D.S., who was
seen in the videos.
Mother
recognized D.S.’s picture on the “Missing and Exploited Children†page of
Facebook, then contacted the ICE tip line.
Mother denied having “[any] idea that her daughter could be the victimâ€
when she saw D.S.’s picture online. She
“had not noticed any suspicious behavior or anything she considered to be a red
flag.â€
A search
warrant was served on the family residence on May 15, 2013.
converted half of the garage into a windowless, soundproofed room that could be
locked from inside. There was a camera
outside the garage room, facing the doorway.
The garage was attached to the house through a hallway. The door to the hallway was wired so that a bell
would ring if someone opened the door into the hallway.
Mother
referred to the garage room as a “ ‘music room.’ †She knew that D.S. had soundproofed the room
and installed the cameras, but claimed she believed the cameras were for
security. She acknowledged that D.S. was
in the garage room “for most of his waking hours.†Mother further acknowledged that besides D.S.,
the minor was the only person who spent any significant time in the garage
room. No one else was allowed to go into
the room. Mother claimed that the minor
had “never been locked inside the [garage] room with [D.S.].†She also claimed that “to her knowledge, the
[minor] hadn’t been in the room alone with [D.S.] for the past several months.â€
However,
Mother acknowledged that about a year and a half earlier, Mother’s live-in boyfriend
had told D.S. “that if he ever locked the door to his room again with the
victim inside, he would beat his ass.†Mother claimed she had not been “uneasy†about
the locked door because she never thought D.S. “would do anything like
that.â€
After
initially denying that she had any suspicions about D.S. sexually abusing the
minor, Mother admitted that “she thought in the back of her mind that something
was not right.†Mother “suspected [D.S.]
was touching [the minor] in ways he shouldn’t have been.†Mother asked the minor whether D.S. ever
touched her, but the minor said that D.S. had not done so. Even when Mother said that nothing would
happen to the minor or D.S., the minor “still said nothing happened.â€
Despite
having suspicions that D.S. was sexually abusing the minor, Mother moved out of
the residence for several months but allowed the minor to stay with D.S. and
Grandmother.
Following
the minor’s forensic interview, Mother was instructed not to leave the victim
alone with Grandmother, to ensure that Grandmother did not question or harass
the minor about the allegations. Mother
and her boyfriend had agreed to get a hotel room for the night. However, Mother allowed the minor to sleep
with Grandmother instead. Grandmother
admitted questioning the minor about the case that night.
Police
obtained the minor’s medical records, which showed that Mother brought her in
to see a doctor in October of 2011 due to her constipation and
incontinence. Mother had also attended
the one-week follow-up appointment, along with D.S. and Father. The minor was referred to a gastroenterologist,
but she never went. According to Mother,
Grandmother refused to take the minor to the specialist because of the cost.
When asked
if D.S. had ever done anything sexual to her, Mother said he had not. She also denied having made any such
allegations about D.S. in the past. However,
this conflicted with the 2001 report regarding Mother’s allegations of being
sexually abused by D.S. At that time, a
police officer had contacted Mother regarding a curfew violation. Mother had told the officer that D.S. had
“physically and sexually abused her and that he touched her in inappropriate
places.†Mother stated that she had to lock
her bedroom door to make sure D.S. did not come in. Mother said she had told Grandmother about
the sexual abuse, but Grandmother did not believe her.
When
questioned about the 2001 report, Mother said she did not remember making those
statements. Mother did say that D.S.
“use[d] to beat her and that she fought back,†and she suggested D.S. might
have touched her in inappropriate places during their scuffles.
In speaking
with the police and social worker, Grandmother called Mother “a big liar†who had
lied about D.S. in the past. Grandmother
asked if Mother had been “making false allegations against [D.S.], again.†Grandmother did not understand why the minor
could not live with her. Grandmother
“failed to exhibit empathy or concern about [the minor],†and instead
emphasized how the events “were negatively impacting her personally.†She “continue[d] to support [D.S.] and
visit[ed] him regularly in prison.â€
D. Family
Mental Health Assessment
A Family
Mental Health Assessment was filed with the juvenile court on July 1,
2013.
Mother had
been interviewed on June 13, 2013. She
“presented as stoic[ and] detached,†and she gave evasive and conflicting
responses. “Overall, [Mother] minimized
the impact of the sexual abuse upon [the minor], and failed to take
responsibility for her part in the dependency case.â€
Mother both
denied making prior allegations about D.S. and claimed that she made up those
allegations. She also admitted having “strong
suspicions†that D.S. was abusing the minor while claiming she did not know
that the minor was one of D.S.’s victims.
During her
interview, Mother “seemed to be more focused on her own ‘therapy,’ rather than
what [the minor] and the family require for healing in the wake of the sexual
abuse.†Mother perceived moving to a new
home as the solution and did not identify any other treatment needs for the
minor.
During
supervised visitations with the minor, Mother was critical of the minor and did
not realize how her criticisms distressed the minor. Mother appeared to relate to the minor “as
more of a peer, rather than her own child.â€
Mother “took on a passive role during the visitations, and the majority
of the social interactions were initiated by [the minor].†The minor asked Mother to hug her and call
her, and she “desperately sought validation and reassurance†from Mother, but
Mother did not seem to notice.
The minor
had been interviewed on June 6 and 7, 2013.
During the interviews, she “sought physical proximity with th[e]
examainer almost immediately, and required constant approval and
reassurance.†She demonstrated distress
and anxiety during the interview. She
described the sexual abuse, reporting that D.S. had forced her to perform sex
acts with two other minors, that D.S. had anally penetrated her, that D.S. had
forced her to touch and orally copulate his penis, and that D.S. had threatened
her in order to ensure that she did not disclose the abuse.
The minor
believed that Mother suspected the sexual abuse, saying, “ ‘Mom suspected . . .
because she knew. [D.S.] was always
asking me to go into that room . . . His garage room. . . . Mom would ask, “what did your granddad do?†.
. . she did know.’ â€
The minor
“described her relationship with [Mother] as ‘nice . . . She cares for me . . .
Tells me I love you so much. I love you
with all my heart . . . Nothing good about being separated from
Mom.’ †“When asked about three
wishes that she could have granted,†the minor’s first request was to “ ‘[s]ee
my Mom everyday. . . .’ †Her
responses “reflect[ed] a strong connection to her mother . . . .â€
The minor’s
caregiver (her paternal grandmother, L.P.) reported that the minor was
“adjusting well to her new home environment.â€
The caregiver noted that the minor was the one who generally initiated
contact with Mother. The caregiver
believed that Mother sometimes brought up “inappropriate and potentially
re-traumatizing†subjects during phone calls.
The caregiver observed that visits with Mother were “ ‘hard’ †for
the minor.
According
to the social worker, it was “essential that [Mother] accept responsibility for
her role in the current dependency case and learn how the history of chronic sexual
abuse impacted [the minor]†if reunification was to occur. The social worker recommended that Mother
participate in mental health treatment and complete a parenting class. The social worker further recommended that
the minor participate in mental health treatment as well as family therapy with
her current caregiver.
E. Jurisdiction/Disposition
Report
The
Department’s jurisdiction/disposition report was filed on July 5, 2013. The Department recommended that the juvenile
court deny reunification services (but permit visitation) and set the matter
for a selection and implementation hearing.
The
Department indicated its recommendation to deny reunification was based on
section 361.5, subdivision (b)(6) and acknowledged “that such a proposal must
be in the child’s best interest.â€
Specifically, “The Department recommends that family reunification services
be denied to the mother, because she should have known that her child was being
abused . . . .†“The Department’s
assessment is that the child appears bonded to her mother, but it is an
unhealthy bond, due to the inadequacy of the mother’s parenting. The mother has taken no responsibility for
what has happened to her daughter . . . .
It is likely that providing up to 18 months of family reunification
services would hinder the child’s ability to heal and move forward with
permanency with a safe and capable caregiver.
Due to the nature, severity and longevity of the mother’s deficits, it
appears unlikely that she would be able to overcome the obstacles in front of
her within 18 months, if ever.â€
F. Jurisdiction
Hearing
A jurisdiction
hearing was held on July 10, 2013. Mother
did not contest jurisdiction, and the minor submitted “on the issue of
jurisdiction and disposition.†The
juvenile court adopted the findings and orders of the jurisdiction report.
G. Trial
Briefs and Caregiver Letter
The
Department filed a trial brief on September 9, 2013. In its brief, the Department framed the issue
for disposition as “whether the Mother consented, actually or implicitly, to
the sexual abuse.†The Department
indicated that it was “not arguing that the mother gave actual consent to the
severe sexual abuse,†but it asserted that there was “ample evidence that the
Mother gave implicit consent to the severe sexual abuse.†The Department made seven claims in support
of such a finding: (1) Mother was herself
sexually abused by D.S. and thus “was accepting the risk that he would molestâ€
the minor when she allowed the minor to spend time alone with him; (2) Mother
allowed the minor to spend time alone with D.S. despite having suspicions that
D.S. was molesting the minor; (3) Mother prepared a notarized letter giving
custody to D.S. and Grandmother despite having been sexually abused by D.S.
herself and despite her suspicions about D.S. molesting the minor;
(4) Mother permitted the minor to sleep in the same bed as D.S. and
Grandmother; (5) Mother allowed the minor to spend time with D.S. in a
locked, soundproofed room; (6) the set-up of the garage room was “a dead
giveaway†that sexual abuse was occurring; (7) the minor knew that Mother was
aware of the molestation, since Mother would ask her what happened in the
garage room.
The
Department’s brief also addressed the question whether reunification services
would benefit the minor. The Department reiterated
that Mother “knew or reasonably should have known that [the minor] was being
sexually abused by [D.S.].†The
Department asserted that it would “take decades, if not a lifetime, of therapy
to help [the minor] cope with the severe trauma she has suffered.†The Department argued it was highly unlikely
that Mother would be able to reunify within 12 months, due to her own history
of abuse, her denial of that history, her inability to understand the severe
trauma suffered by the minor, and her failure to take responsibility for her
role in the situation.
The Department
acknowledged that the minor might want to be reunified with Mother, but noted
that the minor’s wishes were “not determinative.†The Department noted that it was
“disconcerting†that Mother wanted to return the minor to the family home,
where the abuse had occurred.
Mother
filed a trial brief on September 10, 2013, urging the juvenile court to offer
her reunification services. Mother
claimed that D.S. had never abused her:
“She made up the information because she knew that she was in big trouble
with her mother and stepfather due to the fact that she had been staying out
late and had not been behaving as they wished she would.â€
In her
brief, Mother asserted that the notarized letter giving custody to D.S. and
Grandmother was dated in 2008, which preceded the time of the sexual
abuse. Mother further asserted, “[T]he
grandparents had medical insurance . . . and [the minor] needed this in order
for her to see the doctor.â€
Finally,
Mother noted in her brief, “[The minor] wants to reunify with her mother and
hopes that her mother will be offered services so that this will be possible.â€
The minor’s
caregiver submitted a letter to the court on September 13, 2013. The caregiver described how she and the minor
“spent the first three weeks together in the bathroom†due to the minor’s
encopresis. The minor had been “living
daily in soiled clothing and underclothes for years, her body was bleeding and
sore from front to back[,] and she had absolutely no bowel control.†“Just getting her body healthy took weeks and
weeks, several trips to the doctor and eventually she has healed . . . .â€
The
caregiver described how she screened the minor’s telephone conversations with
Mother. She could see and hear “the
[minor’s] pain and confusion . . . as she listens over and over to her mother
say how she is spending her time at amusement parks or fairs or the boardwalk,
or daily motorcycles rides to Hollister hills or taking her younger brother to
the show.†The caregiver had “[n]ever
once†heard Mother “acknowledge any responsibility for the fact that [the
minor’s] life as she had known it had been ripped apart . . . . Not once has [Mother] told her daughter that
she was sorry.[]â€
The
caregiver explained that she had repeatedly attempted to get Mother to
understand how the phone conversations were upsetting the minor. The caregiver believed that the conversations
were “more harmful than good at this point.â€
The caregiver was fearful that Mother’s “lack of right judgment†would
put the minor in danger again.
H. Disposition
Hearing
At the
September 16, 2013 disposition hearing, Mother objected to the Department’s recommendations
and noted that she wanted to reunify with the minor. The minor submitted the matter on the
jurisdiction/disposition report.
The parties
entered into four stipulations: (1)
Mother called ICE on May 14, 2013, met with ICE on May 15, 2013, and moved out
of the family home with the minor on May 17, 2013; (2) the minor stated that
she wanted to reunify with Mother; (3) Mother had signed the notarized letter
giving custody to D.S. and Grandmother in order to have the minor covered by
her parents’ health insurance; and (4) Mother reported being sexually abused by
D.S. when she was 17 years old, but there had been no follow-up or charges.
The juvenile
court read its findings and order into the record as follows: “[The Court] sustains the petition pursuant
to Section 300(b), (d), and (g), adjudges the child as a dependent of the
Court, removes the child from the custody of the parents, finds that the
current placement is appropriate, denies reunification services to the parent,
and schedules the matter for a Selection and Implementation hearing.†The juvenile court also approved the case plan
and ordered an assessment to be prepared by the Department. The court set the selection and
implementation hearing (§ 366.26) for January 8, 2014.
III. Discussion
The minor and
Mother contend the juvenile court erred by denying reunification services.
A. Statutory
Scheme
“[W]henever
a child is removed from a parent’s or guardian’s custody, the juvenile court
shall order the social worker to provide child welfare [i.e., reunification] services
to the child and the child’s mother and statutorily presumed father or
guardians.†(§ 361.5, subd. (a);
see also rule 5.695(h)(1).) The
foregoing subdivision sets forth the “ ‘general rule’ †that “ ‘reunification
services are offered to parents whose children are removed from their custody
in an effort to eliminate the conditions leading to loss of custody and
facilitate reunification of parent and child. This furthers the goal of preservation of
family, whenever possible. [Citation.]’ [Citations.]â€
(In re Allison J. (2010) 190 Cal.App.4th 1106, 1112 (
However, “subdivision
(b) of section 361.5 sets forth a number of circumstances in which
reunification services may be bypassed altogether. These bypass
provisions represent the Legislature’s recognition that it may be fruitless to
provide reunification services under certain circumstances. [Citation.]â€
(Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 597.) The bypass finding must be made “by clear and
convincing evidence.†(§ 361.5, subd.
(b).)
One of the
circumstances in which the juvenile court may bypass reunification services is if
“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.†(§ 361.5,
subd. (b)(6); see also rule 5.695(h)(6)(F).)
“A finding
of severe sexual abuse . . . may be based on, but is not limited to, sexual
intercourse, or stimulation involving genital-genital, oral-genital,
anal-genital, or oral-anal contact, whether between the parent or guardian and
the child or a sibling or half sibling of the child, or between the child or a
sibling or half sibling of the child and another person or animal
parent or guardian; or the penetration or manipulation of the child’s,
sibling’s, or half sibling’s genital organs or rectum by any animate or
inanimate object for the sexual gratification of the parent or guardian, or for
the sexual gratification of another person with
the actual or implied consent of the parent or guardian.†(§ 361.5, subd. (b)(6), italics added.)
“In
determining whether reunification services will benefit the child pursuant to
paragraph (6) . . . of subdivision (b), the court shall consider any
information it deems relevant, including the following factors: [¶] (1)
The specific act or omission comprising the severe sexual abuse or the severe
physical harm inflicted on the child . . . .
[¶] (2) The circumstances
under which the abuse or harm was inflicted on the child . . . . [¶] (3)
The severity of the emotional trauma suffered by the child . . . . [¶] (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.†(§ 361.5, subd. (i).)
The
juvenile court must hold a dispositional hearing to consider whether to order
reunification, and the social worker must prepare a report discussing “whether
reunification services shall be provided.â€
(§ 361.5, subd. (c).) The
juvenile court “shall not order reunification for a parent or guardian
described in [subdivision (b)(6)] unless the court finds, by clear and
convincing evidence, that reunification is in the best interest of the
child.†(Ibid.)
The
juvenile court “shall read into the record the basis for a finding of severe
sexual abuse or the infliction of severe physical harm under paragraph (6) of
subdivision (b), and shall also specify the factual findings used to determine
that the provision of reunification services to the offending parent or
guardian would not benefit the child.â€
(§ 361.5, subd. (k).)
B. Standard
of Review
“ ‘We
affirm an order denying reunification services if the order is supported by
substantial evidence. [Citation.]’ [Citation.]â€
(Amber K. v. Superior Court (2006) 146 Cal.App.4th 553, 560
(Amber K.).)
C. Statutorily
Required Findings and Sufficiency of Disposition Report
The minor and
Mother contend that the juvenile court failed to make the statutorily required
findings to support denial of reunification services, and that the disposition
report provided insufficient information upon which the court could make the
required findings.
First, the
minor and Mother complain that the juvenile court failed to find that Mother
“consented, either actually or impliedly, to the severe sexual abuse of [the
minor].†(See § 361.5, subd.
(b)(6).) They further contend that
“[e]ven if the juvenile court had made such a finding, there is nothing in the
factual record to support it.â€
Although
the juvenile court did not make an express finding that Mother actually or
impliedly consented to the severe sexual abuse of the minor, the court
impliedly made such a finding by sustaining the allegations of the
petition. (Cf. In re S.G. (2003) 112 Cal.App.4th 1254, 1260 [appellate court
may uphold denial of reunification services under section 361.5, subdivision
(b)(6) in absence of explicit findings by juvenile court].) Further, substantial
evidence supports the juvenile court’s implied finding.
The instant
case is similar to Amber K., supra,
146 Cal.App.4th 553, in which the appellate court found substantial evidence
supported a finding that the mother had “by her actions, impliedly consented to
the sexual abuse†of her daughter, S.M., by the father. (Id.
at p. 561.) In that case, there was
evidence that the father had previously sexually abused another child, D.L., and
that D.L. had told the mother about the abuse “every time.†(Id.
at p. 560.) The sexual abuse of S.M.
occurred when the mother allowed the father to stay at their house for a few
nights. Because the mother allowed the
father such access to S.M., knowing of his prior sexual abuse of another child,
she “was an offending parent, within the meaning of section 361.5, subdivision
(b)(6)†(id. at p. 561), that
is, “a parent who gave actual or implied consent to the sexual abuse of the
child by another person†(ibid.).
Here, there
was substantial evidence to support a finding that Mother knew D.S. had
previously sexually abused another child – Mother herself. Although there was conflicting evidence on
the subject, the juvenile court impliedly agreed with the Department that
Mother had in fact been sexually abused by D.S., as she had reported to the
police in 2001. Despite her knowledge of
D.S.’s prior sexual abuse of a child, and despite her own suspicions that D.S.
was sexually abusing the minor (in addition to knowing that her boyfriend had
the same suspicions), Mother permitted D.S. to have access to the minor in the
locked garage room and in his own bed.
Under the circumstances, the evidence supported a finding that Mother
“was an offending parent within the meaning of section 361.5, subdivision
(b)(6)†(Amber K., supra,
146 Cal.App.4th at p. 561), that is, “a parent who gave actual or implied
consent to the sexual abuse of the child by another person†(
Substantial evidence supported a finding that Mother “by her actions,
impliedly consented to the sexual abuse†of the minor by D.S. (Ibid.)
Second, the
minor and Mother assert that the Department failed to prepare a report
discussing “whether reunification services shall be provided.†(§ 361.5, subd. (c).) Specifically, they claim that the disposition
report should have included a discussion about whether child welfare services could
solve the issues in this case.
We disagree
that the jurisdiction/disposition report failed to contain such a
discussion. The report specifically discussed
the reasons the Department was recommending denial of reunification
services. The Department noted that
Mother’s parenting had been inadequate, that she had taken no responsibility
for the minor’s sexual abuse, and that “[d]ue to the nature, severity and longevity
of the mother’s deficits,†it was unlikely that even 18 months of reunification
services would benefit the minor. The
Department specified that providing reunification services “would hinder the
child’s ability to heal and move forward with permanency with a safe and
capable caregiver.â€
In sum, we
find no merit to the claim that the juvenile court failed to make the
statutorily required findings to support denial of reunification services, and
we disagree that the disposition report provided insufficient information upon
which the court could make the required findings.
D. Denial
of Reunification Services Pursuant to Section 361.5, Subdivision (b)(6) Based
on Negligence
The minor and
Mother next contend that negligence cannot support the denial of reunification
services based upon infliction of severe sexual abuse pursuant to section
361.5, subdivision (b)(6). They contend
that at most, Mother was merely negligent because she had no “direct knowledge
of the abuse.â€
The minor
and Mother rely on Tyrone W. v. Superior
Court (2007) 151 Cal.App.4th 839 (Tyrone
W.), a case involving denial of reunification services under the “severe
physical harm†provision of subdivision (b)(6).
In
juvenile court could not bypass reunification services under the “severe
physical harm†provision of subdivision (b)(6) based on a finding that a parent
“ ‘reasonably should have known’ [the infant] was being physically abused.â€
(Tyrone
W., supra, 151 Cal.App.4th at p. 849.)
The court noted that the Legislature had included the words “
‘deliberate’ and ‘inflicted’ †in the “severe physical harm†provision of section
361.5, subdivision (b)(6), but not the phrase “ ‘reasonably should have
known.’ †(Id. at p. 850.) Considering
this statutory language, the court held that “[t]he Legislature did not intend
[section 361.5,] subdivision (b)(6) to apply to deny reunification services to
a negligent parent; rather, the parent must have been complicit in the
deliberate abuse of the child.†(
This case
does not involve an allegation under the “severe physical harm†provision of section
361.5, subdivision (b)(6).
whether negligence can support the denial of reunification services based upon a
finding of severe sexual abuse pursuant to section 361.5, subdivision (b)(6). Nevertheless, even assuming that a finding of
negligence is insufficient, here there was substantial evidence to support a
finding that Mother was not merely negligent, but that she impliedly consented
to the sexual abuse. As explained above,
under Amber K., supra, 146 Cal.App.4th
553, implied consent to sexual abuse may be found where a parent knows that
another adult has previously sexually abused another child but nevertheless permits
that adult to have access to another child.
Here, Mother knew D.S. had previously sexually abused another child –
Mother herself – and she had suspicions that D.S. was sexually abusing the
minor, yet she permitted D.S. to have access to the minor in the locked garage room
and in his own bed. This evidence is
sufficient to establish that Mother impliedly consented to the sexual abuse as
required under section 361.5, subdivision (b)(6). (See Amber
K., supra, 146 Cal.App.4th at pp. 560-561.)
E. Best
Interest Finding
Finally,
the minor and Mother contend that the juvenile court erred by failing to make
an explicit finding about whether denial of reunification services would be in
the minor’s best interest. They
emphasize that the minor herself stated that she wanted to reunify with Mother,
and they claim that the evidence established that they had “a loving and
nurturing relationship.†The minor and
Mother contend that in light of “the strength of the relationship between
mother and child,†reunification services were in the minor’s best interest.
As noted
above, section 361.5, subdivision (c) prohibits the juvenile court from
ordering reunification “for a parent or guardian described in [subdivision
(b)(6)] unless the court finds, by clear and convincing evidence, that
reunification is in the best interest of the child.†(Ibid.) “Section 361.5, subdivision (c) enables a
parent to obtain reunification services notwithstanding section 361.5(b)[(6)]
where the parent demonstrates reunification is in the child’s best interest by
offering evidence of, among other things, his or her current ability to parent.†(Allison J., supra, 190 Cal.App.4th at
p. 1116.)
“To
determine whether reunification is in the child’s best interest, the court
considers the parent’s current efforts, fitness, and history; the seriousness
of the problem that led to the dependency; the strength of the parent-child and
caretaker-child bonds; and the child’s need for stability and continuity. [Citation.]
A best interest finding requires a likelihood reunification services
will succeed; in other words, ‘some “reasonable basis to conclude†that
reunification is possible. . . .’ [Citation.]†(Alison J., supra, 190 Cal.App.4th at p. 1116.)
In Amber K
reunification services were not in the child’s best interest, despite the fact
that one of the children clearly wanted to return to the mother’s custody. The appellate court focused on the
seriousness of the problem that led to the dependency: “Mother allowed father, a known sexual
molester, to stay overnight at her home with the children.†(Id. at p. 563.) Based on that fact, “the court clearly and
properly found that offering mother reunification services would not be in the
best interests of the children.†(Ibid.)
Here, the same can be said about
Mother: she allowed D.S., a known child
molester, to stay overnight in bed with the minor and to stay in a locked
garage room with the minor. Further, in this
case, Mother had a history of very poor parenting – specifically, her failure
to adequately address the minor’s longstanding encopresis. Additionally, the social worker’s reports
reflect that Mother failed to accept any responsibility for the sexual abuse,
minimized the impact of the sexual abuse on the minor, and interacted with the
minor inappropriately during visitations and telephone calls. On this record, “[t]here simply was not
‘clear and convincing evidence’ that reunification was in [the minor’s] best
interest, or any evidence that reunification was ‘possible.’ [Citation.]â€
(Allison J., supra, 190 Cal.App.4th at p. 1116.)
Lastly, the minor and Mother
contend that the juvenile court erred by failing to make any “statement on the
record†that reunification would not be in the minor’s best interest. The juvenile court’s failure to make an
explicit finding about the minor’s best interest does not preclude us from
upholding its implied finding, however.
(In re S.G., supra, 112
Cal.App.4th at pp. 1260-1261.) And, as
stated above, in this case there was no clear and convincing evidence that
reunification was in the best interest of the minor. (§ 361.5, subd. (c).)
IV. Disposition
The petition for writ of mandate is denied.
___________________________________________
Bamattre-Manoukian, ACTING P.J.
WE CONCUR:
__________________________
Márquez, J.
__________________________
GROVER, J.
name="_ftn1" title=""> [1] All further statutory
references are to the Welfare and Institutions Code unless otherwise indicated.
name="_ftn2" title=""> [2] All further rule
references are to the California Rules of Court unless otherwise indicated.
