Filed 3/19/18 In re Savannah R. CA5




NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT


In re SAVANNAH R. et al., Persons Coming Under the Juvenile Court Law.

KERN COUNTY DEPARTMENT OF HUMAN SERVICES,
Plaintiff and Respondent,
v.
SAVANNAH R. et al.,
Appellants;
JOSE R.,
Defendant and Respondent.
F075847

(Super. Ct. Nos. JD136232-00, JD136233-00, JD136234-00)


OPINION

APPEAL from orders of the Superior Court of Kern County. Raymonda B. Marquez, Judge.
Jamie A. Moran, under appointment by the Court of Appeal, for Appellants.
Mark L. Nations, County Counsel, and Bryan C. Walters, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for Defendant and Respondent.
-ooOoo-
This is an appeal by three minor children named in this case from an order by the juvenile court to deny reunification services to their father, Jose R. (father), after the juvenile court found father had committed multiple acts of sexual abuse against the minors’ older sister. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In June of 2016, the Kern County Department of Human Services (department) received a referral that father had been sexually abusing one of his children, 16-year-old D.R., for approximately 10 years, starting when she was five or six years old. It was alleged father forcibly had anal intercourse with D.R. over 50 times, with the most recent incident occurring within the previous two weeks.
D.R. was reported missing on June 13, 2016. When she was located the following day, she disclosed the molestations by father. There had been prior allegations of sexual abuse, though D.R. had denied them.
D.R. is the older sister of then 13-year-old Savannah R., 11-year-old S.R., and 10-year-old J.R. (Raymond) (collectively, the children). Father had full custody of the children and D.R. Mother was not a part of their lives due to a history of drug use, and her whereabouts were unknown.
D.R. was interviewed by a social worker on June 16, 2016. Her paternal aunt, Sonia, located her a day after she ran away from home. D.R.’s boyfriend urged D.R. to disclose the allegations of sexual abuse to Sonia, which she did. Another aunt, Cecilia, advised Sonia to disclose the abuse to law enforcement, and Sonia took D.R. to the sheriff’s substation.
D.R. reported father had been having anal intercourse with her since she was five or six years old and had done so forcibly over 50 times. The most recent occurrence for D.R. was on May 23, 2016, when she and father were home alone. D.R. explained her siblings were at school and the paternal grandmother was at work. According to D.R., she and her siblings share a bedroom with their father, and there are only two bedrooms in the home. That day, D.R. did not have school. Her father took her siblings to school. When he returned, he got into bed with her and put his penis in her anus and had anal intercourse. D.R. stated she sometimes fights father and she sometimes “just lets him do it.” When she fights him, she keeps pulling her pants up while father tries to pull them down. Sometimes when she fights him, he will stop; this time she did not fight him. According to D.R., father did not say anything during this incident and she did not say anything to him either. D.R. did not know how many times this had occurred but indicated it happened a lot and had been happening since she was about five or six. D.R.’s recent decision to run away was prompted by continued attempts by father to molest her in the preceding days before she ran away.
D.R. did not have any knowledge of her siblings being sexually abused by father, but she worried about them. She stated she had not disclosed the sexual abuse in the past because she did not want her siblings to know and she did not want her father to go to jail.
The social worker talked to father on the telephone and asked to come speak with him. Father said he was “not in the mood to talk” at that time but he would be home later. The social worker traveled to the family home, where a paternal aunt blamed D.R. for the allegations, indicating D.R. was promiscuous and a liar. The children were then taken into protective custody. While walking to the county vehicle, father told Savannah it was all D.R.’s fault.
The detention hearing was held June 17, 2016, but continued to June 20, 2016. After the hearing, the social worker attempted to meet with father, but he declined and left.
Savannah was interviewed June 17, 2016, and reported her relationship with father was generally good, although she sometimes got into trouble because of conflicts she had with her paternal grandmother. Savannah stated she generally got along well with her siblings and she felt safe at home with her father and grandmother; she had not seen her mother in approximately six years. Savannah did not believe D.R.’s allegations and denied being sexually abused herself. Savannah stated she and her siblings share a bedroom with their father: she and D.R. slept on the top bunk, father and S.R. slept on the bottom bunk, and Raymond slept in the living room with her grandmother. Savannah had no concerns about being in the home. She reported D.R. had disclosed to her that she was having vaginal and anal intercourse with her boyfriend.
S.R. confirmed Savannah’s description of the sleeping arrangements in the home. She also reported good relations with her family, with the exception of the paternal grandmother. She felt safe at home and denied any sexual abuse.
Raymond reported he got along well with his family but he was mad at D.R. for running away because it scared him, and he did not know why he had been taken into protective custody. Raymond denied any sexual abuse and had no concerns at home.
Although the family had previous dependency referrals, primarily due to mother’s drug use, the first allegation of sexual abuse of D.R. by father was in May of 2014. At that point, a third party reported D.R. had said she did not want to go home with father because he “hurts and touches her.” D.R. denied the abuse.
A detention hearing on the current petition was held June 20, 2016. The juvenile court made prima facie findings and ordered the children detained in foster care. Supervised visits between the children and father were to occur two hours twice a week; father stipulated to no visits with D.R. Mediation was set for August 5, 2016, and jurisdiction/disposition was set for August 15, 2016.
On June 21, 2016, a letter received from a medical facility, signed by a family nurse practitioner, stated father was being “followed” in their office for diabetes and that he suffers from chronic erectile dysfunction.
On August 15, 2016, a status review hearing was set for September 12, 2016, prior to the setting of a contested jurisdiction/disposition hearing. The status review hearing was to allow father’s counsel to subpoena medical records and review them.
On August 18, 2016, the social worker spoke with father to discuss the department’s recommendation that he enroll in a “Sexual Abuse as a Predator” class. Father stated he was aware of the recommendation, but would not enroll as it would be an admission of guilt. He also stated his attorney was requesting medical records “to prove his innocence.”
On September 2, 2016, father filed a Welfare and Institutions Code section 388 petition seeking to change the juvenile court’s order appointing one attorney to represent all four children, as father alleged the children refuted the allegations made by D.R. The petition was denied September 9, 2016, finding there was no showing of an actual conflict.
At a hearing on September 12, 2016, father’s counsel stated the medical records had been subpoenaed, but had not arrived. And, after further speaking to father, counsel found the “information we were seeking didn’t actually ever exist because the checkups that we thought would reveal information didn’t actually happen the way we thought it would.… I don’t think there’s going to be anything in the medical records which would reveal anything helpful for this case.” Counsel stated he was ready to proceed without the records.
County counsel asserted D.R. came into protective custody with a sexually transmitted disease, and the department had hoped to review both her and father’s medical records. The juvenile court set a hearing date of October 4, 2016, to obtain the medical records.
On September 26, 2016, father was seen at a medical facility requesting a sexually transmitted disease check. According to the note, father’s last reported sexual encounter was over five years earlier.
The October 4, 2016, status review hearing was once again continued because not all subpoenaed records had been received. The hearing was set for October 31, 2016, which was then continued to December 20, 2016.
On October 31, 2016, the social worker spoke to father, who refused to give consent for D.R. to have an endoscopy procedure recommended by her gastroenterologist, stating he did not want anything to do with her, and he would not sign the form.
On November 3, 2016, the social worker spoke to the children’s caretaker, who implied the children had been told by father not to visit with D.R. anymore.
On November 4, 2016, the social worker supervised a visit between D.R. and mother, who had now been located. Mother told the social worker she did not understand how father could have abused D.R., noting when he was with her, he never forced himself on her. Mother agreed to sign the consent form for D.R.’s procedure.
On December 20, 2016, a jurisdiction/disposition hearing was set for March 1, 2017. After the minors’ counsel advised the juvenile court of an actual conflict, the juvenile court appointed separate counsel for the children.
In February of 2017, at a conjoint therapy session with D.R. and the children, D.R. left in tears after the others blamed her for their placement in foster care. The children’s caretaker continued to have difficulty with Raymond’s behavior.
A supplemental report dated March 1, 2017, stated sibling visits, which were arranged by the department, were not going well. Savannah and Raymond stated they did not wish to see D.R. The children were visiting father and also had telephone contact with him.
At the contested jurisdictional hearing March 1, 2017, father denied abusing D.R. and testified he had a medical condition preventing him from having sexual relations. Father indicated that, if the juvenile court did not take jurisdiction over the children, he planned to leave D.R. with her caretaker and permit guardianship to go forward.
Father’s counsel argued that, because father had erectile dysfunction, and because D.R. tested positive for chlamydia, whereas father tested negative, and because none of the siblings saw anything, the allegations against father were false.
D.R.’s counsel argued D.R. had made consistent statements concerning the abuse with both the social worker and law enforcement, despite pressure from family members and her siblings to recant. He further noted the chlamydia test results were not significant because the allegations covered a 10-year span. He also discounted father’s “self-reported” diagnosis of erectile dysfunction.
Counsel for the children argued there was a lack of investigation into D.R.’s allegations. He noted D.R. was sexually active with her boyfriend and had not been consistent with her statements.
Deputy county counsel acknowledged slight differences in D.R.’s statements made to the social worker and the sheriff’s deputy. Nonetheless, she emphasized the important details were consistent. Counsel cited In re I.J. (2013) 56 Cal.4th 766 as authority the siblings were also at risk, and she requested the juvenile court find the allegations of the petition true.
The juvenile court, taking into account the social studies, father’s testimony, argument of counsel, and the case cited by county counsel, found the allegations of the petition true. In doing so, it found father’s self-reporting of erectile dysfunction “suspect and certainly not dispositive”; it did not give great weight to the chlamydia tests due to the delay between the two tests (D.R.’s test was dated June 17, 2016; father’s was Sept. 26, 2016); it noted D.R.’s aunt and the social worker found D.R. credible; it found father’s demeanor when asked about past abuse suspect; and the juvenile court itself found D.R. credible. Contested disposition was set for April 27, 2017.
On March 3, 2017, counsel filed an ex parte application on behalf of mother seeking visitation with the children. Counsel for the children objected, stating mother had not been a part of their lives and had a substantial drug history. The juvenile court granted mother two-hour supervised visits twice weekly with D.R. As to the children, it ordered weekly visits if the children decided to attend.
The supplemental report prepared in anticipation of disposition set for April 27, 2017, reported the children’s caregiver was frustrated with caring for Savannah and Raymond. Raymond was having trouble sleeping and experiencing behavioral difficulties, including tantrums, and he was not bathing properly. Savannah was participating in therapy. The caregiver observed Savannah kissing a boy in the park, but she resisted the social worker’s suggestion that Savannah should be on birth control. S.R. was not as difficult for the caregiver, but she was wetting herself on occasion and not bathing properly. The caregiver also suspected S.R. of stealing money from an aunt. The caregiver did not believe the abuse allegations against father, and she was reluctant to make herself available for the long-term care of the children.
In early April of 2017, the social worker made contact with mother, who agreed to begin appearing for her court-ordered visitation. However, the children did not wish to see mother.
On April 21, 2017, mother indicated she wanted placement of her children. Mother was still homeless and recently diagnosed with lupus, but she was looking for housing and applying for disability benefits to help with rent. She said she had abused methamphetamine in the past, but claimed to be clean and was willing to drug test. Mother claimed it was father who prevented her from having contact with her children, whom she had last seen three years earlier. Mother conceded she was aware of the juvenile court proceedings but did not attend because she was nervous.
The department recommended against placement of the children with mother as she was homeless and unable to care for them. But it did recommend she be provided with reunification services, which would help her care for the children and build a bond with them.
While the children were strongly bonded with father, D.R. had had no contact with him. Father refused contact with D.R. as well. The department recommended not providing father with reunification services, noting his continued denial of abusing D.R. and his refusal to participate in voluntary services.
At the disposition hearing on April 27, 2017, father testified he had been in contact with the department, who had mentioned he enroll in services. He was now willing to take the parenting class and the sexual abuse as a perpetrator class, and he would sign up for them as soon as possible. Father testified that, if the children were returned to him, the two girls would share one room, Raymond would have the other, and he would sleep in the living room.
Raymond testified he had a good relationship with his father and hoped to go home with him soon. It was stipulated that, if Savannah testified, it would be similar to Raymond’s testimony and she also wished to go home with father.
Father’s counsel requested family maintenance services with the children and argued there was insufficient evidence to bypass reunification.
The children’s counsel asked the juvenile court to give father a chance to reunify with them. He noted father had been their sole guardian for the majority of their lives and they had a strong connection with him. He noted father was now willing to participate in classes. Counsel also noted grandmother was in the home, providing “a level … of protection for the children.”
Deputy county counsel argued father’s behavior was “so extreme and inappropriate” that all of the children were at risk of harm. Counsel noted that while the department made efforts to engage father in services, he had flatly refused to do so. The department believed the recommendation to bypass services was appropriate.
The juvenile court ordered reunification services bypassed for father, finding D.R. “a credible witness,” and finding it would not benefit the children to pursue reunification services with father. In making its decision, the juvenile court gave little weight to Raymond’s statement that he did not have any concerns for his sisters, as he was only 11 years old. Neither did the juvenile court give the grandmother’s presence in the home any weight, as she had been in the home when D.R. was victimized. The juvenile court stated the standard was not what the children wished to do, but whether there was an exception as to why services should not be denied, and it did not find any.
Mother was provided reunification services, not to exceed 12 months, including counseling for child neglect and parenting, and she was to submit to random drug tests monthly.
The children were declared dependents of the juvenile court, removed from father’s custody, and ordered placed in foster care. A review hearing was scheduled for August 14, 2017.
The children appeal.
DISCUSSION
The children contend substantial evidence does not support the juvenile court’s order denying father reunification services under section 361.5, subdivision (b)(6). They do not dispute the juvenile court’s finding of sexual abuse, but argue reunification services were in their best interests under section 361.5, subdivision (c)(2). We disagree.
In reviewing an order denying reunification services, we determine if substantial evidence supports it. (In re Gabriel K. (2012) 203 Cal.App.4th 188, 196.) “[W]e resolve all conflicts in the evidence in favor of the juvenile court’s finding. [Citation.]” (Ibid.) “A juvenile court has broad discretion when determining whether … reunification services would be in the best interests of the child under section 361.5, subdivision (c). [Citation.] 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.) The substantial evidence standard applies even if the standard of proof in the trial court is clear and convincing evidence. (In re Jasmine C. (1999) 70 Cal.App.4th 71, 75.)
Section 361.5, subdivision (a) generally mandates that reunification services are to be provided whenever a child is removed from the parent’s custody. (In re Ethan N. (2004) 122 Cal.App.4th 55, 63.) However, subdivision (b) of section 361.5 sets forth a number of circumstances in which reunification services may be bypassed. “Once it is determined one of the situations outlined in subdivision (b) applies, the general rule favoring reunification is replaced by a legislative assumption that offering services would be an unwise use of governmental resources.” (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478.) The bypass provisions are based on the fact “that it may be fruitless to provide reunification services under certain circumstances.” (Deborah S. v. Superior Court (1996) 43 Cal.App.4th 741, 750.)
Here, the court relied on bypass provision section 361.5, subdivision (b)(6)(A), which provides that services need not be provided to a parent when the court finds by clear and convincing evidence that “the child has been adjudicated a dependent pursuant to any subdivision of Section 300 as a result of severe sexual abuse … to the child, a sibling, or a half sibling by a parent …, 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 ….” “A finding of severe sexual abuse, for the purposes of this subdivision, may be based on, but is not limited to, … stimulation involving … anal-genital … contact ….” (§ 361.5, subd. (b)(6)(B).) Once a juvenile court finds section 361.5, subdivision (b)(6) applies, it may not offer family reunification services unless it finds, by clear and convincing evidence, that reunification is in the best interests of the minor. (§ 361.5, subd. (c)(2).) It is the parent’s burden to “affirmatively show that reunification would be in the best interest” of the child. (In re Ethan N., supra, 122 Cal.App.4th at p. 66.)
The court adjudicated the children dependents pursuant to section 300, subdivision (d), as a result of the continued sexual abuse to the children’s older sister, D.R., and the children do not challenge this finding. Instead, they challenge the finding that offering father reunification services would not benefit them.
Section 361.5, subdivision (i) lists factors the juvenile court may consider in “determining whether reunification services will benefit the child pursuant to paragraph (6) … of subdivision (b)….” These include:
“(1) The specific act or omission comprising the severe sexual abuse … inflicted on the child or the child’s sibling …. [¶] (2) The circumstances under which the abuse or harm was inflicted on the child or the child’s sibling …. [¶] (3) The severity of the emotional trauma suffered by the child or the child’s sibling …. [¶] (4) Any history of abuse of other children by the offending parent.… [¶] (5) The likelihood that the child may be safely returned to the care of the offending parent … within 12 months with no continuing supervision. [¶] (6) Whether or not the child desires to be reunified with the offending parent ….” (§ 361.5, subd. (i).)
Here, the juvenile court considered the specific acts of abuse and the circumstances under which the abuse was inflicted. (§ 361.5, subd. (i)(1), (2).) The acts comprising the sexual abuse inflicted on D.R. consisted of numerous instances of anal intercourse, estimated by D.R. to be 50 or more times, starting at age five and continuing over a 10-year period. D.R. reported this abuse to a cousin, two friends, and her boyfriend before telling her aunt and the authorities. D.R. was concerned that father might try to molest her siblings as well, as she had observed him staring at her sister when she wore shorts and a tank top. The sexual abuse occurred repeatedly at the children’s home, where father shared a bedroom with his daughters, and even a bed with one daughter. Father was the children’s sole care provider, as mother was not a part of their lives.
While the minors contend the only emotional trauma they have suffered was due to being removed from father’s home, the emotional trauma suffered by D.R. was significant. (§ 361.5, subd. (i)(3).) She “hated” father and tried not to be alone with him due to the ongoing abuse. The abuse triggered her act of running away from home and severing her relationship with her father. She had no desire to repair that relationship.
There was no evidence before the juvenile court that the children might be safely returned to father’s care within 12 months without continuing supervision. Father had been in denial about the abuse, self-reporting he had erectile dysfunction after the allegations were made known, and refusing to participate in any services for nearly a year while the case made its way to disposition. (§ 361.5, subd. (i)(5).) The juvenile court found father had made no progress toward alleviating or mitigating the reasons why his children were removed, and it found suspect his assertion at disposition that he would now enroll in classes.
While the juvenile court acknowledged there was no documented prior history of abuse of other children by father and that the children have a bond with father and wished to be reunited with him, the juvenile court noted the children’s love for father and the fact they had not been the subject of abuse did not protect them from possible abuse, in light of the extreme sexual abuse of D.R. (§ 361.5, subd. (i)(4), (6).) “[A]n abusive parent’s risk of recidivism is not necessarily limited to a child who was the parent’s previous victim. The parent may very well pose a serious threat to his or her other children. The Legislature appears to have recognized this sad circumstance in its drafting of section 361.5, subdivision (b)(6).” (Deborah S. v. Superior Court, supra, 43 Cal.App.4th at p. 751.)
By clear and convincing evidence, the juvenile court found it would not benefit the children to pursue reunification services with father. We find no error on the part of the juvenile court in bypassing services for father and reject the children’s claim to the contrary.


DISPOSITION
The orders denying father reunification services are affirmed.



PEÑA, J.
WE CONCUR:



DETJEN, Acting P.J.



SMITH, J.