Filed 4/26/18 J.C. v. Superior Court CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

J.C.,

Petitioner,

v.

THE SUPERIOR COURT OF SANTA CLARA COUNTY

Respondent;

SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDREN’S SERVICES,

Real Party in Interest.
No. H045408
(Santa Clara
Super. Ct. No. 17JD024559)

J.C., the mother of three-year-old S.M., has filed a petition for extraordinary writ relief from the juvenile court’s January 4, 2018 order denying reunification services and setting a permanency planning hearing under Welfare and Institutions Code section 366.26. Mother challenges the sufficiency of the evidence supporting the court’s jurisdictional findings; alternatively, she contends that the denial of reunification services constituted an abuse of the court’s discretion, because the evidence showed that those services would be in the child’s best interest. We will deny the petition.
Background
On June 14, 2017, the Department of Family and Children’s Services (the Department) filed a petition alleging that S.M., then two years old, came within the provisions of section 300, subdivisions (b)(1)-(b)(2), (c), (d), and (j). S.M. had been taken into protective custody the day before, along with her nine-year-old half-brother, G.C., upon the arrest of S.M.’s father, M.M. for child pornography. The California Highway Patrol Officer who had responded to the home stated that six adults lived at the residence, including S.M.’s paternal grandfather, a registered sex offender. A Department of Homeland Security (DHS) agent reported that there were images and videos of the children wearing no clothes and multiple incidents depicting sexual acts with the children, all produced in the family bedroom and bathroom. Mother had denied knowing about any abuse or exploitation of the children. In addition, the home was dirty, there were feces on the floor, there was not enough food for the children, and there was “ ‘tons of clutter.’ ” The social worker believed that the risk of general neglect and sexual abuse was high, and mother appeared unable to protect them from sexual exploitation, thus placing the children “at serious risk of further sexual abuse.”
The court detained the children and granted mother supervised visits twice a week, with discretion to the social worker to permit extended contact. The court heard testimony and argument relating to jurisdiction on October 23 and 25, 2017. In support of its first amended petition, the Department presented evidence of a videotaped forensic interview with G.C. conducted by a DHS specialist. The interviewer had shown G.C. multiple photos in which he was depicted in various sexual poses, with his genitals exposed; another showed him on his knees with a penis in his mouth; and another was of him on his knees being penetrated anally by an adult male. G.C. had said that his mother and M.M., his stepfather, had taken the pictures; mother was the one who had tied him up and taped his mouth shut before taking the pictures. The photos were taken, G.C. explained, because he was “a horrible person” and he needed to be punished for doing bad things. G.C. later became upset and retracted his statement that mother had been involved. The social worker was also concerned that mother had moved into a home with a registered sex offender, S.M.’s paternal grandfather, without considering whether that move was appropriate. She had also found photos of G.C. on M.M.’s phone, showing that she knew what had been happening to G.C. Mother still denied knowing about any abuse, however.
The social worker’s report for jurisdiction also described videos and pictures of S.M. being abused, contained in files recovered in the course of the DHS investigation. One video depicted S.M. one year earlier, lying on her back with an adult penis ejaculating into her eyes; others showed penile vaginal and penile anal penetration of the toddler.
At the October 23, 2017 hearing the social worker was extensively cross-examined by mother’s attorney. He admitted that mother had been cooperative, that she had completed a parent orientation class, and that she had engaged in individual therapy.
In his disposition report the social worker included additional information pertaining to jurisdiction, obtained in the course of the 16-count federal indictment against M.M. for child pornography and sex trafficking. In addition to the photos depicting abuse of G.C. and S.M., the social worker alleged that M.M. had “provided the children to at least one other man, who also sexually abused them.” The social worker also reported an account by the foster mother’s son in which G.C. had described “ ‘in graphic detail’ ” M.M.’s sexual molestation of him. Although G.C. had identified his mother as a participant in the photos, he later told the social worker that it was a secret what had been happening for the past year between M.M. and him; he insisted that it was not true that mother knew what was going on, and if she had known, she would have done something, without involving the police or social workers. He appeared sad when he told the social worker, “I made up that story to make things better but I made things worse.” He said he liked what he and his stepfather were doing.
With regard to S.M.’s welfare, the social worker noted the foster parents’ report that S.M. had mild nightmares that caused her to wake up about five times at night; when she had severe nightmares it was difficult to wake her up. S.M. sometimes had inexplicable bouts of screaming and crying with her hands clenched into fists, and occasionally (though less often than before), she would “disassociate and ‘zone’ out and stare at the ground with her head lowered and she would not respond to anyone.”
The social worker recommended that the court offer no services to mother and that a section 366.26 hearing be set regarding a permanent plan for S.M. The social worker cited sections 361.5, subdivisions (b)(6) and (b)(17), based on his determination that mother had failed to protect S.M. or G.C. from severe sexual abuse, sexual trafficking, and victimization by child pornography, and that she had participated in the sexual exploitation of S.M. and G.C. Mother, the Department alleged, “knew about the sexual abuse but did not report the abuse to law enforcement, [and] she did not take necessary steps to physically and emotionally protect the child or her sibling from [M.M.]” Instead, she continued to deny her part in the abuse, demonstrating her lack of insight or ability to protect her young children from harm. The consequences of mother’s failure included “trauma, behavioral difficulties and emotional distress” experienced by S.M., who “will likely face future issues relating to boundaries, self esteem, coping, stress and stability.”
Mother’s counsel argued that there was insufficient evidence that mother had participated in any of the sexual exploitation: She had never been arrested by the federal government even after a year and a half of watching the family; she was not depicted in any of the pictures; she had cooperated with the social worker; and she had routinely checked in with G.C., who told her that everything was fine. Her denials had been corroborated by G.C. himself, when he retracted his account of his mother’s participation in the videos. M.M. also had stated that mother had nothing to do with the case, that she was completely innocent. Mother’s attorney pointed out that the paternal grandfather, notwithstanding being a registered sex offender, had been regarded by a court as a low risk; his conviction had been explained as “bad advice from some lawyer, and it was a misunderstood circumstance.” Counsel urged the court to find that “this is a family worth saving.” S.M.’s attorney, however, concurred in the Department’s recommendation, based on G.C.’s disclosure of mother’s involvement in the sexual exploitation during his interview with the DHS agent.
After reviewing the evidence, the juvenile court found “pretty strong evidence that mom knew what was happening and was not protecting these children.” The court noted the long period over which the abuse and exploitation had been occurring, as well as G.C.’s statement that mother had told him not to tell all of the truth. Having reviewed the forensic interview of G.C. on June 16, 2017 by the DHS agent, the court said there were 38 instances during the interview in which G.C. implicated his mother; only when he thought that revealing her participation had caused him to be removed from her did he retract those statements. The court did strike all the allegations that the child was at risk from the parents’ allowing a registered sex offender to live in the home. After excluding those allegations, the court found that both children were described by section 300, subdivisions (b), (c), (d), and (j).
A contested hearing on disposition took place on January 4, 2018. For both S.M. and G.C., the social worker, Brian Hawkinson, was recommending a bypass of services for both parents pursuant to section 361.5, subdivisions (b)(6) and (b)(17). The court heard testimony from Hawkinson and from mother’s expert witness, Deidre D’Orazio. In addition, the parties stipulated that G.C. wanted to reunify with mother and return to her care with his sister; he felt safe with mother and wanted their visits to continue if not allowed to live with her. Both children had been placed with S.M.’s paternal aunt since October 21, 2017. S.M. had been doing well since being placed there and being in therapy; her language was improving, she was “dissociating” less often, and her appetite had been returning. She still had nightmares, however, two to three times a week.
Since the detention of the children, mother had been participating in services consisting of a parent orientation class, a parent education class, and therapy. She had received scores of four and five out of five in her latest class, with positive descriptive comments from the educator, though she apparently did not successfully work on the specific reasons for the referral to that class. Mother’s therapist stated that she was “addressing the issues involved in the ‘case,’ ” but in the social worker’s view, she was not taking responsibility for committing any acts of sexual abuse. Nevertheless, mother “absolutely recognizes the damage that sexual abuse does to children and is willing to do whatever it takes to begin the repair process.” Mother had been visiting consistently twice a week, and the children enjoyed the visits. Although there were no concerns about them, Hawkinson was not ready to allow unsupervised visits because “she’s perpetrated sexual abuse on [G.C.], and because she’s also told [G.C.] to not be entirely truthful to social workers and the police.”
Hawkinson acknowledged that reunification was the goal of the dependency system. He also agreed that there were services to help parents reunify after sexual abuse, mainly mental health counseling and a 52-week child abuse course. In this case, however, he did not believe that either parent should receive reunification services “due to the severity of the abuse, the sexual abuse that’s been going on and to the length of time that it occurred, which was approximately half or almost half the life of both children.” Hawkinson predicted that the children would have “life-long repercussions that are going to negatively affect their mental health, as well as their ability to form a lasting, trusting, safe relationship with other individuals as they get older. The parents’ behaviors have shown that they would rather put their own desires and needs ahead of their children[’s] desires and needs.”
Hawkinson further explained that he did not believe that the parents had “the capacity to learn how to be a safe parent and to provide [the children] with a protective, safe home.” When asked how he had made that determination, he admitted that he had not put mother through a formal assessment, but had based his conclusion on the nature and extent of the abuse and nature of the case, and the “behavior issues” that resulted from “the trauma that she participated in.” He agreed that the 52-week course was designed to help those who had abused children “develop the capacity to learn how to be safe in the future” and “create a safe home for children.” Later, however, he stated that the course was not for abuse perpetrators. Even if such a course existed, he would not recommend services for mother, due to the severity of the abuse and the length of time that the abuse ha[d] occurred, with its “life-long repercussions” for the children. He had not talked with mother about her accountability for the abuse, mainly because her attorney had asked to be present when he discussed the case with her.
Dr. D’Orazio was qualified by stipulation as an expert in “[r]isk assessment, reunification, placement of dependent children, treatment of children who suffered sexual abuse [by] adults, including the sexual abuse by their own parents, [and] clinical psychology.” In her work with children and adults, she specialized in sexual abuse intervention and prevention. Having worked for 25 years with sexual offenders, she was involved in the planning and development of treatment programs for sexual offenders, including parents who had sexually abused their children.
In this case, Dr. D’Orazio had reviewed all the documents, including the petition, the jurisdiction and disposition reports, and addendum reports. She believed that reunification was in the best interests of the children, subject to a thorough individual assessment of the children and mother. If reunification was a “potential option” in a case, then an assessment was necessary to determine the first step in the extended process of reunification. Without such assessments “it would be clinically contraindicated to terminate all contact with mother and not allow some form of reunification.” Adding to the trauma of abuse was the second trauma of being removed from home; to deny contact with a parent would engender a third, “complex” trauma, “which makes the psychological experience of the children much worse and the long[s]tanding symptoms much longer and serious in duration.” In both studies and Dr. D’Orazio’s professional experience, properly managed reunification “is associated with a host of positive outcomes” and is beneficial to the child’s best interest. She also clarified that incest offenders were the least likely of all types of sexual offenders to reoffend. She had personally worked with over 100 incest perpetrators in which she had been involved in successful reunification. In the scant research on female sexual offenders, only 1 to 3 percent reoffended, and those were offenders who had been involved in prostitution, those who did not have a male accomplice, and those who had selected victims outside the family. None of those circumstances applied here, she pointed out. Additional factors were those specific to the personal history and mental health of the offender, which had to be addressed in therapy so she could create a reasonable safety plan. Mother lacked the general criminality, antisocial attitudes, or severe psychiatric instability that would pose barriers to prevention of recurrence. Her interest, participation, and progress in therapy and parenting classes also suggested that she was ready for reunification.
The court asked Dr. D’Orazio whether mother’s denial that she had abused was a “contraindication of reunification services.” The witness first drew a distinction between denying that the abuse happened and minimizing the person’s own conduct. Dr. D’Orazio affirmed that mother “must admit and reflect” the experience of her children and take responsibility for not protecting them. But requiring her to admit her conduct was not essential to reunification: “[L]ay people, we want to believe that that denial is very important, and the research consistently says that it’s not. If the mother takes accountability for failing to protect, admits and validates [that] this serious abuse occurred, the child will likely feel, yes, you know, mother is there for me. The mother does need to take accountability for the sexual abuse in a broad way, but to get at this micro-level of specific features of offenses is not necessary. [¶] . . . So validation of the child’s experience of abuse is the most important feature. [¶] . . . [I]n terms of never doing it again, the mother simply needs to identify what are the factors in [her] life that occurred that led this abuse to happen. She needs to identify those things, and then she needs to create ways of coping with them, ridding her life of those things of interrupting their operation in the future. So if the mother is motivated not to commit sexual offending again, she can go through that sort of course of sexual offender treatment without admitting to a version of offending that an official record states.” It was “a very good sign” that mother’s therapist had believed that mother had “taken responsibility for not knowing that [the abuse] was happening” and that she was working on recognizing the signs of an inappropriate relationship with her children and the need “to be proactive” in protecting them.
The court questioned the witness’s line of reasoning, pointing out that its findings were not merely that mother did not do enough to recognize and remedy the situation, but that she “did it,” that she in fact “very much knew what was going on.” The court also asked the witness about research on reoffending by female offenders who have failed to protect a child from others’ offenses. Dr. D’Orazio expressed the view that if a parent is motivated to improve from a circumstance like this—i.e., “very severe and chronic sexual abuse” which the parent either failed to detect or knew about and failed to do something about—“that parent can take those parenting classes and take therapy interventions in order to identify how she failed to . . . see the signs in the first place or chose not to act on them.” In addition, a concurrent 52-week class designed for sexual offenders would be a “very solid idea” for mother in this case. In addition, the “monitored presence” of mother, the “ultimate therapist,” would be “very important” to facilitate the children’s healing and mitigate the long-term effects of the abuse, especially in S.M.’s case. Dr. D’Orazio believed that if denied the opportunity to reunify, the children would be “strongly negatively impacted,” particularly in G.C.’s case, as he had been requesting more contact with mother.
In closing argument, counsel for the Department acknowledged that both children loved their mother; but in light of the “horrific” abuse they had suffered, there was “no realistic chance” that the parents would be able to learn to be safe parents if they were offered reunification services. Mother’s attorney, however, pointed out that Hawkinson’s reason for denying services was the severity of the abuse, a point on which everyone agreed. Mother had not only participated regularly in the services she was offered, but had asked for more, including a perpetrator’s class. Based on Dr. D’Orazio’s evaluation, offering services “can do nothing but benefit these children.”
Counsel for M.M., S.M.’s father, urged the court to accept Dr. D’Orazio’s view and order reunification services to mother, rather than, in effect, punish her for her denial. Such services, M.M.’s counsel argued, would be in the best interests of the children by enabling them to go through the healing process with their mother. Counsel for the children also supported providing services, though she said it was “a close call” in G.C.’s case and “also a very hard decision” in S.M.’s case. G.C., then almost 10 years old, had adamantly expressed his preference to return to mother, with his second choice to remain with the paternal aunt. In S.M.’s case the children’s counsel recommended six months of services for mother (including therapy and a certified sexual abuser’s treatment program) “and no more unless she could show that progress is being made.”
The juvenile court acknowledged that this was a difficult case, but it had already been almost seven months since the children were removed, and “mom has never admitted that she did anything.” The court questioned whether any judge would send a child home to a parent who had engaged in serious, long-term abuse but who had not “at least started the process of admitting what they did.” Even a 52-week counseling program would be ineffective if the parent did not begin the process with an admission of her own conduct. The court did not believe that its decision was based on punishment of mother. It also noted the short timelines in the dependency process. In that light the court believed that it was unrealistic to think that mother could do what needed to be done. Being ready to reunify, in the court’s view, was “not just being ready and motivated to reunify. It’s being ready to be a safe parent, and I don’t think you can do that and be in denial. I just don’t see how you can do that. I don’t know how I can trust mom if she’s not willing to admit what I found that she did.”
The court thus found, by clear and convincing evidence, that it was not in the best interest of the minors to provide services to mother, based on “the severity, the length of time, the lack of capacity to become a safe parent.” Its findings were based on section 361.5, subdivisions (b)(6) and (b)(17). In its order the court directed the Department to maintain the current placement of the children with their paternal aunt, with no reunification services to S.M.’s parents; the court did, however, allow mother’s supervised visitation to continue. A permanency planning hearing for S.M. was set for May 3, 2018.
Pursuant to California Rules of Court, rule 8.450(e), mother filed a timely notice of intent to file a writ petition to review the order bypassing services and setting the section 366.26 hearing. Thereafter, mother filed her petition for writ of mandate with this court, pursuant to California Rules of Court, rule 8.452. She also sought a stay of the May 3 permanency planning hearing.
Discussion
1. Sufficiency of the Evidence Supporting Jurisdiction
Mother first contends that insufficient evidence supported the juvenile court’s finding that she knew about the abuse of S.M. and G.C. or knowingly participated in it. This conduct was central to the Department’s allegations of abuse and failure to protect under section 300, subdivisions (b)(1), (c), (d), and (j). Mother correctly notes the applicable standard of review in this court: whether substantial evidence supports the jurisdictional findings. (In re D.C. (2015) 243 Cal.App.4th 41, 51-52; In re T.W. (2013) 214 Cal.App.4th 1154, 1161-1162 (T.W.).) “ ‘In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court’s determinations; and we note that issues of fact and credibility are the province of the trial court.’ ” (In re R.T. (2017) 3 Cal.5th 622, 633, quoting In re Heather A. (1996) 52 Cal.App.4th 183, 193.) Substantial evidence is evidence that is reasonable, credible, and of solid value. (In re Veronica G. (2007) 157 Cal.App.4th 179, 185; In re J.N. (2010) 181 Cal.App.4th 1010, 1022.) Accordingly, “[w]e do not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts. [Citation.]” (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) If substantial evidence exists, the finding will be upheld even if “substantial evidence to the contrary also exists and the trial court might have reached a different result had it believed other evidence.” (Ibid.) It is the appellant’s burden to show that there is no evidence “of a sufficiently substantial nature” to support the court’s jurisdictional findings. (T.W., supra, at p. 1162.)
In light of these standards, we cannot conclude that there was no substantial evidence in the record before us. Given the length of time the abuse had been ongoing, much of it in her own home, the court found it impossible to believe that mother did not at least know that it was happening. G.C., the court noted, implicated mother 38 times in the course of the multidisciplinary forensic interview on June 16, 2017. The social worker, observing the interview from behind a two-way mirror, testified at the jurisdictional hearing that G.C. had identified mother in two photos as the person who had taped his mouth shut and taken the photo of him in his underwear with his arms and ankles tied together and, in one of those photos, with genitals exposed. G.C. also told the forensic interviewer that mother knew what was happening. His account of mother’s being angry at M.M. over two photos of G.C. on M.M.’s cell phone was additional evidence supporting the court’s conclusion that mother knew about the abuse.
G.C.’s retraction of his statements implicating mother does not refute them. Hawkinson explained that it was not unusual for children who have been abused to recant some or all of their disclosures; at first they tend to be open and honest about events, but they start to recant if they believe that they can then return home. Hawkinson also explained that it was not unusual for the victim of family abuse to take responsibility for the abuse. Thus, G.C. said that everything that was done to him in the pictures was his idea. Though G.C. identified himself in the first four pictures shown to him during the interview, he then “started backpedaling” and denied that he was the boy in the fifth through eighth, though it was obvious to Hawkinson that it was G.C.
It was the province of the juvenile court, not this court, to weigh the evidence and determine whether the allegations of mother’s knowledge and participation in the sexual abuse were true. Because substantial evidence existed to support the lower court’s jurisdictional findings, the sustaining of the amended petition must be upheld.
2. Bypass of Reunification Services
Mother next challenges the juvenile court’s decision not to order reunification services. While this issue presents a closer question, we cannot find an abuse of discretion in the court’s determination that it would not be in S.M.’s best interests to provide services to mother.
“Subdivision (a) of section 361.5 sets forth the general rule that a parent whose child has been removed in a dependency proceeding must be afforded reunification services.” (Renee J. v. Superior Court (2001) 26 Cal.4th 735, 753, superseded by statute on another point as stated in Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, 1457.) “While the overarching goal of the dependency law is to safeguard the welfare of dependent children and to promote their best interests [citations], the law’s first priority when dependency proceedings are commenced is to preserve family relationships, if possible. [Citation.] To this end, the law requires the juvenile court to provide reunification services unless a statutory exception applies. [Citations.]” (In re K.C. (2011) 52 Cal.4th 231, 236.) “The importance of reunification services in the dependency system cannot be gainsaid. The law favors reunification whenever possible. [Citation.] To achieve that goal, ordinarily a parent must be granted reasonable reunification services. . . . But reunification services constitute a benefit; there is no constitutional ‘ “entitlement ” ’ to those services. [Citation.]” (In re Aryanna C. (2005) 132 Cal.App.4th 1234, 1242.)
The exceptions to reunification services are listed in the bypass provisions in section 361.5, subdivision (b). Relevant here are subdivisions (b)(6) and (b)(17), which state that services “need not be provided to a parent . . . when 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. . . . [¶] (17) That the parent or guardian knowingly participated in, or permitted, the sexual exploitation, as described in subdivision (c) or (d) of Section 11165.1 of, or subdivision (c) of Section 236.1 of, the Penal Code, of the child. This shall not include instances in which the parent or guardian demonstrated by a preponderance of the evidence that he or she was coerced into permitting, or participating in, the sexual exploitation of the child.” (§ 361.5; cf. Tyrone W. v. Superior Court (2007) 151 Cal.App.4th 839, 846.)
When either of these exceptions applies, “[t]he court shall not order reunification . . . unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child.” (§ 361.5, subd. (c)(2), italics added.) In such a case “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; see also In re Rebecca H. (1991) 227 Cal.App.3d 825, 837 [statute represents Legislature’s recognition that “it may be fruitless to provide reunification services under certain circumstances”]; In re G.L. (2014) 222 Cal.App.4th 1153, 1163-1164 [same].)
“A court called upon to determine whether reunification would be in the child’s best interest may consider a parent's current efforts and fitness as well as the parent’s history. [Citation.] Additional factors for the juvenile court to consider when determining whether a child’s best interest will be served by pursuing reunification include the gravity of the problem that led to the dependency; the strength of the relative bonds between the child and both the parent and caretakers; and the child’s need for stability and continuity, which is of paramount concern.” (In re S.B. (2013) 222 Cal.App.4th 612, 622-623, citing In re Ethan N. (2004) 122 Cal.App.4th 55, 66-68.)
“[T]he party seeking bypass of reunification services under section 361.5, subdivision (b) has the burden of proving that reunification services need not be provided,” a showing that must be made by clear and convincing evidence. (§ 361.5, subd. (b); In re Angelique C. (2003) 113 Cal.App.4th 509, 521 (Angelique C.); see Evid. Code, § 500.) However, once the court makes a finding that a bypass provision specified in section 361.5, subdivision (c)(2), applies, the burden of proof shifts to the parent to establish affirmatively that reunification nevertheless would be in the best interest of the child. (See In re Z.G. (2016) 5 Cal.App.5th 705, 721; In re William B. (2008) 163 Cal.App.4th 1220, 1227 (William B.).)
“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.]” (William B., supra, 163 Cal.App.4th at p. 1229.) “As a reviewing court, we will reverse a juvenile court’s order denying services only if that discretion has been clearly abused.” (Angelique C., supra, 113 Cal.App.4th at pp. 523-524.) In other words, we will not disturb such a discretionary decision unless the lower court made “an arbitrary, capricious, or patently absurd determination.” (Adoption of D. S. C. (1979) 93 Cal.App.3d 14, 24-25.) Furthermore, when the party with the burden of proof (i.e., mother in this case) fails to meet his or her burden, on that party’s appeal the question “becomes whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically, the question becomes whether the appellant’s evidence was (1) ‘uncontradicted and unimpeached’ and (2) ‘of such a character and weight as to leave no room for a judicial determination that it was insufficient to support [the] finding.’ [Citation.]” (In re I.W. (2009) 180 Cal.App.4th 1517, 1528 (I.W.).)
Mother points to several circumstances of this case that she believes should have persuaded the court to allow reunification. She calls attention to (1) her completion of a parenting class, in which she was reported as accepting responsibility for her referral to the class and as being “open to looking at and changing former beliefs”; (2) a report by her therapist, who stated that she was “addressing” the issues of understanding and establishing “healthy boundaries with one’s children,” though she did not take responsibility for “commit[ting] any cruel acts of sexual abuse”; (3) the social worker’s lack of concern about mother’s behavior during visits, which the children enjoyed; (4) the failure to offer mother a 52-week sex offender’s class, which she was willing to take; and (5) mother’s calling attention to apparent injuries she had observed on S.M.’s body during visits. Mother also relies on the extensive testimony of Dr. D’Orazio, who believed that the children would be “strongly negatively impacted” by the denial of services to mother. That testimony, mother argues, refuted any informal assessment the Department made, while there was no “formal” assessment of whether mother could learn to be a safe parent. In mother’s view, the Department was inordinately focused on her denial and “ignored the progress she had made.”
These were all circumstances the court considered in weighing the testimony of Hawkinson and Dr. D’Orazio in light of the statutory guidelines for reunification decisions under section 361.5, subdivision (c)(2). The court unquestionably considered Dr. D’Orazio’s opinion that reunification was in the children’s best interests. However, the expert had noted that reunification “is actually a very long process.” The court did not believe that reunification was possible given the short amount of time the dependency procedures allow for reunification—particularly for S.M., as she was only two years old when she was removed from parental custody. “[A]t least part of the best interest analysis must be a finding that further reunification services have a likelihood of success.” (William B., supra,163 Cal.App.4th at p. 1228.) The court in this case was unable to make such a finding; to the contrary, it found that reunification would not be achieved even with a 52-week sexual abuser’s class and extensive therapy for S.M. Mother, the court found, lacked the capacity to internalize the lessons of the resources that would be offered to her. The court determined that in light of mother’s continuing refusal to acknowledge her awareness of and participation in the severe abuse inflicted on her children, mother had not met her burden to show, by clear and convincing evidence, that reunification services would be in the best interests of S.M. We are not at liberty to reweigh the evidence supporting the juvenile court’s ruling. Even if we might have reached a different conclusion, we cannot say that “the evidence compels a finding in favor of the appellant as a matter of law.” (I.W., supra, 180 Cal.App.4th at p. 1528) With no realistic chance that S.M. would find stability and permanency with mother, the court did not exercise its discretion in an arbitrary, capricious, or patently absurd way. Accordingly, we must uphold the denial of reunification services to mother.
Disposition
The petition for extraordinary relief is denied, and the request for a stay is denied.




_________________________________
ELIA, J.

WE CONCUR:



_______________________________
GREENWOOD, P. J.



_______________________________
MIHARA, J.












J.C. v. Superior Court
H045408