Filed 4/28/21 In re E.G. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes, Judge. Affirmed.

Neale B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant.

Michelle D. Blakemore, County Counsel and Svetlana Kauper, Deputy County Counsel for Plaintiff and Respondent.

Defendant and appellant E.G. is the biological father of the child who is the subject of this dependency matter, and who shares the same initials. The child, born in December 2019, was removed from father shortly after birth based on allegations that father had sexually abused the child’s half-sibling, born in July 2011, who is not biologically related to father.^[1] In this appeal, father contends that the juvenile court erred by denying him reunification services pursuant to Welfare and Institutions Code, section 361.5, subdivision (b)(6) and by ordering him to have no contact with the child.^[2] We find no error and affirm the judgment.

I. FACTS

A few days after the child was born, plaintiff and respondent San Bernardino County Children and Family Services (CFS) removed him from the care of both parents. In the dependency petition, CFS alleged that the child came within section 300, subdivisions (b) (failure to protect), (d) (sexual abuse) and (j) (abuse of sibling). The allegations all related to “ongoing sexual abuse” of the child’s half-sibling by father or mother’s failure to protect the half-sibling from father’s abuse. The alleged abuse included father “fondling the [half-sibling’s] breast and vagina, exposing his penis to [her], and attempting to have [her] orally copulate him.” The half-sibling initially reported the abuse to mother, and she later made “consistent . . . disclosures” to CFS and law enforcement, including during an “extended forensic interview” with the Children’s Assessment Center. Father initially refused to discuss the allegations with the social worker, but denied them to mother, who expressed to police that she was “‘not sure who to believe.’”

At the detention hearing in December 2019, the juvenile court ordered the child detained out of the parents’ custody. The court ordered supervised visitation and predisposition services for father.

At the jurisdiction hearing, held in July 2020 after a series of continuances, father objected to the section 300 petition but presented no affirmative evidence. CFS had reported to the juvenile court that father had completed individual counseling and parenting classes. His visitation with the child had been consistent and raised no concerns. But he “‘adamantly denied” sexually abusing the child’s half-sibling, proposing that she “must have acted out of jealousy.” CFS also reported that, although father claimed to have been sober “for 11 years,” he repeatedly tested positive for cocaine, marijuana, and opiates, and failed to test on multiple occasions. CFS recommended that the juvenile court sustain the section 300 petition and bypass reunification services for father pursuant to section 361.5, subdivision (b)(6). The court sustained the section 300 petition as alleged and set a contested dispositional hearing.

In advance of the dispositional hearing, CFS reported to the juvenile court that, although father had completed parenting education classes and individual counseling, his “progress report has no documentation that [he] had addressed the sexual abuse allegation.” The social worker observed that father and child “are bonded and [father] is attentive during visits.” Father had provided CFS a letter from the District Attorney’s office, indicating that it was declining to criminally prosecute father for the alleged sexual abuse. Nevertheless, CFS reported that the child’s half-sibling had been “consistent with her statements of sexual abuse” and father had not “taken any accountability [for] the sexual abuse and/or his part in the removal of his child.” Father also continued to fail or fail to show up to drug tests. CFS continued to recommend that the juvenile court bypass reunification services for father pursuant to section 361.5, subdivision (b)(6).

At the dispositional hearing in September 2020, the juvenile court found that section 361.5, subdivision (b)(6) applied, reciting for the record a description of the half-sibling’s account of the abuse and finding that father’s actions constituted “severe sexual abuse” within the meaning of that subdivision.^[3] The court further found that father had not shown by clear and convincing evidence that reunification was in the best interests of the child and denied him reunification services on that basis. The juvenile court’s discussion of this ruling, after finding that section 361.5, subdivision (b)(6) applied, was the following:

“[T]he burden then shifts to the father to prove by clear and convincing evidence that it’s in the best interest of the child, even though [the victim of severe sexual abuse by father] is a [half] sibling, to grant services, and he has not met that burden. He has failed to meet that burden.

“I’m not impressed by the fact that the DA’s office decided not to prosecute. There’s a lot of different reasons why an office may or may not decide, at this time, to prosecute. And, in any event, we have different burdens of proof in this court, and we are charged with protecting the child and safety of the children, and I think this child is equally at risk. Even though he is younger, and he is actually this father’s actual blood, I still think he is at risk, based on the nature of the domination of the parental figure over a child figure. And so I think that constitutes a risk to [the child], and [father’s] failed to show me why he is not a risk. So, with that in mind, I’ll go ahead and do the bypass.”

Over father’s objection, the court also ordered father to have no contact with the child.

II. DISCUSSION

A. Bypass of Reunification Services

Father contends that the juvenile court made “two mistakes” in bypassing reunification services for father. First, he argues that the trial court failed to “go through and name on the record the facts in support or against a finding why it would not benefit [the child] for his [father] to receive reunification services.” Second, he argues that “the evidence did not support a finding reunification would not benefit [the child].” We are not persuaded by either argument.

“Section 361.5, subdivision (b) provides exceptions to the general entitlement to reunification services set forth in section 361.5, subdivision (a).” (In re A.G. (2012) 207 Cal.App.4th 276, 280.) As relevant here, section 361.5, subdivision (b)(6) allows the court to deny reunification services when “the child has been adjudicated a dependent . . . as a result of severe sexual abuse . . . [of] a half sibling by a parent . . ., and the court makes a factual finding that it would not benefit the child to pursue reunification services with the offending parent.” (§ 361.5, subd. (b)(6)(A).) Once a court determines one of the bypass provisions of section 361.5, subdivision (b) applies, it must order bypass “unless [it] finds, by clear and convincing evidence, that reunification is in the best interest of the child.” (§ 361.5, subd. (c)(2).) The burden is on the parent to show reunification would serve the best interests of the child. (In re A.G., supra, 207 Cal.App.4th at p. 281.)

In determining whether it would benefit the child to pursue reunification services with an offending parent pursuant to section 361.5, subdivision (b)(6), the court “shall consider any information it deems relevant, including the following factors”: (1) “The specific act or omission comprising the severe sexual abuse . . . .”; (2) “The circumstances under which the abuse . . . was inflicted . . .”; (3) “The severity of the emotional trauma suffered by the child . . .”; (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”; and (6) “Whether or not the child desires to be reunified with the offending parent . . . .” (§ 361.5, subd. (i).) If the court decides to bypass services, it must “read into the record the basis for a finding of severe sexual abuse . . . 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 . . . would not benefit the child.” (§ 361.5, subd. (k).)

Father contends that the juvenile court did not follow section 361.5, subdivision (k); he concedes the court read into the record the basis for its severe sexual abuse finding, but argues that it did not specify the factual findings used to determine that reunification services should be bypassed. Not so. As noted above, the juvenile court stated its reasoning for the record, including mention of the factors it found most persuasive in support of its conclusion, and its reasoning for rejecting the limited evidence father presented in support of a different conclusion.

Moreover, the court’s statement of its reasoning addresses the factors enumerated in section 361.5, subdivision (i) that potentially apply here. The court’s reference to the “nature” of father’s abuse of the child’s half-sibling, described during the court’s recitation of the basis for its severe sexual abuse finding, in substance refers to at least the first two of those factors, and arguably the third. (§ 361.5, subd. (i)(1)-(3).) The court’s finding that father is a “risk” to the child relates to the fifth factor, regarding the likelihood the child could be safely returned to the parent’s care without continuing supervision. (§ 361.5, subd. (i)(5).) The court did not mention “any history of abuse of other children by the offending parent,” or whether “the child desires to be reunified with the offending parent.” (§ 361.5, subd. (i)(4), (6).) But the court’s reason for not discussing these factors as having substantial weight in its decision is obvious; there is nothing in the record about father abusing anyone other than the child’s half-sibling, and the child is too young to express any desires about reunification.

Furthermore, father offers no reasoned argument as to why any arguable deficiency in the juvenile court’s explanation of the basis for its decision should, on its own, be considered reversible error. (See In re S.G. (2003) 112 Cal.App.4th 1254, 1260 [rejecting argument that failure to make specific factual findings necessary for a denial of services under section 361.5, subdivision (b)(6) “mandates reversal”].) Here, as is normally the case on appeal, we imply any findings necessary to support the juvenile court’s decision, to the extent those implied findings are supported by substantial evidence. (See In re S.G., supra, 112 Cal.App.4th at p. 1260.) Thus, we presume that the juvenile court considered all the relevant factors and found that any it did not expressly discuss on the record would not change the outcome. (In re Steven A. (1993) 15 Cal.App.4th 754, 765 [on a silent record, the presumption is that any factors not discussed “were deemed unpersuasive”].) To the extent there was error in the juvenile court’s failure to make any particular express finding, father has failed to demonstrate any prejudice.

We turn, therefore, to father’s second argument, that the evidence compels the conclusion that he met his burden of proof under section 361.5, subdivisions (c). We review the juvenile court’s decision under section 361.5, subdivision (c), for abuse of discretion.^[4] (Jennifer S. v. Superior Court (2017) 15 Cal.App.5th 1113, 1124-1125.) A reviewing court will not overturn a discretionary decision of a juvenile court unless the decision was arbitrary, capricious, or patently absurd. (In re Raymundo B. (1988) 203 Cal.App.3d 1447, 1456.)

There is nothing arbitrary, capricious, or patently absurd about the juvenile court’s ruling here. “[A]t least part of the best interest analysis must be a finding that further reunification services have a likelihood of success. In other words, there must be some ‘reasonable basis to conclude’ that reunification is possible before services are offered to a parent who need not be provided them.” (In re William B., supra, 163 Cal.App.4th at pp. 1228-1229.) Throughout this dependency, father continued to minimize the gravity of his behavior toward the child’s half-sibling, denying that he ever engaged in anything more than perhaps misguided attempts to display “fatherly affection.” “[T]here are no services that will prevent reabuse by a parent who refuses to acknowledge the abuse in the first place.” (In re A.M. (2013) 217 Cal.App.4th 1067, 1077.)

Father argues that he poses no risk to the child, noting that he was accused of sexually abusing an eight-year-old girl who is not his biological child, but there is “no evidence [father] would harm his own, biological, newborn, male child,” and that this “would be especially true in a supervised visitation setting.” To say that this line of argument is unpersuasive is an understatement. Whatever factors might tend to weigh in support of a different conclusion (such as the “bond” father emphasizes he has with the child or his participation in various services) “it is a ‘commonsense notion that any child who is residing with a parent . . . who has sexually abused the child’s sibling, and/or a parent who has minimized the sexual abuse of the child’s sibling, is living in a dysfunctional and potentially harmful environment.’” (In re A.G., supra, 207 Cal.App.4th at p. 281.) We also agree with the Court of Appeal’s statement in In re P.A. (2006) 144 Cal.App.4th 1339 that, regardless of the gender of the children involved, “aberrant sexual behavior by a parent places the victim’s siblings who remain in the home at risk of aberrant sexual behavior.” (Id. at p. 1347.) And a showing that supervised visitation has gone well is a long way from a showing that reunification is plausible, let alone likely if reunification services were provided.

The juvenile court did not err by finding father had failed to carry his burden of proof under section 361.5, subdivision (c). On the contrary, the court had good reason to conclude that reunification with father would not be in the child’s best interests and that any services that might be provided would not change that circumstance. The court’s decision to bypass reunification services for father was well within the scope of its discretion.

B. No Contact Order

Father faults the juvenile court for ordering him to have no contact with the child without first making an express finding that continued visitation would be detrimental, and further argues that the evidence is insufficient to support a detriment finding. These arguments presume, however, that a finding of detriment, supported by substantial evidence, was necessary for the juvenile court to deny him visitation. It was not.

Once reunification services have been bypassed, the juvenile court “may continue to permit” a parent to visit the child, if it finds no detriment to the child in doing so. (§ 361.5, subd. (f), italics added.) Nevertheless, the juvenile court may instead deny visitation in such circumstances “even in the absence of any showing that continued visitation would be detrimental to the child.” (In re J.N. (2006) 138 Cal.App.4th 450, 460; see also id. at p. 458 [under § 361.5, subd. (f), juvenile court has “discretion to permit or deny visitation when reunification services are not ordered, unless of course it find that visitation would be detrimental to the child, in which case it must deny visitation”].) Father’s reliance on case law arising from different contexts, where there was no bypass of reunification services, is misplaced.

The juvenile court’s decision to order father to have no contact with the child was within the scope of its discretion, regardless of whether the evidence would support a finding that continued visitation would be detrimental.

III. DISPOSITION

The challenged findings and orders are affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAPHAEL

J.

We concur:

MILLER

Acting P. J.

SLOUGH

J.

^[1] The child was also removed from the care of his mother, who is not party to this appeal. The child’s half-sibling is the subject of a separate dependency proceeding; she was removed from mother and remained in the custody of her father. The child’s mother and half-sibling will be discussed here only as necessary for context.

^[2] Undesignated statutory references are to the Welfare and Institutions Code.

^[3] The court’s description was taken from an account of the child’s statements during an interview with the Children’s Assessment Center: “‘[The child’s half-sibling] said that [father] put his tongue in her mouth and pushed her down towards his privates, his penis, causing her mouth to touch his penis. [She] recalled getting pee on her lips, which went inside her mouth when she attempted to wipe it away. Additionally, [she] described [father] used force during both assaults by wrapping his feet around her body. Holding her head and neck with both hands while kissing her, causing pain to her neck and pushing her body and head down towards his penis, so that she was unable to get up. [¶] [She] stated that while [father] pushed her head down, she was underneath the blankets. She said it was difficult to breathe, and she felt as if she was going to pass out.’”

^[4] CFS proposes that the substantial evidence standard of review applies. The substantial evidence standard is appropriate for reviewing the juvenile court’s determination of whether a bypass provision of section 361.5, subdivision (b) applies. (See Jennifer S. v. Superior Court, supra, 15 Cal.App.5th at pp. 1121-1122.) It also is appropriate for review of any additional factual findings that underpin the juvenile court’s exercise of discretion under section 361.5, subdivision (c). (E.g. In re William B. (2008) 163 Cal.App.4th 1220, 1229 [finding no substantial evidence in support of trial court’s implicit finding that reunification services had likelihood of success].) Thus, the delineation between substantial evidence and abuse of discretion review has sometimes become fuzzy. (E.g. ibid. [“We find there is no substantial evidence in the record to support the juvenile court’s finding, by clear and convincing evidence that further services would be in the children’s best interests. Accordingly, the order for such services was an abuse of discretion.”]; In re G.L. (2014) 222 Cal.App.4th 1153, 1165-1166 [finding “sufficient evidence in the record” to support the juvenile court’s exercise of discretion to provide parent reunification services under section 361.5, subd. (c)].)

The principle underlying both abuse of discretion review and substantial evidence review is reasonable deference to the challenged ruling. In this case, as in most, we would reach the same conclusion regardless of which of those two standards we use to frame the analysis.