In re I.J. CA4/2 ( 2020 )

Filed 9/8/20 In re I.J. CA4/2
See concurring opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
In re I.J. et al., Persons Coming Under the
Juvenile Court Law.
SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES, E074321
Plaintiff and Respondent, (Super.Ct.Nos. J280821, J280822,
J280823, J280824, J280825 &
v. J280826)
S.J., OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes,
Judge. Affirmed.
Landon Villavaso, under appointment by the Court of Appeal, for Defendant and
Appellant.
Michelle D. Blakemore, County Counsel, and Dawn M. Martin, Deputy County
Counsel, for Plaintiff and Respondent.
1
The juvenile court denied defendant and appellant, S.J. (father), reunification
services pursuant to Welfare and Institutions Code section 361.5, subdivision (b)(6)1
(severe sexual abuse) and, thereafter, visitation with the minors. On appeal, father
contends insufficient evidence supports the juvenile court’s finding of detriment as to
minors M.J., A.J., and D.J. (the boys), so as to warrant denying father visitation. We
affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On April 26, 2019, a social worker responded to an immediate response referral
alleging sexual abuse of A.S. (born Aug. 2004) by father. A.S. had disclosed to mother
that, for four to five days a week during the previous two years, father had her orally
copulate him and would perform oral sex on her. A.S. further disclosed that father would
use adult toys on her and penetrated her anus and vagina with his penis. She said father
made her give him a “hand job.” Police arrested father; father was charged with five
counts of sexual offenses.
Father and mother have six children. Mother disclosed continuous acts of
domestic violence by father over the course of two years, which included father hitting
her with closed fists, pulling her hair, and choking her while the minors were present.
Mother said father used methamphetamine, Xanax, and alcohol.
1
All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
2
A social worker interviewed A.S., who disclosed sexual abuse by father for over
two years, which included rubbing her breasts, buttocks, and vagina; penetrating her
vagina and anus with his penis; mutual oral copulation; and father utilizing a vibrator to
penetrate her vagina. She reported father would ask her to come into his bedroom to help
him clean, lock the bedroom door, and force her to get naked prior to the incidents of
sexual abuse.
A.S. disclosed domestic violence between father and mother, including father
punching and choking mother, throwing her against the wall, and dragging her across the
room. A.S. reported that father used marijuana, methamphetamine, and Xanax. The
social worker also interviewed M.J., A.J., D.J., H.J., and I.J. They reported ongoing acts
of domestic violence between mother and father.
On April 30, 2019, personnel from the San Bernardino County Children and
Family Services (CFS) filed juvenile dependency petitions alleging father and mother
had exposed the minors to domestic violence (b-1), father had a substance abuse
problem (b-2), mother had failed to protect the minors from father’s substance abuse
problems (b-3), father was incarcerated (g-4), and the minors were at risk of sexual abuse
(j-5). As to A.S., CFS personnel filed a juvenile dependency petition alleging father and
mother had exposed her to domestic violence (b-1), father had a substance abuse problem
(b-2), mother had failed to protect her from father’s substance abuse problem (b-3),
mother had failed to protect her from sexual abuse by father (b-4), father had sexually
abused her (b-5), she was suffering serious emotional damage (c-6), she had been
sexually abused by father (d-7), and father was incarcerated (g-8). Father failed to appear
3
at the detention hearing despite having been released from jail. The court ordered no
contact between father and the minors, finding that any contact would be harmful to their
safety and emotional well-being. The court detained the minors and issued temporary
restraining orders against father as to the minors.
In the jurisdiction and disposition report filed May 17, 2019, the social worker
recommended the court find the allegations true, remove the minors from their parents’
custody, provide reunification services to mother, and deny reunification services to
father. Father denied any sexual abuse and theorized that A.S. made the allegations up
because father was too strict. Father said once weekly he would call A.S. to his room to
help him clean for around 20 minutes; he would lock the door because he stored tools, car
parts, and sharp objects in the room. Father said A.S. would come into his room on her
own. With respect to the domestic violence allegations, father admitted grabbing mother
by the hands and calling her profane names in front of the minors. Father also admitted
using cocaine during the past year, and he failed to show for an on-demand drug test on
May 10, 2019.
A.S reiterated her allegations against father in a forensic interview on May 14,
2019. She said father would ejaculate in her mouth; he would take pictures of her while
she was naked; he pointed a camera at them while they were engaged in sex acts; and he
made her watch pornography on two occasions. The other minors reiterated their
previous allegations of domestic violence.
CFS personnel filed first amended juvenile dependency petitions on May 21,
2019, adding an additional allegation that mother failed to protect A.S. from father’s
4
sexual abuse (d-7). The court detained the minors on the amended juvenile dependency
petitions.
In an addendum report filed July 11, 2019, phone calls between mother and the
minors were ended as father was “‘coincidentally’” at mother’s apartment during a
supervised phone call. Four of the minors indicated they would like to visit with father,
but A.S. did not want to visit him. In a forensic interview, A.S. disclosed that father had
threatened to beat mother if A.S. refused to engage in sex acts with him.
CFS personnel filed second amended petitions on July 16, 2019, adding
allegations that the remaining minors, in addition to the existing allegation with respect to
A.S., were at risk of sexual abuse (d-6). As to I.J., the petition alleged mother and father
failed to provide necessary dental treatment (b-4 & b-5). In the detention report, the
social worker relayed that on July 15, 2019, mother reported that after attending a
parenting class, she got on a bus; father followed her onto the bus. During the bus ride,
father called her derogatory names and threatened that he would make sure she did not
reunify with the minors. He threatened to knock her out and ended up stealing her purse.
At the hearing on July 17, 2019, the court reiterated its previous finding of detriment with
respect to contact between father and the minors.
In an additional information to the court report filed September 20, 2019, the
social worker reported that father had been terminated from his services. Father had
failed to enroll in outpatient services and had not drug tested.
5
At the contested jurisdictional hearing on September 23, 2019, the parties agreed
to dismiss the “g” allegations (“father was incarcerated”). Father testified that prior to
the allegations made by A.S., he had a good relationship with her. He would call her into
his bedroom approximately every other day to help him clean. Sometimes A.S. would
come into the room by herself and ask if he needed help. She would sometimes lock the
door. Father denied ever touching A.S. in a sexual manner or showing any of the minors
pornography.
Father denied hitting mother and was aware mother had obtained a temporary
restraining order (TRO) against him. After the issuance of the TRO, father admitted he
had “contact” with mother on a bus. Father never admitted to taking mother’s purse.
However, when asked if he had mother’s purse, he replied, “Yes,” and “I gave her two
purses, and I have a purse.” He denied using drugs regularly and said he told the social
worker he had used cocaine only when he was younger. Nevertheless, father admitted he
had used cocaine in the past year. He did not deny domestic violence between himself
and mother.
A.S. testified that father started sexually abusing her when she was in the seventh
grade; he continued to abuse her until she told her mother about it. The first time it
occurred, she was helping him clean out the car; he told her to “jack him off.” A.S.
stroked father’s penis, as he instructed, until he ejaculated. Another time, he touched her
breasts and took pictures of her bare chest. Father would show her and the boys
pornography. As they watched, he would say, “‘This is how you’re supposed to do it.’”
6
Counsel for the boys stated that they wished to visit with father; counsel did not
believe visitation would be detrimental to them. The court noted, “I’m not convinced that
detriment does not still exist. I think it still exists even though . . . they want to visit.”
The court sustained the remaining allegations.
At the hearing on November 22, 2019, father’s counsel requested supervised
visitation with the boys for the purpose of a bonding study. The court denied the request,
finding that due to “the dynamic of abuse in the household and the issues that [father] has
failed to address . . . , the issue of risk and detriment to the children has not changed.” In
an additional information to the court report filed December 6, 2019, the social worker
noted that on October 20, 2019, father had been referred to outpatient services, including
parenting, domestic violence, and anger management classes. Father had tested
negatively for drugs on November 14, 2019, but had tested positively for
methamphetamine on November 20. Two special incident reports (dated Nov. 6 & 22,
2019) related inappropriate sexualized behavior between I.J. and A.J. However, I.J.
admitted the allegation was a joke because he was upset at A.J., and A.J. denied the
allegation.
At the contested dispositional hearing on December 9, 2019, father again
requested visitation. Counsel for the boys reiterated that they wished to have visitation
with father; however, counsel believed father needed to demonstrate progress regarding
the “significant problems” that existed before visitation would be appropriate. The court
7
denied father reunification services pursuant to section 361.5, subdivision (b)(6).2 The
court denied father visitation, finding that it would be harmful to the minors’ safety
and/or emotional well-being.
II. DISCUSSION
Father contends insufficient evidence supported the court’s finding of detriment to
warrant denying him visitation with the boys. We disagree.
The statutory “bypass provisions represent the Legislature’s recognition that it
may be fruitless to provide reunification services under certain circumstances.”
(Francisco G. v. Superior Court (2001) 91 Cal. App. 4th 586, 597.) When reunification
services are not provided to one parent pursuant to a bypass provision but are ordered for
the other parent, “[t]he court may continue to permit the parent [not receiving services] to
visit the child unless it finds that visitation would be detrimental to the child.” (§ 361.5,
subd. (f).) “[S]ection 361.5, subdivision (f) provides, in substance, that when the court
does not order reunification services under subdivision (b)(2) through (16) or
subdivision (e)(1), it ‘may,’ pending the section 366.26 hearing, ‘continue to permit the
parent to visit the child unless it finds that visitation would be detrimental to the child.’”
(In re Korbin Z. (2016) 3 Cal. App. 5th 511, 518, fn. 5.)
“[V]isitation is not integral to the overall plan when the parent is not participating
in the reunification efforts. This reality is reflected in the permissive language of
section 361.5, subdivision (f).” (In re J.N. (2006) 138 Cal. App. 4th 450, 458-459.) Once
2 The court ordered reunification services for mother.
8
the court orders bypass of reunification services at the disposition hearing, it has no
obligation to order visitation, particularly if it believes that such visitation would be
unsafe for the minors. (Id. at p. 457.) We review a juvenile court’s discretionary
visitation order for abuse of discretion. (Los Angeles County Dept. of Children & Family
Services v. Superior Court (2006) 145 Cal. App. 4th 692, 699, fn. 6.)
Here, the court was not required to determine there would be detriment to the boys
prior to denying father visitation. The court’s denial of father’s request for visitation was
within its discretion. Father had created a sexualized environment within the home,
which affected the boys. There was evidence father utilized pornography with the boys
as “educational” material. Two of the boys reportedly engaged in sexual behavior
together. Father also engaged in domestic violence and used drugs within the home. The
court acted within its discretion in denying visitation based upon its determination that
the minors’ safety and/or emotional well-being would be at risk if it granted visitation.
Assuming, arguendo, that the court was required to render a detriment finding to
deny visitation, we note the court did make such a finding, and that finding was within its
discretion. Here, the court found true allegations that father had committed severe sexual
abuse against A.S., the boys’ sibling. That finding was supported by evidence that the
abuse consisted of compelled manual stimulation of father by A.S., mutual oral
copulation, anal sex, vaginal intercourse, the use of a vibrator on A.S. by father, and other
sexual acts. A.S. reported that father threatened to beat mother if A.S. did not comply
with the sex acts.
9
Contrary to father’s implication, the boys’ gender did not mean they were not
similarly situated to A.S. (See In re I.J. (2013) 56 Cal. 4th 766, 778-780 [The serious and
prolonged nature of a father’s sexual abuse of his daughter supports a finding that the risk
of abuse was substantial as to the daughter’s siblings, regardless of their gender.].)
Moreover, A.S. testified that father showed both her and the boys pornography,
instructing them, “‘This is how you’re supposed to do it.’” A.J. later reportedly pulled
down his pants and made I.J. lick his penis. Thus, there was evidence from which the
court could find the boys were at risk of sexual abuse. Therefore, at the very least, the
court acted within its discretion in determining the boys were at risk of emotional harm
from continued visitation with father no matter what restrictions the court placed upon
such visitation.
Furthermore, the court found that the detriment to the minors was a result of “the
dynamic of abuse in the household.” That abuse included not only the sexual molestation
of A.S., but also the domestic violence between father and mother, the occurrence of
which mother and five of the minors attested.
Finally, father’s drug abuse, for which father failed to obtain sufficient treatment,
was yet another reason supporting the court’s finding of detriment. Father admitted
cocaine use, and both mother and A.S. reported he used cocaine, methamphetamine,
marijuana, Xanax, and alcohol. Father initially failed to enroll in outpatient services and
failed to drug test. He later missed another drug test; he then tested positively for
methamphetamine. The court’s finding of detriment should visitation continue and, on
that basis, order denying father visitation was within its discretion.
10
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
I concur:
RAMIREZ
P. J.
11
[In re I.J. et al., E074321]
MENETREZ, J., Concurring.
Because father was bypassed for reunification services, he had no right to
visitation. (In re J.N. (2006) 138 Cal. App. 4th 450, 457-459.) Visitation for father was
therefore discretionary—a detriment finding was not required. I concur in the judgment
because the trial court did not abuse its discretion by ordering no visitation, given father’s
appalling conduct and the serious harm he has already inflicted on his children.
MENETREZ
J.
1