In re H.M. CA2/3 ( 2023 )

Filed 6/1/23 In re H.M. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re H.M., a Person Coming B314878
Under the Juvenile Court Law.
Los Angeles County
LOS ANGELES COUNTY Super. Ct. No.
DEPARTMENT OF CHILDREN 20CCJP06303A
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
B.M.,
Defendant and Respondent;
H.M., a Minor, etc.,
Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Steff R. Padilla, Judge Pro Tempore of the
Juvenile Court. Reversed.
Lelah S. Fisher, under appointment by the Court of Appeal,
for Appellant.
Leslie A. Barry, under appointment by the Court of Appeal,
for Defendant and Respondent.
No appearance for Plaintiff and Respondent.
_________________________
Minor H.M. appeals a juvenile court order granting father
reunification services and supervised visitation despite the
juvenile court’s finding that father raped H.M. on three different
occasions beginning when she was 11 years old.1 (See Welf.
& Inst. Code, § 361.5, subds. (b)(6)(A) & (f).)2 We conclude the
court erred. Because there was no evidence to support a finding
that reunification was possible (as the juvenile court implicitly
acknowledged), there was no reasonable basis to order
reunification services under governing law. And, because
there was no likelihood of successful reunification, father
had no right to visitation. We reverse.
1 Mother’s whereabouts are unknown and she is not a party
to this appeal.
2 Statutory references are to the Welfare and Institutions
Code.
After H.M. filed this appeal, the juvenile court entered an
order terminating father’s reunification services. Nevertheless,
H.M. and father agree this appeal is not moot because father
has taken a related appeal from the order terminating services.
We likewise conclude this appeal is not moot, as we can grant
H.M. effective relief by determining father was not entitled to
reunification services in the first instance, effectively nullifying
his pending appeal. (See In re D.P. (2023) 14 Cal.5th 266, 277.)
2
FACTS AND PROCEDURAL HISTORY
After father threw H.M. out of the home following a heated
argument, the minor disclosed to her adult “stepsister,”3 and
later to law enforcement, that father had raped her three times.
Law enforcement took H.M. into protective custody and
contacted the Department of Children and Family Services
(the Department). The Department placed H.M. in foster care
and undertook an investigation to assess the safety of her minor
half-sister.
H.M. told the investigating social worker father had raped
her on three occasions, the first occurring when she was 11 years
old, the second when she was in the seventh grade, and the last
when she was in the eighth grade.4 Each time father woke her
in the middle of the night, said nothing to her, got on top of her,
orally copulated her, and vaginally penetrated her with his
fingers and penis. H.M. could not move because father was
“very heavy.” After the first incident, father apologized and
told her it was “ ‘never going to happen again.’ ” He did not
apologize after raping her the second and third times. The
social worker reported H.M. was “visibly distraught and upset”
when she recounted the incidents.
The juvenile court ordered H.M. detained from father’s
physical custody, set the matter for adjudication, and denied
3 Although they have no biological or legal relationship,
H.M. referred to the children of father’s live-in companion as
her stepsiblings.
4 H.M. was 14 years old at the time of her detention in
November 2020.
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visitation, finding it would be detrimental to the minor’s
emotional health to order visitation with father.
A forensic nurse examiner interviewed H.M. regarding the
rape allegations against father. H.M.’s responses largely adhered
to the reports she gave to law enforcement and the Department,
while providing more details about the circumstances of each
rape and the emotional and physical harm she suffered as a
result. H.M. said she finally disclosed the abuse because she
was “ ‘tired inside’ of holding it in.” She was also worried father
would abuse her younger half-sister.
H.M. spent her earlier years in El Salvador with her
mother. Father had left for the United States when she was
three years old. When H.M. was eight years old, mother left
one morning and never returned. H.M. lived with her paternal
grandparents in El Salvador for two years and then came
to live with father in the United States when she was about
10 years old. She felt safe in her foster care placement and
wanted no contact with father.
Father denied the rape allegations and claimed the
evidence would prove his innocence. He maintained H.M.
was getting back at him for kicking her out of the house after
she posted inappropriate pictures to social media.
Before the adjudication hearing, the Department closed
its referral regarding H.M.’s half-sister, after the girl’s mother
pledged she would no longer allow father into the home or
allow him to have unsupervised contact with the girl. The
district attorney had declined to file criminal charges against
father, concluding there was insufficient evidence to secure a
conviction. H.M. had received five months of individual therapy,
4
and her therapist recommended the girl continue with her weekly
therapy sessions.
The juvenile court adjudicated H.M. a dependent child
under section 300, subdivisions (a) and (d), and ordered her
removed from father’s physical custody. The court found the
girl’s account of father’s sexual abuse was “devastatingly brutal
and truthful.” However, despite also finding H.M. was “a victim
of severe sex abuse by clear and convincing evidence,” the court
denied her request to bypass reunification services. The court
explained its reasoning as follows:
“I’m not going to order conjoint counseling.
I don’t think it’s necessary. . . . But there are
other children. [¶] . . . I believe it’s in [H.M.’s]
best interest to have father determine whether
or not he’s going to accept what she says as
the truth of what happened and how he treated
her or not, but it’s not going to be forever. [¶]
. . . I find that this father is a clear and present
danger to children—to this child and other
children . . . . [¶] I think [the abuse is] so severe
that, if the court doesn’t offer him reunification
services . . . so that he can figure out—so sex
abuse counseling for perpetrators. It’s to
protect [H.M.] and other children. I’m not
going to order parenting, but I’m going to order
individual counseling for the father.”
After ordering monitored visitation, the court reiterated
its finding regarding the “ongoing sexual abuse of this child by
the father.” The court stated again that offering services and
visitation was necessary to “protect [H.M.] in the future” and
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to “protect other children that are siblings and half-siblings to
[H.M.].”
H.M. filed a timely notice of appeal from the disposition
order.
DISCUSSION
1. The Juvenile Court Erred in Granting Reunification
Services
H.M. contends the juvenile court abused its discretion
by granting father reunification services despite finding he had
repeatedly raped and physically abused her. We agree the court
erred.
Section 361.5, subdivision (b) enumerates limited
exceptions to the general rule that parents should receive
reunification services whenever a dependent child is removed
from parental custody. (In re Ethan N. (2004) 122 Cal.App.4th
55, 63 (Ethan N.), citing section 361.5, subd. (a).) Specifically,
section 361.5, subdivision (b)(6) authorizes the juvenile court
to bypass services for a parent if “the child has been adjudicated
a dependent . . . as a result of severe sexual abuse . . . 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).) The bypass statute reflects the
Legislature’s recognition that some situations are so extreme as
to require extraordinary caution in recognizing and giving weight
to the usually desirable objective of family preservation, as well
as lawmakers’ determination that services should be provided
only when they will facilitate the child’s return to parental
custody. (Ethan N., at p. 65; In re A.M. (2013) 217 Cal.App.4th
1067, 1074; see also In re Baby Boy H. (1998) 63 Cal.App.4th 470,
478 (Baby Boy H.) [bypass statute reflects legislative recognition
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that “it may be fruitless to provide reunification services under
certain circumstances”].)
If the juvenile court finds a parent falls within certain
paragraphs of the bypass statute, including section 361.5,
subdivision (b)(6), “[t]he court shall not order reunification for
[that] parent . . . unless the court finds, by clear and convincing
evidence, that reunification is in the best interest of the child.”
(§ 361.5, subd. (c)(2).) At this stage, “the general rule favoring
reunification is replaced by a legislative assumption that offering
services would be an unwise use of governmental resources.”
(Baby Boy H., supra, 63 Cal.App.4th at p. 478.)
There is no dispute that section 361.5, subdivision (b)(6)
applied in this case: the juvenile court adjudicated H.M. a
dependent child as a result of the severe sexual abuse father
committed, and father concedes the evidence compelled a finding
that it would not benefit H.M. to pursue reunification services
with father.5 Accordingly, the issue, as the parties agree,
is whether the juvenile court reasonably determined offering
father reunification services would promote H.M.’s “best interest”
under section 361.5, subdivision (c)(2).
5 As father acknowledges, the court credited H.M.’s account
that he repeatedly raped his daughter; this conduct and the
circumstances of the abuse was undeniably heinous; H.M.
suffered severe emotional trauma and had no desire to reunify
with father; and there was no reasonable possibility that
H.M. could be safely returned to his custody within 12 months
without continuing supervision. (See § 361.5, subd. (i).) We
agree with the parties that the evidence compelled a finding that
reunification services would not benefit H.M. (See id., subds.
(b)(6)(A) & (i).)
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“A juvenile court has broad discretion when determining
whether further reunification services would be in the best
interests of the child under section 361.5, subdivision (c).”
(In re William B. (2008) 163 Cal.App.4th 1220, 1229
(William B.).) The juvenile court abuses this discretion when
there is insufficient evidence to support the court’s finding or
when the court fails to apply the correct legal standard in making
the best interest determination. (See id. at pp. 1228–1229;
Ethan N., supra, 122 Cal.App.4th at p. 68.)
“The best interest of the child is the fundamental goal of
the juvenile dependency system, underlying the three primary
goals of child safety, family preservation, and timely permanency
and stability.” (William B., supra, 163 Cal.App.4th at p. 1227;
accord Ethan N., supra, 122 Cal.App.4th at p. 66 [“The concept
of a child’s best interest ‘is an elusive guideline that belies rigid
definition. Its purpose is to maximize a child’s opportunity to
develop into a stable, well-adjusted adult.’ ”].) The factors to
consider include “a parent’s current efforts and fitness as well
as the parent’s history”; “[t]he gravity of the problem that led
to the dependency”; the relative strength of the bonds between
the children and the parents and between the children and
the caretakers; and “the child[ren]’s need for stability and
continuity.” (Ethan N., at pp. 66–67 [citing cases].) When
a juvenile court bases its best interest finding on factors that
are not relevant to the primary goals of the dependency system,
the court applies the wrong standards and abuses its discretion.
(See id. at p. 68; William B., at pp. 1228–1229.)
Ethan N. is instructive. The child welfare agency in that
case argued the juvenile court abused its discretion when it found
reunification would be in the dependent child’s best interest
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despite also finding the offending mother had caused the death
of the child’s sibling. (Ethan N., supra, 122 Cal.App.4th at p. 64;
see § 361.5, subd. (b)(4).) The record showed the lower court
based the best interest determination on its “concomitant finding
that [mother] had ‘made significant progress towards alleviating
or mitigating’ ” substance abuse issues that led to her other
children’s removal. (Ethan N., at p. 65; see also id. at pp. 61–62.)
The Ethan N. court concluded the lower court “did not apply
the correct standards in examining [the child’s] best interest
and . . . thus abused its discretion.” (Id. at p. 68.) Significantly,
the juvenile court’s finding did not address “[t]he gravity of
the problem that led to the dependency”—the death of a sibling,
which posed an “enormous hurdle” to reunification, nor did the
lower court consider “the child’s need for stability and continuity”
given the unlikelihood that the mother would successfully
reunify. (Id. at pp. 66–68.) Thus, while the evidence supported
the finding that mother had made significant progress, “that
same evidence did not provide support for the finding that
reunification would be in [the child’s] best interest.” (Id. at
pp. 65–66.)
Similarly, in William B., the reviewing court concluded the
juvenile court “did not apply the correct standards when deciding
whether reunification services would be in the children’s best
interests.” (William B., supra, 163 Cal.App.4th at p. 1228.)
There, the juvenile court found the offending mother had
a history of chronic drug use and had resisted court-ordered
treatment for the problem, but the court nonetheless concluded
reunification would be in the dependent children’s best interests
because “the boys had both testified they loved [the mother] and
wanted to be with her.” (Id. at p. 1226.) The William B. court
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concluded this was error, explaining: “Most significantly, the
juvenile court did not consider the children’s need for stability
and continuity. The children had been removed from both
parents’ custody three times and from the mother’s custody an
additional time. Under these circumstances, at 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. [Citation.] But the juvenile court’s
own comments confirm our reading of the record: There is no
substantial evidence to support the conclusion that [the children]
will reunify with their mother, thereby achieving permanency
and stability throughout the remainder of their childhoods.”
(Id. at pp. 1228–1229.)
Here, as in Ethan N. and William B., the juvenile court
failed to apply the correct standards in determining reunification
services would be in H.M.’s best interest. While the court
declined to order conjoint counseling, it nonetheless found
offering father individual counseling for sexual abuse
perpetrators would advance H.M.’s “best interest” by giving her
the chance “to have father determine whether or not he’s going
to accept what she says as the truth of what happened and how
he treated her or not.” That speculative possibility is irrelevant
to the dependency system’s goals of child safety and stability,
and it has no bearing on the interests of H.M., who already knew
the truth of father’s sexual abuse all too well. (See William B.,
supra, 163 Cal.App.4th at p. 1227.)
Father’s rape of his preteen daughter was beyond grave—
it was a heinous betrayal of the parent-child relationship that
10
afforded no reasonable likelihood of reunification. Although the
juvenile court acknowledged the gravity of father’s misconduct,
its consideration of the severe sexual abuse H.M. suffered focused
primarily on protecting “other children” with whom father might
still have contact, such as her minor half-sibling. This was a
legitimate concern, but absent a finding that reunification efforts
were likely to succeed, it was irrelevant to an assessment of
whether H.M.’s best interest would be promoted by offering
services to father. Far from finding a likelihood of reunification,
the juvenile court expressly determined H.M. could not be forced
to participate in conjoint counseling with her abuser, all but
acknowledging the reality that father’s grave betrayal consigned
reunification efforts to certain failure. (Cf. Ethan N., supra,
122 Cal.App.4th at pp. 65–68 [evidence that mother “ ‘made
significant progress towards alleviating or mitigating the causes
of [her other] children’s placement in out-of-home care’ ” was
irrelevant to dependent child’s best interest given “enormous
hurdle” posed by gravity of mother’s misconduct].)
The court also failed to consider whether H.M and father
had the sort of bond that would justify efforts to preserve their
fractured relationship. The record shows father left H.M. in
El Salvador when she was three years old, and H.M. did not join
father in the United States until she was 10. A year later father
abused his daughter in the most odious way possible, and he
continued to do so until she was 14 years old when he threw her
out of the house. With no reasonable possibility of reunification
and little more than a biological tie to bond them, the relevant
standards for determining whether reunification services
were in H.M.’s best interests simply did not support the court’s
exercise of discretion. (See William B., supra, 163 Cal.App.4th
11at pp. 1228–1229 [even where significant parent-child bond
existed, unlikelihood of successful reunification mandated bypass
of services]; Ethan N., supra, 122 Cal.App.4th at pp. 66–68
[where gravity of parental misconduct poses an “enormous
hurdle” to reunification “[n]o presumption in favor of the natural
parent-child relationship obtains”].)
2. Because There Was No Reasonable Likelihood of
Reunification, Father Had No Right to Visitation
If a parent is denied reunification services under certain
paragraphs of the bypass statute, including when the parent
has sexually abused the dependent child under section 361.5,
subdivision (b)(6), the court “may continue to permit the parent to
visit the child unless it finds that visitation would be detrimental
to the child.” (§ 361.5, subd. (f), italics added.) The Legislature’s
use of the word “ ‘may’ ” is “permissive”—that is, it grants
“the juvenile court discretion to permit or deny visitation when
reunification services are not ordered, unless of course it finds
that visitation would be detrimental to the child, in which case
it must deny visitation.” (In re J.N. (2006) 138 Cal.App.4th 450,
458 (J.N.).) This is a “logical distinction,” as visitation is “an
essential part of a reunification plan,” allowing the parent and
child “ ‘to maintain ties,’ ” while also “ ‘provid[ing] information
relevant to deciding if, and when, to return a child to the custody
of his or her parent.’ ” (Ibid., quoting § 362.1, subd. (a).) “On
the other hand, visitation 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).” (J.N., at pp. 458–459.)
Thus, where a parent is not entitled to reunification
services under the bypass statute, he has “no right to visitation.”
12
(In re Korbin Z. (2016) 3 Cal.App.5th 511, 518 (Korbin Z.).)
Under these circumstances, visitation may be ordered only if
there is sufficient evidence to prove continued contact with the
offending parent will serve the dependent child’s best interest.
(Ibid.; J.N., supra, 138 Cal.App.4th at p. 459.)
For the reasons discussed above, we conclude there
was insufficient evidence to find continued contact with father
would best serve to protect H.M.’s interests. In view of their
long estrangement and the abuse that began only a year after
H.M. joined father in the United States, there was no substantial
evidence of a bond between H.M. and father to justify an order
compelling her to have continued contact with her abuser. While
H.M. was doing well in foster care by the time of the disposition
hearing, the record shows this was due to her having a protective
caregiver, a thoughtful therapist, and no contact with father
for approximately eight months. As there was no reasonable
likelihood of reunification, we conclude forcing H.M. to have
any contact with father, whom the juvenile court concluded had
severely sexually abused her, would jeopardize H.M.’s emotional
safety. The juvenile court abused its discretion in ordering
monitored visitation. (See § 362.1, subd. (a)(1)(B) [“No visitation
order shall jeopardize the safety of the child.”]; see also J.N.,
supra, 138 Cal.App.4th at p. 459 [denial of visitation was justified
where, due to mother’s incarceration when child was two years
old, it could be inferred they were “not bonded” and “they [did]
not have a strong relationship”]; Korbin Z., supra, 3 Cal.App.5th
at p. 519 [child’s “opposition to visits” with offending parent
is relevant to determining whether visits are in child’s best
interests].)
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DISPOSITION
The portions of the disposition order granting father
reunification services and monitored visitation with H.M. are
reversed and vacated.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
EDMON, P. J.
BENKE, J.

Retired Justice of the Court of Appeal, Fourth District,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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