In re R.J. CA5 ( 2023 )

Filed 10/17/23 In re R.J. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re R.J. et al., Persons Coming Under the
Juvenile Court Law.
KERN COUNTY DEPARTMENT OF F086137
HUMAN SERVICES,
(Super. Ct. Nos. JD144125 & JD144126)
Plaintiff and Respondent,
v. OPINION
MICHAEL J.,
Defendant and Appellant.
THE COURT*
APPEAL from orders of the Superior Court of Kern County. Christie Canales
Norris, Judge.
Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and
Appellant.
Margo A. Raison, County Counsel, and Alexandria M. Ottoman, Deputy County
Counsel, for Plaintiff and Respondent.
-ooOoo-
* Before Smith, Acting P. J., Snauffer, J. and DeSantos, J.
Dependency jurisdiction was taken over Michael J. (father)’s two daughters, R.J.
and M.J., as well as their older half sibling, K.H. (mother’s child from a previous
relationship), pursuant to Welfare and Institutions Code,1 section 300, subdivisions (b)
(failure to protect) and (d) (sexual abuse). The juvenile court found true allegations,
among others, that father had sexually abused K.H. The juvenile court ordered the
children removed from the parents’ custody and found the bypass provision set forth in
section 361.5, subdivision (b)(6)—that the children or their sibling had been adjudicated
a dependent under section 300 due to severe sexual abuse by the parent, and providing
reunification services to the parent would not benefit the children—applied and declined
to order family reunification services to father.
Father appeals from the dispositional findings and orders, contending that the
juvenile court erred by bypassing father for services, specifically that the order was not
supported by the evidence.
Finding no error, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In December 2022, law enforcement was called out to an elementary school due to
a report that K.H., then 12 years old, was threatening to kill other students. K.H.
reported to law enforcement that she also wanted to kill father and his mother, her
stepgrandmother, as she had witnessed father perpetrating domestic violence against
mother, and her stepgrandmother was not a good person. She further disclosed she had
thought about killing herself in the past. Law enforcement determined that K.H. posed a
danger to herself and others and placed a section 5150 hold on her. As the officer was
filling out the form, K.H. told the officer she forgot to tell him something—she said she
did not want to get in trouble for saying anything, but father had been touching her
1 All further undesignated statutory references are to the Welfare and Institutions
Code.
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private parts for the past year. K.H. stated she had told mother, but mother did not do
anything about it.
K.H. requested to speak to a female detective and told her that father had touched
her vagina and breasts with his bare hands. This would occur late at night when mother
was not home. K.H. explained mother would often be gone for days at a time. She
denied that father penetrated her vagina with his penis or fingers but rubbed her vagina
“many times.” She believed he had touched her about 17 times in total. K.H. later
provided more details—that father attempted to rape her and she bit him to defend herself
and that he forced her to orally copulate him on three separate occasions. K.H. stated that
father and mother’s children, R.J., age five, and M.J., age four, also lived in the home.
Based on K.H.’s disclosures, law enforcement took R.J. and M.J. into protective custody
and transferred custody to the department.
Father was interviewed by law enforcement and denied any sexual abuse. Mother
was also interviewed and reported father was physically abusive toward her in front of
the children. She admitted she would leave the home for days on end because father
forced her to or because she felt like it was the only way to escape him; he would not
allow her to take the children with her. She stated K.H. had told her a few months ago
that father had touched her buttocks but that it appeared to be an accident. Law
enforcement informed the department they would be pursuing criminal charges against
father in connection with K.H.’s disclosures.
The investigating social worker spoke to K.H. in the psychiatric facility where she
was being evaluated, and K.H. relayed similar information to the investigating social
worker as she did to law enforcement. She added that on one occasion father “put his
privates into her privates,” and “it felt bad and painful.”
R.J. reported to the social worker that her parents fought but denied seeing them
hit each other. R.J. reported feeling safe with her parents. She had told the detective that
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father was “the best” and that he was nice to her. M.J. also reported to the social worker
that she felt safe with her parents.
When the social worker spoke to mother, mother reported that when K.H.
disclosed that father had touched her butt, she asked father about it, and he denied it, and
she thereafter “kept a close eye” on K.H. and never saw anything that would cause
suspicion. Mother further reported that father frequently hit her, leaving marks, but she
had never reported it to law enforcement. She was not present when the children were
taken into protective custody because she was out of the home to avoid fighting with
father. She further expressed that she had a history with methamphetamine and drank
alcohol daily to “take the edge off.” In addition, she had been diagnosed with manic
depressive disorder and anxiety but was not taking medication to treat the conditions.
The department filed petitions on behalf of R.J. and M.J. It was alleged they came
within the juvenile court’s jurisdiction under section 300, subdivisions (b) and (d). Under
section 300, subdivision (b), it was specifically alleged that they had suffered or there
was a substantial risk they would suffer serious physical harm as a result of the parents’
failure or inability to adequately protect the children from exposure to domestic violence.
It was further alleged they were at risk because mother had failed to protect them due to
substance abuse and untreated mental health issues. Under section 300, subdivision (d),
it was specifically alleged that the children had been sexually abused or there was a
substantial risk they would be sexually abused by father as he had sexually abused their
half sibling, K.H., by touching her breasts and vaginal area several times, placing his
penis into her vagina, and having her orally copulate him.
At the continued detention hearing conducted on December 19, 2022, father was
elevated to presumed father of R.J. and M.J. The juvenile court ordered the children
detained from the parents.
The jurisdiction hearing was conducted on February 14, 2023. Father contested
jurisdiction and testified on his behalf. He testified he was never alone with K.H. and
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denied all sexual abuse or sexual contact allegations. He further testified K.H. had lied
before; he gave an example of her stating her stomach hurt and when she was taken to the
hospital, they found nothing wrong with her.
In ruling, the juvenile court noted that K.H.’s statements had been consistent and
that both she and mother reported K.H. had disclosed inappropriate behavior to mother
previously. The juvenile court found father’s testimony that he was never alone with
K.H. was not credible as it conflicted with mother’s previous statements that she would
leave the home. The juvenile court noted it “believe[d] there is more than sufficient
evidence to find the allegations true.” The juvenile court found the children were
described by section 300, subdivisions (b) and (d). The matter was continued for
disposition.
The department’s disposition report dated March 2, 2023, summarized some visits
between the parents and the children. The parents were generally reported to be
appropriate, and the visits appeared to go well. The department was recommending
father not be offered family reunification services because the bypass provision of
section 361.5, subdivision (b)(6) applied, as there was clear and convincing evidence the
children came within the juvenile court’s jurisdiction as the result of severe sexual abuse
of the children’s half sibling and that it would not benefit the children to pursue
reunification services with father.
A supplemental disposition report dated April 13, 2023, detailed two more visits
between just father and the children. It was reported that father brought snacks, and he
and the children watched videos, talked, and played. The report indicated that the social
worker reviewed father’s initial case plan with him in February 2023, which included
domestic violence as a perpetrator and sexual abuse as a perpetrator services. Father
stated he was willing to sign up for domestic violence but was not willing to sign up for
sexual abuse services because he did not do anything. In March 2023, the social worker
reviewed father’s initial case plan with him again, and father stated he was not going to
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sign up for classes at that time. He had gone to a few parenting classes and was planning
to sign up for domestic violence counseling, but father asserted the domestic violence
incident was two years ago and there was no current domestic violence. He asserted K.H.
made up the sexual abuse allegations, broke down crying, and stated that he loved his
children.
The disposition hearing was conducted on April 14, 2023. Father presented no
evidence; his counsel stated he “does object to the recommendations in the report. He
still denies the allegations, and he does love his children very much. So he wishes he did
have that opportunity to reunify, but other than that we are submitting.”
The juvenile court ordered the children removed from the physical custody of the
parents, ordered reunification services for mother, but not father, as it found the bypass
provision of section 361.5, subdivision (b)(6) applied.
DISCUSSION
Father contends the juvenile court’s determination that section 361.5,
subdivision (b)(6) applied was not supported by the evidence. We disagree.
A court is generally required to order reunification services for a parent
“ ‘whenever a child is removed’ ” from that parent’s custody unless an enumerated
statutory exception or “bypass” provision applies. (In re Jayden M. (2023)
93 Cal.App.5th 1261, 1271.) “Consonant with the general presumption in favor of
mandatory reunification services, the bypass provisions are ‘narrow in scope’ and reach
situations where ‘ “the likelihood of reunification” ’ is ‘ “so slim” ’ due to a parent’s past
failures that ‘expend[ing]’ the [d]epartment’s ‘ “scarce” ’ resources on reunification
services is likely to be ‘fruitless,’ or when ‘attempts to facilitate reunification’ would
otherwise not ‘serve and protect the child’s interest.’ ” (Ibid.)
As pertinent here, section 361.5, subdivision (b)(6)(A) provides that reunification
services need not be provided to a parent when the court finds by clear and convincing
evidence “[t]hat the child has been adjudicated a dependent pursuant to any subdivision
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of Section 300 as a result of severe sexual abuse … to the child, a sibling, or a half
sibling by a parent or guardian … and the court makes a factual finding that it would not
benefit the child to pursue reunification services with the offending parent or guardian.”
For the purpose of the subdivision, “[a] finding of severe sexual abuse … may be based
on, but is not limited to, sexual intercourse, or stimulation involving genital-genital, oral-
genital, anal-genital, or oral-anal contact, whether between the parent or guardian and the
child or a sibling or half sibling of the child, or between the child or a sibling or half
sibling of the child and another person or animal with the actual or implied consent of the
parent or guardian; or the penetration or manipulation of the child’s, sibling’s, or half
sibling’s genital organs or rectum by any animate or inanimate object for the sexual
gratification of the parent or guardian, or for the sexual gratification of another person
with the actual or implied consent of the parent or guardian.” (§ 361.5, subd. (b)(6)(B).)
In determining whether reunification services will benefit the child pursuant to
section 361.5, subdivision (b)(6), the court shall consider any information it deems
relevant, including the following factors: “(1) [t]he specific act or omission comprising
the severe sexual abuse … inflicted on the child or the child’s sibling or half sibling”;
“(2) [t]he circumstances under which the abuse or harm was inflicted on the child or the
child’s sibling or half sibling”; “(3) [t]he severity of the emotional trauma suffered by the
child or the child’s sibling or half sibling”; “(4) [a]ny history of abuse of other children
by the offending parent or guardian”; “(5) [t]he likelihood that the child may be safely
returned to the care of the offending parent or guardian within 12 months with no
continuing supervision”; and “(6) [w]hether or not the child desires to be reunified with
the offending parent or guardian.” (§ 361.5, subd. (i).)
The court shall not order reunification for a parent or guardian described in
section 361.5, subdivision (b)(6) unless the court finds, by clear and convincing evidence,
that reunification is in the best interest of the child. (§ 361.5, subd. (c)(2).)
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Once the department carries its burden to show a bypass provision such as
section 361.5, subdivision (b)(6) applies, “ ‘ “the general rule favoring reunification is
replaced by a legislative assumption that offering services would be an unwise use of
governmental resources.” ’ ” (In re William B. (2008) 163 Cal.App.4th 1220, 1227.) The
burden then shifts from the department to the parent “to change that assumption and show
that reunification would serve the best interests of the child.” (Ibid.)
We review the juvenile court’s initial determination that section 361.5,
subdivision (b)(6) applies for substantial evidence. (Jennifer S. v. Superior Court (2017)
15 Cal.App.5th 1113, 1121‒1122.) We do not make credibility determinations or
reweigh the evidence but “ ‘review the entire record in the light most favorable to the trial
court’s findings to determine if there is substantial evidence in the record to support those
findings.’ ” (Ibid.) We bear in mind the clear and convincing standard in doing so. (Id.
at p. 1122.) We review the juvenile court’s ultimate determination as to whether
reunification services are in the child’s best interests for abuse of discretion. (In re A.E.
(2019) 38 Cal.App.5th 1124, 1140‒1141.)
As a threshold matter, we address the department’s contention that father forfeited
any claim of error by submitting “on the social worker’s recommendations” contained in
the dispositional reports. First, we reject the department’s characterization of father’s
position as submitting the matter on the department’s recommendations. Father clearly
objected to the recommendation of denying him reunification services. Though he did
not offer any further argument or evidence and “submitted” the matter, we interpret
father’s counsel’s comments as submitting the matter on the state of the evidence. Now,
on appeal, father contends the evidence on the record at the time of the disposition
hearing was insufficient to support the juvenile court’s determination that father would
not receive reunification services. While the general principle of forfeiture prohibits
parties from addressing on appeal issues not raised at trial, “the argument that a judgment
is not supported by substantial evidence is an ‘obvious exception to the rule.’ ” (In re
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P.C. (2006) 137 Cal.App.4th 279, 287‒288.) We therefore decline to find that father has
forfeited the claims he makes on appeal.
Turning to father’s substantive claims, we conclude the juvenile court’s initial
determination that section 361.5, subdivision (b)(6) applied was supported by substantial
evidence. It does not appear to be disputed that the children were adjudged dependents of
the court in part due to sexual abuse perpetrated on their half sibling. The juvenile court
could reasonably conclude the sexual abuse was “severe” within the meaning of the
statute as K.H.’s allegations included acts of oral copulation and sexual intercourse, as
well as multiple accounts of rubbing her vagina with father’s bare hands.
Further, the juvenile court could reasonably conclude the children would not
benefit from reunification services.2 The acts and circumstances of the sexual abuse of
K.H. were egregious in that they were repeated and took place in the home when mother
was not present. The evidence also supports that mother was often not present in the
home because of father’s own actions of perpetrating violence against her. It appears
from the record the sexual abuse at least in part caused substantial emotional trauma to
K.H., who was having violent ideations towards peers as well as father and had to be
placed on a section 5150 hold at the outset of the case. The likelihood of a safe return of
the children to father within 12 months was low given father’s insistence of his innocence
2 Though father does not raise the issue, we note the juvenile court did not state the
basis for its section 361.5, subdivision (b)(6) findings on the record, as required by
section 361.5, subdivision (k), which provides, “[t]he court shall 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 or guardian would not benefit the child.”
We, however, “will infer a necessary finding provided the implicit finding is
supported by substantial evidence.” (In re S.G. (2003) 112 Cal.App.4th 1254, 1260
[declining to reverse juvenile court’s § 361.5, subd. (b)(6) bypass determination for
failure to state factual basis on the record because the record contained substantial
evidence to infer necessary findings].)
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and refusal to participate in sexual abuse classes and failure to promptly participate in
other services. There is no direct evidence on the record regarding the children’s desire
to reunify with father, likely due to their young ages. While it does appear the children
enjoyed visiting with father and did not report feeling unsafe with him, when weighed
against the other factors, the juvenile court could still reasonably conclude the children
would not benefit from father receiving reunification services.
Finally, we conclude the juvenile court’s ultimate determination that reunification
services were not in the children’s best interests was not an abuse of discretion. Once the
department carried its burden to prove section 361.5, subdivision (b)(6) applied, father
bore the burden to make the showing that reunification services were nonetheless in the
children’s best interests but offered no substantive argument or any evidence in an
attempt to support such a claim. Given the juvenile court’s finding that section 361.5,
subdivision (b)(6) applied, which we conclude was supported by substantial evidence,
and the fact that father presented no additional considerations to the court, the court
was essentially required to deny father reunification services under section 361.5,
subdivision (c)(2); we cannot say there was any abuse of discretion.
For these reasons, we conclude the juvenile court did not err by denying father
reunification services.
DISPOSITION
The juvenile court’s April 17, 2023 dispositional findings and orders are affirmed.
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