In re D.T. CA4/2 ( 2024 )

Filed 5/31/24 In re D.T. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
In re D.T. et al., Persons Coming Under
the Juvenile Court Law.
SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES, E082126
Plaintiff and Respondent, (Super.Ct.Nos. J292608, J292609,
J292610)
v.
OPINION
S.T.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Annemarie G.
Pace, Judge. Affirmed.
Jack A. Love, under appointment by the Court of Appeal, for Defendant and
Appellant.
Tom Bunton, County Counsel and Landon Villavaso, Deputy County Counsel, for
Plaintiff and Respondent.
1
I. INTRODUCTION
Defendant and appellant S.T. (Father) appeals August 30, 2023 orders denying
Father reunification services for his three children, S.T., J.T., and D.T., pursuant to
Welfare and Institutions Code section 361.5, subdivisions (b)(3) and (b)(7).1 Father
claims that even if these bypass provisions apply, and authorized the court to bypass or
deny services for Father, the court erred in denying services for Father because it was in
the children’s best interests to reunify with Father. (§ 361.5, subd. (c)(2).) We conclude
1) the bypass provisions apply, and 2) the court did not abuse its discretion in concluding
it would not be in the best interest of the children to reunify with Father, and therefore, to
deny Father reunification services. Thus, we affirm the orders bypassing Father’s
services.
II. FACTS AND PROCEDURE
A. Background
Father and A.G. (the mother) are the parents of S.T., a boy born 2011, J.T., a girl
born in 2015, and D.T., a boy born in 2017. In March 2022, the mother and children
were living with the mother’s boyfriend, M.F. The mother and children had not seen
Father since September 2021 when Father was arrested and jailed for violating a 2019
domestic violence restraining order in favor of the mother. Father was released from
custody on March 6, 2022.
1 Undesignated statutory references are to the Welfare and Institutions Code.
2
On March 21, 2022, D.T., then age four, was taken to a hospital emergency room
and found to have severe physical injuries consistent with nonaccidental trauma: two
spinal fractures, six rib fractures in an “L” shape on his left side, a third degree burn on
his left leg, a cut in a “Y” shape on his left hand, bruises on his body and head in different
stages of healing, including bruising on his penis and on the inside of his lower lip. The
incident was referred to plaintiff and respondent, San Bernardino County Children and
Family Services (CFS).
When a social worker questioned D.T. about his injuries at the hospital, D.T. said
M.F. had been “hurting him” by pouring hot water on him and by putting M.F.’s hand on
D.T.’s mouth so that D.T. could not breathe. When asked whether he wanted to see MF.,
D.T. said, “no because he [is] mean. He make[s] me bleed.” When asked whether he
wanted to see his mother, D.T. said, “no, she’s not gonna pick me up anymore.” When
asked whether he wanted to see Father, D.T. said, “no, [Father] [s]creamed at me. Made
me cry at my normal house.”
The mother gave inconsistent versions of how D.T. sustained his injuries. Mother
reported she was married to Father but had had no contact with Father since September
2021, when Father was arrested for violating a domestic violence restraining order
granted in favor of the mother. The mother said she lived with the children and that her
boyfriend, M.F., only “randomly” spent the night. The mother worked full time, and
M.F.’s mother watched D.T. while the mother was at work and S.T. and D.T. were at
school. M.F. watched S.T. and D.T., but not J.T., when the mother would “go on a quick
errand.” S.T. and J.T. denied knowing how D.T. was injured. After speaking with the
3
mother and children, CFS took the children into protective custody. Given the ongoing
police investigation of D.T.’s injuries, CFS was unable to speak with M.F.
CFS attempted to locate Father and found no address but discovered Father was
arrested for domestic violence on September 2, 2021 and released from custody on March
6, 2022. On March 23, 2022, Father called CFS after the maternal grandmother told
Father the children were in protective custody. Father confirmed he had been released
from custody around two weeks earlier and said he had not seen the children “in months”
due to the restraining order against him. Father said he would like the children in his
care, and he was in the process of submitting “paperwork” in the family court to obtain
custody of the children.
B. The Section 300 Petitions and Detention Hearing (March 2022)
On March 24, 2022, CFS filed petitions alleging the children were described in
section 300, subdivisions (a), (b)(1), (c), (d), (e), (g), and (i). The petitions alleged D.T.
suffered non-accidental, serious, and repeated physical harm while in the care of his
mother; the mother failed to protect D.T. from serious physical harm, serious emotional
damage, and sexual abuse; the parents engaged in domestic violence with each other in
the presence of the children; all of this conduct placed all three children at risk. On
March 25, the children were ordered detained outside parental custody. Father was
granted supervised visitation, but the mother was ordered to have no contact with the
children. Father waived his trial rights on the allegations and agreed to participate in
predispositional reunification services, including on-demand drug testing and domestic
violence classes.
4
C. Further Investigation of the Section 300 Allegations (March 2022 to June 2022)
1. M.F.’s Abuse of D.T.
M.F. admitted to police he “lost it” and physically abused D.T. after D.T. “acted
out’ at a theme park on March 9. M.F. grabbed and pulled D.T. by the arm, causing
D.T.’s arm to swell. In a second incident on March 19, apparently at mother’s home with
the children, M.F. took D.T. to the “restroom,” sat D.T. on the toilet, and, when asked
whether he had peed, D.T. said “no, not yet.” M.F. then grabbed D.T.’s arm and pulled
on D.T. to get up, then “punched” D.T. four times on D.T.’s back while D.T. was seated
on the toilet. M.F. then grabbed D.T. “from each side of his torso, lifted him and
slammed [him] down to the floor with force,” then squeezed D.T’s torso with both hands
after D.T. “landed on the tile floor.” D.T. continued to cry, so M.F. slapped D.T. across
the face. M.F. reported the Mother, S.T. and J.T. were “in the bedroom” when the March
19 incident occurred. M.F. denied causing injury to D.T.’s penis. The mother provided
several versions of how D.T. was injured, changed her statements several times, and had
no explanation for some of D.T’s injuries. The mother did not seek medical attention for
D.T. until March 21, 2022 because M.F. “begged” the mother not to.
2. The Children’s April 25 Forensic Interviews
In a forensic interview on April 25 2022, D.T. said M.F. made him scared and he
did not want to live with his mother and M.F. D.T. said his mother burned his foot
because “she hates me”, and M.F. broke his hand, poked his eyes with his fingers, and hit
D.T. on multiple occasions. In separate forensic interviews, S.T. and J.T. said M.F.
5
would hit D.T. on his buttocks, arms, legs, and chest with a belt, flip-flop/slipper and
hands resulting in bruising and red marks.”
3. The Parents’ History of Domestic Violence
Regarding the parents’ history of domestic violence, CFS obtained police reports
from November 9, 2019, October 3, 2020, and September 1, 2021. The November 9
report showed Father was arrested for domestic violence with the mother on November 9,
2019 “after an argument turned physical.” The mother reported Father punched the
mother in the nose, causing the mother’s nose to bleed. S.T. told officers his parents
were arguing because Father “did not want to pay bills anymore.” Based on the
November 2019 incident, the mother obtained a domestic violence restraining order
against Father.
On October 3, 2020, Father was arrested for violating the restraining order after he
entered the mother’s home in violation of the order, and the mother locked herself and
J.T. in a bathroom. On September 1, 2021, Father was again arrested for violating the
restraining order. At that time, the mother said the children told the mother that Father
had been “yelling at” the children and “putting them down” “throughout the day.” The
mother saw that Father was “acting strange.” Father “disclosed methamphetamine use”
to police. For violating the restraining order, Father was in jail from September 1, 2021
until March 6, 2022.
Father admitted having a history of domestic violence with the mother in the
presence of the children. Father reported the mother was “very jealous” and a “big
woman” who was “aggressive” and “violent” toward Father. The mother once held
6
Father against a wall, hid Father’s car keys and shoes, and slapped Father. After Father
tired of the mother’s behavior and began hitting her back, Father was arrested in 2019,
and the restraining order was issued against Father. Father claimed the order was
modified in 2020 to a peaceful contact order, but he and the mother lived in the same
property, and the mother continued to call law enforcement. Father claimed he no longer
used alcohol or any controlled substances including methamphetamine. Father was
referred for counseling, domestic violence, parenting, and drug testing services.
The mother claimed that, sometime before September 2021, the mother and Father
used drugs together (cocaine and methamphetamine) for six months. The mother said
Father “would pick fights with her when he was coming down from drugs and he would
yell more,” and was under the influence of drugs when he was arrested in September
2021 for violating the restraining order.
4. Additional Evidence
On April 2, 2022, a paternal cousin said the paternal grandmother (PGM) had
raised the children since birth. The PGM lived with both parents, then the mother, until
February 2022 when the mother moved away with the children and cut off all contact
with the paternal family. According to the paternal cousin, the parents had marital issues
due to the mother cheating on the Father. In December 2021, the paternal family learned
the mother had been seeing M.F.
The PGM reported the mother was “aggressive” toward all of the children with a
belt and hands, and the PGM and Father would intervene to protect the children from the
7
mother when the parents, children, and PGM lived together. The PGM said she was
“more of a mother figure” for the children and the mother was “rarely home.”
On April 26, 2022, the maternal grandmother (MGM) reported she had been
caring for the children while the mother was at work, before the mother moved away with
the children in February 2022. At that point, M.F. would not allow the mother to answer
her phone or have contact with the maternal family, and the MGM did not know where
the mother and children were living. The MGM later disclosed she saw bruising on
D.T.’s cheeks, butt, and legs, in February 2002 and questioned the mother about the
bruises. The mother, S.T., and J.T. told the MGM that D.T. hurt himself while playing
on a bunk bed. The MGM also said Father had a substance abuse issue which caused the
mother to have to work two jobs.
In April and May 2022, Father tested negative for controlled substances, and he
was participating in services, including domestic violence classes and counseling. CFS
reported Father was “very communicative” and had been “nothing less than cooperative”
with CFS. Father was also “very mindful” of D.T.’s medical needs. A paternal aunt
reported Father was working six to seven days per week, attending church, and going to
the gym. In therapy, Father was presenting with posttraumatic stress symptoms due to
M.F.’s severe physical abuse of D.T., and Father was “learning to use coping
mechanisms (deep breathing, stretching,
walking away) to deal with stressors and anxiety.”
8
D. Father’s Initial Visits with the Children
On March 30, 2022. Father had his first supervised visit with S.T. and J.T. Father,
S.T., and J.T. were laughing and playing together, and J.T. went to Father for comfort
when she heard screaming from another room. Father had his first visit with D.T. on
April 2. D.T. was still unable to walk due to his injuries but was comfortable engaging
with Father, smiled at and reached for father, and cried for Father at the end of the visit.
Father was always appropriate with the children during his weekly supervised visits;
Father came prepared with games and activities and engaged well with the children. On
several occasions, the children asked about returning to father’s care.
On May 10, 2022, Father’s visits were liberalized to unsupervised. On June 18,
J.T. reported Father yelled at her and her siblings during an unsupervised visit. J.T.
denied she was fearful of Father and explained Father became upset at the children and
told them they need to respect Father.
On July 5, 2022, a maternal cousin called CFS to report that Father was no longer
living in her home with D.T. Father left the home with D.T. on July 5, the day after the
cousin and Father had a disagreement. The cousin said Father was “upset” due to
“stressors such as work,” CFS’s involvement in his life, and the fact S.T. and J.T. were
not in his care. On July 7, S.T. and J.T. reported Father yelled at them and kicked a trash
can during an unsupervised visit on July 6. S.T. and J.T. said Father had been “upset
lately.”
On July 11, 2022, CFS held a meeting to address Father’s behavior. Father told
CFS he was having a difficult time because S.T. and J.T. were not in his care, and he felt
9
sad and depressed because he was on a budget and unable to buy the children things.
CFS stressed the importance of Father using his coping skills and support network. S.T.
and J.T. participated in the meeting and said that even though Father yelled at them
during their past two visits, they looked forward to visiting Father and wanted to live with
Father. D.T. reported feeling happy and safe in Father’s care. D.T. was described as
“extremely bonded” to Father.
E. The Original Jurisdiction and Disposition Orders (July 2022)
On July 28, 2022, at the combined jurisdiction and disposition hearing on the
section 300 petitions, the court dismissed the subdivision (g) allegations (that the mother
left the children with no provision for support) and found the other allegations true. The
court denied reunification services for the mother (§ 361.5, subds. (b)(5), (b)(6)), found
Father was the children’s presumed father, returned D.T. to Father’s care with family
maintenance services, and granted Father reunification services for S.T. and J.T. who
remained in foster care.
On January 23, 2023, CFS reported D.T. was doing well in Father’s care. Father
was taking D.T. to his medical appointments and D.T.’s injuries had mostly healed. D.T.
was meeting his developmental milestones but he was referred to a neurologist for his eye
injury and for mental health services. Father was still participating in services; he had
completed a parenting program, 35 of 52 domestic violence classes, and he was attending
10
individual counseling.2 Father reported he had learned coping skills in counseling.
Father was renting a three-bedroom, three-bath home for himself and all three children in
anticipation of having J.T. and S.T. returned to his care. On January 30, 2023, the court
continued D.T. in Father’s care and returned S.T. and J.T. to Father’s care, with family
maintenance services for all the children.
F. The Section 342 and 387 Petitions (May 2023)
On May 1, 2023, three months after J.T. and S.T. were returned to Father’s care,
CFS filed subsequent and supplemental petitions for the children pursuant to sections 342
and 387. The petitions alleged that on four occasions between February 24, 2023 and
April 24, 2023, Father physically abused 11-year old S.T. by punching and slapping S.T.
on the face very hard, multiple times, and Father’s conduct placed all three children at
risk of similar abuse.
1. Background
On February 24, 2023, J.T. disclosed that Father yelled at her and her siblings for
no reason, and that one day Father “walked out of the kitchen and hit [S.T.] across the
face really hard.” J.T. said Father said J.T. and the children were “not supposed to say
anything and not cause any trouble” and J.T. was scared to go home to Father. CFS
concluded the referral would not be substantiated because the discipline Father used did
not rise to the level of abuse.
2 The domestic violence classes were a condition of Father’s probation for
violating the 2019 restraining order. Father was in compliance with the conditions of his
probation.
11
On March 7, 2023, S.T. disclosed Father hit him on his face very hard. CFS found
this referral, too, would not be substantiated, but referred Father to counseling and
advised him to use other forms of discipline. On March 16, S.T. disclosed Father
“socked him on the jaw” two weeks earlier, and that on March 15, Father again “socked
him on the jaw and slapped his face with an open hand.” S.T. said he did not want to be
around Father and feared returning home; Father would get angry and tell S.T. he does
not like his attitude, then Father would hit S.T. S.T. had no observable marks or bruises.
CFS concluded the March 15 incident would also be unsubstantiated. On April 24,
another referral was made alleging Father’s physical and emotional abuse of S.T. CFS
decided to file the section 342 and 387 petitions while still investigating the April 24
referral.
The children were interviewed separately at school on April 25, 2023. D.T. said
he had heard S.T. crying from Father smacking S.T., but D.T. did not remember the day
he heard the smacking. J.T. said she saw Father put his hand on S.T.’s face, but it was
“not hard.” S.T. said he left home on April 24, after he talked to the social worker, and
he went to the home of his prior foster parents, because Father looked like Father was
going to hit S.T. When asked to explain, S.T. said Father clenched his fist, appeared
angry, and told S.T. to “stop bothering him.” S.T. was very frightened, held his hands up
to block his face, and repeatedly apologized to Father. S.T. said Father was “imagining”
that the children were “intentionally trying to agitate him when they do something on
accident.” S.T. confirmed that the prior referrals of Father hitting S.T. were true. S.T.
wanted to live with the PGM.
12
When interviewed on April 26, 2022, Father said he was unsure why S.T. was
alleging Father was physically and emotionally abusive toward S.T., and S.T. had no
reason to feel threatened. Father said S.T. would try to find ways to make Father angry,
but Father would try to ignore S.T.’s behavior. The children were taken into protective
custody.
2. Detention
At a detention hearing on May 2, 2022, the court detained the children from Father
and allowed Father weekly, two-hour supervised visits. On May 25, CFS interviewed
each child about the allegations of Father’s physical
abuse. Father declined to discuss the allegations with CFS.
3. The Children’s Further Interviews
In his May 25 interview, S.T. recalled the February 24 referral was made because
Father slapped S.T. hard on his cheek “for no reason” when S.T., J.T., and D.T. were
sitting on the living room couch watching television. S.T. recalled that Father told S.T.
that S.T. was bothering Father and to stop it.
S.T. explained that the March 7 referral occurred after S.T. asked his former foster
brother, who attended S.T.’s school, to tell S.T.’s former foster father to notify S.T.’s
social worker that Father was hitting S.T. By that time, Father had been hitting S.T. more
frequently, “every few days,” by slapping S.T. with his open hand. The slapping
incidents did not cause any marks or bruises, but one of the slaps made S.T.’s face hurt
for a few days. When asked why Father was slapping him, S.T. said Father would
13
complain that S.T. was “bothering” Father, but S.T. would not be doing anything to
bother Father.
S.T. described the March 16 referral as Father “sock[ing]” S.T. on the jaw with a
closed fist, which hurt for a while. S.T. sometimes feared going home because he felt
Father would hit him. S.T. said the April 24 referral occurred because Father asked S.T.
to take out the trash, and S.T. told Father he would do so after he ate. Father raised his
hand as if he was going to hit S.T., but S.T. apologized, pleaded with Father not to hit
him, and Father did not hit him. S.T. ate, took the trash out, then went to his prior foster
home and reported the incident. Following the incident, Father asked S.T. why S.T. “acts
out,” and S.T. told Father he acted out because he wanted to live with the PGM. S.T. felt
he did not misbehave with Father and said Father was always angry at him and his
siblings for no reason.
S.T. reported he and Father had a good relationship when S.T. was younger.
Father never hit him and was a good provider to the family. S.T. recalled the family lived
in Washington when S.T. was younger, but returned to California because they did not
have enough money. They moved into the MGM’s garage, then Father went to jail. S.T.
said Father’s “mindset is different” now because Father was very worried about what the
mother and M.F. had done to D.T. S.T. confirmed he did not want to live with Father
because he did not believe he would be safe with Father even if Father were to get help,
but he wanted to visit Father.
J.T. said Father had never hit her, but she felt scared when Father yelled at her and
her brothers and when he would say bad words in Spanish. Father would accuse J.T. and
14
S.T. of saying bad words to Father, but J.T. said Father was “hearing things” and had
falsely accused S.T. of saying “F. . . you” to Father. Father would tell J.T. and S.T. that
they had “ruined his life” and his life would be “different” if they were not at home with
him. J.T. recalled a time when Father “skipped” into the living room, slapped S.T., then
“skipped” back to the kitchen. Father appeared “happy” for having slapped S.T., but J.T.
saw tears on S.T.’s face. Another time, J.T. heard S.T., who was cooking in the kitchen,
“crying and screaming” telling Father to stop hitting him when S.T. was not doing
anything wrong. J.T. wanted to live with the PGM. In his May 25 interview, D.T. said
Father was “mean” to S.T. and J.T., and D.T. recalled hearing Father smack S.T. multiple
times.
4. CFS’s Recommendations
In a June 1, 2023 jurisdiction/disposition report, CFS recommended the court
sustain the allegations of the sections 342 and 387 petitions and deny Father reunification
services for the children pursuant to section 361.5, subdivisions (b)(3) and (b)(7). CFS
concluded Father’s prognosis for reunifying with the children was poor. Father’s
supervised visits with the children were going well, however, and CFS had no concerns
about the visits. A June 6 hearing on the section 342 and 387 petitions was continued for
further assessments.
5. The August 30, 2023 Findings and Orders Denying Father Services
At the August 30, 2023 contested hearing, the court sustained the allegations of
the petitions. Father’s counsel argued section 361.5, subdivisions (b)(3) and (b)(7) did
not apply to Father, and even if the statutes applied, the court should order reunification
15
services for Father because Father could reunify with the children within the next six
months. The court found that the bypass provisions applied and that granting Father
services would not serve the best interest of the children. Father timely appealed.
III. DISCUSSION
Father claims that even if section 361.5, subdivisions (b)(3) and (b)(7) applied and
authorized the court to deny Father services, the court erroneously denied Father services
because reunifying with Father was in the children’s best interest. (§ 361.5, subd. (c)(2).)
We conclude that section 361.5, subdivisions (b)(3) and (b)(7) applied. We also conclude
the court did not abuse its discretion in denying Father services, because substantial
evidence shows the court reasonably determined that reunifying with Father was not in
the children’s best interest. Thus, we find no error in the August 30, 2023 orders.
A. Section 361.5, Subdivisions (b)(3) and (b)(7) Apply
When a child is removed from a parent’s custody, the parent is generally entitled
to reunification services for the child under section 361.5, subdivision (a), unless an
exception set forth in subdivision (b) of the statute applies. “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.)
Under subdivision (b), reunification services “need not be provided” to a parent
when the court finds by clear and convincing evidence that an exception set forth in
section 361.5, subdivision (b) applies. (In re S.B. (2013) 222 Cal.App.4th 612, 622.)
These exceptions allow the court to “bypass” services for the parent and reflect our
16
Legislature’s intent to provide services to parents “only where those services will
facilitate the return of children to parental custody.” (Ibid.)
“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 Department’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.’ [Citations.] By making the grant of reunification
services discretionary in these situations, the bypass provisions aim to
‘focus reunification efforts’ and resources on the cases ‘most likely to succeed’
with reunification. [Citation.]” (In re Jayden M. (2023) 93 Cal.App.5th 1261, 1271.)
As relevant, section 361.5, subdivision (b) provides: “(b) “Reunification services
need not be provided to a parent . . . when the court finds, by clear and convincing
evidence . . . [¶] . . . [¶] (3) That the child or a sibling of the child has been previously
adjudicated a dependent pursuant to any subdivision of Section 300 as a result of physical
or sexual abuse, that following that adjudication the child had been removed from the
custody of the child’s parent or guardian pursuant to Section 361, that the child has been
returned to the custody of the parent or guardian from whom the child had been taken
originally, and that the child is being removed pursuant to Section 361, due to additional
physical or sexual abuse. [¶] . . . [¶] (7) That the parent is not receiving reunification
services for a sibling . . . of the child pursuant to paragraph (3). . . .”
17
“If the court finds by clear and convincing evidence that a bypass provision
applies, it must deny services unless the parent proves that services would be in the
child’s best interests. (§ 361.5, subd. (c).) While the parent bears the burden of proof on
that issue, the department bears the burden of proving the threshold issue of whether a
bypass provision applies. [Citation.]” (In re T.R. (2023) 87 Cal.App.5th 1140, 1148.)
We review a juvenile court’s determination that a bypass provision applies for substantial
evidence. (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96 & fn. 6.)
Here, the court relied on subdivision (b)(3) of section 361.5, in denying Father
reunification services for S.T. and J.T., and relied on subdivision (b)(7) of the statute in
denying Father services for D.T. Substantial evidence supports the court’s
determinations that these bypass provisions applied.
First, S.T. and J.T. are children described in subdivision (b)(3) of section 361.5.
They are (1) siblings of D.T., a child previously adjudicated a dependent pursuant to
section 300 as a result of physical or sexual abuse; (2) following “that adjudication,” S.T.
and J.T. were removed from the custody of the mother, from whom D.T. was “originally”
taken in the section 300 adjudication for D.T.; (3) S.T. and D.T. were later returned to
Father’s custody; and (4) S.T. and J.T. were later removed from Father’s custody due to
“additional physical abuse” of S.T.
Second, D.T. is a child described in subdivision (b)(7) of section 361.5. That is,
D.T. has a sibling—two siblings, S.T. and J..T.—for whom “the parent,” Father, was not
receiving services pursuant to subdivision (b)(3). (§ 361.5, subd. (b)(7).)
18
Father does not seriously argue section 361.5, subdivisions (b)(3) and (b)(7), do
not apply.3 Rather, Father’s opening brief states, “Father’s position is that even if the
section 361.5, subdivisions (b)(3) and (b)(7) applied, it was in the best interests of the
children for their father to receive reunification services under section 361.5, subdivision
(c)(2).” We turn to this question.
B. The Court Did Not Abuse Its Discretion in Concluding Reunification with Father Was
Not in the Children’s Best Interest, and Bypassing Services for Father
Section 361.5, subdivision (c)(2), states: “The court shall not order reunification
for a parent or guardian described in paragraph (3), (4), (6), (7), (8), (9), (10), (11), (12),
(13), (14), (15), (16), or (17) of subdivision (b) unless the court finds, by clear and
convincing evidence, that reunification is in the best interest of the child.”
A juvenile court may consider several factors in determining whether reunification
would be in a child’s best interest, including 1) the parent’s current efforts, fitness, and
history, 2) the gravity of the problem that led to the dependency; 3) the strength of the
3 As Father concedes, section 361.5, subdivision (b)(3) has been interpreted as
applying to a child who was subsequently physically abused even if that child was not the
child who was abused in the prior adjudication. (In re D.F. (2009) 172 Cal.App.4th 538,
545.) That is, the statute does not require the child for whom services “need not be
provided” to be the child who was originally abused; rather, the child for whom services
“need not be provided” may be a sibling of the child who was originally abused. (Ibid.)
Put yet another way, section 361.5, subdivision (b)(3) applies when, as here, the
“additional” or subsequent abuse is to the sibling of the child originally abused. (S.V. v.
Superior Court (2018) 28 Cal.App.5th 671, 676.) This interpretation is in keeping with
the apparent purpose of the statute, which is “to protect children against recidivist abusive
parents.” (Ibid.) Further, the plain language of the statute does not require the parent for
whom services “need not be provided” to be the perpetrator of the original abuse.
(§ 361.5, subd. (b).)
19
parent-child and parent-caretaker bonds; and, 4) the child’s need for stability and
continuity, which is of “paramount concern.” (In re D.F., supra, 172 Cal.App.4th at
p. 547; In re Ethan N. (2004) 122 Cal.App.4th 55, 66-68.) The burden is on the parent to
show that reunification would serve the best interest of the child. (In re A.G., supra, 207
Cal.App.4th 276, 281.) A best interest finding “also requires a likelihood that
reunification services will succeed. [Citation.] ‘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].’ ” (Ibid.)
We review a juvenile court’s best interest finding under section 361.5, subdivision
(c)(2) for an abuse of discretion. (See Cheryl P. v. Superior Court, supra, 139
Cal.App.4th at p. 96, fn. 6.) We will find no abuse of discretion if substantial evidence
shows the court could have reasonably concluded that reunification with the parent who
may be denied reunification services was not in the child’s best interest. (See Ramsden v.
Peterson (2022) 76 Cal.App.5th 339, 345 [an abuse of discretion shown if the child
custody determination is not supported by substantial evidence].)
Father claims it was in the best interest of the children to reunify with Father; thus,
it was in the children’s best interest to offer reunification services to Father at the August
30, 2023 hearing. Father emphasizes that the bypass provisions of section 361.5,
subdivisions (b)(3) and (b)(7) applied only because D.T. suffered physical abuse in the
mother’s care. Father points out he was not living with the family when D.T. was
abused, and Father “was not part of any physical abuse” of D.T. Father also correctly
observes that he cooperated with CFS from the beginning of the case in March 2022, he
20
complied with his case plan, and the children enjoyed visiting Father and being with
Father.
Father also points out that there was no permanent plan for the children—at the
August 30, 2023 hearing, the court found by clear and convincing evidence that there was
a compelling reason not to set section 366.26 hearings for the children because 1)
adoption was not in the children’s best interest at the time, and 2) there was no adult
willing or able to be the children’s legal guardian.
Substantial evidence shows, however, that the court reasonably determined that
reunification with Father was not in the children’s best interest. (§ 361.5, subd. (c)(2).)
As the court noted, Father was aware from the beginning of the case that D.T. had been
“significant[ly]” physically abused, that S.T. and J.T. were removed “for the same risk,”
and that all of the children had experienced “significant trauma.” But Father’s physical
abuse of S.T. caused the children’s second removal in April 2023. As the court also
emphasized, the children feared going home and were told by Father “not to speak about
the abuse they were suffering” in Father’s care. The children also corroborated each
other’s accounts of the Father’s abuse.
As CFS argues, substantial evidence shows Father “had an extensive history of
violent and abusive behavior that was not ameliorated by his participation and completion
of reunification services.” Despite his participation in individual counseling, domestic
violence classes, and parenting classes, Father “continued to exhibit behavior that
evidenced aggression, violence, and a lack of impulse control throughout much of the
case. Indeed, Father yelled at the children during their unsupervised visit with Father in
21
July 2022. Moreover, Father continued to physically abuse S.T. despite referrals to
counseling. And when interviewed in May 2023, S.T. and J.T. said that they did not want
to live with Father because they would not feel safe in Father’s care, even if Father were
to get additional help.
In sum, the court reasonably determined that reunification was not in the
children’s best interest. Although we recognize and commend Father’s efforts at
reunification, the record shows there was no reasonable likelihood that reunification
would succeed. (In re A.G., supra, 207 Cal.App.4th at p. 281.) Thus, the court did not
abuse its discretion in denying reunification services for Father.
IV. DISPOSITION
The August 30, 2023 orders are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J.
We concur:
RAMIREZ
P. J.
MENETREZ
J.
22