Filed 6/11/21 In re A.A. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 A.A. et al., Persons Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, E076122
Plaintiff and Respondent, (Super.Ct.Nos. J285601 & J285602) v. OPINION M.A.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Erin K. Alexander,
Judge. Affirmed.
Daniel G. Rooney, under appointment by the Court of Appeal, for Defendant and
Appellant.
Michelle D. Blakemore, County Counsel, and Jodi L. Doucette, Special Counsel,
for Plaintiff and Respondent.
1 INTRODUCTION
Defendant and appellant M.A. (father) challenges a juvenile court’s order denying
him reunification services pursuant to Welfare and Institutions Code1 section 361.5,
subdivision (b)(6), as to his daughters, A.A. and I.A. (the children), and denying him
visitation. We affirm.
PROCEDURAL BACKGROUND
On June 16, 2020, the San Bernardino County Children and Family Services
(CFS) filed a section 300 petition on behalf of the children. I.A. was three years old at
the time, and A.A. was two.2 The petition alleged that the children came within section
300, subdivisions (a) (serious physical harm), (b) (failure to protect), and (d) (sexual
abuse). Specifically, it alleged that father physically abused the children, that the
children’s mother, K.S. (mother),3 failed to protect them since she knew or reasonably
should have known of the abuse and allowed father to reside in the home and have
unsupervised access to them, that father sexually abused them, and the abuse “was not
1 All further statutory references will be to the Welfare and Institutions Code unless otherwise noted.
2 CFS filed two petitions containing the same allegations; thus, we will refer to them collectively as a single petition. We note, however, that CFS apparently meant to file a separate petition on behalf of each child, but both petitions list I.A. as the child and state there is a related case concerning A.A. This apparent error was subsequently corrected when CFS filed amended petitions on behalf of the children.
3 Mother is not a party to this appeal. 2 limited to digital penetration,” that mother had a history of substance abuse and mental
health issues, and that father and mother (the parents) engaged in domestic violence.
Detention
The social worker filed a detention report recommending that the children be
detained in foster care. The report stated that CFS received a referral on April 23, 2020,
alleging sexual and emotional abuse of the children by father. One of the children
disclosed to mother a few months prior that father touched one of them inappropriately.
CFS received a second referral on April 28, 2020, alleging that father sexually and
emotionally abused the children. The social worker further reported that father’s 14-
year-old daughter, Haley, was showing the children pornography; however, she moved
back to Texas with her mother.
The social worker interviewed mother, who said she was diagnosed with bipolar
disorder, saw a psychiatrist twice a month, and had phone sessions with a clinician twice
a month. When asked about the sexual abuse allegations, she said she told her counselor
that I.A. disclosed to her about five or six months prior that “daddy touches me” and that
Haley touched her. Mother said I.A. pointed to her chest and front of her groin area with
her finger.
The social worker interviewed I.A. and asked if anyone had touched her private
area. Using a picture of a girl, I.A. circled the groin area and stated that her dad had
touched her.
The social worker also interviewed father, and he denied inappropriately touching
the children. He said that when Haley was living with him, she accused him of touching
3 the children because she got in trouble for getting “caught having sex.” He said Haley
told I.A. to say he touched her “out of spite.”
The social worker further reported that an interview and medical examination
were conducted at the Children’s Assessment Center (CAC) on May 28, 2020. During
the medical examination, I.A. disclosed to the nurse practitioner that father touched her.
The nurse practitioner recommended that I.A. be referred for a forensic interview. A
forensic interview was held on June 12, 2020, and I.A. disclosed that “daddy touches me
with his fingers,” as she motioned to her vaginal area with her fingers. That same day,
mother was served with a detention warrant with law enforcement present. While being
transported, I.A. disclosed that father also touched A.A. in her private area.
The court held a detention hearing on June 17, 2020, and detained the children in
foster care. Counsel for the children asked the court to make a detriment finding with
regard to visitation with father and order that there be no visits. Father’s counsel asked
the court not to make a detriment finding. The court stated that it would order CFS to
assess detriment in light of the information in the CAC report and also assess whether the
children were asking to see their father. It would then consider everything at the next
hearing.
Jurisdiction/Disposition
The social worker filed a jurisdiction/disposition report on July 7, 2020,
recommending that the court sustain the petition, declare the children dependents of the
court, and remove them from the parents’ custody. The social worker recommended
4 offering reunification services to the parents and ordering supervised visitation for
mother, but no visitation for father.
The social worker reported that she went to the home of the foster parents where
the children had been placed. The foster parents said the children were very advanced
verbally, and they had continued to report the physical and sexual abuse by father as
before. They reported that A.A. said father made them lay their hands flat on the table,
and he would hit them with a fist. He would also punch her in the stomach, vagina, and
ribs. The foster parents further reported that the children indiscriminately disclosed the
abuse to strangers. When asked if the children had expressed a desire to see father, the
foster parents said the first day or so they asked for him, but noted that A.A. specifically
expressed she was scared of father.
The social worker interviewed I.A. privately on June 25, 2020. I.A. said that
father hurt her. The social worker reported that I.A. “said that ‘Daddy touched me right
here,’ spread her legs wide and aggressively poked at her vagina with her pointer and
middle finger pointed and the rest of her fingers fisted.” I.A. said she saw “Daddy touch
[A.A.] private with fingers.” When asked who Haley was, I.A. said that “Daddy touch
me here and Haley touch me here,” while pointing to her vagina and then her bottom.
When asked if Haley told her anything, I.A. shook her head and said, “Haley touches me
and daddy touches me.” When asked if anyone hurts each other, I.A. said, “Daddy hurt
[A.A.] with cans” and described father throwing a can of food at A.A.’s face and then
“blood coming out.”
5 The social worker also interviewed A.A., who was reluctant to answer most
questions. However, she did say, “Daddy hurt my finger.” When asked if she would like
to visit father, she said, “Daddy hurt sister and me.”
The social worker spoke with mother on the phone. Mother said Haley had
alleged that father sexually abused her. Mother also confirmed that I.A. told her father
touched her inappropriately approximately six months prior; however, she never found
anything to support that disclosure. Mother often repeated that she had no reason to
believe that father sexually abused the children.
The social worker spoke with father on the phone, as well. He said he was 17
years old when his girlfriend Jennifer became pregnant with Haley. Jennifer moved to
Texas a few years ago. Father reported that Haley began running away and acting out, so
Jennifer asked him to help out, which is why Haley lived with him for a while. Father
admitted that Jennifer’s sister accused him of sexual abuse, and that the mother of his
other two children also accused him of molesting their two children. Father denied
physically abusing the children and said the sexual abuse allegations were “because of
the trouble with Haley.” He felt as if she coached the girls.
The social worker opined that there was more than enough evidence to
substantiate the allegations against father. He accepted little to no responsibility for his
actions. He had a well-documented history of domestic violence, and he disclosed prior
allegations of sexual abuse by others. The social worker was greatly concerned that both
parents repeatedly blamed father’s 14-year-old daughter, ex-girlfriends, and others for the
sexual abuse allegations. As to visitation, the social worker stated that, based on the
6 severity of the allegations, the children’s continued disclosures, and her concern for their
emotional well-being, visits with father would be detrimental. The social worker
recommended that the children engage in therapy and that any future visitation be
initiated when found to be appropriate by the assigned therapist.
The court held a jurisdiction/disposition hearing on July 8, 2020, and continued
the matter to October 6, 2020. On October 1, 2020, the social worker submitted
additional information to the court and reported that on July 9, 2020, the social worker
met with the foster parents and the children in the home. I.A. disclosed sexual abuse by
father, stating that he would spread her legs wide and touch her vagina with his finger.
She stated that she saw father touch A.A.’s private parts too. The social worker observed
that the children exhibited poor physical boundaries, which she said was sometimes a
behavior seen in young victims of sexual abuse. The social worker recommended that
there be no reunification services for father, since there was clear and convincing
evidence that the children were brought within the jurisdiction of the court under section
361.5, subdivision (b)(6). The social worker also recommended that there be no
visitation between father and the children.
Amended Section 300 Petition
On October 5, 2020, the social worker filed an amended section 300 petition on
behalf of the children.4 The petition alleged that the children came within section 300,
subdivisions (a) (serious physical harm), (b) (failure to protect), (d) (sexual abuse), and
4 The social worker again filed separate petitions for each child. However, since they contain the same allegations, we will refer to them collectively as one petition. 7 (e) (severe physical abuse). With regard to father, the petition specifically alleged that he
physically abused the children and engaged in domestic violence with mother. It also
alleged that the children had been severely sexually abused by father, and the sexual
abuse “included but was not limited to digital penetration.”
The court held a hearing on October 6, 2020, and the parties acknowledged receipt
of the amended petition. Father requested the children to be potential witnesses. The
court ordered the children to be present at the next hearing and scheduled it for
November 10, 2020.
Contested Jurisdiction/Disposition Hearing
The court held a contested jurisdiction/disposition hearing on November 10, 2020.
I.A. was examined to testify. The court found her to be a truthful child but not competent
to testify, since it did not think she understood the gravity of the situation.
The court held a continued hearing on November 12, 2020. Both father and
mother objected to the allegations in the petition without submitting any affirmative
evidence. Counsel for the children and county counsel submitted on the petition and
recommendations. County counsel then asked if the court wanted argument as to the
clear and convincing standard or if it wanted “to wait until dispo.” The court said, “If
you want me to make the (d) by clear-and-convincing I can hear that now.” The court
asked father’s counsel if he wished to be heard on the matter, and he said yes. Counsel
went on to state that it was “without a doubt” that I.A. had stated on multiple occasions
that father touched her vaginal area. However, he noted that the court found her
incompetent to testify.
8 After reading the reports and hearing argument from counsel, the court found the
allegations under section 300, subdivisions (a) and (b) true, and found the allegations
under subdivision (d) true by clear and convincing evidence. The court noted it was
struck by the number of times I.A. consistently gave the same story, citing mother’s
interview in May 2020, when she said I.A. told her five or six months prior that “daddy
touches me” and pointed to her chest and groin area. The court recounted that on May
12, 2020, I.A. told the social worker, with the use of pictures, that father touched her
groin area. The court further noted that in several of the disclosures, I.A. indicated she
had seen him do the same to her sister. The court stated that on June 25, 2020, the foster
parents reported that the children continued to disclose sexual abuse. Furthermore, I.A.
told the social worker that father touched her, as she spread her legs wide and pointed.
Then, on July 9, 2020, I.A. made the same disclosures to another social worker. The
court noted that the children were described as showing poor physical boundaries, which
was consistent with sexual abuse. The court found that all the disclosures over a period
of time to multiple different parties were consistent in nature, showed advanced sexual
knowledge for a three year old, and thus showed a special indicia of reliability. The court
specifically noted that the evidence was sufficient to support a true finding of the section
300, subdivision (d) allegation by clear and convincing evidence.
The court then stated that it was working from the original petition, and that it
understood there was an amended petition, but CFS was prepared to dismiss the amended
petition and proceed on the original one. County counsel affirmed, and the court
dismissed the amended petition.
9 The court proceeded to disposition and asked father’s counsel if he had any
arguments. Father’s counsel objected to the recommendation to bypass reunification
services under section 361.5, subdivision (b)(6). He asserted that section 361.5,
subdivision (b)(6), required a finding of severe sexual abuse that is based on, but not
limited to, sexual intercourse or stimulation involving genitalia-genitalia, oral-genitalia,
and anal-genitalia or oral-anal contact. He contended that severe sexual abuse did not
exist in this case. County counsel argued that the section 361.5, subdivision (b)(6)
bypass includes examples regarding penetration and manipulation of the child’s genitalia
by an animate or inanimate object, and the court could find severe sexual abuse here by
I.A.’s reenactment of father jabbing his fingers into her vaginal area while aggressively
yanking her legs open. County counsel further argued that it would not be in the best
interests of the children to give father services.
The court ordered the children removed from the parents’ custody and declared
them dependents. It found by clear and convincing evidence that section 361.5,
subdivision (b)(6), applied and noted that as to severe sexual abuse, “there are
descriptions that are not limited but one of the specific descriptions is manipulation of the
child’s genital.” The court stated, “I think it’s clear that that fits the description, that’s by
an animate or inanimate object which is the father’s fingers and I feel like it clearly fits
that definition.” The court found that the specific acts were concerning, in that the
children were very young (two and three years old at the time of the incidents) and father
was in a position of trust. The court noted that the circumstances were alarming in that
Haley described very similar treatment when she was around the same age. It then found
10 no likelihood that the children could be safely returned and that section 361.5,
subdivision (b)(6), applied to both girls. The court denied services to father, but ordered
them for mother. It then confirmed the detriment finding and denied visitation, noting
that it had sustained true findings of sexual abuse, that the children were young and could
not possibly know how to process the information, that they were displaying behaviors
consistent with sexual trauma, and their sibling apparently had experienced similar
trauma and was continuing to react sexually. The court therefore found that visitation
was not in the children’s best interest and specifically found it would be detrimental to
them.
DISCUSSION
I. The Court Properly Bypassed Father’s Reunification Services
Father argues the section 361.5, subdivision (b)(6) bypass provision was not
applicable here since the court only made a finding of sexual abuse under section 300,
subdivision (d), at jurisdiction. He asserts the court did not make a finding that the
children were severely sexually abused since the amended petition, which contained the
section 300, subdivision (e) allegation, was dismissed. He further claims the court
recognized it did not make the jurisdictional finding that the sexual abuse was severe and
subsequently made such finding at disposition; however, because a severe sexual abuse
finding “is not a separate and distinct finding at disposition,” the court’s decision to
bypass his services cannot be sustained. Respondent points out that the jurisdiction and
disposition were combined, and the court made its orders at the same hearing. Thus,
respondent states the real issue is whether the court could bypass services under section
11 361.5, subdivision (b)(6)(A), when it made a section 300, subdivision (d) sexual abuse
finding, and not a section 300, subdivision (e) severe sexual abuse finding. Respondent
concludes that the court could do so, and the evidence supported its finding of severe
sexual abuse. We find that the court made the proper findings to permit it to bypass
services under section 361.5, subdivision (b)(6)(A).
A. Relevant Law
“ ‘As a general rule, reunification services are offered to parents whose children
are removed from their custody in an effort to eliminate the conditions leading to loss of
custody and facilitate reunification of parent and child. This furthers the goal of
preservation of family, whenever possible. [Citation.]’ [Citations.] Section 361.5,
subdivision (b) sets forth certain exceptions—also called reunification bypass
provisions—to this ‘general mandate of providing reunification services.’ [Citations.]
[¶] Section 361.5, subdivision (b) ‘reflects the Legislature’s desire to provide services to
parents only where those services will facilitate the return of children to parental
custody.’ [Citations.] When the court determines a bypass provision applies, the general
rule favoring reunification is replaced with a legislative presumption that reunification
services would be ‘ “an unwise use of governmental resources.” ’ ” (In re Allison J.
(2010) 190 Cal.App.4th 1106, 1112.)
Section 361.5, subdivision (b)(6)(A), authorizes a juvenile court to deny services
to a parent when a child “has been adjudicated a dependent pursuant to any subdivision
of Section 300 as a result of severe sexual abuse or the infliction of severe physical harm
to the child, a sibling, or a half sibling by a parent or guardian, as defined in this
12 subdivision, and the court makes a factual finding that it would not benefit the child to
pursue reunification services with the offending parent or guardian.” Section 361.5,
subdivision (b)(6)(B), provides: “A finding of severe sexual abuse, for the purposes of
this subdivision, may be based on, but is not limited to, sexual intercourse, or stimulation
involving genital-genital, oral-genital, anal-genital, or oral-anal contact . . . 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, . . .”
“We review an order denying reunification services under subdivision (b) of
section 361.5 for substantial evidence. [Citation.] Under such circumstances, we do not
make credibility determinations or reweigh the evidence. [Citation.] Rather, we ‘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.’ ” (Jennifer S. v.
Superior Court (2017) 15 Cal.App.5th 1113, 1121-1122.)
B. The Evidence Was Sufficient to Support the Bypass of Father’s Services Under
Section 361.5, Subdivision (b)(6)
The court found that the children came within the provisions of section 300,
subdivisions (a), (b), and (d), and specifically noted that it found the evidence in support
of the sexual abuse allegation under subdivision (d) to be clear and convincing. It
described, at length, the evidence of the sexual abuse of the children by father, including
the various times I.A. told different individuals that “daddy touches me with his finger”
and pointed to her vaginal area. It also noted that in several of the disclosures, I.A. said
13 father also touched A.A. in her private area. The court specifically noted the consistency
of I.A.’s statements, and that her statement showed advanced sexual knowledge that a
three year old would not normally have. The court’s findings are supported by the
record. The evidence showed that I.A. disclosed the sexual abuse to mother, the social
worker, the CAC, the police, and the foster parents. When describing the abuse, I.A.
repeatedly pointed to her vaginal area with her fingers. Furthermore, the social worker
observed that the children exhibited poor physical boundaries, which was consistent with
young victims of sexual abuse.
Father claims the court only made a finding of sexual abuse under section 300,
subdivision (d), but did not make a finding that the children were severely sexually
abused, since it dismissed the section 300, subdivision (e) allegation. He then argues that
the subdivision (d) finding did not satisfy the severe sexual abuse requirement of section
361.5, subdivision (b)(6)(A); thus, the court erroneously applied the bypass provision.
CFS originally alleged that father sexually abused the children under section 300,
subdivision (d). It then added the allegation that the children were severely sexually
abused by father, pursuant to section 300, subdivision (e), in the amended petition.
However, the court dismissed the amended petition pursuant to CFS’s request and
proceeded on the original petition. It then found the section 300, subdivision (d)
allegation of sexual abuse true. At the disposition portion of the combined hearing, the
court applied section 361.5, subdivision (b)(6), to bypass father’s services. Section
361.5, subdivision (b)(6)(A), authorizes a juvenile court to deny services to a parent when
a child “has been adjudicated a dependent pursuant to any subdivision of Section 300 as a
14 result of severe sexual abuse . . . .” (Italics added.) Section 361.5, subdivision (b)(6)(B),
provides: “[a] finding of severe sexual abuse, for the purposes of this subdivision, may
be based on, but is not limited to . . . 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, . . .” The court noted the description
of severe sexual abuse as manipulation of the child’s genitals by an animate or inanimate
object and found that father’s fingers touching the children’s genitals fit that description.
Father argues that the court’s decision to bypass his services cannot be sustained
since the court “did not make the jurisdictional finding the sexual abuse was severe.” In
other words, he claims that the court made the finding of severe sexual abuse at the
disposition phase, so the clear and convincing evidence requirement for jurisdiction on
this issue was not satisfied. We disagree. To be sure, the issue of what constituted severe
sexual abuse was raised during the disposition part of the hearing, when father claimed
the court should not apply the section 361.5, subdivision (b)(6) bypass provision because
severe sexual abuse did not exist in this case. County counsel argued the bypass
provision applied since there was severe sexual abuse in this case, as shown by the
description of I.A.’s reenactment of father pulling her legs open and jabbing his fingers
into her vagina. The court confirmed that father’s conduct fit the description of severe
sexual abuse (see ante) and also noted its concern that father abused his position of trust
with his children. As previously noted, the finding of severe sexual abuse was made at
the combined jurisdiction/disposition hearing. When the court realized at the disposition
portion of the hearing that it had not made the finding of severe sexual abuse, it
15 essentially reopened that issue and made that finding by clear and convincing evidence.
(See Estate of Young (2008) 160 Cal.App.4th 62, 91 [discussing the court’s broad
discretion to reopen evidence].) Both father and CFS had the opportunity to be heard on
that issue. Any suggestion that the court could not reopen the jurisdiction portion of the
hearing and address that issue is untenable and exalts form over substance, particularly
where the combined hearing was ongoing. The court relied upon the same evidence it
discussed at the initial jurisdictional portion of the hearing in making the finding of
severe sexual abuse.
We conclude there was substantial evidence to support the finding of severe sexual
abuse of the children by father. Thus, the court properly bypassed his reunification
services under section 361.5, subdivision (b)(6).
II. The Court Properly Denied Father Visitation
Father argues the court abused its discretion in denying him visitation since it
“confirmed the detriment finding” but “there was no detriment finding for the court to
confirm,” and there was no evidence of detriment. We conclude the court properly
denied visitation.
When the juvenile court places a dependent child in foster care and orders
reunification services, it shall also order visitation between the parents and child.
(§ 362.1, subd. (a)(1)(A).) “Visitation shall be as frequent as possible, consistent with the
well-being of the child,” but “[n]o visitation order shall jeopardize the safety of the
child.” (§ 362.1, subd. (a)(1)(A), (B).) Thus, during the reunification period for a parent,
16 visitation is mandatory absent the exceptional circumstance where visitation would
threaten the child’s safety. (In re C.C. (2009) 172 Cal.App.4th 1481, 1491.)
In contrast, when the court has denied reunification services under the bypass
provision used here (§ 361.5, subd. (b)(6)), visitation is discretionary. (In re J.N. (2006)
138 Cal.App.4th 450, 457 (J.N.).) Section 361.5, subdivision (f), provides that “[t]he
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; see J.N., at p. 457.)
Subdivision (f) “giv[es] 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.” (J.N., at p. 458.) The
permissive language of the statute reflects that visitation is not integral to the overall plan
for the children when a parent does not receive reunification services. (Id. at pp. 458-
459.)
Section 361.5, subdivision (f) “does not dictate a particular standard the juvenile
court must apply when exercising its discretion to permit or deny visitation,” but the best
interest of the child “is certainly a factor the court can look to in exercising its
discretion.” (J.N., supra, 138 Cal.App.4th at p. 459.) We review the court’s decision for
abuse of discretion and ask whether the court exceeded the bounds of reason by making
an arbitrary, capricious, or patently absurd decision. (In re Stephanie M. (1994) 7 Cal.4th
295, 318-319; J.N., at p. 459.)
Here, the juvenile court found it was not in the children’s best interests to allow
visitation and that visitation was detrimental. As father points out, the court stated that it
17 was “going to confirm the detriment finding,” when it denied visitation. Although it is
not clear if it was referring to a prior detriment finding, or what finding that was, we
nonetheless conclude the court properly denied visitation. Father accepted little to no
responsibility for his actions. The evidence showed that when A.A. was asked if she
wanted to visit father, she just said, “Daddy hurt sister and me,” and she specifically
expressed that she was scared of him. Moreover, the social worker opined that based on
the severity of the allegations, the children’s continued disclosures, and the concern for
their emotional well-being, visits between the children and father would be detrimental.
The court followed the social worker’s recommendation and found detriment. In doing
so, it specified that it had sustained true findings of sexual abuse as to both children, that
they were young and could not “possibly know how to process that information,” that
they were displaying behaviors consistent with sexual trauma, and that their sibling had
apparently experienced similar trauma and was continuing to display sexual behavior.
We conclude that the evidence supported the court’s finding that visitation with
father would be detrimental to the children and was not in their best interests. Therefore,
the court properly denied visitation. (§ 361.5, subd. (f); J.N., supra, 138 Cal.App.4th at
pp. 458-459.)
18 DISPOSITION
The juvenile court’s orders are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS J.
We concur:
CODRINGTON Acting P. J.
SLOUGH J.