In re I.J. CA4/2

• Court: California Court of Appeal
• Decided: September 8, 2020
• Docket: E074321
• Status: Unpublished

Opinion

Filed 9/8/20 In re I.J. CA4/2 See concurring opinion

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re I.J. et al., Persons Coming Under the Juvenile Court Law.

SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, E074321

Plaintiff and Respondent, (Super.Ct.Nos. J280821, J280822, J280823, J280824, J280825 & v. J280826)

S.J., OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes,

Judge. Affirmed.

Landon Villavaso, under appointment by the Court of Appeal, for Defendant and

Appellant.

Michelle D. Blakemore, County Counsel, and Dawn M. Martin, Deputy County

Counsel, for Plaintiff and Respondent. 1 The juvenile court denied defendant and appellant, S.J. (father), reunification

services pursuant to Welfare and Institutions Code section 361.5, subdivision (b)(6)1

(severe sexual abuse) and, thereafter, visitation with the minors. On appeal, father

contends insufficient evidence supports the juvenile court’s finding of detriment as to

minors M.J., A.J., and D.J. (the boys), so as to warrant denying father visitation. We

affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On April 26, 2019, a social worker responded to an immediate response referral

alleging sexual abuse of A.S. (born Aug. 2004) by father. A.S. had disclosed to mother

that, for four to five days a week during the previous two years, father had her orally

copulate him and would perform oral sex on her. A.S. further disclosed that father would

use adult toys on her and penetrated her anus and vagina with his penis. She said father

made her give him a “hand job.” Police arrested father; father was charged with five

counts of sexual offenses.

Father and mother have six children. Mother disclosed continuous acts of

domestic violence by father over the course of two years, which included father hitting

her with closed fists, pulling her hair, and choking her while the minors were present.

Mother said father used methamphetamine, Xanax, and alcohol.

1 All further statutory references are to the Welfare and Institutions Code unless otherwise indicated. 2 A social worker interviewed A.S., who disclosed sexual abuse by father for over

two years, which included rubbing her breasts, buttocks, and vagina; penetrating her

vagina and anus with his penis; mutual oral copulation; and father utilizing a vibrator to

penetrate her vagina. She reported father would ask her to come into his bedroom to help

him clean, lock the bedroom door, and force her to get naked prior to the incidents of

sexual abuse.

A.S. disclosed domestic violence between father and mother, including father

punching and choking mother, throwing her against the wall, and dragging her across the

room. A.S. reported that father used marijuana, methamphetamine, and Xanax. The

social worker also interviewed M.J., A.J., D.J., H.J., and I.J. They reported ongoing acts

of domestic violence between mother and father.

On April 30, 2019, personnel from the San Bernardino County Children and

Family Services (CFS) filed juvenile dependency petitions alleging father and mother

had exposed the minors to domestic violence (b-1), father had a substance abuse

problem (b-2), mother had failed to protect the minors from father’s substance abuse

problems (b-3), father was incarcerated (g-4), and the minors were at risk of sexual abuse

(j-5). As to A.S., CFS personnel filed a juvenile dependency petition alleging father and

mother had exposed her to domestic violence (b-1), father had a substance abuse problem

(b-2), mother had failed to protect her from father’s substance abuse problem (b-3),

mother had failed to protect her from sexual abuse by father (b-4), father had sexually

abused her (b-5), she was suffering serious emotional damage (c-6), she had been

sexually abused by father (d-7), and father was incarcerated (g-8). Father failed to appear

3 at the detention hearing despite having been released from jail. The court ordered no

contact between father and the minors, finding that any contact would be harmful to their

safety and emotional well-being. The court detained the minors and issued temporary

restraining orders against father as to the minors.

In the jurisdiction and disposition report filed May 17, 2019, the social worker

recommended the court find the allegations true, remove the minors from their parents’

custody, provide reunification services to mother, and deny reunification services to

father. Father denied any sexual abuse and theorized that A.S. made the allegations up

because father was too strict. Father said once weekly he would call A.S. to his room to

help him clean for around 20 minutes; he would lock the door because he stored tools, car

parts, and sharp objects in the room. Father said A.S. would come into his room on her

own. With respect to the domestic violence allegations, father admitted grabbing mother

by the hands and calling her profane names in front of the minors. Father also admitted

using cocaine during the past year, and he failed to show for an on-demand drug test on

May 10, 2019.

A.S reiterated her allegations against father in a forensic interview on May 14,

2019. She said father would ejaculate in her mouth; he would take pictures of her while

she was naked; he pointed a camera at them while they were engaged in sex acts; and he

made her watch pornography on two occasions. The other minors reiterated their

previous allegations of domestic violence.

CFS personnel filed first amended juvenile dependency petitions on May 21,

2019, adding an additional allegation that mother failed to protect A.S. from father’s

4 sexual abuse (d-7). The court detained the minors on the amended juvenile dependency

petitions.

In an addendum report filed July 11, 2019, phone calls between mother and the

minors were ended as father was “‘coincidentally’” at mother’s apartment during a

supervised phone call. Four of the minors indicated they would like to visit with father,

but A.S. did not want to visit him. In a forensic interview, A.S. disclosed that father had

threatened to beat mother if A.S. refused to engage in sex acts with him.

CFS personnel filed second amended petitions on July 16, 2019, adding

allegations that the remaining minors, in addition to the existing allegation with respect to

A.S., were at risk of sexual abuse (d-6). As to I.J., the petition alleged mother and father

failed to provide necessary dental treatment (b-4 & b-5). In the detention report, the

social worker relayed that on July 15, 2019, mother reported that after attending a

parenting class, she got on a bus; father followed her onto the bus. During the bus ride,

father called her derogatory names and threatened that he would make sure she did not

reunify with the minors. He threatened to knock her out and ended up stealing her purse.

At the hearing on July 17, 2019, the court reiterated its previous finding of detriment with

respect to contact between father and the minors.

In an additional information to the court report filed September 20, 2019, the

social worker reported that father had been terminated from his services. Father had

failed to enroll in outpatient services and had not drug tested.

5 At the contested jurisdictional hearing on September 23, 2019, the parties agreed

to dismiss the “g” allegations (“father was incarcerated”). Father testified that prior to

the allegations made by A.S., he had a good relationship with her. He would call her into

his bedroom approximately every other day to help him clean. Sometimes A.S. would

come into the room by herself and ask if he needed help. She would sometimes lock the

door. Father denied ever touching A.S. in a sexual manner or showing any of the minors

pornography.

Father denied hitting mother and was aware mother had obtained a temporary

restraining order (TRO) against him. After the issuance of the TRO, father admitted he

had “contact” with mother on a bus. Father never admitted to taking mother’s purse.

However, when asked if he had mother’s purse, he replied, “Yes,” and “I gave her two

purses, and I have a purse.” He denied using drugs regularly and said he told the social

worker he had used cocaine only when he was younger. Nevertheless, father admitted he

had used cocaine in the past year. He did not deny domestic violence between himself

and mother.

A.S. testified that father started sexually abusing her when she was in the seventh

grade; he continued to abuse her until she told her mother about it. The first time it

occurred, she was helping him clean out the car; he told her to “jack him off.” A.S.

stroked father’s penis, as he instructed, until he ejaculated. Another time, he touched her

breasts and took pictures of her bare chest. Father would show her and the boys

pornography. As they watched, he would say, “‘This is how you’re supposed to do it.’”

6 Counsel for the boys stated that they wished to visit with father; counsel did not

believe visitation would be detrimental to them. The court noted, “I’m not convinced that

detriment does not still exist. I think it still exists even though . . . they want to visit.”

The court sustained the remaining allegations.

At the hearing on November 22, 2019, father’s counsel requested supervised

visitation with the boys for the purpose of a bonding study. The court denied the request,

finding that due to “the dynamic of abuse in the household and the issues that [father] has

failed to address . . . , the issue of risk and detriment to the children has not changed.” In

an additional information to the court report filed December 6, 2019, the social worker

noted that on October 20, 2019, father had been referred to outpatient services, including

parenting, domestic violence, and anger management classes. Father had tested

negatively for drugs on November 14, 2019, but had tested positively for

methamphetamine on November 20. Two special incident reports (dated Nov. 6 & 22,

2019) related inappropriate sexualized behavior between I.J. and A.J. However, I.J.

admitted the allegation was a joke because he was upset at A.J., and A.J. denied the

allegation.

At the contested dispositional hearing on December 9, 2019, father again

requested visitation. Counsel for the boys reiterated that they wished to have visitation

with father; however, counsel believed father needed to demonstrate progress regarding

the “significant problems” that existed before visitation would be appropriate. The court

7 denied father reunification services pursuant to section 361.5, subdivision (b)(6).2 The

court denied father visitation, finding that it would be harmful to the minors’ safety

and/or emotional well-being.

II. DISCUSSION

Father contends insufficient evidence supported the court’s finding of detriment to

warrant denying him visitation with the boys. We disagree.

The statutory “bypass provisions represent the Legislature’s recognition that it

may be fruitless to provide reunification services under certain circumstances.”

(Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 597.) When reunification

services are not provided to one parent pursuant to a bypass provision but are ordered for

the other parent, “[t]he court may continue to permit the parent [not receiving services] to

visit the child unless it finds that visitation would be detrimental to the child.” (§ 361.5,

subd. (f).) “[S]ection 361.5, subdivision (f) provides, in substance, that when the court

does not order reunification services under subdivision (b)(2) through (16) or

subdivision (e)(1), it ‘may,’ pending the section 366.26 hearing, ‘continue to permit the

parent to visit the child unless it finds that visitation would be detrimental to the child.’”

(In re Korbin Z. (2016) 3 Cal.App.5th 511, 518, fn. 5.)

“[V]isitation is not integral to the overall plan when the parent is not participating

in the reunification efforts. This reality is reflected in the permissive language of

section 361.5, subdivision (f).” (In re J.N. (2006) 138 Cal.App.4th 450, 458-459.) Once

2 The court ordered reunification services for mother. 8 the court orders bypass of reunification services at the disposition hearing, it has no

obligation to order visitation, particularly if it believes that such visitation would be

unsafe for the minors. (Id. at p. 457.) We review a juvenile court’s discretionary

visitation order for abuse of discretion. (Los Angeles County Dept. of Children & Family

Services v. Superior Court (2006) 145 Cal.App.4th 692, 699, fn. 6.)

Here, the court was not required to determine there would be detriment to the boys

prior to denying father visitation. The court’s denial of father’s request for visitation was

within its discretion. Father had created a sexualized environment within the home,

which affected the boys. There was evidence father utilized pornography with the boys

as “educational” material. Two of the boys reportedly engaged in sexual behavior

together. Father also engaged in domestic violence and used drugs within the home. The

court acted within its discretion in denying visitation based upon its determination that

the minors’ safety and/or emotional well-being would be at risk if it granted visitation.

Assuming, arguendo, that the court was required to render a detriment finding to

deny visitation, we note the court did make such a finding, and that finding was within its

discretion. Here, the court found true allegations that father had committed severe sexual

abuse against A.S., the boys’ sibling. That finding was supported by evidence that the

abuse consisted of compelled manual stimulation of father by A.S., mutual oral

copulation, anal sex, vaginal intercourse, the use of a vibrator on A.S. by father, and other

sexual acts. A.S. reported that father threatened to beat mother if A.S. did not comply

with the sex acts.

9 Contrary to father’s implication, the boys’ gender did not mean they were not

similarly situated to A.S. (See In re I.J. (2013) 56 Cal.4th 766, 778-780 [The serious and

prolonged nature of a father’s sexual abuse of his daughter supports a finding that the risk

of abuse was substantial as to the daughter’s siblings, regardless of their gender.].)

Moreover, A.S. testified that father showed both her and the boys pornography,

instructing them, “‘This is how you’re supposed to do it.’” A.J. later reportedly pulled

down his pants and made I.J. lick his penis. Thus, there was evidence from which the

court could find the boys were at risk of sexual abuse. Therefore, at the very least, the

court acted within its discretion in determining the boys were at risk of emotional harm

from continued visitation with father no matter what restrictions the court placed upon

such visitation.

Furthermore, the court found that the detriment to the minors was a result of “the

dynamic of abuse in the household.” That abuse included not only the sexual molestation

of A.S., but also the domestic violence between father and mother, the occurrence of

which mother and five of the minors attested.

Finally, father’s drug abuse, for which father failed to obtain sufficient treatment,

was yet another reason supporting the court’s finding of detriment. Father admitted

cocaine use, and both mother and A.S. reported he used cocaine, methamphetamine,

marijuana, Xanax, and alcohol. Father initially failed to enroll in outpatient services and

failed to drug test. He later missed another drug test; he then tested positively for

methamphetamine. The court’s finding of detriment should visitation continue and, on

that basis, order denying father visitation was within its discretion.

10 III. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER J. I concur:

RAMIREZ P. J.

11 [In re I.J. et al., E074321]

MENETREZ, J., Concurring.

Because father was bypassed for reunification services, he had no right to

visitation. (In re J.N. (2006) 138 Cal.App.4th 450, 457-459.) Visitation for father was

therefore discretionary—a detriment finding was not required. I concur in the judgment

because the trial court did not abuse its discretion by ordering no visitation, given father’s

appalling conduct and the serious harm he has already inflicted on his children.

MENETREZ J.