Opinion
E051625
08-02-2011
In re J. B., et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. J. B., Defendant and Appellant.
Daniel G. Rooney, under appointment by the Court of Appeal, for Defendant and Appellant. Ruth E. Stringer, County Counsel, and Danielle E. Wuchenich, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.Nos. J232870, J232871 & J232872)
OPINION
APPEAL from the Superior Court of San Bernardino County. Wilfred J. Schneider, Jr., Judge. Affirmed.
Daniel G. Rooney, under appointment by the Court of Appeal, for Defendant and Appellant.
Ruth E. Stringer, County Counsel, and Danielle E. Wuchenich, Deputy County Counsel, for Plaintiff and Respondent.
J. B. (father) is the father of R.B., Je.B. and Jo.B. (the children). At the time of the Welfare and Institutions Code section 300 dependency petition, his son R.B. was fourteen (male) and his son Je.B and daughter Jo.B. (the twins) were six years old. In this appeal, father challenges the juvenile court's decisions at the jurisdiction and disposition hearing finding the allegations in the section 300 petition to be true and denying father reunification services. As discussed below, we affirm the juvenile court's rulings.
All section references are to the Welfare and Institutions Code unless otherwise indicated.
FACTS AND PROCEDURE
In May 2010, father's step-daughter C.G. disclosed that father had been sexually abusing her once or twice per week for more than a year. On May 17, 2010, the San Bernardino Department of Children and Family Services (CFS) filed a section 300 petition as to each child alleging abuse of sibling, under subdivision (j), specifically, that the children's half-sibling C.G. had been abused and that there was a substantial risk that the children would be abused or neglected.
C.G. was included in the proceedings below, but is not a subject of this appeal. C.G. is slightly older than the oldest child, R.B.
The children were placed with their mother on family maintenance on condition that father would not reside in the family home. C.G. was placed with relatives because she was unwilling to return home as her mother did not believe the abuse. Father was arrested and remained incarcerated. At the detention hearing held on May 18, 2010, the juvenile court found a prima facie case to detain the children and continued them in their current placements.
Mother had not talked to one of her own sisters for about five years because that sister had accused father of making sexual advances toward her.
The day before the scheduled jurisdiction and disposition hearing set for June 8, 2010, CFS filed amended petitions alleging, in addition to abuse of sibling, that father had made no provision for the children's support when he was arrested and incarcerated, pursuant to section 300, subdivision (g). The hearing was continued to July 8, and ultimately to August 17.
At the jurisdiction and disposition hearing held on August 17, 2010, father waived his right to a trial and his counsel proceeded to argument. At the conclusion of the hearing, the juvenile court sustained each of the allegations in the amended petitions, removed the children from father's custody and denied him reunification services. This appeal followed.
DISCUSSION
1. Father Made Arrangements for the Care of his Children
Father contends, and CFS and this court agree, that substantial evidence does not support the juvenile court's finding under section 300, subdivision (g) that father was unable to arrange for the care of his children because of his incarceration. The children had been living with father and with their mother prior to father's arrest. CFS detained the children the following day, but allowed them to remain in the home with their mother while receiving family maintenance services. The juvenile court continued this placement at the detention hearing, subject to father not residing in the home or having contact with the children without CFS supervision. This living arrangement was confirmed at the jurisdiction and disposition hearing. Thus, father did not leave the children without provision for care at any time after he was arrested and incarcerated, and so the juvenile court should not have sustained this allegation.
2. Jurisdiction Based on Abuse of Sibling
Father also argues the juvenile court erred when it took jurisdiction over the children because substantial evidence does not support a true finding that the children were at risk of being abused.
a. Standard of Review
"At the jurisdictional hearing, the court determines whether the minor falls within any of the categories specified in section 300. [Citation.] '"The petitioner in a dependency proceeding must prove by a preponderance of the evidence that the child . . . comes under the juvenile court's jurisdiction."' [Citation.] On appeal from an order making jurisdictional findings, we must uphold the court's findings unless, after reviewing the entire record and resolving all conflicts in favor of the respondent and drawing all reasonable inferences in support of the judgment, we determine there is no substantial evidence to support the findings. [Citation.]" (In re Veronica G. (2007) 157 Cal.App.4th 179, 185.)
Section 300, subdivision (j), provides that the court has jurisdiction where "[t]he child's sibling has been abused or neglected, as defined in subdivision (a), (b), (d), (e), or (i), and there is a substantial risk that the child will be abused or neglected, as defined in those subdivisions." The court considers "the circumstances surrounding the abuse or neglect of the sibling, the age and gender of each child, the nature of the abuse or neglect of the sibling, the mental condition of the parent or guardian, and any other factors the court considers probative in determining whether there is a substantial risk to the child." (§ 300, subd. (j).) Subdivision (d) applies here because it specifies regarding the sibling that "[t]he child has been sexually abused . . . by . . . a member of his or her household."
Here, father argues there was insufficient evidence from which the juvenile court could conclude that the children were at substantial risk of the same or similar abuse to which he subjected their half-sister, D.G. This is because, father argues, the jurisdiction and disposition report focused on C.G.'s situation and CFS did not introduce any evidence to support its conclusion that the children were at substantial risk of similar harm. We disagree.
In In re Karen R. (2001) 95 Cal.App.4th 84, 90-91, the appellate court concluded that "a father who has committed two incidents of forcible incestuous rape of his minor daughter reasonably can be said to be so sexually aberrant that both male and female siblings of the victim are at substantial risk of sexual abuse within the meaning of section 300, subdivision (d), if left in the home." Similarly, father here exhibited such sexually aberrant behavior by molesting his step-daughter for more than a year, that both of C.G.'s male half-siblings and her female half-sibling are substantially at risk.
In In re P.A. (2006) 144 Cal.App.4th 1339, the appellate court found that the male siblings of a nine-year-old girl who had been molested by her father were at substantial risk of being similarly abused, under circumstances similar to those in the case at hand. In both cases, the siblings had not observed any inappropriate touching in the home, the mother did not believe the molestation had taken place, and the siblings were approaching the age at which the father had abused their sister. The court found that the risk existed despite the fact that father had only been known to abuse girls, citing In re Karen R., supra, 95 Cal.App.4th at page 84.
Further, there was evidence on the record, which the juvenile court was entitled to believe, that father had made sexual advances toward mother's own sister, and that father had impregnated a cousin of C.G.
To conclude, case law and the evidence in the record fully support the juvenile court's jurisdictional finding based on the substantial risk of harm to the children.
3. Denial of Reunification Services
Father further contends that, even if the juvenile court did not err when it found the abuse of sibling allegations to be true, it should not have denied him reunification services. Specifically, father argues substantial evidence does not support the court's conclusion that the children would not benefit from reunification services. Further, father argues that, because C.G. was not his child, she was an "unrelated female" and his abuse of her had no bearing on the risk that he would also abuse his biological children.
Section 361.5, subdivision (b)(6), allows a juvenile court to deny reunification services to a parent of a dependent child who has been adjudicated a dependent because of severe sexual abuse of a sibling or half-sibling "and the court makes a factual finding that it would not benefit the child to pursue reunification services with the offending parent . . . ." This finding must be made by "clear and convincing evidence." (§ 361.5, subd. (b).) In making the "benefit" determination, the court may consider any information it deems relevant, which shall include the nature and circumstances of the infliction of harm, the severity of the minor's emotional harm, any history of abuse to siblings, the likelihood that the family can be reunited in 12 months, and the child's desires. (§ 361.5, subd. (h).) This determination is reviewed for abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318)
Such findings may be implied. (See In re Andrea G. (1990) 221 Cal.App.3d 547, 554-555 [implying finding pursuant to former section 366.25, subdivision (c), that minor would not be returned to parent's custody within six months]; In re Corienna G. (1989) 213 Cal.App.3d 73, 83-85 [implying finding pursuant to former section 366.25, subdivision (d), where substantial evidence would have supported it]; In re S.G. (2003) 112 Cal.App.4th 1254, 1260 ["the failure to make findings necessary for a denial of services under section 361.5, subdivision (b)(6), [does not] mandate[] reversal."].)
Here, CFS represented that the amount of prison time father faced for the charges against him for molesting C.G., along with the issues of his immigration status, would prevent father from participating in reunification services at all. Thus, no benefit to the children would result from granting father reunification services. Further, father not only regularly abused C.G. for more than a year, but he continued to deny it. Contrary to father's depiction of C.G. as an "unrelated female," with whom he had a relationship quite different from that with his biological children, the record makes very clear that father had raised C.G. since she was six months old. The seriousness of this sexual abuse, along with father's continued denial, placed the children at risk themselves, and thus any reunification services would be of no benefit to the children. For these reasons, the juvenile court did not abuse its discretion when it denied father reunification services.
DISPOSITION
The juvenile court's orders are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZP.J.
We concur:
MILLER J.
CODRINGTON J.