Opinion
E073694
06-15-2020
In re C.J. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. C.K., Defendant and Appellant.
Daniel G. Rooney, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Pamela J. Walls, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J281338, J281339 & J281340) OPINION APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes, Judge. Affirmed in part, reversed in part. Daniel G. Rooney, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Pamela J. Walls, Deputy County Counsel, for Plaintiff and Respondent.
I.
INTRODUCTION
Defendant and appellant, C.K. (Mother), appeals from the judgment entered after the juvenile dependency court found jurisdiction over her three children, ordered them removed from her care, and denied Mother reunification services under Welfare and Institutions Code section 361.5, subdivision (b)(6). Mother argues there is insufficient evidence to support the court's findings relied upon in taking jurisdiction over the children and denying reunification services.
Father is not a party to this appeal.
Unless otherwise noted, all statutory references are to the Welfare and Institutions Code.
We conclude there was substantial evidence supporting the jurisdictional order declaring the children dependents of the court, and thus affirm the order. However, we conclude the juvenile court erred in denying Mother reunification services under the bypass provision, section 361.5, subdivision (b)(6). Therefore, the disposition order denying Mother reunification services is reversed.
II.
FACTS AND PROCEDURAL BACKGROUND
On June 7, 2019, Mother's three children (Children) were detained. Prior thereto, Mother had retained sole legal and physical custody of the Children since her divorce from the Children's father, C.J. (Father), in 2011. At the time of the Children's detention, Mother's son, C.J., was 13 years old, and her daughters, A.J. and K.J., were 14 and 17 years old, respectively. Mother and the Children lived with Mother's husband (Stepfather), maternal grandmother (MGM), maternal stepgrandfather (MGF), and Mother's adult son, Kyle, who was the Children's half brother. Father's whereabouts were unknown. According to Mother, the Children had not had contact with him for 12 years.
On April 18, 2019, Kyle was arrested after yelling at Stepfather, "'You're raping my sisters!'" and attempting to physically harm Stepfather. On May 11, 2019, law enforcement began investigating allegations by K.J. that Kyle had been sexually abusing her. During the investigation, K.J. was referred to the Children's Assessment Center (CAC) for a forensic interview on June 4, 2019. K.J. reported that Kyle started sexually assaulting her when she was 12 years old in her family home. K.J. stated the final incident was when Kyle raped her on April 18, 2019, the day after Kyle's 21st birthday. The incident happened in the maternal grandparents' (MGPs) guesthouse, where Kyle was living. The guesthouse was behind the main house, where K.J. and the rest of her family were living. After he raped K.J., Kyle refused to let her leave until she promised not to tell anyone. Nevertheless, K.J. told her boyfriend and two of her friends.
K.J. further reported during her CAC interview that she had suicidal ideations because of the sexual abuse and had been hospitalized three times. When she was 15 years old, she ran away from home because of the sexual abuse, but Mother forced her to return when she was 16 years old. Upon her return, Kyle raped her three or four more times. She told her friends about the rapes. Because K.J. reported suicidal ideations during the June 4, 2019, CAC interview, Mother and Stepfather agreed to take K.J. to a crisis walk-in center to address her mental health issues, but then failed to do so.
K.J. also disclosed that, while incarcerated, Kyle had called A.J. and C.J. at home and told them he would be getting out soon. K.J. reported that half of her family was "'shaming'" her because they thought her sexual abuse allegations against Kyle were false, since she did not disclose the sexual abuse sooner. K.J. explained she did not report the abuse sooner because she did not want to put "'extra stress on her parents.'"
K.J. also accused Father, whom she said she despised, of sexually assaulting Kyle as a minor for years in front of her. CFS later learned that K.J. had been continuing her social media relationship with Father. CFS also learned K.J. had told MGM that Mother "'made her say she was present during her father's sexual assaults of Kyle so that people would believe mother.'" Father denied he had committed any sexual abuse.
On June 6, 2019, a sheriff's deputy told CFS that Kyle had just been released from custody and was living with a maternal aunt in Hemet. The deputy noted that Kyle was present during K.J.'s CAC interview on June 4, 2019. The next day, a CFS social worker interviewed K.J. regarding Kyle's accusation that Stepfather had sexually abused her and A.J. K.J. denied Stepfather had sexually abused her and stated that Kyle had done so, not Stepfather. K.J. stated that Kyle had accused Stepfather of sexual abuse to cover up his own wrongdoing of sexually abusing K.J.
On June 7, 2019, law enforcement consulted with CFS regarding their investigations. It was concluded that, because Kyle had just been released on June 6, 2019, and was living with a maternal aunt in Riverside County, the Children were at risk. CFS therefore detained the Children in foster care on June 7, 2019, given Mother's unwillingness and or inability to protect them.
A. Juvenile Dependency Petition
On June 11, 2019, CFS filed juvenile dependency petitions on behalf of each of the Children (Petition). CFS alleged in the Petition filed on behalf of K.J. that Mother failed to protect her by not providing adequate care and supervision (§ 300, subd. (b)). On June 4, 2019, Mother allegedly left K.J. in the car for three hours, at the Joshua Tree Superior Court, while Mother attended a hearing in Kyle's rape case, in support of Kyle. Mother periodically returned to the car to apprise K.J. of the court proceedings, causing K.J. great distress. CFS further alleged in the Petition that, while incarcerated, Kyle called the Children at home and Mother permitted him to speak with C.J. and A.J., during which Kyle told them he would be returning home soon. CFS alleged this placed K.J. at risk of physical harm and neglect.
As to C.J. and A.J., CFS alleged in the Petition that Mother failed to protect them (§ 300, subd. (b)) and placed them at risk of physical harm by permitting Kyle to speak on the telephone to C.J. and A.J. During the telephone call, Kyle told the two children he would be released and return home soon. The Petition also alleged juvenile dependency jurisdiction of C.J. and A.J. based on Kyle's sexual abuse and rape of a sibling, K.J., thus placing the other two children at serious risk of similar abuse (§ 300, subd. (j)).
The Petition further alleged Mother failed to protect K.J. from multiple acts of sexual abuse by Kyle, beginning when she was about 12 years old, until the last incident on April 18, 2019 (§ 300, subd. (d)). Mother allegedly knew or reasonably should have known K.J. was being sexually abused or in danger of sexual abuse, yet continued to allow Kyle to reside in the home and have unsupervised access to K.J.
During the detention hearing on June 12, 2019, the court ordered the Children detained in foster care and ordered monitored visitation for Mother and Father, once a week for two hours.
B. Jurisdiction/Disposition
CFS reported in its July 2019 jurisdiction/disposition report that Father had been located and was living in Georgia. He requested to appear during the court proceedings by telephone and requested placement of the Children with him.
CFS further reported Mother and Father's history with CFS, which included a case in 2005, in which A.J., K.J., and Kyle were detained from Mother and the children's fathers based on allegations of substance abuse by Father (marijuana), Mother's failure to supervise and protect the children, filthy living conditions, and safety issues. The case was dismissed in 2006, after the parents succeeded in reunifying with the children. There was also a substantiated general neglect referral in 2004, based on Mother locking K.J. and Kyle in their bedroom at night, Father using marijuana, and the family living in a filthy home. The children were placed with MGM, but later returned to Mother's care.
A CFS background check of MGPs further revealed that MGPs previously had a CFS case in which their adopted son, J.D., and 16-year-old daughter, A.D., were detained in 2009, based on allegations, which were found true, that MGF sexually abused A.D., and MGM physically abused her and a sibling. Kyle reportedly observed MGF sexually abuse A.D. MGF also reportedly sexually abused Mother as a child. Because of this CFS history, CFS refused to place the Children with MGPs.
In June 2019, CFS interviewed Father. He stated that Mother had not allowed him to visit the children since 2009, in violation of a court order granting him unsupervised visitation. Mother had claimed there had been domestic violence involving Father and Father had sexually assaulted Kyle in 2008. CFS found no evidence supporting either of these allegations. Father reported he had been sober since 2003, denied he had committed any domestic violence or sexual abuse, and had only been aware of one sexual predator in the family, MGF. Father was unaware the Children were living in MGF's home. Mother had kept the Children from him, although Father had tried to maintain contact with the Children through social media.
CFS reported it was concerned about Mother's pattern of being in denial of sexual abuse in the family, despite Mother most likely being aware her children were at risk when in the presence of MGF, a known sexual predator. Mother continued to leave the Children unsupervised with him and failed to protect K.J. from Kyle sexually abusing her. CFS concluded Mother minimized the threat her children would be sexually abused and demonstrated she would not protect the Children from MGF and Kyle, thus allowing and facilitating sexual abuse of the Children. Mother had moved into MGPs' home, knowing that MGF was a sexual predator. CFS stated "Mother has a high level of denial and refuses to admit any of her choices or actions has impacted her children[']s lives." CFS concluded the record supported denying reunification services for Mother under section 361.5, subdivision (b)(6).
In a supplemental report filed in August 2019, CFS reported that Mother had moved from MGPs' home to another residence. Mother and Stepfather also completed parenting classes and Mother had participated in counseling addressing sexual assault. CFS attached to its supplemental report a May 2019 sheriff's department investigative report and July 2019 supplemental investigative report stating that K.J. reported that Kyle had raped her over 30 times and sexually assaulted her even more times, beginning when she was 11 years old. K.J. acknowledged during her interview that she had reported a rape incident one or two years before. She had claimed the attacker was random and unknown, but she admitted this was false and that the prior rape had been committed by Kyle. K.J. said she did not want to disclose the truth out of fear it would ruin her family. She explained she had reported the incident because she feared she was pregnant and needed a valid reason for a pregnancy test. K.J. stated her mental health issues, hospitalizations for suicidal ideations, and self-harming acts began after Kyle raped and assaulted her.
The sheriff's investigative supplemental report further stated that there had been several CFS referrals, in which K.J. reported (1) in 2009, that Father had sexually abused Kyle, (2) in February 2016, she had been sexually abused six months before, by two unknow suspects while walking home, (3) on June 2 and 20, 2016, Mother had physically abused K.J., including hitting her in the mouth, and K.J. had been sexually abused by a stranger, and (4) in March 2017, while hospitalized, K.J. reported that when she told Mother she had been sexually abused, Mother had responded that K.J. was lying, and the case was dropped. CFS reported regarding the March 2017 referral, that K.J. had told Mother that, while walking down the street, she had been raped in 2014 or 2015, by two men who struck her in the head, causing her to pass out.
CFS stated in an additional August 2019, supplemental report that Mother continued to accuse Father of having sexually abused Kyle and denied MGF sexually abused his adopted daughter. Mother claimed CFS personnel had lied in the referrals and reports about MGF, the allegations had not been found true, and she was not told her children could not have contact with MGF. Mother continued to claim MGF did not sexually abuse anyone. Because Mother continued to demonstrate an inability to protect the Children from sexual abuse, by failing to acknowledge past sexual abuse had occurred in her family, CFS recommended Mother not receive reunification services under section 361.5, subdivision (b)(6). CFS further recommended the Children be placed with Father, Father be awarded full legal and physical custody, and the case be dismissed. However, during a pretrial settlement conference on August 21, 2019, the Children's counsel advised the court that the Children did not want to live with Father or have contact with him.
In a supplemental report filed in September 2019, CFS reported on the Children's relationship with Father over the past several years. The evidence reportedly showed Mother and Father had been coparenting the Children. CFS advised the court that Mother had inappropriately had unsupervised contact with her daughters when she took them to the restroom during visits and the Children maintained unsupervised contact with Mother through texting. K.J. reportedly was cutting and showed increasing depression and periods of mania. A.J. was also exhibiting behavioral issues. The Children's foster mother was unwilling to continue caring for the Children. She felt she did not have the resources to deal with their problems. C.J. and A.J. were placed together in a new foster home, and K.J. was placed in a separate home, because she required a high level of care.
During the contested jurisdiction/disposition hearing on September 12, 2019, no objections were made to the section 300, subdivisions (d) and (j) allegations (Kyle sexually abused K.J. and there was substantial risk of serious sexual abuse to siblings). Mother only objected to the section 300, subdivision (b) allegation (risk of physical harm from failure to supervise or protect). Neither Mother nor Father submitted any evidence. CFS's reports and attachments were admitted into evidence. The court found there was a substantial risk of harm to A.J. and C.J., because Mother had permitted telephone contact between Kyle and the two children. This, the court concluded, was "allowing grooming to happen." The court also found that there was a substantial risk of harm to the Children because Mother was not protecting them from sexual abuse by Kyle, particularly after Kyle was released from incarceration. The court also concluded Mother had not acknowledged K.J. was at risk of sexual abuse.
The court acknowledged there was no evidence K.J. told Mother that Kyle had raped or sexually abused her. The court found, however, there was evidence of long term sexual abuse of K.J. by Kyle and evidence Mother was not protective of K.J. The court therefore found Mother impliedly consented to sexual abuse of K.J. by remaining in denial of the ongoing abuse, despite being aware MGF was a sexual predator, yet minimizing his history of sexual abuse, and allowing the Children to be exposed to him while unsupervised. Because the court found that Mother failed to take appropriate action to protect the Children from the risk of sexual abuse, the court declared the Children dependents of the court.
The court further denied reunification services for Mother under the section 361.5, subdivision (b)(6) bypass provision, finding services were not in the Children's best interests. The court granted Father reunification services and placement of the Children with him upon approval of such placement under the Interstate Compact for the Placement of Children.
III.
SUBSTANTIAL EVIDENCE SUPPORTING
JURISDICTION FINDINGS
Mother contends there was insufficient evidence to sustain the court's jurisdictional findings under section 300, subdivision (b)(1) (failure to protect, risk of physical harm).
A. Applicable Law Regarding Failure to Protect Finding
Section 300.2 provides that the paramount purpose of dependency proceedings is the protection of the child. (In re Jason L. (1990) 222 Cal.App.3d 1206, 1214; see In re Alexis E. (2009) 171 Cal.App.4th 438, 452.) A finding under section 300, subdivision (b) requires a showing the "'negative effects'" must be of the sort likely to result in serious physical or emotional harm. (In re Destiny S. (2012) 210 Cal.App.4th 999, 1005.)
The three elements of a jurisdictional finding under section 300, subdivision (b)(1) are: "(1) neglectful conduct by the parent; (2) causation; and (3) 'serious physical harm or illness' or a 'substantial risk' of serious physical harm or illness." (In re Yolanda L. (2017) 7 Cal.App.5th 987, 993, quoting In re Cole Y. (2015) 233 Cal.App.4th 1444, 1452.) When the jurisdictional allegations are based solely on risk to the child, that risk of present or future harm must be shown to exist at the time of the jurisdiction finding. (In re Yolanda L., supra, at p. 993; In re R.M. (2009) 175 Cal.App.4th 986, 989.)
Section 300, subdivision (b)(1), provides that a child is within the jurisdiction of the juvenile court and may be adjudged a dependent of the court when "[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of [the parent] to adequately supervise or protect the child. . . ."
"Although evidence of past events may have some probative value in considering current conditions, to sustain a petition under section 300, subdivision (b) there must be evidence that the 'circumstances existing at the time of the hearing make it likely the children will suffer the same type of "serious physical harm or illness" in the future.'" (In re R.M., supra, 175 Cal.App.4th at p. 989, quoting In re Janet T. (2001) 93 Cal.App.4th 377, 388.) "The juvenile court need not wait until a child is seriously injured to assume jurisdiction if there is evidence that the child is at risk of future harm from the parent's negligent conduct." (In re Yolanda L., supra, 7 Cal.App.5th at p. 993; accord, In re N.M. (2011) 197 Cal.App.4th 159, 165.) A finding of a defined risk of harm at the time of the jurisdiction hearing requires "some reason beyond mere speculation to believe the alleged conduct will recur. [Citation.]" (In re James R. (2009) 176 Cal.App.4th 129, 136.)
"We review the juvenile court's jurisdictional findings and disposition orders for substantial evidence," and "'we resolve all conflicts and make all reasonable inferences from the evidence to uphold the court's orders, if possible.' [Citations.]" (In re Christopher R. (2014) 225 Cal.App.4th 1210, 1216.) "Evidence from a single witness, even a party, can be sufficient to support the trial court's findings." (In re Alexis E., supra, 171 Cal.App.4th at p. 451.)
B. Analysis
On appeal, Mother challenges the juvenile court's jurisdiction findings under section 300, subdivision (b)(1), of failure to protect, based on the Children suffering or being at substantial risk of suffering serious physical harm. Mother is not challenging the jurisdiction findings as to C.J. and A.J. based on section 300, subdivision (j) (abuse of a sibling) or the jurisdiction findings as to K.J. under section 300, subdivision (d) (sexual abuse).
When, as here, a dependency petition alleges multiple grounds for asserting that a child comes within the juvenile court's jurisdiction, we may affirm the juvenile court's finding of jurisdiction over the child if any one of the statutory bases for jurisdiction alleged in the petition is supported by substantial evidence. (In re Alexis E., supra, 171 Cal.App.4th at p. 451; In re I.J. (2013) 56 Cal.4th 766, 773.) "In such a case, the reviewing court need not consider whether any or all of the other alleged statutory grounds for jurisdiction are supported by the evidence." (In re Alexis E., supra, at p. 451.) Because the sexual abuse and abuse-of-a-sibling allegations (§ 300, subds. (d), (j)) are undisputed, we need not consider whether the other alleged statutory grounds under section 300, subdivision (b)(1) are supported by substantial evidence. (In re Alexis E., supra, at p. 451.)
Nevertheless, because Mother is also objecting to the disposition order denying her reunification services, we will consider the merits of Mother's sufficiency of evidence challenge to the section 300, subdivision (b)(1) jurisdiction findings. In doing so, we conclude there was substantial evidence to support the juvenile court's section 300, subdivision (b)(1) findings. We conclude there is compelling evidence that Mother repeatedly turned a blind eye to circumstances in which the Children were at risk of being sexually abused and Mother was not supportive of K.J. when she reported she was a victim of sexual abuse. As a consequence, there was substantial risk Mother would fail to protect the Children from sexual abuse in the future.
Mother argues that she did not know that Kyle was sexually abusing and raping K.J., because K.J. did not tell her. But the evidence shows that Mother was either oblivious or intentionally ignored any circumstances that placed the Children at risk of sexual abuse. When K.J. reported she had been sexually abused by strangers, Mother responded by accusing K.J. of lying. After K.J. finally reported in May 2019, that Kyle had raped her and sexually abused her for years, Mother seemed more supportive of Kyle than K.J. Also, while Kyle was incarcerated for raping K.J., Mother permitted Kyle to speak on the telephone to A.J. and C.J., during which he told the two children he would be released and was coming home soon. The juvenile court reasonably found Kyle's call to A.J. and C.J. was "grooming" conduct, which Mother should not have permitted.
The court also reasonably found that Mother should have known or suspected that K.J. was being sexually abused because Kyle had repeatedly sexually abused and raped K.J. at home, over a period of five or six years. C.J. reported that he observed Kyle sexually abuse K.J. Mother had allowed Kyle, an adult, to live in MGPs's guest home, with unsupervised access to K.J., who had suffered from and had been hospitalized three times for mental illness, including suicidal ideations, and had reported being sexually abused and raped by unknown individuals. Nevertheless, Mother failed to take concerted measures to protect K.J. or the younger children, A.J., and C.J., from sexual abuse.
In addition, Mother failed to vigilantly protect the Children from sexual abuse by MGF, a known sexual predator. Mother was aware MGF had sexually abused Mother's adopted sister as a child. There was also evidence MGF had sexually abused Mother as a child. Mother nevertheless minimized MGF's history of child sexual abuse. This is reflected by Mother denying that MGF had sexually abused any child and by moving with the Children into MGF's home, even though Mother knew MGF was a sexual predator. There was evidence CFS had told her in 2009, during a previous dependency case, that no child could reside in MGF's home.
Although a month before the jurisdiction hearing, Mother moved out of MGF's home, the court reasonably found true the failure-to-protect allegations, based on Mother's history of turning a blind eye to the risk of the Children being sexually abused. There was also substantial evidence that Mother continued to minimize and disregard the Children's vulnerability to sexual abuse by Kyle and MGF.
Jurisdiction based on section 300, subdivisions (b), (d), and (j) does not require a child to actually suffer physical harm or abuse. There need only be a substantial risk that the child will be abused or neglected. (In re I.J., supra, 56 Cal.4th at p. 773; In re Yolanda L., supra, 7 Cal.App.5th at p. 993 ["The juvenile court need not wait until a child is seriously injured to assume jurisdiction if there is evidence that the child is at risk of future harm from the parent's negligent conduct."].)
Here, K.J. suffered serious sexual abuse over a prolonged period of time and there was substantial evidence that her younger siblings, A.J. and C.J., were at substantial risk of also being sexually abused, based on Mother's history of failing to protect the Children from sexual abuse. The court thus reasonably found that it was reasonably likely she would continue to do so in the future. We therefore conclude there was sufficient evidence to support jurisdiction over the Children based on the finding Mother failed to protect the Children from the risk of sexual abuse (§ 300, subd. (b)(1)), and based on the undisputed allegations that Kyle sexually abused K.J. (§ 300, subds. (d), (j)).
IV.
BYPASSING REUNIFICATION SERVICES
Mother contends the juvenile court erred in denying her reunification services under section 361.5, subdivision (b)(6), commonly referred to as the reunification services bypass provision.
A. Applicable Law Regarding Bypass Provision
Section 361.5, subdivision (b)(6)(A) provides that reunification services need not be provided to a parent when the court finds, by clear and convincing evidence, that "the child has been adjudicated a dependent pursuant to any subdivision of [s]ection 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 . . . , as defined in this 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." (Italics added.)
Section 361.5, subdivision (b)(6)(B) defines "severe sexual abuse" as specified abusive sexual acts "between the parent . . . and the child or a sibling or half sibling of the child, or between the child or a sibling or half sibling of the child and another person . . . with the actual or implied consent of the parent or guardian." (Italics added.) By its express terms, section 361.5, subdivision (b)(6) thus "applies to a parent who gave actual or implied consent to the sexual abuse of the child by another person." (Amber K. v. Superior Court (2006) 146 Cal.App.4th 553, 561 (Amber K.).)
"It is apparent that the infliction-of-harm language used in the reunification bypass provision is much more narrowly tailored than the broad failure-to-protect language of section 300(b), which reflects that a failure-to-protect finding does not necessarily equate with an infliction-of-harm finding for purposes of denying reunification services." (K.F. v. Superior Court (2014) 224 Cal.App.4th 1369, 1386.)
"We affirm an order denying reunification services if the order is supported by substantial evidence. [Citation.]" (In re Harmony B. (2005) 125 Cal.App.4th 831, 839.) Mother bears the burden of establishing there was insufficient evidence to support the order denying her reunification services. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
B. Actual or Implied Consent
Mother argues the juvenile court erred in denying her reunification services under the bypass provision, section 361.5, subdivision (b)(6), because she did not give actual or implied consent to Kyle sexually abusing K.J.
Section 361.5, subdivision (b)(6) requires clear and convincing evidence that, either the parent who is denied reunification services sexually abused his or her child, or the child was sexually abused by another person, with the consent of that parent. Here, it is undisputed that neither parent sexually abused the Children. The only basis upon which the court denied Mother reunification services under section 361.5, subdivision (b)(6) was that she impliedly consented to Kyle sexually abusing K.J. We conclude there was insufficient evidence to make such a finding.
The juvenile court acknowledged there was no evidence that Mother had actual knowledge Kyle was sexually abusing K.J. The court nevertheless found that Mother provided implied consent to Kyle abusing K.J. because Mother "should have known, [had] knowledge, if you will, or [had] some ability to know and just [had] blinders on and allow[ed] it to go on and on." The court added that it was "very difficult for the Court to believe" that Mother did not know what was going on between Kyle and K.J.
The court's comments reflect that the juvenile court recognized that Mother was oblivious to Kyle sexually abusing K.J., and the court concluded Mother was negligent in not supervising and protecting K.J. Mother's negligence, however, is insufficient to support a finding Mother impliedly consented to Kyle sexually abusing K.J. The court's comment that it found it hard to believe Mother did not know anything was going on between Kyle and K.J. indicates that the court did not find clear and convincing evidence that Mother knew of the sexual abuse or consented to it. Without such clear and convincing evidence, bypassing reunification services for Mother was improper.
Mother's reliance on Amber K., supra, 146 Cal.App.4th 553 is misplaced. In that case, the father sexually abused his daughter. The mother was denied reunification services under section 361.5, subdivision (b)(6) based on a finding that she impliedly consented to the sexual abuse. (Amber K., supra, at p. 563.) Amber K. is factually distinguishable in that the mother in Amber K. was aware that the father had sexually abused their oldest son seven years before the daughter's abuse. In addition, the older son testified that every time the father had sexually abused him (18 times), the son told his mother. (Id. at p. 560.)
In Amber K., the father's sexual abuse of his daughter occurred when the mother permitted the father, who was no longer living with the mother, to stay for several days at her home. During that time, the mother failed to supervise and protect the daughter from the father, resulting in the father sexually abusing her. The father's unsupervised presence in the mother's home violated a juvenile dependency court order requiring the father's visitation to be supervised and prohibiting overnight visits. The father's unsupervised access to the children also violated the father's probation, requiring his visitation to be supervised. The daughter testified that, even after she told her mother that the father had sexually abused her, the mother allowed the father to continue to visit. (Amber K., supra, 146 Cal.App.4th at p. 560.)
Here, unlike in Amber K., there is no evidence that, prior to the sexual abuse, Mother knew Kyle was a sexual predator or had sexually abused K.J. or any of Mother's other children. There was also no court order prohibiting Kyle from having unsupervised access to the Children. The juvenile court stated it based, in part, its implied consent findings on evidence that, after K.J. reported that Kyle had sexually abused her, Mother made the Children accessible to Kyle. For instance, Mother brought K.J. to a hearing in Kyle's rape case and Mother permitted Kyle to speak on the telephone to A.J. and C.J. while Kyle was incarcerated for raping K.J. Although these incidents show Mother was insensitive, negligent and oblivious to the possibility Kyle was "grooming" A.J. and C.J. for future sexual abuse, the evidence was insufficient to support a finding Mother impliedly consented to Kyle sexually abusing the Children.
We recognize there was substantial evidence the Children were at risk of being sexually abused if left in Mother's care, thus supporting jurisdiction over the Children. But the evidence is insufficient under section 361.5, subdivision (b)(6) to show Mother impliedly consented to the Children being sexually abused. The evidence shows, at most, that Mother was extremely negligent in not adequately protecting the Children from sexual abuse. While arguably Mother should have reasonably known Kyle was sexually abusing K.J., and he and MGF posed a risk of sexually abusing the other children, there is insufficient evidence of Mother impliedly consenting to such abuse.
Furthermore, there was evidence that K.J. made a concerted effort to conceal that Kyle was sexually abusing her. On one occasion, when K.J. felt compelled to report that she had been sexually abused in 2015, she misrepresented that the perpetrators were two strangers, when Kyle was the actual perpetrator. When K.J. eventually reported in 2019, that Kyle had been sexually abusing her for years, K.J. stated that she did not disclose the sexual abuse sooner because she did not want to put "extra stress on her parents" and "out of fear of it ruining her family."
In dicta, the court in Tyrone W. v. Superior Court (2007) 151 Cal.App.4th 839, 848, concluded that section 361.5, subdivision (b)(6) does not authorize bypassing reunification services for a parent who did not know that a child was physically abused or injured, even though the parent should have reasonably known of the abuse or injury. The Tyrone W. court noted that "The Legislature did not intend subdivision (b)(6) to apply to deny reunification services to a negligent parent; rather, the parent must have been complicit in the deliberate abuse of the child." (Id. at p. 843.) The court further stated that "the statutory language in section 361.5, subdivision (b)(6) is clearly stated, and does not authorize the court to deny reunification services to a negligent parent, that is, a parent who did not know the child was being physically abused or injured (although the parent should have reasonably known of the abuse or injury)." (Id. at p. 848.)
Here, there was evidence Mother was negligent in failing to protect the Children from sexual abuse, resulting in K.J. suffering serious sexual abuse for many years, and there remains the risk the Children may be exposed to sexual abuse in the future if placed in Mother's care. However, there was insufficient evidence Mother impliedly consented to sexual abuse of the Children. We therefore conclude that, although the evidence is sufficient to support jurisdiction under section 300, subdivision (b)(1), there is insufficient evidence to support the juvenile court's disposition order bypassing reunification services for Mother under section 361.5, subdivision (b)(6).
V.
DISPOSITION
The jurisdiction order declaring the Children dependents of the court is affirmed. The disposition order denying Mother reunification services under section 361.5, subdivision (b)(6) is reversed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
Acting P. J. We concur: FIELDS
J. RAPHAEL
J.