Opinion
F085610
04-28-2023
B.B., Petitioner, v. THE SUPERIOR COURT OF FRESNO COUNTY, Respondent; FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Real Party in Interest.
E. Nicholas Hansen for Petitioner. No appearance for Respondent. Daniel C. Cederborg, County Counsel, and Carlie Flaugher, Deputy County Counsel, for Real Party in Interest.
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for extraordinary writ. Super. Ct. Nos. 22CEJ300274-1, 22CEJ300274-2, 22CEJ300274-3, 22CEJ300274-4, Mary Dolas, Judge.
E. Nicholas Hansen for Petitioner.
No appearance for Respondent.
Daniel C. Cederborg, County Counsel, and Carlie Flaugher, Deputy County Counsel, for Real Party in Interest.
OPINION
THE COURT[*]
Petitioner B.B. (mother) petitions for extraordinary relief pursuant to California Rules of Court, rule 8.452. She seeks review of the juvenile court's orders denying family reunification services for her now eight-year-old daughter, A.B., and five-, three- and one-year-old sons, E.L., O.L. and N.L., respectively under Welfare and Institutions Code section 361.5, subdivision (b)(6) (severe sexual abuse) and setting a permanency planning hearing under section 366.26 for May 22, 2023. Mother contends the juvenile court erred in denying her reunification services because there was insufficient evidence that she was aware her husband, Juan L., was sexually abusing A.B. and she failed to act. She seeks a writ directing the juvenile court to provide her reunification services. She also requests a stay of the section 366.26 hearing, pending our review. We deny the petition and request for a stay.
Statutory references are to the Welfare and Institutions Code.
PROCEDURAL AND FACTUAL SUMMARY
The Referral
On September 7, 2022, a sheriff's deputy responded to the elementary school where then seven-year-old A.B. attended in response to a report of physical and sexual abuse by her stepfather, Juan L. A.B. said she lived with mother, Juan and her three brothers in a small trailer. She complained about the cleanliness of the home, stating," 'the kitchen is full of trash and it's hard to get into the fridge.'" She said the entire family slept in one room. Mother worked at night and Juan stayed at home and played video games. She complained of having to take care of her brothers. If they caused trouble, Juan punished her by hitting her with a thin brown belt on her back and legs or locking her in a room.
A.B. told the deputy the entire family was home the night before and Juan" 'touched her inappropriately down there'" over her underwear. Using a doll, she pointed to the genital region between the doll's legs. She believed Juan touched her because mother was not there for him to touch. When the deputy pointed out she said mother was home, she said it must have been another night when she was not home, adding," 'Dad has touched me plenty of times, like a hundred times.'" She also stated Juan struck her with a belt on the legs the night before. However, there were no visible injuries on her legs. She stated she and Juan showered together at their home and the grandparents' home next door. Juan touched her while in the shower and told her" 'to keep it a secret.' "
A.B. did not want to live with her family anymore. She wanted to live with her cousins who lived in a nice house, had lots of toys and were treated well by their parents. She did not like having to care for her brothers who hit her. At the conclusion of the interview she said to the deputy," '[C]an I come live with you? You look like a nice person.' "
Mother told the deputy she and Juan married in February 2017. Although Juan is not A.B.'s biological father, A.B. had never known any other man to be her" 'dad.'" Mother and Juan had three children together and mother was pregnant with their fourth child. Juan's uncle owned the property where they were living. When they moved into the trailer in 2019 there was a lot of trash inside and out. She and Juan had been trying to clean it up but they did not have the money. She began working at a fast-food restaurant two weeks before and Juan stayed home with the children. They slept in one bedroom. She, Juan and N.L. (the baby) slept on the queen bed. E.L. and O.L. slept on the bottom of a bunk bed and A.B. slept on top. Mother and Juan tried to instill in A.B. a sense of responsibility by having her feed, change and put the baby to bed, watch the other two children while she and Juan worked around the house and take care of one of their several dogs. Mother denied any history of drug use and denied Juan had any history of drug use, arrests or sexual or physical abuse.
Catalina, the girlfriend of Juan's father, and Susana, Juan's sister, were interviewed together. Susana interpreted for Catalina who is Spanish speaking only. On September 4, 2022, while at a family gathering, Catalina told Susana she noticed A.B.'s behavior was different. She was no longer the happy little girl she knew but rather" 'closed and quiet.'" She asked Susana to speak to A.B. because of the language barrier. Susana asked A.B. if Juan ever touched her inappropriately. A.B. grabbed her vaginal area, stating," '[H]e touches me here when we shower.'" She also stated," '[S]ometimes he sticks it in my butt and it hurts.'" She did not specify what Juan stuck in her anus. She did not elude to having been penetrated vaginally with his penis, finger or some other object. Susana also detected an abnormal vaginal discharge and foul odor coming from A.B.'s vaginal area. Other than the foul odor and discharge, Susana did not observe any signs A.B. was beaten or physically abused.
Susana had never been close to Juan and prior to September 2022, she had not spoken to him for about two years. In his late teens and early twenties, he was known to" 'date'" girls between the ages of 13 and 14. She believed Juan was capable of sexually abusing A.B. given his history with young girls.
The deputy placed a protective hold on the children and notified the Fresno County Department of Social Services (department). A.B. told the investigating social worker Juan sexually abused her while mother was at work. She described being forced to masturbate him and being sodomized by him. He made her lie down and put his" 'private area'" " 'up her butt. '" She told him to stop because it hurt a lot but he did not. The children were taken into protective custody and placed together in foster care.
Mother did not believe Juan would sexually abuse any of the children. Juan wept when the children were removed but did not want to address the allegations. The home was extremely dirty, with dirty clothing, dirty diapers, animal feces, soda bottles and food strewn about. There were no clear walkways and the baby's bouncer was stained and did not appear sanitary.
The department filed a dependency petition on September 9, 2022, alleging the children came within the juvenile court's jurisdiction under section 300, subdivision (b)(1) (failure to protect) and (d) (sexual abuse) because Juan sexually abused A.B. and mother knew or reasonably should have known and failed to protect her. It also alleged the parents failed to provide a safe and clean home.
The Detention Hearing
The juvenile court appointed counsel for mother and Juan who were present at the detention hearing on September 12, 2022. They denied the allegations. The court ordered the children detained and offered mother parenting, mental health and domestic violence services. The court also ordered mental health services for the children and supervised visitation for the parents and set a jurisdictional/dispositional hearing for October 10, 2022.
On September 26, 2022, A.B. participated in a forensic interview and provided more detail about her home life. She described rat infestation and said she had to shower and clean her bed every day because of the rat droppings on her bed. Juan hit her with a belt on the head, which made her dizzy. She believed she passed out at one point. Another time while mother was at the store with her brothers, Juan took off her clothes, pushed her on the bed, and sodomized her. He" 'pushed really hard and it made her cry because it hurt really bad.'" He then flipped her onto her back and penetrated her" 'area,'" her term for vagina. He masturbated and she could feel the" 'slime drip down her area.'" He then performed oral sex on her. Another time, the family was in a room and Juan took her into the kitchen and removed her clothing. He made her stand against the refrigerator while he put his" 'area'" in her mouth and rubbed her breasts. He laid down on the table and forced A.B. to" 'put her mouth on his area, while he forced her head up and down.'" Juan laid A.B. on her back on the floor and penetrated her" 'area'" while touching her breast. She tried unsuccessfully to bite him. At some point, he performed oral sex on her. Her younger brother, E.L., saw what was happening and pulled out his" 'private.'" A.B. did not tell mother because she did not want to get in trouble or cause her parents to fight.
On October 4, 2022, social workers from the department met and determined the circumstances of A.B.'s sexual abuse warranted denying mother and Juan reunification services under section 361.5, subdivision (b)(6). As part of its analysis, the department applied the factors required by section 361.5, subdivision (i) for determining whether reunification services would benefit the children; i.e., the specific act or omission and circumstances of the abuse, the severity of the emotional trauma suffered by the children, any history of abuse of other children by the offending parent, the likelihood the children may be returned to the offending parent with no continuing supervision and whether the children desired to reunify with the offending parent. Regarding the likelihood the children could be returned to mother's custody, the department found it concerning that mother was sexually molested as a child but when asked whether she believed her daughter, she said," 'It's complicated.'" Because she had not stated she believed A.B., the department did not believe she could protect her children. The parents were informed of the department's recommendation to deny them services.
The Initial Jurisdictional/Dispositional Hearing: October 10, 2022
The department recommended the juvenile court adjudge the children dependents as alleged in the petition and deny mother and Juan reunification services under section 361.5, subdivision (b)(6) and A.B.'s alleged father under section 361.5, subdivision (a).
Mother and Juan through their attorneys asked the juvenile court to transfer the case to their new counties of residence at the hearing on October 10, 2022. Mother was moving to San Bernardino County to live with her mother and Juan planned to move to Riverside County. The court deferred the transfer issue and set a settlement conference on January 18, 2023, and a contested jurisdictional and dispositional hearing on January 23, 2023. The court found the whereabouts of A.B.'s alleged father, D.H., were unknown. The matter was confirmed for trial at the settlement conference hearing.
In an addendum report prepared for the contested hearing, the department reported mother was participating in a parenting class, which she was scheduled to complete on January 17, 2023. She completed five of the 52 sessions required to complete the child abuse intervention program, and completed a mental health assessment but was not referred for mental health services. She was living with her mother in Yucca Valley, California and seeking employment. Juan was living with his mother and working part time. The department advised against transferring the case before services could be established because E.L. and O.L. were receiving mental health services in Fresno and Madera Counties and Madera County was working on obtaining home supportive services for them. They were also having behavioral problems. E.L. was exposing his private parts and throwing chairs. He did not want to do his homework and became physically aggressive toward anyone who tried to make him. He urinated all over his room, including the dresser drawers, broke a window, broke all the toys at the foster home, punched, kicked, bit and hit his siblings and care providers and refused to listen. O.L. exposed himself to people in the home, hit, kicked and bit his siblings and others in the home. The care provider tried administering time outs, taking things away and other forms of discipline without success.
The Contested Jurisdictional/Dispositional Hearing: January 23, 2023
Mother testified she worked five days a week from 5:00 p.m. to 1:00 a.m. The children were asleep when she got home at 3:00 a.m. She helped A.B. get ready for school in the morning around 6:30 a.m. to 6:40 a.m. when A.B. left to catch the bus. A.B. returned home from school around 3:30 p.m., which was when mother left for work. Mother would see her walking home as she drove away. Mother's work impeded her ability to spend time with the children and clean the house. Juan was supposed to clean the house but A.B. helped him.
Mother denied seeing Juan sexually abuse A.B. and A.B. did not tell her she was being sexually abused by him. She was not aware that A.B. was abused in the kitchen while she was home and she never suspected Juan was capable of abusing A.B. She denied seeing A.B. exit the kitchen without clothes on. Asked whether she remembered telling A.B. during a video visit on September 22, 2022, to stop contradicting herself and being mean, she said she did not remember but may have said it. She did not dispute that the house was in a bad condition and she remembered telling the social worker that A.B. made the accusations because she was tired of having responsibilities. However, she said she was distraught and she no longer felt that way. She believed A.B. whole heartedly and was committed to protecting her. She completed a parenting class and eight weeks of the domestic violence program. She and Juan were separated and she had no intention of resuming their relationship. Juan declined to testify but objected to the report.
The juvenile court sustained the allegations, ordered the children removed from parental custody and denied the parents reunification services as recommended. In denying mother reunification services, the court found mother's failure to inquire about A.B. under the circumstances amounted to active omission on mother's part and allowed the sexual abuse to continue. The court stated, "[T]he [c]ourt carefully reviewed the report, including the attachments, which is the police report as well as the information in the addendum report[ and considered] the information in the case cited by [mother's attorney (Tyrone W. v. Superior Court (2007) 151 Cal.App.4th 839)]. The [c]ourt did look at mother's behavior here. And the court was guided by the statements made in the police report as well as statements made in the jurisdiction disposition report in regards to mother's behavior. I think what was illuminating was the information in the police report wherein, I believe there were relatives who had initially visited the family and quickly noticed something, that [A.B.] was acting different[ly], didn't seem to be acting the way they had always known her to act as being a happy little girl. She seemed to be very closed and quiet. Something that was significant enough for them to take note and further question as to what had occurred or what happened to be aware of such a significant change in behavior. Apparently, they were also one of the relatives who was near [A.B.], appeared to notice what was described as an abnormal vaginal discharge with odor, which caused again the relative to make further inquiry. And that's where [A.B.] was able to identify not only some physical abuse that she suffered at the hands of [Juan] but she also began describing the sexual assault and abuse she experienced at the hands of [Juan].
"I know mother testified that she was working full time, five days a week from 5:00 p.m. and would get home about 3:00 a.m. so she had limited time seeing her children. But she did testify that she would see them every morning and help them get ready for school and that she trusted [Juan] to take care of the house as well as the children.
"Based on the information, again, in the reports and police report regarding the condition of the home and the neglect of the children in the poor condition of the home, I think these things were visible and had to have been aware or visible to mom, even during the hours that she was not working. Even [on] the days or the hours she was not working ... the neglectful state of the home, the neglectful behavior of the children, and the change in demeanor, including what relatives quickly noticed was a strong odor that they inquired about, should have been evident to mother. So there is this active omission by not inquiring, not pursuing what was going on during the day.
"Apparently the children also were able to say that [Juan] did nothing but play video games all day. Again, this should have been information readily available to mother to want to take action to figure out what was going on, how was this happening, or how is this affecting the children and how and why was [A.B.'s] demeanor and personality changing to the extent that it apparently did, from the information in the report.
"I understand that mother was working, doing the best she can. I find essentially engaged in some type of local blindness, not wanting to see what you don't want to see. But by engaging in local blindness, by not wanting to see what you don't want to see, did that inflict[] further harm on the children. And in this case[,] I think it's clear, based on the evidence, that it did. By failing to question or take action or notice that[] what mom testified that she anticipated or was expecting to be done or presumed or was expecting was occurring in regards to the care of her children and the care of her home was not being done, does require some action. And by failing to act, that act of omission continued the neglect to the home and continued the neglect of the children and continued the abuse of A.B."
Mother timely filed a notice of intent to file a writ petition. Juan also filed a notice of intent to file a writ petition in our case No. F085721. However, the writ was deemed nonoperative after he failed to file a writ petition.
DISCUSSION
Legal Principles: Section 361.5, Subdivision (b)(6)
As a general rule, when a child is removed from parental custody under the dependency laws, the juvenile court is required to provide a parent family reunification services. (§ 361.5, subd. (a).) There are exceptions, however, set forth in section 361.5, subdivision (b) that allow the juvenile court to deny a parent reunification services. (Melissa R. v. Superior Court (2012) 207 Cal.App.4th 816, 821.)
The juvenile court denied mother reunification services under section 361.5, subdivision (b)(6)(A), which applies when the juvenile court finds by clear and convincing evidence that the child was adjudicated a dependent pursuant to any subdivision of section 300 as a result of severe sexual abuse to the child caused by a parent and the court makes a factual finding that it would not benefit the child to pursue reunification services with the parent. "Severe sexual abuse" under the statute, as relevant here, includes sexual intercourse or stimulation involving oral-genital or anal-genital contact between the parent and the child with the actual or implied consent of the parent. (§ 361.5, subd. (b)(6)(B).)
In determining whether reunification services will benefit the child pursuant to section 361.5, subdivision (b)(6), the juvenile court must consider any evidence it deems relevant, including the following factors: (1) the specific act or omission that caused the severe sexual abuse; (2) the circumstances under which the abuse was inflicted; (3) the severity of the emotional trauma the abuse caused; (4) any history of abuse of other children by the offending parent; (5) the likelihood the child may be safely returned to the care of the offending parent within 12 months with no continuing supervision; and (6) whether the child desires to be reunified with the offending parent. (§ 361.5, subd. (i).)
Additionally, section 361.5, subdivision (k) requires the court to "read into the record the basis for a finding of ... the infliction of severe physical harm" and "specify the factual findings used to determine that the provision of reunification services ... would not benefit the child."
We review a denial of reunification services for substantial evidence, however, bearing in mind the juvenile court was required to apply the heightened clear and convincing standard of proof. (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96.)
Substantial Evidence Supports the Juvenile Court's Denial of Services Order
Mother does not challenge the sufficiency of the evidence to support the juvenile court's jurisdictional findings that A.B. was sexually abused and her siblings were at risk of sexual abuse. Nor does she dispute that A.B. was severely sexually abused as defined in section 361.5, subdivision (b)(6)(B). Rather, she contends she was unaware that Juan was sexually abusing A.B. and the evidence on which the court focused (the unsanitary condition of the home, A.B.'s change in demeanor and bodily odors) was insufficient to find she gave actual or implied consent. We disagree.
Mother lived with Juan and four children in a small trailer and slept with them in one bedroom. A.B. reported that Juan sodomized her, had sexual intercourse with her, engaged in oral sex with her and forced her to masturbate him. The sexual abuse occurred in the shower, in the kitchen and on a bed with A.B. in a state of undress. She cried out in pain while being sodomized. Mother claimed not to know it was occurring because she worked nights, and interacted with A.B. only five to 10 minutes in the morning while she was helping her get ready for school. However, mother had only been working for about two weeks before A.B. disclosed the sexual abuse, which means she previously had more contact with A.B. while the abuse was occurring. Even if mother was not physically present in the home each time it occurred, she was present on at least one occasion when Juan took A.B. into the kitchen where he undressed her, engaged her in oral sex, vaginally penetrated her and touched her breasts. It is difficult to believe mother was unaware this was happening when she was in the next room. It is especially inconceivable when one considers the sexual abuse was so apparent that Catalina, who had much less contact, perceived that A.B. was being sexually abused by her change in demeanor and Susanna had only to get physically close to A.B. to detect that she emitted a smell of vaginal discharge. If a relative could detect these signs of sexual abuse, it is hard to believe that a mother who cared for her child each day would not notice it.
Further, the case mother cites, J.J. v. Superior Court (2022) 81 Cal.App.5th 447 (J.J.), is distinguishable. The mother in that case sought extraordinary writ relief from the juvenile court's order denying her reunification services under several subparagraphs of section 361.5, subdivision (b), including subparagraph (b)(6), because of severe physical harm to a child. (Id. at p. 455.) The child suffered significant head trauma while in the father's custody. (Id. at p. 451.) The mother was not at home at the time of the injury, having left after a disagreement with the father. (Id. at pp. 451, 454.) She was aware the father was an alcoholic and provided him alcohol on the night the child was injured. However, she did not have any concerns about him taking care of the children while he was under the influence of alcohol. She was also aware he consumed alcohol while taking medication and blacked out as a result. She knew he was" 'blacking out or not fully coherent'" when she left the children alone in his care. However, he had never harmed the children and she had never been afraid that he would. (Id. at p. 452.) On the evening the child was injured, the father sent the mother a picture depicting the child with a cut on his browbone. The mother contacted the father and told him to call an ambulance. Since she was three hours away, she called the paternal uncle. She testified at the dispositional hearing that the children were removed because the child was injured by an" 'accidental drop.'" She did not believe the father intentionally harmed the child. (Id. at p. 453.) A social worker testified the two older children were struck by father with a belt, according to one of the older children. There was no evidence presented, however, that the mother knew that any of the children were injured. (Id. at p. 454.) The juvenile court denied the mother reunification services under section 361.5, subdivision (b)(6) because, although the father was the perpetrator, the mother knew or should have known it was dangerous to leave the children in his care because of his mental state, alcohol use and prior physical discipline of the older two children with a belt. The court found she was complicit because she purchased the alcohol and did not intercede for the children. (Id. at pp. 454-455.)
The Court of Appeal granted writ relief, concluding substantial evidence did not support the juvenile court's denial of services order. (J.J., supra, 81 Cal.App.5th at pp. 458, 461.) The court concluded the mother's conduct did not constitute consent without further evidence she had knowledge the father was physically abusing the children or likely to abuse them and the evidence did not support that she had such knowledge. The court also concluded mother's failure to call the medical services did not constitute consent by omission because she told the father to contact them and believed it was being done. In addition, there was no evidence the child's injuries were made worse by any delay. (Id. at p. 457.)
Here, there is evidence mother knew or should have known that Juan was sexually abusing A.B. and yet she did not protect her from him and left her and her brothers in his care while she worked. Thus, unlike the mother in J.J., mother impliedly consented to the sexual abuse. Thus, the first prong of section 361.5, subdivision (b)(6) applies. As to the second prong, i.e., whether providing mother reunification services would benefit the children, the juvenile court found that pursuing reunification with mother would not benefit the children. The court did not read its basis for the finding into the record. However, mother does not challenge the sufficiency of the evidence to support the finding. Consequently, we need not address it and affirm the juvenile court's orders denying mother reunification services and setting a section 366.26 hearing.
DISPOSITION
The petition for extraordinary writ and request for a stay of the section 366.26 hearing are denied. This court's opinion is final forthwith as to this court pursuant to California Rules of Court, rule 8.490(b)(2)(A).
[*] Before Detjen, Acting P. J., Franson, J. and DeSantos, J.