Opinion
F083184
03-03-2022
In re D.X., a Person Coming Under the Juvenile Court Law. v. N.X. et al., Defendants and Respondents, D.X., Appellant. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent,
Jamie A. Moran, under appointment by the Court of Appeal, for Appellant. Brian C. Bitker, under appointment by the Court of Appeal, for Defendant and Respondent N.X. Maureen L. Keaney, under appointment by the Court of Appeal, for Defendant and Respondent B.F. Daniel C. Cederborg, County Counsel, and Lisa R. Flores, Assistant County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Fresno County. No. 21CEJ300180-1 Gary L. Green, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Jamie A. Moran, under appointment by the Court of Appeal, for Appellant.
Brian C. Bitker, under appointment by the Court of Appeal, for Defendant and Respondent N.X.
Maureen L. Keaney, under appointment by the Court of Appeal, for Defendant and Respondent B.F.
Daniel C. Cederborg, County Counsel, and Lisa R. Flores, Assistant County Counsel, for Plaintiff and Respondent.
OPINION
THE COURT[*]
Minor, D.X., appeals from the juvenile court's dispositional order granting her father, N.X. (father), reunification services after sustaining allegations under Welfare and Institutions Code section 300, subdivision (d) that he sexually abused her. D.X. contends the court should have denied father reunification services under section 361.5, subdivision (b)(6), which applies where the child has been severely sexually abused as defined in the statute and it would not benefit the child to reunify with the parent. D.X. contends that although the manner in which father sexually abused her is not specifically identified in the statute, the statute does not limit the specific acts of sexual abuse that the court can deem "severe." The court's failure to apply the statute in her case, she argues, is reversible error. We concur and reverse.
Statutory references are to the Welfare and Institutions Code.
PROCEDURAL AND FACTUAL SUMMARY
In May 2021, then nine-year-old D.X. told a classmate she was "raped" by fatherand it had just happened again. She said father "was always 'raping' her." A social worker from the Fresno County Department of Social Services (department) responded to the family home assisted by law enforcement. The parents were at work and D.X. was being cared for by her 21-year-old brother. The brother said he had no knowledge of anything inappropriate happening between father and D.X.
Father is D.X.'s maternal great uncle and adoptive father.
D.X. said father had been touching her inappropriately over her clothes since she was approximately six years old. It happened about 15 times and at least three times in the last several months. His touching made her feel uncomfortable and she did not feel safe alone with him. He would "get[] on" her from the front or the back and hug her. Sometimes he kissed her face on the cheek. She would tell him to get off. He complied after several seconds. When he got on top of her, she felt something "hard and pokey" in his private area. The officer drew a picture of a little girl on his notepad and asked D.X. to circle the area on the girl figure where father touched her. She circled the vaginal area. She said he grabbed her around the waist and pushed his body onto hers. It happened when her mother was not home or when she was in her bedroom by herself. Father sometimes came into her bedroom, laid on top of her and kissed her face. It gave her a "gross feeling." D.X. had only told her biological sister of the sexual abuse and a classmate when she was in second grade. She never told her mother or brother.
The police officer found probable cause to place a protective hold on D.X. because father's behavior was escalating and becoming more frequent as D.X. got older. The social worker took her into protective custody and placed her in foster care.
After meeting with the parents, the department decided to file a dependency petition because the parents did not believe D.X. was sexually abused and there were no relatives or close family friends who could take custody of her. The petition alleged father sexually abused D.X. and mother failed to protect her. (§ 300, subds. (b)(1) & (d).) The juvenile court detained D.X. pursuant to the petition, and offered the parents a parenting class and a mental health evaluation and recommended treatment. The court ordered visitation for mother but no contact for father. A jurisdictional/dispositional hearing was set for June 2021.
The department recommended the juvenile court sustain the allegations and order the parents to participate in reunification services, including therapeutic supervised visits for father. The parents had no known family law, child welfare or criminal history, although there was an open criminal investigation regarding the sexual abuse allegations. The department considered but rejected a recommendation the court deny the parents reunification services under section 361.5, subdivision (b)(6). Although the department was hesitant about the parents' ability to successfully reunify with D.X., father's conduct did not meet the severity of sexual abuse required by the statute. There was no stimulation involving genital to genital contact between father and D.X. or evidence the contact was for father's sexual gratification since the touching occurred over their clothing. In addition, D.X. never told mother about the touching. Since the department did not believe D.X. had been severely sexually abused, it did not opine whether she would benefit from reunifying with her parents. It did, however, evaluate the factors required by the statute. Some weighed in favor of finding a benefit (i.e., the abuse was not considered severe, D.X. was not exhibiting any symptoms of mental health disturbance, and the family had no prior child welfare history), and some weighed against finding a benefit (i.e., the prognosis for successful reunification within 12 months appeared to be poor and D.X. did not feel safe alone with father).
Section 361.5, subdivision (i) requires the juvenile court to consider any relevant evidence, including the following factors, in determining whether reunification services will benefit the child under paragraph (6) of subdivision (b): "(1) [t]he specific act or omission comprising the severe sexual abuse[;] … (2) [t]he circumstances under which the abuse … was inflicted[;] … (3) [t]he severity of the emotional trauma suffered by the child or the child's sibling or half sibling[;] (4) [a]ny history of abuse of other children by the offending parent or guardian[;] (5) [t]he likelihood that the child may be safely returned to the care of the offending parent or guardian within 12 months with no continuing supervision[; and] (6) [w]hether or not the child desires to be reunified with the offending parent or guardian."
Father's attorney objected to the juvenile court exercising its dependency jurisdiction at the jurisdictional hearing but did not offer any evidence or argument. The court sustained the allegations. Minor's counsel objected to the department's recommendation to provide father reunification services. He disagreed father's conduct did not fall within the statutory definition of severe sexual abuse just because it was not specifically identified in the statute. The statute expressly allowed for other types of sexual conduct by providing that severe sexual conduct was" 'not limited to'" the specific acts identified. The court set a contested dispositional hearing for August 9, 2021.
Prior to the hearing, an investigator for minor's counsel interviewed D.X. at her foster home. She enjoyed visiting her mother but did not want to visit father and did not feel safe around him. She was afraid he would sexually abuse her again. She was also afraid he may be angry that she disclosed the sexual abuse because he instructed her never to tell anyone what was occurring between them. She hoped to return to mother's care in the future but did not feel comfortable returning to father. She wanted father to apologize for sexually abusing her and to take responsibility for his actions. If he did, she might feel comfortable having supervised visits with him. She wanted her family to return to the way it was before the sexual abuse began.
Minor's counsel objected to providing father reunification services and visitation at the hearing on August 9, 2021. He argued the statute did not require sexual abuse in the worst ways such as penetration or rape or even touching under clothing. The Legislature left open the kind of conduct that constitutes sexual abuse so that the court could protect children and did not have to wait until very specific types of sexual abuse occurred. If the court found the statute applied, he did not believe it would benefit D.X. to reunify with father. Nor would it be in her best interest. He asserted that neither parent had accepted responsibility and he was afraid that she would acquiesce if the court ordered her to visit him even though she was afraid of him.
County counsel acknowledged a parent's conduct did not have to match the behavior described in the statute to be deemed severe sexual abuse but explained the department did not want to deviate from the Legislature's intent by including all sexual behavior.
The juvenile court concluded that father's conduct was not severe sexual abuse. The court stated,
"Of key importance to the [c]ourt is that these incidents [of father pushing his body onto D.X. and kissing her] … didn't last very long. Apparently, father got off of [D.X.] after just a few seconds. There is no apparent stimulation involving genital-to-genital contact, although it does appear that … [father] … had an erect penis at the time in some of these incidents.
However, there is no indication of thrusting or manipulation by either [D.X.] or father .… There is no indication of thrusting or manipulation of [D.X.'s] genitals through hand contact. [D.X.] does not appear to have any mental health symptoms. Although it may be unlikely that [D.X.] will return to father, I don't believe that that ends the story. We have to, I think, offer services and see what happens. There is no guarantee of reunification."
"There is also concern that the father has not taken responsibility. In my way of looking at this, there is no clearcut [sic] definition of some of these kind[s] of strange behaviors. It could even be described as 'abhorrent.' But I'm not in a position to say this is severe sexual abuse."
"I think one of the things to keep in mind is that even though this behavior cannot be condoned, it didn't escalate into anything beyond what's been described so far, which appears to be pushing his body onto [D.X.] for a few seconds and some kissing. Again, not acceptable behavior, but not behavior that I feel would satisfy the definition of severe sexual abuse."
The juvenile court ordered D.X. removed from parental custody, ordered the parents to participate in reunification services and granted the department discretion to arrange therapeutic supervised visits for father and extended visitation for both parents. The court set the six-month review hearing for February 7, 2022.
DISCUSSION
Section 361.5, subdivision (b)(6)
Section 361.5, subdivision (a) directs the juvenile court to order reunification services whenever a child is removed from parental custody unless one of the exceptions listed in subdivision (b) of section 361.5 applies. These exceptions are often referred to as "bypass" provisions. They reflect a recognition by the Legislature that it may be, as some courts have put it, "fruitless" to provide reunification services under certain circumstances. (Karen S. v. Superior Court (1999) 69 Cal.App.4th 1006, 1010.)
Section 361.5, subdivision (b)(6) permits the denial of reunification services when the child has been adjudicated a dependent under any subdivision of section 300 as a result of severe sexual abuse and the court finds it would not benefit the child to reunify with the parent. As relevant here, "severe sexual abuse," as defined by the statute, "may be based on, but is not limited to, sexual intercourse, or stimulation involving genital-genital, oral-genital, anal-genital, or oral-anal contact" between the parent and the child. (§ 361.5, subd. (b)(6)(B).)
Severe sexual abuse under section 361.5, subdivision (b)(6) also includes such contact between the child, the child's sibling or half sibling and "another person or animal with the actual or implied consent of the parent or guardian; or the penetration or manipulation of the child's, sibling's or half sibling's genital organs or rectum by any … inanimate object for the sexual gratification of the parent or guardian, or for the sexual gratification of another person with the actual or implied consent of the parent or guardian."
D.X. contends that although she was not sexually abused in the specific manner described in the statute, the intended broader application of the statute compelled a finding of severe sexual abuse in her case. Father contends D.X.'s analysis is unworkable because it encompasses any sexual abuse. Mother and the department contend substantial evidence supports the juvenile court's order providing father reunification services.
Standard of Review
Ordinarily, we review the juvenile court's determination whether one of the bypass provisions applies for substantial evidence. (In re B.D. (2008) 159 Cal.App.4th 1218, 1232.) However, where, as here, the statute's expansive language, "including, but not limited to," affords the juvenile court discretion to interpret the statute, we determine whether the court abused its discretion. (In re Marriage of Mullonkal and Kodiyamplakkil (2020) 51 Cal.App.5th 604, 613.)
"An abuse of discretion occurs when the ruling exceeds the bounds of reason. [Citation.] But, the exercise of discretion is not unfettered .… [Citation.] 'All exercises of discretion must be guided by applicable legal principles, … which are derived from the statute under which discretion is conferred. [Citations.] If the court's decision is influenced by an erroneous understanding of applicable law or reflects an unawareness of the full scope of its discretion, the court has not properly exercised its discretion under the law.'" (Eneaji v. Ubboe (2014) 229 Cal.App.4th 1457, 1463.)
"Accordingly, in determining whether the trial court has abused its discretion, we first determine de novo whether the trial court applied the correct legal standard when exercising its discretion." (In re Marriage of Mullonkal and Kodiyamplakkil, supra, 51 Cal.App.5th at p. 613.) In doing so, we consider "the legal principles and policies that should have guided the court's actions." (People v. Carmony (2004) 33 Cal.4th 367, 377.) We thus look to the proper interpretation of the statute to determine the intent of the Legislature when the law was enacted, beginning with the statutory language, and attributing to the words their plain, usual, ordinary, and commonsense meaning. (Jose O. v. Superior Court (2008) 169 Cal.App.4th 703, 706 (Jose O.).)"' "[E]very statute should be construed with reference to the whole system of law of which it is a part so that all may be harmonized and have effect." '" (Ibid.)
The Legislative Purpose of Section 361.5, subdivision (b)(6)
A legislative purpose of section 361.5, subdivision (b)(6) is to allow the juvenile court discretion to not order reunification services if the court finds services for the parent would not benefit a child who has been adjudicated a dependent child of the court as a result of the parent's infliction of severe sexual abuse, as defined by the statute. (Jose O., supra, 169 Cal.App.4th at p. 707.) "Statutory provisions enacted before this time had mandated reunification services in all cases for children more than five years of age except for a few very narrow circumstances. Section 361.5, subdivision (b)(6) freed the dependency court to 'exercise discretion based on consideration of the individual facts … [of] a case, under less restrictive guidelines.'" (Ibid.)
Although Jose O. dealt with "the infliction of severe physical harm" provision of section 361.5, subdivision (b)(6), its analysis of the legislative purpose equally applies to the "severe sexual abuse" provision. (Jose O., supra, 169 Cal.App.4th at p. 707.)
Application
Evidence in this case, credited by the juvenile court, established that father on 15 or more occasions over a period of approximately three years mounted D.X. either from the front or from behind, grabbed her around the waist and pressed his erect penis into her vaginal area or buttocks area over her clothes. He also kissed her on the face. She felt his penis as a "pokey" sensation and the sexual contact made her feel "gross." The juvenile court found father's behavior" 'abhorrent'" but could not find that it rose to the level of severe sexual abuse. Of particular importance to the court was that father's contacts with D.X. were brief, lasting only a few seconds, and there was no apparent stimulation involving genital-to-genital contact or thrusting or manipulation of D.X.'s genitals through hand contact. The court also considered that D.X. did not appear to exhibit any symptoms of mental health disturbance.
We conclude the juvenile court was unaware of the full scope of its discretion in determining what conduct constituted severe sexual abuse. In the court's view, father's conduct simply involved "pushing his body onto [D.X.] for a few seconds and some kissing." The court compared father's conduct to the specific acts of sexual abuse in the statute and decided it did not rise to that level. The reality, though, is that father subjected D.X. to years of sexual abuse, which had increased in frequency in the preceding few months. He mounted her, grabbed her around the waist and touched her vaginal area with his erect penis. The fact that he did not penetrate or manually stimulate her does not diminish the severity of sexual abuse he inflicted. Nor does the fact the incidents may have been short in duration diminish their severity when one considers the emotional trauma they wrought; D.X. never knew when father was going to sexually abuse her. As a result, she felt afraid and unsafe. We conclude on these facts the court abused its discretion in not finding father severely sexually abused D.X.
Having concluded the juvenile court abused its discretion in not finding father severely sexually abused D.X., we reverse and remand for the juvenile court to conduct a new dispositional hearing on whether reunification services would benefit D.X. D.X. urges us instead to make that determination based on the record before us. We decline to do so. Six months have passed since the juvenile court ordered services for father at the dispositional hearing in August 2021. We presume he has been participating in services during that time. Further, we are informed that the court continued services recently for father at the six-month review hearing in February 2022. Since the family's circumstances have surely changed in those intervening months, it is appropriate that the juvenile court determine whether continued reunification services would benefit D.X. based on the evidence available at the time of the new dispositional hearing.
DISPOSITION
The August 9, 2021 dispositional order granting father reunification services is reversed. The juvenile court is directed to conduct a new dispositional hearing and find that section 361.5, subdivision (b)(6) applies to father insofar as D.X. was adjudicated a dependent pursuant to section 300, subdivision (d) as a result of severe sexual abuse inflicted by father. The court shall determine and make a factual finding as required by section 361.5, subdivision (b)(6) whether it would benefit D.X. to provide father reunification services, considering any relevant information, including the factors set forth in section 361.5, subdivision (i). If the court determines that services would not benefit D.X., the court shall discontinue any further reunification services, unless the court finds by clear and convincing evidence pursuant to section 361.5, subdivision (c)(2) that reunification with father is in D.X.'s best interest. In all other respects, the court's findings and orders are affirmed.
[*] Before Poochigian, Acting P. J., Smith, J. and Meehan, J.