Opinion
E070342
09-25-2018
In re M.O. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent; v. M.O., Defendant and Appellant.
Elena S. Min, under appointment by the Court of Appeal, for Defendant and Appellant Michelle D. Blakemore, County Counsel, and Dawn M. Martin, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J-272510, J272511) OPINION APPEAL from the Superior Court of San Bernardino County. Christopher B. Marshall, Judge. Reversed. Elena S. Min, under appointment by the Court of Appeal, for Defendant and Appellant Michelle D. Blakemore, County Counsel, and Dawn M. Martin, Deputy County Counsel, for Plaintiff and Respondent.
M.O. and E.O. were removed from their parents' custody when allegations that their father, Marcos O., had sexually abused a step-daughter from a relationship with another woman years earlier emerged. Father also had numerous convictions for alcohol related offenses. The San Bernardino County Children and Family Services Agency (CFS) filed a dependency petition under Welfare and Institutions Code section 300, subdivisions (b) and (d). At a contested jurisdictional hearing, the court made true findings on all allegations, removed the children from father's (and mother's) custody, ordered reunification services to mother, but denied services to father pursuant to section 361.5, subdivision (b)(6). Father appealed.
All further statutory references are to the Welfare and Institutions Code, unless otherwise stated.
Mother is not a party to this appeal.
On appeal, father challenges the denial of reunification services on the ground that section 361.5, subdivision (b)(6), may be invoked only when the sexual abuse involves a sibling or a half-sibling. CFS concedes. We reverse.
BACKGROUND
Because this appeal does not challenge jurisdictional findings or the removal of custody, we provide an abbreviated background.
Father has six children by three different mothers. Between 2005 and 2011, father, Marcos O., had a prior relationship with Sheila T., who already had a child from a prior relationship, K.P. With Sheila, father had two children, Ant.O and T.O., and father had primary custody of those two children. Later, father had a relationship with Vanessa L., by whom he also had two children, X.O. and El.O. Father's most recent relationship was with A.O., mother of the two minors involved in this matter. E.O., was six years old, and M.O. was four years old at the time the dependency was initiated.
In July 2017, CFS received a referral alleging general neglect against mother and father, due to lack of running water or electricity. A month later, on August 17, 2017, CFS received a referral alleging father had sexually abused K.P. by way of digital penetration, several times when she was between the ages of 7 and 12, between 2007 and 2012. The allegations came to light after K.P. had three panic attacks in connection with revived memories of the abuse during counseling sessions. A social worker investigated the allegations relating to both referrals; she found the residence met community standards, having running water and electricity, although the exterior area was littered with debris and three trailers. Regarding sexual abuse, father denied any molestation and none of the children had observed anything unusual or inappropriate. The maternal grandparents also denied having any concerns. Father thought K.P.'s mother made up the allegations just to gain leverage for child custody purposes.
Father also denied having a problem with alcohol, claiming he had not had anything to drink for two years, although he had a long history of convictions of alcohol related Vehicle Code offenses. His drivers' license was revoked, and he told a different CFS worker that he only drank on social occasions. In 2016, the parents faced child endangerment charges arising from an alcohol-related car accident in which the family car crashed into a fence while the children were in the car. Criminal charges against father were dropped because father reported that mother was driving at the time, although witnesses saw father driving.
A dependency petition was filed under section 300, subdivisions (b) and (d), based on mother's failure to protect the children, father's alleged sexual abuse of K.P., and father's pattern of criminal arrests and convictions for driving under the influence of alcohol. The children were originally detained with their respective mothers, but after it was learned that mother, A.O., had permitted unsupervised contact between father and the two children, an amended petition was filed. Upon issuance of a detention warrant, the children were detained from A.O. and placed with a non-relative extended family member (NREFM).
Subsequent investigation pending the jurisdictional hearing revealed that father had molested his step-sister when she was 5 and father was 13 and was rumored to have raped a girl when he was in high school. The paternal grandfather corroborated the report of the molestation of the step-sister and indicated that two younger children in the family also had been molested, so he cut father off from family functions and refused to allow father to spend time at the house. The paternal grandfather also reported that father had just called him and described the sexual acts with K.P. as "consensual."
In the jurisdictional reports and addenda submitted by the social worker in preparation for the jurisdiction hearing, the social worker recommended that reunification services be provided to mother, but denied as to father, pursuant to section 361.5, subdivision (b)(6).
The contested jurisdictional hearing took place over several days. The reports of the social worker, as well as all addenda and attachments thereto, were admitted into evidence without objection. In testimony, father admitted incurring a past driving under the influence conviction, and that his driver's license was revoked. Father invoked his right to remain silent when asked about any of the molestation allegations.
After considering the reports and the testimony, the juvenile court made true findings on all allegations of the petition. The children were declared dependents upon the court's finding they were persons described by section 300, subdivisions (b) and (d), and the court removed custody from both parents, continuing their placement in the home of the NREFM. The court approved a case plan and reunification services for mother, but denied family reunification services for father, pursuant to section 361.5, subdivision (b)(6). Father appealed.
DISCUSSION
On appeal, father's sole challenge relates to the propriety of the dispositional order denying him reunification services under section 361.5, subdivision (b)(6). Father argues that the language of section 361.5, subdivision (b)(6), applies only to a child who has been adjudicated a dependent "'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 or guardian,'" but that K.P. is neither father's child, nor a sibling, or a half-sibling of a child. CFS concedes the error. We agree.
The sole issue hinges on the definition of the terms "sibling" and "half-sibling" in section 361.5, subdivision (b)(6), which is a question of statutory interpretation subject to independent review. (In re Tanyann W. (2002) 97 Cal.App.4th 675, 678 (Tanyann W.); see also, In re M.C. (2011) 199 Cal.App.4th 784, 804-805.)
The primary task of statutory interpretation is to ascertain the intent of the Legislature so as to effectuate the purpose of the law. (Ed H. v. Ashley C. (2017) 14 Cal.App.5th 899, 905.) To determine legislative intent, the court must first look to the language of the statute, adopting its usual and ordinary meaning. (Ibid.) We are aided by the rule of statutory construction, "inclusion unius est exclusion alterius." (Creutz v. Superior Court (1996) 49 Cal.App.4th 822, 829; see also People v. Castoe (1978) 86 Cal.App.3d 484, 489 [fact that Penal Code §§ 1381 and 1381.5 while 1389 does not expressly refer to pending sentencing indicates the Legislature did not intend to require prisoners in foreign jurisdictions to be returned only for sentencing].) This maxim is not immutable, but its inapplicability relates to situations in which its operation would contradict a discernible and contrary legislative intent. (People v. Thurston (2016) 244 Cal.App.4th 644, 665.)
In Ed H., supra, the paternal great-grandparents sought an order for visitation with their great-grandchildren, invoking Family Code sections 3103 and 3104, which confer visitation rights to grandparents under certain conditions, but did not authorize great- grandparents to petition for visitation. The court reasoned that the statute's express reference to grandparents necessarily excluded great-grandparents, where great-grandparents were included in other provisions of the visitation statutes. (Ed H., supra, 14 Cal.App.5th at pp. 908-910.)
Turning to the question of whether the term "sibling or half-sibling," as used in section 361.5, subdivision (b)(6) includes step-children, there is no mention of step-children. The term "sibling" is defined in sections 362.1, subdivision (c) and 16002, subdivision (g), to mean "'a child related to another person by blood, adoption, or affinity through a common legal or biological parent.'" (In re Valerie A. (2006) 139 Cal.App.4th 1519, 1523.) The term "sibling" applies to biological siblings even after a sibling has been adopted, as well as to half-siblings. (Id. at p. 1524.) K.P. is not biologically related to father, so she is not a "child related to another person by blood, adoption or affinity through a common legal or biological parent."
In Tanyann W., the reviewing court addressed the identical issue posed here, that is, whether a child who is not biologically related to a parent is considered the "sibling" of a biological child, such that reunification services may be bypassed. In Tanyann W., two children came to the attention of the juvenile court when one of the children, the 14-year-old ward, reported rape and sexual abuse by her legal guardians, resulting in the removal of the ward and the biological child of the guardians. The two children were adjudicated dependents under section 300, subdivisions (b) and (d), and reunification services were ordered. CFS appealed that order.
There, CFS argued that the ward met the criteria to be considered the sibling of the biological child, giving rise to applicability of section 361.5, subdivision (b)(6)'s provision for denial of services in a case where sexual abuse has been committed respecting a child, a sibling, or half-sibling of the child. (Tanyann W., supra, 97 Cal.App.4th at p. 678.) In reaching its decision, the Fifth District Court of Appeal declined to extend the definition of sibling or half-sibling to non-related minors by examining the definition of "parent" in a related statute, which excludes stepparents in the class of persons denoted as parents for reunification purposes. (Tanyann W., supra, at p. 679, citing In re Jodi B. (1991) 227 Cal.App.3d 1322, 1328.) Applying the plain meaning of the word, the court concluded that the term "sibling" refers to "one of two or more individuals having one common parent." (Tanyann W., supra, 97 Cal.App.4th at p. 679.)
We cannot ignore the fact that Tanyann W. was decided in 2002, at least 16 years ago, and at least three years after section 361.5 became operative, giving the Legislature many opportunities to amend the statute if it intended a more expansive definition. Although not conclusive, it is a well-established principle of statutory construction that when the Legislature amends a statute without altering portions of the provision that have been previously judicially construed, the Legislature is presumed to have been aware of and to have acquiesced in the previous judicial construction. (Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1014-1015; Maricela C. v. Superior Court (1998) 66 Cal.App.4th 1138, 1145.)
Here, in the original version of section 361.5, as drafted in 1996, it did not mention siblings or half siblings. (Stats. 1996, c. 1083, (A.B. 1524), § 2.7, operative Jan. 1, 1999.) That original version merely authorized the bypass of reunification services for a minor who has "been adjudicated a dependent pursuant to any subdivision of Section 300 as a result of severe sexual abuse or the infliction of severe physical harm by a parent or guardian, as defined in this subdivision . . . ." (Ibid.) Before the statute even went into effect, the Legislature amended it in 1997, so that the first paragraph of subparagraph (6) of subdivision (b) of section 361.5 included the current language, applying the bypass provisions to a minor who has been adjudicated a dependent as a result of severe sexual abuse of the "minor, a sibling, or a half-sibling." (Stats. 1997, c. 793 (A.B. 1544), § 17, operative 1999.) The statute has consistently referred to siblings and half-siblings since its operative date.
The statute has been amended numerous times since 1997, but the Legislature has not revised the language of subsection (b)(6). The decision in Tanyann W. was issued in 2002, three years after its operative date. (Tanyann W., supra, 97 Cal.App.4th 675.) While in other circumstances legislative inaction would be deemed to be a "slim reed upon which to lean," such as where there has been legislative inaction over a period of only a few years (see Grosset v. Wenaas (2008) 42 Cal.4th 1100, 1111), the reed seems stronger where at least 19 years has elapsed since the language was adopted, without further change.
For this reason, we follow the conclusion reached by Tanyann W., and reverse the judgment as to the disposition, with directions to the juvenile court to formulate and adopt a case plan including reunification services for father.
DISPOSITION
The judgment is reversed as to the disposition only, with directions to formulate, adopt and order a case plan including family reunification services for father.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: SLOUGH
J. FIELDS
J.