Filed 5/7/15 C.P. v. Super. Ct. CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
C. P. et al, No. H041924
(Santa Cruz County
Petitioners, Super. Ct. Nos. DP001547, DP001548,
DP002379)
v.
THE SUPERIOR COURT OF
CALIFORNIA FOR THE COUNTY OF
SANTA CRUZ,
Respondent,
SANTA CRUZ COUNTY HUMAN
SERVICES DEPARTMENT,
Real Party in Interest.
I.P. (a 15-year-old girl), E.N. (a 10-year-old boy), and N.L. (a 7-year-old girl)
(collectively, the minors) are the three children of C.P. (Mother). The minors were
placed in protective custody on October 29, 2014. At the time, there was a pending
investigation concerning alleged physical abuse of E.N. by Mother and J.L., Mother’s ex-
boyfriend and the presumed father of N.L. After the minors were placed in protective
custody, the Santa Cruz County Human Services Department (Department) filed three
juvenile dependency petitions on behalf of the minors under Welfare and Institutions
Code section 300.1 The Department alleged (1) the minors had suffered, or there was a
substantial risk they would suffer, serious physical harm inflicted upon them by Mother
and J.L. (§ 300, subd. (a)); (2) Mother and J.L. had failed to protect the minors (§ 300,
subd. (b)); (3) the minors had been sexually abused or there was a substantial risk they
would be sexually abused by J.L. (§ 300, subd. (d)) (§ 300, subd. (d)); and (4) I.P. and
E.N. had been left without any provision for support by their respective alleged fathers,
the whereabouts of whom were unknown (§ 300, subd. (g)). Detention of the minors was
prompted by incidents alleged to have occurred on or about October 20, 2014, in which
J.L. had struck I.P. in the face and later that evening while I.P. was sleeping on a couch,
had sexually abused her, causing I.P. to sustain injuries. The Department also alleged
that Mother and J.L. had failed to ameliorate problems that had resulted in the initiation
of two prior dependency proceedings in 2006 and 2010.
After a contested jurisdictional/dispositional hearing concluding on January 30,
2015, the court found the allegations true and sustained each petition. In its
jurisdictional/dispositional order for each case (collectively, the Order), the court found
by clear and convincing evidence pursuant to section 361.5, subdivision (b)(6) (hereafter,
§ 361.5(b)(6)) that reunification services should not be provided to Mother or J.L. based
upon J.L.’s severe sexual abuse of I.P. The court also set a selection and implementation
hearing under section 366.26 (hereafter, sometimes referred to as a .26 hearing or
permanency hearing) for May 19, 2015.
Petitioners Mother and J.L. seek a writ of mandate to compel the court to vacate
its Order. Mother challenges the court’s denial of her reunification services as to the
three minors, and J.L. challenges the denial of his reunification services as to N.L.
Mother and J.L. also seek an order staying the permanency hearings. They contend the
1
Further statutory references are to the Welfare and Institutions Code unless
otherwise stated.
2
court erred because there was no substantial evidence supporting its findings that (1) the
alleged actions of J.L. toward I.P. constituted severe sexual abuse, and (2) Mother
impliedly consented to J.L.’s severe sexual abuse of I.P.
We conclude that respondent court did not commit error in denying reunification
services to Mother and J.L. Accordingly, we will deny the petitions and deny the
requests to stay the permanency hearings.
FACTS AND PROCEDURAL HISTORY
I. Initial October 2014 Petitions and Detention Orders
On October 28, 2014, the Department filed three separate petitions alleging that
the minors came within the jurisdiction of the juvenile court pursuant to subdivisions (a),
(b), and (d) of section 300. In the petitions concerning I.P. and E.N., the Department also
alleged that subdivision (g) of section 300 applied. The Department alleged,2 among
other things, that J.L. physically disciplined the minors by striking I.P. and E.N., and as
recently as October 20, 2014, had struck I.P. in the face and caused her to sustain injuries.
J.L. had also “sexually abused [I.P.], including grabbing her breasts, and touching her
buttocks and vagina. The child sustained injuries due to the abuse and her struggle to get
away from [J.L.].” Mother also physically disciplined the minors by throwing objects at
them, hitting E.N. with a spoon, and pulling I.P.’s hair.
At the jurisdictional/dispositional hearing on January 30, 2015, discussed in detail,
post, the court on its own motion amended the petitions to conform to proof. The
amendments concerned the allegations under subdivision (d) of section 300, and
consisted of additional allegations that (1) J.L.’s conduct constituted severe sexual abuse
within the meaning of section 361.5(b)(6); (2) Mother failed to protect the minors from
2
The statements made in this paragraph and in the succeeding paragraphs of this
section are based upon the allegations made by the Department in its three petitions. For
simplicity and to avoid repetition, we have generally omitted the phrase “the Department
alleges in its petitions” in describing the allegations in the petitions.
3
such sexual abuse; (3) Mother knew or reasonably should have known the minors were in
danger of sexual abuse; and (4) Mother’s conduct constituted severe sexual abuse within
the meaning of section 361.5(b)(6).
Social Worker Tierney Long interviewed I.P. at her school on October 24, 2014,
along with Santa Cruz Deputy Sheriff Jeff Simpson. Long was also present for a separate
interview of I.P. by Detective Matthew Pursley on the same day. I.P. reported that one
week earlier, on October 17, 2014, while Mother was at work, J.L. had gotten very angry
with I.P. because her boyfriend had come over while she was watching her younger
siblings. J.L. slapped I.P.’s cheek; she reported that the slap did not leave a mark. E.N.
was present when this occurred. J.L. then took away I.P.’s cell phone, texted I.P.’s
boyfriend pretending to be I.P., and later terminated service to the phone. He also took
away I.P.’s makeup and hair straightener.
Later the same evening, I.P. was sleeping on the couch. She did not want to sleep
in the bedroom—typically shared by Mother, J.L., and the three minors—because J.L.
had been so angry with her. She was wearing a shirt, undershirt, and sweatpants. She
awakened around midnight when J.L. lay down beside her. She reported that J.L. “had
cuddled her about 5 times before and she said this was ok.” He held her for about five
minutes while she pretended to be asleep. J.L. then put his hands under her shirt and
under her bra “and was ‘grabbing her really hard.’ He grabbed her ‘whole boob.’ ”
“[I.P.] said that ‘he put his hands where they shouldn’t be.’ He put his hand under her
shorts and touched her rear area and her vagina.” I.P. said that J.L. had “touch[ed] her
vagina for 1 second and then he stopped because she was struggling and crying.” She
indicated she was “afraid J.L. would have penetrated her vagina with his finger if she had
not moved.” According to I.P., J.L. “finally stopped because she was struggling and
crying.” The incident lasted approximately 10 to 20 minutes. Long asked I.P. whether
anything like this had happened before; “[I.P.] said[,] never.” I.P.’s arm sustained a
scratch from J.L.’s fingernail when she struggled to get away from him. I.P. also said that
4
her breast was sore from J.L.’s having grabbed it. I.P did not tell her Mother about the
incident “because she was afraid . . . [Mother] would ‘freak out.’ ” I.P. said she did not
feel safe going home.
Deputy Simpson asked I.P. how she had sustained a “scar above the corner of her
right side of her mouth.” I.P. reported that on October 20, J.L. became very angry
because he thought I.P had taken E.N.’s iPod. J.L. “slapped her hard on the face twice
and she bled . . . inside her mouth.” (I.P. wore braces at the time.) She said she had not
taken the iPod and later helped her brother locate it in a closet. I.P. said that “[h]er mouth
was sore and swollen to the point that she could not eat or talk properly.”
I.P. also said that on October 21, J.L. “had a belt in his hand and he warned [I.P.]
that she ‘better not be acting like this.’ ” On the same day, I.P. told Mother she did not
want to go home because she was afraid of J.L. I.P. reported that Mother told J.L.
“to ‘stop hitting the kids because they will get taken again.’ ” Mother also “told I.P. not
to say anything because social workers would come talk to them and take them away
from home.” I.P. also told Deputy Simpson and Long that J.L. “ ‘mostly hits my
brother.’ ” She said J.L. strikes E.N. “hard enough to make him cry.” And she said that
J.L. pinches E.N., leaving bruises. I.P. indicated that “[J.L.] manipulates people. [She]
said that she would not feel safe going home now. Her mom is not safe either[;] ‘she is
scared of him.’ ”
Long performed a follow-up interview with I.P. on October 27, 2014. I.P. told
Long that Mother was present on the prior occasions when J.L. had cuddled her while
they were in the living room. I.P. confirmed that she slept in a bed with her sister (N.L.)
and J.L., and that Mother slept alone in the same room. Long “asked if she ever got
uncomfortable sleeping next to [J.L.] and she said [‘]yes[’] a few times ‘he got really close
to me,’ so she went to sleep on the sofa. [I.P.] said that . . . [in 2014, J.L. began to] lay
behind her and hold her tighter.” I.P. also told Long that J.L. “ ‘mostly pinches [E.N.] or
smacks him on the head or shoulder,’ ” and that he did so “once a week or once a day.”
5
She mentioned an incident in which J.L. had pinched E.N. hard, and she had told E.N. to
put ice on the injury. She also said that J.L. had slapped her approximately four times in
the past two years.
Long interviewed E.N. on October 27, 2014. E.N. told her that “ ‘[J.L.] yells at
[him] and sometimes hits [him] really hard.’ He hits him on the arm with an open hand.
[J.L.] also knocks him on the head” and pinches him. On at least one occasion, the
pinching left a bruise. E.N. confirmed that J.L. had slapped I.P. in the face. He told Long
that “[h]e slaps her super hard.” E.N. reported that “when [J.L.] ‘stopped hitting mom he
started hitting [the] kids more.”
In an interview on the same day, N.L. told Long that J.L. had struck I.P. in the face
because she had lied to him. “[N.L.] said that she was pretending to be watching
[television] because she was scared.” N.L. said I.P. was bleeding afterward.
Long interviewed Mother on October 27, 2014. Mother indicated she was aware
that I.P. had reported to her teacher that she had been sexually abused by J.L. Mother
asked Long why her two younger children were in protective custody. Long explained
there had been an allegation of physical abuse, and that it had been alleged that J.L. had
hit and pinched E.N., resulting in E.N. being bruised. Mother denied that the minors
were physically abused and said E.N. had fallen many times, which explained any
bruising. Mother admitted that J.L. had slapped I.P. on October 20, although Mother said
she had not observed it.
Long asked Mother if she were concerned about leaving the minors in the care of
J.L. because of his history of violence with both her and the minors. Mother responded
that she was not concerned because “he is a changed man.” Long asked Mother about
I.P.’s allegation that J.L. had sexually molested her. Mother responded, “ ‘I have no idea
why she said he touched her.’ ” Mother said she did not know why I.P. would be afraid to
tell her about the molestation. Long told Mother it was “concerning that she [did] not
believe her daughter. [M]other said that she [believed I.P.], but she [did] not want to pick
6
sides between [I.P.] and [J.L.]. She said that if [J.L. were] convicted then she will know it
[was] true but for now she [did not] want to side with her daughter if her daughter is
telling lies.”
Mother told Long that she and J.L. were no longer in a relationship, and that she
had had another boyfriend for two and one-half years. Mother indicated that J.L. did not
live with her. Mother told Long that she did not know where J.L. lived, but that he still
slept in the home two or three nights a week. Long asked Mother about the sleeping
arrangements. Mother indicated that J.L. slept in the same bed with I.P. and N.L., and
that Mother slept alone.
There were two prior dependency proceedings. During the two prior proceedings,
Mother and J.L. received family maintenance services from 2006 to 2008 and from 2010
to 2013. The family maintenance services included counseling, domestic violence
services, and parenting education.
On October 29, 2014, the court ordered the minors detained pursuant to
section 319, subdivision (b), with temporary care and custody vested with the
Department. The court ordered visitation with all three minors for Mother and visitation
with N.L. for Father.
II. Jurisdictional/Dispositional Hearing Report
The Department filed its jurisdictional/dispositional hearing report in the three
cases on December 16, 2014. The Department repeated the allegations in the initial
petitions concerning Mother and J.L., but also included substantial new material.
A. Interviews
Social Worker Long visited E.N. and N.L. at Del Mar Elementary School on
November 13, 2014. E.N. told Long he was doing well in his foster home placement. He
asked when he would be able to go home to Mother. Long told E.N. she was working on
getting family friends approved for placement, and E.N. said he would be “ ‘[p]retty
7
happy’ ” if he was able to stay with them. N.L. said she was doing well in her placement.
She told Long that “she wanted to ask her parents if they loved her and her siblings.”
Long met with I.P. at Watsonville High School on November 17, 2014, which was
her first day at the school. (A few days earlier, I.P. had indicated to Long that she “kept
having anxiety attacks” and was fearful that J.L. would unexpectedly show up at her high
school; she therefore asked to transfer to another school.) I.P. said she did not want to
have visits with Mother “because she felt that her mother was mad at her. She stated that
her mother always ha[d] a sarcastic tone when she talk[ed] on the phone. [I.P.] stated that
her mother had not yet given her any of her clothing or personal belongings.” I.P. also
told Long that “she wanted to share more of what had been going on under her mother’s
care. She stated that her mother [was] physically abusive to her and [E.N.]. She stated
that her mother [was] often frustrated when she [came] home from work and [would] hit
[E.N.]. She explained that her mother pull[ed E.N.’s] hair and ears. [I.P.] stated that the
last time her mother hit her was [sometime in 2013] when [I.P. had] got[ten] home late.
Her mother [had] pulled her hair, slapped her and threw her to the ground. She shared
that [J.L. was] highly abusive with [E.N.] and he hit[] him on a regular basis. [J.L.] hit[]
him on the mouth sometimes. He also pinche[d] him hard on the arms.” I.P. also told
Long that Mother’s statement that J.L. was not living in the home was untrue and that he
still had all of his belongings there. I.P. further said to Long: “ ‘I don’t want to go back
to my mom. I’m scared it will happen again. I like living in Watsonville with [my foster
parents]. I don’t think my mother can keep me safe. She works a lot and I have to take
care of the kids.’ ”
During an interview on November 14, 2014, Mother told Long “that she has to
believe that [I.P.] is telling the truth. She stated that she trusted [J.L.] and never thought
that he would be sexually inappropriate with [I.P.].” Mother said she has a close
relationship with I.P. She said J.L. was not living in the home, but he helped take care of
the children because she worked two jobs and went to night school. Mother indicated
8
that J.L. usually left when she came home at night, but he sometimes stayed the night.
She said the entire family slept in the same room.
Mother explained that J.L. liked sleeping with I.P. and N.L., with him sleeping
between the two girls. Long asked whether she felt comfortable with I.P. and J.L.
sleeping in the same bed; Mother said that she did not. Mother explained to Long that
she had asked J.L. why he slept in the same bed with I.P. and N.L. He told Mother “that
as long as he was around he was going to continue sleeping with them.” Long asked
Mother if “she had any concerns about [J.L.’s] close relationship with [I.P.] and [M]other
said [‘]yes.[’] She stated that she thought it was odd that he was buying [I.P.]
undergarments from Victoria’s Secret.” J.L. also kept track of I.P.’s menstrual cycle,
bought her tampons, and had bought pregnancy tests for her on two occasions when her
menstrual period was late.
Long attempted to arrange an interview with J.L. J.L.’s attorney indicated to Long
that she wanted to be present. Long proposed dates and times to J.L.’s attorney, but she
did not hear back from her.
The Department noted in its report that it had provided 18 months of family
maintenance services to Mother from June 2006 to March 2008 and an additional 30
months of services from November 2010 to August 2013. The Department had also
referred Mother to the Parents Center for counseling; referred J.L. to the Parents Center
for counseling and parenting classes; met with Mother and the minors; referred the
minors to Children’s Mental Health for an assessment; and provided visitation for Mother
with the minors.
B. Interviews with Law Enforcement
The Department in its report attached several crime/incident reports generated by
the Santa Cruz County Sheriff’s Office. The reports were based upon interviews of I.P.,
Mother, and J.L.
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Deputy Simpson reported on his interview with I.P. that occurred on October 24,
2014. The substance of what I.P. reported concerning J.L.’s sexual abuse of her on
October 17 was consistent with what Long had recited in the petition about the sexual
abuse. On October 26, 2014, Detective Matthew Pursley conducted a follow-up
interview with I.P. and summarized it in a report. I.P. recounted J.L.’s actions on
October 17. She indicated that (1) J.L. lay down beside her on the couch while she was
sleeping; (2) he “cuddled” her for approximately five minutes with his left hand and arm
under her left side and his right arm over her right side; (3) he moved his left hand under
I.P.’s shirt and bra and placed his hand on her left breast; (4) he grabbed her breast
“ ‘really hard’ ” for approximately three minutes (although she was not sure of the precise
amount of time because “she was crying and trying to get away”); (5) J.L. then moved his
hand down toward I.P.’s waist, pushed his right hand under her pants, shorts, and
underwear, and placed his hand over the top of her vagina; (6) because she was moving,
J.L.’s “hand was only on her vagina for a brief second”; (7) I.P. felt that had she not been
struggling, J.L.’s fingers would have penetrated her vagina; (8) I.P. continued to cry, and
J.L. told her to go into the bedroom; and (9) J.L. then went to work.
Deputy Simpson interviewed Mother on October 24, 2014. After he told her he
had been informed of past allegations that J.L. had abused the minors, Mother said she
had no knowledge of J.L. physically or sexually abusing the minors in the past few
months. She said all three minors got along with J.L. Mother said she worked during the
day and J.L. babysat the minors. She told Deputy Simpson that J.L. “was her ex and the
father of [N.L.],” and that he did not live with her and she did not know where he lived.
J.L. was interviewed by Detective Roy Morales of the Santa Cruz County Sheriff’s
Office on October 24, 2014. J.L. said that on October 18, after he had had an argument
with I.P. about her having a boyfriend over to the house without permission, he fell asleep
on a couch in the living room. He awoke to hear I.P. crying. J.L. told Detective Morales
that “[h]e asked her why she had lied about having someone over, as he lay next to her on
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the couch. He . . . plac[ed] his arms under [I.P.’s] body as he asked her why she was
crying. He told Detective Morales that he held [her] tightly and she would not have been
able to shake loose from his hug. . . . [I.P. told] him to leave her alone. [J.L.] placed his
hand under her shirt, skin to skin and closed his eyes.” J.L., in response to Detective
Morales’s questioning, said it was possible that his hand had touched I.P.’s breast while
he was hugging her. J.L. denied that he had grabbed her breast in a forcible manner. And
he denied I.P.’s accusation that he had placed his hand on top of her vagina.
C. Prior Proceedings and Referrals
In its report, the Department discussed two prior dependency proceedings and
other child welfare referrals in Santa Cruz County relating to Mother. In September
2005, the Department received a referral of alleged emotional abuse of I.P. and E.N. by
Mother and by E.N.’s father, G.N. It was alleged that G.N. had attempted to rape Mother
while she was holding E.N. (then age one). G.N. pulled Mother’s head, jerking it back
and forth. I.P. was in another room and did not witness the incident. I.P. told the
Department she was afraid G.N. would hurt them. Mother reported that previously, in the
summer of 2005, G.N. had kidnapped her, drove her into the country, and threatened her
with an ice pick. G.N. was arrested, law enforcement issued an emergency protective
order, and Mother was provided with domestic violence services and signed a contract in
which she agreed to protect her children and avoid contact with G.N.
The first dependency proceeding spanned from June 9, 2006, to March 4, 2008.
On June 9, 2006, the Department received a referral involving alleged physical abuse of
I.P. and E.N. It was alleged that E.N. (then age two) had twice exhibited suspicious
bruises on his face. The reporting party stated that Mother’s boyfriend, J.L., had been
taking care of E.N. and had indicated E.N. had fallen. It was reported that Mother had
“told someone, ‘[I]f you say something [about the bruising], I will blame you.’ ”
Domestic violence was also reportedly occurring in the home. J.L. denied that he had
struck E.N., but admitted to having spanked him in the past. Mother also denied that J.L.
11
had ever struck E.N., but she admitted that he had spanked him “on his bottom.” I.P. and
E.N. were declared dependents as a result of the reported physical abuse, and it was
further alleged there was a substantial risk of physical abuse of I.P and E.N. by Mother
and J.L.
While the first dependency proceeding was pending, the Department, on August 2,
2007, received a report involving an alleged substantial risk of emotional abuse of I.P.,
E.N., and N.L. by Mother’s boyfriend, J.L. Mother and J.L. had had an argument
because J.L. wanted to take the baby, N.L. (then seven weeks old), out of the home all
night. J.L. “bent back [M]other’s hand to get her to release the baby, but [she] did not
release her.” The three minors were present in the home at the time. J.L. left, but later
returned. He “was reported to be very controlling and threatened [M]other with taking
[N.L.] to Mexico.”
A period of 18 months of family services were offered to Mother during the first
dependency proceeding. The case was dismissed on March 4, 2008, after the Department
determined that Mother had made significant progress with therapy and domestic
violence education and had learned and had applied new parenting skills.
The second dependency proceeding spanned from November 1, 2010, to
September 9, 2013. “The Department received a referral alleging emotional abuse of
[N.L.] by her father, [J.L.], and general neglect of [the minors] by [Mother].” The
precipitating event occurred on October 30, 2010. On that date, J.L. accused Mother of
cheating on him, and he placed a belt around her neck and tightened it. He held it tight
for a minute. J.L. then cinched the belt tight around Mother’s neck a second time.
Mother did not lose consciousness, but found it difficult to breathe, and she sustained red
marks on her neck. The youngest child, N.L. (then three), witnessed part of the incident.
Mother called 911, and reported that J.L. had choked her for approximately five minutes.
J.L. was arrested, and Mother received an emergency protective order. The three minors
were declared dependents as a result of J.L.’s physical abuse of them and because of
12
Mother’s failure to protect the minors from physical abuse and exposure to domestic
violence.
As part of the second dependency proceeding, the social worker interviewed
Mother and provided some education about domestic violence. Mother was cooperative
but not fully focused on the conversation, often looking at her cell phone for incoming
text messages. “When informed about the referral possibility being arraigned in Court,
[Mother] sarcastically stated, ‘What are they going to have me do, the domestic violence
classes again[?]’ ”
While the second dependency proceeding was pending, the Department received
four reports of alleged physical abuse. The first report dated November 22, 2010,
involved alleged physical abuse of I.P. by Mother. It was reported that Mother had
slapped I.P in the face because she had refused to dance with Mother at a social event; the
blow left a mark on the girl’s cheek.
On January 31, 2011, the Department received a second report of alleged physical
abuse of E.N. (then seven) by Mother. According to the report, Mother had been mad at
E.N. for not having gotten ready for school and for not having had his belt fastened.
Mother reportedly struck E.N. with a shoe on his back, chest and legs. No bruises on the
boy were found. “[E.N.] indicate[d] that his mother disciplines him this way a lot.”
On March 8, 2012, the Department received a third report of alleged physical and
verbal abuse of E.N. by his father, G.N. The reporting party also said that Mother had
advised that G.N. was physically and verbally abusive to her and to I.P. It was reported
that G.N. struck E.N. hard on the head and locked him in a closet to punish him. I.P. and
E.N. also witnessed domestic violence perpetrated on Mother by G.N.
On June 29, 2012, the Department received a fourth report of alleged physical
abuse of the three minors by Mother. E.N. told a mandated reporter, “ ‘I don’t want to go
home[. M]y mom hits me all the time. She hits me more than my sisters.’ ” Both I.P.
and E.N. disclosed to the Department that they had been physically abused by Mother,
13
but neither exhibited noticeable injuries. I.P. said that she “wish[ed] . . . there ‘would be
no more hitting in the house.’ ”
The second dependency proceeding terminated September 9, 2013. The
Department had provided 30 months of family maintenance services during that
proceeding. At the time the case was closed, J.L. was no longer living with Mother and
the minors.
There were two reports of alleged physical abuse to the Department after the
second dependency proceeding terminated and prior to the initiation of the third
proceeding. On January 13, 2014, the Department received a report of physical abuse
and neglect of I.P. by Mother. I.P. reported that she had had a male friend over to the
house without Mother’s permission. When Mother’s boyfriend3 got home, he asked the
boy to leave and then informed Mother when she arrived. Mother began yelling at I.P.
and threw a shoe at her, striking her on the shoulder. Mother’s boyfriend took I.P.’s cell
phone and posted items on Facebook under I.P.’s name that made her friends so upset,
they came to the “house to beat her up. When [Mother] found out that some girls wanted
to beat up [I.P., Mother] told [I.P.] that she deserved ‘to get her ass kicked.’ ” I.P. also
reported that Mother and her boyfriend regularly went out at night and left I.P. in charge
of her two siblings. Mother would return in the early hours of the morning, or sometimes
would not come home at all.
On October 13, 2014, the Department received a report of alleged physical abuse
of E.N. by Mother and J.L. A mandated reporter advised the Department that E.N. had
been having trouble at school, and he had said that J.L. “yells a lot and hits [E.N.] with an
open hand on the back and bottom.” E.N. said this happened frequently with J.L. and “a
little” with Mother.
3
Although it is not specifically indicated in this portion of the report, it appears
the references to Mother’s “boyfriend” are to J.L.
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D. Criminal History and Paternity
The Department reported that Mother had no known criminal history. It indicated
that J.L.’s criminal history between June 2008 and October 2010 consisted of driving
without a license, manufacturing false government documents, providing false citizen
documents, forcible assault with a deadly weapon, and infliction of corporal injury on a
spouse or cohabitant. J.L. was arrested on November 19, 2014, and charged with
commission of a lewd act on a child 14 or 15 years old and more than 10 years younger
than the defendant (Pen. Code, § 288, subd. (c)(1)). The preliminary examination was
scheduled for December 15, 2014.
I.P.’s father, J.G., was never married to Mother. According to Mother, he was
never part of I.P.’s life. J.G.’s whereabouts were unknown. Mother also reported that she
did not know the whereabouts of E.N.’s father, G.N. Mother left G.N. in 2005 because of
domestic violence, and she had had no contact with him since that time.4
E. Placement
I.P. and N.L. were living with one foster family and were reported to be doing well
in their placement. E.N. was living with a family friend and was reported to be doing
better in that placement than he had with his initial foster care placement. The
Department reported that it did not appear that placement of the minors with any relatives
would be feasible.
As far as sibling placement was concerned, the Department indicated that the
minors had been raised together in the same home, had shared common experiences, and
had existing and close bonds. They expressed a desire to live together, but if that were
4
We note an inconsistency between Mother’s statement here that she had had no
contact with G.N. since 2005, and a reference by the Department earlier in its report that
there had been a referral on March 8, 2012, of alleged physical and verbal abuse of E.N.
by G.N.
15
not possible, they wanted to continue visiting each other. Maintaining the sibling
relationship was deemed to be in the minors’ best interests.
F. Visitation
The court had previously ordered supervised visitation of the minors by Mother a
minimum of two times per week. The social worker was given discretion to adjust the
frequency and duration of visitation, as well as supervision. There had been no concerns
expressed with Mother’s visitation of E.N. and N.L. But I.P. participated in only one
visit with Mother, and she told her foster parent afterward “that the visit ‘felt awkward.’ ”
The court had previously ordered that Father have supervised visitation of N.L. at
least once a week in a therapeutic setting, with the social worker having discretion to
adjust the frequency, duration, and supervision of visitation. No such visits had occurred
as of the time of the Department’s report.
G. Recommendations
The Department recommended that Mother be offered family reunification
services as to the three minors and that J.L. be offered reunification services as to N.L. In
doing so, the Department noted that it had provided family maintenance services on two
separate occasions. It said: “The Department is concerned that despite the amount of
services the family has received in the past, the parents continue to use physical
discipline with their children and sadly [J.L.] has now moved on to be sexually
inappropriate with [I.P. M]other denies that she hits her children and claims she was not
aware that [J.L.] was using physical discipline.” With respect to the alleged sexual abuse,
the Department indicated that “[M]other was aware that [J.L.] wanted to sleep [in the
same bed as I.P.] but continued to let it happen. The Department has grave concerns of
[M]other’s ambivalence about whether she believes [I.P.’s] disclosure.”
H. Supplemental Report
In a supplemental report filed January 28, 2015, the Department indicated that it
was recommending that Mother obtain a psychological evaluation to properly assess the
16
type of services that would be most beneficial to her. It noted that Mother had received a
total of 48 months of services in the prior dependency proceedings, and that prior to the
conclusion of the second proceeding, Mother had agreed that any visits by J.L. with N.L.
would not occur in the home. The minors advised the Department that, although Mother
had initially complied by not allowing J.L. to return to the home—and “[the minors]
trusted and believed that [M]other had made behavioral changes to ensure their safety”—
“shortly thereafter [M]other allowed [J.L.] to return to the family home.” The
Department noted that “[c]learly, [M]other’s extensive participation [in] previous services
and the total amount of time the Department has been involved with the family in the past
does [sic] not appear to have been sufficient to enable her to keep her children safe. The
Department feels that [M]other’s services must be individually tailored to assist her in
making effective behavioral changes to protect her children.”
III. Jurisdictional/Dispositional Hearing
A. Evidence
At the outset of the contested hearing, the Department reiterated that it was
recommending reunification services for Mother as to the three minors and for J.L. as to
his daughter, N.L. The minors’ counsel objected to providing services to Mother or J.L.,
claiming that services should be bypassed pursuant to section 361.5, subdivisions (b)(3)
and (b)(6). When the matter had initially come on for hearing the previous month,
minors’ counsel had also objected to Mother and J.L. receiving services. J.L.’s counsel
indicated that services should not be bypassed, but otherwise stated that—based upon
consultation with her client and his attorney in the pending criminal proceedings—she
did not intend to question any witnesses or call J.L. to testify.
The Department submitted into evidence its December 16, 2014 report and its
supplemental report. Mother introduced into evidence Parent Center reports concerning
Mother’s participation in counseling.
17
The minors’ counsel called Social Worker Jacquelyn de Santos as a witness.
De Santos testified that she was the author of the Department’s report and supplemental
report. She acknowledged that the Department had recommended that Mother submit to
a psychological evaluation so services could be specifically tailored to her. De Santos
confirmed that Mother had previously received 48 months of services that had included
individual counseling, domestic violence counseling and parenting classes. She also
confirmed that the service plans for the two prior dependencies were essentially the same.
After J.L. was released from incarceration, he received the same services in the second
dependency proceeding. The minors were not removed from Mother’s care in the two
prior proceedings. Mother successfully completed the case plans in the prior
dependencies and they were dismissed. But de Santos later testified that she would not
consider the second dependency to have been successfully completed, if, five months
after the case was dismissed, I.P. had reported that Mother was throwing things and
hitting her again.
De Santos testified that Mother had been participating in her current case plan.
She had been visiting with E.N. and N.L. twice per week, and the visitation supervisor
had indicated there were no concerns from the visits. But it had been reported to de
Santos that Mother had favored N.L. in the visits. Mother was also available for
visitation with I.P.
Mother also testified at the hearing. She testified that she had not thrown any
objects at the minors since the dismissal of the second proceeding. She also testified that
she disciplined the minors through time-outs. She had been participating in her case plan
through counseling and attending parenting classes. The parenting classes she attended
were focusing on parenting teenagers. She had visited twice with I.P. and wanted further
visits with her. But I.P. had said that she did not want to visit Mother, and I.P.’s
counselor had indicated that I.P. was not yet ready for visits. Mother testified that she
wanted to reunify with her children.
18
On cross-examination, Mother testified that if I.P. had said in January 2014 that
Mother had thrown a shoe at her and had struck her, I.P. would have been untruthful. In
the approximate 10 parenting classes Mother had attended in the second dependency
proceeding, she learned about parenting teens.
The court marked for identification and introduced as a court exhibit the final
judgment in the second dependency proceeding entered on August 12, 2013. That
judgment included an order concerning visitation of N.L. by her father, J.L., with
language as follows: “The father’s visits shall not occur in the mother’s residence.”
B. Decision
After argument, on January 30, 2015, the court orally announced its findings and
conclusions (discussed in detail, post). It concluded that J.L. had touched I.P.’s vagina
with his hand and almost penetrated her, and that this conduct was severe sexual assault
under section 361.5(b)(6). The court also concluded that Mother had given her implied
consent to J.L.’s sexual assault of I.P. within the meaning that statute. And it found by
clear and convincing evidence that the minors would not benefit from reunification
services. The court ordered that Mother’s visitation of the minors and J.L.’s visitation of
N.L. be “tapered from [the] current level[s]” to once a month. The court also ordered that
the permanency hearing be set for May 19, 2015. Finally, the court ordered the matter
continued to February 3, 2015, for entry of formal orders.
At the hearing on February 3, 2015, the court entered formal orders in the three
proceedings. The court, among other things, sustained the allegations of each petition;
adopted the findings as recited in the written orders; determined that reunification
services should not be provided to Mother as to the minors and should not be provided to
J.L. as to N.L.; based this bypass order on the finding by clear and convincing evidence,
pursuant to section 361.5(b)(6), that the minors were adjudicated dependents pursuant to
subdivisions (a), (b), and (d) of section 300 as a result of severe sexual abuse of I.P. by
J.L. with Mother’s implied consent to such severe sexual abuse; found that it was not in
19
the minors’ best interests that reunification services be offered or provided; and set
permanency hearings for May 19, 2015.
IV. Petition for Writ of Mandate
Mother and J.L. timely filed separate notices of intent to file writ petitions to
review the order bypassing services and setting a hearing under section 366.26. These
notices were filed under rule 8.450(e) of the California Rules of Court.5 Thereafter,
Mother and J.L. filed their respective petitions for writ of mandate with this court. (See
rule 8.452.) Mother and J.L. also sought a stay of the permanency hearings set for
May 19, 2015.
DISCUSSION
I. Applicable Legal Principles
A. Dependency Law Generally
Section 300 et seq. provides “a comprehensive statutory scheme establishing
procedures for the juvenile court to follow when and after a child is removed from the
home for the child’s welfare. [Citations.]” (In re Celine R. (2003) 31 Cal.4th 45, 52.) As
our high court has explained: “The objective of the dependency scheme is to protect
abused or neglected children and those at substantial risk thereof and to provide
permanent, stable homes if those children cannot be returned home within a prescribed
period of time. [Citations.] Although a parent’s interest in the care, custody and
companionship of a child is a liberty interest that may not be interfered with in the
absence of a compelling state interest, the welfare of a child is a compelling state interest
that a state has not only a right, but a duty, to protect. [Citations.] The Legislature has
declared that California has an interest in providing stable, permanent homes for children
who have been removed from parental custody and for whom reunification efforts with
5
All rule references hereafter are to the California Rules of Court.
20
their parents have been unsuccessful. [Citations.] This interest is a compelling one.
[Citation.]” (In re Marilyn H. (1993) 5 Cal.4th 295, 307.)
The court at a jurisdictional hearing must first determine whether the child, by a
preponderance of the evidence, is a person described under section 300 as coming within
the court’s jurisdiction. (§ 355, subd. (a).) Once such a finding has been made, the court
at a dispositional hearing must hear evidence to decide the child’s disposition, i.e.,
whether he or she will remain in, or be removed from, the home, and the nature and
extent of any limitations that will be placed upon the parents’ control over the child,
including educational or developmental decisions. (§ 361, subd. (a).) If at the
dispositional hearing, the court determines that removal of the child from the custody of
the parent or guardian is appropriate, such removal order must be based upon clear and
convincing evidence establishing that one of five statutory circumstances exists. (§ 361,
subd. (c).) One such circumstance is the existence of substantial danger to the child’s
“physical health, safety, protection, or physical or emotional well-being” if he or she were
returned to the home. (§ 361, subd. (c)(1).)
After it has been adjudicated that a child is a dependent of the juvenile court, the
exclusive procedure for establishing the permanent plan for the child is the permanency
hearing as provided under section 366.26. The essential purpose of the hearing is for the
court “to provide stable, permanent homes for these children.” (§ 366.26, subd. (b); see
In re Jose V. (1996) 50 Cal.App.4th 1792, 1797.)
B. Family Reunification Services
When a dependent child is removed from parental custody, the juvenile court is
ordinarily required to provide the parent with services to facilitate the reunification of the
family. (§ 361.5, subd. (a); see Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285,
303.) Where reunification services are ordered, they generally (subject to exceptions and
instances in which the period may be extended) begin with the dispositional hearing and,
for children three years or older, end 12 months thereafter. (§ 361.5, subd. (a)(1)(A).)
21
Although a parent may reasonably expect under most circumstances to receive
reunification services for at least the periods designated under section 361.5, subdivision
(a)(1), there is no entitlement to services for a prescribed minimum period. (In re Derrick
S. (2007) 156 Cal.App.4th 436, 445-450; In re Aryanna C. (2005) 132 Cal.App.4th 1234,
1242-1243.) Thus, “the juvenile court has the discretion to terminate the reunification
services of a parent at any time after it has ordered them, depending on the circumstances
presented.” (In re Aryanna C., at p. 1242.)
Reunification services are very significant, but parents have no absolute right to
receive them. As explained by one court: “The importance of reunification services in
the dependency system cannot be gainsaid. The law favors reunification whenever
possible. [Citation.] To achieve that goal, ordinarily a parent must be granted reasonable
reunification services. [Citation.] But reunification services constitute a benefit; there is
no constitutional ‘ “entitlement” ’ to those services. [Citation.]” (In re Aryanna C.,
supra, 132 Cal.App.4th at p. 1242.)
A court may order the bypass of reunification services altogether if one of sixteen
circumstances is established by clear and convincing evidence, as specified in subdivision
(b) of section 361.5. These exceptions “have been referred to as reunification ‘bypass’
provisions.” (Tyrone W. v. Superior Court (2007) 151 Cal.App.4th 839, 845 (Tyrone
W.).) One such circumstance is where the court finds that “[t]hat the child 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 to the child, a sibling, or a half
sibling by a parent or guardian, 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.” (§ 361.5(b)(6).) “These bypass provisions represent the
Legislature’s recognition that it may be fruitless to provide reunification services under
certain circumstances. [Citation.]” (Francisco G. v. Superior Court (2001)
91 Cal.App.4th 586, 597; see also In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478 [if
22
one of the exceptions under subdivision (b) applies, “the general rule favoring
reunification is replaced by a legislative assumption that offering services would be an
unwise use of governmental resources”].)
In most of the sixteen circumstances identified in subdivision (b)—including
subdivision (b)(6)—even if the court finds the circumstance to apply, it may order
reunification services if it finds by clear and convincing evidence that services are in the
child’s best interest. (§ 361.5, subd. (c); see In re Ethan C. (2012) 54 Cal.4th 610, 626.)
“A court called upon to determine whether reunification would be in the child’s best
interest may consider a parent’s current efforts and fitness as well as the parent’s history.
[Citation.] Additional factors for the juvenile court to consider when determining
whether a child’s best interest will be served by pursuing reunification include: the
gravity of the problem that led to the dependency; the strength of the relative bonds
between the child and both the parent and caretakers; and the child’s need for stability
and continuity, which is of paramount concern. [Citations.] The burden is on the parent
to show that reunification would serve the best interests of the child. [Citations.]” (In re
S.B. (2013) 222 Cal.App.4th 612, 622-623; see also In re Ethan N. (2004)
122 Cal.App.4th 55, 66-68.)
C. Standard of Review
We review an order bypassing reunification services to determine whether there is
substantial evidence to support the court’s findings. (In re Harmony B. (2005)
125 Cal.App.4th 831, 843.) “In so doing, we presume ‘in favor of the order, considering
the evidence in the light most favorable to the prevailing party, giving the prevailing
party the benefit of every reasonable inference and resolving all conflicts in support of
the order.’ [Citation.]” (In re G.L. (2014) 222 Cal.App.4th 1153, 1163-1164) Our role is
not to reweigh the evidence or to make credibility determinations. (A.A. v. Superior
Court (2012) 209 Cal.App.4th 237, 242.) But questions of statutory interpretation are
independently reviewed. (Ibid.) And “ ‘ “[t]he sufficiency of evidence to establish a
23
given fact, where the law requires proof of the fact to be clear and convincing, is
primarily a question for the trial court to determine, and if there is substantial evidence to
support its conclusion, the determination is not open to review on appeal.” [Citations.]’
[Citation.]” (Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 880-881, quoting
Crail v. Blakely (1973) 8 Cal.3d 744, 750.)
However, where the court finds by clear and convincing evidence that one of the
bypass provisions of subdivision (b) applies, and the court does not find by clear and
convincing evidence under subdivision (c) that reunification services are in the child’s
best interest, we review the latter determination for abuse of discretion. “A juvenile court
has broad discretion when determining whether . . . reunification services would be in the
best interests of the child under section 361.5, subdivision (c). [Citation.]” (In re
William B. (2008) 163 Cal.App.4th 1220, 1229.)
II. Order Bypassing Reunification Services
A. Arguments of the Parties
Mother challenges the dispositional Order bypassing reunification services. She
contends the court’s decision “is unsupported by the facts” and is “the result of a
misapplication of the law.” First, she argues there was insufficient evidence to support
the court’s finding that I.P. had been subjected to “serious sexual abuse” within the
meaning of section 361.5(b)(6). Second, she asserts that even if serious sexual abuse had
occurred, there was no basis for bypassing services for her because she had no knowledge
of the abuse. She contends there was no basis for the court’s finding that she had given
her implied consent to J.L.’s sexual abuse of I.P., and that “absent unusual facts,” the
denial of services under section 361.5(b)(6) is upheld only as against the parent or
guardian who had perpetrated the abuse.
J.L. argues the court abused its discretion in issuing the Order. He asserts that
because review in this instance involves a question of law, we should review the court’s
determination de novo. J.L. argues in the alternative that even if we were to apply an
24
abuse of discretion standard, he should prevail, because the alleged conduct did not
constitute “severe sexual abuse” under section 361.5(b)(6).
Mother states in her petition that “[t]he primary issue in this writ proceeding is the
actions by the trial court in refusing to allow for reunification services.” (Italics added.)
Neither Mother nor J.L. asserts any challenge to the Order other than the denial of
reunification services. Accordingly, we deem abandoned any unasserted claims of error
with respect to the Order. (See In re Phoenix H. (2009) 47 Cal.4th 835, 845; T.P. v. T.W.
(2011) 191 Cal.App.4th 1428, 1440, fn. 12.)
In the two responses filed on the minors’ behalf, counsel requests that the Order be
upheld. Counsel asserts there was substantial evidence supporting the court’s finding that
J.L.’s conduct constituted severe sexual abuse justifying the bypass orders. Minors’
counsel contends further that there was substantial evidence that supported the court’s
conclusion that Mother impliedly consented to the severe sexual abuse perpetrated by J.L.
The Department argues in its response that while the conduct as alleged by I.P.
would constitute sexual abuse, it was error for the court to find that it was “severe sexual
abuse” under section 361.5(b)(6). And it contends there was insufficient evidence from
which the court could find that Mother impliedly consented to J.L.’s sexual abuse of I.P.
B. Severe Sexual Abuse Finding
Under section 361.5(b)(6),6 the court may issue a bypass order if it finds by clear
and convincing evidence that a dependent child has been so adjudicated “as a result of
6
“(b) Reunification services need not be provided to a parent or guardian
described in this subdivision when the court finds, by clear and convincing evidence, any
of the following: [¶] . . .[¶] . . .[¶] (6) That the child 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 to the child, a sibling, or a half sibling by a parent or
guardian, 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. [¶] A finding of severe sexual abuse, for the purposes of this subdivision, may
be based on, but is not limited to, sexual intercourse, or stimulation involving genital-
Continued
25
severe sexual abuse . . . to the child, a sibling, or a half sibling by a parent or
guardian, . . . and the court makes a factual finding that it would not benefit the child to
pursue reunification services with the offending parent or guardian.” The term “severe
sexual abuse” in the statute “is defined very broadly.” (Cal. Juvenile Dependency
Practice (Cont.Ed.Bar 1st ed. 2015) § 5.57, p. 370.) The court’s finding of severe sexual
abuse under section 361.5(b)(6) “may be based on, but is not limited to, sexual
intercourse, or stimulation involving genital-genital, oral-genital, anal-genital, or oral-
anal contact, . . . ; or the penetration or manipulation of the child’s, sibling’s, or half
sibling’s genital organs or rectum by any animate or 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.” (Italics added; see also In
re Y.M. (2012) 207 Cal.App.4th 892, 917-918.)
Here, there was evidence, credited by the trial court, that on October 17, 2014,
while I.P. was sleeping on the couch in the living room, J.L. lay down beside her; held
her for about five minutes while she pretended to be asleep; put his hands under her shirt
and under her bra; grabbed her breast “ ‘really hard’ ”; and “put his hand under her shorts
and touched her rear area and her vagina.” I.P. stated that she felt he would have
genital, oral-genital, anal-genital, or oral-anal contact, whether between the parent or
guardian 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 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 animate or 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. [¶] A finding
of the infliction of severe physical harm, for the purposes of this subdivision, may be
based on, but is not limited to, deliberate and serious injury inflicted to or on a child’s
body or the body of a sibling or half sibling of the child by an act or omission of the
parent or guardian, or of another individual or animal with the consent of the parent or
guardian; deliberate and torturous confinement of the child, sibling, or half sibling in a
closed space; or any other torturous act or omission that would be reasonably understood
to cause serious emotional damage.” (§ 361.5(b)(6).)
26
penetrated her vagina had she not moved. J.L. “finally stopped because [I.P.] was
struggling and crying.” I.P stated the incident lasted a total of 10 to 20 minutes. I.P.’s
arm was scratched and her breast was sore as a result of J.L.’s assault. This constituted
substantial evidence of severe sexual abuse.
J.L. argues that the conduct described by I.P. did not constitute severe sexual abuse
because—as indicated in Detective Pursley’s report—J.L.’s “hand was only on her vagina
for a brief second” and his hand was on I.P.’s breast for approximately three minutes. If
the statute defined “severe sexual abuse” narrowly as including only the acts therein
specified, J.L.’s argument might have some traction. For while J.L.’s alleged conduct of
briefly placing his hand on top of I.P.’s vagina may not fall squarely within the statute’s
reference to “manipulation of the child’s . . . genital organs,” section 361.5(b)(6) provides
that a court’s finding of severe sexual abuse “may be based on, but is not limited to,” the
specified acts set forth therein. (Italics added.)
Here, J.L.’s action of having his hand come into direct contact with I.P’s vagina—
occurring at the end of an encounter lasting as long as 20 minutes—was preceded by
J.L.’s (1) lying down beside I.P. and holding her for approximately five minutes;
(2) placing his hand under her shirt and bra and grabbing her breast firmly for
approximately three minutes; and (3) placing his hand under I.P.’s shorts and underwear
to make contact with her buttocks and vagina. And, according to I.P.’s account, which
the court credited, I.P. cried and struggled to get away from J.L. during the encounter,
and she felt he would have penetrated her vagina with his fingers had she not moved
away from him. Under these circumstances, and contrary to the assertions of Mother and
J.L., the court did not misapply section 361.5(b)(6) by finding J.L.’s conduct to have
constituted severe sexual abuse.
C. Implied Consent
Pursuant to section 361.5(b)(6), a finding of severe sexual abuse serving as a basis
for a bypass order may be based upon, among other things, severe sexual abuse upon the
27
minor or the minor’s sibling or half-sibling inflicted “by another person” “for [his or her]
sexual gratification” “with the actual or implied consent of the parent or guardian.” Thus,
if the severe sexual abuse is committed by someone other than a parent or guardian—
here, J.L.—and the parent or guardian gives his or her actual or implied consent to the
conduct, a bypass order may be entered against that parent or guardian even though he or
she did not directly perpetrate the abuse.
In this instance, the court based its Order as to Mother upon the conclusion that
she had impliedly consented to the severe sexual abuse of I.P. by J.L. The court
announced on the record detailed factual findings in support of this conclusion. These
findings included that (1) notwithstanding that the custody order entered at the conclusion
of the second dependency proceeding specified that J.L.’s visits of N.L. were not to occur
at Mother’s residence, Mother thereafter invited J.L. into her residence and allowed him
to be there with her three children; (2) J.L. provided Mother with evening and nighttime
childcare supervision, and he sometimes spent the night; (3) J.L. conditioned his being in
the home at night to supervise the children upon being permitted to sleep in the same bed
as the two girls, I.P. and N.L.; (4) J.L., in response to Mother’s questioning him about the
arrangement, told her that as long as he was around, he was going to sleep with I.P. and
N.L.; (5) J.L. in fact slept between I.P. and N.L. with Mother’s consent; (6) at the same
time, Mother also knew that J.L. “had an extraordinarily detailed knowledge of [I.P.’s]
feminine health issues including the exact date of her first menstrual cycle[, t]he
regularity of her menstrual cycles[,] and when her menstrual period was late”; (7) J.L.
knew that I.P. was sexually active and had engaged in sexual intercourse; (8) J.L. knew
of I.P.’s use of tampons, which he purchased for her; (9) Mother knew that J.L. had
bought a pregnancy test kit for I.P. and had given her specific instructions on its use;
(10) Mother knew that J.L. had bought undergarments for I.P. from Victoria’s Secret, “a
company commonly associated with sexually provocative women’s clothing”;
(11) Mother observed J.L. engage in activity that I.P. identified “as cuddling in which
28
[I.P.] described more particularly as [J.L.] holding her closely with one hand underneath
her and one hand on top of her[, which] . . . occurred in the daytime and at night and in
bed with [M]other in the same room”; (12) at the time of the alleged sexual abuse,
Mother had already received 48 months of services and J.L. had received approximately
40 months of services; and (13) both Mother and J.L. had received extensive individual
and group counseling and classes addressing parenting of teenagers.
The court found further that, “given the training [M]other had received, the
information that [M]other had regarding J.L.’s inappropriate physical contact with [I.P.,]
and the fact that [M[other knew [J.L.] had [an] inappropriate level of knowledge of and
involvement with [I.P.’s] feminine maturation and sexual development and pregnancy
testing[,] and [M]other’s knowledge that [J.L.] was purchasing undergarments [for] the
15 year old girl that he was insisting upon sleeping with, [M]other impliedly consented to
the sexual assault of [I.P.] within the meaning of” section 361.5(b)(6). The court
concluded that Mother’s conduct “indicate[d] that she offered [I.P.] to [J.L.] in return for
childcare supervision of [I.P., E.N., and N.L.] and placed [I.P.] under [J.L.’s] control for
sexual exploitation.”
The court’s conclusion that Mother gave her implied consent to J.L.’s sexual abuse
of I.P. was supported by substantial evidence—namely, the evidence the court recited on
the record. Contrary to Mother’s claim that “there [was] not the slightest showing that
she was aware of the molestation or that she consented to the acts,” there was significant
evidence from which the court could have reasonably concluded that Mother impliedly
consented to J.L.’s conduct. As noted by the court, Mother was aware of J.L.’s peculiar
and inappropriate level of knowledge of I.P.’s sexual maturation. As she explained to
Social Worker Long, Mother herself was concerned about J.L.’s close relationship with
I.P. and found it “odd” that he had bought I.P. undergarments from Victoria’s Secret.
And perhaps most significantly, Mother told Long she was uncomfortable with I.P. and
J.L. sleeping in the same bed, and she had explored this issue with J.L., who told her
29
“that as long as he was around he was going to continue sleeping with them.” These facts
and others recited by the trial court—coupled with evidence that Mother had previously
received 48 months of services, including parenting classes in which presumably one of
the paramount teaching points was the obligation to keep children safe—are substantial
evidence that Mother impliedly consented to J.L.’s sexual abuse of I.P. Contrary to
Mother’s contention that she was at most merely negligent, the evidence, giving
deference to the trial court’s conclusions, showed that Mother turned a blind eye toward
J.L.’s sexual interest in I.P., presumably because she desired his childcare services.
Mother, citing In re Kenneth M. (2004) 123 Cal.App.4th 16, argues that “absent
unusual facts,” a bypass order under section 361.5(b)(6) is generally “upheld only as
against the perpetrator of the act of severe sexual abuse.” In In re Kenneth M., the
mother of two children appealed an order terminating her parental rights, claiming the
court erred by denying her reunification services and by failing to ensure that the notice
requirements under the Indian Child Welfare Act (ICWA) were satisfied. (In re Kenneth
M., at p. 18.) One of the children had suffered head and eye injuries, and the agency
alleged that the abuse was “ ‘likely by one of her parents or possibly by someone they left
[the child] in the care of.’ ” (Id. at p. 19.) The mother argued the trial court erred in
denying reunification services under subdivisions (b)(5) and (b)(6) of section 361.5,
because it did not determine that she was the person who had caused the child’s injuries.
(Id. at p. 20.) The appellate court held that denying reunification services under section
361.5(b)(6) requires that the juvenile court identify the perpetrator of the abuse, noting
that “[b]y its express terms, subdivision (b)(6) applies to the parent who inflicted severe
physical harm to the minor.” (In re Kenneth M., at p. 21.) But the court went on to hold
the denial of reunification services was proper under subdivision (b)(5) of section 361.5
as to the abused child and under subdivision (b)(7) of section 361.5 as to the abused
child’s sibling. (In re Kenneth M., at p. 22.)
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In re Kenneth M. did not concern a bypass order under section 361.5(b)(6) based
upon severe sexual abuse of a child. Nor did it involve a contention that a bypass order
was appropriate because a parent had impliedly consented to the perpetration of severe
sexual abuse upon his or her child. Moreover, we do not read In re Kenneth M. as
holding that a bypass order may be made pursuant to section 361.5(b)(6) only as against
the parent who directly perpetrates the physical (or in this case, severe sexual) abuse. As
explained by the Fourth District Court of Appeal: “[W]e agree with the Kenneth M. court
that section 361.5, subdivision (b)(6) applies to the actual perpetrator of the abuse, and
also note that Kenneth M. did not restrict the application of subdivision (b)(6) to the
actual abuser. In other words, Kenneth M. does not support mother’s contention that she
was not an offending parent within the meaning of subdivision (b)(6) simply because she
was not the perpetrator.” (Amber K. v. Superior Court (2006) 146 Cal.App.4th 553, 562
(Amber K.), original italics.) In re Kenneth M. does not support Mother’s position that
the court erred.
Mother also cites Amber K. in arguing that the court’s finding of implied consent
was error. There, the appellate court found that substantial evidence supported the
juvenile court’s finding under section 361.5(b)(6) that the mother had “by her actions,
impliedly consented to the sexual abuse” of her daughter (S.M.) by the father. (Amber
K., supra, 146 Cal.App.4th at p. 561.) There was evidence that the father had previously
sexually abused another child (D.L.), and that that child had informed the mother of the
abuse on multiple occasions. (Id. at p. 560.) The sexual abuse of S.M. occurred when
the mother allowed the father to stay at their house for a few nights. Because the mother
had allowed the father access to S.M., knowing of his prior sexual abuse of another child,
the court held that she “was an offending parent, within the meaning of section 361.5,
subdivision (b)(6)” (id. at p. 561), that is, “a parent who gave actual or implied consent to
the sexual abuse of the child by another person” (ibid.).
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Amber K. does not stand for the proposition that, under section 361.5(b)(6), in
order to find that a parent impliedly consented to the severe sexual abuse of a child by
another, the parent must have had actual knowledge that the person had previously
sexually abused that child or another child. Thus, while the circumstances in Amber K.
involved actual consent, that case does not negate the existence of substantial evidence
here that Mother impliedly consented to J.L.’s severe sexual abuse of I.P.
Lastly, Mother cites a case in which a bypass order was reversed, Tyrone W.,
supra, 151 Cal.App.4th 839, as presenting circumstances analogous to those here. In
Tyrone W., the dependency proceeding commenced after the death of an infant in which
the medical examiner originally suspected the cause of death as sudden infant death
syndrome. After autopsy, however, the medical examiner concluded that the death was
“ ‘suspicious.’ ” (Id. at p. 844.) (There had been a referral to child services a year earlier
for injuries sustained by the parents’ older child. (Id. at p. 843.)) After an expert
concluded that rib injuries to the infant were likely to have been the result of abuse, the
agency amended the petition to allege that the infant had suffered severe physical abuse
inflicted nonaccidentally and there was a substantial risk the surviving sibling would
suffer severe physical abuse by the parents pursuant to subdivisions (e) and (j) of section
300l. (Tyrone W., at p. 845.) Based upon the agency’s recommendation, the trial court
denied reunification services under section 361.5(b)(6). (Tyrone W., at p. 845.)
The appellate court in Tyrone W. concluded this was error, holding that the
juvenile court could not bypass reunification services under the “severe physical harm”
provision of subdivision (b)(6) based on a finding that a parent “ ‘reasonably should have
known’ [the infant] was being physically abused.” (Tyrone W., supra, 151 Cal.App.4th
at p. 849.) The court noted the Legislature had included the words “ ‘deliberate’ and
‘inflicted’ ” in the “severe physical harm” provision of section 361.5(b)(6), but not the
phrase “ ‘reasonably should have known.’ ” (Tyrone W., at p. 850.) Considering this
statutory language, the court concluded that section 361.5(b)(6) “applies to the parent or
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parents who inflicted severe physical harm to the child whether by act, omission or
consent, and does not apply to a negligent parent.” (Id. at p. 851.) But the court in
Tyrone W. ultimately upheld the denial of reunification services on the ground that the
sustained allegations under section 300, subdivision (j) showed more than negligence.
(Tyrone W., at p. 854.)
Our case concerns “severe sexual abuse” under section 361.5(b)(6), not the issue
of “severe physical harm” considered in Tyrone W. But even assuming—based upon an
extrapolation of the holding in Tyrone W.—that a parent’s negligence in permitting the
severe sexual abuse of a child is insufficient for a bypass order under section 361.5(b)(6),
here, as discussed above, there was substantial evidence to support a finding that Mother
was not merely negligent, but that she impliedly consented to the sexual abuse.
D. Best Interests of the Minors
As indicated above, if the court concludes that section 361.5(b)(6) applies, it “shall
not order reunification . . . unless the court finds, by clear and convincing evidence, that
reunification is in the best interest of the child.” (§ 361.5, subd. (c).) The court below
concluded it was not in the minors’ best interest that reunification services be offered or
provided. Neither Mother nor J.L. have specifically challenged this conclusion in their
respective writ petitions. They have therefore abandoned any such challenge. (In re
Phoenix H., supra, 47 Cal.4th at p. 845; T.P. v. T.W., supra, 191 Cal.App.4th at p. 1440,
fn. 12.) The Department in its response to the petitions briefly argues that the court erred
in finding that offering or providing services were not in the minors’ best interest. We
will therefore address the question.
“The concept of a child’s best interest ‘is an elusive guideline that belies rigid
definition. Its purpose is to maximize a child’s opportunity to develop into a stable, well-
adjusted adult.’ [Citation.]” (In re Ethan N., supra, 122 Cal.App.4th at p. 66.) In
making a “best interest” finding, factors the court should consider are the parent’s current
efforts and fitness; the parents’ history; the gravity of the problem leading to the
33
dependency; the strength of the bonds between parents and the children; and the need for
stability of the children. (In re S.B., supra, 222 Cal.App.4th at pp. 622-623.)
Here, there was evidence that Mother had attended parenting classes and been
active in visiting E.N. and N.L. Mother’s visitation of I.P. was limited, due to I.P.’s lack
of interest in pursuing visitation. There was no evidence of J.L’s participation in his case
plan, and there was no evidence he had engaged in visitation with N.L. Further, as to the
issue of current fitness—and the interrelated issue of the gravity of the problem that
resulted in the dependencies—the sexual abuse of I.P. by J.L., along with Mother’s
implied consent to the conduct, cannot be understated. Nor can it be overlooked that the
additional reason for the dependencies was the reported physical abuse of I.P. by J.L., and
that at the time, there was a pending investigation of alleged physical abuse of E.N. by
both Mother and J.L. Additionally, the family had an extensive history with protective
services dating back to 2006, including a history of domestic violence and physical abuse
of the minors. And, as emphasized by the court in its order, Mother and J.L. had already
received approximately 48 months and 40 months of services, respectively, causing the
Department to recommend that the court order Mother to participate in a psychological
evaluation.
It was the burden of Mother and J.L. to establish that reunification would serve the
minors’ best interests. (In re S.B., supra, 222 Cal.App.4th at p. 623.) Based upon the
record before us, the court did not abuse its discretion in concluding that providing
reunification services to Mother and J.L. would not be in the minors’ best interests. (In re
William B., supra, 163 Cal.App.4th at p. 1229.)
DISPOSITION
The petitions for writ of mandate are denied. Because we have concluded that the
petitions are not meritorious, petitioners’ respective requests for a stay of the .26 hearing
are denied.
34
Márquez, J.
WE CONCUR:
Rushing, P.J.
Grover, J.