In re Daniel S.
Filed 1/28/13 In re Daniel S. CA3
Appendix not available in Word version; see PDF file
NOT TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Trinity)
In re DANIEL S. et al.,
Persons Coming Under the Juvenile Court Law.
TRINITY COUNTY
HEALTH AND HUMAN SERVICES,
Plaintiff and Respondent,
v.
CHRISTOPHER S.,
Defendant and Appellant.
C071452
(Super. Ct. Nos. 11JU059A, 11JU059B, 11JU059C)
Christopher
S., father of the minors, appeals from the juvenile court’s orders terminating
his parental rights as to Catherine
and Q. and implementing a plan of long-term foster care as to Daniel. (Welf. & Inst. Code,
§§ 366.26, 395.) He challenges a
jurisdictional finding that provided the basis for the denial of
basis for the juvenile court’s subsequent section 366.26 orders terminating
parental rights and implementing long-term foster care. We shall reverse
the section 366.26 orders and remand for a new disposition hearing to determine
whether father is entitled to reunification services.
BACKGROUND
Father has
three children who are the subjects of this appeal: Daniel, Catherine, and Q.
Daniel. Father’s former wife Stephanie
is the mother of Catherine and Q.
name="_ftnref3" title="">[3] Stephanie has a sister, Chelsea. Beyond these facts, the relationships between
these individuals are somewhat complicated.
When
Jeannie and father first met, he was dating Stephanie’s mother, Cindy, and
Stephanie’s sister, Chelsea, had just been born. Jeannie and father were married for 14
years. Approximately six months after
their son, Daniel, was born, she and father discovered that Cindy was intending
to relinquish custody of Stephanie and Chelsea.
Father retrieved them and brought them home to live with him and
Jeannie.
Shortly
thereafter, Jeannie discovered father was sexually abusing Stephanie, who was
then 13 years old. He later also began
sexually abusing Chelsea. When Stephanie was 15 or 16 years old, she
gave birth to Catherine. Father and
Stephanie married when she turned 18 years old and she gave birth to Q. shortly
thereafter. Stephanie left father
approximately four years later and they are now divorced. The court awarded father physical custody of
Catherine and Q.
In December
2011, Trinity County Health and Human
Services (the agency) detained Daniel, Catherine, and Q. and filed section
300 petitions on their behalf. The
petitions alleged father had failed to provide adequate support. Based on father’s history of sexually abusing
Stephanie and Chelsea, the petition filed on behalf of Catherine also included
the following allegation under section 300, subdivision (j) (the child’s
sibling has been abused and there is a substantial risk that the child will be
abused): “j-1 From in or about 12/01/1999, and continuing
for at least three years thereafter, the father sexually abused his
step-daughter, Stephanie . . . , as defined in subdivision (d). Stephanie . . . was age 14, or younger, when
the abuse first occurred, and was severe sexual abuse, including sexual
intercourse over a period of several years.
Stephanie is the sister of the child, Catherine . . . , who is now age
11, and there is substantial risk that the child will be sexually abused in the
same manner as Stephanie.â€
The
jurisdiction hearing took place on February
6, 2012. Evidence was
submitted, including statements from Stephanie, Chelsea, and Jeannie. The juvenile court sustained the petitions,
including the following amended “j-1†allegation as to Catherine: “From in or about 1998 to in or about 2006,
the father sexually abused his step-daughters, Stephanie and Chelsea . . . , as
defined in subdivision (d) of Section 300.
Stephanie . . . was age 14, or younger, when the abuse first occurred,
and it was severe sexual abuse, including sexual intercourse over a period of
several years. Chelsea
was age 12, or younger, when the abuse first occurred. Stephanie and Chelsea are the sisters of the
child, Catherine . . . who is now age 11, and there is a substantial risk that
the child will be sexually abused in the same manner as Stephanie and
Chelsea.†The juvenile court did
contained in the amended petitions filed on behalf of Daniel and Q., which
read: “From in or about 1998 to in or
about 2006, the half siblings, Stephanie and Chelsea . . . were sexually abused
by the father, . . . and there is a substantial risk that the child will be
sexually abused or subjected to witnessing sexual abuse, which constitutes a
substantial danger to the child’s physical and emotional health.â€
At the March 19, 2012, disposition hearing,
the minors were declared dependents and removed from parental care. The juvenile court denied father
reunification services pursuant to section 361.5, subdivision (b)(6), based on
the subdivision j-1 allegations in the petitions that child protective services
asserted the court had found true. (As
noted above, the court actually found true only the subdivision j-1 allegation
in the petition filed on behalf of Catherine.)
The section
366.26 hearing took place on June 11, 2012.
Parental rights to Catherine and Q. were terminated. Long-term foster care or guardianship was
selected as the permanent plan for Daniel.
DISCUSSION
Father
contends the jurisdictional and disposition orders, and orders terminating
parental rights to Catherine and Q., must be reversed because denial of
reunification services was based on the improper jurisdictional finding that he
had sexually abused the minors’ half sibling(s).
because Stephanie and Chelsea, both of whom he sexually abused over the course
of several years, were not Daniel, Catherine’s, or Q.’s half siblings and thus
the bypass provisions of section 361.5, subdivision (b)(6), do not apply. We agree.
Initially,
we reject the agency’s contention that father has forfeited his contention on
appeal by failing to raise “the issue of the sibling relationship†in the
juvenile court. Father partly brought
the matter to the juvenile court’s and the agency’s attention at the detention
hearing, when he stated, “There is a major error in the paperwork for the
detention, paperwork for my daughter, Your Honor. It mentions Stephanie . . . as the sister of
Catherine . . . , which Stephanie is the mother of Catherine, not her
sister.†When counsel for the agency and
minor stated that Stephanie and Catherine were stepsisters because father was
Stephanie’s stepfather, father replied, “I was her guardian. I wasn’t her step-father.†And while father did not at that time deny
that Chelsea was the half sibling of the minors -- a point emphasized by the
agency -- the allegations at that time did not yet include or mention Chelsea,
so there was no reason for him to do so.
Thus, father cannot be considered to have forfeited his contention. In any event, and more importantly, father’s
failure to further pursue the matter of the relationship between Stephanie and
Chelsea and the minors does not forfeit the legal issue of whether there is
substantial evidence to support the juvenile court’s jurisdictional
finding. (In re Gregory A. (2005) 126 Cal.App.4th
1554, 1560-1561; In re Brian
P. (2002) 99 Cal.App.4th 616, 623 [contention that judgment not
supported by substantial evidence an obvious exception to forfeiture rule].)
The
juvenile court has jurisdiction to declare a child to be a dependent of the
court pursuant to subdivision (j) of section 300 when (1) the “child’s sibling
has been abused or neglected, as defined in subdivision . . . (b)
. . . and [(2)] there is a substantial risk that the child will be
abused or neglected, as defined in [that] subdivision[].â€
The
juvenile court sustained the allegation set forth in the petition filed on
behalf of Catherine under “j-1†that father had sexually abused Stephanie and
Chelsea and that they were Catherine’s sisters.
The evidence, however, does not support this finding. While there is some evidence that father was
Stephanie and Chelsea’s guardian,
there is no evidence that father was Stephanie’s biological or adoptive
There is also no evidence in the record suggesting father was ever
married to Cindy, thereby making Stephanie and Chelsea his stepdaughters. And the only evidence that father is
Chelsea’s biological father is a statement made by father’s former wife,
Jeannie, that “there was a chance Chelsea could have been his kid.†That statement simply does not rise to the
level of substantial evidence to support a finding that father is Chelsea’s
biological father.
title="">[5] Accordingly, there is insufficient evidence
to support the subdivision j-1 allegation that father sexually abused
Catherine’s siblings or half siblings.
This
unsupported finding was also the basis for denying father reunification
services. Subdivision (b)(6) of section
361.5 states in part that reunification services need not be provided to a
parent when the juvenile court finds, by clear and convincing evidence, “[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.â€
The
juvenile court found this provision applicable based on its section 300,
subdivision (j), allegation jurisdictional findings. However, because the court never made such a
jurisdictional finding as to either Daniel or Q., and because the
jurisdictional finding as to Catherine was unsupported by any substantial
evidence, the juvenile court erred in applying this section and denying father
reunification services.
The parties
recognize that there is some evidence in the record of at least one other
statutory basis for denial of services.
Specifically, there was evidence that father impregnated Stephanie with
Catherine when Stephanie was a minor and she gave birth when she was 15 or 16
years old. We also note that there is
some evidence (via father’s former wife, Jeannie) that Stephanie was already
pregnant with Q. by father when she turned 18.
Section
361.5, subdivision (b)(8), provides that reunification services need not be
provided to a parent or guardian when the court finds, by clear and convincing
evidence that the child was conceived by means of the commission of an offense
listed in Penal Code section 288 or 288.5 (or by an act committed outside of
this state that, if committed in this state, would constitute one of those
offenses). Because the juvenile court
did not make any finding under subdivision (b)(8) -- let alone a finding by
clear and convincing evidence -- it would be inappropriate for us to uphold the
denial of reunification services as to Catherine on this basis. On remand, the juvenile court must conduct a
new disposition hearing to consider whether father is entitled to reunification
services, and at that time the court may consider whether this provision is
applicable.
title="">[7]
DISPOSITION
The jurisdictional
order is modified to strike the section 300, subdivision j-1 finding as to
Catherine. The judgment of disposition
and the orders made at the section 366.26 hearing are reversed. The matter is remanded for the juvenile court
to hold a new disposition hearing to determine whether father is entitled to
reunification services. If the juvenile
court determines he is not entitled to reunification services, then the orders
made
at the section 366.26 hearing shall be reinstated. If the juvenile court finds father is
entitled to services, then it shall order reasonable services and continue the
dependency.
ROBIE , J.
We concur:
HULL ,
Acting P. J.
HOCH , J.
name="_ftn1" title="">[1]
Further undesignated statutory
references are to the Welfare and Institutions Code.
name="_ftn2" title="">[2]
Please see the attached chart for
assistance in understanding the relationships.
