face="Times New Roman">
face="Times New Roman">
face="Times New Roman">In re J.O.
face="Times New Roman">
face="Times New Roman">
face="Times New Roman">
face="Times New Roman">Filed 12/16/13 In re J.O.
CA4/2
face="Times New Roman">
face="Times New Roman">
face="Times New Roman">
face="Times New Roman">
face="Times New Roman">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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.
face="Times New Roman">
face="Times New Roman">In re J.O., a Person Coming Under the
Juvenile Court Law.
face="Times New Roman">
face="Times New Roman">
face="Times New Roman">RIVERSIDE COUNTY DEPARTMENT OF PUBLIC
SOCIAL SERVICES,
face="Times New Roman">
face="Times New Roman"> Plaintiff and Respondent,
face="Times New Roman">
face="Times New Roman">v.
face="Times New Roman">
face="Times New Roman">J.O.,
face="Times New Roman">
face="Times New Roman"> Defendant and Appellant.
face="Times New Roman">
face="Times New Roman">
face="Times New Roman">
face="Times New Roman"> E057924
face="Times New Roman">
face="Times New Roman"> (Super.Ct.No. SWJ1200844)
face="Times New Roman">
face="Times New Roman"> OPINION
face="Times New Roman">
face="Times New Roman">
Riverside County. John M.
Monterosso, Judge. Affirmed.
face="Times New Roman">Amy Z. Tobin, under appointment by the Court
of Appeal, for Defendant and Appellant.
Deputy County Counsel, for Plaintiff and Respondent.
I
INTRODUCTION
Father appeals from orders of the
born in November 2012 and who has been placed with mother. Father and mother are also the parents of a
daughter, Ja.O., who was born in 2007 and has been adopted. Mother has another daughter, A.M.,
father’s custody.
Father contends insufficient evidence
supports the juvenile court’s jurisdictional and dispositional findings and the
court abused its discretion by denying him reunification services. We reject father’s contentions and affirm the
judgment.
II
STATEMENT OF
FACTS AND PROCEEDINGS
face="Times New Roman">A. Detention
face="Times New Roman">CPS
petition in this case in November 2012, shortly after the birth of J.O. The petition alleged parents’ failure to protect
(Welf. & Inst. Code, § 300, subd. (b))
to reunify with other children; father’s criminal history; and father’s
substantiated sexual abuse of J.O.’s half-sister, A.M. The petition also alleged the parents’
neglect or abuse of siblings. (§ 300,
subd. (j).) CPS recommended J.O. be
placed with mother, based on a signed safety plan that father would not have
unsupervised contact with the child.
face="Times New Roman">The detention report included the following
information. In 2001, father was accused
of ongoing molestation of his girlfriend’s sister, who was 14 years old. The sister complained that father had fondled
her breasts and buttocks when she was sleeping and had exposed himself to
her. He had also spied on her when she
was bathing and tried to ply her with drugs and alcohol. The girlfriend reported father had forced her
to have sex by choking her. The
disposition was substantiated in January 2002.
face="Times New Roman">In a previous dependency proceeding, mother’s
two daughters were taken into protective custody by San Diego County in
2008. A.M. told an investigator that
father had “tickled†her crotch one night when she was about five years old. Parents had participated in reunification
services until mother violated the conditions of visitation by spending the
night with father, smoking marijuana, and allowing him to have contact with their
daughter, Ja.O. Mother admitted having
unresolved feelings for father. After
reunification services were terminated, A.M.’s father had sole custody and
mother was allowed supervised visitation.
Ja.O. was adopted.
face="Times New Roman">While mother and J.O. were still in the
hospital, CPS interviewed father who stated he was living with the paternal
grandmother (PGM) in Lake Elsinore. Father had used marijuana in the past for
pain. Father admitted he had lost his
job and mother was living with him in the Lake Elsinore household, which was
occupied by seven family members and three unrelated adults and their three
children—a total of 13 residents in six bedrooms. Father, mother, and J.O. had their own
room. Father was receiving $667 monthly
in assistance and the PGM was not charging him rent. Father was trying to find work as a security
guard. Father admitted an incident a
year before in which mother was was hit in the face by a door during a struggle
with father. Father had completed part
of a program of domestic violence classes.
Father denied any sexual abuse of A.M. and became agitated during the
interview. Mother was still visiting
A.M. but he did not participate in visitation.
face="Times New Roman">CPS interviewed mother who denied using drugs
or drinking. Mother reported a history
of being sexually molested by her biological father between ages three and six
years old. Mother agreed she and father
had been together off and on for nine years with uncertain plans to marry. When she and father had struggled physically the
year before, the door hit her in the face.
Although a restraining order was issued against father in December 2011,
their relationship had resumed and J.O. had been conceived in February 2012. Mother had supervised visits with A.M. She lost custody of Ja.O. because of her
contact with father. Mother did not
think father had molested A.M. but she was willing to give up contact with father
if she could keep custody of J.O. The
maternal grandmother (MGM) was also willing to have placement of him.
face="Times New Roman">Mother’s criminal history involved charges
for driving under the influence and a hit and run accident in 2006, causing
suspension of her driver’s license in 2011.
Father’s criminal history involved driving under the influence and drug
offenses in 2004 and domestic violence against mother in 2011.
face="Times New Roman">CPS concluded that detention of J.O. was
appropriate because of the parents’ past failures at reunification, father’s
two substantiated sexual abuse allegations, which he denied, and mother’s
continuing relationship with father.
face="Times New Roman">At the detention hearing in November 2012, J.O.
was detained as to father but not mother.
The court ordered supervised visitation of two times per week for
father.
face="Times New Roman">B. Jurisdiction and Disposition
face="Times New Roman">CPS filed an amended dependency petition in
January 2013. At the combined
jurisdiction/disposition hearing, CPS presented documents from the dependency
case involving A.M. and Ja.O: (1) the
July 2008 jurisdiction/disposition report; (2) a December 2009 status review
report; and (3) a July 2010 section 366.26 report. In those documents, A.M. described father’s
conduct in which he pulled up her pajamas and touched her genitals, tried to
force her to touch his penis, struck her on the buttocks, forced her to watch
mother and father having sex and father masturbating, and digitally penetrated
her. In July 2009, mother allowed father
to have unsupervised contact with Ja.O. while mother was smoking marijuana and
spending the night with father. Father
had not completed sex abuse therapy and treatment. Mother had failed to protect A.M.
face="Times New Roman">In January 2013, father’s counsel stated
father had been visiting his son consistently and wanted to foster a
relationship in the future. Father requested
reunification services. On the second
day of the hearing, the court sustained all allegations of the amended
petition. The court declared J.O. a
dependent of the juvenile court, ordered family maintenance services for mother,
and denied reunification services as to father.
The denial was based on section 361.5, subdivision (b)(10) and (11). The court stated that services would not be
in the minor’s best interest because father had not shown he was “not a risk.†Father’s visits were reduced to one time per
week. The matter was ordered transferred
to San Diego County, where mother was living.
III
JURISDICTIONAL
FINDINGS UNDER SECTION 300, SUBDIVISION (b)
Father contends there was no substantial
evidence the newborn was at risk of serious physical harm or illness, based on
domestic violence, the prior substantiated sexual abuse allegations, the
parents’ failure to benefit from previous services, the termination of parental
rights as to Ja.O., the father’s criminal history, or the parents’ substance
abuse.
face="Times New Roman">A juvenile court may find that a minor comes
within the provision of section 300, subdivision (b), if it finds, by a
preponderance of the evidence, that the “minor has suffered, or there is a
substantial risk that the minor will suffer, serious physical harm or illnessâ€
by at least one of four specified circumstances. (§ 300, subd. (b).) In the instant case, the petition alleged two
of the four enumerated circumstances: “as
a result of the failure or inability of his or her parent or guardian to
supervise or protect the child adequately†and “by the inability of the parent
or legal guardian to provide regular care for the child due to the parent’s or
legal guardian’s mental illness, developmental disability or substance abuse.†(§ 300, subd. (b).) It effectively requires a showing that, at
the time of the jurisdictional hearing, the child is at substantial risk of
serious physical harm or illness in the future.
(In re David M. (2005) 134 Cal.App.4th
822, 829.)
face="Times New Roman">“‘In juvenile cases, as in other areas of the
law, the power of an appellate court asked to assess the sufficiency of the
evidence begins and ends with a determination as to whether or not there is any
substantial evidence, whether or not contradicted, which will support the
conclusion of the trier of fact. All
conflicts must be resolved in favor of the respondent and all legitimate
inferences indulged in to uphold the verdict, if possible.’†(In re Rocco M.
(1991) 1 Cal.App.4th 814, 820.) Substantial
evidence must be reasonable in nature, credible, and of solid value. (In re Angelia P.
(1981) 28 Cal.3d 908, 924.)
face="Times New Roman">Father contends the single incident of domestic
violence is insufficient to support an adjudicatory finding under section 300, subdivision
(b). Each parent gave a similar version
of the incident, which occurred when they found out Ja.O. was being adopted. They argued and, when father tried to leave,
they struggled over the door, which hit mother in the face. Later, the court issued a restraining order. Father attended some domestic violence
classes without completing them. Eventually,
the parents reconciled, violating the restraining order.
face="Times New Roman">A child may be at substantial risk of serious
physical harm when living in a household where domestic violence is recurring. (In re Heather A.
(1996) 52 Cal.App.4th 183; In re R.C.
(2012) 210 Cal.App.4th 930, 941-942.) In
contrast, if domestic violence is not ongoing and is not likely to continue,
jurisdiction will not be supported under section 300, subdivision (b). (In re Daisy H.
(2011) 192 Cal.App.4th 713, 717, 718.) In
In re Alysha S. (1996) 51 Cal.App.4th
393, 398, the appellate court held that one domestic violence incident
occurring one year earlier, for which the father was arrested and which did not
happen in view of the child, was insufficient to support a jurisdictional
finding under section 300, subdivision (b).
face="Times New Roman">Here the domestic violence incident occurred
before J.O. was born, apparently precipitated by the stressful situation
involving Ja.O.’s adoption. Father
contends it was not very serious and, at the time of the jurisdictional
hearing, J.O. was not subject to a substantial risk of serious physical harm
from domestic violence.
We disagree with father. Although father seeks to minimize the
domestic violence, the record shows he was criminally convicted under Penal
Code section 243 and was the subject of a restraining order. Father failed to complete the domestic violence
courses. He violated the restraining
order. His behavior did not connote a
man who had been rehabilitated and was no longer a danger to mother or their
children.
face="Times New Roman">The dependency petition also alleged J.O. was
at substantial risk of harm because of the family’s unsuccessful child welfare
history: the substantiated allegations
of sexual abuse and general neglect; the failure to benefit from 18 months of
reunification services; and the failure to reunify. Father argues the previous substantiated
allegations of sexual abuse and the failure to reunify are not reasons to
sustain a finding under section 300, subdivision (b): “Evidence of past conduct, without more, is
insufficient to support a jurisdictional finding under section 300. There must be some reason beyond mere
speculation to believe the alleged conduct will recur.†(In re James R. (2009)
176 Cal.App.4th 129, 136.) Here,
however, the record established that mother failed to protect A.M. from father
and that, in spite of the threat of losing Ja.O., mother continued to have a
relationship with father and to join him in using drugs. Therefore, the parents’ previous conduct
could reasonably be thought to occur again and placed the newborn, J.O. at
substantial risk of serious physical harm. (In re Lana S. (2012)
207 Cal.App.4th 94, 104; In re Solomon L. (1987)
190 Cal.App.3d 11106, 1112-1113.) Thus, the
allegations contained in paragraph b-2 supported a jurisdictional finding under
section 300, subdivision (b).
face="Times New Roman">Paragraph b-3 additionally alleged that father’s
previously substantiated allegations of sexual abuse of A.M., leading to the
termination of parental rights for Ja.O., also placed J.O. at substantial risk
of harm. Furthermore, paragraph b-4 alleged
father had a criminal history of domestic violence, driving under the
influence, and possession of a controlled substance, placing J.O. at
substantial risk of harm. Facts
supporting section 300 allegations may be cumulative. (In re Hadley B. (2007)
148 Cal.App.4th 1041, 1048-1050.) When
considered all together, the allegations of the dependency petition fully
justify the court assuming jurisdiction over J.O.
IV
JURISDICTIONAL
FINDINGS UNDER SECTION 300, SUBDIVISION (j)
face="Times New Roman">Subdivision (j) of section 300 applies if (1)
the child’s sibling has been abused or neglected, as defined in subdivision
(a), (b), (d), (e), or (i), and (2) there is a substantial risk that the child
will be abused or neglected, as defined in those subdivisions. Subdivision (j) further states: “The court shall consider the circumstances surrounding
the abuse or neglect of the sibling, the age and gender of each child, the
nature of the abuse or neglect of the sibling, the mental condition of the
parent or guardian, and any other factors the court considers probative in
determining whether there is substantial risk to the child.†(§ 300, subd. (j).)
face="Times New Roman">Father argues that—although the first prong
of subdivision (j) was met, based upon the substantiated allegation of sexual
abuse of A.M.—the second prong was not proved and there was insubstantial
evidence to conclude J.O. was at substantial risk of abuse or neglect.
face="Times New Roman">The California Supreme Court recently
affirmed the juvenile court’s assertion of jurisdiction over a father’s sons,
pursuant to subdivision (j), based upon the father’s molestation of his
daughter: “[W]hen a father severely
sexually abuses his own child, the court may assume jurisdiction over and take
steps to protect, the child’s siblings.â€
(In re I.J. (2013) 56 Cal.4th 766,
780.) Although father’s behavior in this
case was not as extreme as the father in I.J., we still
conclude father’s abuse of A.M. and his neglect of his natural daughter, Ja.O.,
was significant enough to justify a concern for the safety of J.O.
face="Times New Roman">According to the 2008
jurisdiction/disposition report, the family initially came to the attention of
the agency due to allegations of emotional abuse to A.M. resulting from her
witnessing domestic violence between father and mother. During that investigation, A.M. reported she
had been molested by father. She
described two incidents where father masturbated in front of her and one
incident where father touched her genitals.
She was also compelled to watch father and mother having sex. At a forensic interview, A.M. described two
instances of molestation, one of which involved her touching father’s penis. In 2002, father was also the subject of a substantiated
sexual abuse allegation involving a 14-year-old girl, occurring six to eight
times and consisted of fondling the minor’s breasts and buttocks and exposing
himself to her. Based on the totality of
circumstances involving the abuse or neglect of J.O’s siblings and other children,
the trial court’s jurisdictional findings under section 300, subdivision (j),
are supported by substantial evidence. (
V
DENIAL OF
REUNIFICATION SERVICES
face="Times New Roman">Pursuant to section 361.5, subdivision (b)(1)-(15),
reunification services may be denied based on clear and convincing evidence. (§ 361.5, subd. (b).) Section 361.5, subdivision (b)(10) and (11),
are among those paragraphs requiring a denial of services unless it is in the
minor’s best interest to order services. (§ 361.5, subd. (c).) A juvenile court exercises its discretion in
deciding whether reunification services would be in the minor’s best interest. (In re Gabriel K. (2012)
203 Cal.App.4th 188, 197.) The
appropriate test of abuse of discretion is whether the trial court exceeded the
bounds of reason. When two or more
inferences can reasonably be deduced from the facts, the reviewing court has no
authority to substitute its decision for that of the trial court. (In re Stephanie M. (1994)
7 Cal.4th 295, 318-319.)
face="Times New Roman">Courts have noted that “Once it is determined
one of the situations outlined in 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. [Citation.]†(In re Baby Boy H.
(1998) 63 Cal.App.4th 470, 478, cited by In re Ethan N.
(2004) 122 Cal.App.4th 55, 65.)
face="Times New Roman">To apply section 361.5, subdivision (b)(10)
or (11), the juvenile court must find: (1) the parent previously failed to
reunify with a sibling or half-sibling (subd. (b)(10)) or parental rights were
terminated as to a sibling or half-sibling (subd. (b)(11)), and (2) the parent
has not subsequently made a reasonable effort to treat the problems that led to
removal of the sibling. (
of reunification services for J.O. because father had failed to reunify with
Ja.O. after she was removed from the parents and father had not subsequently
made a reasonable effort to treat the problems that led to removal of Ja.O. Section 361.5, subdivision (b)(11) also
applies to father whose parental rights to Ja.O. have been terminated.
face="Times New Roman">Father contends the juvenile court had
discretion to order reunification services in J.O.’s best interest. Father demonstrated concern about caring for
his son. He was present for the baby’s
birth and wanted to be together with mother.
Father agreed to the safety plan and was visiting J.O. regularly. Since mother had placement of the child,
allowing interaction with father was in J.O.’s best interest: “If the evidence suggests that despite a
parent’s substantial history of misconduct with prior children, there is a
reasonable basis to conclude that the relationship with the current child could
be saved, the courts should always attempt to do so. . . . The failure of a parent to reunify with a
prior child should never cause the court to reflexively deny that parent a
meaningful chance to do so in a later case. To the contrary, the primary focus of the
trial court must be to save troubled
families, . . .†(Renee J. v.
Superior Court (2002) 96 Cal.App.4th 1450, 1464.)
face="Times New Roman">Nothing in the record suggests that father
would benefit from receiving additional reunification services or that he would
be likely to complete any of the programs he previously abandoned. Father admits his reunification services and,
subsequently, his parental rights as to Ja.O. were terminated. He did not complete sex offender treatment or
heed the terms of his probation for the domestic violence offense. When J.O. was detained and subsequently, father
has continued to violate the restraining order prohibiting contact with mother. Under these circumstances, father has not
demonstrated it would be in the best interest of J.O. to reunify with
father. (In re Gabriel
K., supra, 203 Cal.App.4th at pp. 196-197.)
VI
DISPOSITION
face="Times New Roman">Based upon the foregoing, we affirm the
jurisdictional findings, the dispositional orders, and the juvenile court’s
order denying reunification services.
face="Times New Roman">NOT TO BE PUBLISHED IN OFFICIAL REPORTS
face="Times New Roman">CODRINGTON
face="Times New Roman"> J.
We
concur:
RAMIREZ face="Times New Roman">
P. J.
HOLLENHORST face="Times New Roman">
J.
name="_ftn1" title=""> [1]
Public Social Services, Child Protective Services.
name="_ftn2" title=""> [2]
are to the Welfare and Institutions Code unless stated otherwise.
