In re U.M.

Filed 1/27/10 In re U.M. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from an order of the Superior Court of Los Angeles County, Marilyn Martinez, Judge. Affirmed in part, reversed in part and remanded with directions.

Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Respondent.

___________________________________________

In this dependency case (Welf. & Inst. Code, 300 et seq.),[1] Ezequiel M., the father of children declared dependents of the juvenile court (Father), challenges a disposition order whereby the trial court directed him to participate in certain programs and counseling but declined to provide him with reunification services. Father contends that although the trial court failed to make required findings to justify denying reunification services, the evidence in the case would not support such findings in any event and therefore the denial of services must be reversed. Our review of the record and the law regarding reunification services convinces us that the order denying Father services must be reversed and on remand of the case the trial court should hold a hearing to reconsider the issue and make the required findings.

BACKGROUND OF THE CASE

1. Detention of the Minors

a. The Departments Detention and Investigation

The juvenile dependency petition was filed by the Los Angeles County Department of Children and Family Services (Department) on May 13, 2009. There are two children in the case. U.M. (U.) was born in May 2001, and thus he turned eight years old just after the petition was filed. J.M. (J.) was born in June 2005 and she was three years old. Their mother is G.M. (Mother).

The family came to the attention of the Department on May 8, 2009, when it was notified by the Los Angeles Police Department (LAPD) that U. had disclosed to Mother that Father was sexually abusing him. The police became involved when Mother went to the minors school seeking help with the matter and the school, in turn, notified the police. Mother, U. and J. were all interviewed at the school. On that same day the children were taken into protective custody by the police and then detained from Father by the Department and permitted to remain in Mothers care. An emergency protective order was issued by the police and served on Father for the minors protection. The police officer handling the matter told the Department social worker that Mother appeared very concerned about U.s emotional status and protective of the minors, and was cooperative and supportive.

The Departments detention report states that when interviewed by the Department social worker, U. indicated Father had touched his penis. The social worker asked him how Father had touched his penis. U. was holding a stuffed animal, a crab, and he stroked one of the legs on the crab to indicate that was how Father touched him. He stated Father presented this touching as a game and although he told Father he did not like the game, Father persisted anyway and Father told him not to talk about it to Mother. He stated the game is played when Mother is away from the family home and there were three separate incidents of it. One was when the child was using the toilet, another was when he and Father were in the front yard of the family home, and the third was in Fathers room. He stated that Father had not touched any other part of his body and that there was no other abuse or mistreatment in the home.

The social worker interviewed Mother. Mother reported that three months earlier U.s behavior changed. He became disobedient, irritable and angry, and began wetting the bed. Mother stated that two weeks before she went to see the school personnel, she observed U. stroking his penis with movements like masturbation when he was taking a bath, but he would not disclose to Mother where he had seen that type of activity and he did not want to talk about it. Then, the evening before Mother went to the school, she again noticed U. stroking his penis while he was bathing and this time he told Mother he could not talk to her about it because Father told him not to tell anyone. Upon continued questioning, he told Mother that Father plays the game with him. He told her Father had touched him three or four times, with one taking place in the front yard and the others in the bathroom or Fathers bedroom.

Mother also told the social worker that approximately seven months earlier, J. had told her that Father hurt her and J. was pointing to her vaginal area when she disclosed this to Mother. When Mother asked J. what Father did, J. touched her vaginal area rapidly. Mother told the social worker she did not want the children to be around Father any longer. She stated she and he have had marital problems for years and do not share the same bedroom. She stated that Father had sometimes been intoxicated on the weekends but was not currently drinking as much as before. She denied domestic violence in the home. She stated she and Father have been married for 31 years and have a son who is 30 years old. She was very cooperative with the social worker and appeared apprehensive and sad.

The social worker attempted to interview J. while she was playing with U. Asked if Father had hurt her in any way, J. made a head movement that indicated Yes, When asked how and where she was hurt, J. stopped playing for a few seconds, made eye contact with the social worker, pointed to her vaginal area and said Here. J. then resumed playing with U. and did not respond to any further questions from the social worker or Mother. The social worker stated in her report that J. was too young to make a significant statement, although she is able to articulate well.

Mother, the children and the social worker then went to the Departments regional office where the social worker discussed the matter with her supervisor. The supervisor indicated the family can be categorized as very high risk for future abuse. A team decision meeting was conducted with Mother present. She was informed that a dependency petition would be filed, the children would be detained from Father, and Father was not allowed to be near the minors but it was possible that after a court hearing Father could have monitored visits with them outside of the family home. Mother agreed and stated she would find a place to stay until Father moved from the family home. She followed through and moved with them to her friends home temporarily. The emergency protective order was served on Father by the police when he returned home that evening and he was ordered to leave the family home. He was cooperative and indicated he would comply with the order. He told the social worker that the allegations against him were false and Mother had put them in the children minds. He asserted that Mother has been angry with him for many years because he was not a good husband in the beginning of their marriage and Mother is capable of doing things to hurt him. He strongly denied that he had touched the minors in an inappropriate way.

The LAPD report states that Mother told the investigating officers that the second time she observed U. stroking his penis in the bathtub the child told her that when he and Father were sitting on the sofa watching television Father asked the minor if he wanted to play a game and Father put his hand through the hole in the childs underwear and began to stroke the childs penis and U. told Father he did not like that game. Mother told the officers that for a few months U. had been wetting the bed, was quick to anger when playing with his sister, and would go sit by himself and cry while looking at family photographs. She told the officers that about four months ago J. grabbed her vagina and told Mother that Father hurt her there. Mother stated that when she confronted Father he told her he would never hurt the minors and if she told anyone the children would be taken away from both him and her.

When interviewed by the officers, U. told them that Father touches his wee wee when Mother goes to the store, and Father has done so three times in the front yard. U. stated that on two other occasions Father stroked his wee wee in the bathtub and asked the child if it felt good or bad. Additionally, on one occasion Father suggested to U. they go in Fathers bedroom and play a game. U. responded he did not like that game but Father made the minor go into the bedroom anyway, sat him on the bed, stroked his wee wee a lot and asked the child if it felt good or bad, and the child responded it felt bad. The officers also interviewed J.. Asked if Father had ever hurt her anywhere, J. laughed and answered No.

Three days after the Department detained the children from Father and released them to Mother, Mother informed the social worker that U. was adopted by herself and Father when he was a newborn. Mother also stated that approximately a year prior to the Department and police becoming involved with the family, J. had told her that Father hurt her and pointed to her vaginal area. Mother took J. to the doctor for a medical exam, telling the doctor that the child had told her someone hurt her in her genital area. Mother did not tell the doctor it was Father. The doctor examined the minor and told Mother there were no signs of any sexual or inappropriate touching. Declining to give Mother a letter so stating, he advised her to take J. to Olive View Hospital for further examination. Based on the doctors report, Mother felt there was no need for follow up, but then days later J. again complained that Father hurt her and pointed to her vaginal area. This prompted Mother to have a meeting with the elderly committee of the Jehovah Witness congregation to which the family belongs. Mother was advised by them to not doubt Fathers integrity and to believe the doctor.

b. The Dependency Petition and Detention Hearing

The dependency petition makes the following allegations. On numerous prior occasions Father sexually abused U. by fondling the minors penis and Father has advised the minor to not disclose Fathers sexual abuse to anyone. Mother knew of the sexual abuse and failed to take action to protect U. Additionally, on prior occasions Father sexually abused J. by fondling her vagina and when J. disclosed the abuse to Mother, Mother failed to take action to protect J. in that she permitted Father to remain in the home and have unlimited access to J.. The sexual abuse of the minor children by Father and Mothers failure to protect them endangers the childrens physical and emotional health, safety, and well-being and creates a detrimental home environment, and places the minors at risk of physical and emotional harm, damage, danger, sexual abuse and failure to protect. Further, Father has a history of alcohol abuse that renders him incapable of providing regular care of the children, endangers their physical and emotional health and safety and places them at risk of physical and emotional harm and damage.

The petition was amended at the jurisdiction/disposition hearing held on July 9, 2009, to delete the allegations regarding Mothers knowledge of Fathers sexual abuse of U. and her failure to take action to protect the child, and amended to say that Mother failed to take sufficient action to protect J..

Both parents appeared at the May 13, 2009 detention hearing and attorneys were appointed for them. The court found a prima facie case for detaining the children from Father, vested temporary placement and custody with the Department pending further order or disposition, and released the children to Mother pending the next hearing. The Department was ordered to provide Mother and the minors with family maintenance services and Father and the minors with family reunification services. When Fathers attorney asked that Father not be interviewed anymore because there was a possible criminal investigation the Department was ordered to not interview Father for its pretrial resolution conference report. Father was given monitored visits, with the Department to approve the monitors, and Mother was ordered to not act as a monitor. The pretrial resolution conference was scheduled for June 4, 2009.

2. The Jurisdiction/Disposition Report

U., J. and Mother were interviewed on May 26, 2009, by a Department social worker. In his interview, U. described, as he had previously done, several instances when Father played the game with him of rubbing the childs penis, including instances in the front yard and the bathroom. He stated that he told Father he did not like the game. He stated Father would do this to him when Mother was not at home, and although Father told him not to talk about it with anyone else because he (U.) would get in trouble, he talked about it at his school anyway. He stated Father said sorry for what he did to him on Wednesday when we got off from court, apparently having reference to the detention hearing on Wednesday, May 13, 2009. Asked about the allegation that Father abused J., U. stated he did not know if Father had done something to my little sister. He stated that Mother always takes J. with her when she leaves the house.

The social worker attempted to interview J. about the allegations regarding sexual abuse of U. but the child was not able to make a statement. However when asked whether Father had hurt her, the Departments report states she replied:  My dad hurt me here (Child point down private part) and it hurt me.  Asked to be more specific, J. was not able to describe or say anything.

In her interview, Mother again described twice seeing U. rubbing his penis in the bathroom (this time she stated he was taking showers) and whereas the first time he would not discuss with her why he was touching himself, the second time he revealed that Father had been playing the game with him both inside and outside the house and he described to Mother the game and Fathers admonitions not to reveal it to anyone. She described how U.s behavior had changed recently and how she went to the school to discuss the situation and ask for help.

Mothers information about J. was more extensive than what she had previously stated. She stated she remembered that in April 2008 she left J. with the childs grandmother and Father because she (Mother) had things to do. When Mother returned home the grandmother told her that while J. was sleeping in her room Father was with J. and the grandmother heard J. crying but the grandmother did not check on J.. Mother further stated that it was in April 2008 that J. first told her that Father hurt her and between April 2008 and May 2009 J. told her various times that Father hurt her in her private part and that Father is a bad boy because he hurt her. J. told Mother that Father hurt her with a thorn[2] and pointed to her private part. On May 25, 2009, J. told Mother that after she went to the bathroom her private part was itchy.

Mother stated that the members of her church told her that they could only believe what she reported to them if she had proof and she told them that the only proof she had was what J. was telling her because the doctor did not give her any proof. Mother stated she went to the doctor many times in the period from May to August 2008 and asked the doctor for a report but he would not give her one. On one occasion she told the doctor that she needed a report to show her church but the doctor told her he could give her no report because there was nothing to report and he asked her who it was that would have touched J. and when she told the doctor it was Father, the doctor observed that she had never previously mentioned Father.

Mother stated that at the end of April 2008 she confronted Father in front of the members of her church after J. had told her for the first time about Father. Mother told Father to leave and he refused. On one occasion when she was giving J. a bath J. told her that Father hurt her. Mother finished the bath and then confronted Father, telling him that J. continued to report that Father had hurt her private part. Father called J. and told Mother and J. that he had only touched her boobies, but J. looked Father in the eye and said No Daddy you hurt me here, pointing to her private part. Mother stated that at that point, Father went outside and stayed there for a long time. Mother stated she did not know what to do or where to go because her only support is the church.

Asked about Fathers drinking, Mother stated Father has a serious drinking problem and he drinks a lot but he has never gone to any programs for the problem. She stated he drinks hard liquor. She stated she does not have a good relationship with him and when he comes home intoxicated he blames her for everything, including her having been molested as a child, and he forces her to have sex with him. This causes her to have flash backs about being molested when she was young. Mother described to the social worker her life growing up in Mexico and the United States, saying that until she was 13 she lived with her parents who were physically, verbally and emotionally abusive and her father was an alcoholic. Her uncle molested her beginning when she was seven and continuing to when she was 13 but she told no one then. Her parents sent her to live with a maternal aunt in Los Angeles when she was 13. While 14 years old and living with the aunt she was molested by her two cousins, one of whom was 27 years old. She met Father when she was 15. He was six years older than she. They dated and then married. As before, she stated their marriage is not a good one and they sleep in separate rooms.

The social worker attempted to interview the parents oldest child who is 30 years old. However when asked for his phone number, Mother told the social worker that he does not want to be involved in the system and wants to be left out of this case.

U. and J. stated they wanted to live with Mother. Both children underwent a complete forensic examination and the results were pending. Mother indicated the minors had not demonstrated any mental or emotional problems since Father moved out of the home and she had obtained a temporary restraining order against Father. The children were being enrolled in the CSAT program. The social worker had contact with Father on May 24, 2009, reminded him that the court permitted him to have visits with the children, and provided him with the name and number of a services worker to contact to arrange visits. As of the date of the jurisdiction/disposition report (May 29,2009), Father had yet to seek a visitation appointment. The social worker opined that Father did not appear to be interested in making visitation arrangements.

The record contains copies of the referrals that were mailed to Father on May 25, 2009, in compliance with the courts detention order. There are referrals for 52‑week parenting and counseling programs for child abusers and neglect, for drug treatment programs, and for counseling programs. It also contains a verification that he enrolled in a program with the Behavioral Management Group on May 14, 2009 for sex offense, parenting and testing. A subsequent verification only states that he was in the parenting class. It also states that he completed five of 12 classes and he had a positive and cooperative attitude and was focused. There are urinalysis test results for tests on June 10 and June 19, each reporting negative results.

The Department recommended that Father be given reunification services, be ordered to participate in the CSAP offenders program, parenting classes, individual counseling to address all case issues, a substance abuse program, random urinalysis testing, and conjoint counseling with the minors when the minors therapist deems it appropriate. The Department recommended family maintenance services for Mother and the children and specific programs for them. The Department also recommended that the court sustain the allegations in the dependency petition in their entirety, custody be taken from the parents, and the minors be declared dependents of the court and permitted to reside in Mothers home under Department supervision.

3. The Adjudication/Disposition Hearing

At the pretrial resolution conference hearing on June 4, 2009, the court was advised that the issues in the case were not resolved. Another TRO was issued in favor of Mother and the minors and against Father, and a jurisdiction and disposition trial date was set for July 9, 2009.

The Department submitted a last minute information for the court at the July 9 hearing. Mother reported that she and U. were attending CSAT group sessions for, respectively, non-offending parents and victims. She stated that when she and the children are home U. talks to Mother openly and frequently about Fathers molestation of him. Mother was concerned that the child spoke so often about it and so she inquired of the minors therapist. The therapist told her that U. also talks openly about the abuse in his group therapy. The social worker spoke with Father on July 7, 2009. Father reported he continued to attend the parenting classes and would begin a sexual abuse program on July 9. He visited the minors on June 25, and June 27 and intended to schedule another visit for the week of July 6, 2009. The social worker who monitored one of the visits reported that it lasted an hour, the children were happy to see Father and comfortable with him, he engaged in play and reading with them, and the children hugged him when the visit ended.

At the July 9, 2009 hearing, Father testified that he never fondled U.s penis. Asked if there has ever been a time when he has had to touch U.s penis, Father stated: The only thing I have done is when I take him to the bathroom, I unbuckle his belt. I unzip his pants. When he has a shirt on, all I do is I tuck his shirt in and I button his shirt and thats it. Thats it. Never ever have I ever touched my son with any ill intention ever. Asked about U.s statements that Father plays a game with him when Mother is not around, Father stated: I dont know. I dont understand why he is saying that. I never pulled his pants down with ill intention and never, never ever playing. Theres no reason for it. The one thing that we do we play tickle. I hug him. I massage his back. His stomach. You know, hes my son and everything is normal. Normal. He stated he has never given U. a bath.

Asked if he has ever fondled J.s vagina, Father stated: Neither. Asked if there have ever been times when he has needed to touch her vagina, Father replied: No. I dont ever remember ever having to do it and never with ill intention, and if I ever did it, I was playing with her as a daughter but never with ill intention because shes my daughter and never with ill intention. Asked what he did in playing with J. even if it was not with ill intention that may have caused him to touch her genitals, Father stated: I dont remember ever touching her. I dont remember in my head. I dont remember ever touching her with any ill intention neither one of the two.

Asked about his use of alcohol and whether he feels he has a problem with it, Father stated: Well, I had. And, you know, when I have drank while Ive drank sporadically but they say it is a problem but I guess so, but I dont drink continuously but ever so often I do. Later, he stated maybe he does not have a problem with alcohol. He stated that in 15 years he could have blacked out once or twice from drinking, and the last time was four or five months ago and the time before that was maybe 10 years or more. He stated that when he drinks he has a couple of drinks and thats it. Later he stated that he might drink three, maybe five drinks at one time, and then he stated sometimes he drinks all day but not over six drinks. He stated he drinks hard liquor and rarely drinks beer. When he drinks hard liquor he does not mix it with anything and it is shots that he drinks. He stated he drinks when he is tired and he drinks when hes happy and likes to feel relaxed.

After taking testimony and arguments on the issues of adjudication and disposition, the court rejected Fathers attorneys argument that Mother had been coaching the children, rejected Fathers assertions that any touching occurred while he was assisting U.s toileting, and found that pursuant to Penal Code section 11165.1, subdivision (b)(4) the touching of these childrens intimate parts cannot be construed reasonably as normal caretaker responsibilities; and, therefore, must be part of sexual gratification on the part of [Father]. Based on Fathers own testimony and Mothers description to the social worker of Fathers drinking, the court stated it gave greater weight to Mothers description of Fathers drinking and it found Father has a drinking problem. The court found that the childrens statements regarding sex abuse are credible and Fathers denials are discredited. The court observed that Father forces Mother to have sex when he is intoxicated and blames her for her having been molested. The court opined that Father does not take responsibility and is in denial.

As noted earlier in this opinion, the court amended the allegations in the dependency petition and sustained the amended petition. It declared the children dependents of the court, removed them from Fathers custody, ordered they remain with Mother, and ordered family maintenance services for Mother and the children, including a non-offender sexual abuse counseling program for Mother, and individual counseling and a support group for the children.

Regarding Father, the court stated it approved the Departments proposed case plan for him. However, the court stated that pursuant to case law it would not order reunification services for Father but it would include Father in the case plan so he knows exactly what he is ordered to do in the event he files a 388 petition. The court did not indicate to what case law it was referring. Fathers case plan includes parenting class, alcohol program with random testing, offender sex abuse counseling, and individual counseling to address all case issues. The court opined that Father has an enormous amount of progress to be made. He has issues that he must address in depth. I am not here to punish him at all, but given his denials and his blaming of the mother that the children are being coached, he has so much to learn and he needs intensive programming and a variety of programs to address the issues that I just sustained.

Monitored visits for Father were continued. A three-year restraining order against Father was signed by the court and served on him. A section 364 six-month review hearing was set for Mother.

CONTENTIONS ON APPEAL

Father contends the trial court erred when it did not provide for reunification services for him. He asserts the court failed to make the requisite factual findings on the issue of reunification and there are no grounds which would support denying him services.

The Department has declined to submit a respondents brief. Instead, it submitted a letter stating that because it had recommended that Father be given family reunification services, under case law (Brown v. Boren (1999) 74 Cal.App.4th 1303), it is obligated to not take a different position on appeal. As noted above, the Department did make that recommendation in its jurisdiction/disposition report. The portion of the Brown opinion to which the Department refers states: It is a firmly entrenched principle of appellate practice that litigants must adhere to the theory on which a case was tried. Stated otherwise, a litigant may not change his or her position on appeal and assert a new theory. To permit this change in strategy would be unfair to the trial court and the opposing litigant. [Citations.] (Id. at pp. 1316-1317.)

DISCUSSION

1. State of the Evidence

In making its decisions at the adjudication/disposition hearing the court had evidence from the Department reports and Fathers testimony to consider. U. made statements to the police, the Departments emergency response social worker and the Departments case social worker regarding sexual abuse by Father. U.s statements were consistent about Father rubbing his penis, Father calling it a game, U. telling Father he does not like the game and Father ignoring him, the places where Father did this to him, that it always happened when Mother was not at home, and that Father told him not to tell anyone. The court had evidence that J. told the emergency response worker and the case worker that Father had hurt her and she always pointed to her vaginal area to show where he hurt her. Further it had Mothers statements to the police and both social workers that both children had told her on more than one occasion that they were being molested by Father and they described to Mother what was happening, with J. telling Mother that Father is a bad boy. Mother described what occurred when she confronted Father about the abuse. Father denied it occurred and J. looked at Father and contradicted him, telling him that he did hurt her and pointed to her vaginal area. Mother even took the matter to a doctor and to her church elders.

2. Reunification Services

Reunification services are not a constitutional right. (In re Alanna A. (2005) 135 Cal.App.4th 555, 563.) However, under section 361.5, subdivision (a), reunification services are a statutory right of children, mothers, statutorily presumed fathers, and guardians whenever a child is removed from the parent or guardians custody. Nevertheless, there are exceptions to the statutory requirement that a court provide reunification services. These exceptions allow the court to bypass reunification services. (Tyrone W. v. Superior Court (2007) 151 Cal.App.4th 839, 845.) Thus, under the provisions of section 361.5, subdivision (a), no reunification services need be provided when (1) the parent has voluntarily relinquished the child, (2) a guardianship for the child has been established under section 360, or (3) the dependency court determines that circumstances enumerated in subdivision (b) of section 361.5 exist. Subdivision (b) of section 361.5 begins with the words [r]eunification 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. (Italics added.) Any of the following includes 15 different bases on which a court could exercise its discretion and deny reunification services.

In the instant case, a reading of the 15 bases shows that the only basis on which the trial court could have denied Father reunification services is the provisions in subdivision (b)(6) of section 361.5. Under those provisions, reunification services need not be provided upon a finding: 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. Subdivision (b) (6) further states that [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-genital, oral-genital, anal-genital, or oral‑anal contact, whether between the parent or guardian and the child or 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 childs, siblings, or half siblings 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.

Thus, bypassing reunification services for a parent or guardian pursuant to section 361.5, subdivision (b) requires a dependency court to make findings by clear and convincing evidence of specific matters regarding the parent and the child. Here, that would include a finding that U. and/or J. was adjudicated a dependent of the court as a result of severe sexual abuse as that term is defined in that subdivision, and a finding whether it would be beneficial to the children to pursue reunification services with Father.

Regarding the issue of benefit to the children, section 361.5, subdivision (c) provides that reunification services shall not be ordered unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child. Moreover, subdivision (h) provides that when the court is considering whether reunification services will benefit a child, the court should consider any information it deems relevant, including six specific factors. Those six factors are: (1) The specific act or omission comprising the severe sexual abuse or the severe physical harm inflicted on the child or the childs sibling or half sibling. [] (2) The circumstances under which the abuse or harm was inflicted on the child or the childs sibling or half sibling. [] (3) The severity of the emotional trauma suffered by the child or the childs sibling or half sibling. [] (4) Any history of abuse of other children by the offending parent or guardian. [] (5) The likelihood that the child may be safely returned to the care of the offending parent or guardian within 12 months with no continuing supervision. (6) Whether or not the child desires to be reunified with the offending parent or guardian.

Subdivision (i) of section 361.5 states that the court shall read into the record the basis for a finding of severe sexual abuse or the infliction of severe physical harm under paragraph (6) of subdivision (b), and shall also specify the factual findings used to determine that the provision of reunification services to the offending parent or guardian would not benefit the child. Here, a reading of the reporters transcript shows that when the court took up the issue of reunification services for Father it made no explicit finding that U. and/or J. suffered severe sexual abuse and no statement of the evidence on which such a finding would be based. Nor is there a statement of the factual findings on which to base a denial of reunification services on the ground they would not be beneficial to the minors.

Noting that reviewing courts can infer necessary findings if the inferred findings are supported by substantial evidence (In re S.G. (2003) 112 Cal.App.4th 1254, 1260), Father argues that there is no substantial evidence to support the findings missing in this case and therefore we should reverse the courts July 9, 2009 order insofar as the order denies Father reunification services. Father observes that the sustained allegations are that he fondled U.s penis and J.s vagina, and he asserts there is no evidence in the record of any of the specific types of sexual activity specified in subdivision (b)(6). We agree. However, that subdivision also states that while a finding of severe sexual abuse can be based on those specific types of sexual activity, such a finding is not limited to them. Perhaps the trial court had something else in mind that would support a finding of severe sexual abuse. As for the issue whether reunification services would benefit the minors and is in their best interest, the courts decision to deny Father services but include him in the case plan appears to send a mixed message. Based on these matters, we will reverse the July 9, 2009 order in relevant part and direct that the trial court, on remand, hold another hearing at which it will fully reconsider the issues of severe sexual abuse and whether providing Father with reunification services would be in either or both minors best interest and make appropriate findings thereon.

DISPOSITION

The portion of the trial courts July 9, 2009, order denying Father reunification services is reversed and the case is remanded for the courts reconsideration, in light of the views expressed herein, of the issue of reunification services for Father, including the issues as to whether (1) either or both of the minors was subjected to severe sexual abuse and (2) providing Father with reunification services would be in either or both minors best interests. In all other respects, the July 9, 2009 order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CROSKEY, J.

We Concur:

KLEIN, P. J.

KITCHING, J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line Lawyers.

San Diego Case Information provided by www.fearnotlaw.com

[1] All references herein to statutes are to the Welfare and Institutions Code.

[2] There is no indication in the record what Jael meant when she used the word thorn, whether she had reference to Fathers finger, an instrument he used, or something else.