Filed 6/14/12 Certified for publication 6/27/12 (order attached)
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re A.G. et al, Persons Coming Under the
Juvenile Court Law.
D061239
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. SJ12670A-D)
Plaintiff and Respondent,
v.
HUGO G.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Garry G.
Haehnle, Judge. Affirmed.
Presumed father Hugo G. appeals a judgment following the dispositional hearing in
the juvenile dependency case of his sons, Erick G. and Edwin G. (together, the boys). 1
Hugo contends that the court erred in denying him reunification services. We affirm.
I
BACKGROUND
In October 2011, the San Diego County Health and Human Services Agency (the
Agency) filed dependency petitions on behalf of 11-year-old A.G. (Welf. & Inst. Code,
§ 300, subd. (d) [sexual abuse]),2 and on behalf of eight-year-old Erick, three-year-old
Edwin and nine-month-old Brianna (§ 300, subd. (j) [abuse of a sibling]).3 The petitions
alleged that on January 26, 2010, Hugo sexually abused A.G. Specifically, the petitions
alleged that Hugo forced A.G. to remove her clothing, touched her vaginal area with his
hand, removed his pants and asked her to touch his penis and attempted to penetrate her
anus with his penis.
A.G. and Erick were detained at Polinsky Children's Center, and Edwin and Brianna
were detained in a foster home. At the October 20, 2011, detention hearing, the court
authorized voluntary services for Hugo, and ordered that his visits with the boys be
supervised.
1
The notice of appeal also refers to Hugo's daughters, A.G. and Brianna G., but Hugo
does not raise any issues as to them. We mention A.G. and Brianna only as necessary to our
discussion of Hugo's contentions regarding the boys.
2
All further statutory references are to the Welfare and Institutions Code.
3
We refer to the boys, A.G. and Brianna, together, as the children.
2
In November 2011, the Agency filed amended petitions. The amended petitions
contained additional allegations that between September 2010 and October 17, 2011, Hugo
physically abused A.G., Erick and Edwin. (§ 300, subd. (a) [serious physical harm inflicted
nonaccidentally].)4 Specifically, the amended petitions alleged that Hugo hit them with a
belt, leaving marks and bruises on their legs. The children's mother, Martha H., saw the
bruises but was unable to stop Hugo from hitting A.G., Erick and Edwin. In October 2010,
in Martha's presence, Hugo slapped A.G. and "hit her on the eye with his finger . . . ." A.G.,
Erick and Edwin were afraid of Hugo.
In November 2011, the children were detained with the paternal grandparents at
Hugo and Martha's home, and Hugo and Martha moved out. At the November 9 detention
hearing on the amended petitions, Hugo's counsel requested that the court order the Agency
to refer Hugo to a 52-week child abuse class. The court denied the request.
On January 3, 2012, the court made true findings on the amended petitions. During
the dispositional phase of the hearing, the court asked for further argument regarding the
section 300, subdivision (j) counts in the boys' amended petitions. After hearing argument,
the court dismissed those counts.
The court declared the children dependents and ordered them removed from Hugo
and Martha's custody and placed with a relative. The court ordered reunification services
for Martha and denied services for Hugo. The court allowed Hugo to have supervised
4
The amended petition on behalf of Brianna was based on Hugo's physical abuse of
A.G., Erick and Edwin. (§ 300, subd. (j).)
3
visitation with the boys and Brianna, and ordered that there be no contact between Hugo and
A.G.
II
The Court Did Not Err In Denying Hugo Reunification Services
Section 361.5, subdivision (b) provides exceptions to the general entitlement to
reunification services set forth in section 361.5, subdivision (a). "Reunification services
need not be provided to a parent . . . when the court finds, by clear and convincing
evidence" that an exception set forth in section 361.5, subdivision (b)(6) or (7) applies.
(§ 361.5, subd. (b).) In A.G.'s case, the court applied the exception set forth in section
361.5, subdivision (b)(6). That exception allows the court to deny reunification services
when "the child has been adjudicated a dependent . . . as a result of severe sexual
abuse . . . [of] the child . . . by a parent . . . , and the court makes a factual finding that it
would not benefit the child to pursue reunification services with the offending parent . . . ."
(§ 361.5, subd. (b)(6).) As to the boys, the court relied on the exception set forth in section
361.5, subdivision (b)(7). That exception allows the court to deny services when "the parent
is not receiving reunification services for a sibling or a half sibling of the child pursuant to
paragraph . . . (6)."5 (§ 361.5, subd. (b)(7).)
5
The exception in section 361.5, subdivision (b)(6) also applies when "the child has
been adjudicated a dependent . . . as a result of severe sexual abuse . . . [of] . . . a sibling[] or
a half sibling by a parent . . . , and the court makes a factual finding that it would not benefit
the child to pursue reunification services with the offending parent . . . ." (§ 361.5, subd.
(b)(6).) Section 361.5, subdivision (b)(6) did not apply in the boys' cases because the court
dismissed the section 300, subdivision (j) allegations.
Hugo does not challenge the denial of services in A.G.'s case.
4
"In determining whether reunification services will benefit the child pursuant to
[section 361.5, subdivision (b)(7)], the court shall consider any information it deems
relevant, including the following factors: [¶] (1) The specific act or omission comprising
the severe sexual abuse . . . inflicted on . . . the child's sibling or half sibling[;] [¶] (2) The
circumstances under which the abuse or harm was inflicted on . . . the child's sibling or half
sibling[;] [¶] (3) The severity of the emotional trauma suffered by the child or the child's
sibling or half sibling[;] [¶] (4) Any history of abuse of other children by the offending
parent . . . [;] [¶] (5) The likelihood that the child may be safely returned to the care of the
offending parent . . . within 12 months with no continuing supervision [;] [¶] (6) Whether or
not the child desires to be reunified with the offending parent . . . ." (§ 361.5, subd. (i).)
" ' "[O]nce it is determined one of the situations outlined in [section 361.5,]
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.]" ' [Citation.]" (In re William B. (2008) 163 Cal.App.4th 1220, 1227.) Thus,
"[t]he court shall not order reunification for a parent . . . described in [section 361.5,
subdivision (b)(6) or (7)] unless the court finds, by clear and convincing evidence, that
reunification is in the best interest of the child." (§ 361.5, subd. (c).) "The burden is on the
parent to . . . show that reunification would serve the best interests of the child." (In re
William B., at p. 1227.) The best interests determination encompasses a consideration of the
parent's current efforts, fitness and history; the seriousness of the problem that led to the
dependency; the strength of the parent-child and caretaker-child bonds; and the child's need
for stability and continuity. (Id. at p. 1228, quoting In re Ethan N. (2004) 122 Cal.App.4th
5
55, 66-67.) A best interests finding also requires a likelihood that reunification services will
succeed. (In re William B., at p. 1228.) "In other words, there must be some 'reasonable
basis to conclude' that reunification is possible before services are offered to a parent who
need not be provided them. [Citation.]" (Id. at pp. 1228-1229.)
As noted above, under section 361.5, subdivision (b)(7) the court may deny
reunification services when "the parent is not receiving reunification services for a sibling or
a half sibling of the child pursuant to paragraph . . . (6)." (§ 361.5, subd. (b)(7).) This
statutory language is unambiguous. Thus, " 'we presume the Legislature meant what it said,
and the plain meaning of the language governs.' " (In re Austin P. (2004) 118 Cal.App.4th
1124, 1129.) We therefore reject Hugo's suggestion that section 361.5, subdivision (b)(7) is
inapplicable to the boys because the court concluded that they were not at risk of sexual
abuse and dismissed the section 300, subdivision (j) allegations. Hugo's reliance on In re
Maria R. (2010) 185 Cal.App.4th 48 and similar cases is unavailing. The holding in that
case was a narrow one. In In re Maria R., this court concluded that a parent's sexual abuse
of a daughter does not necessarily mean that a son is at risk of sexual abuse by that parent.
(Id. at pp. 63, 67-68.) However, we also stated that it is a "commonsense notion that any
child who is residing with a parent . . . who has sexually abused the child's sibling, and/or a
parent who has minimized the sexual abuse of the child's sibling, is living in a dysfunctional
and potentially harmful environment." (Id. at p. 68.) Thus, rather than supporting Hugo's
argument that his sexual abuse of A.G. does not indicate that he poses a danger to the boys,
Maria R. suggests that Hugo does pose a risk to the boys by creating a "dysfunctional and
potentially harmful environment." (Ibid.)
6
Further, section 361.5, subdivision (i) expressly provides that in determining whether
to deny services pursuant to section 361.5, subdivision (b)(7), "the court shall consider any
information it deems relevant, including" the severe sexual abuse of the sibling. (§ 361.5,
subd. (i)(1).) The court found that Hugo's anal-genital contact with A.G. and his penetration
of her vagina with his finger constituted severe sexual abuse. (Ibid.)
Other factors in section 361.5, subdivision (i) also support the denial of services in
this case. Hugo's sexual abuse of A.G. occurred in the family home, on a bed where Edwin
was sleeping. Erick was asleep in the same room at the time. Hugo denied that he had
sexually abused A.G., but admitted that he had bathed with her until she was about eight
years old, and claimed that "she would always stare at his penis." He also stated that when
she was nine years old, she became promiscuous, and he did not "like it when she [wore]
short dresses or little shorts." In discussing A.G. with the social worker, Hugo asked,
"[H]ave you seen her body, how developed she is?" Hugo said that he had told A.G. that
boys should not "touch her body, on top or bottom," and added that in telling A.G. this, he
might have pointed to her breasts and crotch area. Hugo claimed that A.G. might have
become confused and thought that he was going to touch her.
A.G. suffered severe emotional trauma. She was frightened of Hugo and was afraid
that he was going to hurt her again. She was also worried that Hugo might sexually abuse
the boys. (§ 361.5, subd. (i)(3).)
Hugo denied leaving any bruise or mark on the boys when he hit them with a belt,
and was unwilling to admit the severity of the abuse he inflicted on them. Although Hugo
had engaged in voluntary services, including the completion of two parenting classes and
7
participation in five sessions of a treatment group for sexual offenders, he presented no
evidence that he had learned anything from those services. He did not take responsibility
for his actions and showed no empathy for the children. Hugo needed treatment to deal with
having been sexually abused, himself, as a child, and possibly for his anger, as well.
The paternal grandfather testified that Hugo was appropriate during supervised visits
with the boys, and said that the boys called Hugo "daddy" and hugged him. However,
Edwin told the social worker that he was afraid of Hugo, and Erick told the social worker
that Hugo angered easily and made him cry. When Erick cried, Hugo called him a
derogatory name and said "men do not cry." This made Erick sad. In addition, Erick said
that he felt bad because Hugo was "real mean" to A.G.
For the above reasons, we conclude that there is substantial evidence to support the
court's finding that section 361.5, subdivision (b)(7) applied. (Cheryl P. v. Superior Court
(2006) 139 Cal.App.4th 87, 96.) Thus, the court was required to deny services for Hugo
unless Hugo proved that reunification would be in the boys' best interests. Hugo made no
such showing. Further, the facts outlined above amply support the conclusion that the court
did not abuse its discretion in finding that reunification would not be in the boys' best
interests. (In re William B., supra, 163 Cal.App.4th at p. 1229.)
8
DISPOSITION
The judgment is affirmed.
AARON, J.
WE CONCUR:
NARES, Acting P. J.
IRION, J.
9
Filed 6/27/12
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re A.G. et al., Persons Coming Under the
Juvenile Court Law.
D061239
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. SJ12670A-D)
Plaintiff and Respondent,
v.
HUGO G.,
Defendant and Appellant.
ORDER CERTIFYING OPINION FOR
PUBLICATION
THE COURT:
The opinion filed June 14, 2012, is ordered certified for publication.
The attorneys of record are:
Elizabeth C. Alexander, under appointment by the Court of Appeal, for Defendant
and Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel and Dana C. Shoffner, Deputy County Counsel, for Plaintiff and Respondent.
Suzanne F. Evans, under appointment by the Court of Appeal, for Minors.
NARES, Acting P. J.
Copies to: All parties
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