Filed 12/4/14 In re N.S. CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO


In re N.S., et al., Persons Coming Under
the Juvenile Court Law.

SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES,                                            E061142

         Plaintiff and Respondent,                                       (Super.Ct.Nos. J252823 & J252824)

v.                                                                       OPINION

J.S.,

         Defendant and Appellant.


         APPEAL from the Superior Court of San Bernardino County. Lily L. Sinfield,

Judge. Affirmed.

         Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Jean-Rene Basle, County Counsel, Jeffrey L. Bryson, Deputy County Counsel, for

Plaintiff and Respondent.

         The juvenile court declared minors, N.S. (born 1999) and N.Y.S. (born 2002),

dependents of the court, removed them from the custody of defendant and appellant J.S.

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(father), and placed them with their mother under family maintenance services.1 The

juvenile court additionally denied father reunification services finding, pursuant to

Welfare and Institutions Code section 361, subdivision (b)(6),2 that N.Y.S. had been

adjudicated a dependent of the juvenile court as a result of severe sexual abuse by father.

Father appeals, contending insufficient evidence supports the order denying him

reunification services. We affirm.

                        FACTUAL AND PROCEDURAL HISTORY

       On January 14, 2014, a social worker with plaintiff and respondent San

Bernardino County Children and Family Services (CFS) responded to a referral regarding

the purported sexual molestation of N.Y.S. by father. N.Y.S. reported that from

November 2013, father began sexually molesting her. The incidents included father

tongue kissing her, taking showers with her naked, attempting penile penetration of her

vagina and anus, digital penetration, compelling her to masturbate him, forcing her to

perform onanism while father watched and masturbated, compelling her to perform oral

copulation on him, and performing oral copulation on her. N.Y.S. reported the sexual

abuse occurred daily between 7:10 a.m. and 8:30 a.m. after her brother, N.S., had left for

school and prior to when she needed to leave for school.

       On January 17, 2014, the juvenile court detained minors. In the jurisdiction and

disposition report filed on February 4, 2014, the social worker reported that father denied

       1   Mother is not a party to the appeal.

       2All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.


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all of N.Y.S.’s allegations. Father said N.Y.S. must have been coached to make the

allegations by father’s ex-girlfriend. Mother’s whereabouts were unknown.

       N.Y.S. reported being much happier now that she was out of father’s home. A

forensic interview and medical examination of N.Y.S. was conducted at the Child

Assessment Center on January 17, 2014. The forensic interview reflected “very detailed

information which is highly suggestive for sexual abuse.” N.Y.S did not wish to have

any visits with father.

       N.S. had been observed to begin shaking badly and became very frightened when

father had approached him at the detention hearing. N.S. was worried about being

returned to father’s care.

       Mother was later found living in the San Francisco Bay area. She had been having

only intermittent contact with minors for some time. Mother entered into mediation with

CFS in which some of the allegations in the petitions would be dismissed and another

allegation amended in return for mother’s submission on the petitions and placement of

minors with mother under family maintenance services.

       In an addendum report, minors reported they wanted to live with mother. N.Y.S.

continued to refuse visitation with father. In another addendum report, CFS

recommended the court deny reunification services to father as a result of the alleged

severe sexual molestation of N.Y.S. CFS subsequently informed the court N.S. had come

home from a visit with father shaking and saying “‘don’t talk, don’t talk’” which they

interpreted as father telling N.S. not to talk. N.S., who is autistic, disclosed through

gestures that he had seen father have sex with N.Y.S.: “[H]e demonstrated in detail what


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he saw.”

       Father failed to appear at the jurisdiction hearing on April 14, 2014.3 The juvenile

court found the allegations in the amended petitions true. At the disposition hearing on

April 30, 2014, the juvenile court removed minors from father’s custody, declared minors

dependents of the court, and returned minors to mother’s custody under the supervision

of CFS with mother participating in family maintenance services. The court denied

father reunification services pursuant to section 361.5, subdivision (b)(6).

                                         DISCUSSION

       Father contends insufficient evidence supports the juvenile court’s order denying

him reunification services. We disagree.

       “Reunification services need not be provided to a parent or guardian described in

this subdivision when the court finds, by clear and convincing evidence,” “[t]hat the child

has been adjudicated a dependent . . . as a result of severe sexual abuse . . . to the child”

and/or a sibling “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, subd.

(b)(6).) “A finding of severe sexual abuse . . . may be based on . . . sexual intercourse, or

stimulation involving genital-genital, oral-genital, anal-genital, or oral-anal contact, . . .

between the parent . . . and the child or a sibling . . . for the sexual gratification of the

parent . . . .” (Ibid.)

       “In determining whether reunification services will benefit the child pursuant to

       3  At the disposition hearing, father’s counsel indicated father had confused the
date of the jurisdiction hearing with the date he was supposed to report to jury duty.


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paragraph (6) . . . of subdivision (b), the court shall consider any information it deems

relevant, including the following factors: [¶] (1) The specific act or omission comprising

the severe sexual abuse or the severe physical harm inflicted on the child or the child’s

sibling . . . . [¶] (2) The circumstances under which the abuse or harm was inflicted on

the child or the child’s sibling . . . . [¶] (3) The severity of the emotional trauma suffered

by the child or the child’s 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 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.” (§ 361.5, subd. (i)(1)-(6).)

       “‘“‘[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.]’ [Citation.] 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.’

[Citation.] ‘The burden is on the parent to . . . show that reunification would serve the

best interests of the child.’ [Citation.] 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. [Citation.] A best interests

finding also requires a likelihood that reunification services will succeed. [Citation.] ‘In


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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.]’ [Citation.]” (In re A.G. (2012) 207 Cal.App.4th 276, 281.)

       “We review an order denying reunification services by determining if substantial

evidence supports it. [Citation.] In doing so, we resolve all conflicts in the evidence in

favor of the juvenile court’s finding. [Citation.]” (In re S.B. (2013) 222 Cal.App.4th

612, 623.)

       Here, substantial evidence supports the juvenile court’s determination that section

361.5, subdivision (6) was applicable. Father had engaged in varying acts of sexual

abuse against his then 11-year-old daughter on a daily basis for approximately two

months. N.Y.S.’s disclosures during the CAC interview were extremely detailed and

highly disturbing. She reported father would tell her he was “excited for her to get older

so that he [could] ‘do more things to her as a woman.’” N.Y.S. refused any offer to see

father and stated that she never wished to live with him again. N.S. had apparently

witnessed at least one sexual incident between father and N.Y.S. N.S. was visibly

shaking with fear when around father on at least two occasions during the proceedings.

       Father disavowed all the allegations: “Such denial on the part of a parent usually

[indicates] a poor prognosis for family reunification, as any child will always remain at

extreme high risk for abuse or neglect.” Father had apparently told N.S. not to reveal

what he had witnessed to anyone. Likewise, father had told N.Y.S. not to tell anyone

what he did to her because he would go to prison and she would be put in foster care.

Father’s sister had attempted to get N.Y.S. to recant the allegations when speaking to her


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by telephone at the foster parent’s home. Nearly every circumstance itemized under

section 361.5, subdivision (i)(1) through (6) was applicable in this case. Sufficient

evidence supported the juvenile court’s denial of reunification services for father.

       Father exposits In re I.J. (2013) 56 Cal.4th 766, In re Andy G. (2010) 183

Cal.App.4th 1405, and In re Karen R. (2001) 95 Cal.App.4th 84, for the proposition that

reunification services may properly be ordered for a parent who sexually molested a

minor. However, all of these cases dealt with jurisdictional findings, not dispositional

orders such as an order regarding reunification services. (I.J., at pp. 771-772, 778; Andy

G., at pp. 1407, 1409-1410, 1415; Karen R., at pp. 88-89. 91.) “‘[I]t is axiomatic that

cases are not authority for propositions not considered.’ [Citation.]” (Sonic-Calabasas

A, Inc. v. Moreno (2013) 57 Cal.4th 1109, 1160.) In any event, the fact that reunification

services may be ordered to an offending parent is not commensurate with a requirement

that the juvenile court must offer such services. Here, substantial evidence supported the

court’s finding that N.Y.S. was severely sexually abused by father, and father failed to

prove that reunification services would benefit minors.

                                      DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS
                                                                CODRINGTON
                                                                                             J.
We concur:

HOLLENHORST
                 Acting P. J.

RICHLI
                           J.


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