1

Filed 7/26/23 In re M.P. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

In re M.P. , a Person Coming Under the Juvenile Court Law.

SONOMA COUNTY HUMAN SERVICES DEPARTMENT, Plaintiff and Respondent,

v. A.D., Defendant and Appellant

. A16 6036
( Sonoma County Super. Ct. No. DEP

- 5306

- 02 )

Minor M.P. is a 17 year old with autism who was the subject of a prior dependency petition with sustained allegations of sexual abuse by her stepfather. The Sonoma County Human Services Department (Department)
initiated subsequent dependency proceedings based on th at abuse and the failure to protect by M.P. ’s mother (Mother)

. T he juvenile court bypassed reunification services to Mother in its dispositional findings and orders pursuant to Welfare and Institutions Code section 361.5, subdivision (b)(3) (section 361.5(b)(3))

. 1 Under that statute, r eunification services need not be

1 Undesignated statutory references are to the Welfare and Institutions Code. Minor’s presumed father waived family reunification services and is not a party to this appeal.2

provided to a parent if the child has been previously adjudicated a dependent

as the result of sexual abuse, was originally removed from the parent’s custody and later returned, and is being removed again “ due to additional physical or sexual abuse .” We agree with Mother that the juvenile court erred in applying section 361.5(b)(3) here

. The statute is narrowly drawn to address situations involving additional acts of abuse, after a child has been removed and
returned. It does not create a scheme to end reunification ser vices based on the speculative risk of potential future abuse. While there is no dispute regarding the sufficiency of the evidence supporting the removal of Minor from the home a second time ( after stepfather returned there following a successful appeal o f his parole violation), t he record lacked clear and convincing evidence of additional abuse

. We therefore reverse the order denying reunifica tion services to Mother pursuant to section 361.5(b)(3)

. BACKGROUND 2 A. Prior Dependency Proceeding s After serving approximately 17 years in prison for second degree
murder , M inor ’s stepfather was released on lifetime parole in 2016. According to Mother, she and stepfather were longtime family friends and
she visited him in prison every month for 10 year s

. After his release , t hey married and he moved into the family home

. Roughly a year after his release, i n 2017, prosecutors charged stepfather with four counts of committing a lewd or lascivious act against
Minor

. (Pen. Cod e, § 288, subd. (a).) T he Department filed a petition on

2 The record in this case is extensive. This summary is not comprehensive , but r ather intended to provide relevant context relating to the issue on appeal

.3

behalf of Minor pursuant to section 300, subdivision s (b) (failure to protect) and (d) (sexual abuse)

. The petition alleged, among other things, that

w itnesses o bserv ed stepfather inappropriate ly touching Minor , including

“ under her shirt on her breasts in a sexual manner, touching the child ’ s bottom in a sexual manner, and having the child lay on top of him on his bare chest while kissing her on the lips. ” The petition further alleged that Mother
did not believe the stepfather had abused Minor. At one point, Mother asked
an in

- home service provider not to disclose that the stepfather helped Minor
shower

. Minor “ was able to describe sexual abuse by [stepfather] in a forensic interview which took place in her edu cational setting.”
The juvenile court sustained the petition . A fter approximately three

years of family reunification and family maintenance services, the court returned Minor to Mother ’s care and dismissed the matter

. According to the Department, Mother reported that she would not have any future contact with Minor’s stepfather

. In March 2020, she also reported she had filed for
divorce. From late 2019 through 2020, the Department received multiple general referrals o f Minor to them based on concerns relating to neglect. Meanwhile, the jury in stepfather’s criminal case found him not guilty of two counts . T he trial court dismissed the remaining t wo counts at the request of the prosecutor after the jury was unable to reach a verdict

. T he
trial court subsequently conducted a contested parole violati on hearing . It found that stepfather had violated his parole. On appeal, the parole violation
was reversed due to a lack of substantial evidence to support the
d etermination that the stepfather “acted with the intent of ‘ gratifying the lust and passions of [ stepfather or Minor ],’ in violation of [Penal Code] section 288, subdivision (a)

. ” ( People v. McNutt ( Jul. 21, 2020 , A157472 ) [nonpub. opn.]

. ) Stepfather then returned to the home. Mother expressed her belief4

that people are mistaken about stepfather because they “just don’t know
what it ’ s like to parent an[] autistic child, he did nothing wrong.”
B. Current Petitio n and Detention In April 2022, based on reports that Mother allowed the stepfather to
move back into the home with Minor , the court issued a protective custody
warrant to remove Minor

. The juvenile court placed Minor at a children’s
home

. The stepfather was indeed present at the home when Minor was
removed , and Mother purportedly stated that he “ ‘ c a me home about a month

ago after being released from parole

. ’ ” Mother said that Minor loved stepfather, and that his return to the home was the happiest Mother “had ever seen” Minor. Mother also stated that since stepfather “won his criminal appeal, there is no reason to not allow him into the home or to leave him alone with [Minor].”
T he Department filed the current petition a few days later

. It alleged
that Mother failed to protec t Minor “ from sexual abuse and/or the substantial risk of sexual abuse ” by the stepfather by allowing him to return to the home and resume unsupervised care of Minor

. The petition referenced the allegations sustained in 2017. It also alleged that Mother maintains stepfather “ does not pose a risk” to Minor , and that Minor “is experiencing intensified symp toms of sexualized and [ self

- injur i ous ] behavio r at this time.” Despite her earlier reports to the contrary, Mother apparently never did file for divorce.
T he juvenile court found the Department made a prima facie case that
Minor came within section 300 and that permitting her to remain in her Mother’s custody was con trary to Minor’s welfare. The court ordered Minor
detained by the Department

.5

C. Jurisdiction and Disposition
In its May 2022 jurisdiction/disposition report, the Department recommended that the juvenile court sustain the allegations against Mothe r, declare Minor a dependent, and bypass reunification services for Mother. The report detailed multiple referrals for Minor that the Department
received between the dismissal of the original petition and the filing of the

current petition. In October 2019 , for example, Minor was reported “to have
outbursts and a lot of self

- injury at home and at school. Specifically, [Minor]
started screaming and crying, and punched her leg a bout eight times.” In January 2020 , it was “further reported that [Minor] demonstrated a
si gnificant increase in sexualized behaviors and emotional distress,” including making sexual sounds, kissing the librarian on the face, “wailing, screaming, and hitting her head with her fists.” In February 2020, it was reported that “there were twelve major self

- injury behaviors in the previous two weeks and the child was screaming most of the day and hit her head with
a cl osed fist, which was not a part of her baseline behavior.” In September 2020, Mother reported that Minor ’s self

- injurious behaviors included “hitting herself with a closed fist, hitting herself in the head with an open hand, and biting herself.” Minor’s teacher reported that during August and September 202 1 , Minor was crying and screaming every day, it then “ ‘ got better ’ ” and Minor “appeared to be improving” between October and December 2021, but was

“ ‘ ram p ing up again where she was crying every day.’ ” Since the Department
removed Minor from the home, the teacher reported “continued behaviors of [Minor] hitting herself, but stated that overall, ‘her behavior has been pretty good.’ ”6

In its August 2022 addendu m report, the Department reported that
both prior to her removal from Mother’s home and also while at the children’s
home , Minor “ often will have periods of time in which she will cry, often without any known trigger. At times, she has difficulty sleeping through the night. However, these instances are improving while at [the children’s home] and it has been noted that she appears to be havin g more ‘good days,’ than

not

. ” While Minor’s “ v erbal and connection skills remain significantly low, she did make more eye contact with the undersigned than during previous contacts and was more vocal, providing two to four word sentences at times .”
Mino r and Mother were having weekly supervised in

- person visits. The juvenile court held a contested j urisdiction and disposition hearing

on August 25, 2022

. The Department did not present any witnesses, but upon request , the court took judicial notice of th e case file. Mother testified that the stepfather came back to the house in February 2022 to have a
conversation with Mother and Minor, and Mother was “positive” that he did not “sexually assault” Minor. She testified that this was the first time Minor had contact with her stepfather since he was released from custody. Mother
also testified that the stepfather did not live at the home, but in Vacaville with a friend.
The court then stated that “it’s the gro oming be h avior that, in this case, is alarming.

. . . So when he ’ s lying on the couch without his shirt on and
she ’ s lying next to him and he ’ s kissing and nibbling her neck, I mean, that ’ s a grooming

- type behavior. ” It continued: “So, again, we were al l concerned that there’s all this stuff going on and it’s not setting off a lot of red flags for you.”
At the conclusion of the evidentiary portion of the hearing, the court explained: “S o in today ’ s hearing, I felt obligated to let you know, ma ’ am,7

abou t what I see this case is about, because I know you ’ re kind of caught on
the idea , ‘ Did he or did he not sexually molest my child ’ in the sense of digital penetration of the vagina, sexual, you know, full

- penis rape type of thing. And again, I was focused more on the

— what I saw in this case as the grooming behavior that could be heading t oward that, and we need to cut that off. ” Mother’s counsel requested reunification services, argu ing that the bypass provision s of section 361.5 cannot be applied by “trying to bootstrap”
the sexual abuse from the prior dependency matter into the current one , and that “risk of harm” is not enough to bypass services

. The Department argued that section 361.5(b)(3) did apply because “ the child was previously adjudicated as a result of being

— physical or sexual abuse [d] ; the child had
been removed from the custody of the parent pursuant to Section 361; the
child was retur ned to the custody of the parent; and the child has now been removed again for concerns about sexual abuse .” The court responded : “All right. The Court does find jurisdiction. The Court does find that (b)(3) does apply.” It noted, however, that “ there ’ s obviously no doubt that Mother loves her daughter and is devoted to her. And, you know, 30 years from now, there ’ s only going to be really one person who wants to spend a lot of time with her, and that ’ s Mom. [¶] So Mom ’ s a lifelong, devoted care prov ider for her daughter. So, I mean, ongoing and frequent contact between Mom and her daughter is ideal. ” Minor’s counsel
stated that Mother was “stuck.” “Even after everything that was said, [Mother] said ‘ [Minor]’s happiest with me and [stepfather]. ’ ” The court replied, “ And that’s still her position.” Minor ’s counsel continued , “And that’s still her position. And I

— and afte r three years of services, we haven’t moved8

her off that. I don’t know what else we can do to move her off that and protect [Minor].”
The court concluded : “I mean, no matter what I do in the next minute, you will always be Mother, and you’ve heard me s ay how important I believe it is for you to have that ongoing contact with your daughter. And the social workers are here. But at this point in time, the court cannot order reunification services based on where we find ourselves. So there is a bypass,

a nd we do need to have the case set for a hearing on the permanent plan.”
In its written findings and orders after dispositional hearing , t he court found Minor was a person described by section 300, subdivisions (b) and (d ) , and determined that her placement at the children’s home was necessary and appropriate. It also found Mother was a person described under section
361 .5 ( b ) (3) by clear and convincing evidence, and denied reunification
services

. Mother now appeals

. DISCUSSION
Mother ’s appeal presents a narrow issue

. She does not challenge the juvenile court’s finding that Minor is a person described by section 300, or its
determination that Minor’s out

- of

- home placement is appropriate and

necessary. Nor does she dispute that three of the four conditions for bypass of reunification services under s ection 361.5( b)(3) were present here : (1) the court adjudicated Minor a dependent as the result of sexual abuse by stepfather ; (2) the Department originally removed Minor from Mother ’s custody in 201 7 ; and (3) the court returned Minor to Mother’s custody in 2019. Instead, Mother argues that the juvenile court erred on the fourth and final condition of section 361.5(b)(3) : that Minor was removed from Mother’s custody again “ due to additional physical or sexual abuse .”9

W hen a child is removed from a paren t’ s custody, California law generally requires that the parent must be provided with family reunification
services. ( In re T.R. (2023) 87 Cal.App.5th 1140, 1148 .) “ Reunification services implement ‘the law ’ s strong preference for maintaining the family

r elationships if at all possible. ’ ” ( In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1787.) Specific exceptions to this rule are set forth in 361.5 , subdivision (b) , which are “commonly called ‘bypass provisions

. ’ ” ( In re T.R. , supra , 87 Cal.App.5th at p. 1148 .) “ Because family preservation is so important in the early stages of a dependency, the Legislature has applied to reunification services a statutory presumption and heightened standard of proof. ” ( I bid. ; see also In re Luke L. ( 19 96) 44 Cal.App.4th 670, 678 [ “ I t is difficult, if not impossible, to exaggerate the importance of reunification in the dependency system” ].) Specifically, t he Department bears the burden of proving th e exception applies, subject to a clear and convincing standard of proof

. ( § 361.5, subd. (b); In re T.R. , at p. 1148

. ) If the juvenile court finds by clear and convincing evidence that a bypass provision applies , the burden then shifts to the parent to prove (again by clear and convincing evidenc e) that reunification services would be in the child’s best interests. ( In re T.R. , at

p. 1148

. ) The court must deny r eunification services unless the parent meets
that burden . ( § 361.5, subd. (c)(2).) Mother argues that t he plain language of section 36 1.5(b)(3) regarding

“ additional physical or sexual abuse ” requires a new incident of abuse, after
the child has returned to the home and in addition to the incident s that prompted the juvenile court to act on the earlier petition

. ( See , e.g., S.V. v. Superior Court (2018) 28 Cal.App.5th 671, 673

– 674, 67 7 [ § 361.5(b)(3) properly applied where prior incident of physical abuse occurred in 2016 and10

additional abuse occurred in 2018 ]; In re D.F. (2009) 172 Cal.App.4th 538,
541

– 542 [ affirming application of § 361.5(b)(3) where prior physical abuse occurred in 1995 and additional sexual abuse occurred in 2006] .) Mother
contends that the potential speculative “ risk ” of further sexual abuse b ased

on the stepfather’s presence at the home was insufficient to trigger the bypass provision

. The Department does not appear to dispute Mother’s interpretation of
section 361.5(b)(3) . Instead, it suggests that the juvenile court correctly applied th is bypass provision by making an “implicit ” finding t hat stepfather
sexual ly abuse d Minor after they both returned to the home

. While we are aware of the Department’s observation that Mother “remain[s] steadfast in her beliefs about stepfather, her belief that no further services would be helpful or change her mind,” and the fact that it is not clear whether Mother is able “to benefit from additional services,” those are not factors that are relevant to whether the bypass provision has been triggered in the first
instance. Based on our review of the record of the August 25, 2022 hearing , the juvenile court never made a finding of additional abuse by the stepfather in the period after both had returned to the family home

. Rather, b efore making its finding that section 361.5(b)(3) applied , the juvenile court explained it was concentrated on preventing future abuse before it took place. Specifically, the court explained that it was “focused” on stepfather’s 2017 “g roomin g ” behavior toward Minor

. The court expressed concern that stepfather’s beh avior “ could be heading t oward ” additional abuse , not that
such additional abuse had occurred. The court’s concern was an understandable inference based on the evidence at the hearing

— indeed , the concern is central to the Department’s ongoing intervention on Minor’s11

behalf

— but it did not trigger the bypass provision to end reunification services for Mother because it was not based on evidence of additional abuse

. In essence, the Department asks us to infer that it presented clear and convincing evidence of additional sexual abuse of Minor by stepfather

. W e

can infer a necessary finding “ provided the implicit finding is supported by
substantial evidence

. ” ( In re S.G. (2003) 112 Cal.App.4th 1254, 1260

. ) T he question before us “ is whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true.” ( Conservatorship of O.B. (2020) 9 Cal.5th 989, 996 .) The record does not support the inference requested here. The Department points to reports that Minor had “ an uptick in sexualized and self

- harming behaviors, which were very similar to her behavioral responses during the previous occasion when her stepfather was living in the home and sexually abused her. ” But a closer review of the reports shows escalations and fluctuations in these behaviors since even before the original dependency petition was filed , and also during time periods when the stepfather was a pparently still in custody

. Recall that Minor has severe autism and cannot, at the age of 17, come close to taking care of her own most basic needs. In October 2019, approximately four months before the stepfather was released, Minor was reportedly havin g “outbursts and a lot of self

- injury at home and at school ” and had “ started screaming and crying, and punched her leg about eight times.” In January
2020 , reports indicated that Minor had demonstrated “ a significant increase in sexualized behaviors and emotional distress,” including “wailing, screaming, and hitting her head with her fists.”
The record also reflects several reports of Minor’s relevant behavior escalating before Mother allowed any renewed contact between the stepfather12

and Minor in 2022. Even if we assum e the stepfather had contact with Minor before the date provided in Mothe r’s testimony , the reports still showed that Minor’s behavior had been both better and worse in the preceding year : her teacher reported that during August and September 2021 , Minor was crying and screaming every day . Her behavior then “ ‘got better’ ” and she “appeared to be improving” between October and December 2021, but in early
2022 was “ ‘ramping up again where she was crying every day.’ ” On this record, we cannot conclude that the Department presented evidence from which a reasonable fact finder could have found it highly probable that there
had been additional sexual abuse of Minor by the stepfather

. ( Conservatorship of O.B. , supra , 9 Cal.5th at p. 996.) In sum, we conclude that the trial court erred on its threshold
determination that the section 361.5(b)(3) bypass provision for reunification services for Mother applied h ere

. Given this conclusion, we need not address the parties’ arguments regarding whether Mother satisfied her burden to show that reunification services were in Minor’s best interest. (§ 361.5, subd. (c)(2).) We do, however, note the juvenile court’s ac knowledgment of the importance of Mother’s role in this autistic Minor’s life. We also note that there are ways to tailor reunification services so as to maintain the relationship between Mother and Minor while also protecting Minor from
harm. DISPOSITION
The juvenile court’s August 25, 2022 dispositional order s are reversed only to the extent they denied reunification services to Mother pursuant to section 361.5(b)(3)

. The orders are otherwise affirmed. The matter is
remanded with directions to the juve nile court to (1) vacate its order denying reunification services to Mother ; ( 2 ) set a continued dispositional hearing at13

the earliest convenient time ; and (3) direct the Department to prepare a supplemental status review report. In the absence of new evi dence regarding the potential applicability of section 361.5(b)(3), or other circumstances that
would permit or requir e the court to deny Mother reunification services , the juvenile court is directed to provide Mother with appropriate reunification
services tailored as necessary and appropriate to address the circumstances that led to the removal of Minor

.14 _________________________ Markman , J.*

We concur:

_________________________ Stewart , P.J.

_________________________ Miller , J.

In re M.P. (A1 66036 )

* Judge of the Alameda Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.