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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 

ordered 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.

 A166036

 (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 that abuse and the

failure to protect by M.P.’s mother (Mother). The 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, reunification 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. 
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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 services 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 of his parole violation), the record lacked clear and 

convincing evidence of additional abuse. We therefore reverse the order 

denying reunification services to Mother pursuant to section 361.5(b)(3).

BACKGROUND2

A. Prior Dependency Proceedings

After serving approximately 17 years in prison for second degree 

murder, Minor’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 years. After his release, they 

married and he moved into the family home.

Roughly a year after his release, in 2017, prosecutors charged 

stepfather with four counts of committing a lewd or lascivious act against 

Minor. (Pen. Code, § 288, subd. (a).) The Department filed a petition on 

2 The record in this case is extensive. This summary is not 

comprehensive, but rather intended to provide relevant context relating to 

the issue on appeal.
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behalf of Minor pursuant to section 300, subdivisions (b) (failure to protect)

and (d) (sexual abuse). The petition alleged, among other things, that 

witnesses observed stepfather inappropriately 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 educational setting.”

The juvenile court sustained the petition. After 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 of Minor to them based on concerns relating to neglect. 

Meanwhile, the jury in stepfather’s criminal case found him not guilty 

of two counts. The trial court dismissed the remaining two counts at the 

request of the prosecutor after the jury was unable to reach a verdict. The 

trial court subsequently conducted a contested parole violation 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 

determination 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 belief 
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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 Petition 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 “ ‘came 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].” 

The Department filed the current petition a few days later. It alleged 

that Mother failed to protect 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 symptoms of sexualized and [self-injurious] behavior at this time.” 

Despite her earlier reports to the contrary, Mother apparently never did file 

for divorce. 

The 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 contrary to Minor’s welfare. The court ordered Minor 

detained by the Department.
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C. Jurisdiction and Disposition

In its May 2022 jurisdiction/disposition report, the Department 

recommended that the juvenile court sustain the allegations against Mother, 

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 about eight times.” In 

January 2020, it was “further reported that [Minor] demonstrated a 

significant 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 closed 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 2021,

Minor was crying and screaming every day, it then “ ‘got better’ ” and Minor 

“appeared to be improving” between October and December 2021, but was 

“ ‘ramping 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.’ ”
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In its August 2022 addendum 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 having more ‘good days,’ than 

not.” While Minor’s “verbal 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.” 

Minor and Mother were having weekly supervised in-person visits. 

The juvenile court held a contested jurisdiction and disposition hearing

on August 25, 2022. The Department did not present any witnesses, but 

upon request, the court took judicial notice of the 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 grooming behavior 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 all 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: “So in today’s hearing, I felt obligated to let you know, ma’am, 
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about 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 toward that, and we need to cut

that off.”

Mother’s counsel requested reunification services, arguing that the 

bypass provisions 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 returned 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 provider 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 after three years of services, we haven’t moved 
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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 say 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, 

and we do need to have the case set for a hearing on the permanent plan.” 

In its written findings and orders after dispositional hearing, the 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 section 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 2017; 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.”
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When a child is removed from a parent’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 

relationships 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.” (Ibid.; 

see also In re Luke L. (1996) 44 Cal.App.4th 670, 678 [“It is difficult, if not 

impossible, to exaggerate the importance of reunification in the dependency 

system”].) Specifically, the Department bears the burden of proving the 

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 evidence) that 

reunification services would be in the child’s best interests. (In re T.R., at 

p. 1148.) The court must deny reunification services unless the parent meets 

that burden. (§ 361.5, subd. (c)(2).)

Mother argues that the plain language of section 361.5(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 incidents 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, 677 [§ 361.5(b)(3)

properly applied where prior incident of physical abuse occurred in 2016 and 
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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 based 

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 this bypass provision by making an “implicit” finding that stepfather 

sexually abused 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, before 

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

“grooming” behavior toward Minor. The court expressed concern that 

stepfather’s behavior “could be heading toward” 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’s 
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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. We 

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.) The 

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 apparently 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 having

“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 stepfather 
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and Minor in 2022. Even if we assume the stepfather had contact with Minor 

before the date provided in Mother’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 here. 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 acknowledgment 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 orders 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 juvenile court to (1) vacate its order denying 

reunification services to Mother; (2) set a continued dispositional hearing at 
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the earliest convenient time; and (3) direct the Department to prepare a 

supplemental status review report. In the absence of new evidence regarding

the potential applicability of section 361.5(b)(3), or other circumstances that 

would permit or require 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.
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_________________________

Markman, J.*

We concur:

_________________________

Stewart, P.J.

_________________________

Miller, J.

In re M.P. (A166036)

* Judge of the Alameda Superior Court, assigned by the Chief Justice 

pursuant to article VI, section 6 of the California Constitution.