Persons Coming Under the Juvenile Court Law. San Bernardino Cnty. Children v. M.O. (In re M.O.), E070342
| Decision Date | 25 September 2018 |
| Docket Number | E070342 |
| Court | California Court of Appeals Court of Appeals |
| Parties | In re M.O. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent; v. M.O., Defendant and Appellant. |
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.Nos. J-272510, J272511)
APPEAL from the Superior Court of San Bernardino County. Christopher B. Marshall, Judge. Reversed.
Elena S. Min, under appointment by the Court of Appeal, for Defendant and Appellant
Michelle D. Blakemore, County Counsel, and Dawn M. Martin, Deputy County Counsel, for Plaintiff and Respondent.
M.O. and E.O. were removed from their parents' custody when allegations that their father, Marcos O., had sexually abused a step-daughter from a relationship with another woman years earlier emerged. Father also had numerous convictions for alcohol related offenses. The San Bernardino County Children and Family Services Agency (CFS) filed a dependency petition under Welfare and Institutions Code1 section 300, subdivisions (b) and (d). At a contested jurisdictional hearing, the court made true findings on all allegations, removed the children from father's (and mother's)2 custody, ordered reunification services to mother, but denied services to father pursuant to section 361.5, subdivision (b)(6). Father appealed.
On appeal, father challenges the denial of reunification services on the ground that section 361.5, subdivision (b)(6), may be invoked only when the sexual abuse involves a sibling or a half-sibling. CFS concedes. We reverse.
BACKGROUND3
Father has six children by three different mothers. Between 2005 and 2011, father, Marcos O., had a prior relationship with Sheila T., who already had a child from a prior relationship, K.P. With Sheila, father had two children, Ant.O and T.O., and fatherhad primary custody of those two children. Later, father had a relationship with Vanessa L., by whom he also had two children, X.O. and El.O. Father's most recent relationship was with A.O., mother of the two minors involved in this matter. E.O., was six years old, and M.O. was four years old at the time the dependency was initiated.
In July 2017, CFS received a referral alleging general neglect against mother and father, due to lack of running water or electricity. A month later, on August 17, 2017, CFS received a referral alleging father had sexually abused K.P. by way of digital penetration, several times when she was between the ages of 7 and 12, between 2007 and 2012. The allegations came to light after K.P. had three panic attacks in connection with revived memories of the abuse during counseling sessions. A social worker investigated the allegations relating to both referrals; she found the residence met community standards, having running water and electricity, although the exterior area was littered with debris and three trailers. Regarding sexual abuse, father denied any molestation and none of the children had observed anything unusual or inappropriate. The maternal grandparents also denied having any concerns. Father thought K.P.'s mother made up the allegations just to gain leverage for child custody purposes.
Father also denied having a problem with alcohol, claiming he had not had anything to drink for two years, although he had a long history of convictions of alcohol related Vehicle Code offenses. His drivers' license was revoked, and he told a different CFS worker that he only drank on social occasions. In 2016, the parents faced child endangerment charges arising from an alcohol-related car accident in which the familycar crashed into a fence while the children were in the car. Criminal charges against father were dropped because father reported that mother was driving at the time, although witnesses saw father driving.
A dependency petition was filed under section 300, subdivisions (b) and (d), based on mother's failure to protect the children, father's alleged sexual abuse of K.P., and father's pattern of criminal arrests and convictions for driving under the influence of alcohol. The children were originally detained with their respective mothers, but after it was learned that mother, A.O., had permitted unsupervised contact between father and the two children, an amended petition was filed. Upon issuance of a detention warrant, the children were detained from A.O. and placed with a non-relative extended family member (NREFM).
Subsequent investigation pending the jurisdictional hearing revealed that father had molested his step-sister when she was 5 and father was 13 and was rumored to have raped a girl when he was in high school. The paternal grandfather corroborated the report of the molestation of the step-sister and indicated that two younger children in the family also had been molested, so he cut father off from family functions and refused to allow father to spend time at the house. The paternal grandfather also reported that father had just called him and described the sexual acts with K.P. as "consensual."
In the jurisdictional reports and addenda submitted by the social worker in preparation for the jurisdiction hearing, the social worker recommended that reunificationservices be provided to mother, but denied as to father, pursuant to section 361.5, subdivision (b)(6).
The contested jurisdictional hearing took place over several days. The reports of the social worker, as well as all addenda and attachments thereto, were admitted into evidence without objection. In testimony, father admitted incurring a past driving under the influence conviction, and that his driver's license was revoked. Father invoked his right to remain silent when asked about any of the molestation allegations.
After considering the reports and the testimony, the juvenile court made true findings on all allegations of the petition. The children were declared dependents upon the court's finding they were persons described by section 300, subdivisions (b) and (d), and the court removed custody from both parents, continuing their placement in the home of the NREFM. The court approved a case plan and reunification services for mother, but denied family reunification services for father, pursuant to section 361.5, subdivision (b)(6). Father appealed.
DISCUSSION
On appeal, father's sole challenge relates to the propriety of the dispositional order denying him reunification services under section 361.5, subdivision (b)(6). Father argues that the language of section 361.5, subdivision (b)(6), applies only to a child who has been adjudicated a dependent "'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,'" butthat K.P. is neither father's child, nor a sibling, or a half-sibling of a child. CFS concedes the error. We agree.
The sole issue hinges on the definition of the terms "sibling" and "half-sibling" in section 361.5, subdivision (b)(6), which is a question of statutory interpretation subject to independent review. (In re Tanyann W. (2002) 97 Cal.App.4th 675, 678 (Tanyann W.); see also, In re M.C. (2011) 199 Cal.App.4th 784, 804-805.)
The primary task of statutory interpretation is to ascertain the intent of the Legislature so as to effectuate the purpose of the law. (Ed H. v. Ashley C. (2017) 14 Cal.App.5th 899, 905.) To determine legislative intent, the court must first look to the language of the statute, adopting its usual and ordinary meaning. (Ibid.) We are aided by the rule of statutory construction, "inclusion unius est exclusion alterius." (Creutz v. Superior Court (1996) 49 Cal.App.4th 822, 829; see also People v. Castoe (1978) 86 Cal.App.3d 484, 489 [].) This maxim is not immutable, but its inapplicability relates to situations in which its operation would contradict a discernible and contrary legislative intent. (People v. Thurston (2016) 244 Cal.App.4th 644, 665.)
In Ed H., supra, the paternal great-grandparents sought an order for visitation with their great-grandchildren, invoking Family Code sections 3103 and 3104, which confer visitation rights to grandparents under certain conditions, but did not authorize great-grandparents to petition for visitation. The court reasoned that the statute's express reference to grandparents necessarily excluded great-grandparents, where great-grandparents were included in other provisions of the visitation statutes. (Ed H., supra, 14 Cal.App.5th at pp. 908-910.)
Turning to the question of whether the term "sibling or half-sibling," as used in section 361.5, subdivision (b)(6) includes step-children, there is no mention of step-children. The term "sibling" is defined in sections 362.1, subdivision (c) and 16002, subdivision (g), to mean "'a child related to another person by blood, adoption, or affinity through a common legal or biological parent.'" (In re Valerie A. (2006) 139 Cal.App.4th 1519, 1523.) The term "sibling" applies to biological siblings even after a sibling has been adopted, as well as to half-siblings. (Id. at p. 1524.) K.P. is not biologically related to father, so she is not a "child related to another person by blood, adoption or affinity through a common legal or biological parent."
In Tanyann W., the reviewing court addressed the identical issue posed here, that is, whether a child who is not biologically related to a parent is considered the "sibling" of a biological child, such that reunification...
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