Opinion
B212857
7-13-2009
In re A.T., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. K.T., Defendant and Appellant.
Neale B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant. Robert E. Kalunian, Acting County Counsel, James M. Owens, Assistant County Counsel, and Tracey F. Dodds, Deputy County Counsel, for Plaintiff and Respondent.
Not to be Published in the Official Reports
Father, K.T., appeals from the juvenile courts dispositional order placing his now four-year-old daughter with mother. Father contends the court should have removed the child from her mothers custody and placed the child with father or with another relative. Respondent, the Los Angeles County Department of Children and Family Services (Department) contends father waived the issue by not objecting in the juvenile court to the courts placement of the minor with mother and, in any case, there was no evidence there was any risk of harm to the child in mothers care. We affirm.
Mother is not a party to this appeal.
FACTS AND PROCEDURAL HISTORY
A family law order gave mother sole legal and physical custody of the minor. The custody order set out a visitation schedule, granting father unmonitored overnight visitation beginning in January 2008 and weekend visits beginning in April 2008. In August 2008, the Department received a referral accusing father of sexually abusing his child. The child allegedly got into her sisters bed and took off her pants and underwear. She apparently told her sister it was okay because "my daddy tells me to get in the bed like this with him." Mother took the child for examination, and the doctor purportedly stated she did not see anything wrong but was "suspicious."
The Department filed a petition alleging (1) a failure to protect the child in that father allegedly sexually abused the child by fondling the childs vagina and licking her nipples (Welf. & Inst. Code, § 300, subd. (b)); and (2) sexual abuse of the child by father in performing the alleged acts (§ 300, subd. (d)).
Father denied he sexually abused his daughter. Father stated, "My daughter is not being molested. I think that what she is doing is natural and that no one is harming her." Father said there were a lot of cousins on mothers side and "maybe something is happening there." He said mother had told him a teenage cousin by the name of James was babysitting their daughter along with his younger sister. Father admitted the child slept in the bed with him during visitation but stated the judge in court told him that was okay. Father claimed the allegations were made against him because mother did not wish him to see his child due to their history of domestic violence.
The childs daycare provider described the child to a social worker as extremely smart and observant. The provider related an incident when the child lay on the floor, opened her legs and continuously pulled on her vagina with her hands and fingers. Once, the child took all her clothes off and danced naked, saying, "This is what my dad do." There were other incidents when the child sexually acted out at daycare using her hands and fingers to touch her vagina. Mother had to be called to come and help get the child dressed again.
Mother stated the child was constantly acting out sexually, and mother did not know what else to do except call the Department. She was frequently summoned to the childs daycare because the child was acting out sexually, undressing and mimicking sexual behavior such as grinding on the floor, fondling her vagina with her fingers and attempting to touch boys on their private areas over their clothing. Mother expressed a belief that father was sexually molesting his child. She reported to the social worker that the child had been exhibiting sexual conduct since the overnight visits with father began.
The Department took the minor into protective custody and placed her with mother. The detention report indicated mother had no criminal record, but father had a history of arrests going back over 25 years. In 2005, he completed a 52-week course of domestic violence for batterers.
Father immediately agreed to suspend his visitation pending an investigation.
The juvenile court held a detention hearing in September 2008. Fathers counsel advised the court that father was "extremely concerned" over his daughters behavior and felt "there may in fact be someone harming his child, but it is not him." Father requested a contested adjudication with reasonable monitored visits in the meantime. The minors counsel submitted with regard to placement of the child with mother and monitored visitation for father. The Departments counsel in turn submitted on the Departments recommendations for monitored visitation for father in a neutral setting. No one raised any objection at the hearing to the childs placement with mother.
After hearing argument from the parties, the juvenile court made a prima facie finding that the child was a person described by Welfare and Institutions Code section 300. Because the child was residing in mothers home, the court stated it was not ordering a detention away from father. The court granted father monitored visitation in a neutral setting with a Department-approved monitor. The child was ordered released to mother pending further order.
The Department prepared a jurisdiction and disposition report advising the juvenile court that mother had a restraining order against father in family court and that the child was not included as a protected party. The child told an interviewing social worker, "I play with my daddy and he is funny. I like toys and I like to play. My daddy shows me how to dance. I see him shake his booty. My daddy does not hurt me, hes nice to me. James he shows me his booty. I play with James in the living room when I see him [and] he shakes his booty. My daddy doesnt hurt me." The social worker found the minor to be "very happy and energetic" and reported she did not display any inappropriate behaviors, such as removing her clothes, touching herself or exposing any of her body parts, during the interview. The child gave negative answers to questions such as "Does your daddy touch you between your legs?"
Father told the social worker he met mother at the hospital where he worked and the minor was a result of this brief liaison. They lived together until a couple of weeks after the childs birth. Father asked to see more of the child and got into an argument with mother. Mother claimed father hit her and put a gun to the childs head. Father pled no contest to a domestic violence charge. He complied with orders directing him to perform community service and attend classes in anger management. Father stated he witnessed the child acting out sexually the first weekend she spent with him, and she told father, "James does that." Father called the hotline then, because "someone is doing something to m[y] baby." He asserted, "I do not have anything to hide. Someone is telling her to say `Daddy does this."
One of the investigating social workers reported that father was very cooperative and a former girlfriend called him a "fantastic father." The worker found it hard to reconcile fathers denials with the childs behavior and statements implicating her father. The investigating worker also found mothers demeanor to be strangely "detached" and raised the possibility mother had an undiagnosed mental disorder. The worker recommended that an Evidence Code section 730 (section 730) evaluation be performed given the parents battle over custody and the seriousness of the allegations.
Detective Carrillo of the Long Beach Police Department informed the Department that he had conducted an investigation concerning allegations of sexual abuse against father. When the detective first began to investigate the complaint, mother expressed anger because father was not immediately arrested. Detective Carrillo expected the case to be rejected by the district attorney because there was no physical evidence to support the allegations of abuse.
The court ordered a section 730 evaluation of the family dynamic to assess mothers situation, the relationship between mother and the minor, and the relationship between father and the minor. The section 730 evaluator, Dr. Kramon, concluded the child had been sexualized on some level, and he recommended that she continue with psychotherapy. He judged the likelihood of the minor being sexually molested by father to be "low." Dr. Kramon opined the child may have been influenced by mother to make allegations against father. He noted the child did not express any fear of father. However, fathers past history of antisocial behavior, including two domestic violence convictions, indicated he had underlying feelings of anger or unresolved negative emotions. Dr. Kramon concluded mother was capable of being a nurturing and loving mother, but she was emotionally aloof and subject to mood changes. He opined she may have made irrational conclusions regarding fathers possible sexual abuse of the child, stating, "[i]t cannot be ruled out that her accusations are associated with a custody dispute . . . and that her insight into this is extraordinarily low."
Dr. Kramon recommended that the child remain in the physical custody of mother and that steps be taken towards reunifying the child with father. He suggested that fathers visits not be increased until father worked out anger issues with his therapist and provision be made for the child to sleep in a separate bed than father.
At the pretrial resolution conference in November 2008, the juvenile court ordered the child to remain released in mothers custody. Father raised no objection to the minors continued placement with mother.
The Department requested a "no contact" order between the minor and mothers 17-year-old nephew, James. Fathers counsel agreed, citing fathers belief of inappropriate contact between James and the minor. Because James was mentioned in both the Departments report and the section 730 evaluation, father asked that the protective order be in place during fathers monitored visits with the child. Mother indicated Jamess contact with the child was very limited, and he was never left alone with the child. Nevertheless, mother also asked for a no-contact order. The juvenile court issued a "no-contact" order between James and the minor pending further court order.
The juvenile court held a contested adjudication on November 18, 2008. The Department introduced the social workers written reports and the section 730 report into evidence. Father called Detective Carrillo, who testified that father was not arrested as a result of Carrillos investigation and no charges were brought by the district attorney against father. The detective testified mother called early in his investigation to ask that father be arrested so visitation could be stopped. She became angry when he told her the investigation was not yet complete and he had no evidence to support fathers arrest.
The juvenile court heard arguments from counsel and reserved a ruling, again directing that the minor remain released to mother. Although father and his counsel were both at this hearing, father raised no objection to mothers continued custody of the child.
The court issued a detailed tentative written order, later incorporated into the courts final order. At the jurisdictional and dispositional hearing, the court tentatively found the child was sexually abused but, citing the childs conflicting statements about father and the "doubts and equivocations by the experts," i.e., Dr. Kramon and the investigating social worker, the court stated it could not find by the preponderance of evidence that father molested his daughter.
Neither mother nor father was present at the jurisdictional and dispositional hearing, but both were represented by counsel. After inviting argument, the court struck all allegations that father sexually abused the child and sustained the petition on an amended allegation that the child was sexually abused on prior occasions "by a member of her household," endangering the childs physical and emotional health, safety and well-being and placing her at risk of harm. (Welf. & Inst. Code, § 300, subd. (d).)
In written findings, the court stated that "abuse was perpetrated by a member of [the childs] household (in this case, the extended household of either father or mother)." (Italics added.)
The juvenile court declared the child a dependent of the court. The court ordered that the child remain in mothers home and granted father monitored visitation with the Department to have discretion to increase the visits consistent with fathers progress in counseling and the recommendations of Dr. Kramon. The court directed mother to undergo individual counseling to address case issues, including sex abuse awareness, and father to have individual counseling to address case issues, including anger issues and sex abuse awareness, as well as parenting education. Fathers counsel did not object to the courts "home of mother" order.
At the conclusion of the hearing, after making its order, the juvenile court inquired, "Anything else?" Fathers counsel stated, "I did have a question. Did you say parenting education?" The court replied, "Yes." Fathers counsel asked, "Does that — remember we had a stay-away order with James? Does that still stay in effect?" Upon the court stating it did, counsel asked, "Was the parenting both parents?" The court specified, "I didnt order parenting for the mother." Counsel stated, "Just mine. Father." The hearing then concluded. Nowhere in these comments was any concern or objection raised regarding the childs remaining in mothers custody.
Father timely appealed from the courts jurisdictional and dispositional order.
STANDARD OF REVIEW
"When the sufficiency of the evidence to support a finding or order is challenged on appeal, the reviewing court must determine if there is any substantial evidence, that is, evidence which is reasonable, credible, and of solid value to support the conclusion of the trier of fact." (In re Ricardo L. (2003) 109 Cal.App.4th 552, 564.) We review the entire record and view the evidence in the light most favorable to the courts findings and conclusions. (In re Tania S. (1992) 5 Cal.App.4th 728, 733.) On appeal from an order based upon clear and convincing evidence, the clear and convincing standard disappears and we apply the customary rule of conflicting evidence, giving full weight to the respondents evidence, however slight, and disregarding the appellants evidence, however strong. (In re Mark L. (2001) 94 Cal.App.4th 573, 580-581; Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 881.) The parent has the burden of showing there is no evidence of sufficiently substantial character to support the courts order. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 947.)
DISCUSSION
1. Failure to Object to Mothers Custody
Welfare and Institutions Code section 361, subdivision (c)(4) provides that a "dependent child may not be taken from the physical custody of . . . her parent[] . . . with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence . . . [¶] [t]he minor . . . has been sexually abused, or is deemed to be at substantial risk of being sexually abused, by a parent, guardian, or member of his or her household, or other person known to his or her parent, and there are no reasonable means by which the minor can be protected from further sexual abuse or a substantial risk of sexual abuse without removing the minor from his or her parent or guardian . . . ."
In this case, the juvenile court found the minor was sexually abused by a member of her household, providing sufficient basis for the courts asserting jurisdiction over the child. By leaving the child in the custody of mother, the juvenile court implicitly found no clear and convincing evidence the child was at substantial risk of sexual abuse unless she was removed from mothers home. The court correspondingly found there were reasonable means by which the child could be protected from further sexual abuse without removal. Specifically, the court provided for the child to be shielded from any contact with her mothers relative, James, and also ordered fathers visits with the child to be monitored. The court also ordered family reunification services for the child and both parents.
After setting forth a proposed case plan, the juvenile court inquired, "Anybody wish to be heard with respect to the dispositional recommendation?" No objection was raised by any party, and the court declared, "Hearing nothing, thats the courts order." (Italics added.) A few minutes later, counsel for father raised only an inquiry concerning parenting education and the continuation of a stay-away order for mothers relative, James. She did not object to the childs placement with mother. Although father attended prior hearings, he did not at any time raise an issue regarding the childs placement in mothers home.
A party who fails to raise an issue in the trial court generally forfeits the issue on appeal. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338 [failure to request bonding study in trial court barred parent from asserting issue in appellate court]; In re Anthony P. (1995) 39 Cal.App.4th 635, 641 [alleged failure to provide for sibling visitation in permanent plan waived by failure to object in court below]; In re Daniel D. (1994) 24 Cal.App.4th 1823, 1831 [failure to request alternative placement constituted waiver of right to raise issue on appeal].) In general, a party is precluded from arguing on appeal any point not raised in the trial court. To rule otherwise would permit a party to play fast and loose with the administration of justice by deliberately standing by without making an objection of which he is aware. (In re Richard K. (1994) 25 Cal.App.4th 580, 590.) The purpose of the forfeiture rule is to encourage parties to bring errors to the attention of the trial court so they may be corrected. (In re S.B. (2004) 32 Cal.4th 1287, 1293.) "[A]ny other rule would permit a party to trifle with the courts," allowing a party to "deliberately stand by in silence and thereby permit the proceedings to reach a conclusion in which the party could acquiesce if favorable and avoid if unfavorable." (In re Lorenzo C., supra, 54 Cal.App.4th at p. 1339.)
By failing to object in the juvenile court to the childs placement with mother, father has forfeited any right to raise the issue on appeal. Had father properly raised the issue, the juvenile court could have made appropriate findings so the matter could receive consideration on appeal. Although, as father argues, it is within this courts discretion to address the merits of an issue that a party has forfeited (In re Sheena K. (2007) 40 Cal.4th 875, 887), we would do the juvenile court an injustice by addressing the matter for the first time here. (In re S.B., supra, 32 Cal.4th at p. 1293 ["discretion to excuse forfeiture should be exercised rarely and only in cases presenting an important legal issue"].)
Father asserts any objection would have been futile because the court had already written a two-page opinion and indicated its tentative disposition. Father states, "[t]here was no point in father jumping up and down about removal when it was clear, regardless of what father said, the court was going to keep [the child] with her mother." That assertion is not supported by the record. The court may have had a tentative plan, but the record does not show that plan would be the courts disposition regardless of fathers "jumping up and down." Rather, the record reflects the court invited the parties to address its proposed plan and, only in light of the parties silence, made the tentative plan its order.
2. No Showing of Risk of Harm in Mothers Home
Even if it were assumed any objection to the placement of the child with mother is not forfeited, father has failed to carry his burden of demonstrating error. The evidence, interpreted in the light most favorable to the juvenile courts findings, showed the child could be protected from further sexual abuse, or from a substantial risk of sexual abuse, without the necessity of removal from mothers home.
Suspicion in this case centered upon two individuals: mothers nephew, James, and father. Father claims in his opening brief that all of the evidence pointed to James being the perpetrator. The juvenile court could not ascertain the source of the abuse, but the court protected against any abuse from James by ordering that the child should have no contact with him. Fathers counsel even clarified with the court that the dispositional order included a "no-contact" order as to James. There was no evidence mother would not or could not ensure James had no contact with the minor.
The other alleged perpetrator was father, and the court protected the minor by ordering that fathers visitations with the child are to be monitored. The court ordered both parents to undergo individual counseling to address sexual abuse awareness and ordered father to undergo parenting education as well. The juvenile courts dispositional order thus protected the child from the two likeliest sources of sexual abuse and sought to guard the child from further abuse by requiring the parents as well as the child to undertake counseling. (Welf. & Inst. Code, § 361, subd. (c)(4).) Father has made no effort to show the juvenile courts dispositional order was inadequate to protect the child.
In short, father, has failed to show the record lacks evidence of sufficiently substantial character to support the courts dispositional order. (In re L. Y. L., supra, 101 Cal.App.4th at p. 947.)
DISPOSITION
The order is affirmed.
We concur:
RUBIN, Acting P. J.
BIGELOW, J.