Opinion
B318963
10-10-2023
In re M.F., Person Coming Under the Juvenile Court Law. v. M.F., et al., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant M.F. Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant L.H. Tarkian & Associates and Arezoo Pichvai, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. 21CCJP04630, Peter R. Navarro, Judge Pro Tempore. Affirmed in part and vacated and remanded in part.
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant M.F.
Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant L.H.
Tarkian & Associates and Arezoo Pichvai, for Plaintiff and Respondent.
CURREY, P. J.
INTRODUCTION
L.H. (mother) challenges the juvenile court's jurisdictional finding that she failed to protect her eight-year-old son M.F. from sexual abuse. Mo. F. (father) joins in mother's challenge. Respondent, the Department of Children and Family Services (Department), contends the jurisdictional challenge is moot.
Father also asserts the Department failed to comply with the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) and related California law because it did not ask several extended family members whether they had Indian ancestry, and requests that we remand for compliance with ICWA's inquiry mandates. The Department does not oppose remand for that purpose.
The parties are familiar with the facts and procedural history of the case, so we do not fully restate those details here. Instead, in the Discussion, post, we discuss the facts as needed to provide context for and resolve the issues presented on appeal.
We affirm the challenged jurisdictional finding. We vacate the juvenile court's ICWA finding and remand for the limited purpose of ensuring compliance with ICWA.
DISCUSSION
I. Jurisdictional Findings
At the continued adjudication hearing on February 25, 2022, the juvenile court found true the allegations asserted in the operative first amended petition filed on M.F.'s behalf under Welfare and Institutions Code section 300. Relevant to this appeal, the court found mother failed to protect M.F. from sexual abuse.
All subsequent undesignated statutory references are to the Welfare and Institutions Code.
A. Justiciability
1. Governing Principles
In dependency cases, our Supreme Court has held that courts should consider the following factors when deciding whether to review jurisdictional findings in a moot appeal: (1) whether the finding "'could be prejudicial to the appellant or could potentially impact the current or future dependency proceedings,' or '"could have other consequences for [the appellant] beyond jurisdiction[ ]"'" (In re D.P. (2023) 14 Cal.5th 266, 283 (D.P.)); (2) "whether the jurisdictional finding is based on particularly pernicious or stigmatizing conduct[ ]" (id. at pp. 285-286); and (3) "why the appeal became moot." (Id. at p. 286.) "The factors above are not exhaustive, and no single factor is necessarily dispositive of whether a court should exercise discretionary review of a moot appeal." (Ibid.)
a. Analysis
The Department argues mother's jurisdictional challenge is moot because she does not challenge the jurisdictional finding that M.F. was at risk of harm due to her failure to obtain medical care for him. As noted above, the juvenile court found true the allegations that mother failed to protect M.F. from sexual abuse. Based on those allegations, it exercised jurisdiction over M.F. under section 300, subdivisions (b) and (d). Independent of this ground for jurisdiction, however, the court also exercised jurisdiction over M.F. under subdivision (b) based on mother's failure to obtain medical care for M.F. Consequently, reversal of the former finding (i.e., the finding at issue on appeal) will have no "'practical, tangible impact on [mother's] conduct or legal status'" because the latter finding will remain undisturbed and furnish the basis for jurisdiction. (D.P., supra, 14 Cal.5th at p. 277.) We therefore conclude mother's jurisdictional challenge is moot.
In light of this conclusion, we consider whether to exercise discretionary review of mother's jurisdictional challenge. On this point, we note that "it may serve the interest of justice" to review a jurisdictional challenge where, as here, the appeal is moot because the "parent does not challenge all jurisdictional findings, but only [some] finding[s] involving particularly severe conduct." (D.P., supra, 14 Cal.5th at p. 286.) We also note that the disputed findings are "based on particularly pernicious . . . conduct[,]" namely, mother's failure to protect M.F. from sexual abuse. (Id. at pp. 285-286; see also In re M.W. (2015) 238 Cal.App.4th 1444, 1452 ["[t]he findings that mother knowingly or negligently exposed her children to a substantial risk of physical and sexual abuse are pernicious," warranting merits review].) Therefore, the nature of the disputed allegation also weighs in favor of exercising discretionary review. For these reasons, we will address mother's jurisdictional challenge.
B. Substantial Evidence Review
1. Governing Principles and Standard of Review
At the time of the adjudication hearing, under section 300, subdivision (b)(1), the juvenile court has jurisdiction over and may adjudge to be a dependent of the court a "child [who] has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of . . . [¶] . . . [t]he failure or inability of the child's parent . . . to adequately supervise or protect the child[ ]" (§ 300, subd. (b)(1)(C). "A jurisdictional finding under section 300, subdivision (b)(1), requires [the Department] to demonstrate the following three elements by a preponderance of the evidence: (1) neglectful conduct, failure, or inability by the parent; (2) causation; and (3) serious physical harm or illness or a substantial risk of serious physical harm or illness." (In re L.W. (2019) 32 Cal.App.5th 840, 848.)
Section 300, subdivision (d) provides for dependency jurisdiction if "[t]he child has been sexually abused, or there is a substantial risk that the child will be sexually abused, as defined in Section 11165.1 of the Penal Code, by the child's parent or guardian or a member of the child's household, or the parent or guardian has failed to adequately protect the child from sexual abuse when the parent or guardian knew or reasonably should have known that the child was in danger of sexual abuse." (§ 300, subd. (d).)
"'The basic question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm.'" (In re J.N. (2010) 181 Cal.App.4th 1010, 1022.) To establish a risk of harm at the time of the adjudication hearing, "[t]here must be some reason beyond mere speculation to believe the alleged conduct will recur." (In re James R. (2009) 176 Cal.App.4th 129, 136.)
We review jurisdictional findings for substantial evidence. (In re Yolanda L. (2017) 7 Cal.App.5th 987, 992.) Under this standard, "we view the record in the light most favorable to the juvenile court's determinations, drawing all reasonable inferences from the evidence to support the juvenile court's findings and orders." (Ibid.) "We do not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts." (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)
"Substantial evidence must be of ponderable legal significance. It is not synonymous with 'any' evidence. [Citation.] The evidence must be reasonable in nature, credible, and of solid value." (In re Dakota H., supra, 132 Cal.App.4th at p. 228.) "The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order." (Ibid.) "' . . . "The ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record.""' (In re Yolanda L., supra, 7 Cal.App.5th at p. 992.)
2. Analysis
We note counts b-1 and d-1 in the operative first amended petition do not expressly allege mother sexually abused M.F. Instead, the identical language of counts b-1 and d-1 alleges "mother knew or reasonably should have known that [M.F.] was being sexually abused and failed to take action to protect [M.F.]" As discussed below, it is not our role to determine whether that allegation is true, and we do not do so. Rather, we are tasked only with determining whether the record contains substantial evidence to support the juvenile court's finding that mother knew or reasonably should have known M.F. was being sexually abused and failed to protect him.
The record reflects the family originally came to the Department's attention when it received a referral concerning M.F.'s lack of hygiene. Additionally, the referral alleged mother would arrive to M.F.'s school disheveled, was seen carrying a dead hamster, and still breastfed eight-year-old M.F. The school social worker also reported M.F. had diarrhea, had accidentally defecated on himself, was shaking, and could not get up on his own. M.F. complained he had been experiencing pain in his penis for approximately five days. The Department later received a second referral when mother took M.F. to the hospital and M.F. tested positive for gonorrhea. Approximately two weeks later, the hospital informed the Department that mother also tested positive for gonorrhea.
At the adjudication hearing, the Department's expert witness, Supriya Sharma, M.D., testified it was impossible for gonorrhea to transmit through general skin-to-skin contact. Instead, the disease requires intimate contact with a specific tissue called "mucosa," a specific type of environment not easily found outside the human body, to survive. Dr. Sharma did not believe mother transmitted gonorrhea to M.F. by sharing the same toilet or because of extremely unsanitary conditions. Dr. Sharma opined M.F. contracted gonorrhea through sexual contact and reported it was common for children to never disclose their abuse or delay their disclosure.
Mother's witness, Gary Richwald, M.D., testified that gonorrhea could be transmitted through fomite transmission, i.e., transmission through contact with a contaminated object. Fomite transmission could occur through "clothes, . . . linens, [or] a sex toy." In 40 years, Dr. Richwald had seen three or four cases of fomite transmission. Dr. Richwald explained the bacteria could have been on the towels, bedding, or clothes that came into contact with M.F.'s genital area or while he had diarrhea. Because of "the family's extremely poor hygiene and the combination of diarrhea," Dr. Richwald opined M.F. contracted gonorrhea from mother "through fomite."
After hearing expert testimony and argument, the juvenile court sustained the b-1 and d-1 counts, citing "circumstantial evidence" in support of its decision.
Mother argues the jurisdictional findings relating to her failure to protect M.F. from sexual abuse are unsupported by substantial evidence because M.F. was always with her or at school, M.F. never complained about being inappropriately touched, and mother was not in a relationship nor did she have any male friends around M.F. Mother adds that M.F. never disclosed sexual abuse during his physical exam nor during his forensic interview and that police conducted their own interviews and found no basis for further investigation.
Mother's arguments largely contend the juvenile court should have given more weight to her statements in interviews with the Department and the testimony of her retained expert, rather than the testimony of the Department's expert witness. She essentially asks us to reweigh the evidence, which we may not do under our standard of review. (In re R.V. (2012) 208 Cal.App.4th 837, 843.) As the reviewing court, "[w]e do not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts" (In re Dakota H., supra, 132 Cal.App.4th at p. 228.) Instead, we view the record in the light most favorable to the juvenile court's findings and determine whether they are supported by substantial evidence. (In re Yolanda L., supra, 7 Cal.App.5th at p. 992.)
The record clearly shows mother and M.F. were diagnosed with gonorrhea around the same time. Additionally, mother was evasive during M.F.'s medical exam, attempted to stop the exam, and tried to leave the hospital. Contrary to mother's claims, M.F. reported mother had a male friend who watched movies with him and mother and that a male friend of mother's would drive them to the store in his car. Moreover, M.F. had poor boundaries in his foster care placement and was overly familiar with strangers. Finally, as noted above, the Department's expert testified M.F. contracted gonorrhea through sexual abuse. Based on this circumstantial evidence, the juvenile court could reasonably find M.F. was sexually abused and mother knew or should have known he was being sexually abused. (See § 300, subd. (b) &(d).) Having identified substantial evidence to support the finding of jurisdiction, "it is of no consequence" that other evidence or inferences drawn from the evidence might have supported a contrary finding. (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 874, italics omitted.)
Mother further contends counts b-1 and d-1 are unsupported by substantial evidence because the Department failed to present evidence showing M.F. was sexually abused by a parent or a member of the household. In support, mother notes the Department did not allege she sexually abused M.F nor did the juvenile court treat her as a perpetrator. As the Department notes, however, "[t]he conclusive identity of the perpetrator . . . is not a prerequisite of jurisdiction." (In re A.S. (2011) 202 Cal.App.4th 237, 245 (A.S.), overruled on other grounds by Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011, fn. 7.) "'Unlike criminal proceedings, where establishing the identity of the perpetrator is paramount, the purpose of dependency proceedings [is] to fashion appropriate orders in the best interest of the child....' [Citation.] If a perpetrator's identity must be conclusively established, 'a family could stonewall the [social services department] and its social workers concerning the origin of the child's injuries and escape a jurisdictional finding....'" (Ibid.) Mother responds that "identifying the perpetrator is unnecessary only when circumstantial evidence can otherwise satisfy statutory requirements" and notes expert medical evidence in A.S., supra, 202 Cal.App.4th 237 showed an eightmonth-old child suffered serious intentionally inflicted abuse. Similarly, here, expert testimony showed M.F. tested positive for a sexually transmitted disease and that he contracted the disease from sexual abuse. Based on this record, the juvenile court could reasonably find mother failed to protect M.F. from sexual abuse. (See § 300, subd. (b) &(d).)
2. ICWA Issue
Father contends the juvenile court erred when it found ICWA did not apply to M.F. Specifically, he contends the Department failed to interview easily ascertainable paternal relatives. We truncate our discussion on this issue because the Department concedes the matter should be remanded for the sole purpose of ICWA compliance. We reverse and remand to permit inquiry of paternal relatives for whom the Department had contact information and any additional extended family members the juvenile court directs.
DISPOSITION
The challenged jurisdictional finding is affirmed. The finding that ICWA does not apply is vacated. On remand, the juvenile court is directed to order the Department to comply with its inquiry and (if applicable) notice obligations under ICWA and related California law.
We concur: MORI, J., ZUKIN, J.