Opinion
B309471
01-21-2022
In re VALERIE A. et al., Persons Coming Under the Juvenile Court Law. v. VICTOR T., Defendant and Respondent. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Appellant,
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and William D. Thetford, Principal Deputy County Counsel, for Plaintiff and Appellant. Marsha F. Levine, under appointment by the Court of Appeal, for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. 20LJJP00379B-D, Michael C. Kelley, Judge. Reversed and Remanded.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and William D. Thetford, Principal Deputy County Counsel, for Plaintiff and Appellant.
Marsha F. Levine, under appointment by the Court of Appeal, for Defendant and Respondent.
WILLHITE, ACTING P. J.
INTRODUCTION
The Los Angeles Department of Children and Family Services (DCFS) filed a Welfare and Institutions Code section 300 petition on behalf of then 16-year-old Arianna and her three minor siblings, Valerie, Ivannah and Andrew (collectively, minor siblings). The petition alleged that mother's male companion (Victor) sexually abused Arianna and mother failed to protect her from the abuse, which also put minor siblings at substantial risk. At the jurisdictional hearing, the juvenile court found Arianna credible and sustained the petition in its entirety as to her, but dismissed the petition as to minor siblings, finding DCFS failed to demonstrate the requisite substantial risk. DCFS appeals the juvenile court's dismissal of the petition as to minor siblings, contending that the dismissal was contrary to the evidence. We agree and reverse.
Code unless otherwise stated. All further statutory references are to the Welfare and Institutions
BACKGROUND
Mother has four minor children: Arianna (age 17), Valerie (age 15), Ivannah (age 12), and Andrew (age 8). Victor is the biological father only of Andrew.
The family has an extensive history with DCFS, including a prior referral from January 2014 that Victor was sexually abusing mother's then 13-year-old daughter Natalie. Although the sexual abuse allegations were eventually dismissed, the juvenile court had ordered Victor to participate in individual counseling, attend a sex abuse awareness class, and to not have any contact with Natalie.
On April 27, 2020, DCFS received a referral alleging that Victor had been sexually abusing Arianna for approximately seven years, touching her breasts, buttocks, and vagina. It was also alleged that on March 20, 2020, Victor came into Arianna's room, pinned her on the bed, pulled down her pants and underwear, and "licked her vagina for about five minutes until he ejaculated." By the time DCFS received this referral, Arianna had moved into her adult brother's home.
When a social worker subsequently spoke to Arianna, she corroborated the allegations against Victor. Although she was alone with Victor in the bedroom she shared with Valerie and Ivannah, Arianna stated that mother and minor siblings were elsewhere in the home at the time of the March 20, 2020 incident. Arianna stated she only recently had told her adult sister Natalie about the sexual abuse. Victor had threatened to kill her if she disclosed the abuse to anyone. On a later date, Arianna told the social worker she had in fact told mother about the sexual abuse when she was seven years old, but mother did not believe her.
Mother denied having any concerns her children were being sexually abused and said that her now-adult daughter Natalie had made similar allegations in the past against Victor. Mother stated that Arianna was acting out because she wanted to live with Natalie. Mother believed both Arianna and Natalie were lying about the sexual abuse. However, mother agreed to have Victor move out of the home for the time being and allow Arianna back into the home.
The social worker also spoke to Ivannah and Valerie with mother present. Both girls denied any knowledge about Arianna being sexually abused by Victor. Andrew could not provide a meaningful statement. Victor denied the sexual abuse allegations and believed Natalie was the source of the false allegations.
The social worker also spoke with a detective from the Special Victims Unit at the Los Angeles County Sheriff's Department who had interviewed Arianna about the sexual abuse allegations against Victor. The detective later emailed his report to the social worker, which was consistent with Arianna's prior statements about the abuse.
The social worker again spoke to Arianna and asked her if she could provide more information about the sexual abuse. Arianna confirmed that in March 2020, Victor pulled down her pants and "went down on her." She denied that Victor ejaculated and then said her body shut down and she could not do anything. Arianna also recalled an incident around December 2019 when Victor put his hand inside her pants, and she removed his hand. Other times, Victor would grab and rub her buttocks and thighs. Arianna said Victor would sexually abuse her about three to four times a week. Arianna told the social worker that she believed mother would allow Victor back in the home.
After a forensic exam of Arianna, the nurse practitioner could not confirm or negate sexual abuse. However, she said Arianna's statements of sexual abuse were identical to her disclosures to DCFS and law enforcement.
On June 10, 2020, DCFS filed a section 300 petition that alleged Victor had sexually abused Arianna since she was seven years old. In March 2020, Victor fondled Arianna's breasts, vagina, and buttocks. He also pinned her down on the bed, removed her pants, and orally copulated her. In December 2019, Victor fondled Arianna's vagina. On prior occasions, Victor also grabbed her buttocks. Victor threatened to kill Arianna if she disclosed the sexual abuse. Mother knew or reasonably should have known of the sexual abuse and failed to protect Arianna by allowing Victor to reside in the home and have unlimited access to her. The sexual abuse by Victor and mother's failure to protect Arianna places her and minor siblings at substantial risk. The petition alleged counts under section 300, subdivisions (b)(1), (d), and (j).
In the detention report, DCFS concluded there was a very high risk for abuse and neglect. The family previously participated in an open court case due to allegations of sexual abuse of now-adult sibling Natalie, and recently Arianna reported that Victor sexually abused her over the last nine years. Arianna had provided consistent accounts of the sexual abuse to law enforcement, DCFS, and during her forensic examination.
At the detention hearing on June 23, 2020, the juvenile court found Victor to be Andrew's presumed father. The court then found the section 300 petition stated a prima facie case as to minor siblings. However, the court released minor siblings to mother's home. The court ordered Victor to have monitored visitation for minor siblings outside of the family home. The court also issued a no contact order between Victor and Arianna. Arianna remained placed with her adult brother.
Prior to the detention hearing, mother had agreed with DCFS's recommendation for suitable placement for Arianna.
In the jurisdiction and disposition report, DCFS noted Arianna continued to consistently report that Victor sexually abused her. She stated, "He'd pick me up and . . . grind on me. His private part was touching my private part." When asked if Victor had clothes on during these encounters, Arianna said, "Yeah. I'd be asleep and I'd wake up to him doing that. [H]e would . . . touch my butt. There were a lot of things." Arianna reported that she told her mother of the sexual abuse when she was younger, but mother did not protect her. DCFS stated there were similar allegations against Victor during its 2014 investigation of Natalie's disclosure. When asked why she had not reported her sexual abuse during DCFS's 2014 investigation, Arianna stated that "I didn't say anything because my mom told me not to and I listened to her. I was little, [and] I didn't know to do any[thing] different." Arianna told DCFS she was concerned Victor would sexually assault her other siblings. Although mother was compliant with DCFS instructions, she had adamantly rejected the allegations as false. According to Arianna, mother would not talk to her and continued to have contact with Victor.
A forensic interview of Arianna was conducted on August 18, 2020. Arianna reported Victor molested her. The first incident was when Victor was "grinding" on her fully clothed. And the last incident was when Victor "licked" her vagina with his tongue and proceeded to "put his finger inside" her vagina. Victor also tried to put his penis inside her vagina but he "couldn't put it in." Arianna indicated that
Victor then kissed her with his tongue in her mouth. She reported that Victor put his hands inside her pants and would put his hand on her vagina. She also reported Victor would touch her breasts, slap her butt, and rub her thighs. Arianna recalled an incident where Victor asked for a massage and then proceeded to put her hand on his penis, over his clothes, and made her rub it. On approximately ten occasions, Victor asked Arianna to send him pictures of her. Arianna showed the interviewer the text messages.
On August 19, 2020, a forensic interview of Natalie was conducted regarding her allegations of sexual abuse. Natalie stated it started when she was 10 years old. Victor first put his hands inside her pants and in her shirt. This occurred every night. He would also walk into Natalie's bedroom with his penis exposed. She stated that Victor would hold her down on the bed and "dry hump" her fully clothed. Natalie told her mother about the sexual abuse on multiple occasions, but mother never did anything about it. When she was 13 years old, Natalie told her paternal grandmother, who reported the abuse to the police. When asked if her siblings ever told her that Victor had sexually abused them prior to reporting to her paternal grandmother, Natalie said then 12-year-old Arianna mentioned Victor "dry humped" her as well. Natalie also said that mother continued to see Victor after her juvenile court case was opened.
The jurisdictional hearing was conducted on November 6 and 23, 2020. Arianna testified. The juvenile court heard closing arguments from counsel. Counsel for minor siblings stated his clients "were not abused, and they don't believe that they are at risk of abuse. And they feel safe at home. And they would like to be dismissed from the petition." Victor's counsel argued that Arianna was not credible, and that this case lacked any corroboration. Both Victor's and mother's counsel requested the petition be dismissed. Counsel for Arianna and DCFS requested the petition be sustained as alleged. Counsel for DCFS argued that Arianna was consistent and credible throughout the entire dependency proceeding. The court then took the matter under submission.
At the continued jurisdictional hearing on December 14, 2020, the court provided all counsel with a tentative ruling, finding the subdivisions (b)(1) and (d) counts proven only as to Arianna. However, the court did not sustain the allegations that this conduct places minor siblings at substantial risk, including the allegations made under subdivision (j).
In its ruling, the court found Arianna credible in her assertions that Victor sexually abused her. "The specific molestation that Arianna reported to law enforcement and to DCFS was generally very consistent." In a forensic interview, "Arianna was again questioned at length and her description of the alleged molestation was generally consistent with what she had told the other investigators. While it is the case that there are some minor variations in the recitation of events, none of these variations warrant discounting the entire narrative or finding that this minor is not credible." Moreover, the court "closely observed Arianna during her trial testimony as well as during her videotaped forensic interview and, based upon the content of her statements and her demeanor throughout the interview and testimony the court finds her credible." Therefore, the court concluded the allegations of sexual abuse by Victor and mother's failure to protect Arianna to be true.
The court noted that counsel for minor siblings "argue that there is a lack of evidence of risk to them to warrant sustaining the petition as to them." While it is understandable that DCFS would file a petition on their behalf, the court stated it "cannot say that there is zero risk to them," but DCFS has not demonstrated the requisite substantial risk. "There was no evidence of specific risk to these minors and they have remained in mother's care during the pendency of this case." Applying the framework articulated by the Supreme Court in In re I.J. (2013) 56 Cal.4th 766 (I.J.), the court found the petition's allegations as to minor siblings unproven.
Counsel for DCFS objected to the court's tentative as to minor siblings and requested the court reconsider. Counsel stated that if the minor siblings are dismissed, Victor would be able to move back into the family home and have unlimited access to these children. DCFS also requested a stay. Counsel for Arianna joined in DCFS's objection. However, counsel for minor siblings as well as mother's counsel submitted on the court's tentative. The court denied DCFS's request to reconsider the tentative as well as the request for a stay. Over DCFS's objection, the court dismissed the petition as to minor siblings and removed the language noting substantial risk to minor siblings in subdivisions (b)(1) and (d) and striking the allegations in subdivision (j). The court further stated the no contact order between Victor and Arianna remains in effect, as well has the prior order releasing Arianna to mother but with Arianna not living in the family home. Arianna was apparently living with a maternal cousin. The court set Arianna's dispositional hearing for January 19, 2021.
DCFS timely filed notices of appeal from the December 14, 2020 juvenile court's orders with respect to minor siblings. By way of petition for writ of supersedeas, DCFS requested, and this court issued, a stay of juvenile court's December 14, 2020 orders as to minor siblings during the pendency of the appeal. Victor is the only respondent on appeal.
Counsel for minor siblings filed a letter in response to DCFS's petition for writ of supersedeas. At the jurisdiction hearing in this matter, counsel stated she "advised the juvenile court [of] her clients' request to be dismissed from the petition, but did not provide her position as their attorney pursuant to Welfare and Institutions Code section 317, subdivision (e)." This statute requires minor's counsel to conduct an independent factual investigation into what position accords best with the minor's welfare and then report the results of that factual investigation to the court. (§ 317, subd. (e).) In addition, counsel must not advocate for the minor's return if to the best of counsel's knowledge, return conflicts with the protection and safety of the minor. (Ibid.) Counsel for minor siblings admits she did not fulfill her duties pursuant to section 317, subdivision (e). Therefore, we give no weight to counsel's position at the jurisdictional hearing.
DISCUSSION
I. Standard of Review
Generally, we review the juvenile court's jurisdiction findings for substantial evidence. (Los Angeles County Dept. of Children & Family Services v. Superior Court (2013) 215 Cal.App.4th 962, 966; In re R.C. (2012) 210 Cal.App.4th 930, 940.) Under this standard "[w]e review the record to determine whether there is any substantial evidence to support the juvenile court's conclusions, and we resolve all conflicts and make all reasonable inferences from the evidence to uphold the court's orders, if possible." (In re David M. (2005) 134 Cal.App.4th 822, 828; accord, In re Drake M. (2012) 211 Cal.App.4th 754, 763.) "DCFS has 'the burden of proving "jurisdictional facts by a preponderance of the evidence."' [Citations.]" (Los Angeles County Dept. of Children & Family Services v. Superior Court, supra, at p. 967.)
"[W]here the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically, the question becomes whether the appellant's evidence was (1) 'uncontradicted and unimpeached' and (2) 'of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.' [Citation.]" (In re I.W. (2009) 180 Cal.App.4th 1517, 1528; In re Luis H. (2017) 14 Cal.App.5th 1223, 1227 [applying standard of review to a dependent's challenge to a juvenile court's no jurisdiction finding].)
II. Juvenile Court Erred in Dismissing the Subdivision (j) Count in the Petition
DCFS contends that evidence compels the conclusion that the juvenile court erred in dismissing the allegations as to the minor siblings under section 300, subdivisions (b)(1), (d), and (j). We hold that the evidence compels assertion of jurisdiction under subdivision (j) as a matter of law and, accordingly, the juvenile court erred in dismissing the subdivision (j) count. In light of this conclusion, we do not address the dismissal of the allegations under subdivisions (b)(1) and (d).
"'When a dependency petition alleges multiple grounds for its assertion that a minor comes within the dependency court's jurisdiction, a reviewing court can affirm the juvenile court's finding of jurisdiction over the minor if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence. In such a case, the reviewing court need not consider whether any or all of the other alleged statutory grounds for jurisdiction are supported by the evidence.' [Citation.]" (See I.J., supra, 56 Cal.4th at p. 773.)
It is true that no evidence was presented showing that Victor physically or sexually abused or neglected minor siblings. "But section 300 does not require that a child actually be abused or neglected before the juvenile court can assume jurisdiction." (I.J., supra, 56 Cal.4th at p. 773.) "The subdivision[] at issue here require[s] only a 'substantial risk' that the child will be abused or neglected." (Ibid.) The purpose of the dependency system "is to provide maximum safety and protection for children who are currently being physically, sexually, or emotionally abused, being neglected, or being exploited, and to ensure the safety, protection, and physical and emotional well-being of children who are at risk of that harm." (§ 300.2.) Under section 300, subdivision (j), the juvenile court may assume jurisdiction over a child if: (1) the child's sibling has been abused or neglected and (2) there is a substantial risk that the child will be abused or neglected. Here, the record establishes, and the juvenile court specifically found, that Victor sexually abused Arianna and that mother failed to protect her from the abuse as defined in subdivisions (b)(1) and (d). Thus, the first requirement-abuse of a sibling of the child at issue-is met.
Subdivision (j) provides that a child is within the jurisdiction of the juvenile court if: "The child's sibling has been abused or neglected, as defined in subdivision (a), (b), (d), (e), or (i), and there is a substantial risk that the child will be abused or neglected, as defined in those subdivisions. The court shall consider the circumstances surrounding the abuse or neglect of the sibling, the age and gender of each child, the nature of the abuse or neglect of the sibling, the mental condition of the parent or guardian, and any other factors the court considers probative in determining whether there is a substantial risk to the child."
As to the second requirement, in determining substantial risk under subdivision (j), a juvenile court must consider the following factors: "'the circumstances surrounding the abuse or neglect of the sibling, the age and gender of each child, the nature of the abuse or neglect of the sibling, the mental condition of the parent or guardian, and any other factors the court considers probative in determining whether there is a substantial risk to the child.'" (I.J., supra, 56 Cal.4th at p. 774.) Subdivision (j) allows a juvenile court to take into consideration factors that might not be determinative if the court were adjudicating a petition filed directly under one of the other subdivisions. (Ibid.)
"'The broad language of subdivision (j) clearly indicates that the trial court is to consider the totality of the circumstances of the child and his or her sibling in determining whether the child is at substantial risk of harm, within the meaning of any of the subdivisions enumerated in subdivision (j). The provision thus accords the trial court greater latitude to exercise jurisdiction as to a child whose sibling has been found to have been abused than the court would have in the absence of that circumstance.' [Citation.]" (I.J., supra, 56 Cal.4th at p. 774.)
Here, the evidence before the juvenile court compels a finding that Victor's sexual abuse of Arianna, and mother's failure to protect her, poses a substantial risk to minor siblings under subdivision (j) of section 300 as a matter of law. (In re I.W., supra, 180 Cal.App.4th at p. 1528.) First, when Arianna's sister Natalie was 10 years old, Victor began abusing her on a daily basis by touching her breasts and vagina, exposing his penis, and "dry humping" her while fully clothed. In fact, Victor was sexually abusing Natalie in the family home at the same time he was also abusing Arianna. That DCFS did not pursue Natalie's allegations to adjudication in Natalie's case does not diminish the probative value of her allegations in this case, especially given that at mother's urging Arianna did not disclose to DCFS in Natalie's case that Victor was also concurrently abusing her.
Second, Victor's sexual abuse of Arianna began when she was only seven years old and continued for a total of nine years. Contrary to Victor's contention on appeal, the nature of his behavior toward Arianna was not innocuous. Victor fondled her breasts, vagina, and buttocks three to four times a week. He would also pick Arianna up and "grind" his penis against her "private part." Victor's abuse included forcefully placing Arianna's hand on his clothed penis and making her rub it. In the most recent incident, Victor orally copulated Arianna. The court specifically credited Arianna's chronicle of abuse.
Thus, the record demonstrates that Victor has engaged in an escalating pattern of sexually abusing first Natalie and then Arianna.
There is simply no other reasonable conclusion except that through this pattern of conduct Victor poses a substantial risk to minor siblings. Minor siblings are currently of the same age as were Arianna and Natalie when they were sexually abused by Victor. That the abuse has not occurred as yet does not negate that risk. "A parent's past conduct is a good predictor of future behavior. [Citation.] 'Facts supporting allegations that a child is one described by section 300 are cumulative.' [Citation.] Thus, the court 'must consider all the circumstances affecting the child, wherever they occur.' [Citation.]" (In re T.V. (2013) 217 Cal.App.4th 126, 133.)
Equally alarming, mother has consistently failed to protect her children from Victor's sexual abuse. When both Natalie and Arianna told mother that Victor was abusing them, she did nothing to protect them. In 2014, she urged Arianna to not disclose her sexual abuse during the DCFS's investigation into Natalie's disclosure. Indeed, mother has adamantly denied the sexual abuse allegations, thus strongly suggesting that she will not protect minor siblings from similar abuse. (See In re A.F. (2016) 3 Cal.App.5th 283, 293; In re Giovanni F. (2010) 184 Cal.App.4th 594, 601 [parent's denial of violence increase risk].)
In assessing substantial risk under section 300, subdivision (j), neither the juvenile court nor Victor on appeal distinguish among minor siblings on the basis of gender. Regardless, we conclude that Victor's sexual abuse of Arianna puts all minor siblings at substantial risk despite Andrew being a male child. "'Although the danger of sexual abuse of a female sibling in such a situation may be greater than the danger of sexual abuse of a male sibling, the danger of sexual abuse to the male sibling is nonetheless still substantial.' [Citation.] The juvenile court need not compare relative risks to assume jurisdiction over all the children of a sexual abuser, especially when the abuse was as severe and prolonged as here." (I.J., supra, 56 Cal.4th at p. 780.) Rather, "the more severe the type of sibling abuse, the lower the required probability of the child's experiencing such abuse to conclude the child is at a substantial risk of abuse or neglect under section 300." (Id. at p. 778.) Victor's sexual abuse of Arianna was egregious and ongoing, and began when Arianna was only seven years old, which is the same age Andrew was at the time of this dependency proceeding. (In re P.A. (2006) 144 Cal.App.4th 1339, 1347 [when a child has been sexually abused, any younger sibling who is approaching the age at which the child was abused, may be found to be at risk].)
Similarly, it is immaterial that Arianna is not Victor's biological daughter and Andrew is his biological child. Such a distinction "is contrary to the holdings and language of the cases that suggest sexual abuse of one child in the household puts at risk other children in the household. . . . '"Incest" . . . encompasses not only sexual relations between a child and a biological parent, but also between a child and an adult who has assumed a parenting role toward the child, whether that adult is married or cohabits with the child's parent. . . .'" (Los Angeles County Department of Children & Family Services v. Superior Court, supra, 215 Cal.App.4th at p. 970.) Here, Victor was the companion of, and living with, mother when he sexually abused first Natalie and then Arianna.
Victor argues there is no substantial risk to minor siblings given the juvenile court's January 19, 2021 order placing Arianna at "home of mother" on the condition that Victor not reside in the family home. We disagree. There is no indication that Arianna is currently residing with mother, and thus that Victor is not residing there with minor siblings. At the time of the jurisdictional hearing, Arianna was living with a maternal cousin. In any event, even assuming Arianna is residing in the family home, that does not ensure that mother will prevent Victor from having access to minor siblings whether in or outside of the home. (See Los Angeles County Department of Children & Family Services, supra, 215 Cal.App.4th at p. 970.) As previously noted, mother denies that Victor abused Natalie and Arianna, and thus does not believe that Victor poses a danger to minor siblings. This, combined with mother's prior failure to protect Natalie and Arianna, only adds to the risk to minor siblings.
(1) a January 19, 2021 order placing Arianna in mother's home under the supervision of DCFS on the condition that Victor does not reside in the family home; and (2) a July 19, 2021 order maintaining the status quo and providing that all prior orders not in conflict shall remain in full force and effect. This court granted Victor's request for judicial notice of two orders:
We recognize that the juvenile court may have been influenced by the position of counsel for minor siblings below. Counsel stated her clients "were not abused, . . . don't believe that they are at risk of abuse . . . [, ] feel safe at home[, ] . . . and . . . would like to be dismissed from the petition." However, as we have noted (see fn. 2, ante), counsel for minor siblings has since clarified that she did not fulfill her duties pursuant to section 317, subdivision (e), which requires an independent factual investigation and that counsel not advocate for the minor's return if to the best of counsel's knowledge, return conflicts with the protection and safety of the minor. (Ibid.) Thus, the position of counsel for minor siblings below deserves no weight in the determination of this case, and, in fact, is contrary to the evidence.
In short, Victor's established pattern of abusing minors in his care and mother's failure to protect them create, as a matter of law, not simply a possible risk, but a substantial risk that minor siblings will become victims of similar abuse. Because the evidence compels a finding of jurisdiction under subdivision (j) as to the minor siblings, the juvenile court erred in dismissing the subdivision (j) count.
DISPOSITION
The order dismissing the section 300 petition as to minor siblings (Valerie, Ivannah and Andrew) is reversed and the matter is remanded with directions to assume jurisdiction over the minor siblings under section 300, subdivision (j) and thereafter hold a disposition hearing and proceed as required by law.
We concur: CURREY, J., MICON, J. [*]
[*] Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.