Opinion
B229593
08-26-2011
In re A.J. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. A.J. III, Defendant and Appellant.
Jack A. Love, under appointment by the Court of Appeal, for Defendant and Appellant. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Frederick Klink, Senior Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. CK81131)
APPEAL from orders of the Superior Court of Los Angeles County. David R. Fields, Judge. Affirmed.
Jack A. Love, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Frederick Klink, Senior Deputy County Counsel, for Plaintiff and Respondent.
A.J. III (Father) appeals from the November 24, 2010 jurisdictional and dispositional orders of the juvenile court adjudging minors A.J., J.J., and K.J. dependents of the court pursuant to Welfare and Institutions Code sections 360, subdivision (c), and 300, subdivision (b) (failure to protect) arising out of A.J.'s mutual oral copulation with his younger brother J.J. Father challenges the sufficiency of the evidence to support the court's jurisdictional findings and argues that the dispositional orders should be reversed or modified. We conclude the jurisdictional findings were supported by the evidence, which showed that Father had been advised of the sexual incident but had counseled the minors not to tell anybody about it, even though he, Dana W. (Mother), and the minors were in court-ordered therapy based on a prior non-detained petition to address the minors' emotional problems, including suicidal threats by A.J. We also conclude the court did not abuse its discretion in making the dispositional orders. We affirm the orders of the court.
Statutory references are to the Welfare and Institutions Code.
Mother is not a party to this appeal.
BACKGROUND
Mother and Father are divorced and live in separate residences. At the time of the incident, Father had primary physical and legal custody of A.J., who was 13 years old, J.J., who was 10 years old, and K.J., who was 8 years old. Mother had visitation rights.
Non-detained Petition
On February 18, 2010, based on a referral by Mother that Father was physically abusing the minors, the Department of Children and Family Services (DCFS) filed the initial non-detained petition pursuant to section 300, subdivision (a) (serious physical harm), subdivision (c) (serious emotional damage), and subdivision (j) (abuse of sibling). The events giving rise to the non-detained petition are as follows.
On November 9, 2009, Mother reported to DCFS that the minors had told her Father kicks them and hits them with a leather belt every day. Although Mother told DCFS that she was angry and resentful at Father for taking the minors away from her in 2007 after she had attacked him with a knife, she denied coaching the minors.
DCFS's investigation revealed no signs of physical abuse on the minors' bodies. The minors initially reported that Father hit them every day but could not specify the date of when they had last been hit. Eventually they admitted they had been coached by Mother to make allegations of physical abuse.
Father stated that none of Mother's allegations of physical abuse against him had been substantiated. Father reported that Mother had coached the minors to lie in order to get custody and had tried to influence the minors against him. Father had obtained therapy for A.J. and J.J. due to behavioral problems they had been having at school and at home after he and Mother had separated in 2007.
On December 30, 2009, Mother reported to DCFS that Father had physically abused A.J. by hitting him in the chest. DCFS reported that Father had become angry with A.J. because he believed A.J. had taken $20 from an aunt during a visit with her. Father had become angry with A.J. and poked him in the chest. When they got home, Father had sent A.J. to his room and made him call his aunt to apologize. A.J. then had texted Mother and said he wanted to kill himself. Mother had called DCFS and her attorney. Subsequently, Mother's attorney had called Father and advised him to take A.J. to the hospital. The medical team had determined that A.J. was not a threat to himself or others.
DCFS made a safety plan on December 31, 2009, requiring Mother and Father to, among other things, abstain from corporal punishment and to call 911 if the minors threatened to harm themselves. A forensic interview and physical examination did not substantiate Mother's allegation that Father had physically abused the children. A mental health evaluation of A.J. revealed that A.J. had difficulty forming a positive relationship with Father due to coaching by Mother, A.J. admitted to stealing and lying, and A.J. admitted that when he had been angry at Mother he had made a false statement regarding a sexual abuse allegation against Mother's boyfriend.
On January 6, 2010, at a team decisionmaking meeting, DCFS determined that "a non-detained petition should be filed in order to monitor [A.J.'s] escalating behavioral/emotional problems and ensure that [Mother and Father] comply with individual and conjoint counseling to address their custodial conflicts and the impact it has on the children."
At the adjudication on April 16, 2010, Mother and Father submitted to jurisdiction under section 360, subdivision (b). The juvenile court dismissed the allegations under section 300, subdivisions (a) and (j) but sustained the allegation under section 300, subdivision (c) that alleged Mother's and Father's ongoing custody battle had a negative emotional effect on the minors and that A.J. had demonstrated suicidal ideation and threatened to harm himself. The court ordered the minors to remain with Father and Mother under DCFS's supervision. A.J. and J.J. were ordered to continue to participate in individual counseling. Father was ordered to participate in individual counseling, addressing case issues of anger management, appropriate parenting, and boundary issues. Mother and Father were ordered to participate in family therapy with the minors as deemed appropriate by the minors' therapist. Mother and Father were ordered to participate in conjoint therapy to address boundary issues. The matter was set for a six-month hearing on October 15, 2010, to address possible dismissal of the petition.
Section 360, subdivision (b) provides: "If the court finds that the child is a person described by Section 300, it may, without adjudicating the child a dependent child of the court, order that services be provided to keep the family together and place the child and the child's parent or guardian under the supervision of the social worker for a time period consistent with Section 301."
Section 360, Subdivision (c) Petition
On September 21, 2010, DCFS filed a petition pursuant to sections 360, subdivision (c), and 300, subdivision (b), alleging in count b-1 that in August 2010, 13-year-old A.J. sexually abused his 10-year-old brother J.J. by engaging in mutual oral copulation; that on September 16, 2010, J.J. demonstrated suicidal ideation and threatened to harm himself; emotional abuse on the part of Mother and Father places the minors at substantial risk of suffering serious emotional damage; sexual abuse of J.J. and failure to protect on the part of Mother and Father endangers J.J.'s and A.J.'s physical, sexual, and emotional health, safety, and well-being and creates a detrimental home environment and places J.J. and his siblings at risk of physical and emotional harm, damage, and further sexual abuse. The events giving rise to the petition are as follows.
Section 360, subdivision (c) provides: "If the family subsequently is unable or unwilling to cooperate with the services being provided, the social worker may file a petition with the juvenile court pursuant to Section 332 alleging that a previous petition has been sustained and that disposition pursuant to subdivision (b) has been ineffective in ameliorating the situation requiring the child welfare services. Upon hearing the petition, the court shall order either that the petition shall be dismissed or that a new disposition hearing shall be held pursuant to subdivision (d)."
At the jurisdiction hearing, the juvenile court dismissed other allegations alleged in the petition pursuant to section 300, subdivisions (b) (failure to protect based on the actions of Mother's cousin, Gerard), (c) (serious emotional damage), (d) (sexual abuse), and (j) (abuse of sibling).
On September 16, 2010, Los Angeles Police Department Officer Gutierrez and his partner interviewed J.J. and A.J. at Mother's home in response to J.J.'s teacher's report that J.J. had engaged in oral copulation with A.J. J.J. told Officer Gutierrez that in August 2010, when he and A.J. had been playing a game of "'Truth or Dare'" at Mother's home, A.J. had performed oral copulation on him. J.J. had denied A.J.'s previous request to engage in oral copulation "approximately two years prior." J.J. stated that Father, Mother, and A.J. had told him not to report the incident to anyone. J.J. later told DCFS he had made up the allegations. Eventually, he told DCFS that he had been afraid to tell the truth because he did not want to be taken away from Mother. J.J. then told DCFS that at A.J.'s request he and A.J. had engaged in an act of mutual oral copulation. He stated that K.J. had been asleep in the same bedroom during the incident. After J.J. had told Mother that he felt suicidal, Mother had said she would get help for him, but never did. He said Mother "subsequently told [Father] because he felt 'guilty' about what had happened." Father had said, "'[W]hen you guys come home, I'm gonna separate you.'" Mother and Father had told him not to tell anyone. J.J. said he had reported the incident to his teacher because the incident was "'stuck in his head forever,'" he had been "'crying all day, everyday [sic],'" and he had felt "'like killing [himself] everyday [sic].'"
A.J. initially denied to the officers that he and J.J. had performed oral copulation on each other. Later, A.J. told DCFS that when he was five years old, Mother's cousin Gerard had sucked on A.J.'s penis. He had told Mother about the incident with Gerard, and she had told him not to tell anyone about it. A.J. "liked how it felt," so he had suggested mutual oral copulation to J.J. and engaged in it with him in August 2010. A.J. denied suggesting oral copulation to J.J. at any other time. He also denied ever touching K.J. or suggesting any sexual touching to him. A.J. said that Father was not aware of the incident with Gerard but knew about the incident between A.J. and J.J. A.J. stated that Father had never told him not to tell anyone about the incident, although Mother had told the minors not to say anything.
K.J. denied ever being the victim of abuse but told the officers that he was aware of the allegations because the family had decided to keep the incident a "'family matter.'"
Mother told the officers that the previous month J.J. had told her that A.J. had touched him on his private parts in early August 2010. Mother had become upset and told the minors not to do it again or talk to anyone about the incident. Mother stated she had told Father about the incident and they decided to keep the incident a "'family matter.'" Mother told DCFS that when she had informed Father about the incident, he said "he was gonna kill [A.J]." Mother stated that at J.J.'s request she had not talked about the incident to anybody, including the DCFS caseworker assigned to the non-detained matter. She stated that J.J. currently slept with Mother and that A.J. and K.J. slept together in another bedroom. Mother told DCFS that she had become aware in 2010 that Gerard had sexually abused A.J. when he was younger and that she had not told anyone, including Father.
Father told the officers that Mother had told him about the incident and that J.J. had told him that A.J. had touched him "on his private area with his mouth." Father had counseled the minors not to do it again. Father stated that "it happened at [Mother's] house because the kids are not supervised." Father told the officers he and Mother decided to keep the incident a "'family matter.'" Father then recanted and denied to DCFS any knowledge of sexual abuse, stating that the allegations were "'lies'" and claiming that the minors "were being manipulated by [Mother] for custody." Father told DCFS that Mother had not told him about the incident between A.J. and J.J. because she knew he would have used it against her in court. Father stated that he would have reported the incident if he had been aware of it, just as he had previously reported to the court that Mother's boyfriend had told A.J. that it was "'OK to masturbate'" and that A.J. had access to pornography on the computer at Mother's house.
At the detention hearing, the minors were ordered to remain detained. A.J. was placed in a group home, J.J. was placed on a hospital hold, and K.J. was placed in a foster home. Mother and Father were ordered to have monitored visitation.
Father filed a section 388 petition on September 23, 2010, seeking placement of J.J. and K.J. with him. No mention was made of A.J.'s placement. The juvenile court denied the petition on September 29, 2010, as well as a second 388 petition filed by Father on October 4, 2010, requesting that J.J. and K.J. be placed with Father and that A.J. be placed at Mother's home.
J.J.'s therapist reported to DCFS that from January to June 2010 she had been trying get the family to attend therapy together and had been encouraging intensive in-home services "'because of opposition of [Mother] and changes in the family.'" When she saw J.J. on October 6, 2010, he had not wanted to talk about the oral copulation incident. He had told her "'he didn't want to think or say anything about it.'" She believed the minors' recantation of allegations of abuse by Father was truthful. She also stated that she had been seeing Father conjointly since January 2010; the minors seemed comfortable around him; she had no concerns about Father or his parenting skills; and she believed the minors would be safe and protected in his custody.
A.J.'s therapist reported to DCFS that Mother was uncooperative and volatile; Father was cooperative and participated in therapy when requested; she had no concern about Father's attentiveness or parenting skills; and placement in Father's custody was in the minors' best interest because he provided stability. A.J.'s therapist believed the minors had been coached occasionally by Mother.
At the October 15, 2010 pretrial resolution conference, DCFS recommended that the three minors remain under DCFS's supervision and that J.J. and K.J. be released to Father. A.J.'s counsel indicated that A.J. wanted to be placed with Mother. The juvenile court placed J.J. and K.J. with Father and ordered A.J. to remain in the group home.
The contested adjudication hearing was held on November 24, 2010. Mother entered a no contest plea. Father testified that he had first learned of the sexual abuse incident when he was questioned at the police station. He denied that Mother had told him previously about the incident and that he and Mother had counseled the minors not to tell anybody about it. He denied telling the officers that the incident had happened at Mother's house because "'the [minors] are not supervised'" or that he had counseled the minors "not to do it again."
The juvenile court amended the section 300, subdivision (b) count to allege that "on or about August 2010 the children engaged in sexual experimental behaviors," including mutual oral copulation, and to include K.J. in the allegations that "'Mother's and Father's failure to appropriately respond to the children's behaviors, [A.J., J.J., and K.J.], endangered their physical health, emotional well-being." The remaining counts were dismissed. At disposition, the court ordered J.J. and K.J. to be placed with Father. The court then ordered A.J. to be placed with Mother, although DCFS objected and recommended that A.J. remain placed in a group home. The court ordered unmonitored visitation for Father and A.J. Mother was ordered to have monitored visitation with J.J. and K.J., with discretion to liberalize. The minors were ordered to participate in individual counseling and conjoint counseling with each other and parents if deemed necessary by the therapist. Father was ordered to participate in a parenting course, individual counseling to address case issues, including sexual abuse awareness, and conjoint counseling with the minors if deemed necessary by the therapists. Mother was ordered to participate in a parenting course, individual counseling to address case issues, including sexual abuse awareness and anger management, and conjoint counseling with the minors if deemed necessary by the therapists. "Wraparound services" were ordered for the family. The court then set a six-month date for a section 364 hearing.
On December 14, 2010, Father filed a notice of appeal.
DISCUSSION
A. Sufficient evidence supported the juvenile court's jurisdictional finding
Father contends the evidence was insufficient to support the juvenile court's jurisdictional finding. We disagree because the evidence showed that Father had been advised of the sexual incident but had counseled the minors not to tell anybody about it, even though he, Mother, and the minors were in court-ordered therapy based on a prior non-detained petition to address the minors' emotional problems, including suicidal threats by A.J.
The juvenile court's jurisdictional finding that the minor is a person described in section 300 must be supported by a preponderance of the evidence. (§ 355; Cal. Rules of Court, rule 5.684(f).) "'"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. [Citation.] In making this determination, all conflicts [in the evidence and in reasonable inferences from the evidence] are to be resolved in favor of the prevailing party, and issues of fact and credibility are questions for the trier of fact. [Citation.]"' [Citation.] While substantial evidence may consist of inferences, such inferences must rest on the evidence; inferences that are the result of speculation or conjecture cannot support a finding. [Citation.]" (In re Precious D. (2010) 189 Cal.App.4th 1251, 1258-1259.)
Section 300, subdivision (b) provides a basis for juvenile court jurisdiction if "[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child, or the willful or negligent failure of the child's parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left . . . ."
"A jurisdictional finding under section 300, subdivision (b) requires: '"(1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) 'serious physical harm or illness' to the child, or a 'substantial risk' of such harm or illness." [Citation.]' [Citations.] The third element 'effectively requires a showing that at the time of the jurisdictional hearing the child is at substantial risk of serious physical harm in the future (e.g., evidence showing a substantial risk that past physical harm will reoccur).' [Citation.]" (In re James R. (2009) 176 Cal.App.4th 129, 135.) The failure of a parent to protect a child from sexual abuse by another can support a finding of jurisdiction under section 300, subdivision (b). (In re J.K. (2009) 174 Cal.App.4th 1426, 1439.)
Father argues that substantial evidence did not support the finding that he failed to respond appropriately to the minors' behaviors, thus endangering their physical health and emotional well-being. First, he contends he did not fail to protect the minors because the sexual experimentation did not occur at his home. Second, he argues that, although the evidence was conflicting of whether he had been aware of the incident, the evidence that he had been aware also showed that he had acted appropriately by warning the minors not to engage in such behavior again and separating their sleeping arrangements.
While it is true that the evidence shows that no sexually inappropriate behavior occurred at Father's house, Father provided a stable home for the minors, and there were no concerns about Father's parenting skills, we conclude he had failed to respond appropriately because he had told J.J. and K.J. to "keep it a 'family matter'" and had failed to obtain help for J.J., who was already in therapy. This led to J.J.'s becoming further emotionally unstable to the point where he thought about committing suicide. Thus, the threat of emotional and physical self-inflicted harm to J.J. was very real. The matter only came to light when J.J. told his teacher what had happened, as J.J. had kept it from his therapist.
Father's cites In re R.M. (2009) 175 Cal.App.4th 986 in support of his argument that he had acted appropriately once he had become aware of the inappropriate sexual behavior. In In re R.M., we concluded that the evidence was insufficient to support jurisdiction under section 300, subdivision (b) over R.M. and his sister S.M. as to their mother. (In re R.M., supra, at p. 988.) In that case, the evidence showed that R.M. had watched adult films, had dressed in women's clothing, and had spied on his sister in the shower, which we concluded did not pose a threat of "'serious physical harm'" to R.M. or S.M. (Id. at p. 989.) We acknowledged that the minors had engaged in inappropriate behavior of a "more serious nature" in the form of mutual clothed and unclothed sexual touching, but concluded that the record did not show that the mother inadequately supervised the minors or should have been aware of their inappropriate sexual conduct. (Ibid.)Once the mother had become aware of the sexually inappropriate conduct, she had admonished the children not to repeat the behavior and had locked the door to the bedroom where she and S.M. slept. And there was no evidence that any inappropriate sexual conduct continued thereafter.
Father claims that likewise, "there was insufficient evidence at the time of the jurisdiction hearing that any sexual incident would reoccur." But the juvenile court's concern was not that the inappropriate sexual conduct would recur, but that Father's admonishment to keep the incident a secret had prevented the minors from obtaining help from their therapists. Sexual experimentation among young children is not uncommon. Nor is the tendency of a family to address such an incident by warning the children not to repeat the behavior or talk about it to anyone. But at the time of the incident, Father, Mother, and the minors were in court-ordered therapy based on a prior non-detained petition to address emotional problems resulting from Father's and Mother's divorce and custody battle, including A.J.'s threats of suicide. Pursuant to the non-detained petition, Father had agreed to a case plan to call 911 if the minors threatened to harm themselves. He had also participated in therapy with the minors for the past two years. Thus, he was aware of the minors' fragile emotional state and the importance of obtaining treatment for them. But he had told the minors to keep the incident a secret while J.J. had suicidal thoughts, cried every day, and felt like the incident was "'stuck in his head forever.'"
And the record shows that after Father initially admitted he had known of the incident and had warned the children not to repeat the behavior or to tell anybody else about it, he denied any prior knowledge of the incident at the time of the jurisdiction hearing. His persistence in denying knowledge of the incident at the jurisdiction hearing further indicates that the minors were at continued risk of harm.
We conclude that sufficient evidence supported the jurisdictional findings of the juvenile court.
B. Dispositional orders
Father contends that the dispositional orders removing A.J. from Father's custody and ordering multiple programs for Father should be reversed or modified. We disagree.
When a minor is adjudged a dependent child of the court under section 300, section 362, subdivision (a) gives the juvenile court authority to "make any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the child, including medical treatment, subject to further order of the court." When a minor is not removed from the parents' custody, "the parents or guardians shall be required to participate in child welfare services or services provided by an appropriate agency designated by the court." (§ 362, subd. (b).) The court may make orders to the parents as it "deems necessary and proper to carry out the provisions of this section," including participating in a counseling or parent education program. (§ 362, subd. (c).)
Father argues that because the juvenile court did not appear to believe Father posed a risk to A.J., the order removing him from Father's custody and placing him with Mother as A.J. had requested was not necessary. Rather, he urges, the court should have made a home of father order, with A.J. primarily residing at Mother's home. Respondent does not take a position on this issue because it requested that A.J. remained placed in the group home. We conclude that Father failed to demonstrate that the juvenile court abused its discretion in placing A.J. in the home of Mother. As noted, in his October 4, 2010 section 388 petition, Father requested that A.J. be placed at Mother's home. A.J. also requested that he be placed with Mother. And, under this order, Father had unmonitored visitation with A.J., who was separated from his siblings.
Father also contends that the orders for a parenting course, individual counseling, and "wraparound services" were not necessary because the therapists had no concerns regarding Father's parenting skills, Father had "taken steps to ensure the one-time incident between the children would not reoccur," and the minors were already in counseling. But the juvenile court, and not the therapists, has the responsibility and discretion to order services. We conclude the court did not abuse its discretion in ordering services that were broader than individual counseling to address the case issues, including sexual abuse awareness.
DISPOSITION
The jurisdictional and dispositional orders are affirmed.
NOT TO BE PUBLISHED.
MALLANO, P. J. We concur:
ROTHSCHILD, J.
CHANEY, J.