Opinion
B296488
02-11-2020
In re FRANCISCO L., a Person Coming Under the Juvenile Court Law. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. MERCEDES M., Defendant and Appellant.
Jacques Alexander Love, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel and Tracey F. Dodds, Principal Deputy County Counsel for Plaintiff and Respondent.
(Los Angeles County Super. Ct. No. 18CCJP03790A) ORDER MODIFYING OPINION
[NO CHANGE IN JUDGMENT] THE COURT:
It is ordered that the opinion filed herein on February 11, 2020, be modified as follows: Los Angeles County Superior Court case number on the opinion caption is to read: 18CCJP03790A. /s/_________
EDMON, P. J. /s/_________
LAVIN, J. /s/_________
EGERTON, J.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a). (Los Angeles County Super. Ct. No. 18CCP03790A) APPEAL from an order of the Superior Court of Los Angeles County, Victor G. Viramontes, Judge. Reversed and remanded with directions. Jacques Alexander Love, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel and Tracey F. Dodds, Principal Deputy County Counsel for Plaintiff and Respondent.
____________________
Mercedes M. (mother) appeals from the juvenile court's jurisdictional findings and dispositional order as they relate to her two-year-old son, Francisco L. The court found Francisco was at risk of physical and sexual abuse under Welfare and Institutions Code sections (a), (b), (d), and (j) based on findings that: (1) Francisco's father, Carlos L. (father), sexually abused Francisco's adolescent half-sister, Karla M.; and (2) mother slapped Karla when she reported the sexual abuse. Mother asserts that the juvenile court's findings were not supported by substantial evidence, and she challenges the dispositional orders directing her to participate in a variety of programs.
Further unspecified statutory references are to the Welfare and Institutions Code.
We conclude that mother's appeal is justiciable, and that the jurisdictional findings as to mother are not supported by substantial evidence. We therefore reverse the jurisdictional findings based on mother's conduct, reverse the dispositional order as to mother, and remand the matter to the juvenile court for further proceedings consistent with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
Francisco (born in March 2017) is the child of mother and father. Mother has two other children by other fathers: Karla M. (born in October 2001) and Danna M. (born in September 2010). Prior to 2016, Karla resided with mother and father, and Danna resided primarily with her father, Manuel M. (Manuel). Only Francisco is a subject of this appeal.
I.
Prior Dependency Proceedings
A. Petition, Jurisdiction, and Disposition
In March 2016, 14-year-old Karla told a school counselor that father (Karla's stepfather) repeatedly attempted to grope her and take her into a room to have sexual intercourse, and he once kissed her on the lips without her consent. After police detectives began investigating, Karla recanted her allegation. A month later, in April 2016, police received a report that Karla had been receiving text messages from father's friend, Luis P., seeking a sexual relationship. When mother learned of Luis's advances, she accused Karla of lying and slapped her face.
The Los Angeles County Department of Children and Family Services (DCFS) investigated both incidents. Karla disclosed that in March, mother had begged her to recant the sexual abuse allegations against father so he would not be arrested. Karla agreed to tell detectives that she had "made it all up." Karla also reported mother had hit her, once with her hand and once with a belt. Karla said she did not feel safe at home and had begun cutting herself out of frustration. She did not wish to continue living with mother.
Mother denied that Karla had been sexually abused by father or Luis. Mother also denied that she had ever hit Karla or told Karla to lie to the police. Mother said Karla was a "habitual liar" and was seeking attention. She did not plan to have father move out of the home.
In April 2016, DCFS filed a juvenile dependency petition pursuant to section 300, subdivisions (a), (b), (d), and (j), which alleged as follows:
a-1, b-2, j-2: Mother "physically abused [Karla] by slapping the child in the face with an open hand," putting both Karla and Danna at risk of physical harm.
b-1, d-1, j-1: Mother's boyfriend [father] engaged in inappropriate sexual behavior with Karla by kissing her on the mouth and attempting to fondle her and engage in sexual intercourse. Mother failed to protect Karla by permitting her boyfriend to live in the family home and have unlimited contact with Karla, and by instructing Karla to give false information to law enforcement. The inappropriate sexual contact and mother's failure to protect put Karla and Danna at risk of sexual abuse.
The court sustained all counts of the petition and declared Karla and Danna dependents of the court. The court placed Danna in the home of her father and terminated its jurisdiction over her. Karla was placed in foster care. Mother was ordered to participate in individual and conjoint counseling, sexual abuse awareness counseling, and parenting classes.
B. Francisco's Birth
In September 2016, mother told DCFS she was still in a relationship with father and was three months pregnant with their child. The following month, father moved back in with mother. Mother gave birth to Francisco in March 2017.
C. Subsequent Proceedings
In December 2016, Karla ran away from her foster care placement. As of October 2017, DCFS had not been able to locate her.
In June 2017, DCFS reported that mother had completed the sexual abuse awareness counseling and parenting classes that had been ordered, and had completed 20 sessions of individual counseling. Mother was unable to complete conjoint counseling because Karla's whereabouts remained unknown.
II.
Current Dependency Proceeding
A. Petition and Detention
On June 14, 2018, DCFS filed a dependency petition pursuant to section 300, subdivisions (a), (b), (d), and (j) on behalf of fifteen-month-old Francisco. The petition alleged:
It is not entirely clear why DCFS initiated the present action, but it appears to have done so because on May 4, 2018, the juvenile court ordered Karla returned to mother's custody. DCFS sought writ review of the order returning Karla to mother's custody, and on May 17, 2018, we advised the juvenile court of our intention to issue a peremptory writ of mandate. On May 23, 2018, the juvenile court vacated its order.
a-1, b-2, j-2: On a prior occasion, mother physically abused Francisco's half-sister, Karla, by slapping her in the face, which was excessive and unreasonable. Mother's physical abuse of Karla placed Francisco at risk of serious physical harm.
b-1, d-1, j-1: On a prior occasion, father sexually abused Karla by kissing her on the mouth, attempting to fondle her, attempting to pull her into his bedroom to engage in sexual intercourse, and sending her inappropriate text messages to establish a dating relationship. Mother instructed Karla to lie to DCFS and law enforcement regarding the sexual abuse, and failed to protect Karla by continuing to reside with father. Father's sexual abuse and mother's failure to protect Karla placed Francisco at risk of sexual abuse.
In June 2018, DCFS reported that Francisco appeared healthy and developmentally on-target. His medical records indicated that he had been seen for well-child exams, most recently in January 2018, and the pediatrician had not noted any concerns of abuse or neglect. Father, mother, and the paternal grandmother all said Francisco was well cared for and had never been subject to physical abuse. DCFS interviewed seven-year-old Danna, who said she had never been hit by mother or father, and she had never seen mother or father hit Francisco.
At the June 15, 2018 detention hearing, Francisco was removed from father and released to mother under DCFS supervision. Father was granted monitored visitation.
B. Jurisdiction/Disposition Report
In about May 2018, father moved to Mexico to start a business with his father. He and mother remained in a long-distance relationship.
When interviewed by DCFS, mother continued to insist that Karla had lied about being sexually abused by father. Mother and father both denied that Francisco was ever physically disciplined. Danna's father said mother visited Danna sporadically, and Danna had not reported any mistreatment or abuse.
Karla's social worker indicated that mother had completed her court-ordered programs, and she had no concerns about abuse or neglect of Francisco. However, DCFS remained concerned about mother's ability to protect Francisco given her continued denial of Karla's sexual abuse allegations and "her on-going relationship with [father]." DCFS recommended that Francisco remain detained from father, and that mother be ordered to participate in parenting and sexual abuse awareness classes, as well as individual counseling.
In September 2018, the court continued the jurisdiction/disposition hearing for six months to allow father to be served in Mexico with notice of the hearing. In October 2018, father told DCFS he intended to continue to reside in Mexico.
In December 2018 and February 2019, DCFS informed the court that it had been unable to conduct unannounced visits because mother was often unavailable and frequently traveled out of state. DCFS was uncertain who cared for Francisco while mother was away, and it remained concerned about mother's ability to protect Francisco in light of her ongoing relationship with father and her continued denial that father had sexually abused Karla.
C. Jurisdiction and Disposition Hearing
At the March 12, 2019 adjudication hearing, the court sustained all counts of the petition. It ordered Francisco removed from father and released to mother under DCFS supervision, with father to have monitored visits. The court once again ordered mother to complete parenting classes, a sex abuse awareness program, and individual counseling to address case issues. It ordered father to participate in sex abuse counseling for perpetrators and individual counseling to address case issues.
Although this issue is not relevant to the issues raised by the present appeal, we note that in sustaining the petition as to father, the juvenile court credited not only the finding that father had sexually abused Karla, but also county counsel's statement that father previously had been convicted of statutory rape. In fact, the arrest records attached to the jurisdiction/disposition report indicate that it was Danna's father, Manuel M., who had been convicted of statutory rape, not father.
Mother timely appealed from the jurisdictional findings and dispositional order.
DISCUSSION
I.
Justiciability
Although the juvenile court sustained allegations concerning both mother and father, mother challenges the findings only as to her. Before we address mother's contentions on the merits, we therefore must decide whether we can provide " 'effective' relief—that is, the prospect of a remedy that can have a practical, tangible impact on the parties' conduct or legal status." (In re I.A. (2011) 201 Cal.App.4th 1484, 1490.)
In general, a jurisdictional finding involving one parent is good against both. (In re I.A., supra, 201 Cal.App.4th at p. 1492 [" ' "the minor is a dependent if the actions of either parent bring [him or her] within one of the statutory definitions of a dependent" ' "]; In re X.S. (2010) 190 Cal.App.4th 1154, 1161 [a " 'jurisdictional finding good against one parent is good against both' "].) Because father has not appealed, Francisco will remain a dependent of the juvenile court regardless of what we decide about mother's conduct. Nonetheless, because the findings concerning mother are relevant to the dispositional order, we will exercise our discretion to address those findings on the merits.
II.
Sufficiency of the Evidence to Support
the Findings Concerning Mother
A. Standard of Review
" 'In reviewing a challenge to the sufficiency of the evidence supporting the jurisdictional findings and disposition, we determine if substantial evidence, contradicted or uncontradicted, supports them. "In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court's determinations; and we note that issues of fact and credibility are the province of the trial court." (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) "We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court. [Citations.] ' "[T]he [appellate] court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence . . . such that a reasonable trier of fact could find [that the order is appropriate]." ' [Citation.]" [Citation].' " (In re I.J. (2013) 56 Cal.4th 766, 773.)
B. Physical Abuse
The juvenile court sustained physical abuse allegations against mother under section 300, subdivisions (a), (b), and (j). Those sections provide that a child is within the jurisdiction of the juvenile court if "[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm inflicted nonaccidentally upon the child by the child's parent" (§ 300, subd. (a)); "[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" (§ 300, subd. (b)(1)); or "[t]he 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" (§ 300, subd. (j)).
The law is clear that dependency jurisdiction may be based on evidence of abuse or neglect of a child's sibling, rather than of the child himself. (E.g., In re D.B. (2018) 26 Cal.App.5th 320, 330-331 [evidence that parents hit child with a belt four times a month, leaving him with wounds in different stages of healing, supported juvenile court's finding that child's sibling was at substantial risk of serious physical abuse].) However, when the jurisdictional allegations are based solely on future risk to the child, rather than on past abuse or neglect, that risk must be shown to exist at the time of the jurisdictional finding. (In re Yolanda L. (2017) 7 Cal.App.5th 987, 993; In re J.K. (2009) 174 Cal.App.4th 1426, 1435.) And, although evidence of past conduct may be probative of current conditions, "[t]o establish a defined risk of harm at the time of the hearing, there 'must be some reason beyond mere speculation to believe the alleged conduct will recur.' " (In re Yolanda L., at p. 993; In re James R. (2009) 176 Cal.App.4th 129, 135; see also In re M.W. (2015) 238 Cal.App.4th 1444, 1453 [evidence of violence in family home may support the exercise of jurisdiction only if " 'the violence is ongoing or likely to continue . . . .' "].)
Here, the record contains evidence of a single incident of physical abuse of Francisco's sibling that occurred a year before Francisco was born, and nearly three years before the jurisdictional hearing. Although past abuse may predict future behavior, there is no evidence that mother physically abused any of her children in the three years preceding the hearing. Moreover, there is no evidence that two-year-old Francisco, who had lived with mother since his birth, had ever been physically abused. To the contrary, DCFS observed that there were no marks or bruises on Francisco's body, that Francisco's pediatrician did not suspect physical abuse, and that Francisco appeared comfortable with and bonded to mother. In short, there is no evidence connecting the single incident of physical abuse of Karla in 2016 with a risk of physical abuse to Francisco in 2019. We accordingly strike counts a-1, b-2, and j-2 as not supported by substantial evidence.
C. Sexual Abuse/Failure to Protect
The juvenile court also sustained allegations pursuant to sections 300, subdivisions (b), (d), and (j), that mother failed to protect Francisco from risk of sexual abuse. Those sections provide that a child is within the jurisdiction of the juvenile court 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" (§ 300, subd. (b)(1)); "[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 his or her parent or guardian or a member of his or her 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)); or "[t]he 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" (§ 300, subd. (j)).
Case law is clear that sexual abuse of one child may constitute substantial evidence of a risk to another child in the household, even to a sibling of a different sex or age. (E.g., In re I.J., supra, 56 Cal.4th 766; Los Angeles County Dept. of Children & Family Services v. Superior Court (2013) 215 Cal.App.4th 962, 968.) As we have said, however, although evidence of past abuse may be probative of current conditions, "[t]o establish a defined risk of harm at the time of the hearing, there 'must be some reason beyond mere speculation to believe the alleged conduct will recur.' [Citation.]" (In re Yolanda L., supra, 7 Cal.App.5th at p. 993; In re James R., supra, 176 Cal.App.4th at p. 135.)
In the present case, there was no evidence that Francisco, who was more than two years old at the time of the jurisdictional hearing and had lived with mother since birth, had ever suffered sexual abuse. DCFS reported that Francisco was thriving and appeared comfortable in mother's care. Moreover, by the time of the jurisdictional hearing, mother and father were living separately—father in Mexico, and mother and Francisco in California. There is no evidence either that father planned to move back to California, or that he had any current contact with Francisco. As such, at the time of the jurisdictional hearing, father did not pose a current risk to Francisco from which mother failed to protect him. (See In re M.W., supra, 238 Cal.App.4th at pp. 1453-1454 [past violence between parents did not support jurisdictional finding where there was no evidence that mother and father continued to live together or that father lived with the children]; In re Daisy H. (2011) 192 Cal.App.4th 713, 717 [past violence between parents did not support jurisdictional finding where there was "no evidence of any ongoing violence between the parents who are now separated"].)
Like the juvenile court, we are troubled that mother has continued to deny that Karla was sexually abused by father and remained in a relationship with him even after learning that he made sexual advances to her teenage daughter. We therefore share the juvenile court's concern that although mother completed her case plan in Karla's case, she has not gained the insight and awareness necessary to protect her children from future sexual abuse. However, a lack of insight, alone, does not create a substantial risk of future sexual abuse in the absence of a sexual abuser. Because there is no evidence of continued contact between father and Francisco, we cannot conclude that Francisco is currently at substantial risk of sexual abuse from which mother fails to protect him.
III.
Because We Have Reversed the Jurisdictional
Findings as to Mother, the Dispositional Order
Must Also Be Reversed
In light of our determination that the jurisdictional finding against mother must be reversed, the March 12, 2019 dispositional order as to mother must be reversed as well. (See In re R.M. (2009) 175 Cal.App.4th 986, 991; see In re Jesus M. (2015) 235 Cal.App.4th 104, 114.)
We note that our decision that the allegations against mother are not supported by substantial evidence does not change Francisco's status as a dependent child of the juvenile court. As we have noted, jurisdictional findings were made against father, and he has not appealed. Francisco thus remains a dependent of the juvenile court, which retains the power to make "any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of" Francisco, including "any reasonable orders to the parents or guardians of the child who is the subject of any proceedings under this chapter as the court deems necessary and proper to carry out this section." (§ 362, subds. (a), (d).) We therefore remand this matter to the juvenile court to make any reasonable orders—including orders directed at mother with regard to sexual abuse awareness—that the court deems necessary to protect Francisco. In issuing new dispositional orders, we direct the juvenile court to review the programs mother completed in the prior dependency proceeding, and to require mother to complete the same programs only if the court concludes that repeating those programs will reduce future risk of harm to Francisco.
DISPOSITION
We reverse the jurisdictional findings as to counts a-1, b-2, j-2 (physical abuse), and as to b-1, d-1 and j-1 (sexual abuse) as to mother only. We reverse the dispositional order as to mother only, and we remand for the juvenile court to make further orders not inconsistent with this opinion.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EDMON, P. J. We concur:
LAVIN, J.
EGERTON, J.