Opinion
B195819
4-24-2007
In re ANDY C. et al., Minors. ESMERALDA B., Petitioner, v. THE SUPERIOR COURT FOR THE COUNTY OF LOS ANGELES, Respondent; LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Real Party in Interest.
Darold M. Shirwo, under appointment by the Court of Appeal, for Petitioner. No appearance for Respondent. Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Kim Nemoy, for Real Party in Interest.
NOT TO BE PUBLISHED
In this dependency case (Welf. & Inst. Code, § 300 et seq.), Esmeralda B., the mother of dependent minor children (Mother), has filed a petition for extraordinary writ, seeking relief from an order that set a section 366.26 hearing to determine a permanent plan for the children. (Cal. Rules of Court, rules 5.600, 8.450, 8.452.) The hearing was set after it was determined by the trial court that the courts home of parent order (Mother), which was made 16 months after the children were declared dependent children and custody was taken from Mother, was no longer effective to protect or rehabilitate the children.
References herein to statutes are to the Welfare and Institutions Code.
References herein to rules are to the California Rules of Court.
Mother contends (1) she did not receive a disposition hearing before the court set the section 366.26 hearing, (2) she was not given proper notice that reunification services might not be offered, or would be denied, (3) she was wrongfully denied reunification services, and (4) the trial court should not have sustained the allegations in the petition that form the basis of the courts decision to set the section 366.26 hearing.
Mothers contention that the record does not contain sufficient evidence to support the trial courts findings of fact is remarkable given that her attorney has failed to set out, in Mothers petition, the evidence presented to the trial court. That is a violation of rule 8.452 Whereas the answer filed by the real party in interest, the Los Angeles County Department of Children and Family Services (the Department), sets out the facts of the case over some 19 pages, Mothers brief is a gross violation of the rule that challenges to the sufficiency of evidence must be accompanied by a complete presentation of the relevant facts. The violation would support a decision by this court to not even consider her sufficiency of the evidence issue.
Our review of the lengthy record convinces us that none of Mothers contentions has merit. Therefore, we will deny her petition.
BACKGROUND OF THE CASE
1. Initiation of the Case
There are four minor children in this case. Abigail C. (July 1992), Ivonne C. (July 1993), Brian C. (October 2001), and Andy C. (December 2004). Only the three older children are at issue in this writ matter. The youngest child, Andy, is not a subject of the order setting the section 366.26 hearing because he came into the case at a late date and there had not yet been an initial disposition order as to him when the section 366.26 hearing was set.
The case was filed on June 10, 2004, several months before Andy was born, and three days after the three older children were detained by the Department and placed in foster care. Abigail was eleven years old at that time, Ivonne was ten, and Brian was two.
The Departments detention report states removal of the minors from the parents home was necessitated by Abigail and Ivonnes disclosure that they had been physically and sexually abused by Father. At the time the children were detained, Mother indicated to the social worker that she has to work to pay the rent and therefore was not able to care for or protect her children. Mother indicated she was aware of Fathers physical abuse of the two girls but she stated she did not believe he sexually abused them. In a later interview on the same day (June 7, 2004), Mother stated she did not remember if the girls told her of sexual abuse. The girls indicated they are afraid of Father, and afraid that he would come for them when they are at school. They indicated they did not want to see or speak with him. They indicated Father told them that if they told Mother about him, Mother could become ill and die. Father denied the sexual abuse allegations.
Abigail reported to her school counselor that Father often hits her with a belt on her arms and buttocks and pulls her ears, that he touches her in a sexual manner when Mother is not at home, and that Ivonne has told her that Father also touches her. Abigail stated she reported the sexual advances to Mother, but Mother denied that. Ivonne stated she did not report Fathers abuse of her to Mother. The social worker observed multiple marks and bruises on Abigails forearms that were purple and blue and appeared to be belt marks. Although Abigail initially denied that Father had intercourse with her, in later interviews she stated he penetrated her digitally and with his penis. Her medical exam produced an interpretation of anal/genital findings that there had been multiple sexual contacts, including penile vaginal and anal contacts that hurt and caused bleeding, coupled with ejaculations onto her. Abigail stated the sexual touching has been going on since she was nine and one-half years old. Ivonne stated Fathers sexual abuse of her included touching her breasts and vaginal area, and he would force her to sleep with him.
The social worker found it to be "clear" that Father physically abused the minor girls with inappropriate discipline with a belt and shoe, and sexually abused them. The jurisdiction/disposition report states Father admitted to playfully touching their vaginal area and touching Ivonnes breasts. Mother admitted to seeing Father touch the girls vaginal and breast areas but stated it was done playfully and there was nothing wrong with it, and she admitted Father goes into the bathroom when the girls are showering.
At the July 29, 2004 pretrial resolution conference, the trial court amended the petition by interlineation, the parents submitted on the petition, the trial court sustained allegations in the petition under section 300, subdivisions (a), (b), (d) (i) and (j), and the court declared the three children to be dependents of the court. As amended, the sustained petition alleges that on a number of occasions, Father used inappropriate physical discipline on the minor girls, including using a belt and shoe, and in June 2004 this resulted in bruising; further, for a year and a half preceding June 2004, Father sexually abused the minor girls, including but not limited to removing their clothes and fondling their breast and vaginal areas; further, Mother did not take action to protect the children from this physical and sexual abuse; and the parents conduct places the three minor children at risk of physical and emotional harm.
The court ordered individual counseling for the minors, with the girls counseling to address the sexual abuse, and conjoint counseling for all three children with the parents upon the childrens therapists recommendation. Father was ordered to participate in CSAP (Child Sexual Abuse Program) for offending parents, conjoint counseling with the minors upon the recommendation of the childrens therapist, and parenting classes. Mother was also ordered to conjoint counseling under the same terms, individual counseling to address case issues, parenting classes, and CSAP for non-offending parents.
Mother was granted monitored visitation with a Department approved monitor and the Department was given discretion to liberalize her visitation. Father was granted monitored visitation with Brian with a department approved monitor; his visitation with the minor girls was to be monitored in a therapeutic setting or as recommended by the childrens therapist.
2. The Section 366.21, Subdivision (e) Six-Month Status Review Hearing
According to the Departments reports for the six-month status review hearing that was scheduled for January 27, 2005 and continued to February 25, Father was in jail waiting trial on a charge of lewd/lascivious acts with a child under 14 years of age. Mother had recently given birth to Andy. He was not brought into the dependency case at that time.
Therapy for Abigail and Ivonne began in August 2004 at Eastside Psychological & Family Counseling Center, Inc., and was focusing on assisting them in processing their feelings of anger, and developing self-protection skills. Both repeatedly stated they did not wish to see Father, and they were ambivalent about reuniting with Mother. They felt Mother loves Father more than them and Mother believed Father more than them, and they did not trust Mother. Brian began therapy in February 2005.
Mother had successfully completed 20 sessions of parenting classes. She enrolled in individual therapy on February 18, 2005. She was also enrolled in group therapy for non-offenders and had attended eleven of eleven group sessions at the CSAP. Mainly she just listened at the group sessions, but would respond when addressed by a group leader. She was uncomfortable when specific sexual abuse issues were discussed, and was resistant to feedback. She stated she does not believe Father sexually abused the girls, and that while it was true that Father was in jail, it was not because of sexual abuse charges. She shared with the group that she and Father would play a "game" with the minor girls by asking them to whom their vagina belongs. She did not think this constitutes sexual abuse. She appeared uncomfortable when other members of the group spoke about sexual abuse and how it affected their family. Father acknowledged that he and Mother played the "game" with the minor girls and he said it involves his touching their private parts. He also denied it constitutes sexual abuse. He only attended one session of sexual abuse counseling for offenders because he was jailed shortly after starting the program.
The court expanded Mothers visitation to three two-hour visits a week, with the Department having discretion to liberalize.
3. The Section 366.21, Subdivision (f) Twelve-Month Review Hearing
The 12-month judicial review/permanency hearing was held on July 29, 2005. The Departments report states Mother continued to attend non-offender group counseling and individual counseling, and was visiting the three dependent children three times a week, with the visits lasting an hour and a half. Mother was punctual for the visits and when she was not able to make a visit she timely informed the foster parents and rescheduled. Ivonne and Abigail were expected to complete their sexual abuse therapy in July (Brian completed his in June), and their therapist recommended conjoint counseling with Mother. Their therapist and Mothers therapist at her non-offender program recommended that the children have weekend overnight visits with Mother. Mother and her relatives and their domestic partners were renting a four bedroom house. Mother rented one of the bedrooms for herself and her youngest child, Andy. The social worker explained to Mother that all of the people living there, and all frequent visitors, needed to Live Scan, and CLETS would be requested. Father remained incarcerated, awaiting trial, and there was an INS hold on him with a possibility of deportation.
Ivonne and Abigail were not doing well in school. On their most recent report cards, Abigail had three Fs, two Cs and a B, and Ivonne had three Fs, and an A, B and C. However, their therapist at Eastside Psychological & Family Counseling Center, Inc. reported that all three children had achieved their therapy goals. Their attendance had been consistent and their participation was cooperative. Abigail had progressed to the point where she was comfortable visiting Mother, and she indicated she might start having weekend overnight visits with Mother. Abigails fear that if she resumed living with Mother, Mother might allow Father to live there had decreased. Ivonne was having a more difficult time, but her sense of insecurity about Father repeating his molestation had decreased as her visits with mother increased, and she felt that Mother had come to believe her because Mother did not question her anymore. Brian was less afraid and more confident about being separated from Mother and Father, and he stated he liked visiting Mother. The childrens therapist opined the minors should not have contact with Father because the girls were not emotionally ready for it.
Mothers group therapist at the non-offender program reported Mother was more engaged in group discussions, was no longer presenting as defensive and resistant to feedback, and was no longer in denial regarding the minor girls allegations of sexual abuse. Mother acknowledged Father did sexually abuse them, and she was showing empathy for them and other victims. Mother stated she does not wish to reunify with Father, was no longer accepting his collect calls, and was angry with him. She stated it was difficult raising an infant by herself and she understood it would be difficult to raise all four of her children by herself. She was having financial difficulties.
Mothers individual therapist, whom she saw from February to April 2005, wrote to the social worker to say Mother was changing counseling agencies because she needed to be at an agency that did not charge her for the therapy. In April Mother moved her individual therapy to the agency providing her with non-offender counseling, and was regularly attending individual therapy there. She reported to her therapist that Father taught her a game, when the girls were young, and she did not realize it was sexually inappropriate. The game consisted of both parents touching the girls private parts and asking the girls to whom the parts belonged. Father taught her that the appropriate response from the girls was that their private parts belonged to the parents. She told the therapist she had not been aware that Father was sexually abusing the girls in other ways, but she had come to believe the other abuse also occurred. She expressed reservations about reunifying with Father. She was beginning to understand that the abuse may be affecting the childrens developmental levels, and that she will need to expend a great deal of her energy and attention to help her daughters recover. She expressed a sincere desire to be reunited with the minors. It was recommended that she continue in group and individual counseling at the sexual abuse program. The therapists indicated support for conjoint counseling between Mother and the minors as well as overnight weekend visits.
At the July 29 12-month review hearing, the Departments attorney reported that some of the people in the home Mother shares had not yet been Live Scanned. The court gave the Department discretion to liberalize visits, including overnight visits.
4. The Section 366.22 18-Month Permanency Review Hearing
An 18-month/permanency review hearing was set for December 7, 2005. The Departments report states that since early August, Mother was having weekend overnight visits with the minors from Friday evening to Sunday evening and was visiting the children once a week at their foster home. Mother and the children appeared to be happy to have the extra time together. All of the people living with Mother had moved out except Mothers sister-in-law (Fathers sister), and the sister-in-laws son who was 16. Thus, Ivonne and Abigail were able to have a bedroom and Mother shared her room with her two sons. She continued in her non-offender group counseling and her individual counseling. Ivonne and Abigail were also in individual and group counseling at the sexual abuse program facility, and the goal of their therapist was to eventually begin conjoint counseling with Mother. The girls were still struggling with their school classes. The children indicated a desire to resume living with Mother. The Department recommended that the court make a home of parent order for the children to live with Mother under the supervision of the Department.
At the December 7 hearing, the court terminated Fathers reunification services, made a home of parent order (Mother), and ordered the Department to provide, and Mother to participate in, the services that the Department deemed necessary and appropriate.
5. The Section 364 Six-Month Home of Parent Review
A section 364 six-month judicial review hearing for the home of parent order was set for June 7, 2006. The Departments report shows the girls had transferred schools when they returned to Mothers home and their grades for the first grading period were considerably better than those from their previous school. The downside of their return to Mothers care was that they had recanted their assertion of being sexually abused by Father, and Mother was expressing doubts about the abuse. Mother and the girls did not inform the social worker about this development. Rather, the Department was informed of the matter by a police detective, apparently in conjunction with Fathers criminal matter. Conjoint therapy between Mother and the girls had not commenced because of Mothers slowed progress in her own therapy and the familys regression about the sexual abuse. The therapists recommended that Mother and the girls continue their individual and group therapy. The girls told the social worker that they wanted to see Father and "nothing happened." At a May 22 child safety meeting, the Department and the therapists discovered that Mother took the girls to Fathers attorneys office to sign an affidavit recanting the allegations of sexual abuse.
A May 24, 2006 written report from the sexual abuse program states Abigail expressed feeling guilty that Father was incarcerated and that she disclosed the abuse, and this may be the reason she was recanting. She made statements wishing Father could be freed from prison, and expressing anxiety over his well being there. She acknowledged that her minor cousin had been sexually abused by Father but stated it was the cousins fault. The report states she had "regressed significantly in treatment." Likewise, although Ivonne was able to admit in February 2006 that Father sexually abused her, and expressed fear that her own future children would be abused because sexual abuse is a "tradition," in April she stated Father had not abused her but rather had just touched her private parts. She stated she does not know if Mother believes the abuse allegations. Like her daughters, after the children were returned to Mothers home, Mother began regressing in her treatment. Whereas previously she had said that if she could change the past she would believe the girls disclosure of sexual abuse, she had regressed and was expressing disbelief that Father sexually abused the girls, said there was no vaginal penetration, and asserted that Father was in jail because a female teenage acquaintance made up sexual abuse allegations about him. She stated she needed to investigate the matter further and would ask Father.
The therapists at the sexual abuse program opined that probably someone was exerting influence over the girls to make them recant since their regression began shortly after they were returned to Mothers home, and either Mother was part of the influence or was failing to protect them from it. The therapists believed Father may be calling Mothers home, and they noted that the girls and Mothers stories are consistent in that they assert Fathers behavior was innocent and the girls were responsible for any abuse. The therapists opined that since Mother could not protect the girls from coercion, how would she be able to protect them from Father when he is released from jail. They viewed the situation as an issue of child safety, and stated Mother did not appear motivated to proceed in therapy, and the girls were at high risk to be emotionally damaged if they continued to live with Mother since victims of sexual abuse who deny the significance of the abuse are often damaged for life. Based on the situation, they believed conjoint therapy between Mother and the girls was not appropriate at that time.
In her report to the court, the social worker recommended that the children stay placed with mother under the home of parent order, but expressed concerns about Mothers ability to protect the children, and the report states that a child safety conference would be held within the next two weeks to access Mothers ability to protect them. The report was signed on May 30, 2006.
The child safety conference was held on June 5. Present was Dr. Delgado from the Eastside Psychological and Family Counseling Center where the three dependent children had received individual counseling for a year. Mother and the children were also present and Dr. Delgado spoke with them. Based on the therapists report and opinions that Mothers willingness or ability to protect the minors had decreased and the family had regressed significantly in their sexual abuse treatment, the Department re-detained the girls and Brian on June 6, and detained the youngest child, Andy on that same day. The Department recommended that the court take custody from Mother and place the four minors in the care of the Department.
Mother was present at the scheduled section 364 hearing on Wednesday June 7. The Department informed the court that it had detained the four minors the previous night, it would be filing a section 387 supplemental dependency petition that day for the three older children and a section 300 petition for the minor Andy, and therefore the case should proceed to a detention hearing on the supplemental petition rather than on the section 364 six-month judicial review hearing. The court trailed the 364 hearing to the following Monday, June 12, and set the section 387 hearing for Friday, June 9.
6. The Departments Section 387 Supplemental Petition
The Department filed its section 387 supplemental petition for Abigail, Ivonne and Brian on June 9, 2006. The petition alleges Mother established a detrimental home for the children by repeatedly making statements about her disbelief that the sexual abuse of the minor girls occurred, and by taking the girls to meet with Fathers criminal defense attorney and allowing them to sign a document in which they recanted their prior allegations of Fathers sexual abuse of them. The petition further alleges Mother repeatedly sexually abused the minor girls in Fathers presence by fondling their breasts, vaginas, and buttocks, Father failed to protect them from such abuse by Mother, and Father and Mother engaged in such abuse of the girls together.
A section 300 petition for Andy (that is, an original/first petition for him), appears in the record however it does not have a file stamp. It alleges that the following acts endanger Andys health and well being. Father used inappropriate physical discipline on Abigail and Ivonne (with a belt and shoe), which resulted in bruising to them, and Mother failed to protect them; Father sexually abused the girls and Mother failed to protect them from such abuse; Mother sexually abused the girls and Father failed to protect them from the abuse; Mother and Father sexually abused the girls together; Mother took the girls to Fathers defense attorneys office to have them sign a document recanting their allegations of Fathers sexual abuse; and Mother made repeated statements of disbelief that Father sexually abused the minor girls. Ultimately, the four children were joined in an amended section 387 supplemental petition filed on December 12, 2006.
Although the Department informed the court it would be filing a section 387 "supplemental" petition, the petition filed on June 9 states it is a section 342 "subsequent petition." At the adjudication hearing on the petition, held in December 2006, the Departments attorney stated the petition was meant to be filed under section 387, the other parties agreed to its being considered as a section 387 petition, and the trial courts December 15 minute order deemed it to be a section 387 petition "pursuant to stipulation of counsel."
Section 387 states in relevant part: "(a) An order changing or modifying a previous order by removing a child from the physical custody of a parent, guardian, relative, or friend and directing placement in a foster home, or commitment to a private or county institution, shall be made only after noticed hearing upon a supplemental petition.
"(b) The supplemental petition shall be filed by the social worker in the original matter and shall contain a concise statement of facts sufficient to support the conclusion that the previous disposition has not been effective in the rehabilitation or protection of the child . . . ."
Although the trial court initially amended the supplemental petition by deleting the allegation that Mother took the minor girls to meet with Fathers criminal defense attorney and permitted them to sign a document indicating they were recanting their prior allegations regarding sexual abuse by Father, on the final day of the contested adjudication hearing on the supplemental petition, the court restored that language to the petition.
Mother and Father both appeared at the June 9 detention hearing on the subsequent petition. The court found a prima facie case for detaining the minors, placed temporary custody with the Department, and ordered that the three older children remain dependents of the court. The hearing was concluded on June 12 and the court set a pretrial resolution conference for July 24.
7. The July 24, 2006 Pretrial Resolution Conference
The Departments report for the July 24, 2006 pretrial resolution conference hearing included a report from the therapists at the non-offender sexual abuse program, covering the period May 30 to July 11. It states Mother attended two of the four scheduled group therapy sessions, during which she expressed a great amount of anger and frustration at the dependency system, dismissed others in the group when they made suggestions to her, and was not able to see the role she played in the removal of her four children from her care and the child safety issue. In her group therapy, Abigail stated the sexual abuse was a lie, and she became upset when therapists and her peers provided feedback. She argued that such abuse could not happen to two sisters at the same time. Ivonne was relaxed in her group and stated that Father had fondled her. The therapists recommended that Mother find a place to live where she would not be influenced by Father and his relatives, and continue her therapy. It was recommended that the girls find a place close to their new foster home for continued therapy.
At the July 24 hearing, the case was calendared for August 24 for a contested adjudication hearing requested by Mother, which hearing was later rescheduled for September 14.
8. The Adjudication Hearing on the Section 387 Supplemental Petition
a. Written Submissions to the Court
The Departments report for the September 14 adjudication hearing states that during a home visit made by the social worker, Brians foster mother reported that Brian told her that during the time the minors were living with Mother and the paternal aunt under the home of parent order, Mother and the aunt would tie him up on a bed. When the social worker asked Brian to explain what happened, he related that Mother and the paternal aunt would tie him up "on the bed" and one time they did that and then went to church and left him home by himself. He also related that Mother used to hit him a lot on his buttocks. The minor girls were to begin therapy in a new CSAP on September 13, and Mothers therapist in her regular program reported that the program would give her one last chance to help her reunify with the minors. The report states Mothers cooperation had been minimal since June 2006.
The September 14 contested adjudication hearing was continued to December 12. The Departments report for the December 12 hearing states the childrens therapist at Five Star Counseling & Education Services reported that from the very beginning of their therapy there, both Abigail and Ivonne denied that sexual abuse occurred. Abigail told the therapist that when she and Ivonne reported such abuse they were seeking revenge against Father for hitting them, and a friend encouraged them to do this. Abigail expressed feeling guilt, remorse and fear for having made the accusation. Brian was displaying behavior problems and the therapist attributed it to the minors being removed from Mothers care. Mother continued to attend the program for non-abusers, was participating in group discussions, continued to be in denial, and continued to blame and resent the system.
On December 12, the Department submitted a first amended section 342 subsequent petition that added an allegation that Mother was previously found by the court to have failed to protect Abigail and Ivonne from Fathers physical and sexual abuse even though she was aware of such abuse; that Mother continues to fail to adequately protect the children from physical and emotional harm and to adequately supervise them as to their therapy and recovery; that Mother fails to cooperate in the minors therapy and counseling in that she denies prior sexual abuse of which she had knowledge; that she encouraged the children to recant their previous statements of sexual abuse by taking them to Fathers criminal defense attorney and requiring them to sign a document recanting the sexual abuse; and that such conduct places the children at risk of further physical and emotional harm. This first amended petition includes all four children. Mother waived arraignment on the amended petition and denied its allegations.
b. Adjudication Hearing Testimony
Testimony for the adjudication hearing commenced on December 13 and continued on the following day. Mother testified that she and Father played a sexual game which consisted of asking the girls who their breasts belonged to and who their vagina belonged to and touching those parts of the girls bodies, and the girls would respond that their breasts or vagina belonged to Father if he was the one asking the questions and touching them, or respond that they belonged to Mother if she was the one asking and touching. Mother stated she would play the game when she was upset with Father about something and wanted to make Father feel bad and show that the girls preferred her, and Father would do the same when he was upset with her. The touching was done over the girls clothing. She acknowledged that the girls say that Father played this game at times when she was not present and he touched their bare skin, and she could not say that at such times he only touched the girls over their clothing because she did not see it. She acknowledged she did not believe the girls when they stated that Father touched them with their clothes off. Asked what the girls told Fathers criminal defense attorney, Mother stated they told the attorney they had lied about Father touching them with their clothes off "and about other things and that they didnt want to say all of that because they were afraid because Adriana had threatened them." The reference to Adriana was apparently to the social worker.
Given this testimony from Mother, her assertion now in her writ petition that "[t]he issue of [her] taking the children to the fathers defense attorney is an unsupported red herring" is clearly without factual basis. We will hold her to her trial court testimony.
Mother stated she did not know when she was playing the touching game, that it was done for sexual pleasure and was sexual abuse. Asked why the game did not just involve touching the girls arms or the top of their head, she stated she did not know. She stated that when she was the one asking the questions and touching the girls, Father was watching and she would feel good because the girls would prefer her and not him when they told her their breasts and vagina belonged to her. She stated that in Mexico, "the majority of the people do this." She said she and Father only played the game a few times with each girl. She could not recall how old the girls were when she and Father played this game. She has not played the game since the children were detained in 2004. Before she had the sexual abuse therapy she did not think that the game was sexual abuse. She thought it was permitted because it was between members of the family. However, she acknowledged that before she had the therapy she did not think it would be permitted for the girls uncles to touch their vaginas even though uncles are family, only their father and herself. And before she had the therapy, she did not think it would not be permitted for the girls to touch her vagina and Fathers penis. She believed that Abigail was possibly penetrated by Father with his fingers but not his penis. She stated she would let the girls have visits with Father if they wanted to; she "would not deny them anything." The court indicated it found mothers testimony that she now believes there was sexual abuse whereas before she did not believe it happened to be incredible.
The social worker testified that when the children were returned to Mother under the home of parent order, the Department did not see a risk because Mother was moving forward and there had already been overnight weekend visits. Prior to re-detaining the children, the Department had the safety conference meeting with Dr. Delgado, Mother and the minors, the social worker and her supervisor. The Department was concerned that Mother had not mentioned that the girls were recanting. Moreover, the conjoint counseling had not started. She acknowledged that the Departments report for the six-month review of the home of parent order, signed by her on May 30, 2006, had a recommendation that the children remain placed with Mother. The court, however, observed that reassessments of risk to a child are "done all the time."
c. The Trial Courts Findings and Orders
On December 15, the parties presented their arguments and the court rendered its adjudication decision, making the following findings. Father sexually abused the girls. He engaged Abigail in multiple sexual activities, including penetration of her vagina and anus with his penis or fingers or both, and a medical exam of her corroborated that he penetrated her anus with his penis. He fondled both girls breasts and vagina while the girls were unclothed. Mother knew of these actions by Father. He and Mother, in the presence of each other, fondled the girls breasts and vaginas while the girls were clothed and this game was played by the parents to make each other jealous and for personal sexual gratification. Mother persuaded the girls to retract their statements about Fathers sexual abuse, she knew the retractions were false, and she took the girls to Fathers attorney to have the false retractions memorialized. The previous disposition of the court was not effective to rehabilitate or protect the minors.
Finding that the minors are persons coming within the provisions of section 300, the court sustained the allegations in the amended section 387 petition except for the subdivision (i) counts (child subjected to acts of cruelty), which it had previously stricken at the request of the Department. The court ordered that the three older children would remain dependent children of the court and permanent placement services for them and Mother would be provided.
The court set a section 366.26 hearing for the three older children for April 13, 2007, and a disposition hearing for Andy for January 19, 2007. On December 21, 2006, Mother filed notice of her intent to file a writ petition to contest the setting of the section 366.26 hearing.
ISSUES RAISED BY MOTHER
Mother contends she did not receive a disposition hearing before the court set the section 366.26 hearing. However, the record shows otherwise. Moreover, her points and authorities lack actual analysis on that matter.
Mother contends she was not given proper notice that reunification services would not be offered, or would be denied, if the section 387 supplemental petition was not adjudicated in her favor. However, to support her position, she merely relies on quotations and citations to case law to the effect that the principal of due process includes the right to be heard. Again, her analysis is deficient.
Mother also contends she was wrongfully denied reunification services. Her analysis of that position studiously avoids inclusion of statutes, case law and rules of court that address section 387 supplemental petitions. Mother was not entitled to reunification services.
Lastly, Mother contends the trial court should not have sustained "the WIC 342 petition." However, the trial court did not sustain allegations in a section 342 petition. As noted above, the Departments attorney informed the court, at the beginning of the contested adjudication hearing, that the petition was meant to be a section 387 petition, and the court and counsel agreed to consider it as such.
Section 342 provides that after a child has been found to be a person coming within the provisions of section 300, the petitioner may file a subsequent petition with new facts or circumstances that are also sufficient to state that the minor is a person is a person coming within the provisions of section 300.
Here, the section 387 supplemental petition does contain an allegation that would be proper in a section 342 subsequent petition, that is, an allegation that the Department would not have been able to include in its original petition that it filed in June 2004 because it learned of the alleged fact after that original petition was filed. The allegation is that because Mother as well as Father played the touching game with the girls and she touched them inappropriately, then Mother sexually abused the girls and Father failed to protect them.
The fact that the Department learned of Mothers inappropriate behavior prior to recommending in November 2005 that the children be placed with Mother under a home of parent order does not detract from the fact that there is sufficient evidence to support both (1) the allegation of Mothers own sexual abuse of the minor girls, and (2) the trial courts adjudication findings and conclusion on the section 387 supplemental petition.
DISCUSSION
1. The Adjudication Order Sustaining the Section 387 Allegation that the Home of Parent Order Was Not Effective to Protect or Rehabilitate the Children Is Supported by Substantial Evidence
Section 387 petitions are used "when there are facts which indicate that a previous disposition is not appropriate." (In re Jessica C. (2001) 93 Cal.App.4th 1027, 1035; rule 5.560 (c) [supplemental petition used when the petitioner concludes the previous disposition is not effective to protect a dependent child].) Section 387 provides that the supplemental petition "shall contain a concise statement of facts sufficient to support the conclusion that the previous disposition has not been effective in the rehabilitation or protection of the child."
Here, the supplemental petition alleged that the home environment established by Mother after the children were returned to her care was detrimental and endangering to the childrens emotional and physical health and safety because Mother was making statements that she did not believe sexual abuse had occurred, and she took the girls to Fathers attorney to have them recant their allegations that Father sexually abused them, and this placed the children at risk of further physical and emotional harm. As discussed below, the evidence presented by the Department in its reports and at trial shows that whereas prior to the courts home of parent order, Mother was making substantial progress in supporting the girls in their attempts to achieve their therapy goals of ending the sexual abuse, healing the trauma of being abused, and establishing healthy relationships with their family and community, after the children were returned to her home, Mother essentially sabotaged the girls efforts.
In a contested section 387 adjudication hearing, the trial court must make findings whether the factual allegations in the supplemental petition are true and whether the allegation that the previous disposition has not been effective is true. (In re Javier G. (2006) 137 Cal.App.4th 453, 460-461; rule 5.565 (e).) The trial court uses the preponderance of the evidence standard. (In re Jessica C., supra, 93 Cal.App.4th at p. 1036; rules 5.565 (e) (1) & 5.684 (f).)
Here, the trial court made multiple factual findings, including that Mother persuaded the girls to retract their allegations that Father sexually abused them, she had them state their retractions to Fathers attorney, and she knew the retractions were false. Although the court did not specifically state at the hearing that it found to be true the allegation that the previous disposition was not effective, the court did state it sustained the allegations in the petition, and the petition contains the allegation that Mother had established a home environment that was dangerous and detrimental for the childrens physical and emotional health and safety. That is a sufficient finding. Further the minute order states a finding that the prior order was not effective to protect or rehabilitate the minors.
We review the trial courts findings and conclusion using a sufficiency of the evidence test. (In re Javier G., supra, 137 Cal.App.4th at pp. 461-462.) The record shows that whereas initially Mother had stated she did not believe Father sexually abused the girls, had asserted Father was not in jail on sexual abuse charges, and did not believe the game she and Father played with the girls bodies constitutes sexual abuse, by the time the court made the home of parent order that returned the children to her home, Mother had acknowledge that Father sexually abused Abigail and Ivonne and was showing empathy for them and other victims. She also expressed reservations about reunifying with Father and was angry with him; and she was beginning to understand that she would need to make a great effort to help the girls recover. Then however, after the children had been with her for six months under the home of parent order, Mother had regressed to the point where she was once again stating disbelief that Father had sexually abused the girls, stating there was no vaginal penetration, and denying the real reason why Father was in jail (this time asserting he was there because a female teenage acquaintance made up sexual abuse allegations about him). Moreover, Mother had even taken the girls to Fathers attorney to have them recant their allegations of sexual abuse.
As for the girls, the initial reports from their therapists revealed that they did not wish to see Father, and they were ambivalent about reuniting with Mother. They felt Mother loves Father more than them and Mother believed Father more than them, and they did not trust Mother. By the time they were returned to Mothers care, their therapist reported Abigail had progressed to the point where she was comfortable visiting Mother and her fear that if she resumed living with Mother, Mother might allow Father to live there had decreased. Ivonne was having a more difficult time but her sense of insecurity about Father repeating his molestation had decreased as her visits with mother increased, and she felt that Mother had come to believe her because Mother did not question her anymore. Both girls indicated a desire to resume living with Mother. Then, within six months of being returned to Mothers care, the girls recanted their allegations of sexual abuse. Abigail expressed feeling guilty that Father is incarcerated and that she disclosed the abuse, even though she acknowledged that her minor cousin had been sexually abused by Father. Ivonne had regressed from asserting that Father sexually abused her and expressing fear that her own future children would be abused because sexual abuse is a "tradition," to stating Father had not abused her but rather had just touched her private parts.
There was also evidence from Mothers and the girls therapists at the childrens sexual abuse program. The therapists opined that probably someone was exerting influence over the girls to make them recant since their regression began shortly after they were returned to Mothers home, and either Mother was part of the influence or was failing to protect them from it. The therapists believed Father may be calling Mothers home, and they noted that the girls and Mothers stories are consistent in that they assert Fathers behavior was innocent and the girls were responsible for any abuse. The therapists worried Mother might not be able to protect the girls from Father when he is released from jail. They viewed the situation as an issue of child safety, and stated Mother did not appear motivated to proceed in therapy, and the girls were at high risk to be emotionally damaged if they continued to live with Mother since victims of sexual abuse who deny the significance of the abuse are often damaged for life.
Clearly there is sufficient evidence to support the trial courts factual findings and the conclusion that the home of parent order was not effective to protect the children and further their rehabilitation respecting the issue of sexual abuse. Like the trial court, we are not troubled by the fact that initially the Department recommended that the children remain in Mothers care under the home of parent order. The Department reassessed the situation after Mother and the children met with Dr. Delgado, and determined that a supplemental petition should be filed.
2. The Record Supports the Order Setting the Section 366.26 Hearing
a. Hearings on Section 387 Supplemental Petitions Are Bifurcated
Rule 5.565 (e) provides that hearings on supplemental petitions are bifurcated; the court conducts both a jurisdiction hearing and a disposition hearing. (In re Javier G., supra, 137 Cal.App.4th at pp. 460-462.) However, the disposition hearing is required only if, as occurred here, the court finds that its previous disposition has not been effective to protect or rehabilitate the minor. (Id. at p. 462.)
Rule 5.686 and section 358 give the trial court discretion to continue the hearing at which the section 387 petition was adjudicated, and decide the issue of a proper disposition at a later date. Here, none of the parties sought a continuance. Thus, the hearing continued and the issue of disposition was addressed such that when the court took up the issue of the next hearing date, the Departments attorney stated that the next hearing would have to be held under section 366.26 because the time for reunification had been exhausted. The court set a section 366.26 hearing and ordered permanent placement services for Mother and the three older children.
b. Removal of the Children Is Supported by the Record
The procedures relating to disposition hearings per se, which are found in rules 5.690 et seq., are applicable to supplemental petitions. (Rule 5.565 (e) (2).) The child welfare agency has the burden of showing that reasonable efforts were made to prevent or eliminate the need for removing the child if the agency seeks removal. (In re Javier G., supra, 137 Cal.App.4th at p. 463; rule 5.695 (e).) Removal of the child from a parent or guardian with whom the child resided at the time the supplemental petition was filed requires that the trial court make a finding, by clear and convincing evidence, that one of the applicable standards in section 361, subdivision (c) applies. (Id. at p. 462; rule 5.695 (d).)
The reviewing court in In re Javier observed that the trial court in that case "did not state the applicable standard under section 361, subdivision (c) in its disposition orders or on the record." (In re Javier G., supra, 137 Cal.App.4th at p. 462.) The same thing occurred here. However, like the Javier court, we can find, based on the facts of the case, which of the standards in subdivision (c) of section 361 supports the trial courts decision to order permanent placement services and set a section 366.26 hearing.
Subdivision (c) (1) provides a child may be removed from the parents custody if "[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minors physical health can be protected without removing the minor from the minors parents or guardians physical custody." Subdivision (c) (4) provides a child may be removed from the parents custody if "[t]he minor or a sibling of the minor has been sexually abused, or is deemed to be at substantial risk of being sexually abused, by a parent, guardian, or member of his or her household, or other person known to his or her parent, and there are no reasonable means by which the minor can be protected from further sexual abuse or a substantial risk of sexual abuse without removing the minor from his or her parent or guardian, or the minor does not wish to return to his or her parent or guardian." Both subdivision (c) (1) and subdivision (c) (4) of section 361 apply here. Mother had slipped back to asserting that there was no sexual abuse and she took the girls to Fathers attorney to state such a "fact." That very much concerned the girls therapists. They were concerned that Mother would not protect the girls from Father when he is released from jail, they viewed the situation as an issue of child safety, and they stated the girls were at high risk to be emotionally damaged if they continued to live with Mother since victims of sexual abuse who deny the significance of the abuse are often damaged for life.
Regarding the fact that a section 366.26 hearing was set by the court, rule 5.565 (f) applies. It states: "If a dependent child was returned to the custody of a parent or guardian at the 12-month review or the 18-month review or at an interim review between 12 and 18 months and a section 387 petition is sustained and the child removed once again, the court must set a hearing under section 366.26 unless the court finds there is a substantial probability of return within the next 6 months, or, if more than 12 months had expired at the time of the prior return, within whatever time remains before the expiration of the maximum 18-month period." In this case, the home of parent order that placed the children back in Mothers care was made at the section 366.22 18-month/permanency review hearing on December 7, 2005. There was no reunification time left.
Thus, setting the section 366.26 hearing was not error. In Carolyn R. v. Superior Court (1995) 41 Cal.App.4th 159, 162, the court held that when a supplemental petition is sustained and a child removed a second time from the parents care, a section 366.26 hearing may be set if the parents had already received 12 months or more of reasonable child welfare services, which would include both reunification and maintenance services. The court rejected the mothers contention that because the child had once again been removed from her custody, under section 361.5 she was entitled to another 12 months of services. (Id. at p. 164 et seq.)
DISPOSITION
The petition for extraordinary writ is denied.
We concur:
KITCHING, J.
ALDRICH, J.