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In re C. L.

California Court of Appeals, Second District, Fourth Division
Jul 21, 2008
No. B201839 (Cal. Ct. App. Jul. 21, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from orders of the Superior Court of Los Angeles County No. CK67825, Stephen Marpet, Court Commissioner.

John L. Dodd & Associates and John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Tracey F. Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent.


SUZUKAWA, J.

In this dependency action, appellant Delonzo L., a noncustodial presumed father, has appealed from the jurisdictional and dispositional orders regarding his three children. The dependency court found the children to be dependent minors under Welfare and Institutions Code section 300, subdivisions (a), (b), and (d), and removed them from the custody of their mother, who has not appealed. As conceded by respondent Los Angeles County Department of Children and Family Services (the Department), the matter must be remanded for the limited purpose of providing proper notice under the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.) The orders are affirmed, subject to a possible motion to vacate the orders, as we shall explain.

All further undesignated statutory references are to the Welfare and Institutions Code.

BACKGROUND

Delonzo and Mother have three children, C. (born in 1997), P. (born in 1998), and J. (born in 2000) (collectively, the children).

I. Family Law Proceedings in Fresno

The record on appeal includes the Fresno family court file from the divorce proceedings that Mother filed against Delonzo in January 2002. Before Mother and Delonzo separated, they lived in Fresno with the children and Mother’s teenage daughter S. After filing for divorce, Mother sought a temporary restraining order against Delonzo for domestic violence. Her petition included the following allegations: (1) S. had accused Delonzo of indecent exposure and was temporarily removed from Mother’s custody; (2) Delonzo had also exposed himself to the three children and masturbated while in bed with them; and (3) Delonzo had physically assaulted S., leaving bruises on her face, arms, and legs.

The Department submitted the “Fresno Family Law File” as an exhibit at the contested adjudication hearing. At Delonzo’s request, we have augmented the record on appeal to include the family law file.

The record contains S.’s undated letter to the family law court, which was written before S. was struck and killed by a car in April 2003. In the letter, S. asked the family law court to “[p]lease help our family, especially my mom. My mom have been tryin[g] to help my family recover from the damage my ex-stepfather has done to my sisters, my mom & myself, but he alway[s] makes everything very hard for us just like he did when he lived with us. [¶] He has caused m[e] to fail in school and I don’t want to see my sister [C.] go through what he has put me through, or my other sisters. He has always done nasty things to me, like get a hard penis when I sat on his lap and expose his penis to me for years & beat me up. He always makes like he hasn’t done anything even when I’ve seen him hurt my mom.” This letter was read into the record below by the dependency court judge.

Between 2002 and February 2004, Mother and Delonzo lived separately but shared joint custody of the children, who, by agreement, lived primarily with Mother and had overnight visits with Delonzo. In February 2004, however, Mother petitioned to terminate Delonzo’s custody and visitation rights after learning the children had told their therapist that “their father . . . had all three of his daughters touch and kiss him on his penis” during their visits. The children repeated these allegations to the police and their babysitter.

Delonzo opposed Mother’s petition without admitting or denying the children’s allegations. Delonzo filed a declaration in which he described a possible touching incident with the children, but claimed to be uncertain whether it was “a dream or real, because when I became aware of it I was in a semi-conscious state. I had the feeling of someone touching my penis, and lat[]er heard the voice of my oldest daughter [C.] say, ‘look [P.].’ When I was able to fully rouse my self, no one was touching me and [t]he girls were all [l]ying down as if they had been asleep. Initially I didn’t mention it to them because I was not sure if it was a dream or how to approach [the] subject.”

According to his declaration, when Delonzo later discussed the incident with his children, he asked “if any of them had been touching me or looking at my private area. Immediately [P.], the middle girl (5) volunteered that [J.], the youngest (3) had done so many times and that she had even ‘kissed you down there.’ Not knowing what else to say, I asked the other two girls if they had done it too. Initially they denied it. I then told them that they would not get into trouble if they told the truth . . . . [P.] then admitted that she had and so did [C.] (7), however [C.] quickly add[ed] that it was [a long] time ago when she was six ([C.] just turned 7 on January 5, 2004), when she did it.”

In February 2004, the family law court granted Mother temporary sole legal and physical custody of the children, but denied visitation to Delonzo. In July 2004, the family law court counselor recommended that the temporary order be made permanent. After Delonzo objected to the recommendation, it was stricken but the February 2004 order remained in place.

In August 2006, the February 2004 order was still in effect when Delonzo sought a modification to obtain joint legal custody and visitation rights. After Mother objected, a mediation hearing was scheduled for January 2007. The record does not indicate that the mediation hearing was held.

II. Current Dependency Proceedings

Although the Department received numerous prior reports regarding the children, none was substantiated until December 2006, when a sheriff’s deputy found J., then age 6, alone in the bathtub at Mother’s home. Thereafter, social workers made numerous visits to Mother’s home and began providing voluntary family preservation services in February 2007. After Mother had a positive drug test, however, the Department terminated family preservation services and filed a section 300 petition in April 2007.

The amended petition alleged that the children had suffered and were at risk of suffering serious harm under section 300, subdivisions (a) (serious physical harm), (b) (parental neglect and failure to protect), and (d) (sexual abuse). It included allegations that the children had been: (1) physically abused by Delonzo with a “paddle, a back scratcher and a stick”; (2) sexually abused by Delonzo; (3) sexually abused by Mother’s landlord, Bob, in October 2006; and (4) placed at risk by Mother’s past and present abuse of PCP and prescription drugs.

At the combined adjudication and disposition hearing, the Department submitted the matter based on its reports dated April 20, June 8, July 20, and August 24, 2007, plus the Fresno family law records from the divorce proceedings. In the reports, the children alleged that they had been hit by Delonzo with a ping-pong paddle, back scratcher, metal belts, and metal picks. The children also described in detail the sexual acts that they had performed on Delonzo during visits. The Department rested without calling any witnesses.

In his defense, Delonzo called C. and J. as witnesses. C. testified that Delonzo had hit her with a back scratcher, belt, ping-pong paddle, and wooden spoon. Both C. and J. testified that they had touched Delonzo’s penis while visiting him. Delonzo rested without testifying in his own defense, but his attorney stated that he might wish to call Delonzo later to rebut Mother’s testimony.

Mother then testified in her own defense. She testified that in order to get away from Delonzo, she and the children had moved to Whittier in September 2006. They lived in a rental unit owned by Bob, who lived in Fresno and visited them in Whittier. While Mother was receiving family preservation services, however, she learned that the children had accused Bob of sexually molesting them. Mother reported this to the Department and, with the Department’s help, moved with the children from Bob’s rental unit.

Regarding the sexual molestation allegations against Delonzo, Mother testified that in 1999, her daughter S., who was then in 7th grade, had told a school counselor that Delonzo was exposing himself to her. S. was examined at a hospital and returned home after her report was deemed to be unfounded. Several years later, when the children told Mother that Delonzo was letting them touch his penis, she reported their allegations to the Department, but they were also deemed to be unfounded.

After Mother rested her defense case, Delonzo sought to testify in rebuttal to Mother’s testimony. The dependency court denied his request after explaining that only the Department, which has the burden of proof, may offer rebuttal evidence.

During closing argument, Delonzo’s counsel conceded the children’s physical abuse allegations were true, but argued that the incidents were too remote to pose a current risk of harm to the children. Delonzo’s counsel further argued that the children’s sexual molestation allegations were probably the result of Mother’s coaching and the social worker’s leading questions.

The dependency court found that Delonzo had physically and sexually abused the children, that Mother had used drugs, and that Bob had sexually abused the children. Based on these factual findings, the dependency court sustained the allegations under section 300, subdivisions (a) (serious physical harm), (b) (failure to protect), and (d) (sexual abuse).

During the disposition phase of the hearing, the dependency court ordered that the children be removed from Mother’s custody and placed in the Department’s care for suitable placement. Over the objections of the Department and the children’s attorney, the dependency court granted Delonzo family reunification services. The court ordered that Delonzo complete a parent education program, a 26-week domestic violence group counseling program, sexual abuse counseling for offenders, individual counseling to address the issues of the case, and conjoint therapy with the children when the children’s therapist deems it appropriate. The dependency court also granted Mother reunification services.

DISCUSSION

I. Notice Was Improper Under the ICWA

Delonzo contends that although Mother informed the Department of the children’s maternal grandmother’s possible Indian heritage, the Department “failed to provide state and federal agencies, as well as the potentially interested tribes, with familial information that was required and should have been readily available.” Delonzo argues that the record is silent as to whether the Department made the requisite inquiries under section 224.3, subdivision (c), and that the Department did not provide copies of the notices sent to state and federal government agencies, in violation of section 224.2, subdivision (c). Delonzo asserts that under In re Brooke C. (2005) 127 Cal.App.4th 377, 385, the matter must be reversed or, at minimum, remanded for the purpose of complying with the notice requirements of the ICWA.

Section 224.3, subdivision (c) provides: “If the court, social worker, or probation officer knows or has reason to know that an Indian child is involved, the social worker or probation officer is required to make further inquiry regarding the possible Indian status of the child, and to do so as soon as practicable, by interviewing the parents, Indian custodian, and extended family members to gather the information required in paragraph (5) of subdivision (a) of Section 224.2, contacting the Bureau of Indian Affairs and the State Department of Social Services for assistance in identifying the names and contact information of the tribes in which the child may be a member or eligible for membership in and contacting the tribes and any other person that reasonably can be expected to have information regarding the child’s membership status or eligibility.”

Section 224.2, subdivision (c) provides: “Proof of the notice, including copies of notices sent and all return receipts and responses received, shall be filed with the court in advance of the hearing except as permitted under subdivision (d).”

The Department concedes that proper notice under the ICWA was not given. In light of this concession and based on our own review of the record, we conclude that notice was not proper. We therefore remand for the limited purpose of requiring the Department to comply with the ICWA’s notice requirements. (In re Brooke C., supra, 127 Cal.App.4th at p. 385.)

We agree with In re Brooke C., supra, 127 Cal.App.4th 377, that lack of proper ICWA notice is not jurisdictional, which means (assuming that the child is not an Indian child and therefore the ICWA does not apply) the only order requiring reversal is the termination of parental rights. Another court, however, has disagreed. (See Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779.)

If, after proper notice is given, “neither the tribe nor the Bureau of Indian Affairs has provided a determinative response within 60 days after receiving that notice, then the court may determine that the [ICWA] does not apply to the proceedings, provided that the court must reverse its determination of the inapplicability of the act and must apply it prospectively if a tribe or the Bureau of Indian Affairs subsequently confirms that the child is an Indian child.” (Cal. Rules of Court, rule 5.482(d)(1).) Alternatively, if, after proper notice is given, it is determined that the children are Indian children and that the ICWA applies to these proceedings, either the children or the parents can petition the dependency court to invalidate its prior orders. (Cal. Rules of Court, rule 5.486(a).)

II. Mother’s Drug Use

Delonzo contends that the evidence of Mother’s drug use was insufficient to support a finding of dependency jurisdiction. The Department responds that Delonzo lacks standing to raise issues affecting another person’s rights on appeal. (Citing In re D.S. (2007) 156 Cal.App.4th 671, 674 [appellant father lacked standing to challenge the denial of mother’s petition for modification under § 388 because he failed to show that his personal rights were implicated].)

In reply, Delonzo cites In re Caitlin B. (2000) 78 Cal.App.4th 1190, 1193, for the proposition that “‘[w]here the interests of two parties interweave, either party has standing to litigate issues that have a[n] impact upon the related interests. This is a matter of first party standing.’ (In re Patricia E. (1985) 174 Cal.App.3d 1, 6 [father and daughter had interest in both her welfare and the parent-child relationship so father could assert daughter’s right to competent counsel].) In the absence of such intertwined interests, ‘a parent is precluded from raising issues on appeal which did not affect his or her own rights.’ (In re Jasmine J. (1996) 46 Cal.App.4th 1802, 1806.)”

Here, however, Delonzo and Mother are divorced and no longer have a relationship with each other. They have had minimal contact since February 2004, when Delonzo lost his custody and visitation rights. Accordingly, because Delonzo’s interests are not intertwined with Mother’s, he is precluded from challenging the adverse findings concerning her drug use and failure to protect the children from physical and sexual abuse. (See In re Caitlin B., supra, 78 Cal.App.4th at pp. 1193-1194 [because the appellant mother had no intertwined interest with the dependent child’s natural father, with whom she had no continuing relationship, she had no standing to challenge his lack of notice of the proceedings].)

III. A Continuing Risk of Harm Exists

Delonzo contends that the evidence fails to show that the children are faced with a continuing risk of serious harm. He argues that because he has not seen the children since February 2004, there is no evidence that he poses a current risk of harm to them.

In support of his position that he poses no current risk of harm, Delonzo points out that the Department, despite knowing of the children’s allegations against him by March 2007, refrained from filing a dependency petition until April 2007, when it learned of Mother’s failed drug test. This argument fails, however, because the record shows that the physical separation imposed by the February 2004 family law order had reduced the risk of harm posed by Delonzo. Although the Department did not immediately file a section 300 petition upon learning of the allegations against Delonzo, it reasonably concluded that, because of the February 2004 family law order, no current threat to the children existed. But when Mother tested positive for drugs, it became necessary to protect the children by filing a petition that included allegations against both parents.

We disagree with Delonzo’s assertion that the record fails to show he poses a current risk of harm. The evidence was undisputed that he had physically and sexually abused the children. In fact, Delonzo conceded the children’s factual allegations of physical abuse. Moreover, not only did Delonzo’s family law declaration fail to refute the children’s sexual molestation allegations, it provided sufficiently incriminating details to allow the dependency court to reasonably conclude that any innocent explanation was false. The children’s statements and Delonzo’s declaration support a rational inference that he had groomed the children at a young age to perform sexual acts that, because of their youth and inexperience, they did not fully understand. Given Delonzo’s abuse of his parental authority for his own sexual gratification and his denial of personal responsibility for the molestation, the evidence clearly shows the children would be at substantial risk of further harm if returned to his custody.

Given that persons who commit child molestation are not easily rehabilitated, the dependency court reasonably concluded that the children would be at further risk if they were returned to Delonzo without any intervention, supervision, or treatment. (See In re Karen R. (2001) 95 Cal.App.4th 84, 90-91 [“we conclude a father who has committed two incidents of forcible incestuous rape of his minor daughter reasonably can be said to be so sexually aberrant that both male and female siblings of the victim are at substantial risk of sexual abuse within the meaning of section 300, subdivision (d), if left in the home”]; People v. Monroe (1985) 168 Cal.App.3d 1205, 1214 [some consider child molesters to be more dangerous, harder to rehabilitate, and more inclined to deny their guilt than the average felon].) The dependency court therefore reasonably concluded that the incidents of physical abuse and sexual molestation were neither too remote nor insignificant to pose a current risk of harm to the children.

IV. Removal of the Children

Delonzo contends that the children’s removal from Mother’s custody was improper. As previously stated, however, given that his interests are not intertwined with Mother’s, we conclude that Delonzo lacks standing to challenge Mother’s loss of custody.

V. Evidentiary Rulings

Delonzo contends that his cross-examination of Mother was improperly curtailed. We disagree.

During cross-examination, Delonzo sought to establish that Mother had a motive to lie and to encourage the children to lie about the sexual molestation allegations. He contends that he was erroneously precluded from asking whether Mother had: used psychotropic medications, attempted suicide, disapproved of the location where the children’s visits took place, had an affair with Frank, or allowed Frank to sleep at her apartment.

“No evidence is admissible except relevant evidence.” (Evid. Code, § 350.) “Except as otherwise provided by statute, all relevant evidence is admissible.” (Evid. Code, § 351.) “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.) “The trial court is vested with very broad discretion in ruling on the admissibility of evidence. A trial court acts within its discretion when excluding cumulative and time consuming evidence. [Citations.] The weighing process under section 352 depends upon the trial court’s consideration of the unique facts and issues of each case, rather than upon mechanically automatic rules. [Citation.] Moreover, the trial court’s ruling will be upset only if there is a clear showing of an abuse of discretion. [Citations.]” (Aguayo v. Crompton & Knowles Corp. (1986) 183 Cal.App.3d 1032, 1038.)

We conclude Delonzo has failed to show that the questions regarding Frank, Mother’s former boyfriend, were relevant because, although Frank was named in the petition with regard to a domestic violence allegation, that allegation was not sustained. Even assuming the court erred, viewing the evidence as a whole, it is not reasonably probable that a different result would have been reached absent the alleged error. Accordingly, Delonzo cannot show that he was prejudiced by the dependency court’s decision to curtail his questions regarding Mother’s relationship with Frank. (Cal. Const., art. VI, § 13; Code Civ. Proc., § 475.)

With regard to Mother’s alleged motive to lie, the record indicates that the most damaging evidence came not from Mother, but from the children and Delonzo’s own family law declaration. There is no indication that the children were anything but credible witnesses. Delonzo conceded the truth of their allegations that he had used “a ping-pong paddle or backscratcher” to beat them. But more importantly, in his family law declaration, Delonzo did not deny that the children had touched his penis. Instead, he gave an explanation that the dependency court found to be incriminating. Accordingly, the dependency court acted within its considerable discretion by deeming the cross-examination of Mother on tangential issues such as her possible use of psychotropic medications and possible suicide attempts to be irrelevant.

VI. Delonzo’s Right to Testify

As previously mentioned, the Department presented its case-in-chief solely through its written reports and the Fresno family court file. After the Department rested, Delonzo called C. and J. as defense witnesses. Although Delonzo could have testified in his own defense, he chose not to do so. He now argues that because, after resting his defense case, he was denied the opportunity to testify in rebuttal to Mother’s defense testimony, his constitutional rights were violated. The contention is meritless because Mother did not testify for the Department, but in her own defense, just as Delonzo could have done. Accordingly, the record does not support Delonzo’s contention that he was denied an opportunity to present a complete defense.

Delonzo argues that the dependency court “engaged in a ‘bait and switch’ by implying that Delonzo would be permitted to be called on rebuttal, but subsequently denying him the opportunity to testify.” The reporter’s transcript, however, shows that the dependency court invited Attorney William Pirtle to call Delonzo as a witness before he rested: “MR. PIRTLE: . . . I will rest, subject to calling my client and possible -- [¶] THE COURT: You can call your client. [¶] . . . [¶] MR. PIRTLE: Subject to calling my client on rebuttal. I don’t know what the mother is going to testify to, Your Honor, and I may want to call my client to -- [¶] THE COURT: Just for the limited purpose of rebuttal. So you rest? [¶] MR. PIRTLE: Yes.” (Italics added.) The mere fact the trial court reiterated Pirtle’s desire to call Delonzo on rebuttal did not suggest he would be allowed to do so.

Delonzo, having freely chosen not to testify during his defense case, has failed to establish that the dependency court abused its discretion by refusing to allow him to reopen his case. Moreover, given the absence of an offer of proof, it is impossible to ascertain the prejudicial impact, if any, resulting from the exclusion of his untimely testimony. (Evid. Code, § 354, subd. (a); People v. Anderson (2001) 25 Cal.4th 543, 580-581.)

DISPOSITION

The jurisdictional and dispositional orders are affirmed. We remand for the limited purpose of requiring the Department to comply with the ICWA’s notice requirements. If, after proper notice is given, “neither the tribe nor the Bureau of Indian Affairs has provided a determinative response within 60 days after receiving that notice, then the court may determine that the [ICWA] does not apply to the proceedings, provided that the court must reverse its determination of the inapplicability of the act and must apply it prospectively if a tribe or the Bureau of Indian Affairs subsequently confirms that the child is an Indian child.” (Cal. Rules of Court, rule 5.482(d)(1).) Alternatively, if, after proper notice is given, it is determined that the children are Indian children and that the ICWA applies to these proceedings, either the children or the parents can petition the dependency court to vacate its prior orders. (Cal. Rules of Court, rule 5.486(a).)

We concur: EPSTEIN, P. J., WILLHITE, J.


Summaries of

In re C. L.

California Court of Appeals, Second District, Fourth Division
Jul 21, 2008
No. B201839 (Cal. Ct. App. Jul. 21, 2008)
Case details for

In re C. L.

Case Details

Full title:In re C. L., a Person Coming Under the Juvenile Court Law. v. DELONZO L.…

Court:California Court of Appeals, Second District, Fourth Division

Date published: Jul 21, 2008

Citations

No. B201839 (Cal. Ct. App. Jul. 21, 2008)