Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. CK78779, Jacqueline Lewis, Commissioner.
Kimberly A. Knill, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Peter A. Ferrera, Senior Deputy County Counsel, for Plaintiff and Respondent.
MALLANO, P. J.
The juvenile court adjudged minors Daniel G., D.G., A.G., Jeremiah J., Jermaine J., and C.J. to be dependent children of the court pursuant to Welfare and Institutions Code section 300, subdivisions (b) (failure to protect) and (j) (sibling abuse) on September 28, 2009, after Amanda W. (Mother) signed a waiver of rights and pleaded no contest to the petition. The Department of Children and Family Services (DCFS) filed a subsequent petition pursuant to section 342, alleging minors were persons described by section 300, subdivisions (b) and (j). On July 15, 2010, the court sustained the section 342 petition. Mother appeals from the court’s orders, contending there was insufficient evidence to sustain the section 342 petition. We agree and reverse the July 15, 2010 orders.
Undesignated statutory references are to the Welfare and Institutions Code.
BACKGROUND
On September 1, 2009, DCFS filed a section 300 petition on the minors’ behalf alleging pursuant to subdivisions (b) and (j) as follows: “The children Daniel, D., A., Jeremiah, Jermaine and C.’s mother, [Mother], exposed the children to a detrimental home environment by failing to respond in a timely and sufficient manner to sexual behavior by the child [D.]. [Mother] demonstrated a limited ability to respond to [D.]’s needs or to obtain necessary services for [D], resulting in [D.] displaying sexualized behavior at school and at home. [Mother] has not ensured that [D.] participate in necessary behavior therapy to address his sexual conduct. Such circumstances and [Mother’s] limited protectiveness place [D.] at risk of harm including the risk of sexual abuse and create the risk of similar harm to the children Daniel, A., Jeremiah, Jermaine and [C.].”
Allegations under section 300, subdivision (d) (sexual abuse), subdivision (g) (no provision for support against Jermaine J., Sr.), and further allegations under subdivision (b) were stricken by the juvenile court at the adjudication hearing.
At the time the petition was filed, Daniel was 11 (born in May 1998), D. was seven (born in March 2002), A. was five (born in February 2004), Jeremiah was four (born in February 2005), and Jermaine and C. were two-year-old twins (born in September 2006).
The events leading up to the filing of the petition were as follows. In July 2009, D.’s special education teacher reported to DCFS that D., who was allowed to draw on dry erase boards to help control his wild behavior, had drawn pictures of himself and his brother with exposed genitals on two occasions. In one picture, he had drawn lines from his brother’s penis to his mouth and stated, “‘that’s what happens.’” Afterward, D. erased the pictures and began drawing numbers and houses. He also had been observed making humping motions on the table at school. A school counselor reported that D. had made a penis out of play dough and had drawn two pictures depicting him and his brother with lines from his mouth to the other boy’s penis. D. had told the counselor that “his brother sucks his ‘dick, ’” and that “his brother tells him to suck his ‘dick.’” D. also had drawn a picture of his sister and had pointed out her “‘pussy.’” When interviewed by DCFS, D. denied drawing pictures of his family members naked, that anyone had ever touched his genitals or that he had touched anyone else’s genitals, or that he had put his mouth on anyone’s genitals.
DCFS interviewed Mother at the maternal aunt’s home where she lived with the minors. Mother said she was aware D. was having problems at school. She stated she had met with the teacher and principal, but had not seen the pictures D. had drawn. She stated D. did not act inappropriately at home, she did not believe there was any sexual abuse in her home, and she monitored what the minors watched on television. Daniel denied that he had touched anyone inappropriately or that he had been touched inappropriately. He denied telling any person to put his or her mouth on his penis. The other minors denied sexual contact by anyone.
During an interview on August 19, 2009, D. socked a teddy bear in its genital area. He stated he had seen Daniel having sex with his girlfriend and drew a picture of Daniel appearing to have anal sex with a girl. He also drew a picture of himself having sex with Daniel. He stated Daniel had told him to “‘suck his dick.’” Daniel and Mother denied sexual abuse.
Later that day, the minors were interviewed by police and by DCFS. D. denied sexual abuse to the police. But he then told DCFS he and Daniel had performed oral sex on each other in the closet and that he had put his penis in C.’s mouth. When Daniel denied having oral sex with him, D. became upset with Daniel and accused him of lying. Daniel stated he had been told by a 16-year-old friend to touch his brother’s penis and did so. Jeremiah told DCFS he had seen Daniel and D. humping and that Mother had told them to stop because it was “‘nasty.’” Jeremiah reported Mother had “whooped” Daniel after she caught him humping the twins and told him not to do it anymore. A. stated he had seen D. humping the table but denied inappropriate touching. Physical examinations of D., Daniel, and A. were normal, neither confirming nor denying sexual abuse.
On September 1, 2009, the juvenile court held a detention hearing and detained the minors from Mother. Minors Daniel, D., and A. were detained from their father, Steven G. Minors Jeremiah, Jermaine, and C. were released to their father, Jermaine J., Sr. D. and A. were placed in different foster homes. Daniel was placed in a group home which was later determined to be an inappropriate placement “because [Daniel] did not exhibit the degree [of] behavioral concerns exhibited by the other residents.” Daniel then was moved to foster care. DCFS was ordered to provide referrals to Mother for sexual abuse and individual counseling, and Mother was granted monitored visits.
Steven, who receives services for mild retardation, and Jermaine J., Sr. are not parties to this appeal.
The September 30, 2009 jurisdiction/disposition report stated Mother did not believe D. had the ability to draw the type of graphic pictures described by the school staff. She denied Daniel had or would engage in sexual abuse. She stated she had spanked D. when she caught him humping a pillow when he was four years old. During interviews, Daniel and D. denied past sexual contact with each other. D. told the interviewer he had lied to the doctor about having had sexual contact with Daniel “‘because the police[] wanted me to lie.’” He stated he later told the doctor “‘it wasn’t the truth.’” A. responded in the negative when asked if Daniel or D. had touched his private parts or if Daniel had ever put his mouth on D.’s private parts. When asked if he knew what “humping” was, A. replied, “‘It’s nasty.’” He stated the minors do not hump, “‘Because if you hump you gone get in trouble.’”
At the adjudication hearing on October 28, 2009, Mother signed a waiver of rights and pleaded no contest to the petition filed pursuant to section 300, subdivisions (b) and (j), as amended. D. was ordered into suitable placement and to attend therapy. The other minors were placed in the home of Mother. Mother was granted family reunification services with D., ordered to attend individual counseling, and ordered to participate in D.’s therapy. The other minors also were ordered to attend therapy.
On February 1, 2010, DCFS filed a section 342 petition on the minors’ behalf, alleging pursuant to section 300, subdivisions (b) and (j), as follows: “[Mother] exposed the children to a detrimental home environment by failing to respond in a timely and sufficient manner to the sexualized behaviors by the child Daniel. [Mother] demonstrated a limited ability to respond to Daniel’s needs or to obtain necessary services for Daniel. In fact, [Mother] hit Daniel with a belt in response to his sexualized behaviors. [Mother’s] limited protectiveness, her inappropriate supervision and inappropriate physical discipline in response to it places Daniel and his siblings at risk of physical and sexual abuse.”
Section 342 provides: “In any case in which a minor has been found to be a person described by Section 300 and the petitioner alleges new facts or circumstances, other than those under which the original petition was sustained, sufficient to state that the minor is a person described in Section 300, the petitioner shall file a subsequent petition. This section does not apply if the jurisdiction of the juvenile court has been terminated prior to the new allegations.”
Allegations under section 300, subdivision (d) (sexual abuse) and further allegations under subdivision (b) and subdivision (j) (abuse of sibling) were stricken by the juvenile court at the adjudication hearing.
The events giving rise to the section 342 petition are as follows. On January 27, 2010, during a monthly visit by DCFS at A.’s school, DCFS asked then five-year-old A. if he knew why he had been in foster care. He replied that when his grandmother had become angry at the minors she had called the police, and the minors “were arrested without handcuffs.” DCFS also asked A. if he knew why D. was in foster care. A. stated that “‘Daniel was humping [D.].’” When asked to describe humping, A. repeated his statement that “‘Daniel was humping [D.].’” DCFS asked A. whether Daniel humped any of the other minors. A. said Daniel humped him and other siblings in Daniel’s bedroom at his grandmother’s house and that Daniel wore clothes during the humping incident. He said that on one occasion Daniel approached him and said, “‘Let’s hump.’” A. then told Mother, who spanked Daniel with a belt and told him to stop. DCFS reported A. “did not appear to have an adequate time orientation and could not specify dates of the events he described.”
Later that day, DCFS and law enforcement officers interviewed Mother at the maternal grandmother’s home, where she had moved with the minors after the first section 300 petition was sustained. In a second interview, A. told DCFS and police that he had been humped by Daniel, who had clothes on, from the front and from behind in Daniel’s room at nighttime while Mother was sleeping. A. stated he had seen Daniel humping the twins while they were naked. Mother denied A. had reported abuse to her and that as a result she had hit Daniel with a belt. She denied Daniel could have been the perpetrator of a new allegation of sexual abuse because the minors were either at school or supervised at home, Daniel had his own bedroom, and the minors were not allowed in Daniel’s bedroom. Mother stated she always made sure the minors were asleep before she went to bed. Mother stated, “‘I know what’s on the last Detention report. I don’t know where this came from. I knew that Daniel and [D.] were humping a long time ago but they don’t do that anymore. I can’t see when this could have happened. They are never by themselves.’” Maternal grandmother stated the initial allegations of sexual abuse were based on a biased report by a teacher’s assistant. Daniel denied touching his siblings and denied his previous statement that he had touched D. Daniel denied being hit by Mother or maternal grandmother. C. and Jeremiah denied sexual contact by anyone. Jeremiah stated he was disciplined by a belt or a “‘pop’” in the mouth by Mother and maternal grandmother. On January 27, 2010, Daniel was detained from Mother’s custody and placed in foster care.
At the detention hearing on February 1, 2010, the juvenile court ordered Daniel detained and released the other minors to Mother’s care. D. remained detained. DCFS was ordered to provide Mother with referrals for sexual abuse awareness therapy. The court permitted Mother to visit Daniel alone on an unmonitored basis. Mother was not allowed to monitor sibling visits with Daniel.
In its March 2, 2010 jurisdiction/disposition report DCFS reported Daniel was placed in a group home and D. was in foster care. Daniel continued to state he never touched any of his siblings. DCFS reported, “It is uncertain whether Daniel and [D.] are victims or perpetrators of sexual abuse.” DCFS also reported the minors “have received suggestions from their peers at school to perform such behaviors.” DCFS reported D. retracted his statements of sexual abuse by Daniel and had made unfounded allegations of sexual abuse in two foster placements which he later retracted. A. did not retract his accusations against Daniel. Jeremiah, Jermaine, and C. never reported sexual abuse. Mother reported seeing Daniel and D. humping each other and pillows only once in 2004. She knew of no precipitating event that led to their sexualized behavior. After that incident, she never saw them hump again. DCFS believed Mother had made no effort to comply with court-ordered individual counseling for the minors. DCFS opined Mother did not believe the minors’ reports were true or that the minors needed therapy.
On March 2, 2010, Daniel and D. were ordered to remain detained and the other minors were ordered to remain released to Mother’s custody.
Although the March 2, 2010 and March 30, 2010 minute orders show [D.] was released to Mother’s custody, subsequent status reports indicate [D.] was never returned home.
On April 28, 2010, DCFS reported Mother continued to provide a safe environment for Jeremiah, Jermaine, C., and A. Jeremiah, Jermaine, and Charmaine had been receiving therapeutic services for three weeks, since April 2010. A. began receiving services in January 2010. Mother had not provided DCFS with contact information regarding any counseling services she had received. Mother and Daniel continued to “deny observing or participating in any sexualized behaviors with any of the [minors].” Daniel remained placed in a group home, where he received therapeutic services, did not display behavioral concerns, did not display sexualized behaviors, and was described as a “‘good kid’” by the group home staff. Daniel attended school daily, did not display behavioral concerns, and was achieving well. Daniel’s therapist reported he was cooperative with therapy and reported no concerns. D. remained placed in foster care, received therapeutic services, and “has mildly decreased his acting out behaviors.” D. stated he was in foster care because Daniel “beat him up.” Forensic examinations of the minors did not confirm or negate sexual abuse, and none of the minors spontaneously disclosed sexual abuse or inappropriate touching during their medical examinations. Mother visited Daniel and D. on Saturdays or Sundays for six hours, which DCFS described as “quality” visits.
On May 20, 2010, DCFS reported receiving verification of Mother’s participation in only one day of counseling, on October 20, 2009. Mother stated she had attended two sessions of counseling in April 2010 at the agency that serviced the minors. The agency confirmed that Mother had attended therapy but had not been seen for about a month. Mother stated she had trouble getting therapy because her Medi-Cal benefits had lapsed. DCFS reported that on May 14, 2010, DCFS wrote a letter to Mother expressing concern about Mother’s failure to attend individual counseling and her violation of court orders that she visit Daniel alone and not monitor sibling contact with Daniel. DCFS was unaware of any of the minors acting out sexually since January 2010. D. and Daniel were reported to be uncomfortable talking to DCFS about their visits.
On July 14, 2010, DCFS reported that on May 19, 2010, Daniel told DCFS that one to two years previously, he had witnessed male teenage neighbors touching and kissing females of the same age in the apartment complex where he lived prior to living with his grandmother. Daniel declined their offers to participate in their sexual encounters. He then went home and tried to touch D. in his genital area. The teenagers later called Daniel “gay” when he told them about touching D. Prior to this incident, Daniel had not known what “gay” meant. After D. told Mother about the incident, Mother told Daniel his actions were wrong and told him to ask God for forgiveness. Daniel said it was the only sexual incident in which he had participated. He believed the sexualized behaviors reported by D. or exhibited by D. toward the other minors were a result of this incident. DCFS noted case records indicated Mother and Daniel previously had reported the incident to DCFS. DCFS was concerned Mother continued to deny minors had engaged in sexualized touching.
On July 15, 2010, the juvenile court sustained the section 342 petition, with respect to section 300, subdivisions (b) and (j), as amended. The court ordered Daniel and D. to remain suitably placed. The other minors were ordered placed in the home of Mother under DCFS’s supervision. The court ordered family reunification services for Mother. The court ordered Mother’s visits with Daniel to be unmonitored and to occur outside the presence of the other minors. The court also ordered Mother to continue in the case plan order of October 28, 2009 and family counseling “when deemed appropriate by minor[s’] therapist.”
On September 13, 2010, Mother appealed from the juvenile court’s order sustaining the section 342 petition.
DISCUSSION
A. Standard of Review
The juvenile court’s jurisdictional finding that the minor is a person described in section 300 must be supported by a preponderance of the evidence. (§ 355; Cal. Rules of Court, rule 5.684(f).) “‘“When the sufficiency of the evidence to support a finding or order is challenged on appeal, the reviewing court must determine if there is any substantial evidence, that is, evidence which is reasonable, credible, and of solid value to support the conclusion of the trier of fact. [Citation.] In making this determination, all conflicts [in the evidence and in reasonable inferences from the evidence] are to be resolved in favor of the prevailing party, and issues of fact and credibility are questions for the trier of fact. [Citation.]”’ [Citation.] While substantial evidence may consist of inferences, such inferences must rest on the evidence; inferences that are the result of speculation or conjecture cannot support a finding. [Citation.]” (In re Precious D. (2010) 189 Cal.App.4th 1251, 1258–1259.)
B. There was insufficient evidence to sustain the section 342 petition
Mother contends that the juvenile court lacked substantial evidence to sustain the section 342 petition because DCFS did not establish any neglect by Mother that harmed the minors. We agree.
Section 300, subdivision (b) provides a basis for juvenile court jurisdiction if “[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child, or the willful or negligent failure of the child’s parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left....”
“A jurisdictional finding under section 300, subdivision (b) requires: ‘“(1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) ‘serious physical harm or illness’ to the child, or a ‘substantial risk’ of such harm or illness.” [Citation.]’ [Citations.] The third element ‘effectively requires a showing that at the time of the jurisdictional hearing the child is at substantial risk of serious physical harm in the future (e.g., evidence showing a substantial risk that past physical harm will reoccur).’ [Citation.]” (In re James R. (2009) 176 Cal.App.4th 129, 135.)
Section 300, subdivision (j) provides a basis for juvenile court jurisdiction if “[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. The court shall consider the circumstances surrounding the abuse or neglect of the sibling, the age and gender of each child, the nature of the abuse or neglect of the sibling, the mental condition of the parent or guardian, and any other factors the court considers probative in determining whether there is a substantial risk to the child.”
Mother cites In re James R., supra, 176 Cal.App.4th 129, In re Esmeralda B., (1992) 11 Cal.App.4th 1036, and In re J.O. (2009) 178 Cal.App.4th 139 in support of her argument that there was no causal relation between any conduct by Mother and harm to the minors. In those cases, the reviewing courts concluded that the link between the parents’ actions and any harm or future risk of harm to the minors was speculative or unsupported by substantial evidence. The In re James R. court held that the evidence was insufficient to support the juvenile court’s finding under section 300, subdivision (b) that the minors were at substantial risk of suffering serious physical harm or illness based on the mother’s mental illness or substance abuse or the inability of the father to protect them. (James R., supra, 176 Cal.App.4th at p. 131.) In that case, the minors came to DCFS’s attention when the mother had a negative reaction to taking ibuprofen and alcohol together. But there was no evidence that the mother used illegal drugs after the birth of the minors and the evidence showed that the minors were healthy, well cared for, and always supervised. (Id. at p. 137.) The court held that because there was no evidence of actual harm to the minors from the mother’s conduct or evidence that the parents were unable to provide care for them, any causal link between the mother’s mental state and future harm to the minors was speculative. (Id. at p. 136.)
The court in In re Esmeralda B., supra, 11 Cal.App.4th 1036, concluded that there was no evidence to support the juvenile court’s finding of jurisdiction under section 300, subdivision (b) that the parents were incapable or unwilling to adequately protect their children. (Esmeralda B., at p. 1038.) There, the minor, who had fallen off her bicycle shortly before blood was detected on her underwear, was examined by a doctor and found to have suffered an injury to the posterior fourchette and a small tear of the hymen. In making its jurisdictional finding, the juvenile court did not point to any evidence supporting a finding that any molestation resulted from the parent’s failure or inability to adequately supervise the minor but instead concluded that the minor needed the protection of the juvenile court based on the actions of the parents subsequent to the injuries, including the father’s belief that the minor’s injury was not caused by sexual molestation. (Id. at pp. 1043–1044.) The court reversed the juvenile court’s order because the evidence was insufficient to establish that the minor needed the protection of the juvenile court based on the parents’ actions. The court noted that the social worker testified that the parents acted appropriately after the minor’s injury by seeking immediate medical care, cooperating with all authorities, providing therapy for the minor, and obtaining expert medical advice from a pediatrician who opined that the injuries were consistent with the minor’s history of falling from a bicycle. (Id. at p. 1044.) And in that case, “no professional or other person testified the [injury] was such that ordinarily it does not occur except as a result of unreasonable or neglectful acts of either parent.” (Id. at pp. 1040–1041.)
Finally, the In re J.O. court concluded that the factual finding against the father as to section 300, subdivision (b) was not supported by the evidence because there was no causal nexus between the juvenile court’s findings of serious injury caused by the mother’s use of a safety pin and a knife to scrape ink tattoos from the minor’s body on the one hand and her inappropriate physical discipline of the minor and the findings relating to the father on the other. (In re J.O., supra, 178 Cal.App.4th at p. 152.)
Here, A.’s statement that Daniel committed sexual abuse is not of sufficient reasonable, credible, and solid value to support the juvenile court’s determination the minors suffered or there is a substantial risk they will suffer serious physical injury. A. stated that Daniel had engaged in sexualized behaviors and that in response, Mother had hit Daniel with a belt. But, as DCFS reported in its jurisdiction/disposition report for the section 342 petition, “It is uncertain whether Daniel and [D.] are victims or perpetrators of sexual abuse” and the minors “have received suggestions from their peers at school to perform such behaviors.” A., who was five years old in January 2010, was not a reliable source of information. When asked if Daniel humped any of the other minors, A. stated Daniel had humped him in Daniel’s bedroom in his grandmother’s house, and that it “occurs all the time.” A. also “confirmed” to police officers that Daniel humped the twins while they were naked. But A. also told DCFS during the same interview that he had been in foster care because his grandmother had become angry at the minors and called the police, who arrested them “without handcuffs.” He also incorrectly stated Daniel was living with an aunt. And when A. stated that Daniel was in foster care because he was “‘humping [D.], ’” he could not define “humping.” Because he was only five years old at the time he made his statements, his accounts were understandably inaccurate and cast doubt on the accuracy of his other statements.
Although on appeal DCFS urges that A. “was complaining about recent behavior by Daniel” because he stated the humping incidents occurred at the maternal grandmother’s home where the family had been living since the disposition of the section 300 petition, DCFS itself reported to the juvenile court that A. “did not appear to have an adequate time orientation and could not specify dates of the events he described.” And no evidence corroborated A.’s statement. Rather, Mother denied A.’s statement that A. had reported sexual abuse to Mother, who had then hit Daniel with a belt. Daniel also denied Mother had hit him with a belt. Also, Mother, maternal grandmother, and the minors except for Daniel denied sexual contact between Daniel and the minors. Daniel stated that he had touched D.’s genitals only once, one or two years previously, in response to prompting by older teenagers. Daniel denied ever touching D. again and believed that any sexualized behaviors reported by D. were a result of that one act of touching. That incident, which Daniel had reported to DCFS at the time the first petition had been sustained, occurred before the events described in the section 342 petition and therefore could not have been a basis for that petition. Also, Daniel was achieving well in school, did not display behavioral concerns, did not display sexualized behaviors, and was described as a “‘good kid’” by the group home staff.
And the evidence does not show a causal nexus between any negligent conduct by Mother and any harm to the minors. (See In re Precious D., supra, 189 Cal.App.4th at p. 1254 [parental unfitness or neglectful conduct must be shown in order to assert dependency court jurisdiction under section 300, subdivision (b)].) On appeal, DCFS urges that Mother demonstrated “[i]nappropriate [c]are and [s]upervision” because she “acknowledged she was always ‘in and out of the house, ’” she continued to deny the truth of the sustained section 300 petition, and because “she failed to timely enroll her children and herself into court-ordered therapy.” But Mother’s statement that the minors were always supervised at home is not inconsistent with her statement she was “always ‘in and out of the house’” because she and the minors resided with her mother. And Mother stated Daniel had his own room that the other minors were not allowed to enter. She also stated she made sure all the minors were asleep before she went to bed at night.
DCFS’s asserts that Mother “continued to deny the truth of the sustained section 300 petition, as she alleged the original reports from D.’s school were the product of a biased teacher’s assistant.” But the statement concerning bias was not made by Mother, but by maternal grandmother. Also, Mother did not turn a blind eye to the allegations of sexualized behavior. She admitted that she “knew that Daniel and [D.] were humping a long time ago, ” but asserted that they had stopped that behavior. Her statement was consistent with her statement made during the investigation of the original petition that D. had exhibited humping behavior when he was four years old. We also conclude that Mother’s failure to enroll herself and the minors in therapy timely simply does not demonstrate a causative link to any harm suffered by the minors.
We conclude the evidence of abuse was insufficient to support the sustaining of the section 342 petition. We reverse the juvenile court’s July 15, 2010 jurisdictional and dispositional orders. Because the original section 300 petition dispositional orders are still in effect, the practical result is that Daniel will be released to Mother’s care while Mother continues to attempt to reunify with D. and Mother and minors continue to attend therapy.
DISPOSITION
The juvenile court’s July 15, 2010 orders are reversed.
We concur: ROTHSCHILD, J., JOHNSON, J.