Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County., No. CK81375, Jacqueline Lewis, Juvenile Court Referee.
Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant Keith W.
Kimberly A. Knill, under appointment by the Court of Appeal, for Defendant and Appellant Jeannell D.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Frank J. DaVanzo, Principal Deputy County Counsel, for Plaintiff and Respondent.
ARMSTRONG, Acting P. J.
Jeannell D. ("Mother") appeals from the jurisdictional and dispositional orders in the dependency proceedings concerning her daughter Jamie D. and sons M.D. and L.M.
Keith W., who is M.D. and L.M.'s father, appeals from the jurisdictional and dispositional orders concerning those children. We affirm all the challenged orders.
Facts
This family came to the attention of DCFS and the courts on March 1, 2010: Fourteen year old Jamie was in police custody after running away from home. She told police officers that she ran away because Keith W. (her stepfather) had raped her.
Jamie was detained and placed in foster care, as were her half brothers M.D., who was ten years old, and L.M., who was four. A Welfare and Institutions Code section 300 petition was filed.
All further statutory references are to that code.
In March and April, DCFS reported the following:
Mother and Keith had been in a relationship since Jamie was 9 months old. (Jamie's father was incarcerated and serving a 50 year term, and is not a part of this proceeding.) Other adult relatives lived in the house for varying periods between 2005 and February 2010.
Jamie told police and social workers that Keith had raped her on about ten occasions beginning in about February of 2009, usually on Saturday mornings when Mother was out grocery shopping. Jamie said that Keith told her that there was no point in reporting his conduct because her mother would not believe her, and that she would end up living with her grandmother again. On some of these occasions her brothers were at home, as were, on some occasions, other adults. Keith had again attempted to rape her just before she ran away, in February 2010.
Jamie also told police and social workers that she did not tell Mother about the abuse until after she ran away. When she did tell Mother, Mother said that Jamie was lying, and did not inform authorities.
DCFS reported that Keith denied everything, saying, among other things, that there were so many people in the house that if he had done it, he would have been discovered, and that if he had wanted to abuse Jamie he would have taken her to a motel. At the adjudication hearing, Keith denied making this statement.
Mother told DCFS that Jamie was lying and that for that reason, she did not want Jamie to return home. In her first interview with DCFS, Mother said, "How can Jamie expect me to believe her when supposedly the first time it happened Jamie gave it to him. Then eventually she didn't want to have sex with him anymore. If she was having sex with him, then how could she accept that I was with him too?" Mother suggested that Jamie was jealous, saying, "She saw him bring me flowers and presents; she saw us leave to go to a motel and come back smiling the next day. She saw the clothes he bought me. Her story doesn't add up...." Mother said that Jamie had lied to her before, that the school reported that Jamie engaged in sexual activity at school, and that when Jamie disclosed the abuse, she said, "I know I lied to you all these other times but I want you to believe me now."
Keith, Mother, and Jamie all reported that Jamie had been having trouble at school and otherwise.
Both boys told DCFS that they knew nothing about Jamie's abuse, and that they had never been abused.
DCFS also reported on the parents' marijuana use. Mother said that she smoked medical marijuana every day, sometimes twice a day. She told DCFS that she had a marijuana prescription because she had uterine cancer and her insurance would not pay for surgery. Keith told DCFS that he smoked every few days, but never in front of the children.
The children knew about the drug use. Jamie reported that Mother and Keith smoked in the car, in front of the house. When L.M. was asked about substance abuse, he reported that his parents smoked and "acted funny" afterward.
On March 3, the boys were released to Mother on the condition that Keith move out of the house, something which Keith agreed to. However, social workers observed him at the house on several occasions thereafter and the boys were again detained on April 15. Their foster mother reported that both boys were filthy and that it took her hours to clean them. She also reported that while she was giving L.M. a bath, he said "I didn't do it, " and said that his brother M.D. "was in the tub with [Keith] and he put his mouth under the water and my mommy got real mad." The foster mother questioned M.D., who said he did not know what his brother was talking about, but then said "Shh, it's a secret." This boy was timid, and resisted being touched by others.
The matter was called for a contested adjudication hearing on June 15, 2010.
Jamie testified in chambers. She gave a more detailed account of the rapes which was largely consistent with the accounts in the DCFS reports. Among other things, Jamie testified that when the abuse began, Keith told her "you owe me, " because Mother wanted her to live with her grandmother, that "I'm the one who actually let you live here, " and "If I don't get it, you might as well just pack up now." She testified that he was harassing her again on the day she ran away. On that day, she told him that if he touched her again, she would call the police. He responded that she couldn't do that to him, that she had "let it go on for so long and should let it go on for longer" and that she should give him "another chance."
Jamie also testified about visits with her mother since she was detained: they visited for about two hours once a week, and the visits went well. Jamie testified that "since this happened to me and my mom we got a better connection, ... She actually is trying to get me to talk to her more. And it's like I never really talked about how I felt about things. And it's just my mom, she never tells me how she feels either. And it's just now she'll actually tell me."
Keith's father, who lived in the house, testified that Jamie had run away several times, and that she ran away in February 2010 after an argument about washing dishes. When he questioned Jamie, she swore at him.
Keith testified that Jamie was lying about the rapes. He described troubles she had had at school and said that she was sexually active and had been associating with gang members and that he had tried to intervene. She had run away several times. Each time, he looked for her and eventually found her.
Keith submitted numerous letters from community organizations, school personnel, and friends to the effect that he was a good citizen and a good father and/or that Jamie was a troubled girl.
Mother submitted a letter from a doctor indicating that she was seen by another doctor in his office, that she suffered chronic pain as the result of her cancer, and that cannabis eased the pain. DCFS submitted evidence that in 2009, Mother had a normal pap smear, indicating that she did not have uterine cancer.
The court sustained the petition under subdivisions (b), (d), and (j) on allegations that Keith had raped Jamie and that Mother failed to protect her, thus endangering all the children; and under subdivision (b) on allegations that all the children were endangered by both parents' use of marijuana.
The court removed the children from the parents' custody and ordered monitored visits and other reunification services.
Discussion
The jurisdictional orders
"In reviewing the jurisdictional findings... we look to see if substantial evidence, contradicted or uncontradicted, supports them. [Citation.] In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court's determinations; and we note that issues of fact and credibility are the province of the trial court." (In re Heather A. (1996) 52 Cal.App.4th 183, 193.)
1. The marijuana use
Under section 300, subdivision (b), a child may be made a dependent child if "The 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, ..."
Both parents argue that the evidence was that their marijuana use did not pose a risk of serious physical harm or illness to the children. We see substantial evidence for the sustained finding.
Both parents used marijuana very frequently, and it is apparent that the drug use affected their ability to care for their children. The boys were filthy when they arrived in foster care in April, and there were signs of sexual abuse. Jamie had run away several times, was having trouble in school and otherwise, and had a poor relationship with her mother. Neither Keith W. or Mother called police when Jamie ran away in February 2010. Further, as the juvenile court found, the parents' drug use may well have something to do with the sexual abuse and with Mother's inability to protect Jamie.
In its brief, DCFS writes that given that the court made no findings on this issue and did not order further investigation, there is no substantial evidence that the boys were abused. From this, Keith argues that the evidence is irrelevant and should not be considered. The petition did not allege sexual abuse of the boys, and we need not determine whether there would have been substantial evidence for such a finding, but we do not on that account find the evidence irrelevant.
2. Failure to protect
The juvenile court sustained the petition under subdivisions (b), (d), and (j) in part on allegations that Mother knew of the abuse and failed to take action to protect Jamie, and that she disbelieved Jamie. Mother argues that there is insufficient evidence for sustaining the petition on these grounds.
Section 300, subdivision (d) provides that a child may be made a dependent child of the court if "The child has been sexually abused, or there is a substantial risk that the child will be sexually abused, as defined in Section 11165.1 of the Penal Code, by his or her parent or guardian or a member of his or her household...."
Section 300, subdivision (j) provides that a child may be made a dependent child of the court if "The 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 question is thus whether there is substantial evidence that Mother's conduct, as described, created a substantial risk that Jamie would again be abused, and that Jamie's brothers would be sexually abused, and would be abused or neglected as described in subdivision (a), (b), (d), (e), or (i), and, under subdivision (b), of serious physical harm or illness.
We find that there was such evidence. It is true that, as Mother argues, there was evidence that she did not know of the sexual abuse until after Jamie ran away, and that the evidence was that by the time of the jurisdictional hearing, her relationship with Jamie had improved. She argues that, at least, there was no risk by the time of the jurisdictional hearings.
However, there was also evidence that Mother not only disbelieved Jamie when Jamie told her of the abuse, but suggested that she had "given it up" to her stepfather, evidencing a belief that a fifteen year old could properly volunteer to have sex with her stepfather. Indeed, as DCFS argues, the fact that Jamie did not tell her mother about the abuse speaks volumes about Mother's willingness and ability to protect her children from sexual abuse, and the resulting risk to those children. The evidence was that her relationship with Jamie had improved, but the juvenile court could reasonably have concluded that it had not improved enough, and that the children were still at risk of sexual abuse.
Further, there was also evidence that Mother did not understand the seriousness of the situation, and would disobey court orders, given that she had done so by allowing Keith into the house after the boys were briefly returned.
3. Sexual abuse
The parents argue that there is no substantial evidence for the findings under subdivisions (d) and (j) for another reason: They acknowledge that in some instances, sexual abuse of a girl can establish that her brothers are at risk of sexual abuse, but contends that this is not one of those cases. In reliance on such cases as In re Andy G. (2010) 183 Cal.App.4th 1405; In re P.A. (2006) 144 Cal.App.4th 1339; In re Karen R. (2001) 95 Cal.App.4th 84, and In re Rubisela E. (2000) 85 Cal.App.4th 177 they argue that the risk is not proved unless there is proof that the brothers had knowledge of the abuse, or witnessed it, or are close in age to the abused sister, or that the behavior is egregiously aberrant. The parents thus confuse the facts of those cases with their holdings.
At any rate, there is evidence that Keith's conduct was egregiously aberrant. He had been in a parental role to Jamie since she was an infant, but was willing to use her for his sexual gratification. He raped her many times over the course of a year, telling her that she "owed him, " and, later, that she should "let it go on longer." He did this while his sons and other adults were in the house. He also exploited the difficulties Jamie had had with her mother, telling her that she had no recourse to her mother, who would not believe her. The home environment was thus "extremely dysfunctional, and pose[d] a risk to the[] well-being" of both children. (In re Maria R. (2010) 185 Cal.App.4th 48, 69.) That is substantial evidence for the sustained findings.
We note, too, that "This conclusion is consistent with section 355.1, subdivision (d), which provides in pertinent part that: '(d) Where the court finds that either a parent, a guardian, or any other person who resides with... a minor who is currently the subject of the petition filed under Section 300... (3) has been found in a prior dependency hearing... to have committed an act of sexual abuse, ... that finding shall be prima facie evidence in any proceeding that the subject minor is a person described by subdivision (a), (b), (c), or (d) of Section 300 and is at substantial risk of abuse or neglect. The prima facie evidence constitutes a presumption affecting the burden of producing evidence.' [¶] Although section 355.1, subdivision (d), was not triggered here because there was no prior dependency proceeding at the time of the jurisdictional hearing, it nonetheless evinces a legislative determination that siblings of sexually abused children are at substantial risk of harm and are entitled to protection by the juvenile courts." (In re P.A., supra, 144 Cal.App.4th at p. 1347.)
The dispositional orders
Keith argues that if the jurisdictional orders are reversed, the dispositional orders must be reversed, too. We affirm the jurisdictional orders, and need not further consider the contention.
Mother makes substantive arguments about the orders removing the children from her care, but we have granted DCFS's request that we take judicial notice of a January 25, 2011 order returning all three children to Mother's home, and agree with DCFS that, given that order, Mother's challenge to the dispositional order is moot.
Disposition
The jurisdictional and dispositional orders are affirmed.
We concur: MOSK, J., KRIEGLER, J.