Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. J517407A-C, Yvonne E. Campos, Judge.
AARON, J.
Larry W. and Kim S. appeal the dispositional judgment in the dependency case of their daughter L.W., their son L.R.W., and Kim's son, K.A.C. Larry and Kim contend that there is not substantial evidence to support the order removing the children from Kim's custody. Larry additionally contends that there is not substantial evidence to support the order denying placement with maternal grandmother, Delores W. Larry and Kim join in each other's contentions. We affirm.
Larry is not the father of K.A.C. and does not appeal the judgment in K.A.C.'s case.
Larry also contends that there is not substantial evidence to support the finding that it would be detrimental to the children to place them with him. (Welf. & Inst. Code, § 361.2, subd. (a).) Because Larry did not request placement, we need not discuss this contention.
BACKGROUND
This family has a long history of sexual abuse. When Kim was a child, Delores's boyfriend sexually abused Kim and Kim was removed from the home for a brief time. Kim's older children, K.C. and Kenny C., were exposed to sexual behavior by Kim and their father. Kenny began sexually acting out in 1998, when he was three years old, by performing oral sex on five-year-old K.C. In 2000 there were four referrals to the San Diego County Health and Human Services Agency (the Agency) because Kenny was sexually acting out at Head Start. Two of the referrals occurred after Kenny put his fingers in the anuses of two other children. Kim's oldest son, Brian S., later reported that Kim would punish him and Kenny by telling them to take off their clothes and go outside.
K.C.'s and Kenny's father is not a party to this case.
In November 2005, when K.C. was 12 years old, she was sexually abused by Larry, her stepfather. Kim forced Larry to leave the family home. Larry was criminally convicted, placed on probation, and ordered to have no contact with K.C. In May 2006, Kim allowed Larry into the home, in violation of the restraining order. Kim said that whether Larry would be allowed to return home would depend on K.C.'s wishes, but later said that Larry could not have contact with K.C. until he had completed his programs. Kim sought therapy for herself and K.C. at the Chadwick Center of Children's Hospital. After 30 sessions, from 2006 to 2007, psychologist Ibolya Kantor concluded that Kim was willing and able to protect her children.
In November 2008, Kim observed four-year-old L.W. making "sexual gestures." Kim asked L.W. whether anyone had touched her. L.W. replied, "Kenny touched my pee-pee before." At the time of L.W.'s disclosure, 13-year-old Kenny was in juvenile hall after having been arrested for raping an unrelated girl. When Kim asked Kenny about L.W.'s statement, he denied having touched L.W. Upon his release from juvenile hall, Kenny returned to Kim's home. Kim sat down with both children to discuss L.W.'s allegations. When Kenny reiterated that he had not touched L.W., L.W. said, "[Y]es, you did." Kim told them not to touch anyone's private parts except their own and resolved to prohibit Kenny from having unsupervised contact with the other children.
Kim claimed that the girl consented to the sex act at issue. Kenny was later convicted of committing a lewd act on a child (Pen. Code, § 288, subd. (a)) and was placed on probation.
As a result of Kenny's arrest for rape, the Agency received a child abuse referral. When social workers interviewed Kim, she did not ask for services for L.W. or mention any sexually inappropriate behavior in the home.
In February 2009, L.W. told her Head Start teacher that she wanted to have sex with a boy in the class. The teacher asked L.W. what she knew about sex, and L.W. said that it was what her brother did to her. The teacher gave L.W. a doll and asked her to demonstrate. L.W. pulled the doll's pants down and rubbed its genital area. L.W. said that her brother also had her touch him. She said that she had told Kim, and Kim had told the brother to stop, but he had not stopped. On another occasion, L.W. told Head Start staff that when she grew up she was going to be married and have sex. When asked if she knew what sex was, she moved her hips back and forth.
An Agency social worker interviewed L.W. and explained that no one should touch her private parts and that she should not touch anyone else's private parts. L.W. said, "I don't touch Kenny but Kenny touches me." The social worker asked where Kenny had touched her. L.W. pointed to her bottom, vaginal area, and chest and said that Kenny touched her underneath her clothes. She said that she had told Kim what Kenny was doing, Kim had told Kenny to stop, and Kenny had not touched her again since that time.
Kim told the social worker that she did not believe L.W. and that L.W. must have overheard adult conversations. Kim said that more than one year earlier, she had taken L.W. to Chadwick Center because L.W. was making "sexual gestures." According to Kim, Chadwick found nothing.
The Agency filed dependency petitions on February 24, 2009. The petition pertaining to four-year-old L.W. alleged that beginning in November 2008, Kenny touched and rubbed L.W.'s vaginal area, buttocks, and chest, under her clothes. (§ 300, subd. (d).) The petitions as to 10-year-old K.A.C. and two-year-old L.R.W. alleged that they were at substantial risk of being abused or neglected as a result of the sexual abuse of L.W. (§ 300, subd. (j).) After L.W., K.A.C., and L.R.W. were detained in foster care, Kim moved Kenny from her home to Delores's home. A few days after the petitions were filed, Kim resumed therapy with Dr. Kantor. Kim asked that L.W. also be enrolled in therapy. In March, Kim initiated services with Home Start, and therapy for K.C. Kim enrolled in a seven-week parenting course and completed it by the time of the jurisdictional and dispositional hearing in April.
The parties submitted on the issue of jurisdiction and the court entered true findings on the petitions.
On March 2, 2009, L.W. underwent a forensic interview at Chadwick Center. She reported that Kenny took off her clothes and touched her butt, pee-pee, and nipples; sucked her pee-pee; and made her suck his pee-pee. This had happened many times. When L.W. told Kim about the abuse, Kim spanked Kenny with a belt and told him to stop. Kim told the Chadwick Center interviewer that she did not believe L.W. That same day, Kim made conflicting statements to the Agency social worker, saying that she believed L.W., that she had been told about Kenny's sexual abuse of L.W., and that she had never known about it before.
On March 4, 2009, Kenny admitted to a police detective that he had sexually abused L.W., but claimed that it had happened only twice, and that he had not forced her to do anything. He also said that he "had sexual stuff and sexual movies at the house." Kenny was arrested and taken to juvenile hall. Kim told the detective that she had asked L.W. whether the abuse had happened again, and L.W. said that it had not. Kim said that L.W. "always watches a movie called 'Players Club' " and "[w]e would take it from her and [w]e would find her sneaking this movie and watching it." Kim denied that she had spanked Kenny with a belt for touching L.W.
By the time of the hearing, Kim had attended 10 therapy sessions. Dr. Kantor believed that Kim was a protective mother, but had seen only one of the Agency's reports and was unaware that Kenny had previously acted out sexually and that Kim initially disbelieved L.W.'s allegations of sexual abuse by Kenny. Dr. Kantor had not discussed sibling molestation with Kim.
The social worker believed that returning the children to Kim would present a high risk in light of the family's history of sexual abuse, which continued after Kim's participation in therapy in 2006; Kim's violation of the restraining order in Larry's criminal case; the true finding in Kenny's delinquency case; the number of children in the family and their ages; Kim's initial disbelief of L.W. and Kim's failure to protect and obtain treatment for L.W.; L.W.'s sexual acting out in the foster home by masturbating; and the fact that two-year-old L.R.W. was preverbal and L.W. might act out sexually with him. Additionally, 18-year-old Brian and 15-year-old K.C., who were living with Kim, presented a risk to K.A.C. and needed counseling. The social worker believed that before the children could be safely returned, Kim needed to work with a fully informed therapist on all aspects of sexual abuse, including abuse by children, and the children needed to attend sexual abuse counseling. L.W. was on a waiting list at Chadwick Center and K.A.C. had just begun individual therapy.
DISCUSSION
I
There Is Substantial Evidence to Support the Order Removing the Children From Kim's Custody
The juvenile court based its removal order on section 361, subdivisions (c)(1) and (c)(4). Under section 361, subdivision (c)(1), the court may remove a child from a parent's physical custody if it finds, by clear and convincing evidence, that "[t]here is or would be a substantial danger to the [child's] physical health, safety, protection, or physical or emotional well-being... if the [child] were returned home" and there are no reasonable means of protecting the child's physical health short of removal. (§ 361, subd. (c)(1).) Under section 361, subdivision (c)(4), removal is appropriate if there is clear and convincing evidence that the child or a sibling has been sexually abused, or is at substantial risk of being sexually abused, by a household member or other person known to the parent, and removal is the only reasonable means of protecting the child from further sexual abuse or a substantial risk of sexual abuse. (§ 361, subd. (c)(4).) In considering removal, the juvenile court must "focus... on averting harm to the child." (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, citations omitted, disapproved on another ground by Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.) The court is entitled to consider a parent's past conduct and current situation, and gauge whether he or she has progressed sufficiently to eliminate the risk to the children. (In re S.O. (2002) 103 Cal.App.4th 453, 461; cf. In re Jonathan R. (1989) 211 Cal.App.3d 1214, 1221.)
In the juvenile court, the Agency had the burden of showing, by clear and convincing evidence, that removal was necessary. On appeal, Kim and Larry have the burden of showing that there is no substantial evidence to support the removal order. (In re Diamond H., supra, 82 Cal.App.4th at p. 1135; In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
Kim participated in therapy after she was sexually abused as a child and again after Larry sexually abused K.C. in 2005. Kenny sexually acted out with K.C. in 1998, molested unrelated children in 2000, and by 2008 was in juvenile hall, accused of rape. These circumstances should have heightened Kim's awareness of sexual abuse, including sexual abuse by Kenny and among her children. However, when L.W. told Kim that Kenny had molested her, Kim did not believe her. Kim forced L.W. to confront Kenny, told them not to touch each other, and decided that she would supervise all future contact. Kim's response to L.W.'s allegations was insensitive, inadequate, and unrealistic.
At around the time of L.W.'s disclosure, Kim missed another opportunity to protect the children and address the family's longstanding cycle of abuse. When the Agency visited the home after a referral generated by Kenny's juvenile delinquency case, Kim said nothing about inappropriate sexual behavior occurring in the household. After the children were detained, Kim finally said that she believed L.W.'s disclosure and sought services. Even then, however, Kim withheld critical information from her therapist. This belies Kim's claim that she was committed to protecting the children.
If L.W., L.R.W., and K.A.W. were returned to Kim's household, they would be at substantial risk of sexual abuse. (§ 361, subd. (c)(4).) There would also be a substantial danger to their "physical health, safety, protection, or physical or emotional well-being." (§ 361, subd. (c)(1).) Kim repeatedly denied and minimized the sexual abuse that had occurred, and was continuing to occur, in her family, thereby demonstrating her inability to protect the children and her unwillingness to participate in therapy honestly. At the time of the hearing, it was unclear whether Kenny was still in juvenile hall or whether he would have access to Kim's home. L.W. was acting out sexually, and L.R.W. was too young to express himself if L.W. were to act out with him. Eighteen-year-old Brian and 15-year-old K.C., who had both been exposed to the family's lack of sexual boundaries, were living with Kim. None of the children had completed the counseling that the social worker believed they needed in order to deal with the family's history of abuse. Kim had allowed Larry to have contact with K.C., in violation of a restraining order, and saw no risk in allowing him to have unsupervised contact with L.W. and L.R.W. Kim's inability to set protective boundaries was further evidenced by the fact that Kenny possessed sexually-related movies in the home, and L.W. had repeated access to such movies. We conclude that there is substantial evidence to support the court's conclusion that, other than removing L.W., L.R.W., and K.A.W. from Kim's custody, there were no reasonable means of protecting them from a substantial risk of sexual abuse (§ 361, subd. (c)(4)) or protecting their physical health (§ 361, subd. (c)(1)).
Larry suggests that locking the bedroom doors at night would protect the children. There is no evidence, however, that the sexual abuse in the home occurred at night.
II
The Court Did Not Abuse Its Discretion in Denying Placement With Delores
In the juvenile court, Larry asked that the children be placed with Delores if they were not returned to Kim. Even if Larry has standing to raise this issue (compare Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1035 with In re Esperanza C. (2008) 165 Cal.App.4th 1042, 1053-1054), he cannot prevail.
When a child is removed from parental custody at the dispositional hearing, a relative requesting custody is entitled to preferential consideration (§ 361.3, subd. (a)), that is, "the relative seeking placement shall be the first placement to be considered and investigated." (§ 361.3, subd. (c).) "In determining whether placement with [the] relative is appropriate, the county social worker and court shall consider, but shall not be limited to," certain enumerated factors. (§ 361.3, subd. (a).) "The linchpin of a section 361.3 analysis is whether the placement with a relative is in the best interests of the minor." (Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 862-863.) We review the juvenile court's denial of placement with Delores under the abuse of discretion standard of review. (Id. at p. 863.)
Those factors are: "(1) The best interest of the child, including special physical, psychological, educational, medical, or emotional needs. [¶] (2) The wishes of the parent, the relative, and child, if appropriate. [¶] (3) The provisions of Part 6 (commencing with Section 7950) of Division 12 of the Family Code regarding relative placement. [¶] (4) Placement of siblings and half siblings in the same home, if that placement is found to be in the best interest of each of the children as provided in Section 16002. [¶] (5) The good moral character of the relative and any other adult living in the home, including whether any individual residing in the home has a prior history of violent criminal acts or has been responsible for acts of child abuse or neglect. [¶] (6) The nature and duration of the relationship between the child and the relative, and the relative's desire to care for, and to provide legal permanency for, the child if reunification is unsuccessful. [¶] (7) The ability of the relative to do the following: [¶] (A) Provide a safe, secure, and stable environment for the child. [¶] (B) Exercise proper and effective care and control of the child. [¶] (C) Provide a home and the necessities of life for the child. [¶] (D) Protect the child from his or her parents. [¶] (E) Facilitate court-ordered reunification efforts with the parents. [¶] (F) Facilitate visitation with the child's other relatives. [¶] (G) Facilitate implementation of all elements of the case plan. [¶] (H) Provide legal permanence for the child if reunification fails. [¶]... [¶] (I) Arrange for appropriate and safe child care, as necessary. [¶] (8) The safety of the relative's home." (§ 361.3, subd. (a).)
The court found that placement with Delores would be inappropriate "unless and until... there's a fundamental[ly] different appreciation of appropriate sexual boundaries generationally within the home...." This was not an abuse of discretion. When Kim was in grade school, Delores's boyfriend sexually abused Kim, and Kim was removed from the home. There is no further information in the record about the circumstances of this abuse, such as whether Delores participated in services. Delores's brother, who had a criminal record and a history of child abuse, was living with her at the time of the hearing. At the time L.W. was detained, Delores did not believe that L.W. had been sexually abused. Finally, Delores did not believe that the children were at risk of abuse.
DISPOSITION
The judgment is affirmed.
WE CONCUR: O'ROURKE, Acting P. J., IRION, J.
Statutory references are to the Welfare and Institutions Code unless otherwise specified.