Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from the judgments of the Superior Court of Los Angeles County, Albert Garcia, Juvenile Court Referee, County Super. Ct. No. CK67720
John Cahill, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and O. Raquel Ramirez, Deputy County Counsel, for Plaintiff and Respondent.
KRIEGLER, J.
Maria O. (mother) appeals from the judgment of June 12, 2007, declaring her three daughters, Mary C., X. O., and A. O., dependents of the court under Welfare and Institutions Code section 300. She contends substantial evidence does not support the sustained jurisdictional allegations against her of failure to protect from sexual abuse and inability to provide care and supervision, and the order requiring her to participate in sexual abuse awareness counseling. As substantial evidence supports the findings and order, we affirm the judgment and orders.
We refer to X. O. and A. O. by their initials as their first names are unusual and could reveal their identities.
All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
STATEMENT OF FACTS AND PROCEDURE
Mary was born in 1991 to Jorge C. and mother. X. was born in 1994 and A. was born in 1996 to Ernesto O. and mother, who were married. Mother and Ernesto separated in 2002.
Neither Jorge nor Ernesto appealed.
Mother and her sisters were sexually abused by family members when they were children. Mother was physically and emotionally abused by maternal grandmother. At age 12, mother moved in with Jorge. They were together for eight years. Jorge was a drug addict and physically, sexually, and emotionally abusive. Mother and Jorge had their first child, George, when mother was 14, and their next child, Mary, when mother was 19. Mother left Jorge when Mary was six months old.
George is not a subject of this appeal.
Mother, Mary, and George moved in with Ernesto when Mary was one and a half years old. They lived together for ten years, during which time X. and A. were born. Mother physically and verbally abused Ernesto. Mary was sexually molested by maternal uncle Pedro when she was four years old and by George when she was nine. Mother and Ernesto separated in 2001 or 2002.
Ernesto and mother shared custody after the separation,. Mary resided in both parent’s homes. When Mary was 11 years old, Ernesto began sexually molesting her, frequently engaging in sexual intercourse and having Mary perform oral sex. Mary tried to kill herself on one occasion while residing in Ernesto’s home. In January 2003, it was disclosed that Mary was sexually abused by an unknown perpetrator. The allegation was found to be inconclusive. In July 2003, it was disclosed that Mary was sexually molested by George, and X. and A. were sexually abused by Ernesto’s cousin, Tony. These allegations were substantiated. In September 2005, the Department of Children and Family Services investigated an allegation that Mary was sexually abused by an unnamed individual. The referral was closed as unfounded, as the family was receiving voluntary services. The family was referred to counseling, which they participated in for two years, until January 2007. Mother and her therapist suspected Ernesto was sexually abusing Mary because Ernesto permitted Mary to verbally abuse him and Ernesto catered to Mary, treating her better than he treated his biological daughters. Mary denied the abuse when questioned by mother and mother’s therapist.
Penal Code section 11165.12 provides: “As used in this article [concerning reports of suspected child abuse or neglect], the following definitions shall control: [¶] (a) ‘Unfounded report’ means a report that is determined by the investigator who conducted the investigation to be false, to be inherently improbable, to involve an accidental injury, or not to constitute child abuse or neglect, as defined in Section 11165.6. [¶] (b) ‘Substantiated report’ means a report that is determined by the investigator who conducted the investigation to constitute child abuse or neglect, as defined in Section 11165.6, based upon evidence that makes it more likely than not that child abuse or neglect, as defined, occurred. [¶] (c) ‘Inconclusive report’ means a report that is determined by the investigator who conducted the investigation not to be unfounded, but the findings are inconclusive and there is insufficient evidence to determine whether child abuse or neglect, as defined in Section 11165.6, has occurred.”
The Department began providing voluntary family maintenance services, such as counseling referrals and public assistance services, in March 2005. The record does not reveal the frequency of the Department’s contact with Mary or mother during this period.
In January 2007, when Mary was living in mother’s home, Mary tried to kill herself. In a suicide note she stated: “I’m sorry mom for causing you trouble. But I just came here [to] suffer. And I’m sorry dad [for] never thanking you [for] what you have [done for] me. Tell X. I love her. I just didn’t want her [to] go [through] what I went [through]. . . . Well if I don’t make it I will be watching over you guys and just think about me being in a better place.”
Mary returned to mother’s home upon release from the hospital after the suicide attempt, but she did not take her prescribed psychiatric medicines. Mary was angry, defiant, and irresponsible, and refused to follow rules. Mary had a history of physically assaulting X. and A., behavior mother was unable to control. Mary had a serious truancy problem. The situation in mother’s home escalated, and mother needed further assistance with Mary. Mother arranged with Ernesto for Mary and X. to alternate residences so that the two girls would not be in the same household at the same time.
In April 2007, Mary’s boyfriend disclosed to mother that Ernesto sexually molested Mary when she resided with Ernesto. Mother filed a police report.
Mother told the dependency investigator that “she was not aware of the sexual abuse [but] she did suspect something was wrong because Mary could control Ernesto. [Mary] would call him names and mistreat him, and Ernesto would let her. He at times treated her better than his own daughters (X. and A.). [Mother] stated, ‘I thought that maybe she knew something about him like he was drinking or smoking and he didn’t want her to say anything.’ Mother states she asked Mary several times if Ernesto was touching her but she always denied it. She indicates it was not until several weeks ago that Mary stole Ernesto’s credit card and when she got caught she stated, ‘he deserves it.’ Mother indicates that was a typical response from Mary but this time when she pressured Mary she told her to talk to her boyfriend Jordan. Jordan told [mother] about the sexual abuse but that Mary was getting everything she wanted out of [Ernesto].” The dependency investigator believed that mother knew of the sexual abuse as it was occurring: “[T]here [were] a lot of signs that . . . Mary was exhibiting control of [Ernesto] . . . going above and beyond what he would do for his own daughters. Mom and therapist had a huge suspicion that Mary was being sexually abused by [Ernesto]. Based on mom’s history of sex abuse of her own, I think mom knew.”
The Department detained A. and X. with mother on April 9, 2007. Initially, Mary was placed in a group home because mother could not cope with Mary’s behavior and did not want Mary in the home. Mother recognized Mary had “many serious issues” and feared what Mary might do to X. if both were together in her home. After a brief court appearance in Ernesto’s criminal case on May 2, 2007, Mary had an anxiety attack necessitating treatment in the emergency room. Mary was released to mother on May 8, 2007, with the Department providing case management services and counseling referrals.
On June 12, 2007, after a hearing, the children were declared dependents of the court under section 300, subdivisions (b), and (j) as to mother, based on the following sustained allegations: on numerous prior occasions since she was 11 years old, Mary was sexually abused by Ernesto, and mother knew or reasonably should have known of the sexual abuse and failed to protect Mary; Mary has emotional problems including suicide attempts, and mother is unable to provide her with ongoing care as a result of Mary’s emotional problems; and mother’s failure to protect Mary and inability to provide Mary with ongoing care placed X. and A. at risk of physical harm and sexual abuse. The dependency court found that mother should have done more to protect Mary: “[I]f you know someone is doing something, you suspect it, you see it, you need to take other action. And there are other things you could have done. . . . The main thing is you should have known. [¶] You knew, you had a great suspicion of it, and you didn’t take further steps. Just the counseling was not going to solve these problems. There are other steps you needed to take.”
The children were placed in home-of-parent mother, the Department was ordered to provide family maintenance services as to mother, and mother was ordered to participate in counseling, including individual counseling to address sexual abuse awareness for non-perpetrators. This timely appeal followed.
DISCUSSION
Substantial Evidence Supports The Sustained Allegations Against Mother
A. Failure to Protect from Sexual Abuse
Mother contends substantial evidence does not support sustained allegation b-1 under section 300, subdivision (b) that “[o]n numerous prior occasions since [Mary] was eleven years old the child was sexually abused by [Ernesto], including [Ernesto] engaging in sexual intercourse. [Mother] knew or should reasonably have known that [Ernesto] was sexually abusing the child and failed to take action to protect the child.” Mother does not challenge that Ernesto sexually abused Mary, but does challenge the allegation concerning her role. We conclude substantial evidence supports the allegations.
Section 300, subdivision (b) describes, inter alia, a child who is at substantial risk of suffering serious physical harm or illness as a result of the parent’s failure “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[.]”
“In reviewing the jurisdictional findings and the disposition, 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. [Citation.]” (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) “We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court.” (In re Matthew S. (1988) 201 Cal.App.3d 315, 321.)
Concerning mother’s role, the reports admitted into evidence at the jurisdictional hearing revealed the following facts. Mother had firsthand knowledge of the dynamics of incest, as she and her sisters had been sexually molested by family members. Mother learned in 2003, from the Department’s investigations, that Mary was molested by George and that perhaps there was an additional man who was molesting Mary. Mother acknowledged that she suspected Ernesto and asked Mary about it. Her questioning of Mary indicates mother had a belief, or at least a strong suspicion, that sexual abuse by Ernesto was occurring. Mary’s suicide note, referring to her “suffer[ing],” and desire that X. not suffer similarly, further suggested a family member who currently had access to the girls had sexually abused Mary. The foregoing is evidence mother knew or should have known Ernesto sexually molested Mary. The fact mother arranged for Mary to reside in Ernesto’s home and the lack of any suggestion in the record that mother confronted Ernesto shows that mother failed to protect Mary from the risk Ernesto would sexually molest Mary.
The circumstance that the men who sexually preyed on the children did not pose a current risk because they were either dead or in custody does not establish that Mary was not currently at risk. (See In re Rocco M. (1991) 1 Cal.App.4th 814, 824 [there must be evidence of a current risk of harm].) It is mother’s failure to protect Mary from Ernesto when mother knew or should have known Ernesto sexually molested Mary that created the current risk that mother would not protect Mary from being preyed on in the future by other sexual predators.
There was evidence that Ernesto was in custody on pending charges arising out of this case, George was locked up in a facility, Pedro was dead, and Tony was in jail awaiting trial.
Mother argues that there is evidence she did not reasonably know of the sexual abuse and did not fail to protect because the family had been receiving voluntary family maintenance services since March 2005; the September 2005 sex abuse allegations were determined to be unfounded; Mary and mother were in counseling from 2005 to 2007; and mother discussed her suspicions with her therapist and asked Mary about them, but Mary denied Ernesto’s role. She contends this evidence establishes mother did all she could to protect Mary. The contention is but a request that we reweigh the evidence, which we will not do. Since substantial evidence supports the finding that mother knew or reasonably knew of the abuse and failed to protect Mary, we must affirm.
B. Inability to Provide Ongoing Care Due to Mary’s Emotional Problems
Mother also contends substantial evidence does not support sustained allegation b-2 that Mary “has mental and emotional problems including suicidal ideation and suicide attempts. [Mother] is unable to provide the child with ongoing care and supervision due [to] the child’s mental and emotional problems. The mother’s inability to provide care and supervision for the child endangers the child’s physical and emotional health and safety and places the child and the child’s siblings, X. . . . and A. . . . at risk of physical harm, damage and danger.” Substantial evidence supports the allegation.
The reports admitted into evidence at the jurisdictional hearing revealed the following facts. Mary had serious emotional problems. She had a history of suicide attempts, assaultive behavior on her sisters, defiance of authority, truancy, and refusal to take her psychiatric medications. These problems were current and occurred while in mother’s care. A month before the hearing Mary had an anxiety attack. Mother recently acknowledged that she could not handle Mary and Mary’s presence in the home threatened X.’s safety. Mother failed to insure that Mary took her medications, attended school, and did not assault X. For much of Mary’s life, mother had not been a psychological mother to Mary, because of the abuse in her own life. Mother had ongoing depression issues. Mother’s therapist indicated the family was “highly dysfunctional” and mother “at times is not able to deal with the stresses of Mary’s behaviors.” This is evidence that Mary had substantial mental and emotional problems which mother was unable to cope with, and mother’s inability to cope placed all three girls at risk of physical harm. The fact that Mary was released to mother’s custody a month before the jurisdictional hearing, under Department supervision and dependency court oversight, does not establish that mother was able to provide ongoing care and supervision for Mary absent the supervision and services the Department and dependency court provided. Thus, substantial evidence supports the sustained allegation in b-2.
Mother further contends that the sustained allegations under section 300, subdivision (j) [sibling abuse] must be stricken as to mother because the section 300, subdivision (b) allegations are unsupported. Since substantial evidence supports the section 300, subdivision (b) allegations, we reject mother’s contention.
Substantial Evidence Supports the Dispositional Order
Mother contends substantial evidence does not support the order for sexual abuse awareness counseling. The record contains substantial evidence supporting the order.
Section 362, subdivision (c) provides in pertinent part: “The juvenile court may direct any and all reasonable orders to the parents or guardians of the child who is the subject of any proceedings under this chapter as the court deems necessary and proper to carry out the provisions of this section[.] That order may include a direction to participate in a counseling or education program . . . . The program in which a parent or guardian is required to participate shall be designed to eliminate those conditions that led to the court’s finding that the child is a person described by Section 300.”
The dependency court admitted the following additional evidence at the dispositional phase of the proceedings. On April 27, 2007, after it was confirmed that Ernesto molested Mary, mother was directed to enroll the children in a Child Sexual Abuse Program, but she failed to do so. She also failed to insure that Mary attended individual therapy and was not aware Mary was skipping school. The foregoing indicates mother did not yet understand her role in protecting Mary from further abuse. As the children were made dependents of the court as a result of, inter alia, sexual abuse, the evidence further demonstrates that such a counseling program was designed to eliminate the conditions leading the dependency court jurisdiction.
DISPOSITION
The judgment is affirmed.
We concur: TURNER, P. J., ARMSTRONG, J.