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In re M.G.

California Court of Appeals, Second District, Fifth Division
Jul 29, 2011
No. B228712 (Cal. Ct. App. Jul. 29, 2011)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of the County of Los Angeles, No. CK83007, Marguerite Downing, Judge.

Karen B. Stalter, under appointment by the Court of Appeal, for Objector, Appellant, and Cross-Respondent F.G.

Linda J. Vogel, under appointment by the Court of Appeal, for Objectors, Appellants, and Cross-Respondents M.G. and O.G.


MOSK, J.

Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Tracey F. Dodds, Principal Deputy County Counsel, for Petitioner, Respondent and Cross-Appellant, Los Angeles County Department of Children and Family Services.

INTRODUCTION

M.G. and O.G. (children), and F.G. (mother), appeal, and the Department of Children and Family Services (Department) cross-appeals, from the judgment of October 12, 2010, declaring the children to be dependents of the juvenile court. The children and mother contend that there was not substantial evidence to support the juvenile court’s finding under Welfare and Institutions Code section 300, subdivision (b) that mother and J.G. (father) reasonably should have known that the children were being sexually abused and they had failed to protect the children. The children and mother also contend that there was not substantial evidence to support the finding that there was a current risk of harm to the children. In addition, mother contends that the count under section 300, subdivision (d) should be dismissed because the juvenile court struck the petition allegations specifically asserted against mother and father. On its cross-appeal, the Department contends that the juvenile court erred in striking the section 300, subdivision (d) petition allegations asserted against mother and father. We affirm.

All statutory references are to the Welfare and Institutions Code, unless otherwise indicated.

FACTUAL AND PROCEDURAL BACKGROUND

The Department’s July 9, 2010, detention report provided that the children, both 17 years old at the time, came to the Department’s attention after the Department received an immediate referral that they had been sexually abused by their sister’s boyfriend, J.A. An arrest report by the Los Angeles Police Department (LAPD) stated that on July 6, 2010, LAPD officers responded to a radio call that there was a child molestation suspect at the children’s home. When the police officers arrived at the children’s home, O.G. told them that J.A. had sexually molested him since he was nine years old. J.A. made O.G. watch pornography, forced O.G. to masturbate in front of J.A., and performed oral sex on O.G. O.G. said that no one in the family knew and the abuse stopped approximately one year ago.

According to the arrest report M.G. said that he was about 10 years old when he was first sexually molested by J.A. J.A. forced M.G. to engage in oral copulation and M.G. was sodomized by J.A.

The LAPD’s arrest report stated that the children’s sister, P.A., said that she and J.A. had been dating for eight or nine years but they recently married. When one of the police officers told P.A. about the abuse allegations, P.A. said that she believed that O.G. was making the allegations to “act out” and he was fabricating them. P.A. did not say anything about M.G.

The LAPD’s arrest report stated that mother said that she believed that O.G. was a troublemaker and a liar. When mother was advised that M.G. made sexual abuse allegations similar to those made by O.G., mother appeared to be genuinely surprised and shocked, and she said that she did not believe M.G. would lie about something like that.

J.A. was arrested for violating Penal Code section 288, subdivision (a) (lewd acts with a child). The police officers detained the children and placed them in protective custody.

The arrest report provided detailed statements that the children made at the police station about the alleged sexual abuse. M.G. told the police officers that J.A. forced him to watch pornography and that there were approximately 50 incidents when J.A. forced M.G. to engage in sodomy and oral copulation. M.G. stated that the last sexual encounter he had with J.A. occurred approximately one and one-half years ago when M.G. accompanied J.A. on a trip to Las Vegas. M.G. said that since that trip, J.A. had been harassing him and asking for sex. M.G. said that J.A. took away M.G.’s cellular telephone and J.A. told M.G. he would only return the telephone to M.G. if M.G. performed sexual acts on J.A.

According to the arrest report, O.G. said that he was approximately nine years old when J.A. began sexually abusing him. O.G. detailed events during which J.A. performed oral sex on him and forced O.G. to masturbate while J.A. watched. O.G. said that he did not tell anybody about the sexual abuse because J.A. told him that O.G.’s family, including M.G., disliked him and did not want him in the house, and O.G. believed that his family would call him a liar if he said anything. On one occasion J.A. told O.G. that J.A. would sexually abuse M.G. if O.G. did not keep quiet about the abuse. O.G. said that he was afraid and told J.A. that he would keep quiet and would let J.A. perform sexual acts on O.G. as long as J.A. did not do anything to M.G. O.G. said that his last sexual encounter with J.A. occurred approximately one year ago when O.G. accompanied J.A. on a trip to Arizona. O.G. said that since that trip, J.A. had been “bugging” him for sex. O.G. said that several years ago he began to suspect that J.A. was also sexually abusing M.G. because O.G. saw that J.A. was spending time alone with M.G. and M.G. began to accumulate expensive items such as video games and a cellular telephone.

The Department’s July 9, 2010, detention report stated that O.G. said that when he was 10 years old, J.A. told him to masturbate in front of him, and when O.G. was 13 and 14 years old J.A. tried to sodomize him. O.G. also said that on three occasions in 2009, J.A. orally copulated him.

According to the detention report M.G. said that when he was 10 years old J.A. told him to orally copulate J.A., and when M.G. was in the sixth grade he orally copulated J.A. on at least 10 occasions. J.A. would also touch M.G.’s penis. J.A. offered M.G. money and video games so that M.G. would allow J.A. to do whatever he wanted. M.G. did not disclose the sexual abuse to anyone because J.A. told M.G. not to tell anyone, and M.G. was scared.

The detention report also stated that on July 6, 2010, mother said that she was not aware of any abuse to the children and did not believe that anything had happened to them. Father stated that he did not believe that the children were abused and believed that the children were lying.

On July 9, 2010, the Department filed a petition under section 300, subdivisions (b), (d), and (j). The petition alleged, inter alia, that J.A. had sexually abused the children repeatedly since they were nine or ten years old and mother and father had failed to take action to protect the children when mother and father knew or should have known about the sexual abuses. The Department’s July 9, 2010, addendum report recommended that mother and father participate in individual counseling, sexual abuse awareness counseling, and parenting classes.

Each of the counts alleged in the petition under section 300, subsections (b), (d), and (j) regarding M.G. contained the identical language, stating that, “The child, [M.G.] was sexually abused by an unrelated male, [J.A.] since the child was 10 years old. [J.A.] repeatedly sodomized the child by placing [J.A.’s] penis in the child’s anus. On numerous prior occasions, [J.A.] forced the child to orally copulate [J.A.’s] penis. On prior occasions, [J.A.] touched the child’s penis. On a prior occasion, [J.A.] forced the child to view pornographic material. The child’s mother, [F.G.] and father, [J.G.], failed to take action to protect the child when they knew or reasonably should have known of the ongoing sexual abuse of the child by [J.A.]. Such sexual abuse of the child by [J.A.] and the parents’ failure to protect the child endangers the child’s physical and emotional health and safety and places the child and the child’s sibling, [O.G.] at risk of physical and emotional harm, damage, danger, sexual abuse and failure to protect.”

At the July 9, 2010, arraignment and detention hearing, mother’s counsel asserted that although mother initially did not believe O.G. when he said that he had been sexually abused by J.A., she now believed the children, particularly because M.G. had confirmed O.G.’s statements of sexual abuse. Mother’s counsel also explained that mother did not want to see J.A. again. Father’s counsel stated that J.A. had lived in a separate section of the family home, but that J.A. was currently incarcerated and father had no intention of allowing J.A. to return to the family home. The juvenile court ordered the Department to provide mother and father with family reunification services.

The Department’s July 30, 2010, jurisdiction/disposition report provided that J.A. was being detained at jail on $5,000,000 bond, and the children continued to be detained in a foster home. Father said that J.A. and P.A. had lived together in the family home for “two or three years, ” and three months ago J.A. and P.A. moved to reside in the upstairs portion of the home. Father said that P.A. was moving out of the upstairs of the home and that she continued to assert J.A.’s innocence.

The jurisdiction/disposition report also stated that mother said that J.A. had unsupervised contact with the children, J.A. and the children were always together, and approximately three years ago the children went on day-long and overnight trips with J.A. Mother said that she had known J.A. for over 10 years, had no concerns about him, and never knew about J.A.’s sexual abuse of the children.

According to the jurisdiction/disposition report, mother stated that since April 2010, O.G. had been angry with J.A. and P.A. After J.A. and P.A. moved into the upstairs portion of the family home, O.G. told mother that he would get upset if J.A. was in the house and he no longer wanted J.A. there. O.G. would not tell mother why he did not want J.A. in the house, but mother stated that O.G. told her that he knows “ugly things” that he could not tell mother.

The jurisdiction/disposition report also provided that on July 6, 2010, the day O.G. first reported to the LAPD and the Department that J.A. had been sexually molesting him, mother stated that O.G. told her that J.A. had been abusing him since he was nine years old. O.G. and mother went upstairs and confronted J.A. and P.A., who denied the abuse. P.A. told O.G. to call the police, and O.G. did so.

The July 30, 2010, jurisdiction/disposition report stated that mother and father had enrolled in and were attending family counseling and a parent enhancement program. Mother and father stated that they were also attending a 12-week parenting class, and mother said that they had enrolled in a sexual abuse awareness program.

The jurisdiction/disposition report provided further that L.G., the children’s adult sister, stated that the children were not ready to go back home because P.A. still lived there. At the July 30, 2010, mediation and adjudication hearing, the children’s attorney requested, and the juvenile court ordered, that the children be released to L.G.

The Department’s October 12, 2010, addendum report stated that mother and father had enrolled in and were attending family counseling and a parent enhancement program. According to report, the Department recommended that mother and father be offered family reunification services and that the juvenile court order mother and father to continue to participate in parenting classes, and both individual and sexual awareness counseling, “to address case issues.”

At the October 12, 2010, continued adjudication hearing, the Department’s July 9, 2010 detention report, the July 30, 2010, jurisdiction/disposition report, and the October 12, 2010, addendum report were admitted into evidence. The parties’ counsel argued whether there was sufficient evidence for the juvenile court to find jurisdiction under section 300, subsections (b) and (d). The children’s counsel argued, inter alia, that that there was insufficient evidence that there was a risk that the abuse would continue, stating that, “[J.A.] is incarcerated. And after speaking to the [district attorney], he’s expected to be in prison for a very long time. The charges [that] she indicated... she has filed will be carrying a life sentence.”

Upon the conclusion of counsel’s argument, the juvenile court stated that although mother and father did not know of the sexual abuse of the children, the children “were fairly adamant that had they told their parents [about the abuse], they wouldn’t have been believed.... [¶] I also note in the juris[diction]/dispo[sition] report that... O.M. approached his mother and said he no longer wanted [J.A.] in the house. Wouldn’t say why, but just said he knew some ugly things.... [I]t appears that that should have been a red flag to the parents.”

The juvenile court amended the allegations of the petition under section 300, subsection (b) from alleging that mother and father “knew or reasonably should have known of the ongoing sexual abuse” to allege that mother and father “reasonably should have known of the ongoing sexual abuse.” The juvenile court sustained the amended allegations.

In addition, the juvenile court struck from the petition the allegations under section 300, subsection (d) that, “The child’s mother, [F.G.] and father, [J.G.], failed to take action to protect the child when they knew or reasonably should have known of the ongoing sexual abuse of the child by [J.A.].” The juvenile court also struck the allegations under subsection (d) that mother and father had failed to protect the children. The juvenile court sustained the amended allegations. The juvenile court found that the children are persons described by section 300, declared the children to be dependants of the judicial court, and ordered that the children be placed in the custody of mother and father.

The juvenile court also struck the entirety of the petition allegations under section 300, subsection (j).

The juvenile court ordered that mother and father continue and complete the programs in which they were currently enrolled consisting of individual counseling to address case issues and sexual abuse awareness, counseling in conjunction with the children, and a parenting education program. The juvenile court also ordered that Department provide mother and father with family maintenance services.

DISCUSSION

The children and mother contend that there was not substantial evidence to sustain the juvenile court’s finding in the section 300, subdivision (b) count, and mother contends that the count under section 300, subdivision (d) should be dismissed. The Department contends that the juvenile court erred in striking the section 300, subdivision (d) petition allegations asserted against mother and father.

A. Standard of Review

In determining whether substantial evidence supports the factual findings, “all intendments are in favor of the judgment and [we] must accept as true the evidence which tends to establish the correctness of the findings as made, taking into account as well all inferences which might reasonably have been drawn by the trial court.” (Crogan v. Metz (1956) 47 Cal.2d 398, 403-404.) “‘“[T]he [appellate] court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence... such that a reasonable trier of fact could [make the findings made].”’ [Citations.]” (In re Matthew S. (1988) 201 Cal.App.3d 315, 321.) “[I]ssues 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., supra, 201 Cal.App.3d at p. 321.) If supported by substantial evidence, the judgment or finding must be upheld, even though substantial evidence may also exist that would support a contrary judgment and the dependency court might have reached a different conclusion had it determined the facts and weighed credibility differently. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) Thus, the pertinent inquiry when a finding is challenged on sufficiency of the evidence grounds is whether substantial evidence supports the finding, not whether a contrary finding might have been made. (Ibid.)

B. Analysis

The children and mother contend that there was not substantial evidence to sustain the juvenile court’s finding on the section 300, subdivision (b) count that mother and father should have reasonably known that the children were being sexually abused by J.A. and they had failed to protect the children. We disagree.

Section 300, subdivision (b), states, in relevant part: “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... to adequately supervise or protect the child.... The child shall continue to be a dependent child pursuant to this subdivision only so long as is necessary to protect the child from risk of suffering serious physical harm or illness.” The purpose of the juvenile court law is to provide “maximum safety and protection for children” being harmed or who are at risk of harm. (§ 300.2)

Mother said that she had not been aware of any sexual abuse of the children before July 6, 2010. 17 year old O.G., however, suspected several years ago that J.A. had been molesting M.G. because O.G. saw that J.A. was spending time alone with M.G. and M.G. began to accumulate expensive items such as video games and a cellular telephone.

Although the evidence showed that the sexual abuse of O.G. and M.G. stopped in approximately July 2009, and January, 2009, respectively, both the children stated that since those time frames J.A. had been asking them for sex. In April 2010, O.G. told mother that he would get upset if J.A. was in the house and he no longer wanted J.A. there. O.G. would not tell mother why he did not want J.A. in the house, but O.G. told mother that he knew “ugly things” that he could not tell mother. As the trial court stated, “that should have been a red flag to the parents.” But the parents did not react.

The evidence also showed that on July 6, 2010, O.G. told mother that J.A. had been sexually abusing him since O.G. was nine years old. O.G. and mother confronted J.A. and P.A., who denied the abuse. Mother, however, did not believe O.G. Mother told the police officers that she believed that O.G. was a troublemaker and a liar.

When one of the police officers advised mother that M.G. had made sexual abuse allegations similar to those made by O.G., mother appeared to be genuinely surprised and shocked, and she said that she did not believe M.G. would lie about something like that. Mother, however, thereafter told the Department that she did not believe anything had happened to the children. Father also told the Department that he did not believe that the children were abused and that he believed the children were lying.

The children and mother also contend that there was not substantial evidence that there was a present risk of harm to the children because there was no reason to believe that the abusive conduct might continue in the future given that J.A. was incarcerated at the time of the hearing and mother and father believed the children’s allegations of sexual abuse by J.A. We disagree.

“‘The statutory definition [in section 300, subdivision (b)] consists of three elements: (1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) “serious physical harm or illness” to the minor, or a “substantial risk” of such harm or illness.’ (In re Rocco M. (1991) 1 Cal.App.4th 814, 820 [2 Cal.Rptr. 429].) The third element ‘effectively requires a showing that at the time of the jurisdiction 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). [Citations.]’ [Citation.] Section 300, ‘subdivision (b) means what it says. Before courts and agencies can exert jurisdiction under section 300, subdivision (b), there must be evidence indicating that the child is exposed to a substantial risk of serious physical harm or illness.’ [Citation.]” [Citation.]’” (In re David M. (2005)134 Cal.App.4th 822, 829.)

On October 12, 2010, the children’s counsel told the juvenile court that J.A. was still incarcerated, and that the district attorney “indicated” to the children’s counsel the criminal charges that had been filed against J.A. Based thereon, the children’s counsel opined that J.A. would be “in prison for a very long time, ” and that J.A. was charged with crimes for which the potential sentence was life in prison. The record, however, does not contain evidence of these facts.

In addition, as discussed ante, sufficient evidence supports the juvenile court’s findings that mother and father had failed to protect the children. There is a substantial risk that the children would be abused in the future, whether by J.A. or someone else, because mother and father had not completed their ordered programs to learn how to protect the children against sexual abuse. At the October 12, 2010, continued adjudication hearing, the juvenile court ordered that mother and father continue and complete several programs designed “to address case issues and sexual abuse awareness.”

Also, there is no evidence in the record that mother no longer believed O.G. generally was a liar and a troublemaker. Assuming at the time of the October 12, 2010, adjudication hearing mother believed O.G.’s allegations of prior sexual abuse by J.A., there is no evidence that she would believe O.G. if he made claims of sexual abuse in the future or that she would adequately protect the children from the abuse. Therefore, there was substantial evidence of a substantial risk that the children would be abused in the future.

Mother’s contention that the count under section 300, subdivision (d) should be dismissed because the juvenile court struck the petition allegations specifically asserted against mother and father and the Department contention that the juvenile court erred in striking the section 300, subdivision (d) petition allegations asserted against mother and father, are moot. “When a dependency petition alleges multiple grounds for its assertion that a minor comes within the dependency court’s jurisdiction, a reviewing court can affirm the juvenile court’s finding of jurisdiction over the minor if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence. In such a case, the reviewing court need not consider whether any or all of the other alleged statutory grounds for jurisdiction are supported by the evidence.” (In re Alexis E. (2009) 171 Cal.App.4th 438, 451; accord, In re Andy G. (2010) 183 Cal.App.4th 1405, 1415, fn. 6.) Because the juvenile court did not err in finding jurisdiction over the children under section 300, subdivision (b), we do not decide the contentions of mother and the Department regarding section 300, subdivision (d).

DISPOSITION

The juvenile court’s judgment is affirmed.

We concur: ARMSTRONG, Acting P. J., KRIEGLER, J.

Each of the counts alleged in the petition under section 300, subsections (b), (d), and (j) regarding O.G. contained the identical language, stating that, “The child, [O.G] was sexually abused by an unrelated male, [J.A.] since the child was 9 years old. On numerous prior occasions, [J.A.] orally copulated the child’s penis. On prior occasions, [J.A.] forced the child to masturbate in the presence of [J.A.]. On a prior occasion, [J.A.] attempted to sodomize the child by placing [J.A.’s] penis in the child’s anus. On a prior occasion, [J.A.] forced the child to view pornographic material. [J.A.] threatened to sexually abuse the child’s sibling, [M.G.] if the child disclosed the sexual abuse of the child by [J.A.]. The child’s mother, [F.G.] and father, [J.G.], failed to take action to protect the child when they knew or reasonably should have known of the ongoing sexual abuse of the child by [J.A.]. Such sexual abuse of the child by [J.A.] and the parent’s [sic] failure to protect the child endangers the child’s physical and emotional health and safety and places the child and the child’s sibling, [M.G.] at risk of physical and emotional harm, damage, danger, sexual abuse and failure to protect.”


Summaries of

In re M.G.

California Court of Appeals, Second District, Fifth Division
Jul 29, 2011
No. B228712 (Cal. Ct. App. Jul. 29, 2011)
Case details for

In re M.G.

Case Details

Full title:In re M.G., a Person Coming Under the Juvenile Court Law. LOS ANGELES…

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

Date published: Jul 29, 2011

Citations

No. B228712 (Cal. Ct. App. Jul. 29, 2011)