Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. CK79561, Marilyn H. Mackel, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Lori Siegel, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Navid Nakhjavani, Deputy County Counsel, for Plaintiff and Respondent.
ASHMANN-GERST, J.
In this appeal, Kristi W. (mother) challenges the juvenile court’s jurisdictional findings made pursuant to Welfare and Institutions Code section 300, subdivisions (a), (b), and (d) pertaining to her daughter, R.W. (born Dec. 1993).
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
We conclude that the juvenile court’s findings are supported by substantial evidence. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Children
In addition to R.W., mother has four children: Danielle M. (Danielle, born July 2005), who resides with mother and Danielle’s father, mother’s boyfriend Daniel M. (Daniel); Samuel W. (Samuel), who mother gave to his maternal grandparents following his birth as mother was unable to care for him; Erica G., who died when she was five years old as a result of an intestinal condition with which she was born and who since birth had been in her father’s custody; and A.W., who mother gave up for adoption at birth. Only R.W. is the subject of this appeal.
Referral of Abuse and Placement of R.W. in Protective Custody
On August 20, 2009, R.W. was taken to Aurora Charter Oak Hospital (Aurora) because of suicidal ideations. During her intake interview, R.W., who did not and does not live with mother, disclosed that when she had gone to visit mother six months earlier, Daniel had touched her vaginal area and made inappropriate sexual comments to her. The Los Angeles Department of Children and Family Services (DCFS) received a referral alleging that R.W. had been a victim of sexual abuse.
Interview with R.W.’s maternal great-grandmother
The DCFS social worker interviewed R.W.’s maternal great-grandmother, Barbara R. (Barbara), who disclosed that R.W. lived with her maternal grandmother from the time of her birth until 2007, when the maternal grandmother passed away. Since then, R.W. had been living with Barbara.
Barbara stated that she was unaware that R.W. had been visiting mother. Apparently, R.W.’s boyfriend had taken her to see mother without Barbara’s permission. She also reported that she learned of the incident between R.W. and Daniel in July 2009 and although R.W. did not disclose any details to Barbara, she did tell her that Daniel had touched her and mother was going to call the police.
Barbara further stated that had she known that R.W. was visiting mother, she would not have allowed it because mother was using drugs. R.W. and Samuel were both born with positive toxicology screens for drugs and were left in the maternal grandmother’s home. Mother had written a note indicating that she was giving the maternal grandmother custody of the two children. At that time, mother was homeless and addicted to methamphetamines. Neither Barbara nor the maternal grandmother had ever filed for legal custody or guardianship of R.W.
Interview with R.W.
Next, the social worker spoke with R.W. She disclosed that Daniel had made numerous inappropriate sexual comments towards her. Specifically, she was sitting in the computer room in mother’s house when Daniel went in and sat down on a sofa behind her. R.W. stated that she kept pulling her shirt down in the back because she felt that Daniel was watching her from behind. She said that Daniel began asking her “‘sexual stuff, ’” such as whether she was still a virgin by asking her if she had had her “‘cherry popped.’” He also explained to her how to “‘please a guy.’” He asked R.W. if she would let him take her virginity; he told her that he could “‘pop’” her “‘cherry’” very quickly. R.W. became upset and began yelling at him. She further disclosed that Daniel told her that he could make love to her like no other man could; he said he could make her feel good. This incident occurred while mother was sleeping in another room. R.W. denied that Daniel ever physically touched her.
R.W. told the DCFS social worker that she had disclosed the incident to mother, who became upset. Mother confronted Daniel, who simply laughed and downplayed the situation as if it were a joke. According to R.W., mother did not do anything further.
R.W. stated that on another occasion, Daniel tried to make her use “‘crystal meth.’” She never disclosed that incident to mother because she feared what Daniel would do. R.W. described Daniel as very abusive and indicated that she had witnessed Daniel spitting in mother’s face, cursing at her, and hitting her. R.W. believed that mother was afraid of Daniel.
Finally, R.W. expressed concern about Danielle, who lived with mother and Daniel.
Interview with Daniel
On September 23, 2009, the social worker interviewed Daniel. He denied ever touching R.W. Regarding the incident R.W. had previously described, Daniel stated that he was having a conversation with R.W. about boys and was telling her that her virginity was “‘very important’” and that she should “‘treat it like a gem.’” He revealed that he had previously worked with youth and helped many children with issues. He stated that he would not jeopardize his relationship with mother and Danielle by touching a minor. He acknowledged that he made a mistake by talking about sex with R.W. because she had taken the conversation out of context. He speculated that R.W.’s boyfriend may have put those thoughts in her head.
Interview with Aurora nurse
On October 13, 2009, the social worker spoke with the Aurora nurse to whom R.W. had made the disclosure of sexual abuse. According to the nurse, R.W. stated that Daniel had touched her and told her “‘dirty stuff.’” R.W. did not elaborate on what sort of “‘dirty stuff, ’” but R.W. was very mad and made threats against Daniel.
Interview with mother
Three days later, DCFS interviewed mother via telephone. The social worker noted that she could hear Daniel’s voice in the background and concluded that mother was not alone during the interview. Mother stated that R.W. had told her that Daniel had said something to her about her virginity, but had not disclosed anything further. Mother was not certain who R.W.’s biological father was.
Mother further stated that she never reunified with R.W. because the maternal grandmother would not allow it.
Placement in protective custody
On October 23, 2009, DCFS concluded that R.W. was at a high risk of abuse of neglect and was placed in protective custody.
Section 300 Petition and Detention Hearing
On October 28, 2009, DCFS filed a section 300 petition on R.W.’s behalf, alleging that she was a minor described by subdivisions (a), (b), and (d), based upon mother and Daniel’s history of domestic violence, Daniel’s sexual abuse of R.W., and mother’s history of illicit drug use.
Attached to the section 300 petition and detention report were criminal background histories for mother and Daniel. Mother had numerous convictions for being under the influence, possession of a controlled substance, and possession/purchase of cocaine base for sale. Daniel had numerous arrests for possession of a controlled substance, possession of a controlled substance while armed, and a conviction for participation in a criminal street gang.
Mother and Daniel were not present at the October 28, 2009, detention hearing. R.W. told the juvenile court that her father’s name is “Robert” and that she was in contact with him; the most recent contact was a couple of days prior. R.W. said that she had his telephone number and agreed to comply with the juvenile court’s order to provide his contact information to DCFS.
The juvenile court found a prima facie case for detaining R.W., finding that she was a minor described by section 300, subdivisions (a), (b), and (d).
Jurisdiction/Disposition
In its December 14, 2009, jurisdiction/disposition report, DCFS reported that it was unable to locate R.W.’s biological father.
DCFS reinterviewed R.W. She reported that mother and Daniel yelled and cursed at each other. While R.W. had heard Daniel threaten mother, she said that she had never seen mother and Daniel shoving each other. She did not believe that mother had used drugs since Danielle’s birth.
R.W. informed the social worker that she had used crystal meth before. Further, she used marijuana and ecstasy, and reportedly used drugs through late 2009.
Regarding the allegation of sexual abuse, R.W. confirmed that Daniel had told her “‘nasty stuff, ’” asking whether she had had her “‘cherry popped’” and offering to do it for her. R.W. stated that Daniel never touched her, but he tried to convince her to have sexual intercourse with him. R.W. had disclosed the incident to mother. According to R.W., mother confronted Daniel but ultimately did not do anything because she was afraid of him.
The social worker also reinterviewed mother. As for the alleged domestic violence, mother indicated that she did not hit Daniel because he “‘tower[ed] over her.’” She did admit to the DCFS investigator that Daniel had called her derogatory names, spat in her direction, and pushed her. He had also “‘made moves’” to hit her. She denied that he ever did any of these things in the children’s presence. Mother advised the investigator that the San Bernardino County social workers had required her and Daniel to enroll in domestic violence and anger management classes in order to maintain custody of Danielle.
Regarding the sexual abuse allegation, mother indicated that Daniel had said something to R.W. about her virginity. She stated that R.W. told her that Daniel had not touched her. Had R.W. admitted that something more had occurred, mother would have believed her. Mother then said that R.W. lies and makes up stories, without realizing how the stories affect people. R.W. had not visited mother’s home in the six months prior and the alleged incident occurred nearly two years earlier. Therefore, mother had to take Daniel’s side in the matter.
Mother told the social worker that she had been sexually abused as a child by her stepfather and always told R.W. to report it if she were ever inappropriately touched. Mother said that she would leave her boyfriend, report him to the police, or kill him if he ever touched her daughter. R.W. also told mother that a maternal uncle, with whom she had previously lived at the maternal grandmother’s home, sexually touched her, but she refused to disclose the details of what had happened. That same uncle had apparently asked mother to expose herself to him when she was younger.
As for the allegations of drug use, mother initially denied having a history of using methamphetamines. She told the investigator that she only sold the drugs for a living; she did not use them. Later, she changed her statement, admitting that she used methamphetamines when both R.W. and Samuel were born and allowed the maternal grandmother to care for the two children. Mother indicated that Daniel used prescription medications, including Vicodin, antibiotics, and inhalers. She stated that she smoked marijuana, but could no longer afford the habit; she noted that now that marijuana was obtainable with a prescription, she would use it if she could afford it. Mother also had sustained a conviction for driving under the influence and explained that she used to drink a lot, and that the combination of alcohol and marijuana made her a “violent psychotic.”
Daniel denied hitting mother and denied telling R.W. that he would “‘pop’” her “‘cherry.’”
DCFS reported that R.W. had not received routine medical care since birth; she only had been taken to the doctor when she was ill. Following the maternal grandmother’s death, mother continued to fail to make appropriate plans for the care of R.W. and the maternal great-grandparents had to assume responsibility.
DCFS noted that mother appeared to have been able to indulge in her drug habit for over 18 years without dependency court involvement because her family had stepped up to informally care for mother’s children.
Information for the Court Officer
Also on December 14, 2009, DCFS filed an information for the court officer report, indicating that R.W. would leave Barbara’s home in the early morning hours to go to clubs with her friends. R.W. would then be too tired to go to school. It was reported that R.W. had only attended two weeks of instruction for the school year and had accumulated a total of zero credits towards graduation.
R.W.’s therapist said that R.W. was very aggressive and confrontational; she thought that Barbara was afraid of R.W. and stayed out of her way. R.W. was also depressed, and the therapist believed that R.W.’s use of ecstasy contributed to her depression.
Moreover, the therapist opined that were ongoing issues with supervision and boundaries at Barbara’s home and that R.W., described as “uncontrollable, ” required a higher level of care and supervision than what Barbara could provide. The therapist also opined that Barbara had not truly let R.W. feel welcome in the home. For example, although the maternal great-grandfather (who occupied the guest room in the home), had recently passed away and Barbara had allowed R.W. to move into the guest room, her clothing was still stored in the living room. R.W.’s therapist did not believe that Barbara was capable of providing the care that R.W. required.
Protective Custody Warrant
On February 19, 2010, a protective custody warrant was issued for R.W. after she left Barbara’s home and failed to return.
Information for Court Officer
On February 24, 2010, DCFS reported that R.W. had been arrested for theft earlier that month and had an upcoming juvenile delinquency court appearance on April 8, 2010. Mother had also been arrested and incarcerated, but was released shortly thereafter. DCFS attempted to contact mother, but her telephone line was busy and later an automated message indicated that her telephone number was incorrect.
At the hearing, DCFS disclosed that R.W. had returned to Barbara’s home and the protective custody warrant was recalled.
Adjudication was scheduled for March 22, 2010.
Information for the Court Officer
On March 22, 2010, DCFS reported that the investigator had interviewed mother on March 3, 2010. Mother indicated that R.W. had recently stayed in her home in order to attend a rave party in the Victorville area. Mother also informed the investigator that Danielle had been detained from mother and Daniel by the San Bernardino County child protective services for wandering the streets unsupervised. According to the report, the San Bernardino child protective agency’s preresolution conference report indicated that there was a substantiated count of sexual abuse against Daniel from November 2009 and a substantiated count of general neglect against mother.
The same report also indicates that R.W. gave so many conflicting statements about the alleged abuse that the San Bernardino County child protective services department was unable to substantiate the sex abuse count.
Information for the Court Officer
On April 14, 2010, DCFS reported on its most recent interview with mother. Mother stated that she was willing to care for R.W. and would walk her to school every day. Mother also said that it was amenable to her for R.W. to be placed in a group home in order to obtain the school help that she needed. According to mother, R.W. had disclosed that heroin, ecstasy, and other drugs were offered at the rave parties that she had attended. Mother informed the investigator that she had warned R.W. not to take prescription medication for her attention deficit hyperactivity disorder (ADHD) because those pills were “‘Synthetic Methamphetamines.’” Mother indicated that she was fine with R.W. smoking marijuana, even in large amounts, because marijuana was a natural herb.
R.W.’s therapist informed DCFS that it was very difficult to schedule appointments with R.W. because neither she nor Barbara answered the telephone. R.W.’s therapist had started arriving at the home unannounced, but stated that she had not conducted a therapy session with R.W. in over a month; she would have to terminate services if there were no improvements. She also informed DCFS that R.W. had received a second citation for possession of marijuana on school grounds. He reiterated his concern that Barbara was unable to supervise R.W. as she was verbally aggressive towards Barbara, who would shake during any confrontation with R.W.
The investigator also spoke with the San Bernardino County social worker, who revealed that the San Bernardino case involved drug abuse by mother and Daniel. Additionally, Daniel’s brother, who has a long criminal history, was living next door to mother and Daniel.
Adjudication Hearing
Mother was not present in court at the time of the adjudication hearing on April 14, 2010.
The Aurora nurse who conducted R.W.’s initial assessment testified that during her conversation with R.W., R.W. disclosed that she had recently been sexually touched by Daniel. R.W. further told the nurse that she hated Daniel, and she wanted to kill him and stab him in the face because he had touched her. R.W. pointed to her vaginal area when she spoke of Daniel touching her. She reiterated that Daniel had said “dirty stuff” to her. According to the nurse, R.W. had disclosed the incident to mother, but nothing happened after that.
The nurse further attested that R.W. had been diagnosed with “Major depression, severe, recurrent without psychotic features.” She described the assessment process and stated that R.W. had been brought into the facility due to suicidal ideations and that the trigger had been R.W.’s break-up with her boyfriend. The nurse testified that there is a portion of the assessment that focuses on credibility of the patients and the nurse believed that R.W. truly had a desire to kill Daniel.
The proceedings were continued because mother had failed to appear.
Continued Adjudication and Disposition Hearing
After receiving various reports into evidence, the juvenile court entertained oral argument. Mother’s counsel argued that the petition should be dismissed in its entirety, arguing that she did not know “why a petition [had] been filed because the child [had] never even resided with the mother. [¶] The child was raised by the maternal grandmother. The grandmother took the child home from the hospital. This was the plan that the mother and grandmother made. The child has only ever visited the mother. She has never been a member of the mother’s household, and so I couldn’t figure out... why they were filing a petition to remove the child from the mother because the grandmother was not asking for any assistance. [¶]... [¶]... I don’t think that the court actually has a basis for jurisdiction against the mother in this case because she is not the person who was raising the child, and the child is back home with the grandmother where she has always lived or the great grandmother now because the grandmother is deceased.” Counsel concluded: “I don’t really understand what the basis of jurisdiction is because we are not really removing the minor from the mother because the minor is never living with the mother. That is the part I just don’t understand, so I think we have a problem with that.”
Mother also stressed that when R.W. had made the disclosures of abuse, she had been in a psychotic state.
R.W.’s counsel asked the juvenile court to assume jurisdiction over her, noting that Danielle had been detained in a different county as a result of the same types of concerns regarding the family. DCFS agreed, asking that the petition be sustained.
The juvenile court sustained the petition and found R.W. to be a person described by section 300, subdivisions (a), (b), and (d). In so ruling, the juvenile court noted that mother had not cared for her children, including R.W., even though after the maternal grandmother’s death, it appeared that R.W. was spending a significant amount of time with mother. Next, the juvenile court found by clear and convincing evidence that R.W. would be at a substantial risk of detriment if placed in mother’s custody and ordered her suitably placed in the care and custody of DCFS. Reunification services were ordered. Mother did not make any further requests. She also did not object to the juvenile court’s dispositional orders.
Mother’s timely appeal ensued.
DISCUSSION
I. Standard of Review
The parties agree that we review the juvenile court’s jurisdictional findings for substantial evidence. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393.)
II. Substantial Evidence Supports the Juvenile Court’s Findings
A. Section 300, Subdivision (b)
“The purpose of section 300 ‘is to provide maximum safety and protection for children who are currently being physically, sexually, or emotionally abused, being neglected, or being exploited, and to ensure the safety, protection, and physical and emotional well-being of children who are at risk of that harm.’ [Citation.]” (In re Giovanni F. (2010) 184 Cal.App.4th 594, 599.)
With that in mind, section 300 provides, in relevant part: “Any child who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court: [¶]... [¶] (b) 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, 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, or by the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent or guardian to provide regular care for the child due to the parent’s or guardian’s mental illness, developmental disability, or substance abuse.” (§ 300, subd. (b), italics added.)
To find a minor a person described in section 300, subdivision (b), there must be proof of neglectful conduct, causation, and a substantial risk of serious physical harm. (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.)
Here, there is ample evidence that R.W. was at a substantial risk of serious physical harm. Specifically, Daniel’s sexually aggressive statements to R.W. amount to threats of physical violence. The evidence of his comments, which are set forth in jarring detail in the appellate record, can only be interpreted as consistent with a finding that R.W. was placed at substantial risk of serious physical harm.
Moreover, mother and Daniel’s history of domestic violence places R.W. at substantial risk of serious harm. (In re Heather A. (1996) 52 Cal.App.4th 183, 195–196; In re Sylvia R. (1997) 55 Cal.App.4th 559, 562; In re S.O. (2002) 103 Cal.App.4th 453, 462.) R.W. described Daniel as abusive towards mother, and she explained that she saw Daniel spit in mother’s face and hit mother. Mother also informed the social worker that Daniel called her derogatory names, spat in her direction, and pushed her. And, he “‘made moves’” to hit her.
Mother also has a long history of drug abuse. At the time R.W. was born, mother was addicted to methamphetamines; in fact, R.W. was born with a positive toxicology screen for drugs. And, mother has numerous convictions for being under the influence, possession of a controlled substance, and possession/purchase of cocaine base for sale. While mother may be in “good compliance” with the case plan in connection with the drug abuse issues in another pending dependency case, that does not mean that the evidence here does not support the juvenile court’s finding that mother’s history of drug abuse has negatively impacted R.W.’s well-being, placing her at substantial risk.
Furthermore, there is overwhelming evidence that mother has never taken appropriate steps to ensure R.W.’s health and safety. DCFS reported that R.W. had not received routine medical care since birth; she had only been taken to the doctor when she was ill. At no time did mother make appropriate plans for R.W.’s care, particularly after R.W.’s maternal grandmother passed away in 2007. While Barbara stepped in to assume responsibility, no formalities are in place, and DCFS noted that she does not seem able to effectively care for R.W. And, mother has apparently decided not to separate herself from Daniel in spite of what he said to R.W.
Finally, there is evidence that mother allows R.W. to engage in risky behavior. For example, mother reported that R.W. stayed at her home in order to attend a rave party. Mother also stated to the social worker that she was “fine with [R.W.] taking marijuana even if it is a lot, because marijuana is a natural herb.” The dependency court could reasonably infer that R.W. was at a substantial risk of harm by attending rave parties (where, according to R.W., ecstasy, heroine, and other drugs are offered) and having her mother’s permission to smoke marijuana.
Taken together, this evidence is sufficient to support the juvenile court’s findings under section 300, subdivision (b). (See, e.g., In re Kristin H. (1996) 46 Cal.App.4th 1635, 1650 [evidence indicates a pattern of behavior resulting in inadequate supervision that places the minor at substantial risk].)
B. Section 300, Subdivision (d)
Apart from the foregoing issues (see Randi R. v. Superior Court (1998) 64 Cal.App.4th 67, 72 [there need be only one basis for jurisdiction]), the juvenile court properly sustained the petition pursuant to section 300, subdivision (d). That statute provides, in relevant part, that a child may be adjudged a dependent of the juvenile court if “[t]he child has been sexually abused, or there is a substantial risk that the child will be sexually abused... by his or her parent or guardian or a member of his or her household, or the parent or guardian has failed to adequately protect the child from sexual abuse when the parent or guardian knew or reasonably should have known that the child was in danger of sexual abuse.” (§ 300, subd. (d), italics added.)
As set forth above, Daniel’s offensive comments to R.W. place her at a substantial risk of sexual abuse.
We are not convinced that the dependency court erred because R.W. is not a part of mother’s household. Admittedly, R.W. resided with her grandmother from the time of her birth until 2007, and then in 2007 began living with Barbara. But, neither the grandmother nor Barbara had ever filed for legal custody or guardianship of R.W. Mother is still the custodial parent of R.W. and R.W. is free to resume living with mother. And, there is evidence that R.W. was visiting mother regularly, even for weeks at a time.
Moreover, there is no evidence that mother took steps to protect R.W. when she knew or should have known that R.W. was in danger of sexual abuse. Instead of protecting her daughter, mother has minimized the incident. Specifically, R.W. informed the social worker that after she told her mother what Daniel said to her, mother confronted Daniel, who laughed and downplayed the incident. And mother did nothing further. Similarly, mother told DCFS that R.W. lies and makes up stories, so she took Daniel’s side in the matter. Finally, there is no indication that mother has separated from Daniel.
Under these circumstances, we find ample evidence to support the juvenile court’s findings under section 300, subdivision (d).
C. Section 300, Subdivision (a)
Since the jurisdictional findings under subdivisions (b) and (d) of section 300 are supported by substantial evidence, we need not decide whether substantial evidence also supports the jurisdictional finding under subdivision (a). (In re Athena P. (2002) 103 Cal.App.4th 617, 630 [jurisdiction may be based on any single subdivision].)
DISPOSITION
The juvenile court’s jurisdiction and disposition order are affirmed.
We concur: BOREN, P. J., DOI TODD, J.