Opinion
NOT TO BE PUBLISHED
APPEALS from a judgment of the Superior Court of San Diego County No. EJ3059A-C, Gary M. Bubis, Judge.
NARES, Acting P. J.
Francisca G. (mother) and Jose S. (the minor's father) (together the parents) appeal a judgment declaring their daughter E.S. (the minor), who is now about one year old, a dependent of the juvenile court under Welfare and Institutions Code section 300, subdivision (j) (hereafter section 300(j)), and placing her in a licensed foster care home. The parents challenge the sufficiency of the evidence to support the juvenile court's jurisdictional findings and dispositional order. Specifically, the parents contend that (1) substantial evidence does not support the court's jurisdictional findings under section 300(j) that the minor's father sexually abused her half-sister Y.H., and there was a substantial risk the minor would also be sexually abused by him; (2) because substantial evidence does not support the court's jurisdictional findings, the evidence is also insufficient to support the court's dispositional findings and orders; and (3) even if substantial evidence supports the court's jurisdictional findings under section 300(j), the dispositional order must be reversed with instructions to return the minor to mother's care and custody because the order is not supported by clear and convincing evidence of substantial danger or risk of sexual abuse, nor does the evidence support a finding that no reasonable means were available to protect the minor without removing her from her mother's care. The minor's counsel joins respondent San Diego County Health and Human Services Agency (Agency) in urging this court to affirm the jurisdictional findings and dispositional order.
All further statutory references are to the Welfare and Institutions Code.
We conclude the evidence is sufficient to support the court's findings and orders. Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. Petitions
In February 2009 the Agency filed separate dependency petitions on behalf of then four-month-old minor and her half-siblings, Y.H. (who was then nine years of age) and C.H. (then three years of age) (collectively the children). Y.H.'s petition alleged under section 300, subdivision (d) that the minor's father sexually abused her and mother had failed to protect her from the sexual abuse. The petitions filed on behalf of the minor and C.H. alleged under section 300(j) that, as a result of the sexual abuse of Y.H. by the minor's father, there was a substantial risk that the minor and C.H. also would be abused.
B. Detention Hearing
At the detention hearing, the court considered the Agency's detention report, which indicated that Y.H. had reported that the minor's father, who is a wealthy ranch owner living in Ensenada, had touched Y.H. in the vaginal area in Ensenada between October and November 2008; Y.H. had told mother about the molestation; mother, however, stated that Y.H. was seducing the minor's father; mother and the minor's father were still involved in a relationship, and at least every weekend mother was taking the children to Ensenada, where she continued to leave them alone with the minor's father; mother appeared to be a flight risk in that she was able to leave the United States and her job and to be financially dependent on minor's father; the children did not have a safe environment with relatives because there was a generational history of sexual abuse in the family; when mother was informed the children were being removed from her care, she indicated it was best for the children to be out of her care because she and her three adult children had been victims of sexual abuse, and she felt she could not protect the children because she needed therapy due to the sexual abuse in the family; and during a team decision-making (TDM) meeting held in February 2009, she admitted she was "unable to protect her children."
The detention report also indicated that an adult sibling of the children, C.G., reported that Y.H. had told her that the minor's father had touched Y.H.'s private parts; that when she (C.G.) was five or six years of age, mother would tell her to lie to social workers investigating mother for physically abusing C.G. and her siblings; that C.G. had been sexually molested by someone who was not a member of the family; that another adult sibling of the children, M.G., had been sexually abused by a maternal uncle; and that mother continued to take the children to visit the minor's father in Mexico despite knowing about the allegations that Y.H. was making against him.
With respect to the minor's petition, the court found that a prima facie showing had been made that the minor was a person described in section 300(j), there was a substantial danger to her health, and there was no reasonable means to protect her physical or emotional health without removing her from the parents' physical custody. The court ordered the minor detained at the Polinsky Children's Center and approved foster care for her.
C. Contested Jurisdictional/Dispositional Hearing
At the contested June 2009 combined jurisdictional and dispositional hearing, the minor's father, who was represented by counsel, appeared telephonically; and mother (who had gone to the hospital), the Agency, and the children also appeared through their respective attorneys.
The court received in evidence the March 2009 jurisdiction and disposition report prepared by social worker Karen Lowrimore. That report indicated that Y.H. had reported the minor's father had sexually molested her by touching her vagina under her clothes; the Agency was requesting it be allowed to detain Y.H. and C.H. with their father, M.H., in Tijuana, Mexico upon a positive evaluation of his home; and it was recommending the minor be removed from the care of the parents, reunification services be provided to them, visits between the parents and the minor be supervised, and the minor's father continue to be ordered to have no contact with Y.H. and C.H.. Lowrimore reported that when she spoke with her, mother said she asked Y.H. to tell her the truth, and Y.H. told her that "nothing happened." Mother also told Lowrimore she never left Y.H. with the minor's father after she knew about what happened. Lowrimore also reported, however, that when the original social worker reminded mother that her adult child and Y.H. had both stated that she had left her children with the minor's father, mother reversed her statement and indicated she left her children with the minor's father because she had to work and had no one else with whom to leave the children. The minor's father denied molesting Y.H., stating in Spanish that he always respected the girl and that he received Christian help and parenting classes. Mother was willing to start therapy to deal with the extensive history of sexual and physical abuse in the family.
The court also received in evidence an April 2009 addendum report, which Lowrimore also prepared. Lowrimore indicated she spoke with mother earlier that month, and mother said she did not believe Y.H. had been molested, but believed the minor's father had only kissed Y.H. on the neck because this was all that Y.H. had told her about what happened. The minor's adult sibling, C.G., stated that mother knew the minor's father was molesting Y.H. and yet she continued to take the children to Ensenada and leave them there with the minor's father. C.G. also told Lowrimore that both Y.H. and C.H. had said that mother and the minor's father would hit them and put them in water as punishment. The Agency completed its evaluation of M.H.'s home and approved the home for Y.H. and C.H. The report indicated that the minor's birth certificate listed the minor's father as her father.
The court also received in evidence the detention report, several additional addenda reports, the social worker's resume; and an English translation of a portion of a transcription in Spanish of an interview of Y.H. conducted by the investigation department of the Procuraduría General de Justicia of Baja California, a copy of which was attached as an exhibit to the April 2009 addendum report. According to a May 2009 addendum report, Y.H. stated during a psychological evaluation that the minor's father would touch her vagina under her clothes at night, and she would wake up and change her position in bed or close her legs. The last time he touched her genitals was when she was eight years old. She stated these incidents happened several times when mother was not home, and she and C.H. would sleep with the minor's father on the same bed while they were living with him and mother in Ensenada. Y.H. also stated that on one occasion when her father M.H. was taking her back to Ensenada for a visit with the minor's father, she started crying, saying she did not want to go back with the minor's father because he was touching her on her "front part." The report indicated M.H. went to Ensenada and reported what Y.H. had disclosed to him. The police sexual crimes unit in Ensenada then ordered the psychological evaluation of Y.H. Y.H. also stated she liked to cut herself because when her mother and aunt would hit her, she would get bruises and bleed.
According to the Spanish transcription of Y.H.'s interview—a copy of which was attached to the April 2009 addendum report, and which was translated into English at the hearing—the following exchange occurred during the interview:
"[Question:] Who did you tell what your stepfather did to you?
"Answer: My father [M.H.] and his girlfriend. I call her Chaparrita.... When we were in the car together. I told my dad so it wouldn't happen again, and I didn't want anything to happen to him or my brother because he was going to take me to my stepfather's again and I was scared."
The court made a true finding by clear and convincing evidence on each child's petition, including the minor's. Specifically, the court found true the allegation the minor was a person described in section 300(j). The court also found that reasonable efforts had been made to eliminate the need for removal of the minor from the parents and declared her a dependent of the juvenile court under section 360, subdivision (d) (hereafter section 360(d). The court ordered the removal of the minor from the parent's' custody under section 361, subdivisions (c)(1) and (c)(4), finding there was a substantial danger to her physical and emotional health, and there were no reasonable means by which her physical health could be protected without removing her from the parents' physical custody. The court ordered her placed in a licensed foster home.
DISCUSSION
I. JURISDICTIONAL FINDINGS AND ORDERS
The parents first contend that substantial evidence does not support the court's jurisdictional findings under section 300(j) that the minor's father sexually abused her half-sister Y.H. and that there was a substantial risk the minor would also be sexually abused by him. We reject this contention.
A. Standard of Review
We review the judgment for substantial evidence. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we uphold those findings. We do not consider the credibility of witnesses, attempt to resolve conflicts in the evidence or weigh the evidence. Instead, we draw all reasonable inferences in support of the findings, view the record favorably to the juvenile court's order; and, if it is supported by substantial evidence, we affirm the order even if there is substantial evidence supporting a contrary finding. (In re Casey D. (1999) 70 Cal.App.4th 38, 52; In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) The parent has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
B. Analysis
Section 300(j) provides a basis for juvenile court jurisdiction if "[t]he 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." (Italics added.) Under that subdivision, the juvenile court is mandated to "consider the circumstances surrounding the abuse or neglect of the sibling, the age and gender of each child, the nature of the abuse or neglect of the sibling, the mental condition of the parent or guardian, and any other factors the court considers probative in determining whether there is a substantial risk to the child." The court's finding that the allegations of a petition are true must be made by at least a preponderance of the evidence. (§ 355; Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 248.)
In enacting section 300, the Legislature intended to protect children who are currently being (among other things) "physically, sexually, or emotionally abused," and to "ensure the safety, protection, and physical and emotional well-being of children who are at risk of that harm." (§ 300.2.) However, the court need not wait until a child is seriously abused or injured to assume jurisdiction and take the steps necessary to protect the child. (In re Heather A. (1996) 52 Cal.App.4th 183, 194-196; In re Michael S. (1981) 127 Cal.App.3d 348, 357-358.) The focus of section 300 is to avert harm to the child. (In re Jamie M. (1982) 134 Cal.App.3d 530, 536.)
Here, the court found true, by the higher standard of clear and convincing evidence, the allegations in the minor's section 300(j) petition that (1) Y.H. was at substantial risk of being sexually abused within the meaning of section 300, subdivision (d) because the minor's father sexually abused Y.H. in or about November 2008; and (2) as a result, the minor was a person described by section 300(j) in that there was a substantial risk that the minor "will be abused."
We conclude that substantial evidence supports the court's findings. The evidence presented at the contested hearing—as set forth in the detention report, the March 2009 jurisdiction and disposition report, and the May 2009 and April 2009 addendum reports—clearly showed that Y.H. consistently reported to family members, law enforcement officials in Mexico, a psychologist for the State Attorney General's Office of Baja California in Ensenada, and the Agency that the minor's father had sexually molested Y.H. in Ensenada. Substantial evidence thus supports the court's factual finding that the minor's father sexually abused Y.H.
Substantial evidence also supports the court's determination that the minor's father's sexual molestation of Y.H. and mother's inability to protect her children exposed the minor to a substantial risk of harm for purposes of section 300(j). Specifically, Y.H.'s statements to the social worker, as set forth in the detention report, showed that Y.H. told mother about the molestation; mother accused Y.H. of seducing the minor's father; mother and the minor's father were still involved in a relationship, and at least every weekend mother was taking the minor to Ensenada, where she continued to leave them alone with the minor's father; and mother appeared to be a flight risk in that she appeared to be financially dependent on the minor's father. The detention report also showed that, when mother was informed the children were being removed from her care, she admitted it was best for the children to be out of her care because she felt she could not protect the children because she needed therapy due to the sexual abuse in her family.
The parents rely on In re P.A. (2006) 144 Cal.App.4th 1339 for the proposition that there is no evidence that the minor was at substantial risk of being sexually abused because (1) as an infant, the minor was not yet approaching the age at which Y.H. was sexually abused; and (2) because the minor, unlike Y.H., is his biological child, the minor's father's would be less inclined to sexually molest the minor. Specifically, they rely on the Court of Appeal's statement in that case that, "where... a child has been sexually abused, any younger sibling who is approaching the age at which the child was abused, may be found to be at risk of sexual abuse." (Id. at p. 1347, italics added.)
The parents' reliance on In re P.A. is unavailing. In that case, the Court of Appeal concluded that substantial evidence supported the juvenile court's findings sustaining allegations that the father sexually abused his nine-year-old daughter and that such conduct placed the daughter and her two younger brothers, who were eight and five years old when the dependency petition was filed, at risk of harm and sexual abuse. (In re P.A., supra, 144 Cal.App.4th at pp. 1343, 1345, 1347.) It is true that the younger siblings in In re P.A. were nearer in age to the victim than the minor in the instant case is to Y.H. However, nearness in age between a sexually abused child and a younger sibling is not a litmus test for determining whether the younger sibling is substantially at risk of being sexually abused within the meaning of section 300(j); it is but one factor the juvenile court must consider. Furthermore, In re P.A. is distinguishable in that it did not involve an admitted inability by the mother to protect her children, as is the case here. In addition, nothing in the record supports the parents' claim that the minor's risk of being molested is lessened by the mere fact that the minor, unlike Y.H., is the biological child of the minor's father.
As noted, ante, the juvenile court need not wait until a child is seriously abused or injured to assume jurisdiction and take the steps necessary to protect the child. (In re Heather A., supra, 52 Cal.App.4th at pp. 194-196.) We conclude that substantial evidence supports the court's true finding on the section 300(j) dependency petition filed on behalf of the minor.
II. DISPOSITIONAL FINDINGS AND ORDER
The parents also contend that (1) because substantial evidence does not support the court's jurisdictional findings, the evidence is also insufficient to support the court's dispositional findings and order; and (2) even if substantial evidence supports the court's jurisdictional finding under section 300(j), the dispositional order must be reversed with instructions to return the minor to mother's care and custody because the order is not supported by clear and convincing evidence of substantial danger or risk of sexual abuse, nor does the evidence support a finding that no reasonable means were available to protect the minor without removing her from mother's care. We reject these contentions.
A. Legal Principles Governing Removal of a Minor
After the juvenile court determines it has jurisdiction over a minor based on a finding that the minor is a person described in section 300, the court must conduct a dispositional hearing. (§ 358, subd. (a).) Here, as already noted, the court ordered the removal of the minor from the parents' custody under section 361, subdivisions (c)(1) and (c)(4), finding there was a substantial danger to her physical and emotional health, and there were no reasonable means by which her physical health could be protected without removing her from the parents' physical custody.
Before the juvenile court can take a dependent minor from the physical custody of her parents under section 361, subdivision (c)(1), the court must find "clear and convincing evidence of... [¶]... (1) substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and... [(2)] there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's or guardian's physical custody." (§ 361, subd. (c)(1).)
Before the juvenile court can take a dependent minor from the physical custody of her parents under section 361, subdivision (c)(4), the court must find by clear and convincing evidence that "[(1)] [t]he minor or a sibling of the minor has been sexually abused, or is deemed to be at substantial risk of being sexually abused... and [(2)] there are no reasonable means by which the minor can be protected from further sexual abuse or a substantial risk of sexual abuse without removing the minor...." (§ 361, subd. (c)(4).)
This court has explained that notwithstanding the burden on the trial court to find by clear and convincing evidence that the child's removal from the home is required, the reviewing court applies the substantial evidence standard, "giving full effect to the respondent's evidence, however slight, and disregarding the appellant's evidence, however strong." (In re Mark L. (2001) 94 Cal.App.4th 573, 580-581.)
B. Analysis
We first reject the parents' contention that substantial evidence does not support the court's jurisdictional findings, and thus we must conclude that the evidence is also insufficient to support the court's dispositional findings and order. For reasons discussed, ante, we have concluded that substantial evidence does support the court's true finding on the section 300(j) dependency petition filed on behalf of the minor.
We also conclude that substantial evidence supports the court's true finding by clear and convincing evidence that there was a "substantial danger to the [minor's] physical health, safety, protection, [and] physical and emotional well-being" if the minor were returned to mother's physical custody. At the contested June 2009 jurisdictional and dispositional hearing, the court received evidence from Lowrimore, the social worker, that mother recently told Lowrimore that she never left Y.H. with the minor's father after she learned about what happened, but when the original social worker reminded mother that one of her adult children and Y.H. had both stated that she had left her children with the minor's father, mother reversed her statement and indicated she left her children with the minor's father because she had to work and there was no one else with whom she could leave the children. The court also received evidence from Lowrimore that mother had recently told her she did not believe Y.H. had been molested, but believed the minor's father had only kissed Y.H. on the neck. Substantial evidence also showed that one of the minor's adult siblings, C.G., told Lowrimore that mother continued to take the children to Ensenada and leave them there with the minor's father after mother knew the minor's father was molesting Y.H.
In view of mother's admitted inability to protect the minor, her denial that the minor's father sexually abused Y.H., and substantial evidence demonstrating her lack of understanding about the dynamics of sexual abuse, we conclude that substantial evidence supports the court's dispositional finding that there was a substantial danger to the minor's "physical health, safety, protection, [and] physical and emotional well-being" if she were returned to mother's physical custody.
Last, we conclude that substantial evidence supports the court's dispositional finding that there were no reasonable means by which to protect the minor without removing her from mother's physical custody. As already discussed, substantial evidence shows that mother did not believe the minor's father sexually abused the minor's half-sister (Y.H.), mother failed to protect Y.H. despite her being informed about the molestation, and she admitted her inability to protect her children. On this record, the policy of the law favoring the protection of minors from future harm requires the affirmance of the juvenile court's order removing the minor from the physical custody of her parents.
The parents' reliance on In re Henry V. (2004) 119 Cal.App.4th 522, In re Jasmine G. (2000) 82 Cal.App.4th 282, and In re Basilio T. (1992) 4 Cal.App.4th 155 is unavailing, as those cases are distinguishable on their facts.
In In re Henry V., the minor complained to a teacher that his bottom was hurting, and the teacher found he had linear burn marks on his buttocks. (In re Henry V., supra, 119 Cal.App.4th at p. 525.) The minor, a very active and aggressive child who required a lot of supervision, said he was burned by a lamp in his room. (Id. at pp. 525-526, 527.) The mother said her son had told her the same thing, and she did not understand how the injury happened. (Id. at p. 526.) Examining doctors, however, concluded that the burns were inconsistent with the lamp story and were most likely inflicted by the curling iron in the mother's bathroom. (Ibid.) Although the evidence also showed that the parents were extremely cooperative, the mother had completed a parenting class and was making progress, and the prospects for reunification were good, the social worker still recommended maintaining the out-of-home placement, suggesting that such placement would be useful to secure further cooperation by the mother. (Id. at pp. 526-527, 529.) In reversing the dispositional order maintaining the mother's minor son in out-of-home placement, the In re Henry V. court concluded there was no clear and convincing evidence that the minor would be substantially endangered if returned home or that there were no reasonable means of protecting him other than removal from parental custody. (Id. at pp. 525, 530.) The Court of Appeal reasoned that the physical abuse the minor suffered was apparently a single occurrence, neither the county social service agency nor the juvenile court considered it an obstacle to reunification in the near future, and the social worker's suggestion that out-of-home placement would be useful to secure further cooperation by the mother "was not a proper consideration." (Id. at pp. 529-530.) Here, in contrast (as discussed, ante), the evidence presented at the dispositional hearing showed that mother had recently denied that Y.H. had been sexually abused, she failed to protect Y.H. despite her being informed about the molestation, and she admitted her inability to protect her children because of her own issues related to sexual abuse.
In re Jasmine G. is also distinguishable. There, the Court of Appeal reversed a juvenile court's order removing a 15-year-old girl from parental custody, concluding that on a record "preoccupied with household minutia" showing (for example) that the mother did not allow her daughter to wear red nail polish and the father did not allow her to wear " 'sparkly' " nail polish, a social worker's opinion that the parents had not sufficiently internalized proper parenting skills because they lacked a full understanding of their daughter's adolescent "issues" did not constitute substantial evidence to support removal under section 361. (In re Jasmine G., supra, 82 Cal.App.4th at pp. 284-285, 286.) Noting the parents' testimony that they had changed their attitudes about corporal punishment for teenagers, the parents' expression of remorse that their physical abuse of their daughter had led to the dependency, and the fact that they had attended parenting classes, the In re Jasmine G. court stated that the case before it was "remarkable for the clear and convincing evidence that it was safe to return the [minor] to either of her parent's homes." (Id. at pp. 286, 288-289.) Here, however, substantial evidence showing mother's denial that the minor's father had sexually abused Y.H., her admitted inability to protect her children, and her own unresolved issues related to sexual abuse supports the court's finding that no reasonable means were available to protect the minor without removing her from her mother's care.
The parents' reliance on In re Basilio T. is also unavailing. In that case, which involved a petition under section 300, subdivision (b), the evidence showed the two minor sons witnessed violent fighting between the parents. (In re Basilio T., supra, 4 Cal.App.4th at pp. 159-160.) In reversing the dispositional order removing the minors from parental custody, this court concluded that there was insufficient evidence to support the order, noting that the case did not involve extreme parental abuse or neglect, the minors had not been physically harmed, the record did not completely support the juvenile court's apparent conclusion that the parents were not participating in counseling and programs recommended by the social worker, and the minors could have been returned to the parents under strict supervision. (Id. at pp. 169, 171-172.) Significantly, we also noted the social worker's report commending the parents for their efforts. (Id. at p. 172.) Here, as noted, ante, the social worker indicated in a report presented at the dispositional hearing that mother had recently told the social worker that she did not believe that the minor's father's had molested Y.H., but instead believed he had only kissed Y.H. on the neck. In addition, substantial evidence showing mother falsely told the social worker that she never left Y.H. with the minor's father after mother learned about the sexual molestation, supports the court's finding that no reasonable means were available to protect the minor without removing her from parental custody.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McDONALD, J., McINTYRE, J.