Opinion
B326379
06-07-2024
In re Y.M., a Person Coming Under the Juvenile Court Law. v. S.M., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Gina Zaragoza, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Tracey Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. 22CCJP03050A Nancy Ramirez, Judge. Affirmed.
Gina Zaragoza, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Tracey Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent.
MORI, J.
Mother, S.M., appeals from the juvenile court's jurisdictional order under Welfare and Institutions Code section 300 relating to her child Y.M. Mother argues substantial evidence did not support the juvenile court's exercise of jurisdiction. Although the court's post-appeal orders have rendered mother's appeal moot, we exercise our inherent discretion to address mother's challenge to the court's jurisdictional findings concerning sexual abuse allegations. We conclude substantial evidence supported the findings that Y.M.'s stepfather sexually abused Y.M. and mother knew about the abuse and failed to protect her. We affirm.
All further statutory references are to the Welfare and Institutions Code.
The record shows Y.M. prefers to be referred to by a different name than her legal name. Y.M. also reported being comfortable with the use of the pronouns "she/he/they." On appeal, mother used the "she" pronoun and referred to the child using the initials Y.M. We will do the same to maintain consistency and to protect the child's privacy.
FACTUAL AND PROCEDURAL BACKGROUND
A. Sexual Abuse Allegations and Detention
Mother is the parent of Y.M. and six other children. Y.M., who was born in 2006, is the oldest of the children. Y.M.'s stepfather is the biological father of the five younger children.Y.M.'s and the second oldest child's biological father's whereabouts are unknown.
The juvenile court dismissed the counts in the section 300 petition involving Y.M.'s six siblings. Neither the siblings nor stepfather are parties to this appeal.
In early August 2022, police officers received a report from the Los Angeles County Department of Children and Family Services (Department) of suspected sexual abuse involving Y.M. The officers met with Y.M., and she told them that when she lived in Kansas with mother and stepfather "she was touched by [stepfather] on her breast and vagina" over her clothes. Y.M. indicated the abuse began when she was seven or eight years old and continued until she was 11 years old when she confronted stepfather about it. She stated she reported the abuse to her therapist to protect her siblings from future abuse. A social worker took custody of Y.M. at the police station.
Y.M. told the social worker that she disclosed the touching to her therapist because she could no longer hold it in. Y.M. said stepfather began touching her inappropriately when she was seven or eight years old, and it did not stop until she was 10 or 11 years old. She reported stepfather used to touch her thighs, vagina, and breasts on top of her clothes, and that he would make her kiss him on the lips and touch his penis on top of his pants. She said stepfather threatened her once that if she ever told anyone he would leave the family and not help them financially. He was the only one working.
Y.M. further stated the abuse occurred when mother and her siblings were not around, and it happened in a car, bedroom, and liquor store. She said she got tired of stepfather touching her and confronted him in front of mother. Mother did not believe her and told her things such as, "'[H]e would never do that to you', 'it was just a nightmare', 'you just want to cause me problems.' [sic]" Y.M. stated that after that, she did not say anything else because mother and stepfather would have arguments and blame her. Y.M. also stated she felt disgusted with her body, as "she just thinks about everything that has happened to her." She reported she did not want to go back home because she did not feel safe.
The next day, the social worker spoke with mother. Mother reported that a few days earlier, Y.M. told her she remembered stepfather touching her breast. Mother told the social worker she explained to Y.M. that when she was seven years old, stepfather looked at her breasts to recommend remedies for a pimple. Mother did not have any concerns about stepfather abusing the children and planned to stay with him. She stated Y.M. was "very rebellious" and had stolen money from her.
The social worker also spoke with Y.M.'s therapist. According to the therapist, the day before the police went to Y.M.'s home, Y.M. disclosed being sexually abused by stepfather during a therapy session. Y.M. told her therapist that stepfather would touch her breast, vagina, and buttocks when she was about seven years old. She was diagnosed with major depressive disorder and anxiety.
The social worker interviewed Y.M.'s siblings, except the two youngest who were preverbal, and each said that stepfather never touched them inappropriately. The second oldest sibling (then 13 years old) stated she believed Y.M. was lying, and that Y.M. once told her that mother would let her do whatever she wanted if stepfather was out of the house. The third oldest sibling claimed she saw a text message on Y.M.'s phone months earlier saying Y.M. would make up any lie she has to in order to make stepfather leave the home. When the social worker spoke with stepfather, he denied sexually abusing Y.M.
The Department filed a section 300 petition alleging, among other things, that Y.M. was sexually abused by stepfather, that mother knew about the abuse and failed to protect Y.M., and that mother emotionally abused Y.M. Y.M. was detained from mother and placed in foster care.
B. Jurisdictional Findings
In late August 2022, a dependency investigator met with Y.M. at her foster home. Y.M. indicated she considered cutting herself because she felt lonely and sad being away from mother and her siblings. She also claimed mother was unaware of the sexual abuse by stepfather. Y.M. had been hospitalized four times since being placed in foster care. She expressed her most recent hospitalization was for thoughts of harming herself.
Y.M. told the dependency investigator she experienced sexual harassment in school by a male classmate. The classmate would touch her thighs, waist, and butt. She initially thought this was normal and realized this had previously occurred with stepfather. She said the experience with the classmate triggered her memory of the past incidents with stepfather.
As with the social worker, Y.M. told the dependency investigator stepfather's sexual abuse of her began when she was seven and stopped when she confronted him at 10 years old. She recalled stepfather would touch her thighs, chest area, and butt, and the abuse would occur when mother went grocery shopping. She said most of the touching occurred above clothing, but she remembered when she wore skirts stepfather would touch her skin around her thighs. She again stated the abuse occurred in Kansas.
Y.M. said the memories led to her having thoughts of harming herself or stepfather. She attributed negative feelings about herself to the loss of stepfather's physical touch. She believed "'the physical touch was a way of feeling love and care and when he stopped showing love and affection by touching then [she] started feeling lonely, worthless, pathetic, and all of these negative emotions.'" She began to think something was wrong with her body and started eating a lot to gain weight to regain physical touch and feel loved. Later, she felt alone, attributed it to weight gain, and began to starve herself to be skinny again. Y.M.'s therapist was searching for ways to help with Y.M.'s eating disorder.
Y.M. indicated to the investigator that she wanted to return to her mother and siblings, but not if stepfather continued to reside in the home because she would not feel safe. She believed she would want to hurt herself because of the sexual abuse she experienced if he remained in the home.
The dependency investigator also met with mother. Mother said she was unaware of the sexual abuse allegations concerning stepfather, and she denied ever telling Y.M. the incidents were nightmares. Mother indicated that Y.M.'s relationship with stepfather changed after Y.M. began questioning her gender identity. Y.M. allegedly saw stepfather's reaction as homophobic, and she told him she did not need to listen or have any relationship with him because he was not her biological father. The investigator interviewed stepfather, who again denied ever sexually abusing Y.M. He stated that Y.M. said she believed she was non-binary, and he was confused and told her "that she was a girl and not to say those things." He thought Y.M. felt he was rejecting her, and he believed she got angry and began hating him.
In September 2022, Y.M. was hospitalized after trying to escape her foster home by jumping out of a second story window. Her caregiver was no longer willing to care for her. The Department recommended Y.M. be returned to mother on the condition that stepfather not reside in the family's home or apartment complex.
In October 2022, the Department filed an ex parte application for Y.M. to be released to mother. The juvenile court granted the ex parte application on the condition stepfather did not reside in mother's home or apartment building. After Y.M. returned home, mother indicated to the dependency investigator that Y.M.'s behavior had improved. The investigator also spoke with Y.M. Y.M. told the investigator she felt left out when her siblings went on outings with stepfather without her. She reported being comfortable being back home. Because stepfather could not reside in the home, he was living in his vehicle.
The adjudication hearing was continued to January 2023 to allow a forensic interview of Y.M. to take place. During the forensic interview, Y.M. was asked if anyone ever touched her in a way that made her feel uncomfortable, and she discussed a neighbor in Kansas. She then discussed uncomfortable situations with a boy in school and an ex-partner.
The interviewer asked Y.M. about the case, but she stated she did not want to talk about it. Y.M. then said, "I kind of made some stuff up about [stepfather].... Because I really didn't want him to be around [be]cause, um, he would, like, mistreat my mom and everything." She stated she told her therapist stepfather did the things that the neighbor had done to her. She further said mother was sad about the things happening with stepfather and wished everything would be back to normal. According to Y.M., mother did not like that Y.M. reported stepfather sexually abused her. Y.M. added she wanted stepfather taken away from the family because he would mistreat and insult her, her siblings, and mother, including by telling Y.M. she was useless and should kill herself. Y.M said mother told her she should put up with stepfather's behavior because he was "older," and Y.M. felt her siblings would take stepfather's side because he was the one that "could provide [ ] food . . . and a lot of stuff."
At the adjudication hearing, the juvenile court heard argument and sustained an amended petition pursuant to section 300, subdivisions (b)(1), (c), and (d). The court found true allegations that stepfather sexually abused Y.M., that mother knew but failed to protect Y.M. from the abuse, and that mother emotionally abused Y.M. by blaming her for the family's problems involving stepfather.
The juvenile court concluded Y.M.'s statements regarding the sexual abuse by stepfather were credible. The court noted Y.M. provided specific details about the location of the abuse and also stated she confronted stepfather in front of mother. Further, the court found Y.M.'s emotional state was indicative of prior sexual abuse. Regarding Y.M.'s statements at the forensic interview, the court stated, "[T]he court does believe [Y.M.] and believes that [Y.M.] recanting during the forensic interview that it happened could be the result of multiple pressures on [Y.M.] to go back to the family home, to have stepfather return to the family home, for the family to be together, for all of the siblings to have the [step]father, for the breadwinner, the stepfather, who is the only financial provider, to be back in the home to be able to provide for the family. [¶] Those are a lot of pressures on a young person. And it appears to the court that [Y.M.] has been isolated because of the sexual abuse [Y.M.] endured. That [Y.M.] feels very alone and as a result the emotional manifestation is multiple suicide attempts, self[-]harm, [and] body image issues." The court ordered Y.M. released to the home of mother and granted mother family maintenance services.
Mother timely appealed.
C. Post-Appeal Proceedings
In September 2023, after mother filed her appeal, the juvenile court found the conditions that justified the initial assumption of jurisdiction under section 300 no longer existed and were not likely to exist if supervision was withdrawn. The court terminated its jurisdiction and stayed the order pending receipt of a juvenile custody order granting mother sole legal and physical custody of Y.M. A few days later, the court entered the final juvenile custody order, lifted its stay, and terminated jurisdiction. Mother did not appeal from the orders. The Department filed a request for judicial notice of these post-appeal orders, which was granted. (Evid. Code, § 452, subds. (c) &(d).)
The Department also filed a motion to dismiss mother's appeal as moot together with its request for judicial notice. The motion to dismiss was denied.
DISCUSSION
A. Mootness
1. Governing Law
"A case becomes moot when events '"render[ ] it impossible for [a] court, if it should decide the case in favor of plaintiff, to grant him any effective] relief."' [Citation.] For relief to be 'effective,' two requirements must be met. First, the plaintiff must complain of an ongoing harm. Second, the harm must be redressable or capable of being rectified by the outcome the plaintiff seeks." (In re D.P. (2023) 14 Cal.5th 266, 276.) In a dependency case, "relief is effective when it 'can have a practical, tangible impact on the parties' conduct or legal status.' [Citation.]" (Id. at p. 277.)
"Even when a case is moot, courts may exercise their 'inherent discretion' to reach the merits of the dispute. [Citation.]" (In re D.P., supra, 14 Cal.5th at p. 282.) Our Supreme Court has provided a non-exhaustive list of factors to be considered when deciding whether a court should exercise discretionary review of a moot appeal: (1) "whether the challenged jurisdiction finding 'could be prejudicial to the appellant or could potentially impact the current or future dependency proceedings,' or '"could have other consequences for [the appellant] beyond jurisdiction"'" (Id. at p. 285); (2) "whether the jurisdictional finding is based on particularly pernicious or stigmatizing conduct" (Id. at pp. 285-286); and (3) "why the appeal became moot." (Id. at p. 286.)
2. We Exercise Our Discretion to Consider Mother's Appeal
The Department argues the appeal is moot because mother did not appeal from the custody order and order terminating jurisdiction and those orders are now final. The Department asserts mother will have custody of Y.M. until she reaches the age of 18, so there is no effective relief this court can provide. Mother contends the appeal is not moot because the jurisdictional findings may detrimentally impact her in future family or dependency proceedings. Because the juvenile court terminated jurisdiction and issued a final custody order granting mother sole legal and physical custody, which she did not appeal, we can grant mother no effective relief. (See In re N.S. (2016) 245 Cal.App.4th 53, 61 [appeal moot where challenged jurisdictional findings were not the basis of any current adverse order to the parent]; see also In re Rashad D. (2021) 63 Cal.App.5th 156, 163 [juvenile court had no jurisdiction to conduct further hearings unless reviewing court also reversed or vacated order terminating dependency jurisdiction].) Mother's concern future family or dependency proceedings may be impacted by the finding is speculative and insufficient to avoid mootness. (In re D.P., supra, 14 Cal.5th at p. 278.) Thus, mother's appeal is moot.
Nevertheless, we exercise our inherent discretion to review mother's jurisdictional challenge. (In re D.P., supra, 14 Cal.5th at p. 282.) The findings that mother knew of stepfather's sexual abuse and failed to protect Y.M. were "based on particularly pernicious or stigmatizing conduct." (Id. at pp. 285-286; see also In re M.W. (2015) 238 Cal.App.4th 1444, 1452 ["[t]he findings that mother knowingly or negligently exposed her children to a substantial risk of . . . sexual abuse are pernicious," warranting merits review].) The nature of the sexual abuse allegations therefore weigh in favor of exercising discretionary review. (In re D.P., at pp. 285-286.) We address mother's challenge to the jurisdictional finding based on stepfather's sexual abuse of Y.M. and mother's failure to protect Y.M. from the sexual abuse.
B. Substantial Evidence Supported the Juvenile Court's Exercise of Jurisdiction
Mother asserts the jurisdictional finding under subdivision (d) of section 300 is not supported by substantial evidence. We disagree.
1. Governing Law and Standard of Review
Section 300, subdivision (d), provides for dependency jurisdiction over a child if "[t]he child has been sexually abused, or there is a substantial risk that the child will be sexually abused, as defined in Section 11165.1 of the Penal Code, by the child's parent or guardian or a member of the child's 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."
A failure to protect can include a parent's failure to remove a child from an abuser's presence or to report the abuse to the authorities. (See In re Amy M. (1991) 232 Cal.App.3d 849, 861862, 863 [dependency jurisdiction warranted where the mother failed to protect her daughter by allowing her to remain in the care of her father after the daughter told mother he raped her].) Additionally, a parent's refusal to believe a child's abuse allegations can constitute a failure to protect. (See In re J.K. (2009) 174 Cal.App.4th 1426, 1439 [dependency jurisdiction appropriate where the mother disbelieved her daughter's disclosures of sexual abuse]; In re Katrina W. (1994) 31 Cal.App.4th 441, 446-447 [holding substantial evidence supported juvenile court's exercise of jurisdiction where the father sexually molested daughter but the mother did not believe anything improper happened].)
"'In reviewing a challenge to the sufficiency of the evidence supporting the jurisdictional findings and disposition, we determine if substantial evidence, contradicted or uncontradicted, supports them. "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.] "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. [Citations.] '"[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 find [that the order is appropriate]."' [Citation.]" [Citation.]'" (In re I.J. (2013) 56 Cal.4th 766, 773.) "The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order." (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)
2. Mother's Failure to Protect Y.M. from Stepfather's Sexual Abuse
Mother argues there is not substantial evidence to support the jurisdictional finding under section 300, subdivision (d), because there was evidence the sexual abuse did not occur and Y.M. gave inconsistent statements about the abuse. Mother essentially asks us to reweigh the evidence and reevaluate the credibility of witnesses, which we may not do. (In re I.J., supra, 56 Cal.4th at p. 773.) Instead, we review whether the record, viewed in the light most favorable to the court's determinations, contains substantial evidence to support the juvenile court's findings.
The record shows Y.M. disclosed to her therapist that stepfather sexually abused her. After receiving a report of suspected sexual abuse concerning Y.M., police officers spoke with her. She consistently told them the abuse began when she was between seven and eight years old and continued until she confronted stepfather about the abuse. She reported stepfather inappropriately touched her over her clothes.
When Y.M. spoke with the social worker, she repeated that stepfather began touching her inappropriately when the family lived in Kansas and she was seven or eight years old, and it did not stop until she was 10 or 11 years old. Y.M. stated that stepfather touched her thighs, vagina, and breast over her clothes. She further stated he would make her kiss him on the lips and touch his penis on top of his pants. She said stepfather would buy her things so she would not tell anyone, and she remembered on one occasion he threatened to leave and not help the family financially if she told mother. Y.M. gave specific details about the abuse and where it occurred.
A few weeks later, Y.M. talked with the dependency investigator and further explained the memories of the sexual abuse by stepfather were triggered by the sexual harassment she experienced with a male classmate. She realized the inappropriate touching previously occurred with stepfather. Y.M. reiterated that stepfather touched her in places that made her feel uncomfortable.
Additionally, although mother asserts that the record does not support any reason to find she should have known about the sexual abuse, Y.M. told the social worker she confronted stepfather about the sexual abuse in front of mother. Y.M. stated mother did not believe her and said things such as, "'[H]e would never do that to you', 'it was just a nightmare', 'you just want to cause me problems.' [sic]" This is evidence that mother was aware stepfather sexually abused Y.M. but did nothing to protect Y.M. She did not promptly report the matter to law enforcement. She did not move the family out of the home or try to make stepfather move out. (See In re Amy M., supra, 232 Cal.App.3d at pp. 862-863.) Mother instead disbelieved Y.M., accused Y.M. of trying to cause her problems, and continued to allow stepfather to have access to Y.M. (See In re J.K., supra, 174 Cal.App.4th at p. 1439; see also In re Katrina W., supra, 31 Cal.App.4th at pp. 446-447.) Mother defended stepfather and told the social worker she had no concerns about him and planned to stay with him.
While there is evidence also tending to disprove the allegations, it is not appropriate for us to reweigh evidence. (In re Dakota H., supra, 132 Cal.App.4th at p. 228 ["judgment will be upheld if it is supported by substantial evidence, even though substantial evidence to the contrary also exists and the trial court might have reached a different result had it believed other evidence"].) The trier of fact, the juvenile court, expressly found Y.M.'s statements to her therapist and the social worker about stepfather's sexual abuse credible, including that she confronted stepfather about the abuse in front of mother but mother did not believe her. Moreover, the court found that Y.M. likely recanted the sexual abuse by stepfather during the forensic interview because of the multiple pressures she was facing, such as the pressure to have stepfather, who was the sole financial provider for the family, back in the home. After reviewing the evidence, the court believed that Y.M. was isolated and felt very alone, which manifested itself in multiple suicide attempts, self-harm, and body image issues.
The court found Y.M.'s emotional state was indicative of prior sexual abuse. Y.M. explained she attributed negative feelings, including feeling "disgusted with herself and her body" and having thoughts of hurting herself and stepfather, to the abuse by stepfather. Moreover, she stated that after she confronted stepfather and the touching stopped, the loss of physical touch made her feel "'lonely, worthless, pathetic, and all of these negative emotions.'" She began to have body image issues, such as feeling she was too skinny and eating a lot to gain weight to regain physical touch.
The juvenile court weighed the evidence and acknowledged the inconsistencies in Y.M.'s statements but nonetheless found Y.M. credible. There being nothing impossible or inherently improbable in her statements, the standard of review prohibits us from finding to the contrary. (See People v. Ennis (2010) 190 Cal.App.4th 721, 728 [We must accept the trial court's credibility determinations, unless the evidence supporting it is physically impossible or inherently improbable]; see also In re S.A. (2010) 182 Cal.App.4th 1128, 1149 [discrepancies in evidence do not show abuse was inherently improbable or physically impossible].) Having found substantial evidence to support the jurisdictional finding, "'it is of no consequence'" that other evidence or inferences drawn from the evidence might have supported a contrary finding. (In re Marriage of Goodwin-Mitchell & Mitchell (2019) 40 Cal.App.5th 232, 239.) To the extent that mother asserts Y.M. was not at risk of suffering harm at the time of the jurisdictional hearing, subdivision (d) of section 300 does not require evidence of a current risk. (In re Carlos T. (2009) 174 Cal.App.4th 795, 803-804.) It is sufficient that "[t]he child has been sexually abused." (§ 300, subd. (d).)
Based on the foregoing, the juvenile court's finding that Y.M. was a dependent child under section 300, subdivision (d), was supported by substantial evidence. Given this conclusion concerning the sexual abuse allegations, we do not reach mother's challenge to the remaining jurisdictional findings. (See In re I.J., supra, 56 Cal.4th at p. 773 [where dependency petition alleges multiple grounds for asserting jurisdiction, reviewing court can affirm jurisdictional finding if any one of the bases for jurisdiction is supported by the evidence]; see also In re M.R. (2017) 7 Cal.App.5th 886, 896 ["'[a]s long as there is one unassailable jurisdictional finding, it is immaterial that another might be inappropriate'"].)
DISPOSITION
The jurisdictional order is affirmed.
We concur: COLLINS, Acting P. J., ZUKIN, J.