Opinion
B298357
08-05-2020
In re Paulina P., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. M.C. et al., Defendants and Appellants.
Andre F. F. Toscano, under appointment by the Court of Appeal, for Defendant and Appellant P.P., Sr. Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant, M.C. Mary C. Wickham, County Counsel, Kristine P. Miles and Veronica Randazzo, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. Nos. 18CCJP00009A, 18CCJP00009B, 18CCJP00009C) APPEALS from orders of the Superior Court of Los Angeles County, Daniel Zeke Zeidler, Judge. Affirmed. Andre F. F. Toscano, under appointment by the Court of Appeal, for Defendant and Appellant P.P., Sr. Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant, M.C. Mary C. Wickham, County Counsel, Kristine P. Miles and Veronica Randazzo, Deputy County Counsel, for Plaintiff and Respondent.
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M.C. (mother) and P.P., Sr., (father) separately appeal from the orders of the juvenile court taking jurisdiction over their baby daughter and removing her from their physical custody. We affirm.
BACKGROUND
I. The family and the petition concerning baby's older siblings
The family consists of mother, father, son (age 9), daughter (age 7), and baby (age 1). The older children, who are not at issue in this appeal, have been the subject of numerous welfare referrals to the Department of Children and Family Services (DCFS) involving neglect, violence, drug abuse, and physical and sexual abuse.
In 2016, the juvenile court declared daughter and son dependents after finding true the allegations that mother abused drugs, the parents engaged in violence in the children's presence, and father failed to protect the children from mother, who was convicted of inflicting corporal injury to a spouse. Jurisdiction was terminated by the juvenile court who gave father sole legal and physical custody of the children and awarded mother monitored visitation.
The juvenile court again declared son and daughter dependents under Welfare and Institutions Code section 300, subdivision (b)(1) in April 2018, after finding true the allegations that mother continued to abuse drugs and father failed to protect the children from mother by allowing her to reside and have unlimited, unmonitored contact with them, and by instructing the children to give false information about mother's residence. The court removed son and daughter from both parents' custody, and ordered family reunification services and monitored visitation. II. Baby's dependency proceeding
All further statutory references are to the Welfare and Institutions Code.
DCFS learned that mother, who was not to be alone with the children, brought daughter into a clinic for a cold, where doctors diagnosed the child with genital warts.
Approximately 12 days after baby was born, daughter's therapist made a report to DCFS. Daughter disclosed that mother taught daughter how to masturbate and made daughter watch mother masturbate. Mother also brought housemate Tony B. over to touch daughter's private area. According to the therapist, the molestation started when daughter was about three years old and continued until she was six. The therapist found daughter to be upset and credible. Later, the therapist added that daughter stated if she did not touch herself, mother would get mad and hit her with a sandal or belt.
Daughter confirmed to the police and to DCFS that when she was three years old, mother touched her and taught her how to masturbate and told her to masturbate in front of mother. Daughter told the social worker that she was living with father, but mother would sometimes live with them while father worked. Mother would get into daughter's bed and move her fingers in and out of daughter's vagina. Mother would then touch herself under her own clothing. Mother brought Tony B. in to do the same things to the child. Daughter rubbed her crotch to demonstrate how Tony B. would rub his fingers in her vagina. Mother told daughter not to tell anyone. Daughter did not tell father because mother would hit her. Tony B. lived in the garage and came into their home to use the bathroom, to cook, and to "hang out with [daughter's] dad and they would get drunk." Daughter said that mother used drugs with Tony B. Daughter has not had any contact with Tony B. since her removal and does not want to visit her parents.
In her interview with the child interview lab, daughter was very resistant to talking about the abuse. Finally, daughter used drawings to make the same disclosures.
A dermatologist diagnosed daughter with genital warts near her anus and in the vaginal area, which is uncommon for a child.
Son reported to the police and DCFS that he did not see mother or Tony B. touch daughter inappropriately. However, he saw Tony B. offer daughter $100 to show him her private parts. Son took daughter away and told her not to listen to Tony B. Also, Tony B. offered son money to see [daughter]'s private parts. Son explained that Tony B. lived in the garage and had a key to the house to use the bathroom and kitchen. The child added that Tony B. was mother's drug dealer because he would give mother baggies of white powder. When son told father about Tony B.'s offer to daughter, father replied that he did not believe the allegations and told son to get out of his way.
In son's interview with the child interview lab, he reported that when he was seven and eight years old, Tony B. offered him money six times to show Tony B. his private parts. Tony B. pestered son until the child had had enough and told father. Father accused the child of lying because Tony B. was father's friend.
Paternal grandmother knew that daughter had been masturbating for the past few years, but was unaware of the sexual abuse. Paternal grandmother spoke to mother after seeing daughter put her fingers inside her vagina while in the bath. Mother insisted it was fine and told grandmother to be quiet.
Both parents denied the allegations to DCFS and claimed that the paternal grandparents either made them up or taught daughter the behavior. Father claimed that he knew his daughter better than anyone and would have known if someone was abusing her. Daughter never told him about the abuse. Father insisted that Tony B. did not have access to the house, and instead relieved himself on the street. Mother denied that she lived with father or spent the night or any time alone with the children. She claimed she knew of Tony B., but denied that he was her drug dealer or that they were friends. Mother admitted having a long history of methamphetamine abuse.
DCFS filed a subsequent petition on behalf of daughter and son alleging that mother sexually abused daughter and that father reasonably should have known of the sexual abuse but failed to protect the child by allowing mother to have unlimited access to daughter and by refusing to believe the child was being sexually abused. As for Tony B., the subsequent petition alleged that he sexually abused daughter and engaged in a course of conduct for the purpose of having sexual contact with both children, and that the parents failed to protect the children from Tony B.
DCFS also filed an original petition on behalf of then-two-week-old baby, alleging that baby was placed at risk of serious harm because of mother's and Tony B.'s sexual abuse of daughter, mother's failure to protect daughter from Tony B., father's failure to protect daughter, and mother's history of substance abuse (counts b-3 & j-3). (§ 300, subds. (b), (d), & (j).)
At the jurisdictional hearing, the juvenile court heard testimony from father and a former social worker called by mother, and found, apart from one statement by daughter in which she appeared to say mother did not touch her, that the children were "very consistent, for the most part, really, and credible." (Italics added.) Although the grandparents and caretaker may have coached the children, the court did not believe the coaching diminished the children's consistency and credibility, especially combined with the evidence that daughter had genital warts. The court remarked that son was "very, very credible" about having repeatedly informed father about Tony B.'s offers. (Italics added.)
The juvenile court sustained the allegations in petitions, removed baby from parental custody, and ordered supervised visitation. The parents separately appealed.
DISCUSSION
I. Jurisdiction over baby under section 300, subdivision (j) is supported by substantial evidence
The juvenile court's jurisdictional findings under section 300 must be made by a preponderance of the evidence. (§ 355, subd. (a).) On appeal, we review jurisdictional orders for substantial evidence. (In re D.C. (2015) 243 Cal.App.4th 41, 55.) We view the record in the light most favorable to the juvenile court's determinations, drawing all reasonable inferences from the evidence to support the court's findings and orders. (In re I.J. (2013) 56 Cal.4th 766, 773 (I.J.).) The pertinent question is whether substantial evidence supports the finding, not whether a contrary finding might have been made. (See In re T.W. (2013) 214 Cal.App.4th 1154, 1162.) Issues of fact and credibility are the province of the juvenile court and we neither reweigh the evidence nor exercise our independent judgment. (I.J., at p. 773.)
The juvenile court declared baby a dependent under subdivisions (b), (d) and (j) of section 300. We may affirm this jurisdictional finding if any one of these statutory bases for jurisdiction is supported by substantial evidence. (I.J., supra, 56 Cal.4th at pp. 773-774.) Focusing on subdivision (j) of section 300, it applies when, "(1) the child's sibling has been abused or neglected as defined in specified other subdivisions and (2) there is a substantial risk that the child will be abused or neglected as defined in those subdivisions." (I.J., at p. 774.)
Baby's sibling is a dependent under subdivision (j) because the juvenile court found the allegation true that mother fondled and digitally penetrated daughter's vagina and allowed Tony B. to sexually abuse daughter and offer son money to reveal his private parts, and that father failed to protect the children. Neither parent has challenged these findings and so they are not before us. Therefore, the first requirement of subdivision (j) has been met. (Cf. I.J., supra, 56 Cal.4th at p. 774 [first requirement of § 300, subd. (j) met where sibling abused as defined in subd. (d)].)
Although mother and father filed notices of appeal from the order sustaining the subsequent petition naming daughter and son, neither parent's brief raises arguments about the juvenile court's order sustaining that petition. Therefore, any challenge to the jurisdiction order concerning daughter and son is deemed to have been abandoned. (In re Sade C. (1996) 13 Cal.4th 952, 994.)
As for the second requirement of section 300, subdivision (j), that subdivision " 'was intended to expand the grounds for the exercise of jurisdiction as to children whose sibling has been abused or neglected as defined in section 300, subdivision (a), (b), (d), (e), or (i).' " (I.J., supra, 56 Cal.4th at p. 774.) Section 300, subdivision (j) helpfully lists factors for the court 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." " 'Subdivision (j) thus allows the court to take into consideration factors that might not be determinative if the court were adjudicating a petition filed directly under one of those subdivisions. [¶] The broad language of subdivision (j) clearly indicates that the trial court is to consider the totality of the circumstances of the child and his or her sibling in determining whether the child is at substantial risk of harm, within the meaning of any of the subdivisions enumerated in subdivision (j).' " (I.J., at p. 774.)
Under subdivision (j) of section 300, "the more egregious the abuse, the more appropriate for the juvenile court to assume jurisdiction over the siblings." (I.J., supra, 56 Cal.4th at p. 778.) To " 'determine whether a risk is substantial, the court must consider both the likelihood that harm will occur and the magnitude of potential harm . . . .' [Citation.] . . . the more severe the type of sibling abuse, the lower the required probability of the child's experiencing such abuse to conclude the child is at a substantial risk of abuse or neglect under section 300. If the sibling abuse is relatively minor, the court might reasonably find insubstantial a risk the child will be similarly abused; but as the abuse becomes more serious, it becomes more necessary to protect the child from even a relatively low probability of that abuse." (Ibid.)
Considering the record according to the usual rules of appellate review (I.J., supra, 56 Cal.4th at p. 773), the totality of the circumstances amply supports the juvenile court's conclusion that baby is at substantial risk of harm from abuse or neglect. The sexual abuse of daughter, starting when she was a toddler and lasting three years, was severe: not only did mother repeatedly force daughter to masturbate while she watched and digitally penetrate the child, but she hit daughter when the child balked. She further exploited daughter by giving the child to Tony B. to sexually molest. Compounding the risk of harm, father enabled the conduct to persist by allowing mother to have access to the children in violation of longstanding court orders, and by rejecting his own son's warnings. " 'When a parent abuses his or her own child, . . . the parent also abandons and contravenes the parental role. Such misparenting is among the specific compelling circumstances which may justify state intervention, including an interruption of parental custody.' " (Id. at p. 778.)
Mother reminds us that the Supreme Court in I.J., supra, 56 Cal.4th at page 780, did " 'not hold[ ] that the juvenile court is compelled, as a matter of law, to assume jurisdiction over all the children whenever one child is sexually abused.' " Just so. The I.J. court left the task to the juvenile court to consider the factors enumerated in section 300, subdivision (j) to determine the facts adduced, and to assess the severity of the sibling abuse, the likelihood that harm will occur to the child, and the magnitude of that potential harm. (I.J., at p. 778.) Here, the totality of the facts and circumstances support the court's finding baby is defined by subdivision (j) of section 300.
Mother contends that the evidence underpinning the subsequent petition does not support the finding that baby is at current and substantial risk of "sexual abuse." (Italics added.) But, subdivision (j) does not state that its application is limited to the risk that the child will be abused or neglected as defined in the same subdivision that describes the abuse or neglect of the sibling. Rather, subdivision (j) directs the trial court to consider whether there is a substantial risk that the child will be harmed under subdivision (a), (b), (d), (e) or (i) of section 300, notwithstanding which of those subdivisions describes the child's sibling. (I.J., supra, 56 Cal.4th at p. 774.) Our focus is on whether the parents' abuse and neglect of daughter and son place baby at substantial risk of harm under any one of the enumerated subdivisions. It clearly does. These parents have a long history of severely abusing, neglecting, and failing to protect baby's siblings, despite juvenile court involvement—a classic basis for subdivision (b) jurisdiction—which places baby at substantial risk of harm.
The parents' attempt to distinguish I.J., supra, 56 Cal.4th 766, is unavailing. In I.J.at pages 770 and 778, the appellate court described as " 'aberrant in the extreme,' " the father's fondling and digitally penetrating his daughter's vagina, and raping and orally copulating her over the course of three years. The parents here make the astonishingly tone-deaf argument that the sexual abuse, "while undoubtedly inappropriate and harmful—was not sufficiently egregious, aberrant and/or extreme to derivatively place [baby] at risk of similar abuse" (italics added), and that mother's conduct was not "sexualized."
Not only are there eerie factual similarities between the facts in I.J. and the abuse daughter suffered here, but the sexual abuse of mother's own child, peddling daughter to Tony B. over the course of three years, and hitting the child if she refused, most certainly is sexualized. It is also egregious, aberrant, and inappropriate behavior. As the Supreme Court declared, " '[s]exual or other serious physical abuse of a child by an adult constitutes a fundamental betrayal of the appropriate relationship between the generations.' " (I.J., supra, 56 Cal.4th at p. 778, italics added.) The I.J. court added that " 'aberrant sexual behavior by a parent places the victim's siblings who remain in the home at risk of aberrant sexual behavior' " (id. at p. 776), irrespective of whether the exact nature of the sexual abuse is as extreme as the sexual abuse in I.J.
While acknowledging that they are not challenging the juvenile court's findings underpinning its order sustaining the section 342 petition concerning daughter and son, both parents attack daughter's statements in an effort to undermine the substantiality of the evidence to support jurisdiction over baby. They cite In re I.C. (2018) 4 Cal.5th 869 to contend that daughter's disclosures are "unfounded," "inconclusive," and the result of the paternal grandparents' "coaching campaign." Mother attacks daughter's statements as unreliable, "vague[ ]," and "uncorroborated recollections of a then truth incompetent child." Father claims daughter's statements do not merit "full weight and credibility."
The Supreme Court in In re I.C., supra, 4 Cal.5th at page 875, explained that in juvenile dependency proceedings, "a child's out-of-court reports of parental abuse are admissible in evidence regardless of whether the child is competent to testify in court. [Citations.] But a juvenile court may not base its findings solely on the hearsay statements of a truth-incompetent child . . . unless the child's statements bear 'special indicia of reliability.' " (Italics added.) The Supreme Court defined a "truth-incompetent child" as one "who may not testify because she is too young to separate truth from falsehood." (Ibid.)
Daughter is unlike the child in In re I.C., supra, 4 Cal.5th at pages 877 and 896, who was determined to be truth-incompetent because she was three years old, had recently encountered the older child who had molested her, and her accounts contained "inconsistencies and inaccuracies that were woven through her core allegations." Here, daughter was seven years old at the time of the jurisdictional hearing, and made consistent statements to the police, to DCFS, and to her therapist. Not only did the therapist find daughter to be believable, but the juvenile court stated repeatedly that it found the children to be credible, even while acknowledging the paternal grandparents' coaching. Moreover, the juvenile court did not rely solely on daughter's hearsay statements. It had daughter's interview by the child interview lab and drawings, and the fact that daughter demonstrated what Tony B. did to her—behavior a seven-year-old child should not otherwise know. The court was particularly persuaded by daughter's warts around her anus and in her vaginal area, which her doctor explained were clinically consistent with genital warts transferred by interpersonal contact. Unlike In re I.C., at page 895, the court's finding here was not based solely on daughter's uncorroborated out-of-court statements. If daughter were the only witness against parents in a criminal prosecution, they would both be in prison.
Father parrots mother's contention that baby was not at risk of suffering harm because there was no evidence that she had been abused. Of course, baby was all of two weeks old at the time DCFS detained her and filed the petition, which fortunately protects her from any future risk of the abuse and neglect daughter and son endured. Moreover, "section 300 does not require that a child actually be abused or neglected before the juvenile court can assume jurisdiction. The subdivisions at issue here require only a 'substantial risk' that the child will be abused or neglected." " '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.' " (I.J., supra, 56 Cal.4th at p. 773.)
The parents also contend that baby is not at risk of harm because at the time of the jurisdiction hearing, the parents were participating in services and father was cooperating with DCFS. Mother's sexual abuse awareness class was for victims whereas mother is the perpetrator. Father's neglect and failure to protect his children was a reason for son's and daughter's two dependencies. Although he participated in services, he still lived with and allowed mother unlimited, unmonitored access to the children even as late as the jurisdictional hearing, in direct violation of court orders. Despite his participation in services, father further betrayed his children by refusing to believe his own son's reports and by continuing to doubt that daughter was sexually abused. He testified as much at the jurisdiction hearing. "One cannot correct a problem one fails to acknowledge." (In re Gabriel K. (2012) 203 Cal.App.4th 188, 197.) II. The removal order is supported by the evidence.
Both parents argue that where the jurisdictional findings are not supported by the evidence, the dispositional orders must be reversed. The contention is unavailing: we affirm the jurisdictional order.
Father argues that removal is unsupported by the evidence because he has actively participated in court-ordered services and so baby is differently situated than her siblings. The parents both argue there were reasonable means of protecting baby short of removal.
Before the juvenile court may order children physically removed from their parent's custody, it must find by clear and convincing evidence that the children would be at substantial risk of harm if returned home and there are no reasonable means by which they can be protected without removal. (§ 361, subd. (c)(1).) "The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child. [Citation.] We review the court's dispositional findings for substantial evidence." (In re T.V. (2013) 217 Cal.App.4th 126, 135-136.)
Initially, we conclude that mother forfeited the right to challenge the removal order. At the dispositional hearing, the juvenile court asked mother's attorney whether mother wished to be heard on the question of disposition. Counsel's response presupposed that baby would be removed, responding that mother wanted unmonitored visits with daughter and baby. Again when asked about the disposition for baby in particular, mother's attorney stated, "I would ask the court grant my client unmonitored visits, and if the court is not inclined to do so, I would ask upon mother['s] enrollment in the sex abuse class, order her—she may [have] unmonitored visits with the minor." (Italics added.) Mother never argued against removing baby from her custody in the first place. Nor did she request that the child be released to her. Mother's challenge to removal is forfeited. (See In re Richard K. (1994) 25 Cal.App.4th 580, 589-590.)
Even addressing the issue, we conclude that the juvenile court's removal order is supported by substantial evidence. A drug abuser, mother sexually abused daughter over the course of three years and brought Tony B. to do the same thing. Father has a history of neglecting his children by failing to protect them. Despite participating in services, father continues to deny that daughter was abused by mother and Tony B. and remains in a relationship with mother, even living with her. In addition to the failure of the parents to comprehend the serious impact their conduct has on their children, daughter's therapist reported in late May 2019, that daughter was scared to visit with mother, fearing her parents will hit her for disclosing the abuse. The child is experiencing flashbacks that make her highly anxious, which she relieves by masturbating in school and at home. Baby is preverbal and cannot protect herself or report problems. Leaving an infant in the custody of these adults is not a reasonable means of protecting her as it will unquestionably put her at risk of more harm.
DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED.
DHANIDINA, J. We concur:
LAVIN, Acting P. J.
EGERTON, J.