Opinion
B232712
01-12-2012
In re ALEXANDER L., et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. H.M., Defendant and Appellant.
Roland Koncan, under appointment by the Court of Appeal, for Defendant and Appellant. Nancy O. Flores, under appointment by the Court of Appeal, for Minors and Appellants. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Melinda White-Svec, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. CK81919)
APPEAL from an order of the Superior Court of Los Angeles County, Stephen Marpet, Juvenile Court Referee. Affirmed.
Roland Koncan, under appointment by the Court of Appeal, for Defendant and Appellant.
Nancy O. Flores, under appointment by the Court of Appeal, for Minors and Appellants.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Melinda White-Svec, Deputy County Counsel, for Plaintiff and Respondent.
H.M. (mother) and her sons, Alexander L. and David L., appeal from the order of March 25, 2011, continuing sons' suitable placement order of May 21, 2010. They contend substantial evidence does not support the order. We affirm.
STATEMENT OF FACTS AND PROCEDURE
Alexander, born in 1999, and David, born in 2002, were born to mother and J.L. (father). Mother was sexually and physically abused when she was a child and physically abused by her previous partners. Sons lived with mother and their older sisters, R., born in 1997, and K., born in 1993. In 2006, K. became pregnant. Mother forced K. to leave the home and live with her 16-year-old boyfriend and his family, demanding the boyfriend's mother take full responsibility for K.
The dependency court found J.L. to be the biological father of sons. His whereabouts were unknown.
In 2008, Andres T., mother's boyfriend, moved into the home. Sons and R. considered him their father. Andres sexually molested R. on an ongoing basis from age 10 until the abuse was reported to the child abuse hotline in April 2010, when R. was 12. Almost weekly, he fondled her thighs, legs, vagina, and breasts, and he placed his penis below her vagina simulating sexual intercourse. Both R. and K. informed mother that Andres was touching R., but mother did not believe them. She permitted Andres to remain in the home and have unlimited access to R., which allowed the molestation to continue. Mother hit R. with a belt. R. periodically cut herself on her arm because of being sexually molested by Andres and hit by mother.
Sons and R. were detained from mother by the Department of Children and Family Services (Department) on April 15, 2010, and a Welfare and Institutions Code section 300petition was filed. When the social worker told mother about R.'s allegations of sexual abuse, mother did not believe R. was truthful. Mother thought R. invented the allegations, because she wanted to go out at night. Andres was arrested and charged with violating Penal Code section 288a (lewd act with a child). When mother learned Andres confessed to the police, she expressed hurt and sadness that he betrayed her, but no empathy with R. for what R. had endured.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
R. experienced symptoms of posttraumatic stress disorder, including flashbacks, isolation, lack of energy, and lack of motivation.
On May 21, 2010, sons and R. were declared dependents of the court under section 300, subdivisions (b), (d), (g), and (j), based on sustained allegations, as to mother, that: on numerous occasions since 2008, Andres sexually abused R. and mother failed to protect the child when she knew or reasonably should have known of the abuse, which placed R. and sons at risk of physical and emotional harm, sexual abuse, and failure to protect. Custody was taken from mother and given to the Department for suitable placement, with the Department to provide reunification services. Mother was ordered to participate in parenting, family counseling with R. when recommended by R.'s therapist, and individual counseling addressing all case issues, including sexual abuse, with an approved therapist. Mother was granted monitored visits. Mother stated she had applied for a restraining order against Andres and promised she would have no contact with him.
No party appealed the judgment.
Sons bonded well in their foster placement. Mother's visits were consistent and affectionate, but sons did not want to return to her care until R. could return home with them. Mother enrolled in parenting classes and an anger management/domestic violence group. She participated in individual therapy with an unlicensed, unsupervised therapist who was not approved by the Department. The therapy did not deal with case issues.
Mother discussed case issues with R. during a visit, asking R. what happened with Andres. R. told mother everything, including that Andres gave her money for letting him touch her. Mother became very upset and she berated R. for not telling her everything sooner. Mother said R. was responsible for Andres touching her and for the children being in foster care. Mother attended Andres' criminal court proceedings in January 2011.
A contested section 366.21, subdivision (e) review (six-month review hearing) was held on January 28, 2011. Mother wanted return of her sons or liberalized visits. The dependency court found return of the children would create a substantial risk of detriment. "I'm not sure mother really understands the whole dynamic of sex abuse and whether or not she actually, really believes her daughter was sexually abused, and I think that puts [R.'s] siblings at risk." The court was not convinced mother believed R. Sons were ordered to remain suitably placed, reunification services were continued, and mother's visits with sons were liberalized to include reasonable, unmonitored day visits.
The matter was continued to March 25, 2011, "for a nonappearance progress report on[, among other things,] how mother and the visits are going[.]" A section 366.21, subdivision (f) (12-month review) hearing was scheduled for May 20, 2011.
Sons filed a petition for writ of mandate seeking review of the order of January 28, 2011, denying return of sons to mother's custody, contending substantial evidence did not support the order. On February 24, 2011, the petition was denied: there was an adequate remedy at law; and sons failed to demonstrate an abuse of discretion. (Order, filed Feb. 24, 2011, in Alexander and David L. v. Superior Court, B230644.) No party filed an appeal of the January 28, 2011 orders. We have taken judicial notice of the pleadings and order in the proceeding for writ of mandate. (Evid. Code, § 452.)
Mother was referred for individual therapy with an approved therapist that the social worker confirmed would provide her with low cost services, but mother failed to enroll. Mother completed parenting and counseling programs, a sexual abuse awareness program, and an anger management/domestic violence program. However, once unmonitored visits started, sons began to state that they did not believe Andres abused R. and that Andres had only entered a plea to the criminal allegations in order to get less time in incarceration. Sons' foster mother did not give them that information.
Mother falsely told the social worker she was enrolled.
On March 25, 2011, at the nonappearance progress report hearing, counsel for mother and sons argued that sons should be returned to her care. The Department argued that mother's residence was too small to provide a home for sons, but the dependency court found the size of the residence did not pose a risk to sons. Stating "[a]t this point . . . we need to have continued discretion," the court continued the suitable placement order and granted the Department continued discretion to liberalize mother's visits as deemed appropriate.
These timely appeals followed.
DISCUSSION
Mother and sons contend substantial evidence does not support the order of March 25, 2011, continuing the suitable placement order. We disagree with the contention.
We review custody determinations for abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) Custody rulings are not disturbed in a dependency proceeding unless they are arbitrary, capricious, or patently absurd. (Ibid.)
There is no abuse of discretion where substantial evidence supports the order. (In re Daniel C. H. (1990) 220 Cal.App.3d 814, 839.) In determining whether an order is supported by substantial evidence, "we look to see if substantial evidence, contradicted or uncontradicted, supports [it]. [Citation.] 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.]" (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) "We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court." (In re Matthew S. (1988) 201 Cal.App.3d 315, 321.) Thus, the pertinent inquiry is whether substantial evidence supports the finding, not whether a contrary finding might have been made. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)
We have no jurisdiction to review mother's and sons' contention that the allegations sustained by the dependency court a year earlier, that Andres' sexual abuse of R. and mother's failure to protect placed sons at risk of harm, are not supported by substantial evidence. The sustained allegations were not appealed and are now final and binding. (See Cal. Rules of Court, rule 8.406(b).) "[Appellant's] assault on the validity of the [dispositional] finding comes too late. [A]ppellate jurisdiction is dependent upon the filing of a timely notice of appeal. [Citations.] 'An appeal from the most recent order entered in a dependency matter may not challenge prior orders, for which the statutory time for filing an appeal has passed.' [Citations.]" (In re Megan B. (1991) 235 Cal.App.3d 942, 950.)
"In matters heard by a referee[,] a notice of appeal must be filed within 60 days after the referee's order becomes final[.]" (Cal. Rules of Court, rule 8.406(b).)
Substantial evidence supports the finding that the return of custody to mother would create a substantial risk of detriment. Mother did not participate in individual therapy addressing her failure to protect, her denial, the dynamics of sexual abuse, and other case issues, as required by the reunification case plan. From sons' recent announcement that they did not believe Andres had molested R., coming after mother began unmonitored visits, it is reasonable to infer mother inappropriately discussed case issues with sons and remained in denial of the abuse and her role. From mother's failure to enroll in approved individual therapy, it can be inferred that mother did not believe she needed to work on case issues. These facts constitute substantial evidence supporting the determination that the return of custody to mother would create a substantial risk of detriment. The custody issue was scheduled to be reviewed again in two months, at the upcoming 12-month review hearing. The dependency court's decision that mother needed to achieve more progress in rehabilitation before sons could safely be in her care was not an abuse of discretion.
We need not decide mother's contention that it was improper for the dependency court to consider her poverty a risk factor, as that was not the basis for the court's ruling.
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DISPOSITION
The order is affirmed.
KRIEGLER, J.
We concur:
ARMSTRONG, Acting P. J.
MOSK, J.