Opinion
D059622 Super. Ct. No. EJ3342A No. B
09-02-2011
In re R.R. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. MARIA M., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, Ronald F. Frazier, Judge. Affirmed.
Maria M. appeals following the jurisdictional and dispositional hearing in the dependency cases of her daughters, R.R. and M.R. (together, the girls). Maria contends the jurisdictional findings are unsupported by substantial evidence and the juvenile court abused its discretion by removing M.R. from her custody and limiting her right to make educational decisions for M.R. We affirm.
The girls' appellate counsel joins in Maria's argument regarding removal and asks this court to reverse the dispositional findings and orders.
PROCEDURAL BACKGROUND
In January 2011, when R.R. was 16 years old and M.R. was 14 years old, the San Diego County Health and Human Services Agency (the Agency) filed dependency petitions alleging they had been sexually abused, or were at substantial risk of sexual abuse, based on the actions of Gilbert L., a member of the household, beginning in January 2008. (Welf. & Inst. Code, § 300, subd. (d).) The petitions alleged Gilbert had touched M.R.'s breasts, tried to kiss her on the mouth, and grabbed her around the waist and asked her if she wanted to go to bed with him. Additionally, M.R. had heard Gilbert tell Maria about his involvement with a rape in Mexico. R.R.'s petition alleged that Gilbert tried to pull her into his bedroom. R.R. told Maria that R.R. was sick of Gilbert doing that to her and that he had tried to rape her. Maria did not believe R.R. M.R.'s petition alleged that M.R. told Maria about the sexual abuse but Maria did not believe her. M.R. was afraid to return home.
All further statutory references are to the Welfare and Institutions Code.
M.R. was detained in a foster home and R.R. was detained with Maria. Maria signed a safety plan, agreeing not to allow Gilbert to visit the family home or have contact with the girls.
In March 2011 the Agency filed an amended dependency petition for R.R. (§ 300, subd. (j).) The amended petition alleged R.R. was at substantial risk of being sexually abused based on Gilbert's sexual abuse of M.R., Maria's disbelief of M.R., and M.R.'s fear. The amended petition omitted the allegations in R.R.'s original petition that Gilbert tried to pull her into his bedroom and Maria did not believe R.R.'s disclosure of sexual abuse.
The amendment was based on R.R.'s denial of sexual abuse. M.R.'s statements remained consistent.
By the time of the jurisdictional and dispositional hearing in March 2011, R.R. was nearly 17 years old and M.R.'s 15th birthday was a few months away. At the Agency's request, the court dismissed the section 300, subdivision (d) allegation of R.R.'s original petition. Maria submitted on the Agency's reports and the juvenile court entered true findings on M.R.'s petition and R.R.'s amended petition. The court ordered R.R. placed with Maria. The court removed M.R. from Maria's custody (§ 361, subd. (c)(1)), ordered M.R. placed in foster care, limited Maria's right to make educational decisions for M.R. (§ 361, subd. (a)), and appointed the foster parents to make those decisions pending further order of the court.
THE JURISDICTIONAL FINDINGS
The purpose of section 300 "is to provide maximum safety and protection for children who are currently being physically, sexually, or emotionally abused, being neglected, or being exploited, and to ensure the safety, protection, and physical and emotional well-being of children who are at risk of that harm." (§ 300.2.) Section 300, subdivision (d) allows a dependency when "[t]he child has been sexually abused, or there is a substantial risk that the child will be sexually abused, . . . by . . . a member of his or her household, or the parent . . . has failed to adequately protect the child from sexual abuse when the parent . . . knew or reasonably should have known that the child was in danger of sexual abuse." Section 300, subdivision (j) allows a dependency when a sibling has been abused or neglected and there is a substantial risk the child will be abused or neglected.
Section 300 requires proof the child is subject to the defined risk of harm at the time of the jurisdictional hearing. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1396.) A parent's " '[p]ast conduct may be probative of current conditions' if there is reason to believe that the conduct will continue." (In re S.O. (2002) 103 Cal.App.4th 453, 461.) The child need not have been actually harmed for the court to assume jurisdiction. (See In re James R. (2009) 176 Cal.App.4th 129, 135.)
In the juvenile court, the Agency had the burden of proof by a preponderance of the evidence. (In re Matthew S. (1996) 41 Cal.App.4th 1311, 1318; § 355, subd. (a).) Maria now has the burden of showing the jurisdictional findings are unsupported by substantial evidence. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1135, disapproved on another ground by Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.) Viewing the record in the light most favorable to the juvenile court's findings, we conclude Maria has not met her burden. (In re S.A. (2010) 182 Cal.App.4th 1128, 1140.)
The Agency's reports, on which Maria submitted, establish the following: Gilbert touched M.R.'s breasts; tried to kiss her on the mouth; and grabbed her around the waist and asked her if she wanted to go to bed with him. M.R. heard Gilbert tell Maria that he had raped his niece in Mexico. In January 2011 M.R. disclosed the sexual abuse and said it had been occurring for about three years. She said Gilbert lived with the family and she did not want to go home. M.R. also reported Gilbert had tried to pull her and R.R. into his bedroom, and that R.R. had told her that R.R. was "sick of [Gilbert] doing that to [R.R.]." The morning of M.R.'s disclosure, M.R. had told Maria about the sexual abuse, and R.R. had told Maria that Gilbert had tried to rape R.R. Maria had responded, "They're lies," and had told M.R. not to come home until 10:00 p.m. that night.
The reports also describe Maria's conflicting statements. She said "we" activated a cell phone for R.R., then said she alone activated the phone. Maria said Gilbert was her cousin, then said he used to be her boyfriend. Maria denied the girls had told her of the sexual abuse, then admitted they had told her. Maria's response was to ask the girls if they were serious. Maria claimed that M.R. said no. Maria did not believe the girls' disclosures, although Gilbert had told her that he had raped his niece. Maria justified her disbelief by claiming the girls often joked about serious matters and M.R. was mad at her because Maria had scolded her. Maria said she had last seen Gilbert a few days earlier, and admitted he had helped her with the rent the previous month, but claimed that she did not know where to find him. These statements were contradicted by R.R., who said Gilbert and Maria had broken up but they still saw each other, and Maria visited him at his house. The statements were also contradicted by the girls' older sister, who said Gilbert had been at the family home the night before M.R.'s disclosure.
Maria admitted Gilbert lived with the family in 2008.
By the time of the hearing, Maria had not begun treatment. A therapist reported that Maria was not a good candidate for a group for parents of sexually abused children because she blamed M.R. and did not believe her disclosure.
The above facts constitute substantial evidence that the girls were sexually abused or at substantial risk of sexual abuse. Maria knew of the abuse, and she had not protected the girls and continued to lack the ability to protect them.
M.R.'S REMOVAL
The court may remove a child from a parent's physical custody if it finds, by clear and convincing evidence, "[t]here is or would be a substantial danger to the [child's] physical health, safety, protection, or physical or emotional well-being . . . if the [child] were returned home" and there are no reasonable means of protecting the child's physical health short of removal. (§ 361, subd. (c)(1).) "The . . . minor need not have been actually harmed before removal is appropriate. The focus . . . is on averting harm to the child." (In re Diamond H., supra, 82 Cal.App.4th at p. 1136, citations omitted.) The court may consider the parent's past conduct and current situation and gauge whether she has progressed sufficiently to eliminate any risk. (In re S.O., supra, 103 Cal.App.4th at p. 461; cf. In re Jonathan R. (1989) 211 Cal.App.3d 1214, 1221.)
In the juvenile court, the Agency had the burden of showing that removal was necessary. On appeal, Maria has the burden of showing there is no substantial evidence to support the removal order. (In re DiamondH., supra, 82 Cal.App.4th at p. 1135; In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.) She has not met her burden.
Beginning in November 2008, 12-year-old M.R. frequently refused to go to school. She barely spoke and curled up under her covers in a fetal position. Eventually, she said that two unidentified boys at school had been bullying her. In May 2009 M.R. had a disturbing reaction to menarche; she cried inconsolably, howled and paced. She was admitted to the hospital on a section 5150 psychiatric hold. In June she was taken to the emergency room because she refused to attend school and refused to speak. She suffered from enuresis.
Sometime before mid October 2010, M.R. came to school complaining that her
arm hurt. She said she had had a fight with her brother. Around October she said she did not want to go home after school but would not say why. On two occasions in late 2010, M.R. cried at school for no apparent reason. The first time, she shook her head when asked what was wrong and refused to respond when asked if she felt safe at home. The second time, on Friday December 10, 2010, M.R. was very withdrawn. When asked, "Are you going to have a good weekend?" M.R. teared up and refused to speak, but expressed discomfort about going home. When told that "someone could be called if she didn't want to go home," M.R. said it would be okay to go home. On December 13 M.R. came to school with a red mark below her eye and asked for an ice pack. She said her brother had hit her. In January 2011 M.R. began crying at school. She tearfully reported the sexual abuse by Gilbert, her disclosure to Maria and Maria's reaction. M.R. said she did not want to go home.
The brother was two years younger than M.R.
After being detained, M.R. refused to visit or talk to Maria for more than a month. In early March 2011, M.R. decided she wanted to see Maria, and they began weekly supervised visits. The day after the first visit, M.R. said she wanted to go home to Maria and her siblings. This desire, however, does not mean that it was safe to progress from supervised visits to a return home. M.R. was two years younger than R.R. Unlike R.R., M.R. had a history of emotional disturbances. She had suffered sexual abuse by Gilbert for three years before summoning the courage to disclose it. Her emotional state had improved remarkably in foster care, in sharp contrast to her depressed and troubled behavior when she lived with Maria. M.R. attended her first therapy session just one week before the hearing. Maria lied to protect herself and Gilbert instead of protecting the girls. She persisted in denying any sexual abuse had occurred and had not begun treatment.
On March 10, 2011, M.R.'s teacher said she had overheard M.R. say she planned to run away from the foster home because the foster parents were going out of town for the weekend. M.R. did not run away.
M.R. was enjoying school and doing well academically. She smiled and laughed more and was more open, talkative and relaxed. She no longer wore layers of heavy and baggy clothing.
Substantial evidence supports the determination there would be a substantial danger to M.R.'s physical and emotional well-being if she were returned home and there were no reasonable means of protecting her short of removal.
EDUCATIONAL RIGHTS
A parent's right to make educational decisions may be limited only to the extent necessary to protect the child. (§ 361, subd. (a).) "We review the juvenile court's order limiting parents' educational rights under an abuse of discretion standard [citation], bearing in mind '[t]he focus of dependency proceedings is on the child, not the parent' [citation]." (In re R.W. (2009) 172 Cal.App.4th 1268, 1277.)
The Agency's reports recommended limitation of Maria's rights to make educational decisions for M.R. Although Maria objected to the Agency's recommendation that M.R. be removed from her custody, Maria did not mention the recommended limitation of her educational rights. Thus, she has forfeited her right to object on appeal. (In re S.B. (2004) 32 Cal.4th 1287, 1293.) In any case, there was no abuse of discretion. Maria had amply demonstrated her inability to meet M.R.'s educational needs. While in Maria's care, M.R. frequently refused to go to school over a period of many months, and had a truancy officer, to whom M.R. first disclosed the sexual abuse. In foster care, M.R. enjoyed school and did well academically.
R.R. also had multiple absences from school; at the inception of his case, she had not attended school in two months. The girls' brother was also absent from school frequently.
DISPOSITION
The judgment is affirmed.
BENKE, Acting P. J.
WE CONCUR:
HUFFMAN, J.
HALLER, J.