In re Damien B.

Filed 8/22/07 In re Damien B. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

In this dependency matter, Jade B. (mother) timely appeals from the July 21, 2006 dispositional order temporarily removing her children Damien B. and Sarah B. (together, the minors) from her custody. The mother argues on appeal that the juvenile court erred in removing the minors because there was insufficient evidence that the minors would be endangered if placed with her. Because we conclude there is substantial evidence to support the juvenile courts removal order, we affirm.

BACKGROUND

I.                   Events Preceding the Section 300[1] Petition.

In June 2006, when this dependency matter began, Damien was two years old and Sarah was eleven months old. They were living in Hayward with the mother, 34 years old, and their father, Floyd B. (father), 24 years old. The mother and father (parents) had been married for almost three years. The mother was about five months pregnant with their third child.

The mother was the familys sole financial provider. She worked long hours at her job in customer service, commuting with the minors to their daycare in Berkeley. Consequently, she and the minors were gone from their home each work day from about 8 a.m. until about 7:45 p.m. The father was unemployed, received SSI payments, and apparently did nothing while the mother was away at work each day. However, the father assisted in caring for the minors when they were home, such as when the daycare center was closed for holidays or when the minors were sick. Sometimes the father dropped off or picked up the minors at their daycare.

The father was also in charge of taking care of his eight-year-old daughter, Mya, including taking her to and from school each day. Mya is the minors half-sister. She began living with the parents after the father regained custody of Mya in July 2003, when Mya was five years old. However, Mya did not live with the mother continuously after that date. She lived for a time with her paternal grandmother, and did not live with the mother during several months in 2004 when the parents were separated.

Myas biological mother, Ingram R., was 13 years old when Mya was born. The father was 17 years old at the time. Ingram physically abused Mya, and Myas paternal grandmother assumed custody of her. The father reported that Mya was abused and neglected in the paternal grandmothers home, but Ingram denies this.

During Myas roughly three-year stay with the parents, Mya had behavioral problems for which the parents at times sought counseling. Mya was aggressive with the minors.[2] Indeed, the mother reported that Mya had been hurting [Damien] since he was three weeks old. However, the parents did not report any injuries to the minors caused by Myas aggression.

Mya also acted out sexually, which made the mother suspect that Mya had been sexually abused by someone before she began living with the parents. Mya was seen rubbing and grabbing at other childrens private areas. On one occasion, Mya asked a five-and-a-half-year-old boy if he wanted to have sex. In addition to overtly sexual behavior, Mya urinated on herself, rubbed feces on the walls, and decapitated her dolls and jumped on them.

Although the mother said that Mya denied that she had ever been sexually abused, the mother said she took Mya to the doctor in August 2003 to be checked for abuse. The mother admitted it was not a thorough exam. The mother said that Mya was again examined by a doctor for abuse in November 2003, after Mya was kidnapped for eight hours. Again, there were no findings of molestation.[3] The doctor who reportedly examined Mya for sexual abuse, Dr. Mines, told police that there was no indication in Myas medical records that Mya was ever feared to be the victim of physical or sexual abuse. A police detectives review of these records confirmed this. The mother admitted she did not have Mya examined for sexual abuse after November 2003 despite Myas ongoing suspicious behavior.

On August 24, 2004, an unidentified woman called CPS to state that she was concerned about Myas safety with the father, that the father was doing drugs and was dragging Mya from place to place, that the father was having sex in front of Mya, and that the father had raped a woman. The woman also said that she and the father had a 10‑month-old child[4] together and that the father had pinched the childs cheeks until they turned red. Later, the mother testified that she was the unidentified woman, but she could only recall telling CPS that her mother-in-law had reported that the father was doing drugs. This was in contradiction to earlier testimony where the mother denied having ever reported her husband to CPS.[5]

In November 2005, the police placed Mya into protective custody after she was found walking eight blocks from her home by herself on a busy street. The father told police that Mya knew how to protect herself and that she did this all the time. The police returned Mya to the parents after they agreed to supervise Mya more closely. However, in 2006, the police again found Mya outside by herself, this time at her school early one Saturday morning. The mother explained that Mya had gotten up, readied herself for school, and let herself out. When the mother woke up that morning, Mya was gone.

In February 2006, the mother asked the father and Mya to leave their home because she wanted to protect the minors from Mya, who had been hurting them and most recently had admitted hitting Sarah in the head with a toy. Soon after, the father contacted CPS to report he was unable to care for Mya. The father told CPS that he suffered from mental illness, was unemployed, and had on occasion slept in a car with Mya due to lack of housing. Mya was taken into protective custody and eventually placed in foster care. The father then returned to live with the mother and the minors.

While Mya was in foster care, she continued to act out sexually, which behavior prompted an investigation. During an interview on April 26, 2006, Mya said her father had sexually abused her repeatedly. She said the molestation happened every day after school while the mother was at work. Mya also said during the interview that the mother had threatened and beaten her. She said the mother called her a bitch, a dummy, and an asshole, that the mother would beat her bottom until it was cherry red, and that the mother would put clear tape on her legs and then spank her. She also said that on one occasion the mother choked and shook her until she vomited.

On May 1, 2006, Emergency Response Worker Graciela Dyangko of CPS visited the mothers home. The mother was not there, but the father was there with the minors. He told Dyangko that he was not living there and was only helping out the mother with childcare for that afternoon. Although Dyangko could not recall seeing the homes kitchen or bathroom that day, Dyangko did notice that the home was very cluttered and messy. However, she did not feel that the state of the home was such that she needed to remove the minors at that time.

On May 4, 2006, a section 342[6] petition was filed on behalf of Mya against the father, based primarily on Myas allegations of sexual abuse by the father. That petition was later sustained as true.

On May 8, 2006, Dyangko spoke with the mother on the telephone and told her about Myas allegations of sexual abuse by the father. At this time, there was no medical evidence that Mya had been molested. The mothers response to the allegations was to be in denial. Although the mother told Dyangko that she believed that Mya had been sexually abused in the past, the mother was adamant that the father was not the one who had abused Mya. Dyangko did not remove the minors from the mothers care then because the mother told Dyangko that the father had minimal contact with the minors and was not living in the home. The mother told Dyangko that the only contact the father had with the minors was when he sometimes assisted in taking the minors to and from daycare. Based on what the mother had told her, Dyangko believed then that the fathers minimal contact with the minors was acceptable. She did not advise the mother that the father should not be left alone with the minors. When Dyangko raised the cluttered and messy condition of the home as a safety issue for the minors, the mother told her that the clutter Dyangko had observed in the home a week earlier was gone.

On May 10, 2006, Myas social worker, Christine Hoang, spoke with the parents outside the courtroom on the day of the hearing on the section 342 petition regarding Mya. The parents told Hoang that they had brought Mya to the doctor before and there were no findings of molestation. Hoang believed that the mother was aware of the sexual abuse allegations on May 10, but Hoang admitted that she only discussed the allegations in detail with the father because the mother was not a party to Myas case.

II.                The Minors Are Taken into Protective Custody and the Section 300 Petition Is Filed.

On June 5, 2006, Mya underwent a physical examination by a pediatrician which showed Mya had healed trauma to her hymen consistent with past sexual abuse. The doctor opined that the physical findings of the exam were consistent with Myas report that the father had put his private in hers, and that the evidence of sexual abuse was as much of a slam dunk as I have ever seen. The doctor also reported that it was highly unusual to have a physical finding such as this in a child Myas age.

On June 6, 2006, Detective Michael Edwards of the Hayward Police, who was investigating Myas abuse by the father, went to the mothers home after the father cancelled a scheduled interview for that day. Edwards was concerned that the minors were potentially in danger if left in the custody and care of their father based on what he had learned so far about the case. No one was at the home, so Edwards spoke with a neighbor. The neighbor said she had often overheard the father screaming profanities at the minors and Mya, such as shut the fuck up! This same neighbor told a social worker that Mya was frequently left without adequate care and supervision by the father, who told the neighbor that Mya could take care of herself.

On June 7, 2006, Detective Edwards returned to the home and took the minors into protective custody. He did this initially because of the medical evidence that Mya had been sexually abused, but also based on the homes condition once he saw how filthy it was. Edwards reported that one bedroom had garbage bags piled up to the ceiling filled with soiled clothing which the mother said Mya had urinated on. The entire home smelled of mildew. The kitchen had crusted over food all over the countertops and on a high chair. The living room area had clothing strewn about it and filthy carpeting. Underneath the sink were cleaning products and bug spray within easy reach of young children. The mother explained these conditions by saying that she had been very busy at the time and unable to clean up the home. When later asked why the father did not clean the house since he was not working, the mother said she had no idea. Because the mother was still breast-feeding Sarah at that time, the mother sent breast milk with Sarah when she was removed.

Later that day, the mother met with Detective Edwards at the police station for an interview. During the interview, the mother said that although she suspected that Mya had been abused by someone before coming to live with her family because of Myas behavior, she did not believe the father was the perpetrator. She said she had never seen anything in her home to indicate the father was responsible. The mother also noted that she had Mya examined for sexual abuse in the past but that her doctor could not find anything. The mother told Edwards that she first learned of the allegations against the father in court papers which she received in March 2006. She said that when she heard these allegations, she took the minors to a pediatrician, Dr. Mines, and asked him to check both children for any signs of sexual abuse. Dr. Mines found no evidence of molestation. Dr. Mines later told police that the mother brought the minors to him to check for sexual abuse on May 5, 2006. The mother also told police that since the father had turned Mya over to CPS, he helped the mother out with the minors a lot more.

During a second police interview on June 14, 2006, the mother denied Myas allegations about being spanked and choked by the mother.[7] She also denied taking the minors to Dr. Mines on May 5, 2006, saying the father had taken them there.

Edwards also tried to interview the father on June 7, but he refused to give a statement. The next day, the father had a nervous breakdown, was placed on a section 5150[8] hold and was admitted to a psychiatric hospital. He was released from the hospital on June 9.

On June 8, 2006, the mother met with social worker Christine Hoang, who by then had been assigned to the minors matter, as well as the minors paternal great aunt and daycare provider, for a Team Decision Making (TDM) meeting.[9] At the meeting, Hoang told the mother that in order to reunite with the minors the mother should clean up the home, obtain a restraining order against the father, and the father should have a viable, alternative place to stay so that he would not return to the home. The mother angrily asserted that there was no proof that the father was the perpetrator of Myas sexual abuse. The mother insisted that Mya was the problem, and expressed anger about how she had tried to get help for Myas behavior and no one had ever helped her. However, by the end of the meeting, the mother had agreed to get, and to enforce, a restraining order against the father, although she requested that it only include the minors as she wanted to continue contact with the father. She wanted the father to be able to attend the birth of their third child.

Also on June 8, 2006, the Agency filed a juvenile dependency petition alleging with respect to the parents failure to protect the minors ( 300, subd. (b)) and abuse of their sibling ( 300, subd. (j)).[10] The petition alleged that the minors were at serious risk for sexual abuse by the father because he had sexually molested Mya. The petition alleged that the risk to the minors with respect to the mother was that she had denied Myas abuse occurred, failed to protect the minors from the father, and intended to continue her relationship with the father. The petition also alleged that the homes filthy condition was hazardous to the minors. The petition did not include any allegations that the mother had physically abused Mya.

On June 13, 2006, the father was arrested for repeated sexual abuse of a child (Pen. Code,  288.5). After his arrest, the father said he wanted to kill himself because the arresting officer did not believe him when he said he had not molested Mya. The father was placed on another psychiatric hold pursuant to section 5150. He was released from that hold and sent to Santa Rita on June 19, 2006, where he remained in custody with bail set at $125,000. His status had not changed as of June 29, 2006, the first day of the jurisdictional and dispositional hearing.

On June 14, 2006, Myas foster mother reported to a social worker that since Mya had been in foster care she had dramatically improved with respect to urinating on herself and sexually acting out. However, on several occasions when the possibility of reuniting Mya with her father was raised, Mya would revert to these behaviors.

III.             The Detention Hearing.

On June 12, 13, and 15, 2006, a contested detention hearing on the Agencys section 300 petition was held. The mother presented evidence at the hearing that her home was no longer filthy after three straight days of cleaning. The mother testified that the father was pretty good with children, that before June 2006 she had never had any reason to believe that the father was abusing any child, and that she would not have allowed the minors to be around the father if she had any reason to suspect that he would do something like that. She testified that if the minors were returned to her, she would make certain that they not have any contact with the father. The mother denied that a social worker had informed her of the sexual abuse charges in May 2006, and stated that the social worker merely called her to set up an appointment to discuss unidentified charges. The mother testified that the first time anyone from CPS told her that the father had molested Mya was at the TDM meeting on June 8, 2006, but that the first time she had heard anything about the molest allegations was before that meeting, during a courtroom hearing which was part of the CPS case regarding Mya.

The parties at the detention hearing stipulated that, on June 12, 2006, the mother had obtained a restraining order against the father with respect to the minors. The juvenile court took judicial notice that the restraining order had been served on the father. The mother was not a protected person under that restraining order. However, the mother testified that if the court returned the minors to her care, she would do anything she needed to do to protect them and would not allow the father to have any contact with the minors. She testified that it was not her intention to continue her relationship with the father.

Social worker Hoang testified she was concerned about returning the minors to the mother even with the restraining order against the father in place. Her concern was based on the mothers judgment as well as on the mothers lack of truthfulness. Hoang noted that the mother had allowed the father to remain in contact with the minors even after she became aware of the sexual abuse allegations in May 2006. She also noted that the mother had reported to the Agency that the father was not living in the home in May 2006 when in fact he had been living there continuously for the prior three months.

Hoang also testified about how during the TDM meeting the mother indicated that she intended to continue her relationship with the father. Initially, the mother said she did not think a restraining order was necessary to keep the father away. And after she agreed to obtain a restraining order, the mother asked that it just be for the children, and not her. The mother also said during the meeting that it was not fair that the father had to go through all this all because of what Mya said.

At the conclusion of the hearing, the juvenile court found that prima facie evidence supported the Agencys section 300 petition and ordered that the minors be detained.

IV.              Events Preceding the Jurisdictional and Dispositional Hearing.

The mother began visiting the minors at the Agencys office twice a week. After one such visit, the mother accused the foster parent of causing a finger shaped bruise on one of the minors, which was no longer visible by the time the mother called it to the social workers attention. When asked why she did not report the bruise sooner, the mother explained that she felt the social worker was against her.

On June 21, 2006, the restraining order against the father was extended to three years, and the mother was added as a protected person under the order. The father reportedly tried to contact the mother by phone after the detention hearing. The mother did not speak with him, and instead notified the police and filed an affidavit for contempt against the father for violating the restraining order.

In preparation for the jurisdictional and dispositional hearing, the Agency filed a report on June 23, 2006 which recommended that the minors be declared dependent children and be maintained outside of parental care. The social worker opined in the report that the minors would not be safe in their home because of (1) the severity of Myas abuse; (2) the mothers failure to protect the minors even after she was made aware of Myas abuse; (3) the mothers continued denial of [Myas] abuse; (4) the lingering questions regarding the mothers parenting ability and judgment given her decision to allow the father to care for the children inappropriately; and (5) the condition of the home. The social worker acknowledged that, [o]n the surface, this appears to be a close call in terms of the placement of the children, that the father is the primary concern and risk for the minors and that he was in custody and restrained from being around the family home. But the social worker noted the instances where the mother had lied about whether the father had been living at home and whether he had minimal contact with the minors. She also noted the mother claimed on May 8, 2005 that the home had been cleaned up, but it remained filthy as of June 7, 2006. The social worker wrote that the mother wanted to scapegoat Mya for the familys problems and was complacent in having her children verbally abused by the father, and living in substandard conditions. Based on the foregoing, the social worker opined that the mother had serious problems with her parenting ability and judgement [sic]. Her inclination to maintain [a] relationship with the father casts more doubt onto her judgement [sic]. The mother needs time to benefit from parent education and therapy to address issues of sexual abuse. Until she can gain the skills and awareness necessary to protect her children, they will not be safe in her care.

On June 26, 2006, the father waived his rights regarding the minors and submitted on the basis of the social workers reports and other documentary evidence. The mother requested a contested jurisdictional and dispositional hearing.

V.                 The Jurisdictional and Dispositional Hearing.

A combined jurisdictional and dispositional hearing was held on June 29 and July 6, 7, 14, 20 and 21, 2006. At the hearing, the court took judicial notice of the testimony given at the detention hearing, and sustained jurisdiction of the minors with respect to the father based on his submission. All parties at the hearing stipulated that the mothers home was at that time clean and free of clutter.

During her testimony, the mother admitted that the father had moved back in with her in mid-February and continued living with her through June 2006. She said that during this period she had left the minors alone with the father. She did this when the minors had pink eye and could not go to daycare while she was at work. She did the same thing on holidays when daycare was not available but she still had to go to work. She also testified that the father transported the minors to and from daycare about ten times during this same period.

The mother continued to deny that any social workers had informed her of the allegations against the father in May 2006. She denied knowing the allegations at the time she was in court with the father in Myas dependency case. She testified that she first learned of the allegations either from Detective Edwards on the date the minors were removed (June 7, 2006), or during the TDM meeting (June 8, 2006). She said she first learned of the medical evidence of Myas sexual abuse at the TDM meeting.

The mother also testified that she did not tell a social worker in May 2006 that the father was staying in the home, and that the social worker did not ask her whether the father was living there at that time. She testified that the social worker did not ask her whether the father had minimal contact with the minors at the time. However, she testified the father in fact did have very limited contact because the mother and the minors were out of the home on average twelve hours a day.

The mother denied telling Detective Edwards that she brought the minors in to see Dr. Mines on May 5, 2006, to have them examined for sexual abuse. And she denied bringing the minors to Dr. Mines on that date.

The mother said she suspected that Mya had been sexually abused by someone before Mya made the allegations against the father. She explained that Mya had been left alone with an unrelated man before coming to live with the parents. However, the mother said that she believed it was possible that the father sexually molested Mya based on the medical evidence of molestation. She testified that based on the physical evidence of Myas abuse, she did not ever want the minors to be with the father unsupervised. She said, Right now, I dont want to deal with him at all. When asked what her long-term plans with the father were, the mother testified that she had no idea, but did not want to be around him right now at all, and did not want to speak to him. She said she wanted to know from the father what he did and why.

The mother also testified regarding Myas other caregivers, including Myas paternal grandmother, who had been Myas primary caregiver before the father gained custody of Mya, and a babysitter named Patty Williams. The mother said that although the grandmother was supposed to be taking care of Mya, she one day dropped Mya off at Williamss home and left her there for years. During her June 7, 2006 interview with the police, the mother reported that Myas grandmother had all of her own children taken from her. She also told the police that Williams had a huge CPS record, and that Mya was not supposed to stay at Williamss house.[11] Despite this history, the mother testified that she would periodically send Mya to stay with this grandmother while Mya was living with the parents.

Detective Edwards testified that when he went to the home to remove the minors and told the mother the allegations leveled at the father, the mother said that Mya was a pathological liar, that Mya was crazy and violent, and that she had made up the stories in an effort to ruin their home. During his interview with the mother later that day, the mother told Edwards that she had rescued Mya from an abusive household, but said she wished she had just left Mya there because of all the trouble Mya had ended up causing the parents.

Edwards also testified that a woman identifying herself as the mothers sister called Edwards to report that the father may have molested her son (the mothers nephew) three years earlier. The sister said the parents abducted the nephew from the sisters home and took the boy to their home and then to a motel. The police later rescued her son. Edwards did not recall the sisters name and did not have a police report documenting the incident. No objections were made during this testimony. However, when a social worker was later asked to testify regarding this same incident, the court sustained a hearsay objection.

Social worker Hoang testified regarding why she believed the juvenile court should take jurisdiction over the minors. She believed that the mother had lied regarding when she had first learned of the sexual abuse allegations. According to Hoang, social worker Dyangko had informed the mother about the sexual abuse charges in May 2006. Hoang also expressed general concern about the mothers credibility based on inconsistencies in the mothers statements, such as when the mother reported to the Agency that her home was clean and it was still filthy.

Hoang also opined that the mothers poor judgment endangered the minors independent of the danger posed by the father and despite the facts that the father was incarcerated and there was a restraining order in place. Hoang explained that at the TDM meeting, held a month after there had been an active investigation about sexual abuse, the mother continued to be utterly sympathetic toward the father and still wouldnt believe he was the perpetrator. Hoang feared that if the father were released from jail, she would not be able to have the judgment at this point to protect her children. Hoang testified that she saw a pattern where the mother would disregard concerns about the father as a caregiver and would leave children in his care. She gave as an example that the mother would often leave her nephew in the fathers care against the wishes of the nephews mother.

Hoang further testified that there was no evidence that the minors had ever suffered any physical harm while in the mothers care. However, she opined that the minors had suffered psychological harm by being subjected to the use of profanity in the home, such as when the father told the children to shut the fuck up. Hoang also expressed concern about the mothers mental health based in part on what Hoang determined were groundless allegations made by the mother regarding the inadequate care provided by the minors foster parent. The mother complained four times about the minors foster care, including a complaint about a bruise on Damiens bottom, two complaints about the minors teeth not being brushed, and a fourth complaint about the minors being sick, their clothing being too small, their hair having been cut, and the minors poor hygiene. Hoang visited the foster home to investigate these complaints and concluded they were baseless. Hoang recommended a psychological evaluation for the mother. She also noted that the mother had only completed two therapy sessions so far.

During closing arguments, the mothers counsel argued that the evidence was insufficient to support removal of the minors because the father was no longer a danger to the minors as he was incarcerated and there was a three-year restraining order against him. Her counsel also argued that the mother reasonably did not believe that the father was responsible for molesting Mya. In response to these arguments, the juvenile court expressed its concern about the mothers ongoing ability to protect the minors. The court pointed to the mothers inadequate responses to Myas problems, to the mothers tendency to accuse others of misconduct, and generally to instances where she did or didnt do things that really do raise substantial questions about her ongoing ability to form the correct judgments and follow through on them. The court admitted that its concerns were a bit intangible. The court stated that even though the mother may have had a good faith belief in her own mind that it wasnt [the father] who penetrated, but somebody else in the past, the mothers belief in the fathers innocence was not an adequately protective point of view and attitude to take on behalf of the minors because of what she must have been perceiving in the home and the way [the father] had been behaving. The court noted that the mother was critical of the father and his relationship with Mya. The father was unemployed, at home, on disability, the house is a mess. [T]he mother testified that she tried to get him to do something about it, he never would. [] Why wouldnt a reasonable person begin to wonder if there couldnt be some deeper pathology going on with the father and the daughter?

At the end of the hearing the court found jurisdiction over the minors by a preponderance of the evidence. The court also found clear and convincing evidence existed to show that returning the minors to either of the parents would cause a substantial danger to the minors physical health, safety, protection, or physical or emotional well-being, and that reasonable efforts had been made to prevent the need for removal.

DISCUSSION

 We begin by noting that in dependency proceedings the burden of proof is substantially greater at the dispositional phase than it is at the jurisdictional phase if the minor is to be removed from his or her home. [Citations.] [] This heightened burden of proof is appropriate in light of the constitutionally protected rights of parents to the care, custody and management of the children. [Citation.] []  Parenting is a fundamental right, and accordingly, is disturbed only in extreme cases of persons acting in a fashion incompatible with parenthood. [Citation.] In furtherance of these principles, the courts have imposed a standard of clear and convincing proof of parental inability to provide proper care for the child and resulting detriment to the child if [he or she] remains with the parent, before custody can be awarded to a nonparent. [Citation.] [Citation.] [Citation.] (In re Isayah C. (2004) 118 Cal.App.4th 684, 694.)

In particular, before a juvenile court may order a minor physically removed from his or her parent, the court must find, by clear and convincing evidence, that [t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minors physical health can be protected without removing the minor from the minors parents . . . physical custody. ( 361, subd. (c)(1).) Similarly, a minor can be removed if there is clear and convincing evidence that the childs sibling has been sexually abused . . . by a parent . . . and there are no reasonable means by which the minor can be protected from . . . a substantial risk of sexual abuse without removing the minor from his or her parent . . . . ( 361, subd. (c)(4).) The juvenile court must consider the circumstances as they exist at the time of the disposition hearing in making this determination. (In re Steve W. (1990) 217 Cal.App.3d 10, 22 (Steve W.).)

 It is well settled that our review of this issue is limited to whether the judgment is supported by substantial evidence. Issues of fact and credibility are questions for the trial court, not this court. [Citation.] The rule is clear that the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by   the juvenile court. (Steve W., supra, 217 Cal.App.3d at p. 16.) We resolve all conflicts and make all reasonable inferences from the evidence to uphold the courts order[], if possible. (In re David M. (2005) 134 Cal.App.4th 822, 828.) The appellant has the burden of showing there is no evidence of sufficiently substantial nature to support the finding or order. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1135.)

We conclude substantial evidence supported the juvenile courts order removing the minors from the mother. First, there was evidence that the father sexually abused Mya. (In re Rubisela E. (2000) 85 Cal.App.4th 177, 197 [Sexual abuse of ones sibling can support a trial courts determination that there is substantial risk to the remaining siblings].) Mya reported the abuse, her account of the abuse was supported by medical evidence, and the father did not challenge the abuse allegations at the jurisdictional and dispositional hearing.[12] Although the minors were considerably younger at the time of removal than Mya, and one of the minors is a boy, there was no evidence suggesting that the fathers sexual interest in children was confined to girls Myas age. The juvenile court could reasonably deduce that, in Myas absence, the fathers sexual interest was likely to focus on the minors. (Id. at p. 197.) Second, there was evidence, which we discuss post, that the mother did not protect the minors from the father despite being aware of the abuse. Moreover, there was evidence, also discussed post, that she could not be trusted to protect them from the father in the future. The fact that at the time of the hearing there was no evidence that the minors had been harmed was not determinative. A 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. (In re Diamond H., supra, 82 Cal.App.4th at p. 1136.)

On appeal, the mother relies on Steve W., supra, 217 Cal.App.3d 10, arguing that the evidence here is remarkably similar to the evidence presented against the mother in that case where the Court of Appeal reversed a removal order. We agree that Steve W. is instructive, but conclude it supports the removal order here. In Steve W., Wanda B., the mother, appealed from a dispositional order removing her infant son from her custody after Thomas W., her husband, killed the infants five-year-old, half-brother. (Id. at pp. 12-13.) There was no evidence that Wanda B. had ever abused either of her sons. (Id. at pp. 13-15.) The court in Steve W. explained that one of the factors to consider in cases where the physical or sexual abuse has not been inflicted by the parent seeking to retain physical custody is the knowledge of abuse by the nonoffending parent. (Id. at p. 21.) Indeed, as the court in Steve W. recognized, Child abuse may involve a failure to protect the child from harm caused by others.  (Ibid.) In that case, the court noted that although Wanda B. should have been suspicious that something was amiss, Wanda appropriately asked questions when she saw signs that her older son had been abused. (Id. at pp. 21-22.)

In contrast, in this case there was substantial evidence to support a finding by the juvenile court that the mother suspected that the father was sexually abusing Mya before the dependency petition was filed in this matter, and that despite her suspicion the mother failed to do anything to protect the minors from the father. A social worker testified that she informed the mother about Myas allegations of sexual abuse on May 8, 2006. And there was evidence that the mother took the minors to a pediatrician to be checked for sexual abuse around the same time.[13] Moreover, there was evidence suggesting that the mother must have suspected the father of sexually abusing Mya years earlier. For example, the mother called CPS in 2004 to report that she was concerned about Myas safety with the father, that the father was having sex in front of Mya, and that he had raped a woman. Also, the mother had observed Mya sexually act out over the years, and admitted that Myas behavior had long made her suspect that Mya had been sexually abused. However, despite her suspicions, the mother testified that she allowed the father to continue to live with and care for the minors up until the police took the minors into protective custody on June 7, 2006. Indeed, she told police that during the months immediately preceding the minors being taken into custody, the father helped the mother out with the minors a lot more than usual.

Another relevant factor to consider in cases involving removal of children in these circumstances is whether the nonoffending parent allowed or might allow the offending parent to return and continue the abuse. The more likely it is that the offending parent will have further contact with the nonoffending parent, the more the childs welfare is jeopardized by being placed unsupervised with the nonoffending parent. [Citation.] (Steve W., supra, 217 Cal.App.3d at p. 22.) In Steve W., all of the circumstances . . . indicate[d] that Wanda [would] not resume her relationship with Thomas or allow him access to the child. (Ibid.) Here, in contrast, there was substantial evidence to the contrary. Unlike Wanda, who assisted in prosecuting her husband (ibid), there was testimony that the mother adamantly denied the father was responsible for Myas sexual abuse up until the time of the June 2006 detention hearing.

Also, Wanda had expressed her clear desire to not have anything to do with Thomas. (Steve W., supra, 217 Cal.App.3d at p. 22.) Here, the juvenile court could reasonably find that the mother had not expressed a sincere desire to sever all ties with the father. By the time of the hearing, the mother would not unequivocally state that she believed the father had sexually molested Mya; instead she admitted only that it was possible that the father was the perpetrator. She testified that she did not want the minors to be with him unsupervised, that she did not want to deal with him [r]ight now, and that she had no idea what her long-term plans with the father were. Moreover, initially the mother obtained a restraining order against the father with respect to the minors only. And she did this reluctantlyonly after she was told at the TDM meeting that she must obtain a restraining order if she wanted the minors returned to her care.

By the time of the jurisdictional and dispositional hearing, the mother had obtained a restraining order against the father with respect to both the minors and herself. She testified that she had enforced the order when the father tried to contact her after the detention hearing. But unlike in Steve W., here there was evidence to indicate that [the mother] would not follow the courts order[] to enforce the restraining order against the father in the future. (Steve W., supra, 217 Cal.App.3d at p. 23 [Wanda had cooperated with the police and the social services agency].) The mother lied to the Agency about whether and when the father was living with her and having contact with the minors; the mother made equivocal statements about her intention to sever ties with the father, described ante; and the mother believed the social worker assigned to the minors was against her.

It would not be feasible for the Agency to monitor whether the mother was enforcing the restraining order. (Cf. Steve W., supra, 217 Cal.App.3d at p. 22 [It would not be too onerous to monitor [Thomass] status to assure that he did not return to the home].) Indeed, absent a basis to trust the mother to enforce the restraining order on her own, 24-hour supervision would be required to ensure the father did not make contact with the mother or the minors. (In re Stephen W. (1990) 221 Cal.App.3d 629, 646 [where the only services that could have been offered to avoid danger to the minor would be to put somebody in [the parents] home 24 hours a day, substantial evidence supported the finding that removal was the only reasonable alternative and that reasonable efforts were considered . . . .].) The mother has not proposed any alternative to removal except placing the minors in the mothers care under the Agencys close supervision. Consequently, there were no reasonable means by which the [minors] physical health [could] be protected without removing them from the mothers physical custody. ( 361, subd. (c)(1).)

It is true that the father was incarcerated when the juvenile court issued its removal order. The court in Steve W. relied on the fact that Thomas was incarcerated at the time of the dispositional hearing as a circumstance indicating that Wanda would not resume her relationship with him or allow him access to their son. (Steve W., supra, 217 Cal.App.3d at p. 22.) However, in that case, Thomas had already been sentenced to prison for six years by the time of the hearing. (Ibid.) In contrast, here the father had not been sentenced at the time of the hearing, and may have been eligible for release upon payment of bail. There was no evidence in the record regarding whether a plea agreement or jury verdict was imminent on the criminal charges pending against him. Indeed, at the hearing, social worker Hoang testified that she did not have any way of knowing if hes going to remain incarcerated or not.[14]

DISPOSITION

The July 21, 2006 removal order is affirmed.

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Richman, J.

We concur:

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Kline, P.J.

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Haerle, J.

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[1] Unless otherwise indicated, all statutory citations are to the Welfare and Institutions Code.

[2] For example, Mya punched Damien in the head when he was six months old. In a separate incident, Mya cut off all of Damiens hair with scissors while the father was in the bathroom.

[3] Earlier, the mother provided a different account of the kidnapping to a therapist, reporting that Mya had been kidnapped for a week by a lady friend of Ingrams. In this version, Mya said that the kidnapper had molested her.

[4] Damien was 10 months old on the date this call was made to CPS.

[5] The mother changed her story again when she later testified that during this call to CPS her mother-in-law took the phone from her and was the one who reported that the father was on drugs, that he may have raped someone, and that he was having sex in front of Mya.

[6] Section 342 provides that [i]n any case in which a minor has been found to be a person described by Section 300 and the petitioner alleges new facts or circumstances, other than those under which the original petition was sustained, sufficient to state that the minor is a person described in Section 300, the petitioner shall file a subsequent petition.

[7] The mother also testified at the jurisdictional and dispositional hearing that she had never disciplined Mya beyond sending her to time-outs in the corner. The only additional evidence relating to allegations that the mother had abused Mya was testimony at the jurisdictional and dispositional hearing by a social worker that there had been a sustained petition of sexual and physical abuse in Myas separate dependency matter. The social worker testified she had filed a section 342 petition against the father for failure to protect. Among the supporting facts listed in the petition against the father were that the father had failed to protect [Mya] from physical and emotional abuse at the hands of his wife [the mother], to wit: [] A, [the mother] has taped [Myas] ankles with her arms around her back and spanked [Myas] behind until it was, quote, cherry red. [] B, [the mother] has hit [Mya] with a pumping cord [sic] using whipping motions . . . [] C, [the mother] has threatened [Mya] that she would cut off her toes and fingers, cut her body into pieces and put it in a trash bag to be set on fire to be placed on train tracks. The mother was not formally a party to Myas dependency matter.

[8] Section 5150 provides that [w]hen any person, as any result of a mental disorder, is a danger to others, or to himself, . . . a peace officer . . . may, upon probable cause, take . . . the person into custody and place him . . . in a facility designated by the county and approved by the State Department of Mental Health as a facility for 72-hour treatment and evaluation.

[9] A TDM meeting is held whenever a child requires some sort of placement through the Alameda County Social Services Agency (Agency). The purpose of the meeting is to come up with an appropriate placement plan, as well as to discuss the conditions which need to be put into place to facilitate family reunification.

[10] Section 300 provides in relevant part that [a]ny child who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court: [] (a) The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm inflicted nonaccidentally upon the child by the childs parent or guardian. . . . [] . . . [] (j) The childs sibling has been abused or neglected . . . and there is a substantial risk that the child will be abused or neglected . . . .

[11] The parties stipulated that the videotape of the mothers June 7 police interview would be admitted into evidence at the jurisdictional and dispositional hearing.

[12] Moreover, the section 342 petition filed on behalf of Mya against the father based on allegations of the fathers sexual abuse had been sustained as true in a prior dependency proceeding. (See  355.1, subd. (d)(3) [where a parent has been found in a prior dependency hearing to have committed an act of sexual abuse, that finding is prima facie evidence that a minor in a subsequent proceeding is at substantial risk of abuse or neglect].)

[13] Even mothers appellate counsel acknowledges that she knew about the allegations against the father before the minors were detained in June 2006.

[14] We note that should the father be sentenced as Thomas was in Steve W., such a change in circumstances could provide a basis for the mother to seek a hearing on modification of the removal order based on a prima facie showing that the problem which led to removal of the minors has been resolved. ( 388; In re Hashem H. (1996) 45 Cal.App.4th 1791, 1798-1799.)