In re Rachel L.

Filed 11/20/07 In re Rachel L. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEALS from a judgment and an order of the Superior Court of Los Angeles County, Stephen Marpet, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Judgment and order are reversed and case is remanded with instructions.

Aida Aslanian, under appointment by the Court of Appeal, for Defendant and Appellant, Mary L.

Christopher Blake, under appointment by the Court of Appeal, for Defendant and Appellant, Philip L.

Lori A. Fields, under appointment by the Court of Appeal, for Minors and Appellants, Jonathan L. & Mary Grace L.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Lisa Proft, for Plaintiff and Respondent.

___________________________________________

In this dependency case (Welf. & Inst. Code, 300),^[1]two of the subject minor children have each filed an appeal from the judgment. Their trial court appointed attorney has also filed an appeal from the judgment, as have the parents of the minors. These several appeals have been consolidated under case number B192601. All appellants contend the dependency court erred in not holding a Marsden hearing (People v. Marsden (1970) 2 Cal.3d 118) when one of the minor children requested new appointed counsel. There are also challenges to the sufficiency of the evidence to support the jurisdiction and dependency findings, and mother contends the parents due process rights were violated in several ways during court hearings. Mother also asserts a failure to comply with the requirements of the Indian Child Welfare Act (25 U.S.C.  1901 et seq.).

Appeals have also been filed by the same two minor children, and by their parents, from the minute order issued at a six-month review hearing, and those appeals challenge the sufficiency of the evidence to support the trial courts decision to retain jurisdiction over the minor children. Those appeals have been consolidated under case number B195484.^[2] We consider and decide both the B192601 appeals and the B195484 appeals in this single opinion.

We find that although there was Marsden error, it is harmless. Moreover, we do not find a denial of due process to the parents in the conduct of the matter below. Regarding the Indian Child Welfare Act (the ICWA), we find that noncompliance with that federal legislation requires us to reverse the judgment, and the order from the six‑month review hearing, and remand the case so that the trial court can fulfill its ICWA duties. Because our review of the record convinces us there is sufficient evidence to support the trial courts jurisdiction and dependency findings and support the trial courts retention of jurisdiction over the minors at the six-month review hearing, if the trial court ultimately determines that the ICWA is not applicable to this case, the trial court must reinstate its judgment as well as its minute order from the six‑month review hearing. If the court determines the ICWA is applicable, it must proceed accordingly under the provisions of that law.

BACKGROUND OF THE CASE

1. The Parties to the Case

The parties to this case are Mary L., mother of the subject minor children (mother), Philip L., father of the children (father), Rachel L., Jonathan L., and Mary Grace L., the three minors, and the Los Angeles County Department of Children and Family Services (the Department), the local child protection agency.^[3]

2. The First Four Dependency Petitions

According to the Departments jurisdiction/disposition report in the instant case and Department records from 1987, the familys involvement with the Department dates back to early 1987 when sheriffs deputies were called to the family house because of fathers brutal physical treatment of his daughter Cam L., who is a half-sibling of the parents eight children, including the three minor children who are the subject of the instant matter. Mother, who is Cams step-mother, did not protect Cam from father. That particular physical abuse of Cam by father occurred when Cam returned home at 9 oclock in the evening after being out with friends without permission. Father was waiting for her in the front yard and he began yelling at her. He pulled her from a car by her hair, dragged her into the house by her arm, and then proceeded to slap her face several times, slam her to the floor, and hit her head against the wall. She sustained injuries to various parts of her body. She was taken to the hospital for treatment of her injuries and then detained with her grandmother. Later she went to live with her mother in Idaho. Father was arrested because of his abuse. After Cam was living with her mother, the section 300 petition filed on her behalf was dismissed without prejudice.

In October 1989 a section 300 petition was filed on behalf of five of the parents children. The sustained allegation in the petition charged sexual abuse of then-minor Charity, who had been examined by a physician who is an expert in the medical detection of child abuse. The doctor found Charity was suffering from a condition consistent with sexual abuse.^[4] The dependency court found there was no preponderance of the evidence to indicate that father was the perpetrator of sexual abuse on Charity. Mother had testified that once or twice a week the children were left in the care of the paternal grandmother or a friend of fathers, Leonard C., aka Lynn C., aka Len C., and such persons acted as babysitters. ^[5] Charity and two of her siblings were found to be persons coming within the provisions of section 300 and the petition was dismissed as to the other two children named in it.

Jurisdiction over the three minors was terminated in November 1990. However, this court, in an unpublished opinion filed in September 1991 (B051244), found that the jurisdiction finding of the dependency court as to the three children could not stand because the allegation in the Departments section 300 petition had been amended to delete charges of parental fault, whether willful or negligent. The statutory language of the portion of section 300 upon which the finding of jurisdiction was placed specifically stated that a minor is a person described by section 300 if he or she has suffered or there is a substantial risk that the minor will suffer serious physical harm or illness as a result of, among other things, the willful or negligent failure of the minors parent or guardian to adequately supervise or protect the minor from the conduct of the custodian with whom the minor has been left.

The familys third contact with the juvenile court came when a petition was filed in November 1993 for the same five children plus minor Rachel. According to a Department report in the instant case and a Department report in a 2001 matter involving this family, the six minors were found to be persons coming within the provisions of section 300 on the basis of the following sustained allegations: the parents home was dangerous to the minors in that it included, but was not limited to, approximately 60 guns, rifles and/or assault weapons; black powder in an unsecured location; and live ammunition, shells, and magazines, all of which was within access of the minors, and the guns and ammunition were in close proximity to each other. Further, the minors home was found to be in an endangering filthy, unsanitary and unsafe condition, and the minors were chronically filthy, and unsupervised late at night. Additionally, the parents unlawfully concealed the whereabouts of the children from the Department and father willfully gave false information to the court concerning the whereabouts of the children. Eventually all of the minors were released to mothers care. Jurisdiction was terminated in September 1994.

Next, a petition was filed in February 2001 on behalf of the minor Elizabeth L., who was fifteen years old at that time. The sustained allegations are that father inappropriately physically disciplined Elizabeth on numerous occasions; Elizabeth demonstrated numerous behavior problems which the parents could not handle, including her not wanting to follow home rules and her constantly running away, and Elizabeths physical and emotional health were at risk. Elizabeth was placed in long term foster care and jurisdiction was terminated in June 2003 when she became 18 years of age.

Thus, the family has had problems sufficient to involve the dependency system for 20 years.

3. The Current Dependency Case

The fifth and current involvement of the Department with this family came as the result of minor Rachels contact with the Los Angeles Police Department, Wilshire Division, on January 26, 2006, when she asked to be picked up because she was tired, hungry and had no place to live. She was fourteen years old at the time. She had run away from the family home on October 29, 2005. Rachel told the Department social worker that she was tired of living under fathers house rules. She stated father would hit her with a stick, hanger or shoe if she did not follow his rules. She said he will not let her wear pants at home and she had to wear skirts or dresses, not let her wear makeup, and not let her attend public school. Rachel also reported that Leonard C. repeatedly molested her when she was between the ages of four and nine. He repeatedly groped her and would come into her room when she was in bed and put his finger into her vagina. She said she told the parents about it when she was 12 years old but they did not believe her. She stated the man still comes to the house occasionally and she worries that he might begin molesting her sister Mary Grace. She stated she engages in self-mutilation (cutting herself with a razor blade) and has problems with depression, but her parents will not send her to therapy because father tells her that speaking with him is all the therapy she needs. She stated she would never be all right with father now because she has been sexually active. She stated she would continue to run away if she is forced to live at home. The social worker reported that Rachels situation was similar to her sister Elizabeths, who also ran away, wanted to attend public school, objected to fathers house rules, was removed from the home for physical and emotional abuse, and complained that father dominates everyone in the house, including mother.

Father came to the Wilshire Division of the police department when Rachel was there. The Departments detention report states he was sarcastic, contrary, belligerent, and bullying. He accused the Department of wanting to have children run the streets, dress any way they please, take drugs and drink alcohol, all so that they could be happy at home. Father asserted he was trying to protect Rachel from high-risk behavior, including talking to men on the internet, writing to a man in prison, and wearing clothes that he believes are provocative. He denied that he had ever hit Rachel. He also denied that Rachel had ever told him or mother that she was sexually abused by Leonard C.

Rachel was placed in foster care at that time. On January 31, 2006, a section 300 petition was filed on her behalf. It alleges fathers physical and emotional abuse of Rachel, sexual abuse of her by Leonard C., the parents failure to protect her from the physical, emotional and sexual abuse, the risk of harm to Rachels siblings Jonathan and Mary Grace, the prior dependency cases, the parents failure to provide regular schooling and peer relationships for Rachel, Rachels severe anxiety, depression, and aggressive behavior towards her self, and her refusal to reside in the parents home.

In the meantime, on January 27, 2006, a visit to the parents two-bedroom home in Lynwood revealed it was very cramped with the familys belongings, the hallway had a dresser and plastic boxes piled almost to the ceiling and they partially blocked the door to the childrens bedroom, which had no door on it. The yard was loaded with junk that presented a fire hazard and breeding ground for vermin.

The social worker interviewed two of the adult children (Charity and Elijah), mother, and the two youngest children (Mary Grace and Jonathan). Charity was 19 at that time. She reported that father had struck Rachel several times using a sandal as punishment. The sandal was applied to Rachels buttocks and the punishments occurred close to the time Rachel left home. Charity added that the younger children are usually not spanked for punishment, and on rare occasion father would spank them on their buttocks with his hand. Normally he punishes the children by putting them on restriction, such as taking away visits to the library. Charity was living at home and she and mother shared the household chores. She stated that Lydia, who was 18, worked at fathers motor cycle shop and also lived at home. Charity stated Rachel ran away because she could not get her own way.

Elijah, who was 23, stated he left home when he was 18 and had come by the house to visit the family the day the social worker was there. He believed Rachel was going through teen rebellion and was too young to dress a certain way, wear make up and have a boyfriend. He did not believe that father would hit her. Like the other children, he was not permitted to attend school. Whatever education he received was provided for him at home.

Jonathan stated that mostly he plays outside with friends, and stated father has never hit Rachel. Instead, when Rachel does something bad she is told to not do it again. He also denied ever having been spanked by father. Seven-year-old Mary Grace stated she likes to play with her Barbie dolls and when she does something wrong nothing happens to her. She stated she does not know a man named Lynn (Lynn C.). There was an old bruise on her arm which she stated was the result of her falling down.

Mother stated Rachel never told her about Leonard C molesting her. Asked if father ever hit Rachel, mother stated he never hits the children. Rather, the children are punished by having something taken away from them that they like, or not being able to go outside. Mother stated she wanted Rachel to come home but Rachel is into the punk scene and wants to wear clothing that is too revealing and will get her into trouble, and the family cannot accept that.

Father showed the social worker two police reports he filed. One was a missing person report he filed on October 29, 2005, the day Rachel ran away. The other he filed on January 28, 2006, two days after Rachel went to the Wilshire police station. In the latter, he reported Rachels allegation that Leonard C. sexually abused her. He stated that on January 28, 2006 Leonard C. denied having sexually abused Rachel.

A detention hearing was held on January 31, 2006. The court ordered Rachel detained, counseling for her, family reunification services, monitored visits for mother and father with a Department approved monitor, and Rachels enrollment in school. A pretrial resolution conference was set for March 1, 2006.

3. The Section 300 Petition for Jonathan and Mary Grace

A section 300 petition was filed for Mary Grace and Jonathan on February 2, 2006. It alleges the fathers physical abuse of Rachel and mothers refusal to protect her, the sexual abuse of Rachel by fathers friend Leonard C. and the parents knowledge of the abuse and refusal to take action to prevent it, Rachels refusal to live in the parents home, the prior dependency history of the older five siblings, and the failure of the prior Department and court services to resolve the family problems. The petition alleges these matters endanger Mary Grace and Jonathans physical and emotional health and safety.

A detention hearing was held on February 2, 2006, at which time the court ordered Jonathan and Mary Grace detained and family reunification services be provided. An arraignment hearing was set for February 3, 2006, and the court ordered that the minor children attend that hearing. However, neither mother nor the children appeared on February 3. Father was evasive when the court questioned him as to the whereabouts of mother and the children. The attorney appointed for father indicated that mother, having learned that the children were ordered detained, left with them and did not tell father where she was going. Father stated that was correct. An arrest warrant was issued for mother, and protective custody warrants were issued for Mary Grace and Jonathan. The court noted that the Department had gone to the family home to take the children and could not find them. For warrant purposes, the court questioned father concerning physical descriptions of mother, Jonathan and Mary Grace, and concerning their birthdays, and father stated he did not know their birthdays because the family does not celebrate birthdays.

Father indicated that Rachel had told him, at that time she went to the Wilshire police station, that Leonard C. had molested her. Father stated that when he asked Rachel why she had not told him about the molestation, Rachel answered that she could not talk to father.

At the request of fathers attorney, the matter was continued to February 6, 2006, and on that date the three subject minor children appeared at the hearing, as did mother and father. The warrants were recalled. Mothers Code of Civil Procedure section 170.6 motion, filed in propria persona, was denied as untimely. Counsel was appointed for her. The court released Mary Grace and Jonathan to the parents conditioned on the parents cooperation in the case, including allowing social workers and minors counsel to visit the family home and to interview the children outside of the presence of the parents. The Department was ordered to include updated interviews of the children in its pretrial resolution report and verify that the parents have appropriate documentation for home schooling the minors, and if the parents do not have such documentation the Department was ordered to assist in enrolling the children in school. There was to be no visitation by Leonard C.

4. The Amended Petition

A first amended petition was filed on March 1, 2006, the day of the scheduled pretrial resolution conference. It is the operative petition. It addresses all three subject minors and alleges fathers physical abuse of Rachel, mothers failure to protect Rachel, the sexual abuse of Rachel by Leonard C. and the parents failure to protect her from him in that they allowed him to frequent the family home, Rachels refusal to live in the family home, the older siblings having been dependents of the court due to fathers physical and emotional abuse, the parents failure to provide the children with regular medical and dental care and provide Rachel with therapy when they discovered she was practicing self mutilation by cutting herself, the threat to the minors physical and emotional health that these matters pose, and the parents failure to keep the children in regular attendance at school.

5. Reports for the Pretrial Resolution Conference

The subject three children were interviewed by the Department for the March 1, 2006 pretrial resolution conference hearing, as was their sister Elizabeth. Jonathan and Mary Grace responded in the negative when asked by father if they wanted to speak to the social worker. The social worker reminded father that the court made an order for the children to be interviewed again and the worker be permitted into the house again. Mary Grace and Jonathan did not want to be interviewed separately. They appeared to be very bright and alert, and they told the social worker where their private parts were. They both stated they would not permit anyone to touch their private parts and they had not been touched by anyone. Mary Grace added that Leonard C. had not touched Rachel. Neither Mary Grace nor Jonathan had received childhood immunizations because the immunizations are contrary to the parents beliefs.

Elizabeth, the older sister who had run away several times, stated she did not know anything about the molestation and had not been around the family in a long time. She stated Leonard C. never approached her sexually when she lived at home. She confirmed that the parents dont argue much and mother goes along with what father does, and she noted she was a dependent of the court because father physically abused her. Asked about the fact that the bedrooms in the family home do not have doors, she stated the doors were removed when she lived there.

Rachel told the social worker that when she told the parents about Leonard C. molesting her, they shrugged it off. Father told her not to think about the molestation and he told her he did not want to make a big deal about it because if he did then she would have to see a shrink when she was older. The parents watched Leonard C. to make sure he was not around Mary Grace and kept him away from the house for a few months. However, Leonard C. never touched Rachel again.

Rachel stated that when father found out Rachel was cutting her arms with a razor blade he told her he would beat the shit out of her if she did it again. She tried to stop the cutting but when she couldnt, she cut herself on her thighs so that father could not see the cuts. She thought about suicide but decided against it. Rachel stated that mother knew that father was hitting her as a form of punishment, that mother goes along with everything father does, and the parents dont fight. She stated that mother takes the children to the doctor if they are sick but they do not have regular check ups. The parents pay cash for medical care and do not have medical insurance. Rachel has had two teeth pulled.

Asked about schooling, Rachel stated mother is not a teacher. Mother has booklets that she gives to the minors and tells them to do the booklets. Rachel admitted she did not do well with the booklets but Jonathan does pretty well. Father told her she could not go to a private or church school.

The Departments report states that previous reports for prior dependency matters noted that father is a very guarded person who does not disclose much personal information, and mother usually did not speak unless father was with her, and he appeared sometimes to be very controlling of her and the children. The parents had not yet requested to have visits with Rachel even though she had been out of their care for over a month.

The social worker found Rachel to be a very sweet child who has internalized her pain. She doesnt speak much and when she does, it is with intensive honesty and occasional sarcasm. She had begun therapy and was seeing her therapist each week at her foster home. She was having problems dealing with limits in her foster placement but the social worker opined that perhaps it was because she had been overwhelmed with limits. Rachel stated she did not want to return home, wanted no contact with father, and would like to visit with mother and her siblings. She was attending school in the ninth grade, felt she was behind academically, and was having problems with school work. Her forensic medical exam produced findings that were nonspecific in that they could be due to sexual abuse or to consensual sexual intercourse.

Jonathan and Mary Grace were interviewed by a forensic evaluator/clinical social worker. Both of them were uncooperative to a certain extent and at times appeared irritated with being interviewed. Mother was also examined, however father did not appear for an examination. The evaluator felt that mother and Mary Grace gave answers that suggested they were not being completely candid. Also, the examiner was greatly concerned that the parents permitted Leonard C. back into their home given that he had been identified as perhaps a perpetrator of sexual abuse against Charity.

Mary Grace was able to demonstrate for the forensic evaluator that she knows the difference between the truth and a lie but she did not agree to tell the truth during the interview because it was no fun. She stated she wanted to color and was not able to tell the truth and color at the same time. She said there was no other reason for not wanting to tell the truth. She repeatedly displayed a reluctance to talk about her family members in a general way. She denied having sisters. She indicated it was not alright to talk to the evaluator because she (Mary Grace) was mad because she did not want to come to the interview. Asked why she did not want to come, she repeated she didnt want to. Asked directly about Lydia, the child replied Lydia is her sister as is Rachel. However, when asked something about Rachel, Mary Grace stated she did not want to talk and she walked out of the room. She returned when directed to do so by the evaluator.

Mary Grace gave the names of body parts on a drawing of a preschool-aged girl and was able to state what goes in and out of body parts and what parts were not alright for people to touch. She denied that anyone had touched her private parts. She stated we dont know anything about that when asked about the possibility that something had happened to Rachel. She stated that people from the church take showers at her familys home. She denied knowing Lynn (apparently the forensic examiner used Leonard C.s other name, Lynn), and stated that mother told her Lynn is a woman. She stated she needed no help with anyone or anything except that she wanted her bed moved. Asked what happens when she does something wrong, she stated nothing happens and added that the parents dont hurt her. She stated the parents do not hurt anyone, including Jonathan and Rachel. When told to stay in the interview room when the evaluator stepped out briefly, the child went to the lobby and refused to return to the room.

During his interview, Jonathan agreed to tell the truth. He stated Rachel lived away from the family home because she is a run away and does not like things at home. He stated he had been injured when he tripped and fell on his head and then on a box. That was his explanation for three evenly spaced nickel size yellow bruises on his chest. He identified the private parts of a drawing of a boy. He stated his private parts had not been touched except by a doctor. He described Lynn as an old man who comes to feed the cat and as a cool guy who talks too much. He gave a nonresponsive answer when asked what Lynn talks about, and stated that Lynn does not come to the family home when the parents are away. When told that people are concerned about his safety because something might have happened to Rachel, he asked why be concerned about something that has already happened. Asked what he meant, he stated he was talking about his getting a bruise when he crashed his bicycle into a fence. He stated that when he misbehaves, his parents tell him to not do it again.

Mother told the forensic evaluator that she could not say that Leonard C. did not sexually abuse Rachel but that if he did she was not aware of it and had she known about it she would not have sat by and done nothing. She stated that in the early 1990s Leonard C. was permitted to baby sit for Elijah, Lydia and Elizabeth a couple of times but he did not baby sit Rachel because at that time she did not need his assistance. She had not suspected that her children were unsafe around Leonard C. She described him as an old friend of fathers who, when he came to visit at the family home, would say hello, feed a stray cat, and leave. Asked why the parents had permitted him to resume visiting them after he had been designated as an alleged sexual predator of their child Charity, mother stated it was because we knew him for so long. I didnt put the kids in a position for him to do anything. She added that she thought it was safe for him to be at the home because a doctor had reported that he (the doctor) could not say for certain whether Charity had been sexually abused and Charity said nothing happened. Asked whether father ever hit the children, mother stated she never saw him do that and she was not aware that he had done it.

At a conference held at a Department office between mother, father and the social worker, the parents both stated Rachel never told them about being sexually molested by Leonard C. and father stated Rachel never asked for counseling. Father implied that they rely on their religious beliefsGod takes care of them when they are sick and provides protection for the family. Father indicated the parents do not have birth certificates for the children. He stated he does not see a point to having birth certificates, and added he would not obtain them nor assist the Department in obtaining them.

A letter from Sunland Christian School asserted that the parents consistently complied with all regulations concerning homeschooling their children. They maintain the appropriate interaction required, which includes accountability, record keeping, testing and attendance of required meetings. The letter does not state whether the regulations are state regulations or regulations of the school. There are no references to the Education Code in the letter. There is no definition or explanation of the terms accountability, record keeping, testing, or attendance of required meetings.

An April 6, 2006 Department report indicates the parents were given referrals to parenting, counseling and anger management programs, and that father continued to be uncooperative with the Department, such as indicating he would not cooperate with the Department unless ordered to do so by the court. (We note he had already been ordered by the court, on February 6, 2006, to cooperate in the case, and such cooperation was a condition of having Jonathan and Mary Grace released to the parents.)

6. The Pretrial Resolution Conference Hearings

At the pretrial resolution conference hearings held on March 1 and April 6, 2006, the initial petitions were dismissed and the parents denied the allegations in the first amended petition. Thereafter, father filed a challenge for cause to the hearing officer, asserting that the exchange between himself and the hearing officer on April 6, 2006 demonstrated the courts prejudice against him and inclination to rule against him on the petition. Additionally, he filed notice that he did not want to be represented by his court-appointed attorney and instead wished to represent himself. He also filed a request for a jury trial, and several other notices.

On May 11, 2006, the court struck fathers statement of disqualification of the hearing officer, finding there were no stated grounds for disqualification. It held a Marsden hearing and determined that father could represent himself but directed fathers court appointed attorney to remain on the case as an advisory counsel to father regarding dependency law.

7. The Adjudication Reports and Hearing

a. Reports

By the time of the May 18, 2006 adjudication hearing, Rachel was living with her sister Elizabeth. The Department was having difficulty securing a clothing allowance for Rachel because a birth certificate for her was needed but the parents continued to assert there was no birth certificate. Because the parents were not willing to sign an affidavit stating where and when Rachel was born, the Department indicated Rachel would be required to have a bone test done to determine her age, and for that, a medical or court order was necessary.

Rachel told the social worker that she did not think Jonathan and Mary Grace would be in danger living with the parents until such time as the minors begin thinking for themselves, and at that point they will have problems with father. During the monthly home visits for Mary Grace and Jonathan, father continued to be very intimidating to the social worker. Moreover, he asserted he would not cooperate with the Department unless it was ordered by the court and put in a minute order. The parents were given referrals for parenting, counseling and anger management. Father stated the parents called counseling and parenting programs but was told they have waiting lists.

The attorney representing Jonathan and Mary Grace, who was also their guardian ad litem under the federal Child Abuse Prevention and Treatment Act (CAPTA), filed points and authorities addressing the need for the dependency court to order that the minor children be enrolled in a school and that the parents assure regular attendance at such school. The attorney asserted regular attendance was not only for the educational benefit of the minors but also because of the safety and welfare protection provided to them by school day interaction with mandated reporters.

The adjudication hearing was held over the course of three days, May 18 and 19, and June 5, 2006. On the first day, counsel for Jonathan and Mary Grace informed the court that Jonathan told her he wanted new counsel. The court stated the request would be denied unless the minor was willing and able to pay for his own attorney and the attorney was there ready to begin. No Marsden hearing was held.

b. Testimony at the Hearing

Fathers Testimony

Called as a witness for the Department, father testified that none of his children have attended public school except for his eldest child who attended a public school for first grade. Instead, all of his children have been given lessons in his home. He stated that the children begin their lessons between 9 and 10 in the morning and end them between 3 and 5 in the afternoon, with some breaks for them to go out and play a little bit. He stated the home schooling is under the supervision of Sunland Christian School. Father stated he completed the tenth grade and then attended a trade school and an electronics school. He stated neither he nor his wife are accredited by an educational agency to teach their children at their home.

Contrary to representations made by himself, mother and Jonathan earlier in the instant matter, father acknowledged that he had used physical punishment on Rachel. He stated that in the prior year, she received two or three spankings from him. He said he has spanked Rachel on her buttocks and has used both his open hand and a back scratcher to do that, but has never hit her on any other portion of her body. He identified a back scratcher produced in court as the one he used on Rachel. It appeared to be broken or cracked, and he denied that it broke when he hit her with it. He stated that usually he would discipline Rachel by putting her on restriction, such as denying her the use of a computer or telephone, or not allowing her to visit her friends. Restrictions would generally last a week. He stated that with the other children he would talk to them if they misbehaved and if he felt it was necessary he would either spank them and tell them not to repeat the bad behavior, or he would put them on restriction.

Father denied that Rachel ever told him that Leonard C. molested her. He stated the first he heard about Rachels claim of molestation was when he went to the Wilshire police station after Rachel turned herself in there. When he learned that Rachel was accusing Leonard C. of molesting her he asked Leonard C. about it and Leonard C. denied the accusation. Father made a police report about the alleged molestation but he acknowledged that he never called the police to inquire about the status of the report. He stated he is still friends with Leonard C. He stated that Leonard C. has no actual home and sometimes lives in a car. When asked about his daughter Cam. L., who was the focus of the familys first involvement with the Department because of fathers brutal physical treatment of her, father only reluctantly acknowledged that she was his child.

Father acknowledged that when the section 300 petition was filed in 2001 on behalf of Elizabeth, he did not come to court. He stated he has no idea what was done with Elizabeth in that dependency matter because he wasnt a party to any of that. Regarding the dependency matter in which Charity was alleged to have been sexually abused, father testified that although Leonard C.s name was raised as a possible molester, that was only because Leonard C. went to the hospital when Charity was there and he identified himself as her babysitter. Father stated that until the section 300 petition was dismissed in that matter, he complied with an order to not allow Leonard C. come to the house.

Rachels Testimony

Rachel testified she ran away from home in late October 2005 because she did not want to live with father. She described him as dominating, saying that things have to be his way. She stated that when she was younger father would hit her with his open hand but when she was older he hit her with shoes, hangers, canes, and broom sticks. He also hit her with a back scratcher. He would hit her on her back, legs and buttocks. His hitting would leave marks on her body when he hit her both with his hand and with objects. Fathers hitting her with objects happened more than ten times, and it happened more than once a month. She stated she has been hit more than 50 times by father since she was seven years old. It hurt each time he hit her and she cried each time. He would usually hit her on the legs or on the back part. Mother was around most of the time when she was being hit by father but mother did not intervene to stop the hitting. Rachel stated that mother wouldnt do that. Asked which of her siblings she has seen father hit, Rachel stated she has never seen him hit Jonathan, Mary Grace, Lydia, or Tasha (Charity), but she has seen him hit Elijah and Elizabeth. Later she stated she could not recall if she has seen him hit Charity. She said father did not hit Lydia because Lydia is fathers favorite. When father attempted to examine Rachel (acting as his own attorney) he stated: Your testimony is that your father spanked you, isnt that correct? Rachel answered: Spanking is spanking on the butt, Dad. She denied that father spanked her with his hand on her buttocks.

Rachel broke down when she was questioned about her accusation that she was molested by fathers friend, Leonard C. She stated Leonard C. has touched her body in places that made her feel uncomfortable, including her vaginal area. He did that with his hand and he did it a lot. He would remove her underclothing. He began touching her when she was four or five years old and stopped when she was between eight and nine. She stated that although it was true that the parents had told her to report instances of people touching her private parts, she stated she didnt have that kind of . . . relationship with my parents. She said she felt she could not tell them, and obviously, I couldnt because they reacted the way they did. She added that when Leonard C. first began abusing her she was scared, plus he had been buying her things and she did not want him to become angry with her and stop buying her things. He bought her toys and food.

When she was twelve she told her parents that Leonard C. molested her. She told them when they were in the living room and it was evening time. Father asked her where she was touched and she pointed to her vaginal area for him. She did not think her parents believed her. Rachels sister Lydia was there and Lydia told the parents that Leonard C. used to touch her too and make her feel uncomfortable when she was little, and Leonard C. also bought her things. However, Lydia did not want to talk about those matters and she left the room. Rachel stated the parents reaction to Rachels disclosure of sexual abuse was that mother said Rachel should stay away from Leonard C. and she did not want Leonard C. to be around Mary Grace, and they did that for about three months. Rachel stated that was the end of the matter. Her parents didnt do anything about it. They were just like, whatever. They did not take her to a doctor for a medical examination. Nor did they take her to a therapist or talk with anyone about what happened to her. After she told them about Leonard C., the parents would let him be alone in the house with Rachel. She just ignored him. However, the parents did not leave Jonathan and Mary Grace alone with Leonard C.

Rachel stated she is attending public school and likes it. She stated she does not have the same knowledge that the other students in her class have and she is working to catch up to them. Asked how much time she spent each day on being schooled at the parents home, she stated sometimes two hours. Sometimes half an hour. It depended on what homework it was. Only mother taught her, not father. She was provided with books. The books had reviews in them but not tests. Mother helped her with assignments if she needed help. She could not recall mother being unable to help her. She would also ask Charity but Charity doesnt know it so she wasnt much help. Her subjects were citizenship, math, English and science. Once a year she took a test to see if she could pass to another grade. The last test she took was at a church. The test was administered by Sunland Christian School and was a test for that school. She passed the test but she did not remember her marks. During her schooling at home, her best subject was science and her worst was math. She was not taught geography or history. Asked if she can add, subtract, multiply and divide, Rachel stated she cannot. She remembered a time when a woman by the name of Marty helped Rachels sister Lydia with math, and when Rachel asked mother if Marty could help Rachel with math lessons, mother replied that she did not want to ask Marty for help for Rachel because Martys mother had broken her hip. Later, Marty told Rachel that she could help her with math. However, when Rachel told mother about the offer of help, mother never did anything.

Rachel began cutting herself with a razor blade when she was around twelve years old. She was unsure whether she began the cutting before or after she told the parents about Leonard C. When the parents discovered the cuttings father told Rachel that he would beat the shit out of you if she cut herself again. Rachel stated she had never heard him say shit before and his use of that word at that time scared her sufficiently so that she did not cut herself for a long time. At some point she asked if she could see a doctor about the cutting and father asked her if she was depressed. She told him she was depressed and he told her that he would be her therapist. That ended the conversation about seeking treatment for the cutting and she continued to cut herself. The last time she cut herself before she was detained was a few months before the detention. She cut herself when she was in the foster home before she went to live with her sister. Asked if she received advice on the internet about cutting she stated she did not. Asked by mothers attorney if she received information on the internet on how to file child abuse charges against father, Rachel answered: Oh, yeah. I received handbooks on it. No. Of course not.

Lydias Testimony

Rachels sister Lydia testified she has never seen father use physical discipline on herself or any of her siblings. She stated she would be surprised to learn that father testified he has spanked some of his children with his open hand. She stated Leonard C. never touched her private parts, and she never told anyone that Leonard C. touched her in an inappropriate way. Moreover, none of her siblings, including Rachel and Charity, ever told her that Leonard C. touched their private parts. She denied that Rachel had disclosed, in her presence, that Leonard C. had touched her.

Lydia stated she gets along well with Rachel. However, she never saw Rachels cutting marks until after Rachel was detained from the house by the Department. When she learned that Rachel was cutting herself, she may have asked Rachel why she was doing that but she and Rachel did not actually have a discussion about the cutting. She didnt think that Rachels cutting herself was serious. She testified that cutting oneself is a popular thing for children Rachels age to do. Lydia has known other children who cut themselves but she did not ask them why because it was not something that she was real curious about.

Asked about her schooling, Lydia stated she graduated from the twelfth grade and she received a diploma from the school. When she was being home schooled, she was schooled six or seven hours a day, and her siblings are also schooled that amount of time, five days a week and sometimes on Saturdays. History and social studies were part of her curriculum. She stated the children were schooled full time all year and not given holidays off like students in public schools are, but they were given their birthdays off. She stated that birthdays are celebrated in their family. (That contradicted fathers representation to the court on February 3, 2006, that the family does not celebrate birthdays.)

Charitys Testimony

Twenty-year-old sibling Charity testified she lives in the parents home and has always lived there. She stated that once she saw father hit Rachel with his open hand on Rachels buttocks and she has never seen him hit Rachel with any other object. Charity stated she thinks that fathers normal way of disciplining Rachel was to impose restrictions on her, such as Rachel would not be permitted to go places with her friends.

Asked who Leonard C. is, Charity stated he is someone who would go on errands for [father]. She stated Leonard C. was never left alone with her or any of her siblings, and he never touched her in her private parts. She stated Rachel never told her that he touched her private parts. Asked about Rachels cutting herself, Charity stated that she and Mother discussed with Rachel that she should not cut herself because [i]t is not a very smart thing to do. Charity asked Rachel why she was cutting herself and Rachel answered that she did it because she felt sad and it made her feel better. When Charity twice asked Rachel why she felt sad, Rachels answer both times was because. Charity stated Rachel just did not feel like talking about it. She stated that she and Rachel got along sometimes, and, if anything happened to her, I wouldprobably wouldnt feel that good about it. Since being removed from the family home, Rachel has visited there numerous times but never when father is there.

Charity stated that home schooling at the family home was Monday through Friday, every week. Contrary to Lydias representation that the children were not excused from study on holidays, Charity stated there were days off from school on Thanksgiving, Christmas, and birthdays. She took English, math, science, history, social studies, bible, and sometimes physical education. She did not receive a high school diploma but she received a certificate of completion. She did not know the difference between the two. She was not able to define the subject social studies. She stated there would be five or six children being home schooled at one time by mother. If they asked mother for help, mother would read stuff to us. The home schooling consisted of reading and writing activities. Charity stated that part of her home schooling time was sometimes spent helping her siblings and her older siblings would sometimes help her. When he examined Charity at the jurisdiction hearing, Father showed her written education materials which she identified as being like those she used. The materials had publication dates of 1978 and 1979. Charity stated the pages of the education materials would be copied on a copier and the copied pages would be used by the children. That way all of the minors could use the books.

Leonard C.s Testimony

Leonard C. testified that he would come to the parents home now and then when Rachel was between the ages of four and nine. He never really lived in the house. He usually stayed in his truck in the front. He stated there was a period of time when he did not go to the parents home at all, but he could not remember the instances. It was lately that father asked him to not come to the home. He stated he never was left alone with any of the children, including Rachel. He stated he never baby-sat the children. After he was informed that mother had said he baby-sat the children, he stated that there were times when mother would ask him to mind the children while she went to the store but he stayed there with them as an adult, not as a babysitter. He stated he never removed any of Rachels clothing and never touched her vaginal area. He stated he was hospitalized in approximately 2000 because someone put rat poison in his food, he was shot in 1998, and he has spent time in jail.

Jonathans Stipulated Testimony

The parties stipulated Jonathan would testify that father has never physically abused him or hit him with an object, he has never seen Rachel hit with any object, he has never been touched or molested by Leonard C., Rachel has never told him that Leonard C. molested her, he is home schooled regularly except for birthdays and certain occasions, he takes tests for school once or twice a year, and when he is ill he has been taken to a doctor or dentist.

Mothers Stipulated Testimony

Subject to cross-examination, the parties stipulated Mother would testify that Rachel was home schooled in history, social studies, science, math, bible, and other subject matters other than those specific ones as a fill in. Mother would testify that she was the primary teacher for the home schooling, her own education was through the eleventh grade, and the Sunland Christian School had approved her to have the qualification to home-school her children. Mother would also testify Rachel never disclosed to her that she had been touched by Leonard C., and the first time mother heard of the accusation was when Rachel went to the Wilshire police station. Mother would also testify she became aware of Rachel cutting herself approximately six months before Rachel ran away, the cuts were essentially superficial cuts, when mother spoke with Rachel about the cuts Rachel was not able to give mother any definitive answer, and mother monitored Rachel and did not notice any more fresh wounds after she spoke with Rachel.

Mother would also testify that the usual form of discipline was restrictions, although father would spank the children with an open hand or the back of the back scratcher, and she has no knowledge of the children suffering bruises from discipline, but Jonathan, Mary Grace, Lydia and Charity were never spanked, they were only given restrictions.

Additionally, the parties stipulated that if Lydia and Charity were recalled to testify, they would state that they lived in the parents home full time with Rachel prior to her leaving the home and the normal attire was dresses and shorts and they never saw any marks or bruises on any part of Rachels body.

c. The Courts Directive for Points and Authorities on the
Legality of the Parents Home Schooling and for Evidence
of the Accreditation of Sunland Christian School

The court directed the attorneys to provide it with points and authorities on the legality of the parents home schooling their children, and it indicated it wanted a declaration from Sunland Christian School regarding the schools accreditation. Having already filed points and authorities on the issue of home schooling, Jonathan and Mary Graces attorney filed a second set. Points and authorities were also filed by mothers attorney.

8. Adjudication of the Amended Petition, and Disposition

a. Adjudication

On June 5, 2006, the dependency court issued its adjudication of the amended petition and made a disposition order. The court found that Rachel, Jonathan and Mary Grace are minors described by the following subdivisions of section 300: (1) subdivision (a)Rachel was physically and emotionally abused by father on numerous occasions, including being excessively punished by being struck by father on her arms, back and legs with a stick, hanger and shoe, mother knew of the abuse but failed to protect Rachel, and such abuse endangers Rachel, Jonathan and Mary Grace; (2) subdivision (b)-1Rachel was repeatedly sexually abused by Leonard C. (he was identified in allegation b-1 as Lynn W.) from the ages four to nine when he digitally penetrated her vagina and fondled her vagina and body, and although the parents knew that he had been a person of interest with regards to Charitys possibly being sexually molested, the parents failed to take action to protect Rachel from him in that they allowed him to have unlimited access to Rachel in their home, and this endangers Rachel, Mary Grace and Jonathan; (3) subdivision (b)-2the same as subdivision (a); (4) subdivision (b)-3Rachel and several of her siblings were former dependents of the juvenile court due to fathers physical and emotional abuse, and prior dependency involvement has failed to resolve family problems in that Rachel has been physically and emotionally abused by father and sexually abused by Leonard C., the parents took no action to protect her, and the parents conduct endangers Rachel, Mary Grace and Jonathan; (5) subdivision (d)the same as subdivision (b)-1; and (6) subdivision (j)the same as subdivision (b)-3). The court also sustained a subdivision (i) count as to Rachelthe same as subdivision (b)-1.^[6]

The court dismissed the section 300, subdivision (b) allegation that the parents neglected the minors medical and dental needs. The court also dismissed a section 300 subdivision (c) allegation which charged that the parents failed to maintain Rachels regular attendance in school and thereby deprived her of an education and peer relationships necessary to her normal growth and development and placed her at substantial risk of suffering serious emotional damage as evidenced by her severe anxiety, depression, withdrawal and aggressive behavior towards others and herself. When the court addressed that allegation, it did so as though the allegation were about all three children.^[7]

b. Disposition

Regarding disposition, the court declared all three minors dependents of the court under the subdivisions adjudicated as applicable to them. Custody of Rachel was taken from the parents and placed with the Department for relative placement, and family reunification services were ordered. Mary Grace and Jonathan were placed under a home of parent order (mother), under Department supervision, and family maintenance services were ordered.

Father was granted monitored visitation with Rachel, to be with a Department approved monitor in a therapeutic setting. Mother was granted unmonitored visits with Rachel. The Department was granted discretion to liberalize the visitation.

Rachel was ordered to individual counseling at a Department approved facility, with conjoint counseling at the discretion of her therapist. The court ordered the parents to participate in counseling as directed by the Department and ordered no cost/low cost referrals for such counseling. Such counseling was to be at a facility approved by the Department and to include individual counseling, with conjoint counseling with Rachel at the discretion of the therapists. The parents were also ordered to parenting classes.

With respect to the childrens education, the court ordered the parents to ensure that Jonathan and Mary Grace are properly home schooled by ensuring the education materials are updated, and by having the Lynwood school district investigate their home schooling and give its approval. The court indicated it believed the parents have the legal right to home school their children assuming the home schooling education is appropriate. The court ordered that when Mary Grace and Jonathan are ready for high school, the parents interview the minors for their input as to whether the minors would rather attend home schooling or public school, and if the minors indicated a preference for public school, then the parents are to enroll them in public school.

A progress hearing on those orders was set for July 12, 2006, with the court indicating it could change its order regarding home schooling depending on the progress report. The progress report was to also address Rachels progress in her placement and counseling.

A six-month review hearing was set for all three minors for November 21, 2006.

Mary Grace, Jonathan, mother, and father each individually, and each acting in propria persona, filed timely notices of appeal from the disposition order. Additionally, a timely appeal from the disposition order was filed on behalf of Mary Grace and Jonathan by their court appointed attorney. As noted above, all such appeals were consolidated under appellate case number B192601.<