In re Alexa Y.

Filed 9/5/07 In re Alexa Y. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from an order of the Superior Court of Orange County, Barbara H. Evans, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant.

Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Paula A. Whaley, Deputy County Counsel, for Plaintiff and Respondent.

No appearance for the Minor.

* * *

Substantial evidence supports the juvenile courts findings at the jurisdiction/disposition hearing. The juvenile court did not abuse its discretion when it ordered monitored visitation with the father. We affirm.

I

FACTS

Allegations of general neglect of the minor, Alexa Y., then seven years old, by her father, Jeff Y., and sexual abuse by her paternal grandfather, Daniel Y., were substantiated by the Orange County Social Services Agency (SSA). On January 17, 2007, the juvenile court found it was of immediate and urgent necessity that for the minors protection she had to be taken under the protective custody of SSA. On March 26, 2007, the court found that continued placement is necessary, and the father was informed that parental rights may be terminated.

The father contends there was insufficient evidence for the juvenile court to find the allegations in the petition were true and that less drastic measures than removing the minor were available. The father also argues the juvenile court erred when it ordered monitored visitation.

The grandfather is a convicted child molester who previously served time for sexual abuse of two minor female relatives in another state. Additionally, his adult daughter, who is the minors aunt, says he molested her when she was a child, but she did not reveal this information at the time. The minor disclosed the grandfathers molestations to her aunt in November or December 2006. The aunt says she told both the father and the paternal grandmother about the abuse of the minor. On occasion thereafter, the grandfather was permitted to remain in the home with the minor.

In his brief, the father claims he made a mistake when he failed to report to the authorities that the minor disclosed she had been sexually abused by the grandfather. He says the juvenile court sustained the allegations of the petition, including many not supported by the evidence, because the court did not recognize the social worker had gotten many of the pertinent facts wrong.

The jurisdiction/disposition hearing began on March 23, 2007. SSA reports were admitted into evidence without objection. The February 14, 2007 report states the minor stated the grandfather rubbed her front private on 30 to 40 occasions starting when she was five years old. She said the incidents always occurred in the grandfathers bedroom. The same report states the grandmother told SSA that: sometimes during the middle of the night, the child would get up and go into the paternal grandfathers bedroom.

Social worker Jennifer Marks testified she reviewed criminal background checks, spoke with the sheriffs investigator and therapists and conducted interviews of the minor, the father, the grandmother and the caretakers. She said she did not know the year the grandfather was convicted of child molestation in Arizona, but thought it was when the father was a young child, approximately 27 years ago. The victims were two cousins of the father.

According to Marks, the grandmother stated in an interview that the grandfather, who reportedly has a hot temper, continued to spend nights in the grandmothers home [the home] after the minor disclosed the sexual abuse. When the disclosure was made, the minor was not living in the home, but on January 7, 2007, the minor and the father moved into the home because the father was having trouble paying his rent. However, while Marks said she did not know how many times it happened, the minor told Marks she did stay overnight in the home between the date of disclosure and January 7.

Marks said she got conflicting stories about when the minor disclosed the molestations to the aunt, when the minor lived in the same home as the grandfather and when the grandfather spent the nights in the home at the same time the child was there. An investigator from the sheriffs department told Marks the father lied regarding where the grandfather was living.

In addition to stating the father varied his accounts of pertinent facts, Marks expressed several other concerns about the father. She criticized him for not taking the minor for a medical examination, and said the father did nothing to obtain counseling for the minor. She also said the father has not been able to establish financial independence, and thats one reason he keeps moving back in with the grandparents, because he hasnt been able to make a reliable living.

Marks opined the family is in denial about what happened to the minor. At first, the father said he did not believe the minor was molested by the grandfather. She said the father also tended to minimize the possibility of the minors molestations by remarking that the grandfathers conviction was so long ago, and seemed to express more concern for the grandfather than for the victims. Marks said other family members besides the father deny that the grandfather molested children. She pointed out an uncles children divulged they were also molested and that they saw other children molested by the grandfather in the home, and the grandmother denied the children were ever molested.

Marks expressed concern that blame was placed on the minor. She said the father questioned the minor about why she would go into a bedroom with the grandfather.

The father testified the aunt told him the minor had disclosed to her that her grandfather had touched her on her privates. The father told Marks that after he became aware of the allegations, he never allowed the minor to be alone with the grandfather. When asked about her belief of fathers statement, Marks said, Well, he is working full-time, so Im not sure he can know whats going on when hes at work.

At the hearing, the minor was asked why she was staying with her aunt and uncle. She said, I think its because my grandpa touched me in the wrong place where hes not supposed to. She related that one time she got scared when the father left her in a car while he went to do something, and another time when he left her alone in the movies when she thought someone was going to grab [her] and take [her] away.

The juvenile court found the preponderance of the evidence supported the allegations in the petition, although the petition was amended to state the grandfather was present in the home at the same time as the minor on occasion rather than continued to reside in the same home with the paternal grandfather. The court also added that the father failed to prevent the child from having ongoing contact with her paternal grandfather. A few other changes were made to the petition.

The judge noted the father is both emotionally and financially dependent upon his family, but that hes beginning to get some insights. About the grandmother, the court said: The paternal grandmother is a puzzle to me in that she knew her husband was a child molester. She knew that the child was having nighttime contact in the grandfathers bedroom, but, quote, couldnt stop it, stop the child from going in there. It concerns me deeply that the molest of [the minor] and the alleged molest of the other small children, all younger than [the minor], took place probably, almost undoubtedly, while the grandmother was in the home, and yet, the father testified that he thought it was safe for [the minor] to be in the home because he knew his mother would protect her . . . . [] . . . I have real concerns about fathers in addition to his financial ability about his emotional ability to maintain his own household independent of his family. . . .  Although [the aunt] revealed that shed been molested, its quite possible that the other children in that home, father or fathers siblings, had also been molested. Nobody talked about anything. . . . Apparently nobody ever discussed the paternal grandfathers history of sexual molest. This is a multi-generational problem in this family. This is not the first time, of course, that those of us who work in this area have seen this, unfortunately. Father is going to have to do more to prove that he can protect his child. Love is not enough.

The court concluded: The court finds by clear and convincing evidence that return of [the minor] to her father at this time would pose a substantial danger to her physical and emotional well being, and that there are no reasonable means by which she may be protected without removing her from her parents physical custody. The court will vest custody of the minor with the Social Services director for suitable placement.

The court ordered a review hearing in 60 days. The ordered monitored visitation, and requested the social worker consider the feasibility of unmonitored visits between the minor and the father.

II

DISCUSSION

Sufficiency of evidence

The father concedes the grandfather is a convicted child molester. But he contends there was insufficient evidence to support the juvenile courts finding that the father failed to protect the minor from future abuse.

Any 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: [] . . . [] (d) The child has been sexually abused, or there is a substantial risk that the child will be sexually abused, as defined in Section 11165.1 of the Penal Code, by his or her parent or guardian or a member of his or her household, or the parent or guardian has failed to adequately protect the child from sexual abuse when the parent or guardian knew or reasonably should have known that the child was in danger of sexual abuse. (Wel. & Inst. Code 300 subd. (d).)

The courts jurisdictional and dispositional findings will be upheld on appeal if supported by substantial evidence. (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or evaluate the weight of the evidence. Rather, we draw all reasonable inferences in support of the findings, view the record most favorably to the juvenile courts order, and affirm the order even if other evidence supports a contrary conclusion. [Citation.] The appellant has the burden of showing the finding or order is not supported by substantial evidence. (In re Megan S. (2002) 104 Cal.App.4th 247, 251.)

Here, the father does not dispute the grandfather is a convicted child molester who sexually abused the minor. The record contains evidence that after the father was told the minor was sexually abused by the grandfather, the father voluntarily moved into the home where the grandfather sometimes stays overnight. We conclude the juvenile court had sufficient evidence to conclude the father did not take appropriate steps to protect the minor.

Visitation order

The father contends the juvenile court abused its discretion by failing to order unmonitored visitation with the minor. We review visitation orders under the deferential abuse of discretion standard. (In re Emmanuel R. (2001) 94 Cal.App.4th 452, 465.) We find no abuse of discretion here. The reviewing court will overturn a decision of the juvenile court regarding visits if the order exceeds the bounds of reason and is arbitrary and capricious. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)

In this case, the juvenile court heard evidence of molestations by the grandfather against small children within the family, including the minor, which spanned decades. The court expressed concern about the apparent denial of the seriousness of the multi-generational molestations by the family. Under the circumstances reflected in the record before us, we cannot conclude the juvenile court abused its discretion.

III

DISPOSITION

The juvenile courts order is affirmed.

MOORE, J.

WE CONCUR:

SILLS, P. J.

BEDSWORTH, J.

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