In re Ashley C.
Filed 5/13/13 In re Ashley C. CA2/2
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
TWO
>
In re ASHLEY C. et al. Persons Coming Under the Juvenile Court Law. | B244262 (Los Angeles County Super. Ct. No. CK92402) |
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. ANGELINA C., Defendant and Appellant. |
APPEAL from
a judgment of the Superior Court
of
County.
Stephen Marpet, Juvenile Court Referee. Affirmed.
Catherine C. Czar, under appointment
by the Court of Appeal, for Defendant and Appellant.
John Krattli, County Counsel, James
M. Owens, Assistant County Counsel, William D. Thetford Principal Deputy County
Counsel, for Plaintiff and Respondent.
___________________________________________________
The juvenile court sustained allegations against Angelina
C. (Mother) and Jaime C. (Father) and asserted
children. Mother contests two of the
four sustained counts against her. She
does not challenge the court’s jurisdiction or the disposition, but argues that
there is insufficient evidence to
support some of the findings under Welfare and Institutions Code section 300.
FACTS
Mother and
Father lived together when their first child was born and they married in
1997. They have four children: Ashley (born in 1995); Jaime Jr. (1999); and
twin boys R. and R. (2002). The children
were detained in March 2012, when the Department of Children and Family
Services (DCFS) deemed them to be at “high risk†due to ongoing domestic
violence and physical and emotional abuse.
In
interviews, family members described Father’s behavior. Ashley cited Father’s verbal abuse of his
children (which included put-downs, name calling and profanity) and his
physical abuse of Mother. In July 2011,
Father pulled Mother’s hair and choked her with his hands. In September 2011, Mother moved with the
children to an apartment, but Father comes there, tries to enter, and harasses
and demeans Mother. Mother and Ashley
stated that Father abuses cocaine and Mother indicated that Father is a
registered sex offender. Father still
comes to Mother’s apartment several times per week to take the twins to
school. In 2010 and February 2012,
Ashley was hospitalized after slashing her wrists, triggered by “fights with
her father.†She reported being raped in
2010 by a gang member and a recent blood test showed that she is pregnant.
On February 25, 2012, Father arrived unexpectedly at Mother’s
apartment. When she refused him entry,
Father loitered outside. At that point,
Ashley came home. Father grabbed
Ashley’s hair and punched her in the face with a closed fist, causing her
pain. Mother heard Ashley screaming and
opened the door to let her inside. As
Mother tried to shut the door, Father forced his way in, punched Mother in the
face, then ran away. Mother immediately
called the police. Father’s attack on
Mother was witnessed by Ashley and Jaime Jr., both of whom expressed fear of
Father. Mother agreed to keep the
children from having contact with Father.
Father has
a lengthy criminal history. In 1994, he
was convicted of lewd or lascivious acts with a child under the age of 14. As a result of this felony conviction, he is
a registered sex offender. In 2000,
Father was convicted of inflicting corporal injury on a spouse. He was found in possession of controlled
substances in 2009, and sent to drug court.
In October 2011, Father was arrested for forcing a boy under the age of
10 to orally copulate him in a movie theatre.
Though Father was not prosecuted, DCFS found the claim to be
substantiated and was providing the boy with voluntary services.
DCFS filed
a petition on behalf of the children. It
alleges that the children have suffered or are at risk of suffering serious
physical harm owing to Father’s February 2012 attacks on Ashley and Mother, and
his history of physical altercations with Mother, which includes a conviction
for spousal abuse. The petition also
alleges that Mother failed to protect the children from Father, and allowed him
to frequent the home and have unlimited access to the children despite knowing
that he is registered sex offender.
At the
detention hearing on March 6, 2012,
the court found a prima facie case for detaining the children from Father and
vested custody with DCFS. They remained
in the care of Mother, who denied the allegations in the petition. Father did not appear at the hearing. Restraining orders prevented Father from
approaching Mother or the children.
In its
April 2012 jurisdiction/disposition report, DCFS wrote that Father was arrested
on March 13, 2012. Mother was taking the children to school when
Father threw a water bottle at her. As
Mother called the police on a cell phone, Father assaulted her, tried to take
her telephone away, called her vulgar names, “and threatened to do something to
her if he got in trouble for this incident.â€
Mother reported the incident to the police and Father was arrested. Father had a warrant pending because he did
not comply with the terms of his probation in drug court. Further, one of the twins informed the DCFS
social worker that his 12-year-old brother Jaime had “raped him†by touching
his private parts. The social worker saw
a scratch on Ashley’s wrist: she had cut
herself with broken glass because she feared that Father might be killed in
jail due to his record as a sex offender, but she denied suicidal intent.
Ashley told
a DCFS interviewer that Father has “a really bad temper†and he “would hit me
and my mom a lot,†though he did not hit her brothers. Ashley recalled that Father tried to choke
Mother once. Ashley started running away
from home when she was in the sixth grade.
She knows that Father is a registered sex offender, but believes that he
got in trouble for having a girlfriend under the age of 18 whose family
reported him to the police. When
Ashley’s friends found out about Father’s criminal record, she began cutting
her arms because “I just couldn’t handle it.
I was embarrassed and I started to hate my dad.â€
Jaime did
not see Father hit Ashley on February 25, “but I did hear her screaming
downstairs and then she ran upstairs and my mom opened the door for her. My dad started screaming and yelling at my
mom and then he socked my mom in her eye.
My mom’s eye got really red. My
mom called the police but my dad left running.
They would argue a lot but my dad would hit my sister because she would
not listen to him. I saw my dad try to choke
my mom one time, but I don’t remember when.â€
Like Ashley, Jaime believes that Father got in trouble for having a
girlfriend under the age of 18. Jaime
denied that Father ever sexually abused him.
Although Jaime misses Father, “at least it is more peaceful. We don’t have to worry about him and my mom
fighting or him and Ashley fighting.â€
One of the
twins reported that “My dad only hits Ashley cuz [sic] she doesn’t listen. My
dad hit my mom in the face because she let Ashley in the house. I didn’t see him hit Ashley that day. But another day when we were walking to
school, my dad threw a monster bottle at my mom. It hit her on the back of her leg. My dad was mad and saying bad things to my
mom.†He denied ever being touched
inappropriately by Father. The other
twin was absent when Father struck Mother, although he heard about it. “I was there when my dad threw the water
bottle at my mom and she was really mad.
My dad didn’t hit us. Only Ashley
because she ran away and she didn’t behave, that’s why he would hit
Ashley.†He denied sexual abuse by
anyone.
Mother did
not see Father strike Ashley on February 25, “but I know he hit her because her
face was really red. I did hear them
screaming and yelling at each other outside that is why I went to the
door. They were always fighting. Her dad did hit her before but he was very
jealous and would not allow her to have any friends over or do anything. That is why Ashley would run away.†Mother described increasing physical violence
by Father, including an incident in which he put his hands on her neck and she
could not breathe. He would say vulgar
things, threaten her, and call her a whore, even when the children were
present. “He would always tell me that
something bad was going to happen to me if I called the police on him.â€
Early in their relationship, Mother
found out that Father uses cocaine, but has never seen him use drugs at
home. She found a baggie of cocaine in
Father’s pocket when Ashley was about four years old . She encouraged Father to get help for his
drug addiction, but he never agreed to do so.
Father was physically abused by his own father, who would lock him the
basement for hours without food as a form of punishment. Mother was aware of Father’s status as a sex
offender, because it prevented him from getting a job. Mother reported that Ashley has been running
away since age 11, and has a history of psychiatric hospitalizations because
she cuts herself. Mother “appears to
minimize the issues surrounding the fact that father is a registered sex
offender and does not seem to realize the dangers involved with the children
especially Ashley’s acting out behaviors.â€
DCFS noted that after his 1994 conviction for lewd and lascivious acts with
a child under 14, Father has been arrested twice for molesting youngsters.
Like her children, Mother believed
that Father was a sex offender because he had a young girlfriend whose family
reported him to the police. Father never
worked because of his criminal record, so Mother worked six or seven days a
week to support the family while Father would cook, clean and take care of the
children. “Then he made me stop working
because he said I was not caring for my kids and he thought I was out with
another man. He went to my job and made
a scene and said he was going to call immigration on the place I worked. I had to stop working because of him.â€
The social worker was unable to
interview Father because he was recently sent to state prison. DCFS recommended that Father receive no
reunification services because he committed a violent sex felony. The report notes that the children “are
exhibiting behaviors associated with children who are sexual abuse
victims.†For example, Ashley has been
sexually promiscuous since age 11 and has attempted suicide, and one of the
twins made “rape†allegations against his brother. Given Father’s history of sexual acts with
children, DCFS had “grave suspicion†that Father abused his own children. Further, Mother minimizes the children’s
behaviors and is unable to set appropriate limits. Mother allows Ashley to go out late at night
and bring home different boyfriends despite Ashley’s history of rape and
suicide attempts. Mother knew of
Father’s 2011 arrest for molesting a small child because there was an investigation
to determine whether Father’s children were at risk; yet even after his arrest,
Mother allowed Father to have unlimited access to the children.
The twin who accused Jaime of
“rape†was interviewed privately. He
stated that Jaime rapes both twins “every day.â€
He defined rape as being forced to do something or being touched on your
private parts. In particular, “my
brother gets me from behind and puts his dick on my butt†with his clothes on,
and “I don’t like it.†He did not tell
Mother about this. He misses Father and
is sad that he is in jail. By contrast,
the other twin denied that Jaime ever touched him in his private area, although
Jaime does fight with his younger brothers.
Both twins denied that Father abused or maltreated them. Jaime denied sexually abusing his younger
brothers. Mother does not believe the
sexual abuse accusation; however, the twin who made the claim approached
Mother, repeated the accusation of rape, and pointed at his penis.
The children began receiving
counseling services during the dependency proceeding. They were benefitting from services. Though Ashley had not cut herself since
entering counseling, Mother found a rolled up dollar containing white powder in
Ashley’s possession, which she admitted was crystal methamphetamine. Mother suspects that Ashley uses drugs. The children continue to be placed with
Mother. Father was convicted of a drug
felony on April 30, 2012,
and was serving a two-year prison sentence.
The petition was adjudicated on September 18, 2012. No witnesses were called to testify. The main issue was whether Mother was aware
of Father’s sex abuse history with children yet allowed him unlimited access to
the family home. Mother countered that
Father was allowed to have children and there was no evidence that he was ever
sexually inappropriate with his own children or that his status placed the
children at risk.
The court sustained the
allegations, as amended. It said, “The
court has substantial evidence of father’s abhorrent behavior with other
children based upon the evidence before me and that is a continuing ongoing
risk and mother knew of this risk.†When
Mother objected to this finding, the court added, “Clearly, the behavior was
such that it does put these children at risk.â€
The court declared the children to be dependents of the juvenile
court. Moving to disposition, the court
left the children in Mother’s care under DCFS supervision, and ordered her to
attend individual counseling to address case issues. Mother appeals the court’s jurisdictional
findings.
DISCUSSION
The disposition order is an
appealable judgment. (§ 395;
187, 196.) “In reviewing the
jurisdictional findings and the disposition, we look to see if substantial
evidence, contradicted or uncontradicted, supports them. [Citation.]
In making this determination, we draw all reasonable inferences from the
evidence to support the findings and orders of the dependency court; we review
the record in the light most favorable to the court’s determinations; and we
note that issues of fact and credibility are the province of the trial
court.†(In re Heather A. (1996) 52 Cal.App.4th 183, 193;
1022.)
Mother concedes that dependency
court jurisdiction is proper. She wants
us to reject some of the court’s findings while accepting the validity of other
sustained counts against her. For
example, Mother does not challenge findings that she failed to protect the
children from Father’s violent physical altercations. Under the sustained counts that Mother does
not contest, she is an offending parent.
She relies on In re Drake (2012)
211 Cal.App.4th 754, to urge us to reach the merits of her appeal. Drake
is inapposite. In Drake, the court reached the merits because “the outcome of this
appeal is the difference between father’s being an ‘offending’ parent versus a
‘non-offending’ parent. Such a
distinction may have far reaching implications with respect to future dependency
proceedings in this case and father’s parental rights.†(Id.
at p. 763.) By contrast, Mother is an
offending parent even if we do not reach the merits of her appeal.
Multiple jurisdictional findings
need not be reviewed piecemeal. The
judgment will be affirmed “if the evidence supports the decision
Jonathan B. (1992) 5 Cal.App.4th 873, 875, italics added.) “When a dependency petition alleges multiple
grounds for its assertion that a minor comes within the dependency court’s
jurisdiction, a reviewing court can affirm the juvenile court’s finding of
jurisdiction over the minor if any one of
the statutory bases for jurisdiction that are enumerated in the petition is
supported by substantial evidence. In
such a case, the reviewing court need not consider whether any or all of the
other alleged statutory grounds for jurisdiction are supported by the
evidence.†(In re Alexis E. (2009) 171 Cal.App.4th 438, 451, italics added;
Cal.App.4th 437, 450; In re Ashley B. (2011)
202 Cal.App.4th 968, 979.) If there is
any basis for asserting jurisdiction, no reversal of the judgment occurs even
if other bases are improper. (
64 Cal.App.4th 67, 72.)
The purpose of the
child, rather than prosecute the parent.â€
(In re Alysha S. (1996) 51
Cal.App.4th 393, 397.) This is precisely
why the courts are not concerned with each count alleged in the dependency
petition—unlike a criminal prosecution, there is not a prison sentence meted
out for each count. If evidence supports
even one count of parental abuse or neglect, the courts must assert
jurisdiction over the child. Given the
gravity of the sustained allegations in this case, the court had to exert
jurisdiction to protect the children.
Mother contends that there is
insufficient evidence to sustain findings against her under subdivisions (b)
and (d) of section 300.
name="_ftnref3" title="">[3] The challenged counts (b-3 and d-1) relate to
Father’s status as a registered sex offender.
Mother argues that “there was no evidence that Mother’s allowing Father
to have contact with the children when she knew he was a registered sex
offender endangered her children.â€
Cases finding a substantial
physical danger involve “an identified,
specific hazard in the child’s environment—typically an adult with a proven
record of abusiveness.†(
814, 824.) A father’s status as a sex
offender establishes a presumption that his children are at risk of abuse. (§ 355.1, subd. (d).) Sex offender status—even for an offense that
occurred many years earlier with an unrelated child—is prima facie evidence
that the offender’s own children are persons described by subdivisions (b) and
(d) of section 300. (
577.) When applying section 355.1,
evidence of “a parent’s abuse of an unrelated child may well tend to prove that
the parent suffers from characteristics that also place the parent’s child at
substantial risk of similar abuse.†(
116.) A mother’s claim that she did not
know and could not reasonably have known that her husband was a sex offender
does not affect the children’s status as juvenile court dependents. (In re
Maria R. (2010) 185 Cal.App.4th 48, 60.)
In this instance, Mother knew that
Father was registered sex offender.
Indeed, she and Father had a child together in 1995, soon after Father’s
1994 conviction for lewd and lascivious acts with a child under 14. Mother claims that Father got in trouble for
being involved with a girlfriend under the age of 18, even though his
conviction arises from molesting a child under 14. Mother knew Father’s conviction was serious
enough to prevent Father from ever getting a job during their marriage. Mother maintains that Father’s 2011 arrest
for forcing a 10-year-old boy to perform oral copulation was “deemed
unfounded.†Actually, the allegations
were substantiated by DCFS and the sexually abused child receives services as a
result of the molestation.
In interviews with DCFS, Mother
acknowledged that Father has “been arrested on several occasions but denies she
knew the reason.†Mother’s ignorance
presumably encompasses Father’s drug arrests, car theft arrests, spousal violence
arrests and everything else detailed in Father’s four-page rap sheet. The dependency court specifically found that
Mother knew of Father’s “abhorrent behavior with other children.†The court did not believe Mother’s claims of
ignorance, and we cannot disturb its credibility assessment. (In re
E.B., supra, 184 Cal.App.4th at p. 578.)
Mother’s claimed unawareness
rings particularly untrue because Father’s 2011 child molestation arrest
triggered an investigation to determine whether his children had also been
molested. Mother could not have been
unaware of what caused the investigation.
The court could reasonably find
that Mother minimized Father’s child molestation arrests and conviction, and
that she created a detrimental and endangering home environment by leaving the
children alone all day with a registered sex offender. No evidence was presented at trial that
Father has overcome his sexual proclivity for young children. Father’s incarceration does not ensure the
children’s safety, as he will soon be released from prison. A dependency finding may be sustained if
there is a latent risk of harm. (
1003.) It was not necessary to show that
the children in this case were, in fact, sexually abused.
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN,
P.J.
We concur:
ASHMANN-GERST, J.
FERNS, J.*
_______________________________________________________________
* Judge
of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6
of the California Constitution.
name="_ftn1" title="">[1] Statutory
references in this opinion are to the Welfare and Institutions Code.
name="_ftn2" title="">[2] Father
has also been arrested for stealing cars and for disorderly conduct while under
the influence of drugs.
