In re Ashley H.

 

 

 

 

 

 

 

 

 

 

 

Filed 8/9/13  In re Ashley H. CA2/5

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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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  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FIVE

 
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In re ASHLEY H. et al., Persons Coming Under the Juvenile Court Law.	B242786       (Los Angeles County       Super. Ct. No. CK90536)
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,               Plaintiff and Respondent,               v.   DOUGLAS H. et al.,               Defendants and Appellants.

 

            APPEAL from
orders of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County. 

Jacqueline H. Lewis, Temporary Judge.  (Pursuant to Cal.
Const., art. VI, § 21.)  Affirmed.

            Andre F. F.
Toscano, under appointment by the Court of Appeal, for Defendant and Appellant
Douglas H.

            Lori A.
Fields, under appointment by the Court of Appeal, for Defendant and Appellant
Elizabeth H.

            John F.
Krattli, County Counsel, James M. Owens, Assistant County Counsel and Melinda
Green, Senior Associate County Counsel,
for Plaintiff and Respondent.

            The issue
in this case is whether a father’s sexual abuse of his step-daughter supports a
determination that his son is subject to the jurisdiction of the juvenile court
in the absence of evidence that the father sexually abused or otherwise
mistreated him.  Our Supreme Court
recently affirmed a jurisdictional finding on facts very similar to those
before us and disapproved a line of Court of Appeal cases relied on by
Father.  (In re I.J. (2013) 56 Cal.4th 766, 775-781 (I.J.); see also Los Angeles
County Dept. of Children & Family Services v. Superior Court (2013) 215
Cal.App.4th 962, 963-970.)  We conclude
that I.J. is dispositive of the issue
and affirm the jurisdictional finding. 

The minor’s mother also appeals,
challenging the sufficiency of the evidence of her failure to protect her son,
and contending that the juvenile court erred in removing the child from her
custody.  We see no error in the finding
or order and so affirm.

 

I.  FACTUAL AND PROCEDURAL BACKGROUND

 

            Ashley H.
is the daughter of E.H. (Mother) and step-daughter of D.H. (Father). Father
raised Ashley from the time she was three years old and considers her to be his
daughter.  Mother and Father also have a
son, Douglas H. 

            On October
25, 2011, 14-year-old Ashley and 11-year-old Douglas were detained by the Los
Angeles Department of Children and Family
Service (DCFS) after Ashley disclosed to a school counselor that she had
been raped multiple times by Father. 
When confronted with the allegations, Father denied them and Mother
explained that Ashley is bipolar, suffers from depression, and is never left
home alone unsupervised.  She also stated
Ashley claimed she had been raped the previous year, but fabricated the
allegation in order to gain attention. 
Mother did not believe Ashley had been sexually assaulted.  Ashley subsequently denied Father raped
her.  Ashley later stated she had been
raped over a period of years, starting when she was 11, but refused to identify
Father as her abuser.  Douglas denied any
knowledge of sexual or emotional abuse in the home.  Appellants do not challenge the juvenile
court’s finding that Father sexually abused Ashley.

            In 1999,
the juvenile court sustained a petition alleging that Father sexually abused
his 13-year-old step-daughter, Dominique. 
Father was charged with continuous sexual abuse of a child in violation
of Penal Code section 288.5, but the charges were dismissed for lack of
evidence.  Mother recalled that in 2001,
shortly after she and Father married, she had accompanied Father to court
regarding “some sort of abuse,” but that the case was dismissed.

            DCFS filed
a petition pursuant to Welfare and Institutions Codehref="#_ftn1" name="_ftnref1" title="">^[1] section 300, containing allegations under
subdivisions (b), (d), and (j).  Counts
b-1 and d-1 alleged that Father had forcible sexual intercourse with Ashley,
Mother knew or should have known Ashley was being sexually abused, and Mother
failed to protect her from Father. 
Counts b-2 and d-2 alleged that in April 1999, Father had sexually
abused his step-daughter Dominique.  A
single count was pled under subdivision (j) alleging Father’s sexual abuse of
Ashley and Mother’s failure to protect Ashley from that abuse endangered
Douglas’s physical health and safety and placed him “at risk of physical harm,
damage, sexual abuse and failure to protect.” 
The minors were detained and placed in separate foster homes.

            The
adjudication hearing, originally set for December 7, 2011, was held on
June 13 and 14, 2012.  Ashley was
declared unavailable as a witness.  The
juvenile court received the DCFS reports and social workers’ case notes into
evidence; DCFS presented no other evidence in its case-in-chief.  Father called four witnesses:  a police detective and a social worker to
whom Ashley recanted her story, Mother, and Ashley’s adult sister,
Jasmine.  In closing argument, after
reviewing the evidence supporting the allegation that Father had raped Ashley,
DCFS described Mother’s behavior as “almost as reprehensible as [Father’s]” by
calling Ashley a liar and refusing to provide her with any emotional
support.  DCFS argued that Father’s
conduct was “so heinous and mother’s failure to protect so egregious that
Douglas could not possibly be safe with these two parents.”  

            Douglas’s
counsel noted that Douglas wanted to return home.  But after listening to Mother’s testimony, he
could not recommend that it was in Douglas’s best interest to do so.  Counsel indicated that it was “questionable”
whether Father posed a risk to Douglas; however, “whether his mother is capable
of protecting him if [Father] poses a risk is very, very clear from today’s
testimony.”href="#_ftn2" name="_ftnref2"
title="">^[2]  Douglas’s counsel asked the court to find
that Mother failed to protect Douglas and that Father’s sexual abuse of Ashley
put Douglas at risk of emotional abuse.   


            The
juvenile court sustained the following allegations contained in the petition under
Welfare and Institutions Code section 300: 
Father sexually abused Ashley and Mother failed to protect Ashley from
Father’s abuse, which conduct endangers Ashley’s “health and safety and places
[her] at risk of physical harm, damage, sexual abuse, and failure to protect”
as described in section 300, subdivision (b); Father sexually abused Dominique
in 1999, which conduct endangers Ashley’s “health and safety and places [her]
at risk of physical harm, damage, sexual abuse, and failure to protect” as described
in section 300, subdivision (d); and Father’s sexual abuse of Ashley and
Mother’s failure to protect her places Douglas “at risk of physical harm,
damage, and failure to protect” as described in section 300, subdivision (j). 

            The
juvenile court addressed the risk to Douglas as follows:  “[T]he court did dismiss Douglas out of the
(d) allegations because I do not see, pursuant to recent case law -- or all
case law, actually, that there is a specific risk of [Father] sexually abusing
the child Douglas, based on his age and his gender.  [¶] 
That being said, the Court did sustain the (j) allegation as to
Douglas.  Pursuant to the case of >In re Maria R., 185 Cal.App.4th 48, the
Court really looked at whether or not the sibling of Ashley, Douglas, is at substantial
risk of harm within any of the subdivisions enumerated in
. . . subdivision (j). 
And I think that, clearly, for me, that is true.  [¶] 
While I don’t necessarily believe that [Father] is a risk of sexual
abuse to the minor Douglas, the risk of being raised by someone who has no
problem forcibly raping 11-year-old girls puts this child at risk.  [¶] 
And the same thing with the mother. 
Mother’s unwillingness to protect Ashley from even this, even today,
even after knowing everything here, clearly places Douglas as much at risk in
his mother’s care and custody, who would pick other people over her child,
apparently, any time.”   

At the disposition hearing, the
court admitted the “Last Minute Information” dated June 29, 2012.  It stated that Mother had not maintained
contact with Ashley or visited her since the adjudication hearing on June
14.  Ashley reported she had attempted to
contact her mother by phone, but received no response.  Mother denied being upset with Ashley,
stating that she had been busy helping her older daughter move. 

At the disposition hearing, neither
parent argued Douglas should be released to their care.  Rather, they argued the court should allow
unmonitored visits, with Mother requesting overnight visits. 

The juvenile court declared Ashley
and Douglas dependents and removed them from their parents’ care.  The children were ordered suitably
placed.  Mother and Father were ordered
to participate in reunification services. 
The court ordered monitored visits with Douglas and issued a no contact
order between Father and Ashley.

Mother and Father timely appeal the
juvenile court orders.

 

II.  CONTENTIONS

 

Father and Mother challenge the
juvenile court’s jurisdictional findings regarding Douglas under section 300,
subdivision (j).  Mother also challenges
the disposition order removing Douglas from her care.  Neither parent challenges the jurisdictional
or dispositional findings or orders regarding Ashley.

 

 

 

III.  STANDARD OF REVIEW

 

       “‘In reviewing a challenge to the
sufficiency of the evidence supporting the jurisdictional findings and
disposition, we determine if substantial evidence, contradicted or
uncontradicted, name="citeas((Cite_as:_56_Cal.4th_766,_*773,_2">supports them.  “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.)  “We do not reweigh the evidence or exercise
independent judgment, but merely determine if there are sufficient facts to
support the findings of the trial court. 
[Citations.]  ‘“[T]he [appellate]
court must review the whole record in the light most favorable to the judgment
below to determine whether it discloses substantial
evidence . . . such that a reasonable trier of fact could
find [that the order is appropriate].”’ 
[Citation.]”  (In re Matthew S.
(1988) 201 Cal.App.3d 315, 321.)’”  (>I.J., supra, 56 Cal.4th at p. 773.)

 

IV.  DISCUSSION

 

1>. 
Father’s appeal

 

            The sole issue presented on
Father’s appeal is whether his sexual abuse of his stepdaughter by itself
supports a finding under section 300, subdivision (j), that his son is subject
to the jurisdiction of the juvenile court. 
That subdivision provides that a child is a dependent of the juvenile
court if “[T]he child’s sibling has
been abused or neglected, as defined in subdivision (a), (b), (d), (e), or (i),
and there is a substantial risk that the child will be abused or neglected, as
defined in those subdivisions.  The court
shall consider the circumstances surrounding the abuse or neglect of the
sibling, the age and gender of each child, the nature of the abuse or neglect
of the sibling, the mental
condition of the parent or guardian, and any other factors the court
considers probative in determining whether there is a substantial risk to the
child.”

As the parties acknowledge, our appellate courts have
disagreed over whether subdivision (j) supports dependency jurisdiction
over a minor such as Douglas in the absence of evidence that would support a
finding of jurisdiction under subdivisions (a), (b), (d) (e) or (i), independent
of the sexual abuse of the minor’s opposite sex sibling.  Thus, appellants rely on the reasoning of >In re Alexis S. (2012) 205 Cal.App.4th
48, In re Maria R. (2010) 185
Cal.App.4th 48 and In re Rubisela E.
(2000) 85 Cal.App.4th 177, to argue that Douglas is not subject to dependency
court jurisdiction under subdivision (j), while respondent cites >In re Andy G. (2010) 183 Cal.App.4th
1405, In re P.A. (2006) 144
Cal.App.4th 1339 and In re Karen R.
(2001) 95 Cal.App.4th 84, to argue for the opposite conclusion.  Since the parties completed briefing on this
appeal, our Supreme Court has resolved this conflict in the case law. 

In I.J., >supra, 56 Cal.4th
at page 770, the court addressed the issue of “whether a father’s sexual abuse
of his daughter supports a determination
that his sons are juvenile court
dependents when there is no evidence the father sexually abused or otherwise
mistreated the boys, and they were unaware of their sister’s abuse before this
proceeding began.”  The court held that “when a
father severely sexually abuses his own child, the court may assume
jurisdiction over, and take steps to protect, the child’s siblings” (>id. at p. 780) and disapproved, to the
extent they were inconsistent with this holding, the cases relied on by
appellants.  (Id. at pp. 780-781.)  I.J.
is dispositive of father’s appeal.  (>Auto Equity Sales, Inc. v. Superior Court
(1962) 57 Cal.2d 450, 455 [California Supreme Court decisions are binding on
all state courts in California].)

 

2.  Mother’s
appeal

 

            Mother
contends that “[t]here is no evidence to support a reasonable inference that
Father poses any risk of physical or sexual harm to Douglas; therefore,
Mother’s inability to properly protect Ashley from sexual abuse has no logical
relation to her ability to protect Douglas.” 
This argument lacks merit.

The juvenile court recounted the
evidence of Mother’s failure to protect Ashley, including that she refused to
consider the possibility Ashley was raped by Father, though she knew Father had
forcibly raped another teenage girl living in his home.  The court found Mother was “clearly lying” in
her testimony, and chose to protect her relationship with Father instead of
protecting her child.  The court concluded,
“Mother’s unwillingness to protect Ashley from even this, even today, even
after knowing everything here, clearly places Douglas as much at risk in his
mother’s care and custody, who would pick other people over her child,
apparently, any time.”  The finding is
supported by substantial evidence and
we will not disturb the trial court’s credibility assessment.  (See In
re Heather A., supra, 52 Cal.App.4th at p. 193.) 

Mother also challenges the
dispositional order removing Douglas from her care.  But Mother did not seek release of Douglas to
her care at the disposition hearing, and so has forfeited the issue on
appeal.  (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2.)  Were we to consider the argument, we would
uphold the disposition order.

            “The
juvenile court has broad discretion to determine what would best serve and
protect the child’s interests and to fashion a dispositional order
accordingly.  On appeal, this
determination cannot be reversed absent a clear abuse of discretion.”  (In re
Baby Boy H. (1998) 63 Cal.App.4th 470, 474; see also In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006.)  A court abuses its discretion when it makes a
determination that is “‘“arbitrary, capricious, or patently absurd.”’”  (In re
Mark V. (1986) 177 Cal.App.3d 754, 759, quoting In re Geoffrey G. (1979) 98 Cal.App.3d 412, 421.) 

As noted above, Mother utterly
failed to protect Ashley from what the juvenile court described as “horrendous
sexual abuse.”  As disturbing as Father’s
conduct was, Mother’s response to it was equally abhorrent:  A withholding of the love, comfort and
support that any child would need to begin to heal the painful wounds inflicted
by her father’s betrayal of the parent/child relationship.  The court acted well within its discretion in
removing Douglas from Mother’s custody.

V.  DISPOSITION

 

The orders
under review are affirmed.

                                    NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS

 

 

                                                KUMAR,
J.href="#_ftn3" name="_ftnref3" title="">^*

 

 

We concur:

 

 

                        TURNER,
P. J.

 

 

                        MOSK,
J.