In re Caleb S.
Filed 7/1/13
In re Caleb S. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL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opinion has not been certified for publication or ordered published for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 SIX
In re CALEB S., a Person
Coming Under the Juvenile Court Law.
2d Juv. No. B245663
(Super. Ct. No. J068751)
(Ventura County)
VENTURA COUNTY HUMAN
SERVICES AGENCY,
Petitioner and Respondent,
v.
SARAH S.,
Respondent and Appellant.
Sarah S. (mother) appeals from the
juvenile court's orders sustaining a supplemental petition (Welf. & Inst.
Code, § 387),
title="">[1] removing
her son, Caleb S., from his parents' physical
custody, and placing him in foster care.
Mother argues that the evidence is insufficient to support the court's
jurisdictional findings and dispositional order. We affirm.
Caleb S.
(child) was born in May 2011. Child's
half sibling (sibling) was born in July 2004.
Mother is sibling's biological parent.
Child's biological father (father) is sibling's stepparent. Mother and father (parents) are married and
resided in the family home with child and sibling.
In March 2012
County Human Services Agency (HSA) investigated a report that sibling had
been the victim of emotional abuse. A
social worker interviewed mother, who said that sibling chronically wet his bed
and that the bedwetting was getting worse.
Mother "stated that she knew that extreme bed wetting can be a
behavior associated with molest[ation] or other traumatic
experiences." Mother said that
father and sibling "mutually 'tease' one another regularly, but . . . she
did not view the teasing as abusive."
The social
worker interviewed sibling, who declared as follows: He did not "feel safe
in the home" with father. Father
called him "mean names" and often made an obscene hand gesture at
him. Sibling is not allowed to sleep in
his bedroom "because he might pee in there." He "sleeps on the floor near the front
door because if he pees there it can be mopped up easily." He is not allowed to have blankets
"because he may pee on them."
Father told him that he cannot sleep in a bed until he stops wetting the
bed. Sibling wears diapers at night and
father "makes fun of him for wearing the diapers." Both father and father's12-year old
biological son, Mike, tease him about his bedwetting.
At night
mother sleeps in a bedroom with child.
Father sleeps in the living room with sibling. Father watches pornographic movies in
sibling's presence. Father once
"offered him '10 marshmallows' to watch with him."
Father
disciplined sibling by hitting him with a leather belt "that had been cut
into strips which had been tied in knots at the end to hurt when it hit the
skin." Mother was aware that father
had used the belt to discipline him.
"[T]he last time the belt was used was 'maybe a year ago.'
"
The social
worker asked sibling to show her the belt.
While searching for the belt, sibling opened a drawer that contained a
loaded pellet gun. Sibling said,
" '[T]hat's
[father's] gun but I'm not supposed to touch it.' "
After
interviewing sibling, the social worker spoke with mother. Mother acknowledged that father had watched
pornographic movies in sibling's presence, but "she . . . never suspected
any sexual abuse and believe[d] that [father] doesn't watch those movies often." Mother also acknowledged that father had used
a leather belt to discipline sibling and that father's teasing "was
escalating [sibling's] stress and bed-wetting episodes." Mother knew that father kept weapons at home,
"but did not seem to associate risk to the fact that a weapon was being stored
within reach of the children."
In March 2012 HSA filed a
failed to protect child (§ 300, subd. (b)), and (2) sibling had been
abused and there was a substantial risk that child would also be abused. (§ 300, subd. (j).)
In May 2012
the petition was sustained after an uncontested
hearing, and child was adjudged a dependent of the juvenile court. Parents retained physical custody of child.
After the May 2012 hearing, HSA
became aware of new information concerning father's sexual abuse of
sibling. In June and July 2012, sibling
made the following statements to the police: One night father put his penis on
sibling's penis and " 'humped him.' "
Mother came into the room and told father to stop. Father said to sibling, "I will kill you
if you tell anyone." Sibling
watched father's biological son, Mike, "hump [father] weener to
weener" like [father] would do to [sibling]." Father "made [Mike] get on top of
[sibling] and . . . hump him."
Father had sibling "hump the floor one time while they were
watching the porn together." These
incidents started when sibling was six years old and continued until he was
removed from parents' home in March 2012.
Father called sibling " 'humpie' in the presence of
[mother]." Sibling "believes
[mother] knows exactly why [father] calls him humpie and never defends
him." Sibling's bedwetting stopped
after his removal from parents' home.
Sibling attributed the bedwetting to "stress from being with
[father]." Sibling had not
previously mentioned the humping incidents because he was concerned that father
was serious about his threat to kill him.
The police asked mother about
sibling's allegations of sexual abuse.
Mother denied the allegations and said she believed that sibling's
"biological father ha[d] coached him into making it all up."
Father was arrested and charged with
committing a lewd act upon a child (Pen. Code, § 288, subd. (a)) and
threatening to commit a crime that will result in great bodily injury or
death. (
worker "that she was going to stand behind her husband all the way through." Mother said that she "and the paternal
grandmother . . . were going to bail the father out."
In July 2012 HSA filed a section 387
supplemental petition requesting that child be removed from parents' physical
custody because father had sexually abused sibling and mother had failed to
intervene to protect him. In December
2012 the juvenile court sustained the petition and ordered that child be placed
in a foster home. The court further
ordered that family reunification services be provided to parents.
Section 387,
subdivision (a) provides: "An order changing or modifying a previous order
by removing a child from the physical custody of a parent . . . and directing
placement in a foster home . . . shall be made only after noticed hearing upon
a supplemental petition." The
petition "shall contain a concise statement of facts sufficient to support
the conclusion that the previous disposition has not been effective in the
rehabilitation or protection of the child." (§ 387, subd. (b).)
" 'In proceedings on a
supplemental petition, a bifurcated hearing is required. [Citations.]
In the first phase of a section 387 proceeding, the court must follow
the procedures relating to a jurisdictional hearing on a section 300 petition .
. . . At the conclusion of this
so-called "jurisdictional phase" of the section 387 hearing
[citation], the juvenile court is required to make findings whether: (1) the
factual allegations of the supplemental petition are or are not true; and (2)
the allegation that the previous disposition has not been effective in
protecting the child is, or is not, true.
[Citation.] If both allegations
are found to be true, a separate "dispositional" hearing must be
conducted under the procedures applicable to the original disposition hearing .
. . . [Citation.]' [Citation.]" (In re
Javier G. (2005) 130 Cal.App.4th 1195, 1200.)
At the dispositional hearing, the
court may not order removal of the child from the parents' physical custody
unless it finds one or more specified circumstances true by clear and
convincing evidence. (§ 361, subd.
(c).) One circumstance is that
"[t]he minor or a sibling of the minor has been sexually abused, or is
deemed to be at substantial risk of being sexually abused, by a parent . . . or
member of his or her household, . . . and there are no reasonable means by
which the minor can be protected from further sexual abuse or a substantial
risk of sexual abuse without removing the minor from his or her parent . . .
." (§ 361, subd. (c)(4).) "The court shall make a determination as
to whether reasonable efforts were made to prevent or to eliminate the need for
removal of the minor from his or her home." (§ 361, subd. (d).)
We will uphold the juvenile court's
jurisdictional findings and dispositional order if they are supported by
substantial evidence. (In re Henry V.
(2004) 119 Cal.App.4th 522, 529; In re A.O. (2004) 120 Cal.App.4th 1054,
1061.) "We review the evidence in
the light most favorable to the [juvenile] court's determinations, resolve all
evidentiary conflicts in favor of the prevailing party, and
in all reasonable inferences to uphold the
court's findings. [Citation.] We do not reweigh the evidence, evaluate the
credibility of witnesses, or resolve evidentiary conflicts. [Citation.]
The burden is on the party or parties challenging the findings and
orders of the [juvenile] court to show there is no evidence of a substantial
nature to support the finding or order.
[Citation.]" (
1, 12-13.)
The section
387 petition alleged that "[t]he previous disposition has not been
effective in the protection or rehabilitation of the child." As supporting facts, the petition alleged:
"The child's half sibling . . . stated that he was sexually abused by the
child's father . . . . Abuse included .
. . having the child's sibling watch porn videos and 'humping' the child's
sibling. The mother knew or reasonably
should have known of the alleged sexual abuse and failed to intervene to
protect the child's sibling. The actions
by the parents place the child at risk of suffering similar abuse."
Viewing the evidence in the light
most favorable to the juvenile court's determinations, we conclude that
substantial evidence supports the finding that the petition's allegations are
true. Mother knew that father had
watched pornographic movies at night in sibling's presence, but she continued
to allow sibling to sleep in the same room with father. Mother saw father "humping" sibling
and did not protest when father referred to him as "humpie." Mother did not believe sibling's allegations
of sexual abuse. She told the police
that sibling's biological father had coached him into making up the allegations.
Father sexually abused not only
sibling, but also his 12-year old biological son, Mike. It is therefore reasonable to infer that, in
view of mother's failure to intervene, every child in the family home was at
risk of sexual abuse by father. (See
["[W]hen a father severely sexually abuses his own child, the court may
assume jurisdiction over, and take steps to protect, the child's
siblings"]; In re P.A. (2006)
144 Cal.App.4th 1339, 1347 ["aberrant sexual behavior by a parent places
the victim's siblings who remain in the home at risk of aberrant sexual
behavior"].) Accordingly, the
juvenile court reasonably found that the previous disposition permitting child
to remain in the home had "not been effective in the protection . . . of
the child."
Substantial
evidence also supports the dispositional
order that child be removed from parents' physical custody and placed in a
foster home. The juvenile court
reasonably concluded that "there are no reasonable means by which [child]
can be protected from . . . a substantial risk of sexual abuse without
removing" him from the family home.
(§ 361, subd. (c)(4); see In
re Karen R. (2001) 95 Cal.App.4th 84, 90-91 ["we conclude a
father who has committed two incidents of forcible incestuous rape of his minor
daughter reasonably can be said to be
so sexually aberrant
that both male and female siblings of the victim are at substantial risk of
sexual abuse . . . if left in the home"].)
The court also reasonably concluded that "reasonable efforts [had
been] made to prevent or to eliminate the need for removal" of child from
the home. (§ 361, subd. (d).) The court noted that parents had been offered
various parenting and counseling services.
The juvenile
court's orders sustaining the supplemental petition, removing child from
parents' physical custody, and placing him in foster care are affirmed.
NOT
TO BE PUBLISHED.
YEGAN,
J.
We concur:
GILBERT,
P.J.
PERREN,
J.
Ellen Gay Conroy, Judge
Superior Court County of Ventura
______________________________
Frank
H. Free, under appointment by the Court of Appeal, for Respondnet and
Appellant
Leroy
Smith, County Counsel, County of Ventura; Alison L. Harris, Assistant County
Counsel, for Petitioner and Respondent.
name="_ftn1" title="">[1] All statutory references are to the Welfare and Institutions Code
unless otherwise stated.
