In re Cynthia L.

Filed 2/9/10 In re Cynthia L. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County. Marguerite Downing, Judge. Reversed in part and affirmed in part.

Neale B. Gold, under appointment of the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, Kim Nemoy, Senior Deputy County Counsel, for Plaintiff and Respondent.

__________________________

R.L. (mother) appeals from the juvenile courts jurisdictional and dispositional orders asserting jurisdiction over Cynthia L. and placing her in a nonrelative foster placement. Mother contends insufficient evidence supported the courts jurisdictional orders as to her. Mother also challenges the juvenile courts order that her visits with Cynthia be monitored. We reverse the juvenile courts jurisdictional findings as to mother, but otherwise affirm the juvenile courts orders.

FACTUAL AND PROCEDURAL BACKGROUND

16-year-old Cynthia lived with her father and stepmother. In November 2008, stepmother discovered a typewritten letter on Cynthias desk. In the letter, Cynthia revealed that father had sexually abused her for nine years. Stepmother asked Cynthia about the letter. When Cynthia confessed that the written account was true, stepmother immediately took Cynthia and her younger half-sister and left the family home. Stepmother reported the abuse to the Department of Children and Family Services (DCFS). Cynthia told DCFS and law enforcement about fathers abuse. Beginning when she was six years old, father habitually entered Cynthias bedroom, naked from the waist down. Father fondled Cynthia, digitally penetrated her, and forced her to touch his genitals. This continued weekly, and then daily, through Cynthias 15th birthday.

Mother was only a sporadic presence in Cynthias life. After father and mother divorced in 1998, father took full custody of Cynthia and her older brother. Mother moved to Northern California. Father, Cynthia, and the older brother told DCFS that mother abused alcohol. Cynthias older brother, now an adult, recalled that mothers boyfriend got her into drugs, and both mother and the boyfriend drank heavily. Once, while the older brother and Cynthia were visiting, mother and her boyfriend accused them of stealing a bag of marijuana. Mother remained angry at Cynthia and her brother until she determined someone else had taken the bag. Cynthia also reported that mother often seemed drunk when the two spoke on the telephone.

According to Cynthia, mother did not call or attempt to make contact with her for long periods. Mother did not speak with Cynthia when she was between the ages of six and 10. Although Cynthia began visiting mother when she was 10, when she was 11, mother again stopped communicating with her for another five years. In 2008, the year the DCFS petition was filed, Cynthia had seen mother only once at the beginning of the year. Mother paid at least some child support and provided health insurance coverage.

After DCFS filed its petition, mother had one visit with Cynthia. Cynthia described the visit as awkward and weird. She told the DCFS social worker she did not want to live with mother permanently because she was happy where she waswith her foster parentsand she did not want to change schools. Cynthia reported: I will go into a spiraling depression if I leave my school because my support is there.

The juvenile court sustained an amended DCFS petition and asserted jurisdiction over Cynthia under Welfare and Institutions Code section 300, subdivisions (b) (failure to protect) and (d) (sexual abuse).^[1] In sustaining the section 300, subdivision (b) allegations relating to mother, the court explained:

As to b-2 [count alleging mothers substance abuse endangered Cynthia], the court notes that the information with respect to [mother] in terms of substance abuse and alcohol abuse appears to be historical. Theres no evidence that shes a current user of alcohol. She indicates she drinks beer, but other than that, the court has no indication she overdrinks beer. [] And the standard is that her doing so endangers the childrens emotional and physical health. In this case, she does not reside with her children. She is not their caregiver. And based upon that, the court finds that the burden has not been met. In fact, mother lives out of the city. [] Now, as to No. 3 [alleging mothers failure to provide necessities of life], the court would agree with [mothers counsel] that her daughter Cynthia, what she thinks is not necessarily the case.^[2] And the court does, in fact, note that mother apparently pays more [child support] than shes scheduled to pay. [] But even looking at the amount that shes paid, thats not really sufficient to provide in a practical matter. But maybe more importantly is the fact that Cynthia believes her mother hasnt been there for her all this time since 97. And I note I dont have receipts for everything. I just have receipts for certain periods. And the fact that she believes her mother is not providing does, in fact, affect the emotional support. [] . . . [] The court thinks that maybe if Cynthia thought her mother was active, if she saw her mother, that she would have been able to turn to her mother to disclose [fathers abuse]. But that wasnt the case.

The court dismissed a section 300, subdivision (b) count that alleged mothers substance abuse endangered Cynthia, as well as a count under subdivision 300, section (g), that alleged mother failed to provide Cynthia with the necessities of life, thereby endangering her physical and emotional health. The court sustained an amended count b-3 as follows: The child [Cynthias] mother, [R.s] failure to consistently provide the child with necessities of life including food, clothing, shelter and medical care and emotional support endangers the childs physical and emotional health, safety and well being and places the child at risk of physical and emotional harm and damage.

Following a contested disposition hearing, the juvenile court removed Cynthia from fathers custody and declined to place Cynthia with mother. The court found by clear and convincing evidence pursuant to section 361, subdivision (c), that there was or would be a substantial danger to Cynthias physical health, safety, protection, or emotional well-being if she were returned home, and there were no reasonable means by which she could be protected without being removed from her parents physical custody. The court ordered Cynthia removed from father. The court also ordered family reunification services for mother and father. The court ordered visitation for mother; Cynthia requested that the visits be monitored, and the court agreed. Mothers appeal followed. Father is not a party to this appeal.

DISCUSSION

I. Substantial Evidence Did Not Support the Juvenile Courts Jurisdictional Findings on Count B-3

Mother argues there was insufficient evidence to sustain the jurisdictional finding that concerned her. However, she does not contend there was insufficient evidence to sustain the findings regarding fathers sexual abuse of Cynthia. In a dependency matter, jurisdiction is asserted over the child. The court may declare jurisdiction over a child based on either parents actions. ( 302, subd. (a).) So long as findings relating to one parents actions are supported by substantial evidence, jurisdiction over the child is proper, regardless of whether any of the petitions allegations relate to the other parent. (In re Alexis E. (2009) 171 Cal.App.4th 438, 451; In re James C. (2002) 104 Cal.App.4th 470, 482; In re John S. (2001) 88 Cal.App.4th 1140, 1143.) However, because the jurisdictional findings concerning mother may have an impact on future placement and reunification orders, we nonetheless review the juvenile courts findings regarding mother. (John S., supra, at p. 1143; In re Joshua C. (1994) 24 Cal.App.4th 1544, 1548.)

On appeal from an order making jurisdictional findings, we must uphold the courts findings unless, after reviewing the entire record and resolving all conflicts in favor of the respondent and drawing all reasonable inferences in support of the judgment, we determine there is no substantial evidence to support the findings. [Citation.] Substantial evidence is evidence that is reasonable, credible, and of solid value. [Citation.] (In re Veronica G. (2007) 157 Cal.App.4th 179, 185.)

Under section 300, subdivision (b), the court may assert jurisdiction if the child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child . . . or by the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent or guardian to provide regular care for the child due to the parents or guardians mental illness, developmental disability, or substance abuse. ( 300, subd. (b).) A jurisdictional finding under section 300, subdivision (b) requires:  (1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) serious physical harm or illness to the child, or a substantial risk of such harm or illness. [Citation.] [Citations.] (In re James R. (2009) 176 Cal.App.4th 129, 135.)

Here, the serious physical harm or illness to Cynthia was caused by fathers sexual abuse. The record does not contain substantial evidence that mothers relative absence from Cynthias life was causally linked to fathers sexual abuse of Cynthia. And, other than the very serious past physical harmand risk of future physical harmto Cynthia from fathers sexual abuse, there was no evidence she had suffered or risked suffering any other physical harm or illness attributable to mothers conduct, as required for a jurisdictional finding under section 300, subdivision (b). There was no evidence to support a finding that mothers failure to consistently provide adequate food, clothing, shelter, or medical care caused or risked causing Cynthia serious physical harm or illness. Moreover, there was no evidence that had mother provided more consistent financial support, Cynthia may have disclosed fathers abuse to her. While the court also considered the emotional harm mothers absence had caused Cynthia, jurisdiction under section 300, subdivision (b) necessarily requires findings that the child has suffered or risks suffering serious physical harm or illness due to parental neglect. In addition, there was no evidence that mother knew of fathers abuse or that she was in a position to know. (Cf. In re J.K. (2009) 174 Cal.App.4th 1426, 1429, 1439 [mother failed to protect child under  300, subd. (b) where she knew of fathers abuse but did not report it and allowed child to continue visiting father].)

A recent case involving an absentee father is instructive. In In re J.O. (2009) 178 Cal.App.4th 139, DCFS intervened after the mother inflicted serious physical harm on her children, and the stepfather sexually abused the mothers daughter. The father had not provided any financial support for the children, or spoken to the children, for several years. (Id. at p. 145.) The juvenile court found true an allegation that father failed to provide the children with the necessities of life and sustained jurisdictional findings relating to father under section 300, subdivisions (b) and (g). (J.O., at p. 151.) While the reviewing court affirmed the jurisdictional findings under section 300, subdivision (g), it concluded substantial evidence did not support jurisdiction under section 300, subdivision (b), based on the fathers conduct. The court explained that the mothers inappropriate and excessive physical discipline of the children and the stepfathers sexual comments, gestures, and touching directed toward his stepdaughter had no relation to [the fathers] failure to provide the children with support or financial assistance. (J.O., at p. 152.) Although the stepdaughter did not receive adequate medical care because the mother and stepfather did not secure it or did not want her to be examined, the court found that the mother and stepfathers actions were not caused by [the fathers] abandonment or failure to provide support. (Ibid.)

We are faced with a similar situation here. Fathers abuse of Cynthia was not caused by mothers failure to be more actively involved in Cynthias life. Further, there was no evidence that mother, as a noncustodial parent who lived outside of the county and had almost no contact with Cynthia, negligently failed to protect or supervise Cynthia, causing her serious physical harm or illness.^[3] (See In re R.M. (2009) 175 Cal.App.4th 986, 989-990 [no jurisdiction under  300, subd. (b) where no evidence that childrens inappropriate sexual conduct with each other occurred as a result of mothers approach to parenting or her physical or emotional problems, or that mother failed to adequately supervise children].) DCFS did not allege, and there was no finding, that mother knew or reasonably should have known of fathers abuse. Moreover, the juvenile court dismissed the other two counts offering alternative bases for jurisdiction over Cynthia as a result of mothers alleged substance abuse ( 300, subd. (b)), or her alleged failure to provide support for Cynthia (Id., subd. (g)).

Thus, while jurisdiction over Cynthia was otherwise proper because of fathers conduct, the juvenile court finding sustaining count b-3 as to mother must be reversed.

II. The Juvenile Courts Disposition Order Was Proper

Mother further contends the trial court erred in failing to place Cynthia with her. We disagree.

Mother argues that the juvenile courts disposition order was not supported by clear and convincing evidence of a substantial risk of harm to Cynthia or a finding that no reasonable means were available to protect Cynthias physical safety without removing her from mothers custody. ( 361, subd. (c)(1).) DCFS contends the standard mother relies upon in section 361, subdivision (c)(1), did not apply because mother was not a custodial parent. Instead, DCFS argues the relevant statute was section 361.2, which allowed the court to deny placement with mother upon a finding that such placement would be detrimental to Cynthias safety, protection, or physical or emotional well-being. ( 361.2, subd. (a).)

When making its dispositional orders, the juvenile court explicitly referred only to section 361, subdivision (c)(1), which provides that a dependent child may not be taken from the physical custody of the parents with whom the child resides at the time the petition was initiated unless the juvenile court finds by clear and convincing evidence one of several enumerated circumstances, including: There is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minors physical health can be protected without removing the minor from the minors parents . . . physical custody. ( 361, subd. (c)(1).)

However, we agree with DCFS that the appropriate statute was section 361.2, which concerns placement of a dependent child when there is a noncustodial parent involved. Under section 361.2, subdivision (a): When a court orders removal of a child pursuant to Section 361, the court shall first determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child. If that parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child. This section applies regardless of whether the custodial parent is offending or nonoffending. (In re V.F. (2007) 157 Cal.App.4th 962, 970 (V.F.).)^[4] The juvenile court must find detriment by clear and convincing evidence. (In re John M. (2006) 141 Cal.App.4th 1564, 1569 (John M.).)

In this case, Cynthia did not live with mother at the time the petition was initiated. Mother had long before relinquished custody of Cynthia to father, but she requested custody once DCFS eventually located her and informed her of the dependency proceedings. Thus, the question at disposition was whether mother should assume custody of Cynthia, rather than whether Cynthia should be removed from mothers custody under section 361, subdivision (c)(1).

DCFS contends that even though the juvenile court did not make express findings under section 361.2, subdivision (a), we may imply such findings from the record. As mother notes, some courts have refused to imply findings when the juvenile court failed to properly consider section 361.2. In In re Marquis D. (1995) 38 Cal.App.4th 1813 (Marquis D.), the children were temporarily placed with their noncustodial father after being detained and removed from their mother. The juvenile court did not consider section 361.2 when making its dispositional orders and instead removed the children from both parents under then section 361, subdivision (b). The Court of Appeal found the juvenile court erred in failing to apply section 361.2. The court also declined to imply findings under the proper statutory section based on the record. The court explained that the juvenile court had not adequately explored whether placing the children with the father would be detrimental to them within the meaning of section 361.2, and the evidence in the case was not clear. (Marquis D., at p. 1825.)

Similarly, in V.F., the juvenile court removed dependent children from a noncustodial parent under section 361, subdivision (c), which did not apply, instead of considering section 361.2. The court discussed Marquis D. and noted that while the record before it would arguably support a finding of detriment under section 361.2, the better practice is to remand the matter to the trial court where that court has not considered the facts within the appropriate statutory provision. (V.F., supra,157 Cal.App.4th at p. 973.)^[5]

However in this case, while the juvenile court did not appear to expressly consider section 361.2, it nonetheless made findings on a clear and convincing evidentiary basis that indicated placing Cynthia with mother would be to her detriment. The juvenile court expressly found by clear and convincing evidence that there was or would be a substantial danger if the child were returned home, to her physical health, safety, protection, physical or emotional well-being, and that there are no reasonable means by which she may be protected without removing her from her parents physical custody. Although this finding tracked the language of section 361, subdivision (c), the court clearly considered the potential detriment a placement with mother would cause.

More importantly, unlike in Marquis D. and V.F., here overwhelming evidence supported a finding that placement of Cynthia with mother would be detrimental to her. (Cf. Marquis D., supra, 38 Cal.App.4th at p. 1825 [[W]here the trial court has failed to make express findings the appellate court generally implies such findings only where the evidence is clear].) Under section 361.2, subdivision (a), the court has broad discretion to evaluate not only the childs physical safety but also his or her emotional well-being. In an appropriate case, all that might be required is a finding such a placement would impair the emotional security of the child.(In re C.C. (2009) 172 Cal.App.4th 1481, 1490 (C.C.); see also In re Luke M. (2003) 107 Cal.App.4th 1412, 1425 [a detriment finding may be supported by emotional harm to the child, even if the harm is not attributable to parental conduct].)

Cynthia and her older brother reported that mother in the past abused alcohol in their presence. Mother had disappeared from Cynthias life for several years at a time, without any apparent explanation. Mother did not communicate with Cynthia for five years when she was between the ages of 11 and 16. The one visit mother had with Cynthia before the disposition hearing demonstrated that the two did not have a close relationship, and Cynthia described the visit as awkward and weird. Cynthia was 16 at the time of the petition and was described as an extremely credible witness, who is very articulate and appears mature for her age in language abilities. Cynthia told the DCFS social worker she did not want to live with mother. She did not want to leave her school, in part for fear of losing school credits, but also because she had a support network at the school. DCFS observed that Cynthia had low self-esteem and made pessimistic statements about her life and fantasizing death. Cynthia feared she would spiral into depression if forced to live with mother in Northern California. The evidence more than established that placing Cynthia with mother would be detrimental to Cynthias emotional well-being. (Cf. John M., supra, 141 Cal.App.4th at pp. 1570-1571 [14-year-old was entitled to have his wishes considered but not entitled to decide placement; however, his wishes were unclear; moreover father was not to blame for lack of relationship with child].)

We therefore affirm the juvenile courts dispositional order.

III. The Juvenile Courts Visitation Order Was Not an Abuse of Discretion

Mother further argues the juvenile court abused its discretion by ordering that mothers visits with Cynthia be monitored. DCFS takes no position on this issue. We disagree that the order was an abuse of discretion.

As mother concedes, the juvenile court has broad discretion to determine the terms and conditions of visitation. (In re Julie M. (1999) 69 Cal.App.4th 41, 48.) Only if   the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination   will we reverse such an order. (In re Stephanie M. (1994) 7 Cal.4th 295, 318, quoting In re Geoffrey G. (1979) 98 Cal.App.3d 412, 421.) The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court. [Citations.]^[6] (Ibid.)

We find no abuse of discretion in the trial courts order that mothers visits with Cynthia be monitored. It was not necessary for there to be a showing of detriment before the juvenile court could exercise its discretion to order monitored visits. (Cf. C.C., supra, 172 Cal.App.4th at pp. 1491-1492 [court may not deny all visitation absent substantial evidence that visitation would pose a threat to the childs safety].) Further, Cynthia was not allowed to dictate whether visitation would happen at all, as mother suggests. Instead, Cynthia requested a monitor, a factor the juvenile court was entitled to consider. The evidence had already established that mother had almost no relationship with Cynthia, and Cynthia found a previous visit with her mother uncomfortable. To facilitate visits, the trial court could reasonably take into consideration and act on Cynthias request that the visits be monitored.

DISPOSITION

The juvenile courts finding sustaining count b-3 is reversed. In all other respects the juvenile courts judgment and orders are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BIGELOW, P. J.

We concur:

RUBIN, J. FLIER, J.

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^[1] All further statutory references are to the Welfare and Institutions Code.

^[2] Cynthia told DCFS that mother never sent her any money. However, father told DCFS mother paid a minimal amount of child support. Mother also provided documentation for several months showing that she paid child support.

^[3] Indeed, in a petition relating to Cynthias younger half-sister, the juvenile court eventually dismissed an allegation that stepmother knew or reasonably should have known father was abusing Cynthia, even though stepmother lived with father and Cynthia during at least part of the period of abuse.

^[4] We therefore reject mothers argument that if section 361.2 was applicable, this necessarily means mother was nonoffending.

^[5] This court considered a related issue in R.S. v. Superior Court (2007) 154 Cal.App.4th 1262. In R.S., in the context of reunification services, this court granted a writ petition and ordered the juvenile court to make findings under section 361.2 where the lower court failed to apply the statute in the first instance and it was not clear from the record whether the noncustodial parent actually desired custody.

^[6] Some courts have applied a substantial evidence standard of review when the juvenile court denies all visitation. (C.C., supra, 172 Cal.App.4th at p. 1492; In re Mark L. (2001) 94 Cal.App.4th 573, 581.) We are not confronted with such an order in this case.