In re Joseph V.
Filed 8/6/12 In re Joseph
V. CA2/7
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SEVEN
In re JOSEPH V. et al., Persons
Coming Under the Juvenile Court Law.
B232895
(Los Angeles
County
Super. Ct.
No. CK84816)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
JESSE G. et al.,
Defendants, Objectors and Appellants.
APPEAL from orders of the Superior
Court of Los
Angeles County. Timothy R. Saito,
Judge. Affirmed in part and reversed in
part.
Andre F. Toscano, under appointment
by the Court of Appeal, for Defendant and Appellant Jesse G. (father).
Lori A. Fields for Defendant and
Appellant Maria V. (mother).
Darlene Azevedo Kelly, under
appointment by the Court of Appeal, for Objector and Appellant Joseph V.
(minor).
Andrea Sheridan Ordin, County
Counsel, James M. Owens, Assistant County Counsel, and Kim Nemoy, Principal
Deputy County Counsel for Plaintiff and Respondent.
INTRODUCTION
Los Angeles County Department
of Children and Family Services (DCFS) filed a petition alleging that
siblings Joseph V., age 16, and Emily G., age 10, fell within the jurisdiction
of the juvenile court pursuant to Welfare and Institutions Code section 300,
subdivisions (b), (d) and (j). The
petition alleged that the children’s father had sexually abused their
half-sister and that such conduct placed the children at substantial risk of
sexual abuse. The petition also alleged
that the children’s mother, who lived in North Carolina, had failed to protect
the children because she permitted them to reside with their father in
California. At the jurisdictional
hearing, DCFS recommended that the juvenile court sustain the allegations
pertaining to father and dismiss the allegations pertaining to mother. The court, however, sustained the allegations
against both parents, declared the children to be dependents of the court and
ordered them removed from the parents’ residences.
Father, mother and Joseph each appeal the juvenile
court’s jurisdictional and dispositional orders. We reverse the portion of the court’s orders
pertaining to Joseph and affirm the portion of the orders pertaining to
Emily.
FACTUAL AND PROCEDURAL BACKGROUND
Initial investigation
In October of 2010, Jesse G. (father) was living in
Los Angeles, California with his two children, Joseph, then 16, and Emily, then
10. The children’s mother, Maria V., was
living in North Carolina and had three adult children from a prior relationship: Jasmine L. (then 21), Richard L. (then 24)
and David L. (then 23). Between
approximately 1996 and 2006, father and mother had lived together
intermittently with Joseph, Emily, Jasmine, David and Richard.
On October 18, 2010, DCFS received a referral from the
Los Angeles County Sheriff’s Department alleging sexual abuse to Joseph and
Emily (collectively children). A Los
Angeles Sheriffs Department (LASD) detective reported that the children’s
half-sister Jasmine had informed law enforcement that father (Jasmine’s
stepfather) had sexually abused her between the ages of four and eighteen. Jasmine stated that Joseph and Emily were
supposed to be living with mother in North Carolina, but were currently residing
with father in Los Angeles. Mother had
allegedly sent the children to visit father and neither parent could afford to
pay for their return trip to North Carolina.
Although mother told Jasmine she did not believe father had “done
anything sexual to the children,”
Jasmine was concerned for the children’s safety.
Summary of LASD criminal
investigation
A DCFS social worker interviewed the detective who
made the initial referral. The detective
reported that, in 2009, Jasmine filed a criminal report accusing father of
sexual abuse. The matter was referred to
DCFS after Jasmine reported that Joseph and Emily were under the care of their
father. The detective stated that he
currently had a “weak case due to Jasmine being inconsistent with her story”
and that the district attorney “did not want to take it.” He also informed DCFS that Jasmine had filed
a criminal complaint against her father in North Carolina but dropped the
charges. The detective stated that
police had been unable to interview father about the allegations because he was
frequently out of town for work. Father
lived with his mother (the children’s paternal grandmother), who cared for the
children when father was out of town.
The detective provided a report summarizing the
investigation of Jasmine’s criminal complaint.
The report stated that when Jasmine initially reported the incident,
which occurred on June 9, 2009, she “was not able to give specific dates or
times of the incidents, but was able to give specific details on certain
incidents.” Jasmine alleged that father
began sexually abusing her when she was four years old. Over a period of years, father had entered
Jasmine’s room on a nightly basis and performed oral copulation on her. Father also tried to “force her to perform
oral copulation on him but she would refuse.”
On three or four occasions, father allegedly showered with Jasmine. Father continued to perform oral copulation
on Jasmine until she was 10 or 12 years old, and then he started to “penetrate
her vaginally with his penis.” She
recalled “bleeding when he first attempted [sic].” Father would also “use his fingers and other
foreign objects to penetrate her vagina.”
Sometimes father would leave money in Jasmine’s underwear. The last incident of abuse occurred in a
hotel in Texas in 2006; Jasmine was 16 at the time of the incident.
The report stated that, during a second interview on
June 10, 2009, Jasmine said that father “orally copulated” her from the age of
four until the age of 12, and then began having sex with her. Jasmine reported that the sexual abuse
occurred “almost every day for years” and that father had sex with her at least
once a month when she was 12 years old.
On one occasion, Jasmine’s older brother walked in on father and Jasmine
while they were having sex and then backed out of the room. On another occasion, father came into her room
and “began to orally copulate her and attempted to have sex with her.” Jasmine’s brother, who was sleeping in the
room, woke up and yelled at father to leave the room.
Jasmine reported that no abuse occurred between the
ages of 12 and 15 and that the last incident occurred when she was 16. On that occasion, the family was staying in a
hotel in Texas. Father was left alone
with Jasmine and began touching her.
Jasmine pushed him away and left the room. Shortly thereafter, father moved to
California and Jasmine has not seen him since.
The police report indicated that law enforcement also
interviewed Jasmine’s brother, Richard L., in May of 2010. Richard said that, in 2000, he and Jasmine
lived in North Carolina with mother and father.
Richard woke up one night and saw father in bed with Jasmine “getting up
from between Jasmine’s legs.” Richard
could not remember if Jasmine or father were clothed. Father allegedly left the house shortly after
this incident. Richard said that Jasmine
later told mother what occurred and that this was the only inappropriate
incident he witnessed between Jasmine and father.
The police report also summarized an interview with
mother, which occurred in October of 2010.
Mother said that although Jasmine never went into detail about what
happened with father, mother knew father had “touched her sexually.” Mother said when her son David was about 7 or
8, he told her he saw father place Jasmine (who was then about 5) on the bed. Father was naked with an erection. David told mother that Jasmine began
screaming and that father left the room.
Mother also said father had admitted he had touched Jasmine in a sexual
manner and said he would never do it again.
Mother reported that although Jasmine filed a criminal complaint with
the North Carolina police, the case was dropped because Jasmine “told
investigators she was no longer interested in pursuing prosecution against
[father].”
The police also contacted Joseph, who reported that he
had traveled from North Carolina to California in March of 2010 and that Emily
arrived in California several months later.
Joseph said his mother only wanted him and Emily to return to North
Carolina so that father would be obligated to send her money. Joseph said his mother was an alcoholic and
that he preferred to live with father.
Joseph told officers he did not believe father had done anything to
Jasmine and that her brothers, David and Richard, “put her up to making the
allegations” because they did not like father.
Joseph did not believe his father was capable of molesting anyone and
had never seen his father act inappropriately with Emily.
Interview with mother
On October 20,
2010, the social worker contacted mother, who was residing in North
Carolina. Mother stated that she “ha[d]
no family court order with father but only a verbal agreement with him on
visits with kids.” Mother permitted
Joseph and Emily to visit their father in California if he agreed to pay for
the children’s flights. Mother stated
that Joseph had been under the care of father since February of 2010 and that
Emily had been under father’s care since July of 2010. Mother initially sent Joseph to California
because he was having behavior problems in North Carolina; Emily was sent for
summer vacation. Although both children
were supposed to return to North Carolina in August, father told mother he did
not have enough money to purchase a return ticket.
Mother stated that Jasmine disclosed father’s sexual
abuse in 2006 and mother immediately kicked father out of the home. When mother was asked whether she had ever
confronted father about Jasmine’s allegations, mother stated “‘yes I did but he
said nothing. All he told me was, I
won’t do it again.’” Mother also explained
that she was not aware of “‘what the
abuse consisted of’” because Jasmine “‘never wanted to tell her.’”
Mother told the social worker that, despite her
knowledge about father’s sexual abuse of Jasmine, she sent Joseph and Emily to
be under his care because she did not believe the children were at risk. Mother explained that the children had always
denied being abused by father and were primarily cared for by their paternal
grandmother, who lived with father.
Mother also stated that, in 2009, a social worker in North Carolina had
investigated Jasmine’s sexual abuse allegations “and told [mother] she could
continue to send the kids to visit there [sic] father.”
Interview with Jasmine
The social worker contacted Jasmine, then 21, who was
residing in California with her maternal aunt.
Jasmine stated that she was sexually abused by father between the ages
of 5 and 16 (approximately 1995-2006.)
Jasmine informed the social worker that father had touched her vagina,
performed oral copulation on her and tried to force her to perform oral sex on
him. Jasmine was not able to tell the
social worker how often the abuse occurred and did not recall if there was ever
any penetration.
Jasmine stated that she and her older brother informed
mother of the abuse when Jasmine was 10 years old (approximately 2000) and that
father immediately moved out of the home.
However, father continued to come by the house to visit his children
Joseph and Emily; father later reconciled with mother and returned to the
residence about 3 years later. Jasmine
stated that father continued the sexual abuse after moving back into the home
but she never told mother.
Jasmine said she filed a police report in North
Carolina when she was 18 years old and filed a second report in California when
she moved to the state in 2009. Jasmine
reported that she rarely saw Emily or Joseph and that neither had ever alleged
that they were sexually abused by father.
Interviews with Joseph and
Emily
On October 21, 2010, the social worker interviewed Joseph,
who stated that he was aware of Jasmine’s allegations because he had previously
been interviewed by a detective. Joseph
said he had been under the care of his father for approximately six months
“after his mother sent him from North Carolina . . . for education
purposes.” Emily came to live with
father and Joseph approximately four months later. Joseph stated that he preferred to stay “in
California under the care of his father due to mother’s alcohol problems.” Joseph reported that, when he left North
Carolina, mother was drinking about 5 beers a day. Joseph said his father had never sexually
abused him or Emily. He also said he did
not believe Jasmine’s allegations and questioned why she had waited so long to
report the abuse.
The social worker also spoke to Emily, who reported
that she was supposed to return to her mother before school started in North
Carolina but that she “wanted to stay with her father longer.” Emily reported that she “like[d] it here” and
that she “did not want to return to her mother right now.” Emily told the social worker mother drank on
a daily basis and that “‘she drinks one and then once she finishes it she gets
another one.’” Emily denied ever seeing her father touch Jasmine in an
inappropriate manner and stated that nobody had ever touched her
“inappropriately on her private areas.”
Emily said she was comfortable in father’s presence and was not afraid
of him.
Interview with other family
members
The social worker spoke to the children’s maternal
aunt, who resided with Jasmine. The aunt
reported that Joseph had been living with father and paternal grandmother since
March 2010 and that Emily had been living with them since July 2010. The maternal aunt reported that neither child
had ever disclosed being abused by their father. The aunt stated that she was aware of
Jasmine’s allegations but that “‘she just like makes to make a lot of things up
like her mother.’”
The social worker visited the father’s home and was
greeted by the children’s paternal grandmother, who indicated that father lived
in the home but was on a business trip.
Grandmother, who also lived in the home, said she cared for Joseph and
Emily when father was away. Grandmother
reported that Joseph had been living in the home since the beginning of 2010
because he was in “too much trouble at school” and mother “could not handle him
anymore.” Emily had arrived in
July. Grandmother stated that she
allowed mother to live in a motor home that grandmother owned in North
Carolina. However, when the children
came to California, grandmother asked mother to start paying rent. According to grandmother, mother was “having
Jasmine falsify sexual abuse allegations” so that she could get the children
back and live rent free in the mobile home.
The grandmother also alleged that mother had an alcohol problem and that
Joseph and Emily would be “better taken care of by herself and her son.”
Grandmother reported that the family’s home had three
bedrooms. Father and Joseph each had
their own room and Emily slept in a bedroom with grandmother. Grandmother had never seen father engage in
any improper conduct toward Joseph or Emily and the children had never
disclosed any sexual abuse.
Interview with father
On October 21, 2010, father contacted the social worker
and stated that he was out of town for work.
Father stated that Jasmine’s allegations were “unfounded” and said she
“‘like[d] to make things up.’” Father
believed mother was calling in the referrals because he told her she could no
longer stay in the mobile home in North Carolina.
Section 300 petition and
detention hearing
On October 26, 2010, DCFS filed a petition alleging
that Joseph and Emily fell within the jurisdiction of the juvenile court
pursuant to Welfare and Institutions Code section 300, subdivisions (b), (d)
and (j).
allegation, each subdivision stating, in relevant part: “On numerous prior
occasions, the children[’s] . . . father . . . sexually abused
the children’s then 4 year old sibling Jasmine . . . for 12 years since the
child was 4 years old. . . . The
children’s mother . . . failed to take action to protect the sibling when she
knew of said sexual abuse of the sibling by the father resulting in the ongoing
sexual abuse to the sibling. The mother
allowed the children . . . to reside in the fathers’ home and have unlimited
access to the father despite the mother’s knowledge of the father sexually
abusing the sibling [sic.]. Such sexual abuse of the sibling on the part
of the father and the failure to protect the children on the part of the mother
endangers the children’s physical and emotional health and safety and places
the children at risk of physical and emotional harm, damage, sexual abuse and
failure to protect.”
The petition included a second
allegation under subdivision (b) alleging that mother was a “current abuser of
alcohol which renders the mother incapable of providing regular care for the
children. . . . The mother’s abuse of alcohol endangers the children’s physical
and emotional health and safety and creates a detrimental home environment,
placing the children at risk of
damage.”
DCFS
filed a detention report in support of the petition, which contained a summary
of its initial investigation. The report
concluded that the children were “at high risk if they continue in the care of
father and mother. Mother is not able to
protect her children from any abuse as she allowed the children to reside with
there [sic] [father] after she was
aware of the sexual abuse to her adult daughter, Jasmine . . . by [father] when
she was a minor.”
At the detention
hearing, which was held on October 26, the mother and father each entered a
general denial and requested that the children be released to them. The children’s counsel argued that neither
child should be released to their mother because both had “verif[ied] the [alcohol-related]
allegation in (b)(2).” According to
counsel, both children wanted to “go back to the father. They both adamantly state that they have
never been touched inappropriately or that the father has abused them in any
way.” Counsel requested that if the
court was unwilling to release the children to the father, it should give DCFS
discretion to release them to the “the paternal grandmother with the father out
of the home.”
The juvenile court explained that although the
“allegations and the statements in the report [we]re serious,” it found “very
little risk to Joseph if [he] were . . . release[d] to father.” The court continued: “Joseph is 16. I think he’s in a very different position. And I think he’s able to protect himself in a
way that perhaps the other siblings were not.
[¶] . . . [G]iven
his age, I see very little risk to him.”
The court expressed concern, however, that the children would be
separated if Joseph was released to his father.
The court suggested that DCFS permit the children to remain in the house
“if father moves out.” After the parties
conferred on the matter, father’s counsel indicated that he wanted the children
to stay together and was “willing to move out.”
Thereafter, the court ruled that there was prima facie
evidence that “these children are persons described by Welfare and Institutions
Code section 300(b), (d), and (j).” The
court granted DCFS custody of the children and ordered family reunification
services. The father was permitted to
have unmonitored visits with Joseph and monitored visits with Emily; mother was
permitted monitored visits with both children.
Reports
The initial jurisdictional/disposition report
On November 29, 2010, DCFS filed a
“Jurisdiction/Disposition Report” indicating that, since filing its detention
report, the agency had conducted additional interviews of Jasmine, Joseph,
mother, father, the paternal grandmother and various other family members and
government agents.
Summary
of interviews
Jasmine
In an interview conducted November 20, Jasmine
provided information that was substantially consistent with statements that she
had previously provided to DCFS and the LASD.
Jasmine alleged that father began sexually abusing her when she was four
years old and that the abuse consisted primarily of oral copulation. Jasmine alleged that father began trying to
penetrate her vaginally with his penis when she was around 10, and finally
succeeded in doing so when she was about 11, which caused her to bleed. As she got older, father began leaving money
in her underwear. Jasmine could not
recall any abuse from the age of 12 to 15 and reported that the last incident
occurred in a hotel in Texas when she was 16.
At that time, father tried to touch her but she pushed him away.
Jasmine reported that, on one occasion, her older
brother walked in when father was on top of her. Jasmine said she told mother what was
occurring and mother made father leave temporarily. Jasmine stated that when she found out Emily
had been sent to stay with her father, she became upset and told mother “‘he
hurt me my entire life, he was a monster and you are going to send her (Emily)
to him[] . . . I just don’t understand
what my mother saw in him and always forgave him.’” Jasmine stated that she felt like she needed
counseling to deal with what had happened and “to try and understand why her
mother failed to protect.”
The social worker commented that Jasmine “appeared
honest and sincere and was emotional at times during the interview.” The social worker also believed Jasmine had been “consistent with her
recollection of the sexual abuse.”
Interviews of Joseph and
Emily
Joseph
informed the social worker that he was “passionate about skate boarding” and
was sponsored by a local skateboard shop.
Joseph was hopeful that he would receive a professional skateboard
contract and expressed concern that his career would be “over” if he was forced
to return to North Carolina, explaining: “‘I need to be [in Los Angeles for the
exposure], it’s my dream, please let me stay here.’” Joseph reported that his father was a “cool
dude” who traveled with him to skateboard parks and understood his desire to
become a professional skateboarder.
Joseph admitted he had used marijuana, but said that he had remained
drug free for the past month.
Joseph
reported that his mother wanted him out of her house because “she was tired
that all he wanted to do is skate.”
Although Joseph was unsure why his parents separated four years ago, he
“guessed” his father “does not like her drinking.” Joseph denied that the separation had
anything to do with sexual abuse and said that he had never been touched in an
inappropriate manner.
Joseph
alleged that mother would normally have “about two beer on her days off” and
would “yell when she gets upset” because she “hates her life.” Joseph also stated that mother and father
frequently argued because “mother always wants more money from father. . .
. ‘He sends her thousands of dollars in
checks and it’s never enough.’”
Joseph said
his mother had recently moved in with a new boyfriend, who Joseph described as
a “great person” with a “real nice big house.”
Joseph said that if Emily wanted to go back to North Carolina to live
with mother she would “be fine” and that mother would “take good care of
her.”
Emily, who the social worker described
as “very sweet,” said that she resided with her mother but came to spend the
summer with her father. Emily stated
that she had never been touched inappropriately in her “private parts” and that
she liked both of her parents. Emily
reported that her mother “treats her well” and that she missed her “school and
friends in North Carolina.” When asked
whether she wanted to return to North Carolina, Emily stated “‘that would be
fine,’” adding: “‘if my dad wants I can stay here to [sic] and visit my mom in the summer’ . . . . ‘I’m ok here or with my mom.’” Emily also said she knew her mother’s current
boyfriend, Deron, who Emily described as “very nice.”
Interviews of father and
mother
Father told the social worker that Jasmine had
fabricated the sexual abuse allegations.
Father said he had finally decided to leave mother and move to
California because he was tired of her yelling and alcohol abuse. According to father, mother would normally
have three beers after work to relax; sometimes she would have more, which
would cause her to yell and make comments like “‘I hate my life.’” Father said that although mother drank
alcohol and was emotionally abusive, she was not physically abusive towards her
children because she knew he had asked the neighbors to monitor her
behavior. Father did not believe the
children would be at risk of abuse if returned to mother.
Mother told the social worker that her relationship
with father had ended several times “over the sexual abuse allegations and
problems with him not being able to hold a job down.” Mother reported that, in 2001, Richard saw
father on top of Jasmine. Father later
admitted to mother that he touched Jasmine and promised he would never do it
again. When mother asked father why he
had done it, he said he was “reading a book and it talked about being able to
take control over someone and maybe that is why he did it.” Mother reported that in 2006, the family
stayed in a hotel together and Jasmine became upset. Jasmine later told mother that father had
tried to touch her while she was sleeping, which caused mother to permanently
separate from father.
Mother admitted that she drank one or two beers on her
days off, but denied that she ever got drunk or abused alcohol. Mother stated that she worked twelve-hour
nursing shifts and was regularly subjected to alcohol and drug testing as part
of her job. Mother provided
documentation to substantiate these claims, which included a worker handbook
describing the employee drug test policy and two negative drug and alcohol
tests that had been conducted that month.
She also provided three references from co-workers who attested to her
good character and strong work ethic.
Mother told the social worker that she allowed Joseph
and Emily to visit their father in California because she did not have any
knowledge that he was ever inappropriate with his own children. She also said North Carolina children’s
protection services “investigated the allegations and made an arrangement that
father would agree to have supervised contact with the children during
visits.” She further stated grandmother
had agreed to monitor the father’s contact.
Interviews with other
government agents
DCFS spoke
to North Carolina social worker Karla Joyner, who had investigated a referral
Jasmine made in that state. Joyner
stated that she had interviewed “all parties involved, including the victim
Jasmine,” who Joyner found to be “very credible.” Joyner reported that North Carolina child
protection services sustained an “allegation of neglect toward father because .
. . Joseph and Emily resided in the home when Jasmine indicated she was
sexually abuse [sic].” Joyner also reported that, after the
allegation was sustained, a “safety plan was established that it would be up to
mother if she was going to allow the children to visit father but that due to
the sexual abuse allegations paternal grandmother would have to monitor all
contact between the children and father.”
Joyner indicated that father and grandmother participated in the safety
plan meetings and that grandmother agreed to monitor all contact between father
and his children. Joyner also stated
that North Carolina had investigated alcohol abuse allegations against mother
but found “no risk o[f] alcohol abuse.”
Joyner
provided a copy of the safety plan, which stated that father could visit with
the children and that paternal grandmother agreed to supervise any contact and
“report any concerns to appropriate authorities.” The safety plan, which mother, father and
grandmother all signed, also stated that North Carolina authorities concluded
that these “safety interventions” would “adequately provide for the children’s
safety for the immediate future.”
DCFS
conducted a second interview with the LASD detective who was investigating
Jasmine’s criminal allegations against father.
The detective indicated that father had been advised by his lawyer not
to speak to anyone regarding the allegations.
The detective also stated that he had spoken with Jasmine and that she
was “consistent with her story.”
Although the detective presented the case to the district attorney, it
was “rejected because they did not think they had enough to win a trial.”
Interviews with other family
members
The social worker spoke to the children’s grandmother,
who denied having any knowledge regarding the sexual abuse allegations and
stated that mother and Jasmine were “making things up because they want her son
to continue and provide financially for the children.” Grandmother said that although she had seen
mother yell, she had never seen mother act aggressively or abusively toward the
children.
The social worker interviewed mother’s boyfriend
Deron, who is an electrician in the Marine Corps. Deron stated that he had been dating mother
for approximately two years and that she had moved in with him six months
earlier. Deron owned a four bedroom
house with a large converted garage; Emily had her own bedroom in the house and
Joseph was supposed to live in the garage.
Deron stated that mother was “an awesome mother” and that he had never
seen her under the influence of alcohol or drugs. He also said he had never seen her abuse any
of her children.
The children’s maternal aunt reported that Jasmine had
lived with her in California for two years and that she believed Jasmine’s
allegations because “‘she is not a liar.”’
The aunt felt that Jasmine could benefit from counseling. The aunt also reported that she had seen
mother drink “a beer or two” at social gatherings or after work, but had never
seen mother drunk.
Social worker’s assessment
and recommendations
The social worker concluded that there was “no doubt mother made a poor
decision by allowing the children to visit with father in California despite
her knowledge that [father] sexually abused
. . . Jasmine. Mother thought
that the children were protected since paternal grandmother . . . was
monitoring all contact.”
The social worker believed that it would be in the
best interests of Emily to “be release[d] to her mother.” DCFS was also “not opposed that [Joseph] be
released to mother,” but expressed concern that he had “pleaded” to stay in
California and might try to “run away” if he was forced to return to North
Carolina. As a result, DCFS recommended
that it was more suitable to leave Joseph in the custody of his
grandmother.
Addendums to the
Jurisdictional/Disposition Report
January
23, 2011 addendum
On January
23, 2011, DCFS filed an addendum to the jurisdictional report indicating that
it had received a psychological report and assessment from mother’s
therapist. The therapist concluded that
mother presented well and showed no signs of mood altering chemicals. The addendum also indicated that mother had
undergone additional drug and alcohol tests in December 2010 and January 2011,
which had been negative.
The
addendum concluded that, “[a]t this time DCFS believes it is in the children’s
best interest that Emily and Joseph be released to their mother and the matter
as to mother be dismissed.” The addendum
stated that Joseph had been performing poorly in school and admitted to smoking
marijuana. It also noted that father was
rarely available to assist grandmother in caring for Joseph due to his work
schedule. DCFS recommended that, if the
court was inclined to leave Joseph in grandmother’s care, it should order him
to participate in individual counseling and substance abuse counseling with
random drug testing.
February
9, 2010 addendum
On
February 9, 2011, DCFS provided a second addendum stating that it had conducted
a “multidisciplinary assessment team” (MAT) meeting to assess the children’s
situation. The MAT report indicated that
Emily said she loved her grandmother and wanted to remain in Los Angeles. Emily also said father was “really nice,
works hard, and has not hurt her in any way.”
Joseph told members of the MAT team he did not want to return to North
Carolina because his half brothers had had physically and emotionally abused
him in the past. Joseph stated that he
“loves L.A.” and wanted to remain with his paternal grandmother and father, who
Joseph described as a “good person” who had “always shown him respect.” He said that although his relationship with
mother was good, “‘things could be better.’”
The MAT
report stated that Joseph and Emily were “easily engaged and cooperating
through the assessment process.” It also
stated that the father had a “ good . . . quality” relationship with both of
his children, as evidenced by the fact that that they “shared laughs, discussed
family issues without argument, and [the children] followed father’s directives
without complaint.” Emily and Joseph
also appeared to have a “healthy connection.”
The report
indicated that Joseph tested in a normal range on a “Youth Outcome
Questionnaire” and that neither child had any complaints about anxiety,
depression, or social or thought problems.
Both children also reported sleeping well, appeared well groomed,
dressed appropriately and cared about their hygiene and appearance. Joseph was described as “relaxed, “composed,
coherent and logical,” although somewhat “impatient.” Emily was described as “relaxed,” “patient
and cheerful,” with “concise” speech and a “coherent and logical” “thought
form.”
Joseph said
he had become more responsible and focused since attending school in
California, and “enjoys spending time with skateboarding professionals as they
support him in his skateboarding hobby.”
He also spoke “highly of his love for drawing.” Mother reported that although Joseph was
diagnosed with ADHD in elementary school, father said he was beginning to
“‘mellow’” out and focus more, especially while skateboarding. Although Joseph denied having a history of
alcohol or drug use, father reported that his son had used marijuana and
grandmother reported he had received a ticket at school for smoking
marijuana.
DCFS’s
February addendum to the jurisdictional report concluded that “there are no
concerns regarding the children’s safety if they returned to the care of their
mother. . . . [D]CFS
believes it is in the best interest of the children that they be allowed to
return to their mother.” At a February
status hearing, DCFS reiterated these beliefs, stating that its investigation
demonstrated that “the counts against mother are not sustainable and that those
counts should be dismissed from the petition.”
In April of 2011, the juvenile court held a hearing on
the section 300 petition. DCFS announced
that it was “recommending striking the mother entirely from the petition. . .
. We’re proceeding solely on the
allegations of sexual abuse regarding the father.” It also filed a last minute information
recommending that the “petition filed 10-26-11, subdivision ‘d’ as to father be
sustained and that children be declared dependents of the court; that full
legal [and] physical custody be granted to mother with monitored only visits to
father; and that a family law order
be granted to the mother and jurisdiction be terminated.”
Opening
statements and witness testimony
In opening statements, counsel for DCFS argued that
the evidence would show that Jasmine was a credible witness who had made
consistent statements about the sexual abuse allegations. Father’s counsel, however, argued that the
evidence would show that Jasmine was not credible because she had made
inconsistent statements to several different investigators. Father’s counsel also argued that, even if
Jasmine’s allegations were found to be true, it was “abundantly clear that
nothing has ever happened to [Joseph or Emily].”
DCFS called Jasmine to testify as a witness. Jasmine stated that all of her prior
statements to law enforcement and DCFS had been true. She also provided detailed testimony describing
the nature of the abuse, where the abuse had occurred and when it had
occurred. In addition, Jasmine
identified individuals who had witnessed incidents of the abuse (Richard and
David) or been told about the abuse (mother).
At the conclusion of Jasmine’s testimony, mother’s
counsel called father to testify. Prior
to his testimony, father’s counsel informed the court that he would be taking
the “fifth” on “every single question.”
Mother’s counsel proceeded to ask father a series of questions; in
response to each question, father stated “under the advisement of counsel, I do
wish to plead the Fifth Amendment.”
Closing argument
At closing argument, DCFS’s counsel argued that “there
[wa]s not sufficient evidence to sustain count (b)(2) that is related to
alleging that mother has a history of alcohol abuse and currently uses alcohol
which renders her unable to care for the children.” Counsel clarified that although it had
initially included the allegation in the petition, its investigation demonstrated
that the allegation was “unsustainable.”
DCFS’s counsel also recommended that “the mother be stricken from the
petition regarding any language that would indicate that she has failed to
protect the children or knew or should have known.” Although counsel acknowledged that the
evidence showed mother failed to protect Jasmine when she was a child, she
argued that the agency had assessed the evidence as it “has transpired over the
last year, in that . . . mother did not fail to protect Joseph
and Emily because, when she made a plan to have these children not be with her
in her care for a period of time, whether it was intended vacation or more long
term stay, she sent the children to stay with their grandmother.”
With regard to father, DCFS’s counsel argued that
Jasmine’s testimony had been “credible” and “submit[ted] that [Joseph and
Emily] [we]re at risk of sexual based upon [father’s] abuse of their adult
sibling when she was a child.” In
support of its assertion that father’s sexual abuse of Jasmine was sufficient
to sustain a finding of substantial risk of sexual abuse to the children,
counsel cited three cases:
(Karen R.), In re P.A. (2006) 144 Cal.App.4th 1339 (P.A.) and In re Andy G.
(2010) 183 Cal.App.4th 1405 (Andy G.). Counsel asserted that although Joseph was 16
and a male child, Andy G. “la[id] out
how he [was] at risk,” explaining that “when a parent abuses his or her own
child or permits such abuse to occur in the household, the parent also abandons
and contravenes the parental role . . . which may justify state intervention
including an interruption of parental custody.”
Father’s counsel contended that Jasmine and mother’s
testimony were “simply not credible,” which was why the “the detective [didn’t]
file any charges.” Counsel noted that
there were numerous inconsistencies between the statements Jasmine made to DCFS
and her testimony at the adjudication hearing, including whether she was ever
abused between the ages of 12 and 15, whether and when she informed mother of
the abuse, where the last incident of abuse occurred and how many times her
brothers witnessed the sexual abuse.
Counsel also argued that it was “implausible” that the sexual abuse could
have gone on for years without anyone reporting it and without Joseph ever
witnessing a single incident. According
to counsel, “[t]he motive here . . . continues to be
financial.” Alternatively, fathers’
counsel argued that even if Jasmine was found to be credible, there was no
evidence that father “poses a substantial risk of harm or sexual abuse to his
16-year old son . . . and the same thing with Emily.”
Counsel for the children stated that she found Jasmine
to be credible, but expressed disbelief that the DCFS wanted to “have
. . . mother’s failure to protect taken out of the
petition.” The children’s counsel argued
that, based on Jasmine’s testimony and other evidence in the record, mother was
aware of the abuse from the very first incident but repeatedly allowed father
to return to the house. Counsel also
argued that while mother said she was sending the children to California to be
in the care of grandmother, the detention report indicated that she told DCFS
that the children were sent to their father.
The children’s counsel, however, argued that Joseph
was “differently situated” and requested that he be dismissed from the
petition. Counsel recommended that Emily
be placed with grandmother “at least until mother has taken some classes and learned
how she failed to protect her daughter.”
Juvenile court’s ruling
The juvenile court dismissed allegation (b)(2), which related to mother’s
alleged alcohol abuse. However, the
court sustained allegations (b) (1), (d) and (j) with amended language
regarding the allegations against mother:
“[C]ounts number (b)(1), (d)(1) and (j)(1) are sustained as amended in
this case, to include the added language after the sentence ‘the mother allowed
the children Joseph and Emily to reside in the father’s home and have unlimited
access to the father despite the mother’s knowledge of the father sexually
abused the sibling.[’] Mother also
allowed the children Joseph and Emily to reside with the paternal grandmother
in which she knew or reasonably should have known that father would have
unlimited access to the children despite mother’s knowledge of the father’s
sexual abuse of the sibling.”
The court stated that Jasmine’s testimony was “very
credible. . . . [S]he gave detailed
accounts of the abuse and how it gradually escalated over time.” The court also noted that, according to the
detective reports, Jasmine had “been consistent in her s[tory]” and was “able
to recount . . . how mother knew about the incident. Even though Jasmine’s mother had made the
father leave for a period, [she] eventually took the father back, putting the
father over the concerns of the child.
Mother herself admitted that she was told directly by [father] about the
abuse, why he did it. However, the
mother didn’t do anything to protect the child, nor did she report the incident
to enforcement. [¶] . . . There were several
references in the report with regards to the mother sending the children to the
father.” The court further noted that
mother allowed the paternal grandmother to monitor visits between father and
the children even though there was evidence grandmother did not believe the
sexual abuse allegations.
In regards to Joseph, the court found that the case
was controlled by the holdings in Karen
R., supra, 95 Cal.App.4th 84, P.A.,
supra, 144 Cal.App.4th 1339 and Andy
G., supra, 183 Cal.App.4th 1405. The
court explained that “[a]lthough [Joseph] is older than his sister . . . the
court would point out that sexual abuse can occur at any age and in different
forms.”
The court declared the children dependents under
section 300 and found by clear and convincing evidence that “there’s a
substantial danger if the children were returned to the home to the
. . . physical and emotional well-being of the children. There are no reasonable means by which the
children’s physical health can be protected without removing them from the
parents’ custody.”
The court ordered mother to attend a DCFS-approved
program of individual counseling to address case issues including sexual abuse
awareness and child protection. The
father was ordered to attend a DCFS-approved program of individual counseling
to “address case issues including sexual abuse perpetration . . . .” The court also ordered the children to attend
“individual counseling” as needed. Both
parents were permitted monitored visitation rights; mother was also permitted
to have unmonitored telephonic contact with her children.
Mother, father and Joseph each filed a timely appeal.
DISCUSSION
Review
Father
argues that there is insufficient evidence to support the juvenile court’s
finding that he sexually abused Jasmine.
Alternatively, father argues that the juvenile court erred in finding
that his sexual abuse of Jasmine was sufficient to establish a substantial risk
of sexual abuse to Joseph or Emily.
Joseph agrees with father, arguing that DCFS provided no evidence
indicating that he was at substantial risk of sexual abuse. Mother argues that there is insufficient
evidence to support the juvenile court’s findings that she failed to protect
Joseph and Emily from a substantial risk of sexual abuse.
We review
the juvenile court’s jurisdictional findings for substantial evidence. (In re
J.K. (2009) 174 Cal.App.4th 1426, 1433; In
re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.) Substantial evidence is “evidence that is
reasonable, credible, and of solid value.”
(In re Yvonne W. (2008) 165
Cal.App.4th 1394, 1401.) Under this
standard of review, we examine the whole record in a light most favorable to
the findings and conclusions of the juvenile court and defer to the lower court
on issues of credibility of the evidence and witnesses. (In re
Savannah M. (2005) 131 Cal.App.4th 1387, 1393; In re Tania S. (1992) 5 Cal.App.4th 728, 733.)
that Father Sexually Abused Jasmine
Father
argues that there was insufficient evidence to support the juvenile court’s
finding that he sexually abused Jasmine.
This argument is without merit.
As summarized above, Jasmine informed numerous different government
agencies that father committed repeated acts of sexual abuse against her over
an extended period of time. Jasmine also
testified at length about these occurrences during the adjudication hearing.
The juvenile court concluded that Jasmine
was “very
credible.” Numerous other individuals
who interviewed Jasmine reached a similar conclusion: a North Carolina social worker found Jasmine
to be “very credible”; a DCFS social worker found that Jasmine appeared
“honest” and had been “consistent with her recollection of the sexual abuse”;
an LAUSD detective concluded Jasmine was
“consistent with her story.” Jasmine’s
allegations were also corroborated by other witnesses. Mother told the LASD and DCFS that she was
aware of the sexual abuse and that father had admitted to committing
abuse. Jasmine’s brother, Richard L.,
told Los Angeles police that on one occasion, he woke up and saw father in bed
with Jasmine, “getting up from between Jasmine’s legs.”
Father,
however, maintains that we must reject the juvenile court’s finding because of
various “inconsistencies” in Jasmine’s statement. Father further asserts that “it just was not
believable that . . . from age 12 until 18 [Jasmine] never said anything about
being abused to a teacher, a nurse, or a friend.” Father characterizes mother’s statements
about father’s admissions as “just plain bizarre” and asserts that there was
evidence indicating that mother was acting for a financial motive.
Father’s
arguments overlook the limited nature of our review. We determine only whether there is any
substantial evidence, contradicted or uncontradicted, that supports the
juvenile court’s order, resolving all conflicts in support of the determination
and indulging all legitimate inferences to uphold the lower court’s
ruling. (In re John V. (1992) 5 Cal.App.4th 1201, 1212; In re Katrina C. (1988) 201 Cal.App.3d 540, 547.) We must defer to the lower court on issues of
credibility. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393.) If there is substantial evidence to support
the juvenile court’s order, we must uphold the order even if other evidence
supports a contrary conclusion. (
247, 251.) The testimony of even “a
single witness can be sufficient to uphold a judgment.” (In re
Rubisela E. (2000) 85 Cal.App.4th 177, 195 (Rubisela E.).)
Because the
record contains substantial evidence that father sexually abused Jasmine, we
are required to uphold the juvenile court’s finding on this point. (See Rubisela
E., supra, 85 Cal.App.4th at p. 195 [rejecting father’s argument that
“inconsistencies in [child’s] retelling of the incident to various
investigators . . . compel a conclusion that her testimony and the evidence as
a whole does not support a finding that Father ever touched [child] in a sexual way”]; P.A., supra, 144 Cal.App.4th at pp.
1343-1344 [rejecting father’s arguments that “inconsistencies in
[child’s] various statements and the absence of any corroborating evidence
precluded a finding that father sexually abused the child”].)
that Emily Was at Substantial Risk of Sexual Abuse
Father
argues that, even if we accept the juvenile court’s findings that he sexually
abused Jasmine, such evidence was insufficient evidence to support a finding
that Emily was “at a substantial risk of suffering sexual abuse” within the
meaning of section 300, subdivisions (d) or (j).
In
Division Two of this court held that a father who engaged in “sexual abuse on
multiple occasions” with his 13-year-old daughter inferentially supported a
finding that the father posed a substantial risk of sexual abuse to his
9-year-old daughter. The court explained
that it was “reasonable for the juvenile court to determine that in [the
13-year-old’s] absence, [the father was] likely to focus on his only other
daughter.” (Id. at p. 193.) Similarly,
in In re Maria R. (2010) 185
Cal.App.4th 48, 60-61 (Maria R.), the
court concluded that evidence establishing that father had sexually abused his
12- and 14-year-old daughters, as well as two adult daughters from a previous
marriage, was sufficient to support the juvenile court’s finding that father
posed a risk of sexual abuse to his 10-year-old daughter. We are not aware of any case that has
disagreed with Rubisela E.’s
conclusion that a juvenile court may infer a substantial risk of sexual abuse
to a child who is the same age and gender as another sibling who was sexually
abused by a parent in the household.
We agree
with Rubisela E.’s reasoning, which
applies here. As discussed above, there
is substantial evidence that father sexually abused Jasmine on numerous
different occasions. The abuse began
when Jasmine was four or five years old and continued until she was age
16. Emily is the same gender as Jasmine
and is currently the age at which father abused Jasmine. Moreover, Jasmine has consistently expressed
concerns that father is likely to engage in similar conduct toward Emily. In light of this evidence, it was reasonable
for the juvenile court to conclude that father’s sexual abuse of Jasmine
demonstrated that there was a substantial risk he would engage in similar
conduct toward Emily, thereby providing jurisdiction under section 300,
subdivisions (d) and (j).
Court’s Finding that Joseph Was at Substantial Risk of Sexual Abuse
Father next
contends that there was insufficient evidence to conclude that Joseph faced a
substantial risk of sexual abuse. Father
asserts that his sexual abuse of Joseph’s female half-sister is, standing
alone, insufficient to establish substantial risk of sexual abuse to Joseph,
who is a 16-year-old male and father’s biological son. Joseph has appealed the portion of the
jurisdictional order pertaining to him on the same ground.
Courts
are divided as to whether sexual abuse of a female child is sufficient to
establish substantial risk of sexual abuse to a male sibling
There
is currently a split among the courts as to whether a parent’s sexual abuse of
a female minor is sufficient to support a finding that a male sibling is at
substantial risk of sexual abuse.
name="_ftnref3" title="">[3]
1.
P.A. and In re Andy G.
In
Division Two of this court found that a father’s repeated sexual abuse of his
13-year-old daughter was, by itself, insufficient to support a finding that the
victim’s four brothers were at similar risk of sexual abuse. (Id.
at p. 199.) In reaching its ruling,
however, the court also stated “[w]e do not discount the real possibility that
brothers of molested sisters can be molested [citation] or in other ways harmed
by the fact of the molestation within the family. Brothers can be harmed by the knowledge that
a parent has so abused the trust of their sister. They can even be harmed by the denial of the
perpetrator, the spouse’s acquiescence in the denial, or their parents’ efforts
to embrace them in a web of denial.” (
concluded that, in the case before it, the record contained no evidence of any
such harm, thereby requiring reversal of the jurisdictional order as to the
four brothers.
In
Division Three of this court disagreed with Rubisela
E. The evidence showed that father
had “committed two incidents of forcible incestuous rape” against his
13-year-old daughter. (
forms of physical abuse by the father and heard his sister report the rape to
his mother, who refused to help. Father
and mother then continued to physically abuse the daughter in the presence of
the son. (Id. at p. 90.) The court
concluded that there were two independent bases for asserting jurisdiction over
the male sibling pursuant to section 300, subdivision (d).
First, the court found that, by
witnessing the sexual abuse of his sister, the male sibling had been a direct
victim of “sexual abuse” within the meaning of subdivision (d). The court explained that subdivision (d)
applied where “‘[t]he child has been sexually abused . . . as defined in
Section 11165.1 of the Penal Code. . . .’
[¶] Penal Code section 11165.1
defines sexual abuse to include . . . violations of Penal Code section 647.6
(child molestation)[,] ‘. . . [which] states a misdemeanor offense for every
person who “annoys or molests any child under the age of 18.”’ [Citations.]”
(Karen R., supra, 95
Cal.App.4th at p. 90.) The court further
explained that cases interpreting section 647.6 had concluded that the statute
“‘does not require a touching [citation] but does require (1) conduct a
“‘normal person would unhesitatingly be irritated by’” [citations], and
(2) conduct “‘motivated by an unnatural or abnormal sexual interest’” in
the victim [citations].’
[Citations.]” (
section 647.6 had been satisfied because, although no sexual act had been
directly perpetrated against the male sibling, the evidence nonetheless
demonstrated that he had witnessed the sexual abuse of his sister and was
irritated or disturbed by such conduct.
Alternatively, the court ruled that
the father’s sexual abuse of his daughter demonstrated that the male sibling
“was at substantial risk of sexual abuse” within the meaning of subdivision
(d). (Karen R., supra, 95 Cal.App.4th at p. 85.) Contrary to the holding in
“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
within the meaning of section 300, subdivision (d), if left in the home. To the extent other cases suggest only female
siblings are in substantial danger of sexual abuse after a sexually abused
female sibling has been removed from the home due to sexual abuse by a father,
we respectfully disagree.” (
In
same division elected to follow Karen R.’s
holding that a father’s sexual abuse of a female child is sufficient to
establish a substantial risk of sexual abuse to a male sibling. The evidence showed that the father sexually
abused his nine-year old daughter by touching her vagina under her clothes, but
over her underwear, on two occasions.
The court concluded that such evidence was sufficient to support
jurisdiction over the victim’s two brothers, ages five and eight. The court explained that although the abuse
at issue was “less shocking than the abuse in Karen R.[,] . . . we are convinced that where, as here, a child has
been sexually abused, any younger sibling who is approaching the age at which
the child was abused, may be found to be at risk of sexual abuse. As we intimated in Karen R., aberrant sexual behavior by a parent places the victim’s
s
| Description | Los Angeles County Department of Children and Family Services (DCFS) filed a petition alleging that siblings Joseph V., age 16, and Emily G., age 10, fell within the jurisdiction of the juvenile court pursuant to Welfare and Institutions Code section 300, subdivisions (b), (d) and (j). The petition alleged that the children’s father had sexually abused their half-sister and that such conduct placed the children at substantial risk of sexual abuse. The petition also alleged that the children’s mother, who lived in North Carolina, had failed to protect the children because she permitted them to reside with their father in California. At the jurisdictional hearing, DCFS recommended that the juvenile court sustain the allegations pertaining to father and dismiss the allegations pertaining to mother. The court, however, sustained the allegations against both parents, declared the children to be dependents of the court and ordered them removed from the parents’ residences. Father, mother and Joseph each appeal the juvenile court’s jurisdictional and dispositional orders. We reverse the portion of the court’s orders pertaining to Joseph and affirm the portion of the orders pertaining to Emily. |
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