In re Andrea P.
Filed 5/17/13
In re Andrea P. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL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opinion has not been certified for publication or ordered published for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 THREE
In
re Andrea P., et al., Persons
Coming Under the Juvenile Court Law.
B243446
(Los Angeles County
Super. Ct. No. CK92945)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
ALFONSO P.,
Defendant and Appellant.
APPEAL
from orders of the Superior Court of
County,
D. Zeke Zeidler, Judge. Affirmed.
Marissa
Coffey, under appointment by the Court of Appeal, for Defendant and Appellant.
John
F. Krattli, County Counsel, James M.
Owens, Assistant County Counsel and Denise
M. Hippach, Deputy County Counsel, for Plaintiff and Respondent.
_______________________________________
Appellant
Alfonso P. (father) appeals a juvenile court order asserting jurisdiction over
his step-daughter Andrea P. pursuant to Welfare and Institutions Code
section 300, subdivisions (b)
and (d), and over his son Luis P. and daughter G.P. pursuant to
subdivisions (b), (d) and (j).
Alfonso P. also appeals the dispositional order removing Luis and G.
from his physical custody. Father contends there was no substantial
evidence supporting these orders. We
affirm.
FACTUAL AND
PROCEDURAL BACKGROUND
Andrea was born in Guatemala in 1994 and initially lived with her mother. In 2003, mother moved to the U.S. and left Andrea in the care of maternal
grandmother. Mother met father in the U.S. and they had two children together, Luis in 2007 and
G. in 2009. While Andrea was still in Guatemala, Father sent her money and she called him
“papi.†In 2010, when Andrea was 15
years old
she came to live with mother, father, Luis and G. in the U.S. Father said he
viewed Andrea as his step‑daughter.
On February 10, 2012, the Department received a referral alleging that
father had been writing love notes to Andrea.
Department social workers thus began an investigation. Andrea reported that approximately six months
after she moved in with mother and father she started finding letters from
father left around the house or in her backpack. The letters stated that father had fallen in
love with her and asked her to give him “an opportunity to demonstrate [his]
love.†Father left Andrea money with the
letters and once left her flowers.
Father continued to leave notes for Andrea until mother confronted
father about his actions. He then left
one more letter for Andrea in approximately December 2011.
In her interview with the police,
Andrea said that she was afraid father would try to rape her. She would lock the bedroom door when they
were home alone and blocked the bathroom door with a broom when she was taking
a shower.
She
said that, in addition to writing letters to Andrea, Father promised to buy her
a cell phone or give her money if she had sex with him. Mother told her that father refused to give
mother money in hopes that Andrea would have sex with him, that father had made
comments about Andrea’s beauty and buttocks, and that father had said he was in
love with Andrea. Andrea reported that
mother stayed with father because he threatened to call immigration authorities
and take their younger children away.
During mother’s and father’s initial
interviews with the Department, they both denied allegations of sexual
abuse. Mother and father subsequently
acknowledged having lied about not being aware of the letters. Father said he was “in love†with Andrea and
that he wrote the letters “with the hope that she would agree to date
him.†Father stated that he had an
“obsession†with Andrea and admitted that his conduct was “harassment.†Father also admitted that he took a
photograph of Andrea’s underwear but claimed his intent was to show mother that
Andrea was purposefully leaving her underwear for father to find it. Father believed that Andrea had incited his
behavior by “flirt[ing]†with him, and did not think he needed sexual abuse
counseling. Father denied making comments
about Andrea’s beauty and body, or that he promised to buy Andrea a cell
phone in exchange for sex. At the time
the petition was filed, father had moved out of the family home.
Mother also believed Andrea had
flirted with father, and said she did not report the sexual abuse because of
Andrea’s “behavior.†However, mother
also stated she was afraid that if she reported father to law enforcement,
father would retaliate against her by calling immigration authorities or
hurting her older son, Nelson P.
Mother had previously reported father to the police for domestic
violence. Father had lately been
refusing to provide mother with money for groceries and had indicated to mother
in approximately February 2012 that he would give her money if Andrea had sex
with him.
The Department and the police also
interviewed Andrea’s older brother Nelson P. who was 21 years old. Nelson stated that he saw one of the notes
father sent to Andrea in which father expressed his “undying love and desire to
be a couple.†He believed father would
try to rape Andrea. He also said that
father had threatened mother with calling immigration authorities if she
reported him to law enforcement. Nelson
said that mother and father argue a lot and that, in February 2012, law
enforcement had come to the home due to domestic violence.
On April 9, 2012, the Department of
Children and Family Services (the Department) filed a dependency petition
alleging Andrea came within the jurisdiction of the juvenile court within the
meaning of section 300, subdivisions (b)
and (d)
based on father’s letters to Andrea telling her he was in love with her and
wanted to marry her, and mother’s failure to take action to protect her. The petition also alleged that Father’s
sexual abuse of Andrea and mother’s failure to protect her placed Luis and G.
at risk of physical harm under section 300, subdivisions (b) and (j)
and at risk of sexual abuse under section 300, subdivision (d). Father’s abuse of marijuana and mother’s
failure to protect the children were also alleged to have endangered them.
On June 13, 2012, the Department
filed a jurisdiction/disposition report.
The report stated that “[i]t is clear that [father] sexually abused the
child Andrea []. The father minimizes
his actions and does not consider his actions to be sexual abuse however, it is
clear that the father had romantic and sexual intentions with the child Andrea
that consequently placed the child at risk of harm and danger. The child clearly felt threatened by the
father’s behavior. The mother knew of
father’s behavior, failed to protect the children, and also partakes in
minimizing the father’s actions.â€
The report also stated that “[i]t is
possible that the father’s substance abuse may have had some influence on his
behavior with the child Andrea.†Father
“admit[ted] to a history of substance abuse including crack cocaine and a
current abuse of marijuana.†The report
concluded that “the father’s behavior was abusive and threatened the child
Andrea’s safety and [] this behavior also placed the children Luis and G. at risk
of harm and danger.â€
On August 16, 2012, the juvenile
court held a jurisdictional and dispositional hearing. Andrea testified that father had written her
between 5 and 10 letters but that she felt safe in her house. Andrea’s counsel argued that Andrea felt
nervous on the stand and actually did feel sexually threatened by the
letters. Father testified that he had
written the six letters submitted into evidence. The court issued an order sustaining
counts b-1, d-1 and j-1 in the petition.
The court dismissed count b-2 which alleged that father’s abuse of
marijuana rendered him incapable of caring for the children. The court declared Andrea, Luis and G.
dependents of the court, removed them from father’s custody, and issued an
order placing them with mother under the Department’s supervision. Father was ordered not to have any contact
with Andrea, but was granted monitored visits with Luis and G. The order also required father to attend
counseling for parenting and sexual abuse.
Father filed a timely appeal of the August 16 order.
Father argues there was no
substantial evidence to support the juvenile court’s jurisdictional order
sustaining counts b-1, d-1 and j-1 in the petition. He also argues that there was insufficient
evidence to support the juvenile court’s dispositional order removing Luis and
G. from his physical custody.
1. The
Jurisdictional Order
We
review the juvenile court’s jurisdictional findings under the substantial
evidence test. (In re Maria R. (2010) 185 Cal.App.4th 48, 57.) “The term ‘substantial evidence’ means such
relevant evidence as a reasonable mind would accept as adequate to support a
conclusion; it is evidence which is reasonable in nature, credible, and of
solid value.†(In re J.K. (2009) 174 Cal.App.4th 1426, 1433.) In determining whether there is substantial
evidence, “we draw all reasonable inferences from the evidence to support the
findings and orders of the dependency court; we review the record in the light
most favorable to the court’s determinations; and we note that issues of fact
and credibility are the province of the trial court.†(In re
Heather A. (1996) 52 Cal.App.4th 183, 193.)
a. Section
300, Subdivision (d)
Section 300, subdivision (d)
provides that a child comes within the jurisdiction of the juvenile court when
“[t]he child has been sexually abused, or there is a substantial risk that the
child will be sexually abused, as defined in Section 11165.1 of the Penal Code,
by his or her parent or guardian or a member of his or her household, or the
parent or guardian has failed to adequately protect the child from sexual abuse
when the parent or guardian knew or reasonably should have known that the child
was in danger of sexual abuse.â€
“Sexual
abuse†as defined in Penal Code section 11165.1 includes conduct whereby a
person “annoys or molests any child under 18 years of age†as described in
Penal Code § 647.6. (Penal Code §
11165.1(a) & 647.6(a)(1).) “[T]he
words ‘annoy’ and ‘molest’ . . . are synonymous and
generally refer to conduct designed to disturb, irritate, offend, injure, or at
least tend to injure, another person.†(
289.) “[S]ection 647.6, subdivision (a),
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].â€
(People v. Lopez, supra, 19 Cal.4th
at p. 289.) “[T]here can be no
it is the sexual interest in the child that is the focus of the statute’s
intent.†(People v. Shaw (2009) 177 Cal.App.4th 92, 103.)
In
the present case, the evidence consisted of the Department’s reports and
attached documents, as well as testimony by father and Andrea at the
August 16, 2012 hearing. Viewing
this evidence in a light most favorable to the juvenile court’s order,
a reasonable fact finder could have concluded that father had sexually
abused Andrea. Father acknowledged that
he had a father-daughter relationship with Andrea. Father wrote letters to Andrea in which he
said he had fallen in love with her and wanted “an opportunity to demonstrate
[his] love.†Father also admitted that
he had an “obsession†with Andrea and that his conduct was “harassment.†Both mother and Andrea reported that father
offered to give them money if Andrea had sex with him.
Andrea
reported living in fear of father. She
was afraid father would try to rape her, and secured the bedroom and bathroom
doors to keep him out. Andrea’s older
brother saw one of father’s letters and also feared that father would try to
rape Andrea. Under the totality of the
circumstances, there was substantial evidence that father’s conduct was
motivated by an unnatural or abnormal sexual interest in Andrea and that it
would have irritated a normal person.
Thus, there was substantial evidence that father sexually abused Andrea.
b. Section
300, Subdivisions (b)& (j)
“When a dependency petition alleges multiple grounds
for its assertion that a minor comes within the dependency court’s
jurisdiction, a reviewing court can affirm the juvenile court’s finding of
jurisdiction over the minor if any one of the statutory bases for jurisdiction
that are enumerated in the petition is supported by substantial evidence. In such a case, the reviewing court need not
consider whether any or all of the other alleged statutory grounds for
jurisdiction are supported by the evidence.
[Citations.]†(
438, 451.) The court need not consider
the arguments made by father about the assertion of jurisdiction over Luis and
G. under section 300, subdivision (d) because, as explained below, the juvenile
court’s findings under subdivisions (b) and (j) were supported by substantial
evidence.
Section 300, subdivision (b)
provides a basis for juvenile court jurisdiction if the child has suffered, or
there is a substantial risk the child will suffer, serious physical harm or
illness as a result of the parent's failure to adequately supervise or protect
the child. There are
three elements to section 300, subdivision (b) jurisdiction: “(1) neglectful conduct by the parent of
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.†(In re Ricardo L. (2003) 109 Cal.App.4th 552, 567.) In reaching its decision, the court looks at
the totality of the circumstances, including the severity of the incidents of
abuse, whether there was a substantial lapse of time between the abuse and
filing of the section 300 petition, and whether the parent has adequately
addressed the issues that led to the neglectful conduct. (In re
J.K., supra, 174 Cal.App.4th at p. 1440.) Section 300,
subdivision (j) provides that the juvenile court may assert jurisdiction over
a child when “[t]he child’s sibling has been abused or neglected, as
defined in subdivision (a), (b), (d), (e), or (i), and there is a
substantial risk that the child will be abused or neglected, as defined in
those subdivisions.â€
Under
the totality of the circumstances, there was
abuse of Andrea and mother’s failure to protect her from the abuse, placed
Andrea, Luis and G. at a substantial risk of physical harm. Father argues that Luis and G. were not
physically harmed by father’s letters or infatuation with Andrea. However, the court found that Luis and G.
were “at risk of†physical harm, not that they had been physically harmed. Father also argues that his last letter to
Andrea was given to her over eight months prior to the jurisdictional
hearing. However, eight months does not
constitute a substantial lapse of time under these circumstances. Moreover, father’s sexual abuse was not
confined to letter-writing. Both mother
and Andrea stated that father offered them money in exchange for sex with
Andrea. Mother claimed that father made
this offer only a few weeks before she was interviewed by the Department. Lastly, father argues that Andrea was about
to turn 18 years old at the time of the jurisdiction hearing and that any
ensuing affair between father and Andrea would not be illegal and would not
endanger Luis and G. Father admitted that
he viewed Andrea as his stepdaughter and that he “harass[ed]†Andrea with
expressions of his desire to be in a sexual relationship. Father’s sexual abuse of Andrea reflected an
abandonment of his parental role that also affects Luis and G.
In
addition, both mother and father acknowledged
having lied about not being aware of the letters.
Mother and father also indicated that they thought father’s behavior was
justified because Andrea flirted with him.
Father did not believe his conduct amounted to “sexual abuse.†The Department found that both mother and
father minimized father’s behavior.
Furthermore, mother, Andrea and Nelson all stated that father threatened
to harm mother if she reported father to law enforcement.
Although
there had been no prior physical harm to Andrea, Luis or G., father’s sexual
abuse of Andrea, father’s threat to harm mother if she contacted law
enforcement, mother’s failure to protect Andrea, and both parents’ denial and
minimization of the abuse, placed all three children at substantial risk of
physical harm. The juvenile court
therefore did not err in sustaining counts b-1 and j-1 of the dependency
petition.
2.
Father argues that there was no
substantial evidence supporting the juvenile court’s dispositional order
denying him physical custody over Luis and G.
hearing, the juvenile court placed Andrea, Luis and G. in their mother's
custody and removed the children from father’s custody.
Section
361, subdivision (c)(1) provides:
“A dependent child may not be taken from the physical custody of
his or her parents or guardian or guardians with
whom the child resides at the time the petition was initiated, unless the
juvenile court finds clear and convincing evidence of any of the following
circumstances . . . (1) 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 minor’s physical health can be protected
without removing the minor from the minor’s parent’s or guardian’s physical
custody.†(§ 361, subd. (c),
italics added.)
Father
contends that there was no substantial evidence that the circumstances
described in section 361, subdivision (c)(1) existed. The Department, however, was not required to
establish such circumstances because Luis and G. did not “reside†with father
when the petition was filed. At that
time, the children were only residing with mother because father had moved out
of the family home.
Even
assuming Luis and G. had been residing with father when the petition was filed,
we would affirm the dispositional order because there was substantial evidence
showing the requirements of section 361, subdivision (c)(1) were satisfied. For the reasons discussed ante, there was substantial evidence of a substantial danger to
Luis’s and G.’s physical well-being at the time of the dispositional
hearing. Based on this evidence, the
juvenile court could have reasonably concluded that there was no reasonable
means by which Luis’s and G.’s physical health could be protected without
removing them from father’s physical custody.
The
order is affirmed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
CROSKEY,
J.
We Concur:
KLEIN,
P. J.
ALDRICH,
J.
All future statutory references
are to the Welfare and Institutions Code.
name="_ftn2" title="">[2]
Although Andrea states that she
moved into her mother’s home one week before her 15th birthday in August 2010,
her birth date in August 1994 would make her 15 years old at the time.
