In re Megan G.
Filed 6/10/13 In re Megan G. CA1/2
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
TWO
In re MEGAN
G., et al., Persons Coming Under the Juvenile Court Law.
CONTRA
COSTA CHILDREN & FAMILY SERVICES BUREAU,
Plaintiff and Respondent,
v.
HEATHER G.,
Defendant and Appellant.
A134922
(Contra Costa County
Super. Ct. Nos. J1100593
& J1100594)
Heather G.
appeals from juvenile court orders taking jurisdiction over her two children
under Welfare and Institutions Code section 300. She contends the court erred in overruling
her demurrer to the petitions, and abused its discretion and violated her
cross-examination of her daughter. She
further contends there was insufficient evidence to support the petitions.
STATEMENT OF THE
CASE AND FACTS
On
April 6, 2011, the
County Bureau of Children and Family Services (“Bureauâ€) filed petitions
alleging that Megan G. and Matthew G., then 11 and 15 years old,
respectively, came within the provisions of Welfare and Institutions Code
section 300.
title="">[2] As subsequently amended,
both petitions alleged failure to protect under section 300,
subdivision (b), in that appellant had failed to protect the child from
appellant’s live-in boyfriend Glenn E., “who has physically and
emotionally abused the child on an ongoing basis for at least three
years.†Megan’s petition alleged under
section 300, subdivision (d), that Megan had been sexually molested
in appellant’s home by Glenn “on at least three occasions over a two year
period including touching her vagina with his hand and penis, touching her
breasts and trying to get the child to touch his penis†(allegation d-1) and
that appellant had failed to protect Megan from ongoing sexual abuse by Glenn
in that despite being told by Megan that Glenn had touched her inappropriately,
appellant did not believe Megan and failed to take any action to prevent
further abuse (allegation d-2). Megan’s
petition additionally alleged under section 300, subdivision (d),
that Megan was at risk of sexual abuse in appellant’s home in that Matthew
“touched the child on her vagina on at least one occasion in December 2010
while at her father’s home and the child’s mother refuses to believe the child’s
disclosure.†Matthew’s petition repeated
the allegations concerning Megan’s sexual abuse by Glenn to establish
jurisdiction under section 300, subdivision (j), based on sibling
abuse.
The
case came to the Bureau’s attention on April 1, 2011, when Megan’s school
principal contacted the police after Megan’s school bus driver (who was also
her neighbor) reported Megan having told her that appellant’s boyfriend had
touched Megan’s breasts and genital area and that Matthew had also touched her
sexually. In an interview that day,
Megan told Detective Hart that in December 2008, while she was showering
in Glenn’s bathroom, Glenn came in wearing pajama bottoms but was naked when
she got out of the shower. She had her
arms clenched over her chest and he “tried to pry her arms to make her touch
his penis,†as well as touching her vagina with his hands and penis. In two other “ ‘less severe’ â€
incidents, Glenn touched her chest and vaginal area over her clothes while she
was doing homework at the computer and told her not to tell her mother. Megan said that she had told appellant about
the shower incident about a year before, while they were watching a
Dr. Phil show on the topic of telling someone if something inappropriate
happened, and appellant believed her.
Megan asked appellant not to discuss what she said with Glenn because
“they had nowhere else to go.†Megan
also told the police that Matthew touched her on three occasions when they were
visiting their father. Most recently, in
December 2010, when Megan was sleeping on the living room couch and Matthew on
the floor, he called her to the floor, put his hands down her pajama bottoms
and touched her vagina.
Officer Gillespie,
who was present during this interview, noted that Megan was tearful and had
difficulty speaking about what had happened to her, and that her statement was
very detailed and stayed consistent when she was questioned. After the interview, Megan asked to talk
appellant, who came into the office, sat across from Megan, crossed her arms
and legs and said, “ ‘What’s going on.’ †Megan told her what she had told the police
about Glenn and when appellant did not respond, Megan said, “ ‘Remember
mom when I told you about when [Glenn] had touched me after I got out of the
shower.’ Mother said, ‘You didn’t tell
me THAT.’ Megan said ‘Yes, I did. Remember, when we were watching Dr. Phil
and he said that we should not be afraid to tell our parents if something bad
was happening. I told you, you sent Matt
out of the room and talked with me about it.
But then you didn’t do anything about it. Why didn’t you do anything about
it?’ †Megan began to cry;
appellant kept her arms crossed and made an exhaling noise that made it clear
she did not believe Megan. Appellant
asked Gillespie what would happen now, hugged Megan once and left the
room. Officer Gillespie found
appellant’s interaction with Megan “uncharacteristically cold and harsh,†as
she did not attempt to comfort the “visibly sobbing†child.
Officer
Gillespie reported that appellant told him she had been with Glenn for
10 years and lived with him since 2004; tensions were high because Glenn
was difficult to live with and the children did not like him because he made
them do chores and took away privileges.
Appellant had recently returned to school in order to get a job and be
able to move out of Glenn’s house. She
left the children with Glenn when she was at school, and on Tuesday evenings
Megan stayed home with Glenn while appellant took Matthew to Boy Scouts. Megan never voiced concern about staying home
alone with Glenn. Megan did not usually
spend much time with Glenn and was not usually nice to him, but would say good
morning or good night and sometimes hugged him.
Appellant
recalled that about a year before, while she was in the living room with Megan
and Matthew, Megan complained about being touched by Glenn. Appellant asked her to describe what she was
talking about but Megan had no description.
Appellant looked at Matthew and “they both shook their heads and said,
‘No, he would never do that,’ †and Megan did not bring it up again. When the officer pressed for details,
appellant became defensive and insisted Glenn had never molested Megan. Appellant said that she had been a victim of
molest as a child and would “ ‘[n]ever let her children stay in a house
where they were in danger.’ †She
said that she and Glenn allow the children privacy to shower and that Glenn
helped her discipline the children but did not spank or physically discipline
them. Appellant thought Megan might have
made the accusations because she was angry with Glenn for grounding her. Officer Gillespie noted that appellant was so
quick to defend herself or Glenn that it appeared she was not considering
whether there was a possibility Megan’s accusation could be true.
As
related in the Bureau’s report, appellant told Detective Hart that she did
not follow up when Megan told her about Glenn touching her inappropriately,
saying Megan gave “ ‘vague information, which did not sound credible.’ †Appellant said she wanted to end her
relationship with Glenn but had nowhere else to go because he was the
breadwinner, and that she had no knowledge of inappropriate touching by
Matthew.
One
of Megan’s friends told Officer Gillespie that Megan often said how much
she dislikes Glenn, complaining about him spanking her too much, hitting her
and making her do a lot of work around the house. In March, Megan said that when appellant was
at school on Thursdays, Glenn would walk in while Megan was taking a shower and
ask if she wanted help; on at least two occasions, he had “come into the shower
while she was taking a shower and touch[ed] ‘her parts’ †and then
“ ‘jack[ed] off’ †(which the child described as “touching his
penisâ€). Another friend said that Megan
complained in March that after appellant went to school, Glenn would come into
the bathroom while Megan was showering and “try to touch her private parts,â€
and that this “had been happening since she was nine years old and had happened
more than once.†Megan described a time
Glenn came into the shower with her, wearing his underpants, and said that once
Glenn pretended to be tickling her and touched her breasts and vagina. Megan’s friend told her to tell someone but
Megan did not want to because she did not want to be taken away from her
mother. Megan told her friend that she
had tried to tell appellant but appellant did not believe her, and she thought
appellant was afraid Glenn would assault her if she confronted him, and scared
to deal with the incident because they had nowhere else to stay.
Interviewed
by Detective Hart, Matthew initially “denied everything.†He did not remember being sent out of the
room so appellant could talk to Megan about a Dr. Phil show, and said that
at their father’s house, Megan had moved to the floor while they were talking
so they could be quieter and not get in trouble. He did not know about Glenn sexually touching
Megan and denied that Glenn had touched him sexually.
The
bus driver, Ms. O’Donnell, told Officer Gillespie that Megan said she
had been showering in her parent’s bathroom when Glenn came in, wearing pajama
bottoms, and asked if he could help her shower.
He left when she said no, but when she got out of the shower in a towel,
he was naked in the bedroom. Megan told
O’Donnell that she told appellant about the incident and was not sure whether
appellant had forgotten. Megan also said
that Matthew had touched her breasts and vaginal area.
An
interview was scheduled for Megan on Monday, April 4, at the Children’s Interview
Center (CIC). Megan was to stay with her
maternal grandmother, Pamela K., for the weekend. Appellant and Pamela were told that Glenn and
Matthew were to have no contact with Megan; appellant could call but not
discuss the allegations. At 5:45 p.m.
that Sunday, Megan called the social worker saying she had lied about the
allegations and had been angry with Glenn because he had grounded her.
At
the interview on April 4, Megan began by saying she “had been thinking
about things the wrong way†and “now knows that what she said happened with
[Glenn] was in fact a dream.â€
real until Friday and thought she was telling the truth when she spoke to the
police as well as when she told her friend at school. Her friend told her to tell the bus driver
and she did so thinking that the bus driver would keep a secret. After thinking a lot over the weekend, she
thought she might have had this dream because of the tickle fights she had with
Glenn. In the dream, Glenn came into the
bathroom with his pants on, left and then returned with nothing on. He asked if she wanted help with her shower
and he was there when she got out; she saw his private parts; he picked her up
and put her on the bed; her towel fell and he would not let her grab it; he
tried to open her legs and to pin her down on the bed so she could not get the
towel. Then the alarm went off for her
to wake up.
Megan
said she felt confused, “[o]ne side of her†feeling like it was a dream,
another side feeling like it was real and another feeling like she “took it all
the wrong way.†She said the shower
incident happened one time and tickling happened two times a day and sometimes
two times a week. Megan said she would
start the tickling, and Glenn “accidently gets his thumb stuck in her shirt or
her pantsâ€; these episodes would happen while appellant was at the store or in
the bathroom, and Matthew had never seen Glenn tickle her. About a year before, while watching
Dr. Phil, she told appellant Glenn had been inappropriate with her and
gave details, and she thought appellant had talked to Glenn about it.
Megan
said appellant had come to her grandmother’s house over the weekend to see how
she was doing. During the weekend, Megan
had flashbacks about how mad she was at Glenn for grounding her for a
month. She told appellant why she was
mad and appellant agreed with her. Megan
wanted to go home and thought if she explained herself “hard enough†at the
interview, “things can go back to normal.â€
She said appellant hoped they could go to counseling, and appellant
could not eat or sleep over the weekend because she was worried Megan would be
taken away. Megan said Glenn is “really
nice,†takes them out to dinner, and is nice to appellant, and that they “do
cool stuff together.†He “sometimes gets
mad because he wants them to do chores†and he ignores Megan when he is mad at
appellant. Megan also said Matthew had
touched her accidentally and she thought “she misunderstood what he was doing
because he would never do anything to her.â€
The
social worker spoke with appellant, who said she “absolutely†knew neither
Glenn nor Matthew would touch Megan.
Megan had not told appellant about Glenn touching her. Megan had “talked to her about the
Dr. Phil show†but did not provide any details; Megan said Glenn had
brought her a towel into her bathroom, and appellant told her there was nothing
wrong with this and she must have misunderstood his intentions. Appellant said Megan was headstrong and in a
rebellious stage, and had been “ ‘butting heads’ †with Glenn, a
stage Matthew had gone through with Glenn and grown out of. According to appellant, Megan “does not know
when to stop†and Glenn sometimes gets irritated when Megan continues tickling
him after he tells her to stop. Tension
between Glenn and Megan had been building and Megan had been holding a
grudge. Two weekends before, while
appellant was away, Megan was at a friend’s house and Glenn told her to call
him before noon. Megan called appellant
at 12:02 p.m. and appellant told her to call Glenn; Glenn grounded her for
a month and took away her phone for calling late. The day before Megan voiced her allegations,
Glenn told her she could get off restriction early if she cleaned his truck,
and Megan appeared happy when appellant dropped her at the bus stop on
April 1, then appellant received the call from school.
Appellant
did not believe Matthew would touch Megan because the two could not stand to be
around each other, and suggested Megan might have made the allegations because
Matthew would not let her hang out with him or play with his Xbox.
Appellant
said that when she went to visit Megan over the weekend, Glenn told her to tell
Megan he loved her and would forgive her.
Appellant wanted Megan home and said they would attend family
counseling. She said Glenn felt hurt
about the allegations and Matthew was angry.
Appellant
told the social worker that Matthew had been diagnosed with Attention Deficit
Hyperactivity Disorder and Bipolar disorder as a young child and labeled as
emotionally disturbed; he took various medications under the supervision of a
psychiatrist and saw a counselor at school.
Matthew told the social worker he did not want to discuss Megan’s allegations,
said he was “ ‘blown away’ †that Megan would say this about him and
asked, “Why Glen[n] and me?†Matthew
said that he got along “ ‘pretty good’ †with Glenn and that Glenn
yelled when he was disturbed about his ex-wife and sometimes was moody. Matthew thought Megan needed to go to counseling
by herself. He did not want to attend
family counseling because he did not want to talk to Megan and said he talked
openly and honestly with his school counselor.
The
children’s father, Christopher, told the social worker that he called Megan on
Friday night, after appellant told him Megan had reported Glenn and Matthew
having done something to her. Megan
sounded “credible†to him. On Sunday,
Christopher took Matthew out for lunch and Matthew said Megan was “ ‘full
of crap.’ †About 3:00 p.m.,
appellant called and led Christopher to believe she was going to “bully Megan
into saying that she made all this up,†saying “she ‘is not going to let any
government agency take over our life.’ â€
Christopher came early to the interview on April 4 in order to let
someone know he believed appellant had bullied Megan into changing her
story. Christopher did not feel Megan
was safe at appellant’s house and wanted to take her home with him that day. He had been concerned about Megan living in
Glenn’s home because the children had told him that Glenn had thrown Matthew
against a wall in the past, leaving no marks, and said they did not like Glenn.
Appellant
was told after Megan’s interview that while Megan said her story had been a
dream, her body language and difficulty maintaining the story made it apparent
she had been coached or coerced.
Appellant got angry, saying, “ ‘This is crap. She made it up.’ †She also got angry when Detective Hart
told her he was concerned about her inability to consider that something might
have happened to Megan and advised her that Megan would not be returning home
because there was a question about her safety.
Pamela K.
reported that on Sunday Megan was crying while sitting on the couch with
appellant and Pamela told appellant she was not supposed to be talking to Megan
about the case. Appellant took Megan out
for ice cream, then later took her out and bought her new clothes; when they
returned, Megan told Pamela, “ ‘Now I’m gonna say I made it all
up.’ †Pamela asked appellant what
she was doing. Pamela felt appellant did
not want to rock the boat with Glenn.
She said the children did not get along with Glenn, who was
unpredictable, yelled at appellant and was possessive. Pamela had the children stay with her every
other weekend, when Glenn’s children came to visit, and said that when his
children were there, Glenn treated Megan and Matthew like servants. Megan had told her two or three months before
that she had watched a Dr. Phil show and told appellant that Glenn had
touched her, but appellant did not want to hear it.
Matthew’s
therapist, Will Bove, told the social worker that Matthew told him weekly
“how unhappy he is with [Glenn].â€
Appellant had expressed to Bove that she was trying to get her life
together so she could leave Glenn; Bove felt she was trying “really hard†and
the children were the most important thing to her. Bove said appellant struggled with her own
mental health challenges, there were conflicts between her and Glenn that
presented a challenge for the children, Glenn got stricter with the children
when he was upset with appellant, and the children had spent all of the past
summer with Pamela because Glenn threatened Matthew. Bove had never had any sexual concerns about
Matthew.
In
recommending that a petition be filed, the social worker noted, along with
Megan’s allegations, that appellant did not have the capacity to keep Megan
safe because she took no action after Megan told her about the shower incident
and continued to refuse to consider that there had been any sexual
inappropriateness; that although appellant was told not to talk to Megan about
the case during the weekend preceding the interview, she took Megan out for ice
cream and shopping, after which Megan said she was going to say she had lied to
the police; and that Megan’s recantation at the interview did not appear
believable to observers.
At
the time of the April 7 detention hearing, Megan was living with
Christopher and Matthew was living with appellant and Glenn. The Bureau recommended that Megan be detained
in out-of-home placement and Matthew remain in appellant’s custody with
court-ordered services. The court
detained both children from appellant’s custody and suspended appellant’s
visitation pending the jurisdictional hearing.
Megan was placed with Christopher and the court ordered no contact
between Megan and Glenn. Matthew was
temporarily placed with family friends.
Megan
was interviewed a second time at CIC on August 2. According to a summary of
Detective Hart’s description of the interview, after promising to tell the
truth, Megan stated that Glenn “ ‘got mad a lot’ †and spanked her
and Matthew with his hands, a board or a belt, and that appellant knew about
this. Glenn would make her pull down her
pants when he spanked her on the buttocks, which would sometimes leave red
marks for approximately one week. He
once told her to cover herself when they went swimming because he did not want
others to see the marks. Appellant once
hit her with the board Glenn used, with Glenn urging her to “ ‘hit
hard.’ †Appellant once intervened
when Glenn was attempting to hit Matthew.
Megan
said she was upset that appellant did not believe her allegations of sexual
abuse. She stated that when she was nine
or ten years old, she was taking a shower in “ ‘Glenn’s bathroom’ â€
and he walked in, “ ‘butt naked’ †and asked if she wanted help
washing her hair. He “ ‘kept trying
to get in the shower with her’ †while she was turning it on and getting
in, then left but returned when she got out and asked if she “needed help
‘drying off.’ †She wrapped a towel
around herself and walked to the hallway, then Glenn pushed her back into the
bedroom and onto the bed, touched her chest/breasts and vaginal areas with his
hands and tried to make her touch his penis.
Glenn was naked. He stopped
touching her when he heard her brother turn off the shower in the other
bathroom. Megan told appellant about the
incident but appellant did not seem to believe her. This was the only time Glenn touched her
sexually in “that ‘extreme’ manner,†but there were numerous other times when
he would pull her shirt or pants down while “ ‘tickling’ †her and
would “ ‘look down’ her shirt.†She
also described Glenn approaching while she was doing homework at the desk,
“hitting her hand with his exposed penis†and urging her to touch it. She said this happened three or four times.
Asked
about saying “ ‘something different’ †at her prior interview, Megan
described appellant taking her for ice cream and trying to get her to change
her story. Appellant did not believe
that Megan was telling the truth about the allegations and told Megan to change
her story so she would be able to come home, continuing to talk about the case
even after Megan told her they were not supposed to discuss it. Megan came up with the idea of saying the
events she had reported had been a dream and did not talk to appellant about
this.
Megan
stated that she liked living at her father’s house and felt safe there, but was
“not thrilled†about living in Sacramento.
She felt “ ‘fine’ †about not being able to speak with
appellant and did not want to see her.
She said she would like to see her brother. She was “clear†that the events she reported
about Matthew had really happened.
At
the jurisdiction hearing on September 14, Megan testified that she did not
recall what details she gave when she told her bus driver that Glenn and
Matthew had molested her. She was upset
when Ms. O’Donnell told her she had to inform the authorities, because she
had wanted what she said to be a secret between herself, the two friends who
were with her, and O’Donnell.
Detective Hart came to school to talk to Megan and she told him the
truth. When she went with her
grandmother to Glenn’s house to get her belongings, appellant was crying and
packing a bag for her, and would barely talk to her when Megan tried to say
goodbye.
Concerning
the shower incident, Megan testified that as she was about to get into the
shower, Glenn came into the bathroom, naked, and asked if she needed help in
the shower. She said no and tried to
cover herself, he tried to get in the shower with her as she tried to push him
out, and finally he left. After the
shower, as Megan was walking down the hall to her room, Glenn pushed her back,
picked her up and put her on the bed. He
kept trying to look at her, she tried to cover herself, the towel dropped on
the floor, he tried to open her legs as she resisted, and he finally kept her
legs open and “tried to get a good look at me.â€
He repeatedly told her to touch his penis, and she held her hands
together so she could not. He touched
“the upper part†of her body.
Megan
did not remember the specifics of what she told her friends about Glenn’s
actions, but testified that everything she told them was true.
Asked
whether she had told appellant about the shower incident, Megan said that about
a month after it, and a year before her disclosures to Ms. O’Donnell,
while watching an episode of Dr. Phil, “out of nowhere†appellant told her
not to be afraid to tell her “anything.â€
Megan told her “everything†and appellant looked at her and said
“okay.†Appellant did not do anything
about it and Megan thought appellant did not care.
During
the weekend before her first interview, appellant took Megan to Baskin Robbins
and the Army store, and spoke with her about what Megan had told the
police. Megan remembered saying, “I am
the victim here,†and thought appellant responded, “I don’t give a rat’s A.†Megan felt appellant did not believe her and was
trying to get her to change her story, because appellant kept asking whether
Megan wanted to come home and told her, “I don’t know how you can change this
whole thing around but you can try.â€
When Megan asked “how,†appellant said, “just change your story.†Megan came up with the idea of saying it was
just a dream.
Megan
testified that she was lying when she said at her first interview that
“everything was a dream†and that what she said in her second interview was
true. She did not make up what she said
about the shower incident or about how Glenn treated her and Matthew. Megan testified, “I told my friends
everything that’s ever happened to me, like my life was a horror movie. It just happened over and over and over. Like Glenn would yell at us for no
reason. He would spank us. And I was always terrified that like whenever
my mom would pick us up at the bus stop Matt or I would ask her if Glenn was
home yet. And I was—like felt scared if
he was because—because somehow, someway Glenn had a bad day at work, so
whenever he has bad days he usually would yell at us. And when he yelled at us, like, he would tell
us to go, like, clean the backyard, go clean his room, go do the dishes and
stuff like that. [¶] And I remember
I have a recording on my iPod of him yelling at me because he said that I took
too long of a shower and that I did the dishes wrong and to do them
again. . . . He would,
like, he shoved my brother against the wall twice, smacked him on the back of
the head when he was eating, and then he shoved him against the sliding glass
door.â€
Megan
testified that Glenn spanked her with a belt, a hand, or a polished wooden
board, and that appellant observed this “[a] couple [of] times.†She thought appellant had once seen Glenn
shove Matthew against the wall and had seen Glenn yell at her. Megan did not like Glenn but denied making up
any of the allegations because she did not like him. On cross-examination by Christopher’s
attorney, Megan testified that aside from the shower incident, Glenn did not
try to touch her or get her to touch him.
The
recordings of Megan’s interviews at CIC were played at the jurisdictional
hearing and admitted into evidence.
name="_ftnref6" title="">[6]
Matthew
testified that he did not recall Megan saying anything about Glenn while they
were watching a Dr. Phil episode with appellant, but he did remember a
time in the car when Megan said something about Glenn inappropriately touching
her and appellant said, “what, he would never do that.†Matthew thought this was during a time when
Megan was grounded. He remembered Megan
getting grounded for calling Glenn a minute late, and that she stayed angry
about it for a “pretty long time,†but he did not remember whether this was
close to April 1. During the month
preceding April 1, Megan did not seem afraid to be near Glenn, and she
would initiate the tickle fights that she and Glenn “always†had. Megan would try to avoid Glenn when Glenn was
in a bad mood or had yelled at them, as Matthew said they all did.
Matthew
did not remember what he said to the police officers on April 1. When asked whether the officers had asked him
if he had ever sexually touched Megan, he asserted his Fifth Amendment right to
remain silent. He testified that Megan
had lied about him in the past.
Matthew
acknowledged that he was telling the truth when he told the social worker that
he got along “pretty well†with Glenn, but stated that he was “partly†afraid
of Glenn. As he had previously told the
social workers, he wanted to go home with appellant, but not with Glenn
there. Matthew testified that Glenn was
mentally abusive toward him and had been physically abusive in the past, most
recently two or three years before. The
physical abuse consisted of spanking and pushing Matthew; on one occasion,
Glenn grabbed Matthew by the back of the neck and slapped him. The mental abuse was name calling and being
“mean.†Glenn would become agitated use
a loud and scary voice, and Matthew would be afraid for appellant’s and Megan’s
safety and “sometimes†his own. Glenn would
call appellant the “B word†and “tell her to F off,†and appellant and the
children would leave because they “couldn’t deal with him.†On one occasion, appellant and the children
stayed in the car overnight in a city park because Glenn either “kicked [them]
out†of the house or “was being a total butt-head.â€
Matthew
described having a dream in which appellant was looking in the attic and Glenn
kicked the ladder, hurt her and left her lying on the floor. Matthew woke up worried about appellant. He told the social worker about this dream,
as well as that Glenn had been physically abusive toward appellant. Matthew testified that one day “during all of
this†appellant was crying and went into the room with Glenn, Glenn told her to
stop a couple of times and then Matthew heard “a sound like she got punched in
the stomach, like she lost wind or something like that.†She came out of the room, no longer crying,
Matthew asked if Glenn had hit her, and she denied it. Another time, Glenn was mad at Matthew,
appellant was trying to protect Matthew and Glenn grabbed and pushed
appellant. Matthew stated that Glenn and
appellant both deny this but he saw it.
Matthew thought the police had once been called to the house because of
fights between appellant and Glenn.
Glenn’s moods were unpredictable and Matthew told appellant “[a]ll the
time†that he was concerned about Glenn’s behavior. Matthew had tried to get appellant to leave
Glenn “[m]any times†but she said they had nowhere else to go.
Pamela K.
testified that prior to April 1, Megan told her “something about the
bathroom and a towel†but never said anything about “touching.†Pamela asked if Megan wanted her to talk to
appellant and Megan said “no, don’t say anything to mom because then she gets
mad at me.†Pamela acknowledged that she
had an interest in making sure her grandchildren were protected from abuse and
that she had once called Child Protective Services because she felt appellant
was yelling at Matthew a lot. She
testified that the children complained to her about Glenn yelling at them a lot
but she had not heard about physical abuse.
Pamela knew that Glenn abused appellant because appellant told her so on
an occasion in 2005 or 2006, when appellant needed Pamela to give her money to
come over the bridge to Pamela’s house.
She had heard Glenn call appellant names like “[b]itch.†Megan had told Pamela about having to spend a
night in appellant’s car in a park.
Pamela had told appellant that she thought the situation was bad for the
children and for appellant, and that appellant should live somewhere else. She testified that Glenn was “a bully†and a
“controlling person.â€
Appellant’s
testimony was presented in a declaration.
Dr. Phil show, Megan said something about “Glenn, a towel and a showerâ€
but she never said anything about Glenn touching her or “went into any detail
about any specific event.†She had “no
idea what Matt is talking about†regarding statements Megan made in the
car. When asked by the police at Megan’s
school on April 1 if she thought Glenn could have done what Megan
reported, appellant answered “without hesitation, No way, not in a million
years would he ever do anything like that.â€
Regarding the police report description of her conduct with Megan,
appellant denied that she was “cold and harsh,†stating that she was in shock
and did not know how to act, and “couldn’t say anything or ask about any
details to Megan so I gave her a hug and walked out of the room.â€
Appellant stated
that she was told she “could not have any contact†with Megan during the
weekend Megan stayed with Pamela, and that “if I did see her I could not
discuss this matter with her.†Appellant
went to Pamela’s that Saturday, asked Megan how she was doing, gave her a hug
and told her Glenn wasn’t mad at her, forgave her and wanted her home. Megan said she wanted to come home, appellant
told her “she had the power to do that,†Megan asked what to do and appellant
said she did not know. On Sunday,
appellant picked Megan up and took her to Baskin Robins. Megan spilled some ice cream on her pants
and, because Megan had only one pair of jeans for the weekend, appellant took
her to the store to buy new jeans for Megan and for herself.
About seven years
before, after appellant and Glenn had an argument and appellant did not want to
stay at the house, she left with the children and stayed in the car at the park
because she did not have money for gas or the bridge. They “ ‘camped’ out†and the children
had breakfast, were groomed and went to school the next day.
Appellant stated
that Glenn would yell at the children when they did “ ‘stupid’ things such
as, not doing their chores or for leaving the lights on after telling them
several times to turn them off,†and if this did not work, he would “give them
sentences to write.†Once, Glenn “yelled
in Matt’s face,†appellant got between them and “nothing ever became of
it.†Appellant never observed any physical
abuse by Glenn toward the children.
Glenn would spank the children “maybe once on the bottom†and she was
always in the room when he did.
Megan started
tickle fights by poking and tickling Glenn and would have a hard time stopping
when he told her to. The night before
Megan talked to the bus driver, she had tried to get Glenn into a tickle fight;
he did not want to participate, she jumped on his back to get him to play and
he “picked Megan off his back and placed her on the couch.†Megan was laughing the whole time.
Appellant said
that Glenn’s relationship with her children was “kind of difficult†the first
few years and it took some time for them to “work together.†At one point Matt and Glenn butted heads
because Matt was rebelling against Glenn; Matt grew out of this and the two
became “pretty good friends,†and then “it was Megan’s turn to rebel.†Megan
gave appellant problems too, especially in trying to avoid doing chores. Megan “always liked Glenn†and he always
thought of her as his daughter; they watched TV together and he took her to
father/daughter dances at her request.
Appellant said Glenn “always respected the kid’s privacy†and knocked
before entering any room, and appellant did not recall him ever walking in on
Megan. The door to the bathroom in
appellant and Glenn’s bedroom was broken and when Megan took a shower there,
she always locked the bedroom door.
Megan would walk around the house in “short shorts and spaghetti strap
tight tank topsâ€; Glenn was always telling her to “ ‘put some clothes
on’ †and appellant agreed but “getting a pre-teen to wear what they don’t
want is not an easy task.â€
Appellant had
never observed, and no one had ever told her about, “any inappropriate touching
by anyone.†Glenn called appellant names
during arguments, which she attributed to his “speaking out of anger,†and used
words like “ ‘Bitch’ or states to ‘F-off’,†but this never bothered
appellant.
The court took
judicial notice of the 2004 verdict in a criminal case in which Glenn was
acquitted on charges of domestic violence
against his ex-wife, and of the statement of decision in the dissolution of
Glenn’s marriage to his ex-wife, in which the court ordered Glenn to
participate in a 52-week anger management course and found that although Glenn
had been acquitted on the domestic violence charges, he was “verbally,
emotionally, and on occasion physically abusive†toward his ex-wife.
At the conclusion
of the evidence, petitioner argued that Megan’s descriptions of tickling
incidents in which Glenn got his finger stuck in her clothing were sufficient
to establish sexual abuse under section 300, subdivision (d), that
the inconsistencies in Megan’s descriptions of the shower incident did not
affect the essence of her report, and that her recantation was not credible. Matthew’s attorney waived argument;
Christopher’s attorney and Megan’s attorney supported the Bureau’s
position. Appellant’s attorney urged
that Megan was lying about the claimed abuse.
On
December 14, the court explained that it had to “make a decision as to the
credibility of all of the participants†because of the “complete disagreementâ€
between the Bureau and all parties other than appellant urging that appellant
failed to protect Megan from Glenn molesting her, and appellant urging that
Megan made up the entire story because of her disagreements with and ill
feelings toward Glenn. The court noted
that it could not evaluate Glenn’s testimony and demeanor because neither side
called him as a witness.
name="_ftnref9" title="">[9]
The court
concluded, “based on the totality of the circumstances,†that it was not
possible to reject Megan’s testimony.
Expressly recognizing that there were “inconsistencies, if not outright
lies at times,†the court has concluded that “in general the specificity and
persistence with which these allegations were made, as well as her demeanor
here in the courtroom under oath, are sufficient for the court to conclude that
Children and Family Services have borne their burden of proof with respect to
Megan.†The court did not believe
Megan’s story at her first interview that the shower incident was a dream,
finding it “not seem credible†that Megan “would have such a dream and account
it with such detail while accounting with the same level of detail the other
incidents which are described as tickling incidents.†The court saw the first interview as
demonstrating that Megan had realized the consequences of her report and was
“grappling with how to get out from those allegations having been made so as to
either be returned to her mother where she wanted to be or just to have the
whole problem go away.†The court
stated, “It just defies my experience and my imagination that someone of such
tender years will have the skill level necessary to concoct that kind of
story,†and that Megan did not appear to be that manipulative or capable of
“such evildoing.†The court saw Megan as
“capable of misunderstanding situations†and “capable of reacting in a teenage
manner to things that she didn’t approve of that [Glenn] did in his form of discipline
of her,†and found this insufficient to allow the court to reject her testimony
entirely.
The court believed
it was more likely that “there was some incident in the shower between her and
[Glenn], that that incident was traumatic and shocking to her, and that she did
not deal with it in an adult manner, and she should have done so but did not,
and that she is acting in a way that’s not unusual for victims of these types
of events to react to, which is they do not report the incidents at the first
available opportunity and when they do they either minimize them or they
describe them in a way that is insufficient for people to take the appropriate
corrective action.†The court declined
to find that Megan actually informed appellant about the shower incident a year
and a half before because it was not clear from the record that she reported it
this long before.
The court found
that the “tickling incidents†were an independent basis for sustaining the
allegations “because this tickling of a child by a stepfather, even if it
occurred above the clothing, would be inappropriate. But it didn’t stop there. According to Megan the tickling went below
clothing and fingers got stuck at inappropriate times.†However, the court found that appellant was
not necessarily aware of this conduct and Megan did not claim to have told
appellant about it.
The court
sustained the petition as to Megan but amended the language of the allegations
under section 300, subdivision (d), to state that “there was inappropriate
sexual contact between†Glenn and Megan (allegation d-1). The court did not sustain the allegations
that Glenn touched Megan’s vagina and breasts and tried to get her to touch his
penis, finding Megan’s testimony on these specifics insufficient.
allegations concerning sexual touching by Matthew.
The court
sustained the petition as to Matthew with the same amendment, deleting the
specific factual allegations that Glenn touched Megan’s vagina and breasts and
tried to get her to touch his penis, so that the petition referred only to
Megan having been “sexually molested†by Glenn (allegation j-1). The court also did not sustain the allegation
under section 300, subdivision (j), referring to appellant having been told
that Glenn touched Megan inappropriately (allegation j-2).
In its report for
disposition, the Bureau recommended that Megan’s dependency be vacated, the
petition dismissed, and Christopher granted sole physical and legal custody,
with supervised visitation for appellant and no contact with Glenn. The Bureau recommended that Matthew be
adjudged a dependent, with out-of-home placement, reunification services for
both parents, visitation with Christopher, supervised visitation with
appellant, and no contact with Glenn.
Megan was living with Christopher and Matthew was living in a foster
home. Appellant had told the social
worker that she loved the children, wanted Matthew returned to her care and
wanted Megan to remain with Christopher.
Both children had said they did not want to return to appellant’s care
because appellant continued to live with Glenn.
Christopher had said he loved both children and would like to have both
in his care, but understood that it was best for the children to live
separately at this time. Megan had been
angry, hurt and depressed since learning that appellant wanted Matthew returned
to her but not Megan. Appellant told the
social worker that she did not believe Glenn sexually abused Megan and that he
had at times been a strong disciplinarian.
The Bureau did not believe the children could be safely returned to
appellant’s custody because of the children’s disclosures.
At the disposition
hearing on February 1, 2012, appellant testified that she still lived with
Glenn because she had nowhere else to go, that she did not think Glenn had
treated her children inappropriately and that Glenn had never physically abused
her but “might have called me a couple names every now and again.†She testified that she would move out of
Glenn’s home if she could and thought it would be best for her children if she
did so. She had not talked to Glenn
about wanting to leave him.
Adopting the
Bureau’s recommendations, the court found clear and convincing evidence that
the children’s welfare required removing them from appellant’s custody (§ 361,
subd. (c)(1), (4)). The court
vacated Megan’s dependency and awarded sole legal and physical custody to
Christopher, with appellant to have supervised visitation for one hour, once a
month and no contact between Megan and Glenn.
As to Matthew, the court ordered reunification services for appellant
and Christopher, with visitation to be arranged by the Bureau, and no contact
between Matthew and Glenn.
Appellant filed
timely notices of appeal on March 15, 2012.
DISCUSSION
I.
Appellant
argues that the sustained petitions fail to state a cause of action as to
either of the children because the petitions do not contain a precise statement
of facts. She further argues that there
was insufficient evidence to support the jurisdictional findings.
“A
dependency petition must contain a ‘concise statement of facts, separately
stated, to support the conclusion that the child upon whose behalf the petition
is being brought is a person within the definition of each of the sections and
subdivisions under which the proceedings are being instituted.’ (§ 332, subd. (f).) If the parent believes that the allegations,
as drafted, do not support a finding that the child comes within
section 300, the parent has the right to bring a motion akin to a
demurrer. (In re S. O. (2002) 103 Cal.App.4th 453, 460.)
“When the facial sufficiency
of a petition filed under section 300, subdivision (b) is challenged
on review, we construe the well-pleaded facts in favor of the petition to
determine whether the Agency pleaded that the parent or guardian did not
supervise or protect the children within the meaning of section 300,
subdivision (b). (
93 Cal.App.4th 377, 386; In re
Nicholas B. (2001) 88 Cal.App.4th 1126, 1133.) A facially sufficient petition ‘does not
require the pleader to regurgitate the contents of the social worker’s report
into a petition, it merely requires the pleading of essential facts
establishing at least one ground of juvenile court jurisdiction.’ (In re
Alysha S. (1996) 51 Cal.App.4th 393, 399–400.)†(In re
Kaylee H. (2012) 205 Cal.App.4th 92, 107–108.)
“The
purpose of the petition is to give a parent adequate notice of the allegations
against him or her.†(
182 Cal.App.4th 73, 83.) “Notice of
the specific facts upon which removal of a child from parental custody is
predicated is fundamental to due process†and “necessary to enable the parties
to properly meet the charges.†(
109 Cal.App.3d 384, 397; In re
Jessica C. (2001) 93 Cal.App.4th 1027, 1036–1037.)
A
number of cases have held that “ ‘ “[i]f the jurisdictional findings
are supported by substantial evidence, the adequacy of the petition is
irrelevant.†[Citation.]’ ([In re]
N.M. [(2011) 197 Cal.App.4th 159,]
166, fn. omitted.) ‘The only
exception occurs when a parent claims a petition fails to provide actual notice
of the factual allegations. Unless the
alleged factual deficiencies result in a miscarriage of justice, the reversal
of a jurisdictional order supported by substantial evidence is
unwarranted.’ (In re Javier G. (2006) 137 Cal.App.4th 453,
458–459.)†(In re John M. (2012) 212 Cal.App.4th 1117, 1123;
103 Cal.App.4th 617, 626–627.) “[A]fter a hearing on the
merits has been held on the petition, the focus must necessarily be on the
substance of the allegations found true by the juvenile court, not
idiosyncratic particulars of the social worker’s precise language. Anything less would allow parents to hold linguistic
deficiencies in the petition as a kind of trump card by which they could attack
a finding that a child fell within one of the descriptions of section 300, even
though that finding was supported by substantial, indeed overwhelming
evidence.†(In re Jessica C., supra, 93 Cal.App.4th at
pp. 1037–1038.)
Appellant
urges us not to follow this rule because Athena P.,
supra, 103 Cal.App.4th 617, the
case respondent offers in support of the rule, “is the only case that has held
so†and “seemed to conflate waiver with sufficiency of the evidence
issues.†Instead, appellant asks us to
follow cases which have held that an inadequate petition requires reversal
regardless of the sufficiency of the evidence.
(In re Alysha S. (1996)
51 Cal.App.4th 393, 396–400; In re
Nicholas B., supra, 88 Cal.App.4th at pp. 1132–1137.)
As
can be seen above, Athena P. is
not the only case to hold that an inadequate petition does not require reversal
where, after a hearing on the merits, substantial evidence supports
jurisdiction. Alysha S. did not discuss the sufficiency of the evidence; its
holding was that a facially sufficient petition is a prerequisite to the
juvenile court assuming jurisdiction.
(51 Cal.App.4th at p. 399.)
Nicholas B. followed
pp. 1136–1137.) In our view,
view: If sufficient notice was provided
to the parent and substantial evidence supports jurisdiction, deficiencies in
the allegations of a petition are harmless error. (In re
Athena P., supra, 103 Cal.App.4th at pp. 627–628.) The result of the contrary rule would be to
prolong juvenile dependency proceedings,
even in cases where substantial evidence supports jurisdiction under section
300, contrary to “the emphasis on expeditious processing of these cases so that
children can achieve permanence and stability without unnecessary delay if
reunification efforts fail.†(
165 Cal.App.4th 1626, 1640.)
name="_ftnref11" title="">[11]
In
any event, appellant’s challenges to the sufficiency of the petitions are
unavailing. With respect to
section 300, subdivision (b), as sustained, the petitions alleged
that 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 legal guardian to supervise
or protect the child adequately†in that “[t]he child’s mother has failed to
protect the child from the mother’s live-in boyfriend [Glenn] who has
physically and emotionally abused the child on an ongoing basis for at least
three years.†Appellant contends this
allegation was insufficient to state a cause of action because it merely states
a conclusion, rather than facts that would give notice of the allegations
against her, and fails to allege facts suggesting either child has or is likely
to suffer serious physical harm.
These
arguments are not persuasive. With
respect to notice, the petition made clear that the basis of jurisdiction was
appellant’s failure to protect the children from ongoing abuse by Glenn over
the course of at least three years. The
social worker’s reports, and the children’s testimony at the jurisdictional
hearing provided specifics. (See
at pp. 1123–1124 [petition amended at “fairly late stage in the
proceedings†and “by the time of the hearing the petition was accompanied by
several DCFS reports,†so mother could not argue prejudicially inadequate
notice of allegations against her].) The
social worker’s summary of Officer Gillespie’s police report related
Megan’s friend saying that Megan complained that Glenn spanked her and hit her;
Matthew’s therapist told the social worker that the children had spent the
entire summer with their grandmother because Glenn had threatened Matthew; at
her second interview, Megan said that Glenn would hit her and Matthew with his
hands, a board or a belt, sometimes leaving red marks that lasted about a week,
and that appellant was aware of this.
Megan testified that Glenn spanked her with a belt, a hand, or a
polished wooden board, and shoved Matthew against the wall. Matthew described Glenn’s past physical
abuse, including spanking him, pushing him and on one occasion grabbing his
neck and slapping him, and ongoing verbal abuse; he described an incident when
he heard what he thought was Glenn hitting appellant, although he did not
actually see this, saw Glenn grab and push appellant in an incident where she
was trying to protect Matthew when Glenn was mad at him, and testified that he
was concerned about the safety of his mother and sister, and sometimes himself,
around Glenn. That appellant had notice
of the specific facts underlying the allegations is demonstrated by the
declaration she filed responding to them.
The
petitions also sufficiently alleged facts suggesting a risk of serious physical
harm to the children. “[B]efore courts
may exercise jurisdiction under section 300, subdivision (b) there
must be evidence ‘indicating the child is exposed to a substantial risk of
serious physical harm or illness.’ â€
(In re Janet T. (2001)
93 Cal.App.4th 377, 387–388, quoting In
re Rocco M. (1991) 1 Cal.App.4th 814, 823.) “[E]vidence of past events may have some
probative value in considering current conditions . . . if
circumstances existing at the time of the
hearing make it likely the children will suffer the same type of ‘serious
physical harm or illness’ in the future.â€
(In re Janet T., supra, 93 Cal.App.4th
at p. 388.) “ ‘[A] court may
find there is a substantial risk of serious future injury based on the manner
in which a less serious injury was inflicted, a history of repeated inflictions
of injuries on the child or the child’s siblings, or a combination of these and
other actions by the parent or guardian, which indicate the child is at risk of
serious physical harm. . . .’ †(Ibid.,
quoting § 300, subd. (a).)
93 Cal.App.4th 377, 391, upon which appellant relies, found the factual
allegations of a petition insufficient to support jurisdiction under section 300,
subdivision (b). The allegation
that the mother’s failure to ensure the children attended school was deficient
because no facts were alleged to demonstrate that the failure to attend school,
although seriously detrimental in other ways, “created a ‘substantial risk’ of
suffering ‘serious physical harm or
illness.’ †(
demonstrated mental and emotional problems was deficient because no facts were
alleged to suggest how these problems created the requisite risk, and none of
the facts described in the social workers’ reports concerned conditions
existing at the time of the hearing, events resulting from or caused by the
mother’s mental and emotional problems, or a current risk of serious physical
harm due to those problems. (
appellant’s current failure to
protect the children from on-going
physical abuse, and the facts brought forth in the reports and testimony made
clear that the past incidents were likely to recur because appellant continued
to live with Glenn and did not believe he posed any risk to the children.
Nor
is the present case like In re
Nicholas B., supra, 88 Cal.App.4th 1126. That case
involved a minor who presented extreme behavioral challenges. One factual allegation based jurisdiction on
a single past incident in which the mother inflicted an injury upon the child,
but no facts were alleged to suggest a risk of such an incident being
repeated. (Id. at pp. 1133–1135.)
Other factual allegations stated that six months of voluntary services
had not resulted in reunification and the child continued to engage in
behaviors the parents objected to; the Nicholas B.
court found these allegations had a “tenuous connection to the failure to
protect arising out of past infliction of physical harm.†(Id. at p. 1135.)
Another allegation, that the child had been diagnosed with a conduct
disorder, failed to set forth any facts indicating the parents were responsible
for the child’s emotional problems. (
testimony about the “physically intimidating, even abusive personality of the
father and his physical acts against the minor,†the father was not mentioned
in any of the petition’s factual allegations.
(Id. at p. 1135.) The present case involves neither a single
past incident of abuse nor a perpetrator of abuse not mentioned in the
petition.
Appellant
also argues that section 300, subdivision (b), does not provide for
jurisdiction based on “emotional harm.â€
This much is true: Emotional harm
in and of itself, absent serious physical harm or a risk of serious physical
harm, is not a basis of jurisdiction under subdivision (b). (In re
Daisy H. (2011) 192 Cal.App.4th 713, 718.)
subject of subdivision (c), which “requires the court to find that the
child is suffering or at the risk of suffering ‘serious emotional damage,
evidenced by severe anxiety, depression, withdrawal, or untoward aggressive
behavior toward self or others . . . .’ (§ 300, subd. (c).)†(In re
Daisy H., supra, 192 Cal.App.4th at p. 717.) Subdivision (c) was not alleged as a
basis of jurisdiction here.
But
appellant’s argument misses the mark because the petition did not purport to
establish jurisdiction on the basis of emotional harm. Rather, the allegations under
section 300, subdivision (b) refer to emotional abuse in alleging
that appellant’s failure to protect the children from Glenn’s ongoing physical
and emotional abuse created a substantial risk that they would suffer serious
physical harm. In other words, emotional
abuse is referred to in the petition as part of the background creating the
alleged risk of serious physical harm, not as a basis for jurisdiction in its
own right.
The
evidence supported the court’s finding of jurisdiction under section 300,
subdivision (b). As described
above, Megan’s friend told the police that Megan complained that Glenn spanked
her and hit her; Megan said that Glenn would hit her and Matthew with his
hands, a board or a belt, sometimes leaving red marks that lasted about a week,
and that Glenn shoved Matthew against a wall; Matthew’s therapist reported that
the children had spent the summer with their grandmother because Glenn had
threatened Matthew. Matthew described
Glenn having spanked him, pushed him and on one occasion grabbed his neck and
slapped him. Even without consideration
of the evidence suggesting—albeit not necessarily proving—that Glenn was
physically abusive toward appellant, the above described evidence was
sufficient to establish that Glenn had been physically abusive toward the
children in the past. Combined with the
ample evidence of Glenn’s temper and ongoing verbal abuse, and appellant’s
refusal to acknowledge any problem requiring intervention, the evidence
supported the court’s conclusion that the children w
| Description | Heather G. appeals from juvenile court orders taking jurisdiction over her two children under Welfare and Institutions Code section 300. She contends the court erred in overruling her demurrer to the petitions, and abused its discretion and violated her constitutional rights by unduly limiting cross-examination of her daughter. She further contends there was insufficient evidence to support the petitions.[1] We affirm. |
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