In re Jasmine
Filed 11/14/13 In re Jasmine C.CA2/5
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FIVE
In re JASMINE C., A Person
Coming Under the Juvenile Court Law.
B247783
(Los Angeles
County
Super. Ct.
No. CK60354)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
PEDRO C. et al.,
Defendants and Appellants.
APPEAL from
orders of the Superior Court
of
County, Elizabeth Kim, Temporary Judge. (Pursuant to Cal.
Const., art. VI, § 21.) Affirmed.
Amy Z.
Tobin, under appointment by the Court of Appeal, for the minor and Appellant.
Marsha F.
Levine, under appointment by the Court of Appeal, for Defendant and Appellant
Pedro C.
John F. Krattli, County
Counsel, James M. Owens, Assistant County Counsel and William D. Thetford,
Deputy County Counsel for Plaintiff and Respondent.
I. INTRODUCTION
The father, Pedro C., and the child, Jasmine
C., appeal from the juvenile court’s February
13, 2013 jurisdiction and disposition orders. They challenge the juvenile court’s
jurisdictional findings under Welfare and Institutions Code section 300,
subdivisions (d) and (j).
name="_ftnref1" title="">[1] The juvenile court found the child was at
substantial risk of harm based on the father’s prolong sexual abuse of Michelle
V. Michelle is the child’s
half-sister. In addition, the father and
the child object to the disposition order removing Jasmine from the father’s
custody. We affirm the jurisdiction and
disposition orders.
II. PROCEDURAL HISTORY
On January
3, 2013, the Los Angeles
County Department of Children and Family Services (department) filed a
section 300 petition on behalf of the child, age 10. The petition was filed pursuant to section
300, subdivisions (b), (d) and (j). The
petition alleged the father sexually abused Michelle since she was nine years
old. Michelle is the child’s
half-sibling. The father repeatedly
fondled Michelle’s breasts, vagina and buttocks. At the January
9, 2013 detention hearing, the child was detained and removed from
the father’s custody.
The department also filed a
17-year-old Michelle on December 31,
2012. The section 387
petition alleged the father, Michelle’s legal guardian, sexually abused
her. On January 16, 2013, the father filed a section 388 petition
requesting termination of his legal guardianship over Michelle.
The juvenile court held a combined hearing
on the sections 300, 387 and 388 petitions over the course of seven days. During the hearing, the juvenile court
admitted into evidence five department reports.
In addition, the juvenile court heard testimony from: the father; Michelle; the father’s adult
daughter Dalila; children’s social worker Elizabeth Castellano; and the child. The juvenile court granted, in part, the
child’s section 350, subdivision (c) motion by striking the b(1) allegation
from the section 300 petition. The
juvenile court sustained the section 387 petition and found Michelle was a
dependent of the court under section 300, subdivision (b). The juvenile court also granted the father’s
section 388 petition, terminating his legal guardianship over Michelle. In addition, the juvenile court sustained
counts d(1) and j(1) in the section 300 petition. The juvenile court declared the child a
dependent of the court under section 300, subdivisions (d) and (j) and removed
her from the father’s custody. The
department was ordered to provide the father with family reunification services. The father was ordered to attend sex abuse
counseling for perpetrators and individual counseling to address case
issues. The father was granted monitored
visits with the child in a neutral location.
The father filed his notice of appeal on February 25, 2013. The
child filed her notice of appeal on April
15, 2013.
III. EVIDENCE
A. Detention Report
The January
3, 2013 detention report was prepared by a children’s social worker,
Ms. Castellano. The report indicated
Michelle and the child were removed from the mother, Ana Z., in 2005. The sustained petition stated: the mother had mental and emotional problems
including delusions, paranoia and hallucinations; the mother failed to take her
prescribed psychotropic drugs on a consistent basis rendering her unable to
provide appropriate care and supervision of the children; in April 2007, the
child was returned to the father; in November 2007, the juvenile court
terminated jurisdiction over the child; and in January 2008, the father became
Michelle’s legal guardian.
On December
14, 2012, the father and the child left home to visit Mexico. Michelle remained behind in the care of the
father’s adult daughter, Dalila. On December 25, 2012, Michelle revealed
the sexual abuse to Joseph F. and his fiancé, Jackee C. Joseph and Michelle are cousins. Jackee encouraged Michelle to report the
abuse to the department.
The next day, Michelle went to the
department’s regional office and spoke with a children’s social worker, John
Casey. Michelle told Mr. Casey that the
father has been inappropriately touching her buttocks, vagina, and breasts
under and over her clothes since she was 9 years old. Michelle stated the father came into her
bedroom. The child and Michelle shared the
same bedroom. Michelle slept on the
bottom and the child slept on the top bunk bed.
Michelle reported the father laid on the floor next to the bunk bed and
touched her when he thought she was asleep.
B. Jurisdiction and Disposition Report
Ms. Castellano prepared the January 22, 2013 jurisdiction and
disposition report. Ms. Castellano
interviewed Michelle on December 28,
2013. During the interview,
Michelle stated the father had inappropriately touched her since she was 9
years old. The last incident took place
on December 12, 2012. Michelle stated it only involved touching. Michelle was asked why she had never told
someone else about the sexual abuse.
Michelle replied she never said anything before because she was afraid. Michelle’s fears arose from what might happen
to the child.
Ms. Castellano interviewed the mother on December 27, 2012. The mother was unaware of any sexual abuse by
the father. The mother stated Michelle
was old enough to have said something if there was abuse.
Ms. Castellano interviewed the father on January 11, 2013. The father denied the allegations, stating he
was shocked and distraught. The father
stated he had never gone to Michelle’s bedroom in the middle of the night and
never touched her in an inappropriate way.
He stated he treated Michelle as his own daughter and did not understand
why she would say those things about him.
The father indicated Michelle might be mad at him. This was because he bought the child clothes
before he went to Mexico. He told Michelle he would buy her clothes and
all her school needs after he returned.
Ms.
Castellano interviewed the child on January
16, 2013. The child stated
she never saw the father go into their bedroom at night. But the father did come into the room one
time when it was still dark to wake Michelle up so she could go work at a
polling place. The child denied the
father ever touched her in any inappropriate way. The child stated the father had talked to
her about not letting anyone touch her inappropriately and told her to tell him
if anyone ever tried. The child stated
Michelle’s relationship with the father was good. The child reported Michelle was calm around
the father. But Michelle became mad when
she was punished or did not receive money from the father. The child did not notice Michelle acting
afraid or uncomfortable around the father.
Ms. Castellanos wrote: “[The
child] stated that Michelle sometimes made her steal [the father’s] rent
money. She stated that she would give
Michelle the money and she would buy little round packs of balloons. She stated that Michelle would always hang
out with the gangster girl that lived in the back house and would get mad when
[the father] would tell her to come back in the house because it was
late.â€
Ms.
Castellano also interviewed Morelia C., the father’s adult daughter. Ms. Castellano described how Morelia
met Michelle, “Morelia stated that
she has known Michelle since she was very little when [the] father began seeing
Michelle’s mother
[, A.Z.]†Morelia
said the father and Michelle had a good relationship. The father provide for Michelle as if she
were one of his daughters. Morelia
stated the father was on top of Michelle’s schooling, health and
well-being. Morelia
did not observe Michelle to be afraid or uncomfortable around the father. Morelia
did not see the father do anything inappropriate to Michelle. The father was very strict and Michelle did
not following the rules. Michelle could
become very upset with the father for disciplining her. But the father did not talk ill of Michelle
even when she misbehaved.
Ms. Castellano wrote she had been providing
services for the family since 2006.
During her monthly contact with the family, she had never observed any
inappropriate behavior by the father. To
the contrary, the father had been cooperative, always made himself available
when needed and was on top of Michelle’s and the child’s medical and academic
progress. Ms. Castellano did not observe
any signs of sexual abuse. Also,
Michelle did not appear afraid or uncomfortable in the father’s presence. But Ms. Castellano recommended termination of
the father’s legal guardianship of Michelle.
This was because the father no longer wanted to be Michelle’s legal
guardian.
Ms. Castellano assessed there was “potential
risk†but recommended the child be returned to the father’s custody. Ms. Castellano observed the child to be a
happy, active and well adjusted youngster.
Ms. Castellano wrote: “[The child]
has always been close to her father and is unhappy to be apart from him. Father has always cared for the [child] and
[there] have been no concerns or safety issues while under his care. Therefore, it is respectfully recommended
that [the child] [be] return[e]d to father’s . . . care and implement Family
Maintenance Services to monitor the family and provide them with services such
as counseling.â€
C. Interim Review Report
On January
28, 2013, the department filed an interim review report pursuant to
the juvenile court’s January 23, 2013
order. Ms. Castellano interviewed
Michelle a second time on January 24,
2013. This time, Michelle
provided a different version of the father’s misconduct. Michelle stated the sexual abuse started when
she was nine years old. She was wearing
red shorts and lying on the floor watching television in the living room. The mother was already asleep. The father came and laid next to
Michelle. He touched Michelle’s thighs
and put his hand under her panties. The
father inappropriately touched Michelle on five separate occasions. On the sixth time, the father took off
Michelle’s shorts and had sex with her in the living room. Michelle stated she closed her eyes and
blacked out. The next morning, the
father told Michelle she should not tell anyone what he had done or he would go
to jail. Michelle did not tell anyone
about the incident because she thought people would think she was crazy. Sometime in 2012, Michelle told an
unidentified “best friend†about the father’s misconduct. In November 2012, Michelle spoke to the
father. The father responded, “[G]o
ahead tell her, I dare you.â€
Michelle reported the sexual abuse happened
daily afterwards. The abuse took place
in Michelle’s bedroom during the day after school around 6:00 p.m. or at night around 10
p.m. when everyone was asleep.
The child was outside during the daytime and sleeping at night when the
abuse happened. If the abuse happened
during daytime, the father locked the bedroom door. Sometimes the child or the mother asked where
Michelle was. The father told the mother
and the child Michelle was changing and would be right out. At night, the father would come into bed and
have sex with Michelle while the child slept on the top bunk bed. Sometimes, the father would have sex with
Michelle when she slept on the top bunk.
Michelle initially stated the father did not use a condom. But later, she stated the father would
sometimes use a condom after she had a boyfriend. Sometimes, Michelle would tell him to stop
and try to push him off. At times, she
had tears in her eyes. Michelle stated
the father was drunk two or three times during the abuse.
Michelle decided to report the sexual abuse
after a conversation with a neighbor.
She stated: “In December 2012,
before [the father] went to Mexico
[,] my neighbor said that [the father] looked like a child molester. When he said that I told him part of what was
going on but I didn’t tell him everything.
His girlfriend told me that I shouldn’t be living like that and I should
say something.†Michelle did not tell
anyone all these years because she was scared of what would happen to her and the
child.
When
asked why her story changed, Michelle responded: “I changed my mind [because] when we were in
court I heard that [the child] might be going back home with him and I don’t
want her to go back with him. I decided
that I should say everything [because] someone was telling me that if he did
this to me what makes me think he won’t do it to her. I’m not saying this because I wanted to get
out of the house.†Michelle did not see
the father do anything inappropriate with the child. Michelle added: “But I don’t want her to go back with
him. I know his daughters are on his
side but that’s because they don’t know how he really is.â€
As noted, Ms. Castellano had been
providing unspecified family services for several years. And during that time period, Michelle never
mentioned any sexual misconduct by the father.
According to Ms. Castellano, Michelle responded: “I don’t know. I was scared of what was going
to happen to me and my sister.†Michelle
was asked why she had changed her version of what had occurred. As noted, Michelle had previously only
reported that fondling had occurred.
Michelle responded: “I changed my
mind [because] when we were in court I heard that [the child] might be going
back home with him and I don’t want her to go back with him. I decided that I should say everything
[because] someone was telling me that if he did this to me what makes me think
he wouldn’t do it to her.†Ms.
Castellano asked: “When we talked about
possibly placing you in transitional housing placement where you would be
living independently, you stated that you wanted to do that but then shortly
after you said you had changed your mind and wanted to stay with [the
father]. Why did you change your
mind?†Michelle replied, “I don’t
know.â€
Ms. Castellano observed during the
interview, Michelle was calm and cooperative, answering every question. Ms. Castellano recommended the child be suitably
placed with family reunification services provided to the father. Ms. Castellano wrote, “[The child] wishes to
return to father’s care however, due to the allegations of [the father’s]
sexual inappropriate behavior towards Michelle, it is felt that [the child] may
be at risk at this time.â€
D. Father’s Testimony
The father testified the family had lived at
the current residence for about six years.
Michelle and the child shared a bedroom.
Michelle slept on the lower bunk and the child slept on the upper bunk
bed. The father only went into the
girls’ bedroom at night once to wake Michelle up to work at the polls. During the day, he only went into the bedroom
to help clean or make repairs. He was
never alone in the bedroom with Michelle.
The father denied inappropriately touching or sexually abusing
Michelle.
The father had six adult daughters: Morelia, age 27; Maribel, age 26; Dalila, age
25, Esperanza, age 24; Violeta, age 21;
and Viridiana, age 20. The
daughters lived with the father until he separated from their mother. They visited him often after the
divorce. The father has never been
accused of sexually abusing any of his adult daughters.
E. Michelle’s Testimony
Michelle testified she lived with the father
when she was seven years old. She stated
the father first touched her inappropriately when she was nine years old while
she was in the living room. Michelle was
placed in foster care when she was nine and a half. She later was placed with the father when she
was 12 years old. Michelle testified the
abuse resumed after she returned from foster care. When she became pregnant, she did not know if
it was the father or her boyfriend’s child.
Michelle testified the child, the mother, and Dalila knew the father
slept in her room.
Michelle stated she went back to the father
because she did not want to be in the foster home. She stated they “were starving to death†at
the foster home and would eat candy almost every day because they went to
parties. Michelle admitted lying to the
social worker that everything was going great before reporting the abuse in
December 2012. At one point while
testifying, Michelle was asked in reference to the father’s molestation, “[W]hy
didn’t you tell all that to Ms. Castellanos in the very beginning?†Michelle testified: “Because I know that people were going to be
like, . . . why didn’t you say this in the first -- all these years you never
said anything. Why now?†Michelle
changed her mind about going to transitional housing when it was offered
because she was scared she would not know how to manage for herself. Michelle did not tell the social worker, Ms.
Castellano, everything during the first interview. This was because she was afraid the father’s
adult daughters would be against her. Michelle
also was concerned the child would be placed in foster home. At another point while testifying, Michelle
was asked why she initially only described the father as fondling her. As noted, Michelle only described fondling
related conduct during the first interview where the father’s sexual misconduct
was discussed with Ms. Castellanos.
Michelle testified, “Because my sister was going to go back with
him.†Under those circumstances,
Michelle believed that the child was in some danger.
Michelle never saw the father do
anything inappropriate with the child. While
testifying, Michelle expressed fear for the child’s safety. When asked why she had such a concern,
Michelle testified: “Because if he did
that to me, then why won’t he do it to her.
I mean, that’s his daughter, but still that’s the age he started. You know, you never know.â€
F.
Dalila’s Testimony
Dalila is one
of the father’s adult daughters. In the
preceding four years, Dalila and her 4-year-old son, Jason, had lived with the
father, Michelle and the child. Dalila
had a good relationship with the father.
Dalila testified the father was very involved in her life, except for a two-year
period. The two-year period occurred after
the father separated from Dalila’s mother.
Dalila never saw the
father go into Michelle’s bedroom to sleep.
Dalila would see the father sleeping in the dining room when she went to
the kitchen to get her baby his bottle. Dalila
testified the black metal bunk bed in the bedroom where the child and Michelle
slept made noise when you sat down on the bottom bunk or climbed the
ladder.
Dalila testified
the father never molested her. She did
not observe the father being inappropriate with her sisters. And, her sisters never told her that the
father molested them. The child never
told Dalila that she did not feel safe around the father or that he was being
inappropriate with her. Michelle also
never said that the father was being inappropriate with her. At one point, Dalila was asked, “[W]as there
any time that you saw anything in your home that indicated that your father and
Michelle were having an inappropriate relationship?†Dalila responded, “No.â€
G. Social Worker’s Testimony
Ms. Castellano has been a social
worker for six and a half years. She has
been Michelle’s social worker for six years.
They first met when Michelle was 11 years old. Ms. Castellano saw Michelle once a month,
sometimes more. Michelle first stated
the father fondled her, there was no mention of intercourse. Ms. Castellano wrote the jurisdiction and
disposition report based on the first interview with Michelle. Ms. Castellano initially recommended the
child be returned to the father’s custody.
Ms. Castellano explained her recommendation in the January 22, 2013
jurisdiction and disposition report thusly:
“When I spoke to Michelle, she had told me that she didn’t think that
[the father] had done anything to [the child].
She did not feel that she was at risk at that time.â€
Ms. Castellano interviewed Michelle
again pursuant to a court order. After
the second interview, Ms. Castellano recommended the child be removed from the
home. Ms. Castellano observed Michelle
was “ a lot more open†and provided greater details. Ms.
Castellano added, “And I felt because of that, [the child] being so young,
around the same age where the abuse started with Michelle, that possibly she
might be at risk.â€
H. The Child’s Testimony
The child testified she slept in the top
bunk bed. Michelle slept on the bottom
bunk bed. No one else slept in their
bedroom. The father slept on the living
room floor. The mother slept on a bed in
the living room. At times, the child
would get up in the middle of the night to use the bathroom. She never saw the father sleeping in her
bedroom. The child heard a squeaking
sound when Michelle got in and out of the bottom bunk bed. But, the child did not recall being awakened by
the squeaking when Michelle got out of the bed.
The child did not feel uncomfortable around the father. Also, she testified the father never touched
her in a place she did not think was right.
IV. DISCUSSION
A. Standard Of Review
We review the juvenile court’s
jurisdictional findings for substantial evidence. (In re
E.B. (2010) 184 Cal.App.4th 568, 574-575; In re J.K. (2009) 174 Cal.App.4th 1426, 1433.) We review a removal order for substantial evidence in
the light most favorable to the juvenile court’s order to determine whether
sufficient evidence supports the court’s findings by
re Miguel C. (2011) 198
Cal.App.4th 965, 969; In re Mariah T. (2008) 159 Cal.App.4th 428,
441.) Substantial evidence is relevant evidence which
adequately supports a conclusion; it is evidence which is reasonable in nature,
credible and of solid value. (
575; In re J.K., supra, 174
Cal.App.4th at p. 1433.) We draw all
reasonable inferences from the evidence to support the juvenile court’s findings
and orders. We adhere to the principle
that issues of fact, weight and credibility are the provinces of the juvenile
court. (In re I.J. (2013) 56 Cal.4th 766, 773; In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393;
I.J., supra, 56 Cal.4th at p. 773; In
re Matthew S. (1988) 201 Cal.App.3d 315, 321.)
B. Jurisdictional Findings
Section 355, subdivision (a) provides:
hearing, the court shall first consider only the question whether the minor is
a person described by Section 300. Any legally admissible evidence that is relevant to the
circumstances or acts that are alleged to bring the minor within the
jurisdiction of the juvenile court is admissible and may be received in
evidence. Proof by a preponderance of
evidence must be adduced to support a finding that the minor is a person
described by Section 300 . . . . †Section 300, subdivision (d) states: “Any
child who comes within any of the following descriptions is within the
jurisdiction of the juvenile court which may adjudge that person to be a
dependent child of the court: . . . [¶] (d) The
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 the parent or
guardian has failed to adequately protect the child from sexual abuse when the
parent or guardian knew that the child was in danger of sexual abuse. . .
.â€
Section 300, subdivision (j) sets forth the
applicable ground for juvenile court jurisdiction, “The 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.†Section 300,
subdivision (j) contains a list of factors for the trial court to consider,
“The court shall consider the circumstances surrounding the abuse or neglect of
the sibling, the age and gender of each child, the nature of the abuse or
neglect of the sibling, the mental condition of the parent or guardian, and any
other factors the court considers probative in determining whether there is a
substantial risk to the child.â€
Our Supreme Court explained: “[S]ection 300 does not require that a child
actually be abused or neglected before the juvenile court can assume
jurisdiction. The subdivisions at issue
here require only a “substantial risk†that the child will be abused or neglected. The legislatively declared purpose of these
provisions ‘is to provide maximum safety and protection for children who are
currently being physically, sexually, or emotionally abused, being neglected,
or being exploited, and to ensure the safety, protection, and physical and
emotional well-being of children who are
at risk of that harm.’ (§ 300.2,
italics added.) ‘The court need not wait
until a child is seriously abused or injured to assume jurisdiction and take
the steps necessary to protect the child.’
[Citation.]†(
supra, 56 Cal.4th at p. 773; see
843.)
The father and the child challenge the juvenile court’s
jurisdictional findings under section 300, subdivisions (d) and (j). They argue there is insufficient evidence to
support the jurisdiction findings. They
reason as follows. The child denied any
sexual abuse or inappropriate touching by the father. The child also never observed any
inappropriate behavior by the father towards Michelle. They contend, unlike Michelle, the child is
the father’s biological daughter.
Because none of the father’s six biological adult daughters were ever
abused by the father, the child is not at substantial risk for sexual abuse by him. In addition, they assert Ms. Castellano,
the social worker, who visited the family monthly for six years observed no
sexual abuse and did not have any concerns.
Given the standard of review, these contentions are meritless.
Substantial evidence supports jurisdiction under section 300,
subdivisions (d) and (j). Michelle
testified she was abused repeatedly by the father. No doubt, Michelle was not the father’s
biological daughter. But the father
stated he treated Michelle like a daughter.
The father lived with Michelle beginning when she was seven and
later became her
legal guardian when she was 12. Moreover,
we have expressly rejected, for purposes of review on appeal, the fanciful
theory that a child is not at risk because only a half-sibling was molested. (Los
Angeles County Dept. of Children & Family Services v. Superior Court (2013)
215 Cal.App.4th 962, 968, 970 (Los
Angeles County) [“The juvenile court’s distinction between a stepdaughter
and a biological daughter is contrary to the holdings and language of the cases
that suggest sexual abuse of one child in the household puts at risk other
children in the householdâ€].) The sexual
abuse of one child may constitute substantial evidence of risk to another child
in the household—even to a sibling of a different sex, age, or a half-sibling. (Id.
at p. 968 [father’s sexual abuse of stepdaughter placed his younger daughter at
substantial risk of abuse].) As we
explained: “[A]berrant sexual behavior
directed at one child in the household places other children in the household
at risk, and this is especially so when both children are females.†(In re I.J., supra, 56 Cal.4th at p. 774; Los
Angeles County, supra, 215 Cal.App.4th at p. 970; In re Ana C. (2012) 204 Cal.App.4th 1317, 1332.)
Because of the father’s severe sexual abuse of Michelle, even
a low probability of abuse warranted the juvenile court assuming protective
jurisdiction over the child. Our Supreme
Court explained: “[T]he more severe the
type of sibling abuse, the lower the required probability of the child’s
experiencing such abuse to conclude the child is at substantial risk of abuse
or neglect under section 300. If the
sibling abuse is relatively minor, the court might reasonably find
insubstantial a risk the child will be similarly abused; but as the abuse
becomes more serious, it becomes more necessary to protect the child from even
a relatively low probability of that abuse.â€
(In re I.J., supra, 56 Cal.4th at p. 778.) Also, there is substantial evidence the sexual
abuse occurred in Michelle’s and the child’s bedroom. There is testimony this occurred while the
child was asleep in the top bunk bed. The
child could have witnessed the aberrant sexual behavior, a jurisdictional
factor under section 300, subdivision (j).
Our Supreme Court has stated, “Also relevant to the totality of the
circumstances surrounding the sibling abuse is the violation of trust shown by
sexually abusing one child while the other children were living in the same
home and could easily have learned of or even interrupted the abuse.†(
supra, 56 Cal.4th at p. 778;
p. 1332.)
C. Removal Order
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. . . . The court shall
also consider, as a reasonable means to protect the minor, allowing a
nonoffending parent or guardian to retain physical custody so long as that
parent or guardian presents a plan acceptable to the court demonstrating that
he or she will be able to protect the child from future harm.†Section 361, subdivision (d) states: “The court shall make a determination as to
whether reasonable efforts were made to prevent or eliminate the need for removal
of the minor from his or her home . . . . The
court shall state the facts on which the decision to remove the minor is
based.â€
The purpose of section 361 is to avert harm
to the child. The parent need not be
dangerous nor the child actually harmed before removal is appropriate. (In re
Cole C. (2009) 174 Cal.App.4th 900, 917; In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, disapproved on
another ground in Renee J. v. Superior
Court (2001) 26 Cal.4th 735, 748, fn. 6.)
The juvenile court may consider both the parent’s past conduct and the
present circumstances. (
p. 917; In re S.O. (2002) 103
Cal.App.4th 453, 461.)
All of our findings analyses concerning the
jurisdictional and disposition proceedings apply with equal force to the
removal order. The father and the child
argue the removal order was not supported by substantial evidence. They argue: the child was never neglected or abused by the
father; the father never molested his six adult daughters; there was no evidence the father had any
substance abuse, domestic violence, mental health, or any other social issues; in
the six years the social worker, Ms. Castellano, visited the family, she did
not have concerns about the father; and Ms. Castellano only stated the child
might possibly be at risk, which is insufficient to support the removal
order. In addition, they argue there was
an alternative to removal. The social
worker could have made unannounced visits to insure the child’s safety. Also, the child was an articulate 10 year old
who was capable of reporting sexual abuse.
When the applicable standard of review is applied, these arguments are
meritless.
Substantial evidence supports the removal
order. Ms. Castellano, the social
worker, initially recommended the child remain with her father. But Ms. Castellano changed the recommendation
after re-interviewing Michelle. Ms.
Castellano observed Michelle was “a lot more open†and provided greater details
about the molestation. Ms. Castellano
believed the child was at risk. The
child was young and around the same age as Michelle when the molestation
commenced.
Additional evidence supports removal based
on the substantial danger to the child’s safety and well-being because of the
father’s prolonged sexual abuse of Michelle.
The father sexually abused Michelle beginning when she was nine. The abuse continued when Michelle returned
from foster care at age 12 and continued until she reported the abuse when she
was 17. The argument that the juvenile
court merely should have ordered unannounced visits as an alternative to
removal is meritless. The father
sexually abused Michelle even while she was a party to an open juvenile court
case. Ms. Castellano visited the family
monthly but was unaware of the father’s aberrant sexual behavior. Equally unmeritorious is the father’s and
child’s speculative contention that removal was unwarranted because if sexual
abuse did occur, she would report it.
The purpose of section 361 is to avert harm to the child. The parent need not be dangerous nor the
child actually harmed before removal is appropriate. (In re
T.V. (2013) 217 Cal.App.4th 126, 135-136; In re Cole C., supra, 174 Cal.App.4th at p. 917.)
V.
DISPOSITION
The jurisdiction
and disposition orders are affirmed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER,
P. J.
We concur:
MOSK, J.
KUMAR, J.
All further references are to the Welfare and Institutions Code unless
otherwise indicated.
of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
