Maxine L. v. Sup. Ct.

Filed 3/29/06 Maxine L. v. Sup. Ct. CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

ORIGINAL PROCEEDING; petition for extraordinary writ. Jacqueline H. Lewis, Juvenile Court Referee. Writ denied.

Kenneth A. Krekorian for Petitioner Maxine L.

Miran Kim for Petitioner Jay L.

No appearance for Respondent.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and O. Raquel Ramirez, Deputy County Counsel, for Real Party in Interest.

Law Offices of Lisa E. Mandel, A Law Firm of Children's Law Center, and Estaire Press for Children.

________________________

INTRODUCTION

Maxine L. and Jay L. petition this court (Cal. Rules of Court, rule 38.1) for relief from an order of the juvenile court terminating reunification services and setting a permanent plan hearing (Welf. & Inst. Code, § 366.26[1]). We deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

Maxine L. is the mother of the four children who are the subject of this dependency action: S.F., born in 1992; A.F., born in 1994; M.F., born in 1997; and Danny L., born in 1999. Jay L. is Danny L.'s father.[2]

The family came to the attention of the Department of Children and Family Services (DCFS) in June 2004, when it was reported that Jay had sexually abused S.F., and that Jay and Maxine had abused all four children emotionally. The parents had a long-term history of domestic violence, and the children were afraid for their mother's life. The children reported that Jay would lock them out of the home after school until their mother returned home, denying them access to the bathroom. Additionally, S.F. reported that Jay touched her inappropriately on several occasions and tried to kiss her by force. M.F. stated that Jay touched her private part with a flashlight, but she was unable to recall much of the incident due to her age. Jay denied any sexual abuse. The Children's Social Worker (CSW) assigned to the case resolved the matter pursuant to a voluntary family maintenance plan. Jay agreed to move out of the family home and Maxine agreed not to allow him to have contact with the three F. children.

When a child custody evaluator from the Family Law Court visited the mother's home in August 2004, she found Jay present, along with the F. children. When she told Jay he was not supposed to be there, Maxine said that she had asked him to be there for the meeting with her. The children reported that he ate dinner at the home and sometimes spent the night. The child custody evaluator discussed the matter with Maxine, who indicated that she did not believe S.F.'s claim of sexual abuse. The child custody evaluator also spoke to S.F., who cried because her mother did not support her. The child custody evaluator reported the matter to DCFS.

The CSW visited the home of the F. children's paternal grandmother, Rosalie R. The children confirmed that Maxine and their maternal grandmother allowed Jay into their home when they were there. They also reported that Jay physically abused Maxine in their presence. Additionally, he was mean to the three of them, while Danny received special treatment. He would lock them out of the house after school, while Danny would stay in the house with him. The F. children had told their mother, but she had not stopped Jay from doing this.

S.F. reported three incidents of sexual abuse by Jay. In October 2003, while she was alone with Jay, he tried forcefully to kiss her on the mouth. She told him to stop, tried pushing and hitting him and ran away from him. Eventually, he apologized and said he would never do it again. He told her not to tell her mother, because she would file for divorce. Then in the beginning of 2004, she woke up at night when someone touched her. She felt a hand touching her inner thigh and moving toward her private area. She saw Jay standing over her; when he saw that she had awakened, he quickly left the room. Later in the year, Jay called her over to him when they were the only ones in the home. He again tried forcefully to kiss her on the mouth with his tongue out. She resisted and went to sit on the living room couch. He went into the living room, spread her legs apart and sat in front of her. He insisted that she give him a back massage while he rubbed her thighs. She pushed his hands away and asked him to leave her alone. S.F. told her maternal grandmother about the incidents. Her maternal grandmother told Maxine. Maxine told S.F. that she confronted Jay, who admitted the incidents. Maxine said that she would leave Jay, but instead she decided to work things out with him.

The CSW went to Maxine's home, where the children's maternal grandmother reported that Maxine and Jay were out of town. Although the maternal grandmother was supposed to be caring for Danny, she did not know where he was, only that he was at a neighbor's home. When the CSW spoke to Danny, he confirmed that Jay lived with them.

After Maxine returned home, she spoke to the CSW. She denied allowing Jay contact with the F. children. When confronted with their statements, she claimed that she allowed him to eat at her home once, but she kept him away from the children. She equivocated as to whether she believed S.F.'s claims of sexual abuse.[3] Maxine attempted to justify Jay's actions in locking the F. children out of the house, explaining that the children went in and out of the house a lot and left the door open.

The CSW took all four children into protective custody on August 27, 2004. She placed them with Rosalie R., the F. children's paternal grandmother, who was willing to care for all four children, although Danny was not related to her.

Maxine and Jay then met with the CSW. They blamed Rosalie R. for the children's detention, claiming that she wanted to break up their relationship. Jay admitted being at Maxine's house only once when the F. children were there. He also admitted domestic violence toward Maxine. He denied sexually abusing S.F., however. He demanded that Danny be placed with his relatives, claiming Danny was in danger at Rosalie R.'s home, since he was not related to her.

DCFS filed a section 300 petition on September 1, 2004. It alleged the children were at substantial risk of serious physical harm due to Jay's sexual abuse of S.F. and physical abuse of S.F., A.F. and M.F, and the domestic violence between Jay and Maxine. (Id., subd. (a).) It further alleged the children were at substantial risk of serious physical harm due to the parents' failure to protect the children, neglect of the children and substance abuse. (Id., subd. (b).) This was based on the sexual and physical abuse and domestic violence, as well as on Jay's locking the F. children out of the house and his history of substance abuse. The petition also alleged sexual abuse, cruelty and abuse of a sibling. (Id., subds. (d)(i), (j).)

At the detention hearing on September 1, 2004, the juvenile court found a prima facie case had been made for detention. It ordered the children detained with Rosalie R. but gave DCFS discretion to place any of the children with other relatives. It ordered DCFS to provide family reunification services. It granted Maxine monitored visitation with the children, while Jay was given monitored visitation with Danny only.

In a report prepared for the jurisdictional/dispositional hearing on October 5, 2004, the CSW reported that Danny had been moved to the home of his paternal great-aunt, Rose D. The CSW had re-interviewed Jay and Maxine. Jay continued to deny any sexual abuse. He claimed that twice when S.F. was crying, he had tried to hug and comfort her. S.F. must have misread his intentions. Jay denied any physical abuse of the F. children and told the CSW that Rosalie R. was putting ideas in their heads. Maxine stated that she did not know what to believe regarding the allegations of sexual abuse. She denied that any physical abuse had occurred.

The CSW also interviewed the F. children. They confirmed that Jay hit them and screamed at them. He never hit Danny or screamed at him, however. The children also saw Jay hit, choke and slap Maxine, pull her hair and hold a knife to her throat. Maxine denied that any of this occurred and suggested that the children said these things because they did not like Jay. Jay acknowledged that he had pushed, slapped and choked Maxine but claimed that the children were not in the same room at the time.

Jay acknowledged a past history of drug abuse and that he had used drugs the past June â€