In re B.T









Filed 2/9/11 Certified for publication as modified 3/11/11 (order attached)






IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

In re B.T., a Person Coming Under the Juvenile Court Law.
ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. DEBRA T., Defendant and Appellant.	G044165 (Super. Ct. No. DP019665) O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Dennis J. Keough, Judge. Reversed and remanded with directions.
Pamela Rae Tripp, under appointment by the Court of Appeal, for Defendant and Appellant.
Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minor.


INTRODUCTION
B.T., the child who is the subject of this appeal, was conceived during an unlawful sexual relationship between Debra T., an adult, and Miguel M., a minor. Debra was arrested for this relationship when B.T. was not yet five months old; Orange County Social Services Agency (SSA) thereupon detained not only B.T., but Debra's three other children, ages 17, 12, and 9, on the grounds of substantial risk to them of neglect and sexual abuse by Debra. After the subsequent hearing for B.T. in August 2010, the juvenile court found that it had jurisdiction over B.T., based on a risk to her of sexual abuse and neglect, and awarded Miguel full legal and physical custody, with monitored visits by Debra.[1] Debra appeals these rulings.
We reverse. After carefully examining the record, we cannot find substantial evidence to support the juvenile court's jurisdiction over B.T. at the time the findings and orders were made. There was no evidence that Debra was likely to abuse or neglect B.T. On the contrary, she had an exemplary track record of child-rearing. While her relationship with Miguel certainly reflected poorly upon her judgment in one area, nothing suggested that it would cause her to neglect or abuse her baby daughter, especially since there was no evidence at all of any past abuse of her three other children, or of any other children.
Because we reverse the finding of jurisdiction, we need not decide the propriety of awarding full legal and physical custody to Miguel.
FACTS
Debra was 38 years old and married to Jesse T. when she began a relationship with her neighbor's 14- or 15-year-old son, Miguel.[2] Miguel was friends with Debra's elder son, and the two extended families had been close for many years. Debra and Elsa, Miguel's mother, had known each other since they were children; their houses were two doors apart. Debra had known Miguel from his infancy. Debra's two younger children, Robert and Sabrina, were also good friends with Miguel's family. Jesse's brother was Elsa's live-in boyfriend.
The origin of the relationship between Debra and Miguel was disputed. Miguel had two pre-trial versions of what happened. He told the Santa Ana police officer who interviewed him on March 14, 2010 (the day his mother reported Debra to the police), that the relationship had begun approximately a year before, with Debra asking him to call her. He went to her house at her request one night, presumably sometime in March or April 2009, and they had sexual intercourse. Miguel told the police officer he and Debra had sex twice approximately every other weekend for about six months. He agreed with the officer, who consulted a calendar to count the weekends during that period, that he and Debra had had sex somewhere between 20 and 30 times. He asserted that the sex was consensual, and no drugs or alcohol was involved on either side. He stated Debra later told him she was pregnant, and he stopped having sex with her about a month before she gave birth. Although the officer asked Miguel to telephone Debra and talk about their sexual relations, Miguel declined. He did not want to talk to her, and he did not believe she would talk to him.
When a social worker interviewed Miguel on April 12, 2010, however, he told a somewhat different story. In this interview, he maintained that Debra had begun the relationship in early September 2008, while he was 14,[3] when Debra told him to call her. They communicated by phone and by letter. Finally, they had sexual intercourse late at night, in the living room of Debra's house while her family were asleep. (In this interview, Miguel did not specify a date or a time period when the sexual intercourse began.) Miguel stated he slipped out of his house at night and went to Debra's house, where he stayed for four or five hours before sneaking back into his own home. He reiterated that the sex was consensual, without any pressure from Debra, and said they had had sex about 30 times.
Debra's story was different altogether. She claimed Miguel was the instigator, and they had had sex only three times. She had been intoxicated the first time and had realized only afterward that Miguel had had sex with her. The other two times, according to Debra, occurred when Miguel came to her house when he knew she was alone. She claimed to have remonstrated with him on both occasions, but to no avail. She admitted she had not reported Miguel to the police. She also admitted she regularly drank beer at night.
Miguel's and Debra's baby, B.T., was born prematurely (at 30 weeks) in late November 2009. B.T. went home with Debra, who took care of her, along with Debra's three other children. Miguel saw B.T. twice between November 2009 and April 2010. A DNA test, which Elsa arranged in early February 2010, established he was B.T.'s father. Elsa stated she had learned about B.T.'s paternity from Miguel while Debra was still pregnant with B.T.
On March 14, 2010, Elsa reported Debra to the police for molesting Miguel. Debra was arrested on March 23 and charged under Penal Code sections 266c (unlawful sexual intercourse) and 288, subdivision (b)(2) (caretaker lewd and lascivious acts). Debra was released on bail. Debra's husband, Jesse, who had separated from her in May 2009, moved back into the family home in order to help care for the children after her arrest.
SSA became involved and detained all four children under Welfare and Institutions Code section 300, subdivision (b) on April 12, 2010.[4] A petition was filed on April 14. SSA alleged the children's physical or emotional health was in substantial danger because of their mother's arrest and alcohol abuse, while Jesse was at fault for allowing Debra to live in the same house with the children after knowing about her alcohol abuse and misconduct with Miguel. An amended petition was filed on May 13, 2010, adding allegations under section 300 subdivision (d) that the children were at risk of being sexually abused by Debra.
Eventually the three older children were sent to live with Jesse's parents, where Jesse eventually was allowed to join them, while B.T. went to the Orangewood facility. B.T. was ultimately placed with Miguel and Elsa. Debra was allowed monitored visits with B.T. twice a week. The older children were included in some of these visits.
A hearing took place on August 17 and 18, 2010. Five SSA reports were admitted into evidence. Miguel testified; Debra did not. Miguel stated he was going into the 10th grade and had no source of income. He did not participate in B.T.'s prenatal care at all, was not present at the hospital when she was born, and first saw B.T. approximately two or three weeks after her birth. In the more than four months before B.T. came to live with Miguel and his mother, he saw her twice, and had made no effort to be involved with her upbringing during that time. As of the date of the hearing, he had never taken B.T. to the doctor and did not know the name of her pediatrician. His mother bought B.T.'s supplies, such as formula and diapers; he sometimes accompanied his mother on these shopping trips. He did not know the correct date of B.T.'s birth. B.T. was in day care while Miguel was in school. He expected to be involved in after-school sports – football and basketball – once school started up again at the end of August. Each of these sports had practice for two hours every day during their respective seasons. He could not exactly remember when B.T. came to live in his house; he thought it was either January or March 2010.[5] During the part of the school year when B.T. resided at his house, he fed her once a day. If she woke up during the night, his mother got up to care for her. He attended a parenting class twice, but did not learn anything from it. He was signed up for another parenting class at the time of the hearing. He had no plans for the future other than to take care of B.T.
Miguel's testimony about his relationship with Debra did not match either his statements to the police officer in March or the social worker in April. He could not remember when or how the relationship had become sexual until prompted by SSA's counsel. He gave new details about how the relationship started – Debra licked his neck and kissed him in his grandmother's pool.[6] SSA's counsel asked him how many times he and Debra had had sexual intercourse; Miguel did not know. Twenty times? Thirty times? Forty times? Miguel replied â€