In re Susana S.

Filed 8/2/06 In re Susana S. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from orders of the Superior Court of San Diego County, Cynthia Bashant, Judge. Affirmed.

Maria F. appeals the juvenile court's orders sustaining Welfare and Institutions Code^[1] section 387 supplemental petitions with respect to her daughters, Susana S. and Beatriz L., and removing them from her custody. Joaquin H. appeals the court's orders sustaining a section 342 petition with respect to his son, Jose H., removing the child from his and Maria's custody and denying him unsupervised visitation.^[2] Maria contends there was insufficient evidence to sustain the supplemental petitions regarding Susana and Beatriz and the removal orders. Joaquin similarly contends substantial evidence did not support the court's orders regarding the section 342 orders.^[3]

FACTUAL AND PROCEDURAL BACKGROUND

On February 2, 2004, Joaquin was arrested for domestic violence after he punched Maria and pulled her hair. Calling the incident "a misunderstanding," Maria told a social worker that Joaquin had not hit her; rather she hit herself on the door. However, Susana, then 15 years old, said Joaquin had been hitting Maria for several years. Susana was "fed up" with the domestic violence and called the police. Susana also reported that when she was 13, Joaquin got in her bed and touched her breasts over her clothes. Susana kicked Joaquin out and told Maria, who said Joaquin was drunk. Maria and Joaquin argued, and she made Joaquin leave the home, but Maria later let him return.

Maria agreed to an open voluntary case plan with the San Diego County Health and Human Services Agency (Agency). Despite participating in services, Maria refused to get a restraining order against Joaquin. On April 14, 2004, Joaquin was released from jail and returned home.

On April 22, 2004, Agency filed dependency petitions under section 300, subdivision (b), alleging Maria and Joaquin exposed the children to domestic violence. The next day, the juvenile court detained the children with Maria and issued a restraining order against Joaquin. On April 27, a social worker made a home visit and found Joaquin there. The social worker took the children into protective custody. On May 12, 2004, Maria and Joaquin submitted on the petitions, and the court sustained them, finding the allegations to be true by clear and convincing evidence.

On June 3, 2004, the court declared the children dependents, removed them from parental care, and ordered Maria and Joaquin to comply with their respective case plans.

At the six-month review hearing on November 8, 2004, the court found Maria and Joaquin had made substantive progress with their case plan provisions, ordered six more months of services, and authorized unsupervised visitation for Maria and Joaquin with the caveat that they not visit the children together. The court also gave the social worker discretion to begin supervised overnight visits with Maria, including a 60-day trial visit.

In March 2005, Susana, who was pregnant, began a 60-day trial visit with Maria. Beatriz was to begin a trial visit at the end of April, but she refused to return home, participate in therapy, and attend her intake appointment at the Safe Paths program. Beatriz also refused to remain in her foster placement, and she was placed at Polinsky Children's Center, where she was involved in physical altercations, cursed at the staff, and disobeyed directives.

At the 12-month permanency hearing on May 12, 2005, the court found Maria and Joaquin had made substantive progress with their case plans, ordered six more months of services and placed Susana with Maria. The court ordered Beatriz, Jose and Aleida to remain in foster care. Beatriz chose to stay at Polinsky Children's Center.

On July 9, 2005, Jose began a 60-day trial visit with Maria. On August 5, Beatriz began a 60-day trial visit.

Jose was "glad to be back at home," but he was physically and verbally aggressive toward Maria. Beatriz displayed "acting out behavior." She spent several days on psychiatric hold for attempting to overdose. Beatriz said she "likes to be 'bad' because being good is not fun." The social worker opined that Beatriz acts out "as a way to deal with her boredom."

On August 25, 2005, Agency discovered that Joaquin had moved back into the family home several weeks earlier without court authorization. Joaquin, who said the household was chaotic, agreed to move out immediately. The social worker allowed the three children to remain at home because no new domestic violence incidents between Maria and Joaquin were reported. The social worker also recommended that all the children, including Aleida, be returned home and the family receive in-home services for six months "[d]espite the difficulties Beatriz and Jose have been having in returning to their mother's care."

At the 18-month review hearing on October 26, 2005, Aleida was returned home for a 60-day visit and Joaquin requested a hearing to allow him to move back in the family home.

In early November 2005, Susana as well as Beatriz told the social worker that Jose displayed sexualized behavior toward Aleida. According to Susana, Jose touched Aleida on her buttocks and vagina over her clothes. Jose had Aleida sit on his torso and then he made a humping motion. Susana told Jose to stop, but he ignored her. Jose also tried to be alone with Aleida in the bedroom and bathroom. According to Susana, when Aleida told Maria that Jose had touched her vagina and chest, Maria suggested to Aleida that Jose had merely touched her legs. Maria, who let Jose sleep with her and Aleida, denied ever observing any inappropriate sexual play between Jose and Aleida. When the social worker directed Maria to have Jose sleep in the living room, Maria agreed, but did not follow through with the directive.^[4]

Susana also related that in the past Joaquin acted inappropriately toward her; for example, he told her that he "loved her as a woman" and asked her not to call him "dad" because he did not view her as a daughter. Additionally, Susana recounted the incident in which Joaquin came home drunk one night and got into bed with her. Susana said after Joaquin indicated she should be quiet, he caressed her breast over her pajamas. Joaquin denied any sexual behavior involving Susana. He said the incident in which he got in bed with Susana was a mistake; he was drunk and thought he was getting in bed with Maria. The social worker referred Joaquin to the Safe Paths program, but he was not admitted because he did not take responsibility for any molestation.

The social worker also was concerned that Susana's boyfriend, Oscar B., who was living in the home, added to the chaotic conditions there. Maria complained that Oscar hit Beatriz; Beatriz said she hit him back. Beatriz continued to act out aggressively and at one point was hospitalized in a psychiatric facility for attempting to overdose on some pills. Maria had limited success ensuring Beatriz took her prescribed medication.

On November 8, 2005, Agency filed a section 342 petition behalf of Jose, alleging he was suffering serious emotional damage (§ 300, subd. (c)) as shown by his touching his sister on the buttocks and vagina, and attempting to climb on top of her. Agency also filed section 387 supplemental petitions on behalf of Susana, Beatriz and Aleida, alleging the previous disposition had been ineffective in protecting the children and seeking to remove them from Maria's home. The social worker recommended all the children be removed from Maria's custody with a permanent plan of long-term foster care for Susana, Beatriz and Jose, and a permanency planning hearing under section 366.26 be set for Aleida. The court ordered all of the children detained in out-of-home care.

In November 2005, Susana gave birth to a baby girl. Beatriz had stabilized and was taking her medication. Jose stopped his aggressive and negative behavior. Over the Christmas weekend, Beatriz attempted to run away from her group home, but was stopped by staff. Beatriz told the social worker she no longer wanted to be "in the system."

On February 16, 2006, the contested hearing on the section 342 petition and the section 387 petitions was held.

Social worker Gloria Escamilla-Huidor, who was assigned to the case in May 2005, testified about her concerns with returning the children to Maria's custody. Escamilla-Huidor was skeptical that Maria, who relied on Joaquin for financial and emotional support, would be able to keep him away from the children - even if ordered by the court - because she had failed to do so in the past. Although Joaquin's molestation of Susana occurred at least four years earlier and he had made positive changes in his lifestyle since then, Escamilla-Huidor believed Joaquin needed to complete a program for sex offenders.

The social worker opined that Susana would be at risk if returned home because Maria would not be protective in "the domestic violence dynamics that were occurring with Susana and her [boyfriend]." Escamilla-Huidor testified that Maria had failed to be protective when Beatriz was on her 60-day trial visit. Maria did not know how to handle Beatriz's refusal to regularly attend school and Beatriz's not coming home at night, which took place occasionally. Further, Maria failed to make Beatriz take her prescribed medication on a regular basis. The social worker opined Beatriz needed a more structured living arrangement than the one provided by Maria.

Escamilla-Huidor testified Jose was at risk if returned home because he was aggressive with Maria and sexually acted out with Aleida, and Maria did not properly deal with those behaviors. Maria did not follow through with the social worker's recommendation that Jose and Aleida sleep in separate rooms. Despite having intensive family preservation services after the children were returned, Maria's household was chaotic and unstructured, the social worker said.

Susana testified that she wanted to live with Maria. She was no longer afraid of Joaquin because he was no longer drinking and he was going to church. Susana had not had contact with her boyfriend since being removed from the family home.

Joaquin testified he had stayed overnight with Maria when he was released from jail in April 2004. Since then, Joaquin said he had been to Maria's home twice, staying overnight only one time with Maria and the children in the home. Joaquin said in August 2005 he spent one night in the home to see the problems in the household and help Maria in dealing with them after she said she needed his help. Joaquin testified he wanted to live in the home with Maria and the children. Maria and he now communicated better about their problems, and the children wanted both parents there. Joaquin said he no longer drank and knew he was responsible for his own actions. Asked if he needed to address past problems by attending a sex offender program, Joaquin replied: "If the social worker requires it, I . . . have to do it." Under further questioning, Joaquin said such a program would help him deal with issues in his life.

The parties stipulated that if Beatriz were to testify, she would state that Joaquin was in the home on at least four consecutive nights during her trial visit.

The court sustained the section 342 petition and the section 387 petitions. The court observed that the household was very chaotic. The court said "[t]hings were out of control" to such "a point where it wasn't safe for the children anymore. It wasn't safe for Beatriz and Susana and Jose and Aleida to be in the home because no one was controlling things." The court removed Susana, Beatriz and Jose from Maria's custody and placed them in foster care. The court noted that throughout their lives, the children had been exposed to a pattern of domestic violence and sexual abuse and it appeared "this pattern [was] continuing with the children where there is more domestic violence and sexual acting out behavior." The court set a section 366.26 hearing for Aleida.

DISCUSSION

I. Section 342 Petition

Joaquin contends the juvenile court's findings and orders regarding Jose's section 342 petition were not supported by substantial evidence. The contention is without merit.

A subsequent petition under section 342 is filed by Agency to allege new facts or circumstances about a dependent child that constitute an additional ground to adjudge the child a dependent. (Kimberly R. v. Superior Court (2002) 96 Cal.App.4th 1067, 1075.) The procedures, hearings, and burden of proof for a subsequent petition are the same as those required for an original petition. (See Cal. Rules of Court, rule 1430(b).) The burden of proof for a petitioner in a dependency proceeding is a preponderance of the evidence. (In re Amy M. (1991) 232 Cal.App.3d 849, 859.)

We review dependency findings for substantial evidence. (In re Shelley J. (1998) 68 Cal.App.4th 322, 329.) In reviewing the jurisdictional findings and the disposition, we look to see if substantial evidence, contradicted or uncontradicted, supports them. (In re Tania S. (1992) 5 Cal.App.4th 728, 733.) In making this determination we (1) draw all reasonable inferences from the evidence to support the findings and orders of the juvenile court, (2) review the record in the light most favorable to the lower court's determinations, and (3) note that issues of fact and credibility are the province of the trial court. (Ibid.)

Agency filed the section 342 petition on behalf of Jose after it learned of Jose's sexualized behavior toward his sister, Aleida. The petition alleged Jose was suffering serious emotional damage, requiring mental health treatment, and his parents had failed to provide such treatment. (See § 300, subd. (c).)^[5] Thus, the petition set forth an additional ground for juvenile court jurisdiction - namely, section 300, subdivision (c) - for Jose, who originally became a dependent child of the court under section 300, subdivision (b).

After a contested hearing, the court found Agency had proved the allegations of the petition by a preponderance of the evidence. Substantial evidence supported the court's finding that Jose was a child described by section 300, subdivision (c).

As to the allegations of Jose's sexualized behavior toward his younger sister, Susana and Beatriz reported they witnessed Jose touching Aleida buttocks, vagina, and chest. Susana also observed Jose making a humping motion after directing Aleida to sit on his torso. There also was substantial evidence of the parents' inability to provide appropriate mental health treatment for Jose. Maria did not acknowledge Jose's sexualized behavior toward his young sister and failed to take measures to stop it from continuing. Maria denied the abuse occurred and was either unwilling or unable to follow the social worker's directive that Jose not sleep in the same bedroom as Aleida. Further, there was no evidence that after Jose's sexualized behavior started, Maria sought to obtain specialized mental health treatment for Jose. As to Joaquin, he had not enrolled in a sex offender treatment program because he was in denial about allegations that he had sexually abused Susana and did not want to be labeled as a molester. The court could reasonably conclude that Joaquin would be less than diligent in obtaining mental health treatment for Jose's mental health problems involving sexualized behavior. Given Maria's denial or minimization of Jose's sexualized behavior and Joaquin's denial of his own problem in this area, it was reasonable for the court to conclude that it was unlikely either parent would seek appropriate and consistent mental health treatment for Jose.

Relying on In re Brison C. (2000) 81 Cal.App.4th 1373, 1379 and In re Alexander K. (1993) 14 Cal.App.4th 549, 557, Joaquin argues that in order to sustain a petition under section 300, subdivision (c) there must be a causal link between the child's serious emotional damage and the parent's offensive conduct, and there was no showing that his past misconduct caused Jose's sexualized behavior. Joaquin is mistaken.

Section 300, subdivision (c), sets forth two alternate situations that call for juvenile court intervention if a child is suffering serious emotional damage. The first scenario occurs when a parent's action has caused the child's serious emotional damage. The second scenario occurs when the child's serious emotional damage has not been caused by a parent's action; rather, the parent is unable to provide appropriate mental health care. (§ 300, subd. (c) [suffering serious emotional damage "as a result of the conduct of the parent . . . or who has no parent . . . capable of providing appropriate care"], italics added.)

In In re Brison, supra, 81 Cal.App.4th 1373, and In re Alexander K., supra, 14 Cal.App.4th 549, the sole theory of jurisdiction was that parental fault caused the child's emotional damage; the cases did not involve the inability-to-parent prong of section 300, subdivision (c). In this case, it was alleged that Jose suffered from serious emotional damage and his parents were unable to provide adequate mental health treatment, and therefore no causal link was necessary. Thus, In re Brison, supra, and In re Alexander K., supra, are distinguishable from this case.

Also unavailing is Joaquin's reliance on In re Rocco M. (1991) 1 Cal.App.4th 814, 824, in which the Court of Appeal held that the question for the juvenile court at a jurisdictional hearing conducted "under section 300 is whether circumstances at the time of the hearing subject the [child] to the defined risk of harm." Joaquin argues that there was no evidence that Jose's sexualized behavior existed on February 16, 2006, when the contested hearing on the section 342 petition was held.

However, In re Rocco M., supra, 1 Cal.App.4th 814 is distinguishable. That case involved a finding under section 300, subdivision (b) that the 11-year-old child was at substantial risk of physical harm because of his mother's failure or inability to adequately supervise or protect him. (Id. at pp. 816-818.) The dependency petition alleged the mother's ability to adequately protect her son was impaired because of her substance abuse problems as evidenced by her leaving the child in the care of (1) a relative who was arrested that day for possession of heroin and methamphetamine, and (2) her friend, who kicked the boy in the stomach. (Id. at p. 817.) Rather than relying on one-time incidents, the Court of Appeal affirmed the juvenile court's dispositional order on the ground that the evidence warranted a finding of substantial risk of serious physical injury based on the mother's creation of a home environment in which her 11-year-old son had ready access to illicit drugs and the potential motives to begin abusing drugs himself. (Id. at p. 825.) In contrast, this section 300, subdivision (c) case did not involve the future risk of Jose suffering from serious emotional damage; rather, at issue was Jose's current emotional problems as shown by his repeated sexual touching of his four-year-old sister and inappropriate attempts to engage her in sexualized behavior, and his parents' inability to provide him with appropriate care. In re Rocco M., supra, recognized this distinction: "While evidence of past conduct may be probative of current conditions, the question under section 300 is whether circumstances at the time of the hearing subject the [child] to the defined risk of harm." (In re Rocco M., supra, 1 Cal.App.4th at p. 824, italics omitted.) The Court of Appeal continued, "Thus the past infliction of physical harm by a caretaker, standing alone, does not establish a substantial risk of harm; '[t]here must be some reason to believe the acts may continue in the future.' [Citations.]" (Ibid.) Even though the hearing took place more than three months after Jose was removed, there was ample reason to believe Jose's inappropriate sexualized behavior might continue in the future. The record contains substantial evidence for a reasonable trier of fact to conclude Jose continued to suffer serious emotional damage and his sexualized acts might continue in the future without court intervention. Jose had not completed a treatment program to address his sexualized behavior in the meantime. Moreover, Maria had minimized Jose's sexualized behavior, and Joaquin had consistently resisted a sex offender treatment program for himself. Joaquin's testimony at trial that he would enroll in such a program if it was required was less than overwhelming. The parents' past actions and their attitude at trial are strong indications that they likely would fail to provide adequate mental health treatment for Jose in the future.

Joaquin also challenges the court's order removing Jose from the family home under section 361, subdivision (c)(1). Section 361, subdivision (c)(1) provides that a child may not be taken from his or her parent's custody unless the court finds by clear and convincing evidence that "[t]here is . . . a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor . . . ." The juvenile court's determination under section 361 must be upheld if supported by substantial evidence. (In re Henry V. (2004) 119 Cal.App.4th 522, 529.) Under the substantial evidence test, we must view the evidence in the light most favorable to the court's order. (Kimberly R. v. Superior Court, supra, 96 Cal.App.4th at p. 1078.)

Substantial evidence supported the removal order. In addition to the evidence set forth ante, social worker Escamilla-Huidor opined that the children were at high risk of neglect and abuse if they were returned home. Escamilla-Huidor qualified as an expert witness. (See In re Luke M. (2003) 107 Cal.App.4th 1412, 1427; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1420-1421.) Escamilla-Huidor pointed out that Maria failed to understand what it meant to be an appropriate and protective parent for her children. Further, once the children were returned after their first removal, chaos prevailed in the household - whether or not Joaquin was there. Jose not only sexually acted out with Aleida; he also displayed aggressive behavior toward Maria and Beatriz. There was no evidence that the parents could adequately supervise Jose. Joaquin's suggestion that if Jose were returned he would be the only child in the home is at best speculative. Although it appeared from the record that Joaquin would be returning to the family home after the hearing, there was no showing that he could have alleviated the chaotic household situation if the older three children were living there.

Joaquin argues that the court erred by denying him unsupervised visitation with Jose. We disagree.

The juvenile court defines a parent's visitation rights. (In re Donnovan J. (1997) 58 Cal.App.4th 1474, 1476.) The standard of reviewing a visitation order is abuse of discretion. The test is whether any rational trier of fact could conclude that the visitation order advanced the child's best interests. (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.) To find an abuse of discretion, a reviewing court would have to conclude that the court's ruling exceeded the bounds of reason. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) We find no abuse of discretion.

II. Section 387 Petitions

Maria contends there was insufficient evidence to sustain the section 387 supplemental petitions and remove Susana and Beatriz from her custody. The contention is without merit.

A supplemental petition is filed by Agency to obtain an order removing a dependent child from the parent's physical custody and directing placement out of the home on a showing that the previous disposition has not been effective in protecting the child. (§ 387, subds. (a) & (b); Cal. Rules of Court, rule 1430(c).) When a section 387 petition has been filed, Agency must prove the jurisdictional facts by a preponderance of the evidence. (In re Jonique W. (1994) 26 Cal.App.4th 685, 691.) In a section 387 proceeding, the ultimate "'jurisdictional fact' . . . is that the previous disposition has not been effective in the rehabilitation and protection of the [child]." (In re Joel H. (1993) 19 Cal.App.4th 1185, 1200.) "[T]he goal is to protect the child from some perceived danger or actual harm." (Id. at p. 1201.)

As indicated in part I, ante, when a dependency order is challenged on the ground that it is not supported by the evidence, we review the record for substantial evidence, contradicted or uncontracted, to support the order. (In re Tania S., supra, 5 Cal.App.4th at p. 733.) We view the evidence in the light most favorable to the juvenile court's order, drawing every reasonable inference and resolving all conflicts in favor of the prevailing party. (Ibid.)

Substantial evidence supported the court's jurisdictional findings sustaining the section 387 supplemental petitions - that is, Maria had been ineffective in protecting Susana and Beatriz after they were returned to her custody. Maria was either unable or unwilling to provide structure for the children; she allowed matters to become out of control. Maria allowed Susana's boyfriend to move in and was unable to control him. The boyfriend slapped and punched Susana in front of the other children and also hit Beatriz. The presence of the boyfriend added to the chaos in the household, and Maria was either unable or unwilling to address it. When the social worker instructed Maria to tell the boyfriend he had to move out, she failed to do so, leaving it to Susana to tell her boyfriend he could not stay there. Afterward, Maria asked Susana why she kicked out her boyfriend.

As to Beatriz, she was acting out, hitting her siblings and verbally abusing them. Maria was unable to control her behavior. Beatriz, who at one point was hospitalized after an attempted overdose, also was inconsistent in taking her prescribed medications. After Beatriz's discharge from the hospital, Maria was unable to make Beatriz take her prescribed medications on a regular basis.

There also was substantial evidence supporting the order removing Susana and Beatriz from Maria's care. As indicated in part I, ante, under section 361, subdivision (c)(1) a child may not be taken from the custody of the parent unless the court finds by clear and convincing evidence that "[t]here is a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor . . . ." Social worker Escamilla-Huidor testified that both Susana and Beatriz were at risk of harm if they remained in Maria's care because she was unable to protect them, provide a living environment with the structure the teenagers needed, and deal with the many problems that arose in the household.

Escamilla-Huidor doubted that Maria would keep Joaquin, who had not enrolled in a sex offender program, out of the home based on her past performance. Maria, who was financially and emotionally dependent on Joaquin, had allowed him to stay overnight on numerous occasions despite court orders that she keep him out of the home. Although Susana was no longer afraid of Joaquin, Beatriz was at approximately the age that Susana had been when Joaquin molested her.

The social worker also opined Maria, who herself was a domestic violence victim, would not protect Susana from domestic violence with her boyfriend. Escamilla-Huidor also doubted that Maria would be able to keep the boyfriend out of the home.

Escamilla-Huidor also pointed out that Maria was unable to address Beatriz's truancy and often was not aware of where Beatriz was. When Beatriz, without permission, failed to come home at night, Maria did not know how to address it. Sometimes, "the limit of a parent's capabilities to meet a child's special needs may be reached and the child, through no lack of effort on the parent's part, requires a more structured environment or greater intervention than can be provided in the home." (In re Javier G. (2006) 137 Cal.App.4th 453, 459-460.) This is such a case. After 18 months of services, Maria was unable to provide the necessary structure for her children.

Maria's argument that placing Susana and Beatriz in the foster care system would not be a better alternative than removal is speculative.

DISPOSITION

The orders are affirmed.

HALLER, Acting P. J.

WE CONCUR:

McINTYRE, J.

IRION, J.

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^[1] All statutory references are to the Welfare and Institutions Code.

^[2] Joaquin and Maria are the parents of Jose and Aleida H. Susana and Beatriz are the older half-sisters of Jose and Aleida. The dates of birth of the children are: Susana, November 1988; Beatriz, March 1991; Jose, June 1996; and Aleida, May 2001. Aleida's dependency case is not at issue in this appeal; facts concerning her will be discussed when relevant.

^[3] Maria joins in Joaquin's arguments "[t]o the extent they inure to [her] benefit." Likewise, Joaquin joins in Maria's arguments "[t]o the extent they inure to [his] benefit." (See Cal. Rules of Court, rule 13(a)(5).)

^[4] In addition to his sexualized behavior with Aleida, Jose acted out aggressively with Beatriz and Maria.

^[5] Section 300 reads in pertinent part: "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: [¶] . . . [¶] (c) The child is suffering serious emotional damage . . . evidenced by severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others, as a result of the conduct of the parent or guardian or who has no parent or guardian capable of providing appropriate care. . . ."