Filed 1/10/18 In re L.V. CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE


In re L.V. et al., Persons Coming Under the Juvenile Court Law.
CONTRA COSTA COUNTY BUREAU OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
LETICIA V.,
Defendant and Appellant.

A151463

(Contra Costa County
Super. Ct. Nos. JV17-00142,
JV17-00143, JV17-00144, JV17-00145)


Mother appeals the dispositional order removing her four daughters (L.V. age 16, B.V. age 14, B.M. age 8, and T.M. age 4) from her custody and ordering supervised visitation. She contends there is no substantial evidence to support the court’s finding that removal of the children was necessary to protect the physical health, safety, protection, or physical or emotional well-being of the children. We agree and shall reverse the dispositional order.
Factual and Procedural History
On January 23, 2017, B.V. was apprehended by the Contra Costa County Police Department three days after running away from home. When questioned by the police, B.V. cried and said she did not want to go home. She told the officers that she “does not feel safe going home. Her parents are too strict and her stepdad [E.M.] is physically abusive.” She also indicated that she had a boyfriend of whom her mother disapproved. When questioned by a second officer about her relationship with E.M., B.V. said the relationship was “not good” and that she did not get along with him anymore because when she was younger, he tried to rape her. She reported that between the ages of 11 and 12, E.M. raped or digitally penetrated her on numerous occasions. B.V. told the officers that she had seen E.M. sexually abuse her older sister. Officers interviewed L.V. the same afternoon. When asked about B.V.’s relationship with E.M., L.V. told the officers that they “do not get along. [B.V.] has a bad attitude and gets mad easily. [B.V.] does not like to be told what to do by [E.M.] and will always have a bad attitude towards him. The issues between [B.V. and E.M.] started when [B.V.] started going to middle school and was around 11 or 12 years old. [E.M.] has hit [B.V.] but it is not all the time.” When asked if E.M. touched B.V. in any other way, L.V. said no. L.V. said that B.V. had never told her about any inappropriate touching other than “sometimes when they are horse playing, [E.M.] will smack her ass.” After a brief break, the officer talked to L.V. about how B.V. “came forward about being sexually abused” by E.M. When the officer told L.V. that her sister cared for her and was concerned for her, L.V. “stated ‘OK you know what. I’m gonna be honest. It’s hard for me because it’s my mom and it’s the guys she likes.’ She started to tear up and then stated, ‘That’s my sisters’ dad and I don’t want her living without her father. I know how it is to go without your dad . . . but . . . it is true. It did happen a couple of years ago. It stopped. We all said we would forget that and move on. It has been two years.” When the officer asked her “how her mom would feel if she knew,” L.V. replied that “her mother is aware of what happened because [L.V. and B.V.] told her mother what happened. Her mother confronted [E.M.] and he admitted to touching her. He stated he would never do it again and apologized to her and [B.V.]” The abuse stopped after that.
E.M. was arrested on January 23 and charged with lewd and lascivious acts with a child under 14, continuous sexual abuse of a child, and sexual penetration with a victim under 14. Mother was at the police department at the time of his arrest and assisted the officers in locating him.
The following day the detective was told the older daughters wanted to speak with him. When the detective interviewed L.V. she told him that when B.V. returned home the night before, “the two of them talked about what happened. [B.V.] started crying and . . . told her she had lied to the police about what happened with her stepfather. [B.V.] lied because her boyfriend forced her to lie about their stepfather so [B.V.] and [her boyfriend] don’t get in trouble for having sex. [L.V.] also stated that she lied . . . and her stepfather never did anything to her either. She lied because she was concerned and thought to herself, ‘What if it happened to [B.V.]?” However, when asked how she felt about him “touching her” she stated, “I’m not gonna say that I don’t care but to me that’s over. He stopped and everything changed.”
The detective also interviewed B.V. a second time. She told him that when she returned home and her mother told her that E.M. was in jail she “felt bad.” She told the detective she had lied about what her stepfather did to her. She did not want to tell the detective that her boyfriend told her to lie because if “the police start giving him problems then he would hurt her.” When asked if she deserved to be touched by her stepfather, she said “No, but that was years ago.”
When the detective took the girls home following their interviews, Mother asked the police detective for information about bailing E.M. out of jail and “how to put money on his ‘books.’ ” Concerned that she might not believe that her children had been abused, the detective interviewed Mother that afternoon. Mother then reported that “she spoke with her daughters [that] morning and they both told her that it did not happen and they lied to the police.” The detective responded that he had “determined the incidents did occur.” The summary of the police report continues, “I confronted [Mother] with the fact that [L.V.] told me that she had informed her two years ago that [E.M.] was touching them inappropriately. At first she denied that ever happened. I provided her with the details of the day [L.V.] told her what was happening. [Mother] then told me she remembered when [L.V.] told her that when she and [B.V.] would play with [E.M.] he always smacks them on their butts. She confronted [E.M.] and they got into an argument. Afterwards, [E.M.] asked for forgiveness. [B.V. and L.V.] have never told her that they were raped or touched inappropriately. She questioned them numerous times this morning and they told her it never happened. [¶] I told [Mother] that I believe she thinks [B.V. and L.V.] are lying about being touched inappropriately. I confronted her with the statements she made to me earlier about posting bail for [E.M.] and putting money on his books in jail. She stated she asked me those things because her daughters kept telling her that he is innocent but after thinking about it she did not want to bail him out anymore. I then explained to her that if I believe she is not doing everything she can to protect all her children then I will take temporary custody of them. She stated she understood and her daughters are her number one priority.” The detective indicated that he had contacted a victim advocate and when Mother expressed concern that E.M. was the only family member that worked, the detective advised her that the victim advocate will provide her with resources that might be able to help her.
On January 31, the detective reported the allegations of abuse to the Contra Costa County Bureau of Children and Family Services (the bureau). The following day, he requested the social worker meet him at the Children’s Interview Center. He explained that based on an interview with B.M., he had reason to believe that Mother was not being protective and he intended to sign an authorization for temporary custody. According to the detective, during the course of the interview with B.M. she made several “I don’t know and I don’t remember” statements as well as other statements which led him to suspect that she had been coached by her Mother prior to the interview. B.M. also disclosed that she overheard her Mother telling her older siblings “this never happened.” The detective also reported that the victim’s advocate had attempted to contact Mother to speak with the older siblings and Mother had refused.
When the social worker interviewed the Mother on February 1, 2017, Mother reported that “she did not know about the sexual abuse that was taking place in her home . . . . [S]he only knew about the time they reported [E.M.] was ‘slapping their butts.’ ” The social worker indicated without elaboration that “it is suspected that Mother has been in contact with [E.M.] through a family member.” Mother denied that she has had contact with E.M. and indicated that she no longer wanted to post his bail. Mother acknowledged that she was pregnant with E.M.’s child.
On February 3, 2017, the bureau filed a dependency petition on behalf of the minors alleging that they came within the provisions of Welfare and Institutions Code, section 300, subdivisions (b), (d) and (j). With respect to B.V. and L.V., the petition alleged, among other things, that the girls had been sexually abused by E.M. and that Mother failed to protect them adequately from the sexual abuse. With respect to B.M. and T.M. the petition alleged, among other things, that the girls were at substantial risk of sexual abuse by their father, as he had sexually abused their half-siblings while they were in the care and custody of their mother.
On February 6, 2017, the children, having already been placed in a foster home, were officially detained. At the hearing, Mother informed the court that she had been meeting with the police to cooperate in the investigation of E.M., was working on enrolling in a parenting class, and had contacted a psychotherapist who would be able to provide psychotherapy to herself and the minors in her home. She further indicated that she was now seeking to separate from E.M. and wanted all the minors returned to her care. The court expressed concern that Mother had initially been supportive of E.M., had denied any knowledge of the reported molestation, and had attempted to pressure the minors into denying that any abuse had occurred. The court prohibited any contact between Mother and the older siblings until after the jurisdiction hearing.
On March 6, Mother submitted to jurisdiction under section 300, subdivisions (d) and (j) based on a finding that the older girls were “sexually abused by [their] mother’s boyfriend [E.M.] while in the care and custody of the mother” and that the younger girls were “at risk of harm because [their] half-siblings were sexually abused by the minor’s father , [E.M.], while in the care and custody of the mother.” At the hearing, she informed the court that she had begun parenting classes and individual therapy, and had obtained a three-year restraining order against E.M. The court ordered supervised visitation with all of the girls to occur a minimum of one hour a week until the disposition hearing.
On May 8, 2017, the bureau submitted reports for the disposition hearing. With respect to the criminal charges against E.M., the bureau reported that E.M. was no longer in custody and there were no charges pending against him. The report explained that at the preliminary hearing on March 20, L.V. “testified she told law enforcement that her stepfather sexually abused her because she learned that [her sister] said that she was abused and wanted to know what was going on with her sister. She stated she felt pressured by the investigating officer, and everything she told the officer was a lie. She testified that she did tell her mom when [E.M.] would ‘play around’ and she didn’t like it when he touched her because she doesn’t not like it when anyone touches her.” L.V. expressed concern that her stepfather would be deported and did not want to get him in trouble. Although the criminal court found probable cause at the preliminary hearing, the prosecutor had opted not to proceed with the criminal case because the sisters had recanted.
The bureau recommended that the children remain in out-of-home care and that Mother receive family reunification services. The report noted that since the bureau had become involved, Mother had been cooperative and had followed through with the restraining order protecting herself and her children from E.M. She had enrolled in a parenting class and had initiated individual therapy. More recently, she had begun participation in the non-offender’s parent support group through “A Step Forward,” which reportedly had been going well. Nonetheless, the social worker believed that despite Mother having been “eager to be compliant with the bureau,” Mother needed “more time to mentally and emotionally process the overwhelming experience of Children & Family Services intervention.” The social worker noted that in their initial meetings, Mother stated she had “no idea how this could have happened to me” and that she “was previously the envy of her friends for having a ‘perfect life.’ ” Mother maintained that “she never suspected any sexual abuse by [E.M.]” The social worker reported that Mother understood that “despite the outcome of [E.M.’s] criminal case, . . . she would be expected to protect the children from [E.M.] per the jurisdictional findings.” Mother’s therapist reported that Mother “is doing well in therapy and is very compliant. She is very willing to do whatever it takes to get her children back.” Despite Mother’s assertion that she has severed her relationship with E.M., the social worker indicated she was “curious how the nature of this relationship will play out pending [E.M.’s] criminal case, the birth of his youngest child, and considering [L.V. and B.V.] are now maintaining the abuse did not occur.” The social worker also opined that she had not “observed emotional reflection by [Mother] as to the trauma her children had endured, or as to why they would have made such disclosures.” The social worker acknowledged the bond between Mother and her children, but believed the children needed “time to process and heal from the circumstances that brought the family before the court.”
At the hearing, Mother requested that the children be returned home and that family maintenance services be provided. Alternatively, she requested increased visitation. She noted that the children were suffering emotionally from the removal and that the one hour per week visitation was an insufficient amount of time for the younger siblings to maintain their relationship and ties with her, as well as for the teenagers to communicate with her. The court acknowledged that the children seemed to be experiencing some distress from having been removed from Mother and that Mother has started to engage in services, but found nonetheless that there was substantial danger to the physical health, safety, protection or physical or emotional well-being of all of the minors, such that there were no reasonable means by which they could be protected without removal from Mother’s custody. The court explained that only three months had passed since the children were detained and that “it would appear that this case was discussed with the children” after the initial disclosure to the police. The court continued the prior order requiring supervised visitation for a minimum of one hour per week. Mother timely filed a notice of appeal.
Discussion
Section 361, subdivision (c) prohibits the court from removing a child from the parents’ custody at the disposition hearing unless it finds, by clear and convincing evidence, the child would be at substantial risk of harm if returned home and there are no reasonable means by which the child can be protected without removal. “The elevated burden of proof for removal from the home at the disposition stage reflects the Legislature’s recognition of the rights of parents to the care, custody and management of their children, and further reflects an effort to keep children in their homes where it is safe to do so. [Citations.] By requiring clear and convincing evidence of the risk of substantial harm to the child if returned home and the lack of reasonable means short of removal to protect the child’s safety, section 361, subdivision (c) demonstrates the ‘bias of the controlling statute is on family preservation, not removal.’ [Citation.] Removal ‘is a last resort, to be considered only when the child would be in danger if allowed to reside with the parent.’ ” (In re Hailey T. (2012) 212 Cal.App.4th 139, 145-146.) The burden of proof to show a detriment to the child if returned home is on the agency. (In re Nickolas T. (2013) 217 Cal.App.4th 1492, 1505.) We review the court’s findings for substantial evidence. (Id. at p. 1507.)
Initially, the bureau’s argument that the jurisdictional findings are prima facie evidence that the children cannot safely remain in the home is unfounded. Under section 361, subdivision (c)(1), “[t]he fact that a minor has been adjudicated a dependent child of the court pursuant to subdivision (e) of Section 300 shall constitute prima facie evidence that the minor cannot be safely left in the physical custody of the parent or guardian with whom the minor resided at the time of injury.” (Italics added.) Section 300, subdivision (e) provides a basis for dependency jurisdiction when a child “is under the age of five years and has suffered severe physical abuse by a parent, or by any person known by the parent, if the parent knew or reasonably should have known that the person was physically abusing the child.” Section 300, subdivision (e) clearly is inapplicable. Only the youngest of the four children, T.M., was under the age of five and there is no suggestion, much less evidence, that she has suffered abuse from anyone.
The bureau argues that Mother poses a danger to the children because she “was previously aware of the ongoing sexual abuse and failed to report it to authorities.” The record, however, does not support this claim. Mother submitted to jurisdiction based on a finding that the older girls were sexually abused by E.M. while in her custody. Mother did not admit to knowledge of the abuse. She acknowledged an incident in which the children “said that [E.M.] hit them on the butt while they were wrestling” which she resolved by confronting him and asking him to apologize. Mother repeatedly denied having any suspicion that he was sexually abusing the children. The summary of L.V.’s initial statements to the police does not establish what Mother was told about the abuse. The police report indicates only that L.V. told her mother about “what happened” and E.M. apologized for “touching her.” At the preliminary hearing, L.V. testified that she told her mom “when [E.M.] would ‘play around’ and she didn’t like it when he touched her because she doesn’t not like it when anyone touches her.” While the jurisdictional finding provides evidence that the abuse occurred while in her custody, there is no substantial evidence that Mother had knowledge of the abuse and failed to report it.
The bureau also argues that it “could not trust” Mother’s assurances that she would protect her children if they were returned home because of her conduct “during the beginning of the dependency case.” The police report quoted extensively above depicts Mother grappling with a complicated and distressing situation. Mother admitted questioning the children repeatedly about their allegations and vacillating about what to believe. While the trial court expressed concern that Mother discussed the case with the children after E.M.’s arrest, the court did not find that she encouraged the older girls to recant.
More importantly, within days of E.M.’s arrest Mother was willing to sever all contact with him and disavowed any intention to post his bail. It is undisputed that Mother obtained a permanent restraining order against E.M. The bureau argues that it was “too soon” to return the children because “E.M. was out of jail since March 20, 2017 and his whereabouts were unknown to the bureau” and the bureau “did not know whether the mother was having contact with E.M.” The bureau’s lack of knowledge regarding E.M.’s whereabouts and their speculation regarding whether Mother would reestablish contact with E.M. is not substantial evidence that the children are at a substantial risk of harm if returned home. (In re Steve W. (1990) 217 Cal.App.3d 10, 22 [“speculation about the mother’s possible future conduct is not even sufficient to support a finding of dependency much less removal of the physical custody of the child from the parent”].) This is not a case where there is evidence that Mother has allowed the abuser to return to the home or where there is evidence that his return is likely. (In re Vonda M. (1987) 190 Cal.App.3d 753, 757 [“The more likely it is that the offending parent will have further contact with the nonoffending parent, the more the child's welfare is jeopardized by being placed unsupervised with the nonoffending parent.”].) Certainly, there are means of monitoring Mother’s contact with E.M. that do not require removal of the children from their home. (See In re Steve W., supra, at p. 22 [Where a father is incarcerated and all of the circumstances indicate that the mother will not resume her relationship with the father “[i]t would not be too onerous to monitor his status to assure that he did not return to the home.”].)
Finally, the bureau argues, “There was no evidence presented to the court that indicated the mother believed the children were sexually abused. Although the mother was starting to go through the motions of participating in the case plan, the mother still lacked insight. During the visits, the mother consistently reminded the girls that the family apartment is ‘just how they left it’ and ‘nothing had changed.’ ” It was not Mother’s burden to present evidence that she believed the children were sexually abused. Moreover, as Mother argues on appeal, “[n]either the disposition report prepared by social services, nor the disposition hearing gave any indication that the social worker had spoken to [Mother] about whether she continued to outright deny that the abuse had occurred. Furthermore, no evidence was ever presented that conclusively showed [Mother] to still believe that the minors . . . had not been abused. . . . [¶] The only indication that the social worker had asked about [Mother’s] current beliefs was inclusion of the comment in the report that [Mother] ‘maintains that she never suspected any sexual abuse by [E.M.]’ Failing to suspect abuse versus outright denial of any abuse having occurred are two distinct postures.” It was the department’s burden to show by clear and convincing evidence that returning the children to Mother’s custody would endanger the children. While a parent’s lack of insight is often cited as a reason not to return children to their parent’s custody, nothing in the record suggests that Mother has not taken seriously her need to protect her children from abuse. It is unclear how Mother’s attempt to reassure the children that they have a home to return to demonstrates a lack of insight as to the need to protect her children in the future.
In short, the evidence before the court provides absolutely no basis for a finding, much less a finding based on clear and convincing evidence, that there was a substantial risk of harm to the children if returned to their home, or that there were no reasonable means of protecting them without removal. Although there is some evidence of prior abuse by E.M., there is no evidence that Mother responded inappropriately to what she believed had occurred, and there certainly is no evidence that she is either unwilling or incapable of protecting the children now that she has been alerted to the situation. There is no basis to speculate that she would respond inappropriately were E.M. to violate the restraining order that she has obtained, nor to speculate that E.M. is likely to disregard the order. Nor is there any evidence that monitoring the situation upon the children’s return is impracticable. The children may not be removed from their home, under section 361, subdivision (c) or otherwise, simply because the bureau was “curious how the nature of [the] relationship [would] play out” after resolution of the criminal proceedings against E.M., or to provide an observation period (much less an observation period beyond three months) to test the bureau’s speculation.
Disposition
The disposition order is reversed, and the matter is remanded to the juvenile court for further proceedings consistent with this opinion.


Pollak, Acting P.J.

We concur:

Siggins, J.
Jenkins, J.