Filed 2/17/21 In re S.P. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from orders of the Superior Court of Los Angeles County, Mary E. Kelly, Judge. Affirmed.

Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant Sergio P.

Pamela Devours, under appointment by the Court of Appeal, for Defendant and Appellant Sandra P.

Mary C. Wickham, County Counsel, Kim Nemoy, Assistant County Counsel, and Sally Son, Deputy County Counsel for Plaintiff and Respondent.

____________________________________

Appellants Sandra P. (mother) and Sergio P. (father) appeal from orders establishing dependency jurisdiction over their children, Sofia (born 2015) and Samantha (born 2018). Father also appeals from the dispositional order removing the children from his custody and releasing them to mother under the supervision of the Los Angeles County Department of Children and Family Services (the Department).

Father contends there was insufficient evidence to support the juvenile court’s jurisdictional findings under Welfare and Institutions Code section 300, subdivisions (b), (d), and (j)[1] that father sexually abused Sofia and that the children were at risk of harm. Mother contends there was insufficient evidence that she knew of the sexual abuse and failed to protect the children. We affirm the juvenile court’s jurisdictional and dispositional orders.

BACKGROUND

Detention and section 300 petition

In November 2019, the Department received a referral alleging sexual abuse of Sofia. According to the reporting party, the parents were attending a child custody mediation as part of their divorce proceedings when mother disclosed her belief that father had sexually abused Sofia in 2017.

In a December 3, 2019 interview, mother told the investigating social worker that she and father had been separated for three years and had recently attended a child custody mediation. The parents separated when mother learned that father had been having a five-year affair with his first cousin.

Father had a history of inappropriate sexual behavior. Approximately seven years ago, mother’s then 22-year-old sister accused father of attempting to orally copulate her in the middle of the night. Mother’s sister reported the incident to law enforcement but subsequently dropped the charges. Mother said she also learned that father had tried to touch a 16-year-old girl inappropriately, but mother did not know the details of that incident.

Mother and father were already separated in December 2017 when Sofia was two years old and mother was pregnant with Samantha. Mother asked the paternal grandmother to care for Sofia one evening and instructed the paternal grandmother not to allow father to take Sofia to his home, a separate residence behind the paternal grandmother’s home. When mother returned approximately four hours later to pick up Sofia, she was informed by paternal relatives that father had taken Sofia to his home. Mother went to father’s home and found the door locked, which was unusual, as father had never locked the door in the past. Mother asked father about the locked door, and father said children in the paternal grandmother’s home were trying to open the door. Sofia had been fussy, and father took Sofia to his home to lie down. He did not want the other children to disturb them.

Sofia’s diaper was soiled, and mother began changing her. Sofia quickly closed her legs and asked, “Are you going to touch my colita (vagina) too?” Sofia had never used the words “touch” or “colita” before. Mother asked Sofia who had touched her but the child would not answer. Mother then asked father if Sofia had been with anyone else or if someone else had changed the child’s diaper. Father responded that Sofia had been with him the entire time. When mother attempted to discuss Sofia’s disclosure with father, he left the home.

The following day Sofia again closed her legs when mother began changing the child’s diaper. Mother asked Sofia if someone had touched her and the child denied that anyone had done so. Mother did not report any allegations of sexual abuse to law enforcement at the time. She said father was very manipulative and accused her of breaking up the family. Father told mother the issues should be kept to themselves, without court involvement.

Mother told the social worker she did not trust father to be alone with the children. She had previously allowed father to have weekend visits with the children but would monitor the visits. Despite her misgivings, mother asked father to babysit the children on October 19, 2019, because she had no one else to care for them that day. She told father to remain in the paternal grandmother’s home and instructed the paternal grandmother not to allow father to be alone with the children. When mother returned to collect the children later that day, however, the children were in father’s home. Father was feeding Samantha a snack, and the child had food around her mouth. Although father had a napkin in his hand, he used his finger to wipe Samantha’s mouth. He then put his finger into the child’s mouth. Mother found father’s behavior odd, as he could have used the napkin instead of his finger.

The week after the children’s October 2019 visit with father, Sofia began exhibiting sexualized behavior. While mother was feeding Samantha, Sofia started licking mother’s inner thigh and the front of mother’s shirt. Mother asked Sofia what she was doing, and the child responded that she was playing a game. Sofia said she played the game “with someone I love very much and with someone who loves me.” When mother inquired further, Sofia disclosed that she played the game with father, and that it was a “secret.”

That same week, Sofia, while playing with puppets, said “Come into my mouth, my mouth is a celebration.” Mother asked Sofia where she had heard that statement, and the child responded that she did not remember.

Mother said she had attempted to discuss her concerns with father several times. But father said she was accusing him of things he had not done.

Mother told the social worker that Sofia had been expressing reluctance to visit father, and mother had observed Sofia push father away when he attempted to hug the child. Mother said she had suspended the children’s visits with father altogether for the past month.

With mother’s consent, the social worker interviewed Sofia separately. Sofia reported being happy with father and feeling safe in his home. She was able to identify the parts of the body and denied being touched inappropriately by anyone. She volunteered that she had seen father urinate while standing up.

The maternal grandmother told the social worker that she shared mother’s concerns about father and the children. She reported that approximately three months ago, Sofia kissed her and mother on their buttocks. When asked where she had learned that behavior, Sofia said, “Dad showed me.”

On December 11, 2019, the Department received a report from a Bell Gardens Police Department investigation in November 2019. The investigation concluded there was no evidence to indicate Sofia had been sexually abused. A forensic medical examination of Sofia and Samantha on December 17, 2019 could neither confirm nor negate sexual abuse.

Father told the social worker in a December 23, 2019 interview that he and mother had separated in late 2016 because of his affair with his first cousin. Father also admitted that he did not have a relationship with maternal relatives because of an alleged incident involving mother’s sister that happened years ago.

Father said he could not recall exactly what happened during the December 2017 incident involving Sofia. Father said he and Sofia were in the paternal grandmother’s home, and the child asked to go to father’s home to play with her toys. Father took Sofia to his home and said he locked the door “out of habit.” He added that mother had keys to the home, and he had nothing to hide. Mother arrived to pick up Sofia and was changing the child’s diaper when father received a phone call. He “froze” when mother informed him about Sofia’s disclosure. Father’s reaction prompted mother to accuse him of molesting Sofia. Father said he was in a state of shock and that mother’s accusation broke his heart.

Father said he missed the children and wanted to be involved in their lives. He believed mother was a good parent, although he believed she needed help because she was always accusing him of having affairs.

The juvenile court issued a protective custody warrant on January 2, 2020 removing Sofia and Samantha from father. On January 3, 2020, the social worker again spoke with Sofia, who continued to deny any abuse and insisted that she felt safe and happy with both parents.

On January 7, 2020, the Department filed a petition on behalf of Sofia and Samantha alleging, under section 300, subdivisions (b), (d), and (j), that father’s sexual abuse of Sofia on a prior occasion in 2017, and mother’s failure to protect Sofia placed the children at risk of harm.

At the January 8, 2020 detention hearing, the juvenile court found father to be Sofia’s and Samantha’s presumed father and ordered both children detained from him and released to mother. The court accorded father monitored visits, three times per week for three hours per visit.

Jurisdiction and disposition

During a private interview with a dependency investigator in January 2020, Sofia was outgoing and talkative. She volunteered information about mother, the maternal grandparents, and her school. When the investigator inquired about a “licking game,” however, Sofia put her face very close to the investigator’s and began yelling, “How do you know? Who told you?” Sofia then became silent, retrieved a book from the bookshelf, and covered her face. The investigator then asked, “What would happen if you told me?” Sofia responded, “I can’t tell you.”

In a January 27, 2020 interview, mother recounted the details of father’s alleged sexual assault of the children’s maternal aunt. After the maternal aunt reported the incident to law enforcement, father told mother that if criminal charges were brought against him, he would be unable to obtain a real estate license and could not support the family. The maternal aunt subsequently declined to press charges, and the incident caused a rift between mother and her family. Mother admitted she felt ashamed that she had supported father in the aftermath of that incident.

Mother also disclosed another incident that occurred a year later during a social gathering at father’s home. The paternal grandparents were away but father’s younger sister was in the paternal grandparents’ home. At some point during the night, mother saw father exiting his younger sister’s bedroom. Mother asked father what he was doing, and father replied, “I saw this guy coming out of the room.” Father said he entered the room to check on his sister, and she started kicking him. Father said, “If something happened, if she’s saying me, it’s not true. She wouldn’t even know who it was.” Mother continued questioning father, but he insisted that nothing had happened.

Mother reiterated the circumstances of the December 2017 incident involving Sofia in father’s home. Mother said when she attempted to enter father’s home to collect Sofia that night, she found the front door locked with four locks. Father had never locked the door in the past. Mother used her key to enter the home and found that Sofia’s diaper needed changing. When mother attempted to change Sofia’s diaper, the child closed her legs and asked, “Are you going to touch me there?” Mother had never used the words “touch” or “vagina” when changing Sofia. The following morning, Sofia again closed her legs when mother attempted to change her diaper. When mother asked why Sofia was doing so, the child said she did not know.

In a February 4, 2020 forensic interview, Sofia denied knowing about a licking game or harboring any secrets. Mother told the dependency investigator after the interview that Sofia kissed Samantha on the mouth on two separate occasions in January. When mother asked Sofia why she had done so, the child responded, “It felt good.” Mother then asked if anyone kisses Sofia on the mouth, and Sofia replied, “Yeah, my dad. Every time I go over, he kisses me in the mouth.”

Mother also told the dependency investigator that Sofia had recently started singing a song the child said father had written for her. The lyrics stated that Sofia was beautiful, had big eyes, beautiful hair, and a mouth that tastes like honey. Mother encouraged Sofia to sing the song for the dependency investigator. Sofia did so, in Spanish, and said that father wrote the song for her.

Father told the dependency investigator during a February 2020 interview that he could not remember what happened during the December 2017 incident involving Sofia. Father could not recall whether mother told him what Sofia had said about being touched the day after the incident or weeks later.

Father denied knowledge of a licking game and said he had no worries that Sofia had been sexually abused. When the investigator asked about a song father sings to Sofia, father explained that he changed the lyrics of a Spanish language song about a man who loves two women, to sing to his two daughters. He could not remember all the lyrics. When the investigator stated that Sofia’s version of the song had lyrics about her mouth tasting like honey, father exclaimed “Oh yeah!” He then insisted, “I never played it to her. I know the lyrics isn’t good, so I changed it . . . .”

In its jurisdiction/disposition report, the Department noted that father’s statements concerning the December 2017 incident involving Sofia were inconsistent, and that he expressed a lack of concern about the odd nature of Sofia’s statements or sexualized behavior. The Department concluded that father’s inappropriate interactions with Sofia, including licking, kissing, and singing sexually suggestive songs, placed the children at risk of harm. It recommended that the juvenile court assume jurisdiction over Sofia and Samantha.

Last minute information for the court

The Department reported on two monitored visits between father and the children in February 2020. During a February 11 visit, Samantha was affectionate and appeared to enjoy the visit with father, but Sofia seemed somewhat distant. Sofia did not want to enter the visitation room during a February 18 visit and said she felt uncomfortable meeting new people and being at the Department’s office. Father was upset and began to cry when he spoke with the social worker.

Sofia refused to visit with father on February 21 and 25. She cried when encouraged to visit with father and would not leave mother or tell the social worker why she did not want to visit with father.

Adjudication

At the February 27, 2020 adjudication hearing, the juvenile court received into evidence the Department’s reports and exhibits and heard argument from counsel for the parties. The court sustained all allegations of the petition as to father.[2] As to mother, the court sustained the allegations under section 300, subdivisions (b) and (j) but struck the section 300, subdivision (d) allegations. The juvenile court declared Sofia and Samantha to be dependent children, removed them from father’s custody and ordered them placed with mother under the Department’s supervision.

Mother and father filed separate appeals.

DISCUSSION

I. Applicable law and standard of review

Section 300, subdivision (b) authorizes the dependency court to assume jurisdiction over a child when the child has suffered or is at a substantial risk of suffering serious physical harm as a result of the parent’s failure or inability to adequately supervise or protect the child.

Section 300, subdivision (d) authorizes dependency jurisdiction when “[t]he 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,[[3]] by his or her parent or guardian or a member of his or her household, or the parent or guardian has failed to adequately protect the child from sexual abuse when the parent or guardian knew or reasonably should have known that the child was in danger of sexual abuse.” (§ 300, subd. (d).)

Section 300, subdivision (d) does not require a child actually be abused before the juvenile court can assume jurisdiction. (In re I.J. (2013) 56 Cal.4th 766, 773.) Jurisdiction under section 300, subdivision (d) requires only a “substantial risk” the child will be abused. (In re I.J., at p. 773.) It is also not necessary for the juvenile court to find a current risk of harm to the child to assume jurisdiction under section 300, subdivision (d). (In re Carlos T. (2009) 174 Cal.App.4th 795, 803.)

Dependency jurisdiction under section 300, subdivision (j) is warranted when a child’s sibling was abused or neglected and there is a substantial risk the child will also be abused or neglected. (§ 300, subd. (j).) When considering jurisdiction under section 300, subdivision (j), the juvenile court considers “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.” (§ 300, subd. (j).)

We review the parents’ challenge to the sufficiency of the evidence supporting the juvenile court’s jurisdictional and dispositional orders under the substantial evidence standard. (In re Alexis E. (2009) 171 Cal.App.4th 438, 450 [jurisdiction]; In re Hailey T. (2012) 212 Cal.App.4th 139, 145-146 [disposition].) Under that standard, “the issue is whether there is evidence, contradicted or uncontradicted, to support the finding. In making that determination, the reviewing court reviews the record in the light most favorable to the challenged order, resolving conflicts in the evidence in favor of that order, and giving the evidence reasonable inferences. Weighing evidence, assessing credibility, and resolving conflicts in evidence and in the inferences to be drawn from evidence are the domain of the trial court, not the reviewing court. Evidence from a single witness, even a party, can be sufficient to support the trial court’s findings. [Citations.]” (Alexis E., at pp. 450-451.)

II. Father’s appeal

A. Jurisdiction

Substantial evidence supports the juvenile court’s finding that father sexually abused Sofia and that his abuse of Sofia placed the children at substantial risk of harm. Despite mother’s admonitions that father should not be left alone with Sofia, father in December 2017 took Sofia from the paternal grandmother’s residence to his home, where he was alone with the child for several hours. When mother arrived to pick up the child, she found father’s door locked, which was unusual, as father had never locked the door in the past. Father gave inconsistent explanations as to why he locked the door. When mother attempted to change Sofia’s diaper, Sofia refused to open her legs and disclosed that someone had touched her vagina. Mother informed father of Sofia’s disclosure and asked whether anyone else had changed the child. Father responded that Sofia had been with him the entire time. He then evaded further questioning by leaving the home.

Father also gave inconsistent accounts about the December 2017 incident, initially stating that he “froze” when mother told him what Sofia had said, and later claiming he did not recall the conversation with mother and whether it had occurred on the day of the incident or weeks later.

Sofia’s December 2017 disclosure, father’s admission that he was alone with Sofia during the entirety of her visit, and his inconsistent statements and evasive behavior about the incident constitute substantial evidence that he sexually abused Sofia. A minor’s disclosure of sexual abuse can constitute substantial evidence of sexual abuse sufficient to support a juvenile court’s jurisdictional findings. (In re Lucero L. (2000) 22 Cal.4th 1227, 1249; In re D.C. (2015) 243 Cal.App.4th 41, 52.)

Substantial evidence also corroborates Sofia’s disclosure and identifies father as the perpetrator. After a subsequent unsupervised visit with father in October 2019, Sofia began exhibiting sexualized behavior, licking mother’s shirt and inner thigh, and explaining she was playing a “secret” game that she played with father. While playing with puppets on another occasion, Sofia said “Just jump into my mouth. My mouth is a celebration.” Sofia told mother that father “kisses me in the mouth.” Sofia kissed both the maternal grandmother and mother on the buttocks and said she had learned that behavior from father.

Father had a history of inappropriate sexual behavior with other family members. He did not deny attempting to orally copulate mother’s sister and was accused of sexually assaulting his own sister and another 16-year-old relative.

Substantial evidence supports the juvenile court’s jurisdictional findings that father sexually abused Sofia within the meaning of section 300, subdivision (d). That same evidence supports jurisdiction over Samantha under section 300, subdivision (d), which allows a juvenile court to assume jurisdiction over a child who is at risk of being exposed to a parent sexually abusing other children and under subdivision (j), which allows jurisdiction over a child whose sibling was abused and there is a substantial risk the child will also be abused.
(§ 300, subd. (j).)

B. Disposition

To remove a child from a parent’s custody, the juvenile court must find that “[t]here is or would be substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home . . . .”
(§ 361, subd. (c)(1).) The child need not have been actually harmed for removal to be appropriate. (In re D.C., supra, 243 Cal.App.4th at p. 55.) ‘“The court may consider a parent’s past conduct as well as present circumstances.”’ (In re A.S. (2011) 202 Cal.App.4th 237, 247, disapproved on another ground by Conservatorship of O.B. (2020) 9 Cal.5th 989, 1010, fn. 7.)

The same evidence that supports the juvenile court’s jurisdictional findings also supports the dispositional order removing the children from father’s custody. Father’s history of inappropriate sexual behavior with family members; his sexual abuse of Sofia in December 2017; and his inappropriate sexual conduct with Sofia, including licking, kissing on the mouth and buttocks, and singing songs with sexually suggestive lyrics, amply support the order removing the children from father’s custody.

II. Mother’s appeal

A. Justiciability

Mother’s appeal challenges the sufficiency of the evidence as to her conduct only. She does not challenge the jurisdictional findings against father nor does she challenge the dispositional order.

A juvenile court need only find that one parent’s conduct has created circumstances triggering section 300 in order for the court to assume jurisdiction over the child. (In re I.A. (2011) 201 Cal.App.4th 1484, 1491.) “For jurisdictional purposes, it is irrelevant which parent created those circumstances. A jurisdictional finding involving the conduct of a particular parent is not necessary for the court to enter orders binding on that parent, once dependency jurisdiction has been established. [Citation.] As a result, it is commonly said that a jurisdictional finding involving one parent is ‘“good against both. More accurately, the minor is a dependent if the actions of either parent bring [him] within one of the statutory definitions of a dependent.”’ [Citation.] For this reason, an appellate court may decline to address the evidentiary support for any remaining jurisdictional findings once a single finding has been found to be supported by the evidence. [Citations.]” (Id. at p. 1492.)

An appellate court may, however, address the merits of the jurisdictional findings against one parent when that finding could be prejudicial to the parent, could potentially impact the current or future dependency proceedings, or could have other consequences for the parent beyond jurisdiction. (In re Drake M. (2012) 211 Cal.App.4th 754, 762-763.) We exercise our discretion to do so here and find that substantial evidence supports the juvenile court’s jurisdictional findings and orders as to mother.

B. Substantial evidence supports the findings as to mother

Substantial evidence supports the juvenile court’s findings, under section 300, subdivisions (b) and (j), that mother knew of father’s sexual abuse and failed to protect the children. The record shows that mother was already concerned about father’s behavior in December 2017 when she left Sofia in the paternal grandmother’s care with instructions that the child should not be left alone with father. When mother returned, she found father’s door locked and Sofia alone with father in his home. Sofia refused to open her legs while mother attempted to change her diaper and disclosed that someone had touched her. Father admitted that Sofia had been alone with him the entire time and became evasive when mother confronted him with the child’s disclosure.

After the December 2017 incident, mother thought she should not leave Sofia alone with father. She continued, however, to allow father to have weekend visits with the children and in October 2019 asked father to babysit both Sofia and Samantha. Father again disregarded mother’s instruction to remain in the paternal grandparents’ home, and when mother returned to pick up the children, they were alone with father in his home. Sofia thereafter began exhibiting sexualized behavior and disclosed that father played “secret” licking games with her and kissed her mouth and buttocks. Mother observed Sofia push father away when he attempted to hug her. Despite these warning signs, mother did not report her suspicions until late-November 2019 during a child custody mediation.

Mother argues that she did not fail to protect the children by entrusting them to father in October 2019, because she asked the paternal grandmother to monitor the visit and told father to remain with the children in the paternal grandmother’s home. That arrangement had previously failed, however, in December 2017 when father disregarded mother’s instructions and the paternal grandmother did not prevent father from taking Sofia alone with him to his home where he sexually abused the child. It failed again in October 2019, when father and the paternal grandmother again disregarded mother’s instructions and father took the children to his home.

Mother further argues she cannot be faulted for relying on the paternal grandmother to monitor father’s visits with the children in December 2017 and October 2019 because the paternal grandmother, with the Department’s approval, monitored some of father’s visits after the children were detained from him. The propriety of the Department’s decision to allow the paternal grandmother to monitor father’s post-detention visits with the children is not an issue that is before us. The relevant issue is whether there is evidence, contradicted or uncontradicted, to support the jurisdictional findings. In resolving that issue, we view the record in the light most favorable to the juvenile court’s order, resolving conflicts in the evidence in favor of the order, and giving the evidence reasonable inferences. We do not reweigh the evidence, assess credibility, or resolve conflicts in evidence. (In re Alexis E., supra, 171 Cal.App.4th at pp. 450-451.)

Mother claims there was no evidence that her conduct placed the children at risk of harm at the time of the adjudication hearing because she had not allowed father to have any contact with the children for the two months prior to the hearing. (See In re Rocco M. (1991) 1 Cal.App.4th 814, 824 [circumstances at the time of the adjudication hearing must show that the child is at risk of harm]; In re Carlos T., supra, 174 Cal.App.4th at p. 803
[§ 300, subd. (j) requires a finding of current risk of abuse].) Mother’s history of avoiding confrontations with father over his sexual misconduct, her failure to concurrently report the December 2017 abuse, and her failure to report the October 2019 incident until the child custody mediation one month later provide ample support for the juvenile court’s finding that mother’s failure to protect the children placed them at risk of harm at the time of the adjudication hearing.

Substantial evidence supports the jurisdictional findings against mother.

DISPOSITION

The orders establishing juvenile court jurisdiction over the children and removing them from father’s custody are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

___________________________, J.

CHAVEZ

We concur:

_____________________, P. J. __________________________, J.

LUI ASHMANN-GERST

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

[2] The sustained allegations under section 300, subdivisions (b), (d), and (j) state: “On a prior occasion in 2017 the children Sofia [P.] and Samantha [P.]’s father Sergio [P.] sexually abused the child Sofia . . . in that the father fondled the child’s vagina. The mother . . . knew that the father had sexually abused the child and the mother failed to protect the child. The mother allowed the father unlimited access to the child. The father’s sexual abuse of the child and the mother’s failure to protect the child endangers the child’s physical health and safety, placing the child at risk of suffering serious physical harm, damage, danger, sexual abuse and failure to protect.”

[3] Penal Code section 11165.1 defines sexual abuse to include lewd or lascivious acts upon a child, oral copulation, child molestation, and the intentional touching of the genitals or intimate parts of child, not including acts which may reasonably construed to be normal caretaker responsibilities, interactions with, or demonstrations of affection for the child. (Pen. Code,
§ 11165.1.)