In re Francisco A.

Filed 3/15/07 In re Francisco A. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Debra Losnick, Commissioner. Affirmed.

Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Judith A. Luby, Deputy County Counsel, for Plaintiff and Respondent.

Appellant Jamshed A. (father) is the presumed father of Francisco, born in August 2001. Father appeals from the juvenile courts jurisdictional and dispositional orders establishing dependency jurisdiction over Francisco and removing Francisco from his custody. Father contends the evidence was insufficient to support the juvenile courts jurisdictional findings that Francisco was at risk of continuing harm because of sexual abuse by a paternal uncle and domestic violence between his parents. Father further contends the juvenile court failed to consider less drastic alternatives to removing Francisco from his custody, and that the courts visitation order is unclear.

Substantial evidence supports the juvenile courts jurisdictional findings, as well as the courts decision to remove Francisco from fathers custody. The visitation orders are clear, according father twice weekly unmonitored day visits and unmonitored overnight weekend visits after three day visits. We therefore affirm the orders.

BACKGROUND

On December 12, 2005, a social worker employed by the Department of Children and Family Services (the Department) responded to a referral by maternal aunt Norma A. alleging sexual abuse of Francisco. Norma told the social worker that Francisco and his mother, Olivia A. (mother), were currently living with mothers family. Mother and father had a history of domestic violence; mother had obtained a restraining order against father, but had recently lifted the restraining order and granted father 50 percent custody of Francisco. Five-year-old Francisco had begun exhibiting sexualized behavior, playing with his penis and grabbing at other childrens and adults crotch areas. On a recent occasion when mother had been playing with Francisco, he asked mother to lick his buttocks. When mother questioned Francisco about this request, the child stated that paternal uncle Nassir A., nicknamed Uncle Shy, had done this to him. Norma was concerned because Nassir A. lived in the same house with father.

Later that day, the social worker met with Francisco and two other members of mothers family, a maternal uncle named Samuel, and a maternal aunt named Maria. Samuel and Maria confirmed that father and mother had a violent relationship. They said that mother had obtained two previous restraining orders against father, and that this was the second time she had lifted the restraining order. Mother had been living with her family since late September in order to get away from father. Both Maria and Samuel said that they had observed injuries on mother, including bruises. With regard to the sexual abuse allegation, Maria stated that while mother was tickling Francisco, he had talked in a sexual manner, and on that same day, he tried to grab his cousins genitals. When mother questioned Francisco about what had happened, he said that his paternal Uncle Shy did it.

The social worker met with mother on December 13, 2005. Mother said that she had left father on September 23, 2005, because father had forcible sex with her. She said that father had forced her to have sex with him on numerous occasions and that she once had to scratch him in order to get free. Mother further stated that father is often emotionally abusive and has choked her and restrained her in the past. After separating from father, Francisco became increasingly aggressive at school. Mother believed Franciscos aggressive behavior was caused by the separation, prompting her to lift the restraining order against father and grant him 50 percent custody of Francisco.

When asked about the sexual abuse allegation, mother said that she had been playing with Francisco on December 10, 2005, and he asked her to lick his buttocks. Mother asked Francisco why he had said that, and the child responded that Uncle Shy had done that to him. Mother immediately became concerned and contacted father. Both parents questioned Francisco together, and the child told father the same information. Father did not believe Nassir A. had sexually abused Francisco. Mother was concerned that the paternal uncle would have continued access to Francisco in fathers home.

Father denied all allegations of domestic violence. He denied forcibly having sex with mother and said that she had scratched him when she became angry while play fighting with him. He admitted that Francisco had seen the scratches. Father said he did not believe his brother had sexually abused Francisco, and expressed concern about possible abuse by mothers relatives.

On December 13, 2005, the social worker interviewed Francisco at the Departments offices. Francisco was able to distinguish between truth and lies. Using charts depicting the bodies of a boy and a girl, Francisco was able to identify specific body parts and to distinguish between the sexes. The social worker asked Francisco whether anyone touches him at his maternal grandmothers home, or whether he touches anyone, and he answered no. He responded no when asked whether anyone touches him at fathers house, or whether he was afraid of anyone at fathers house. Francisco then spontaneously stated, Uncle Shy does it. When the social worker asked what Uncle Shy does, Francisco responded, he touches me there, and pointed to the genital area of the male body chart. Francisco then refused to discuss the matter further. The social worker asked Francisco whether mother and father fight, and Francisco responded in the affirmative. When asked what happens when they fight, he said, mommy scratches daddy.

On December 14, 2005, the social worker interviewed the paternal uncle, Nassir A., who denied the allegations of sexual abuse. He said that he has showered with Francisco and helped him clean himself after using the bathroom. He also said that he has helped Francisco clean his penis because the child is not circumcised.

On December 15, 2005, maternal aunt, Maria A. contacted the social worker. She said that mother and Francisco had gone to stay with father at a hotel. Given the history of domestic violence between the two parents, Maria became concerned and went to the hotel to check on Francisco. Father had been belligerent and verbally abusive toward Maria. Law enforcement responded, but permitted Francisco to remain with father. Mother had remained at the hotel as well. Maria was concerned because she had not heard from mother since leaving the hotel, despite repeated telephone calls to her.

The social worker contacted mother, who answered the phone at the hotel but said that she could not talk because she was with father. The social worker asked mother to return to her home immediately for a meeting, and mother complied with the request. Mother explained that the hotel visit had been arranged because she did not want Francisco to be alone in fathers home, given the allegations of sexual abuse. She admitted that father was emotionally abusive at the hotel, but denied that he threatened her or struck her. The social worker observed a scratch on mothers nose and a bruise on her cheek, and mother said that Francisco had scratched her. During the course of the 30-minute interview, father telephoned several times, attempting to contact mother and Francisco.

A. The Section 300 Petition and Detention Hearing

On December 20, 2005, the Department filed a petition pursuant to Welfare and Institutions Code section 300.[1] The petition alleged, under section 300, subdivision (a), physical and emotional harm to Francisco as the result of domestic violence between mother and father; under section 300, subdivision (d), sexual abuse by the paternal uncle; and under section 300, subdivision (b), mothers and fathers failure to protect Francisco from sexual abuse and domestic violence.

At the detention hearing held on December 21, 2005, mothers counsel reported that father and paternal uncle, Nassir A., reside in the same house, and that father had no means to obtain an alternate residence. The juvenile court found jurisdiction over Francisco to be warranted, and ordered him released to mother. The juvenile court ordered the Department to set a visitation schedule for father, with monitored visits to occur in a neutral setting or in the Departments offices, and no contact with the paternal uncle, Nassir A.

B. January 24, 2006 Jurisdiction/Disposition Report

In a jurisdiction/disposition report dated January 24, 2006, the Department provided a timeline of the family law courts intervention in mothers and fathers relationship. Mother had obtained a full restraining order against father on May 28, 2002, and a temporary restraining order on September 26, 2005. The family law court granted both parents a temporary restraining order on October 19, 2005. On December 7, 2005, both parents mutually lifted the restraining order and agreed to a 50/50 custody arrangement with the assistance of a family law court mediator.

The January 24, 2006 report also summarized the social workers interviews with Francisco, mother, and father on January 11, 2006. Francisco described the domestic violence between his parents, stating, My mom and dad fight, and My mom can make him bleed. Francisco also told the social worker, My mom is a good fighter. My dad is a good fighter always fighting with my mom. My dad gets tough. When asked whether he is afraid during the fights, Francisco replied, No, I just stay in the chair when they do karate. Francisco said that mother cries during the fights [w]hen my dad hit her tough and hard and that his parents curse at each other. When asked about the alleged sexual abuse, Francisco initially denied being touched in a sexual manner by anyone, including paternal uncle Nassir A. The social worker then asked mother to participate in the interview, and after 10 minutes of questioning by mother, Francisco responded that CoCo Shy had orally copulated him and licked his buttocks.

The social worker met separately with mother, who said that she and father have argued on a daily basis since August 2003. Many of these arguments became violent, and she said that father would choke her at least once per month between 2004 and 2005. Mother said that during one such incident, on June 2, 2005, she scratched father to stop him from choking her. The paternal grandfather, who lived in fathers house, witnessed the incident, but did nothing to stop it. Law enforcement had responded, but no arrests were made. Mother said that on September 22, 2005, father forced her to have sex with him, which prompted her to file a restraining order against him a few days later. When asked about the sexual abuse allegation, mother said that while playing with Francisco one day in December, the child asked her to lick my butt. When she questioned him about this, Francisco disclosed that his paternal uncle, Nassir A., had licked his genitals and his buttocks.

Father admitted that he and mother argued frequently, but said that they would make up and have sex afterward. He showed the social worker scars on his forearms and left calf from the June 2005 altercation with mother in which mother had scratched him. He admitted that the incident had occurred in Franciscos presence and that Francisco had witnessed the scratching. Father denied ever having forcible sex with mother.

On January 12, 2006, the social worker interviewed paternal uncle Nassir A., the paternal grandmother, Nadera A., and paternal aunt Baseera A. Nassir A. denied molesting or sexually abusing Francisco, and said that he has not been alone with his nephew because the paternal grandmother bathes Francisco when father is absent. The paternal grandmother stated that she bathes Francisco and helps him clean himself after using the bathroom, and that Nassir A. has not been doing so. Paternal aunt Baseera A. stated that she did not believe Nassir A. had sexually abused Francisco.

An interim review report dated February 21, 2006, stated that Francisco appeared to be safe in mothers care and custody. Father had completed a parenting program and was investigating domestic violence programs. Mother had enrolled in a parenting program and had completed two sessions, but discontinued the program when she resumed working. Mother was enrolled in a domestic violence and therapy program.

C. March 1, 2006 Adjudication Hearing

In a report dated March 1, 2006, the Department described its efforts to accommodate fathers request for a Farsi speaking monitor to oversee his visits with Francisco. Father had enrolled in parenting and domestic violence programs. The report included the social workers summary of an interview with maternal aunt Norma A. Norma said that in December 2005 she had witnessed Francisco laughing and touching his buttocks and saying, Tia Norma, lick my butt. She stated that Francisco appeared to be preoccupied with sex and would tell her, Youre sexy. Norma also said she heard Francisco call his mother a bitch many times. She noted that since Franciscos placement with mother, his behavior had improved dramatically.

At the March 1, 2006 hearing to adjudicate the section 300 petition, the juvenile court struck the allegation, under section 300, subdivision (a), that Francisco was at risk of suffering serious physical harm inflicted upon him by his parents as the result of domestic violence between them. The juvenile court found to be true the allegation, under section 300, subdivision (b)(1), that domestic violence between the parents endangered Franciscos physical and emotional health and safety. The court amended the allegation under subdivision (b)(2) concerning sexual abuse by paternal uncle Nassir A., to delete any reference to mothers or fathers failure to take action to protect Francisco once they knew of the abuse. The juvenile court struck the allegation under section 300, subdivision (d)(1), that Francisco had been sexually abused by the paternal uncle, as unnecessary. The court then sustained the petition as amended.[2]

D. May 24, 2006 Disposition Hearing

In a supplemental report dated May 24, 2006, the Department stated that mother and father were meeting and talking to one another on a daily basis and that they were discussing the possibility of marriage and of living together again. Mother was participating in monthly counseling sessions, and father was enrolled in a domestic violence program and looking for full-time employment. Six monitored visits between father and Francisco had gone well, and the Department recommended unmonitored visitation for father on the condition that there be no contact between Francisco and paternal uncle Nassir A. The Department reported on a separate domestic violence case involving fathers brother, Baseer A. Father stated that Baseer A. did not live in fathers home.

At a contested disposition hearing held on May 24, 2006, the juvenile court declared Francisco to be a dependent of the court and placed him in mothers home under the Departments supervision. The juvenile court ordered domestic violence counseling and family maintenance services for mother and domestic violence counseling and family reunification services for father. The court further ordered co-joint counseling for father and Francisco when Franciscos therapist found it appropriate to do so. Father was accorded unmonitored day visits and overnight weekend visits after three successful monitored day visits had been completed, on the condition that there be no contact between Francisco and paternal uncle Nassir A.

Father filed this appeal.

DISCUSSION

A. Standard of Review

We review the juveniles courts jurisdictional findings under the substantial evidence standard. (In re David M. (2005) 134 Cal.App.4th 822, 829; In re Heather A. (1996) 52 Cal.App.4th 183, 193.) Under this standard, we review the record to determine whether there is any reasonable, credible, and solid evidence to support the juvenile courts conclusions, and we resolve all conflicts in the evidence and make all reasonable inferences from the evidence in support of the courts orders. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393.) We review the juvenile courts selection of a dispositional order for a minor for abuse of discretion. (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006.)

B. Jurisdictional Findings

Section 300, subdivision (b) accords the juvenile court jurisdiction over a child if [t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child . . . . The statutory definition consists of three elements: (1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) serious physical harm or illness to the minor, or a substantial risk of such harm or illness. [Citation.] The third element effectively requires a showing that at the time of the jurisdiction hearing the child is at substantial risk of serious physical harm in the future (e.g., evidence showing a substantial risk that past physical harm will reoccur). [Citations.] [Citation.] (In re David M., supra, 134 Cal.App.4th at p. 829.)

1. Domestic Violence

Father contends there was insufficient evidence to support the juvenile courts findings that the parents history of domestic violence caused serious harm to Francisco and presented a substantial risk of future harm. Substantial evidence supports the juvenile courts findings as to causation and risk of reoccurring harm.

Father and mother admitted that they argued frequently and that these arguments sometimes became violent. Both parents had obtained restraining orders against the other. Mother said that father choked her and raped her, and that she scratched him in order to get away. Father admitted that Francisco witnessed an altercation during which mother scratched father severely enough to leave scars on his body. Francisco told a Department social worker that his parents fight, curse at each other, and do karate and that mother had made father bleed. There was evidence that exposure to his parents domestic violence caused behavioral problems in Francisco. Father and mother said that Francisco was behaving in an aggressive manner at school, and mother and her family said that Francisco called her a bitch and used bad language when he was upset.

The parents continuing interaction with one another presented an ongoing risk to Francisco. Although mother and father no longer lived together, they stayed at a hotel together with Francisco in December 2005. A violent altercation ensued that required law enforcement intervention. A social worker who met with mother immediately after the incident observed scratches and bruises on mothers face. In May 2006, mother and father were discussing the possibility of marriage and of living together again. Although both parents were participating in domestic violence programs, father continued to blame mother and her family for the Departments intervention, instead of acknowledging his own problems with violence and anger management. Substantial evidence supports the juvenile courts jurisdictional findings that the parents domestic violence caused serious harm to Francisco and presented a substantial risk of future harm.

2. Sexual Abuse

Father contends that the juvenile courts finding that both parents took appropriate action to protect Francisco once they knew he had been sexually abused precluded the court from assuming jurisdiction over Francisco under section 300, subdivision (b). He argues that because the parents took appropriate action to protect Francisco, there was no substantial risk of future harm.

Substantial evidence supports the juvenile court findings that Francisco was harmed by sexual abuse and that there was a continuing risk of future harm. Francisco disclosed to both parents and to a social worker that Nassir A. had sexually abused him. Nassir A. admitted that he had bathed with Francisco and cleaned the childs genitals. Although Francisco engaged in sexualized behavior consistent with his disclosures of sexual abuse, father and other members of fathers family did not believe the abuse had occurred. Despite fathers agreement to abide by the courts order prohibiting contact between Francisco and Nassir A., there was an ongoing risk of harm, as Nassir A. continued to reside in fathers home.

C. Disposition Orders

Father challenges the juvenile courts disposition orders on the grounds that the court failed to consider less drastic alternatives to removing Francisco from his custody and that the courts visitation order is unclear. Father did not raise any of these objections at the disposition hearing and arguably waived the right to do so on appeal. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338-1339.) Even absent such waiver, the record discloses no abuse of discretion by the juvenile court.

At a dispositional hearing, the juvenile courts findings must be made on clear and convincing evidence. The court must find that the welfare of the child requires that she be removed from parental custody because of a substantial danger, or risk of danger, to her physical health if she is returned home and that there are no reasonable means to protect her without removing her. [Citations.] (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.) We review the juvenile courts findings using the substantial evidence test, bearing in mind the heightened burden of proof. (Ibid.)

Substantial evidence supports the juvenile courts decision that removing Francisco from fathers custody was necessary to protect him from a continuing risk of sexual abuse and exposure to domestic violence. The incidents of domestic violence between mother and father occurred in fathers home. Although the parents lived apart, their continued interaction with one another presented a substantial risk of future violence. Nassir A., who had sexually abused Francisco, continued to live in fathers home.

The visitation order is clear. The juvenile courts February 6, 2006 order accorded father twice weekly monitored visits of at least two hours duration. The courts May 24, 2006 order allows those visits to be unmonitored, and after three unmonitored day visits, father may have overnight weekend visits, provided that Nassir A. have no contact whatsoever with Francisco.

DISPOSITION

The orders establishing juvenile court jurisdiction over Francisco, removing him from fathers custody and according father visitation, are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

____________________, J.

CHAVEZ

We concur:

_______________________, Acting P. J.

DOI TODD

_______________________, J.

ASHMANN-GERST

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

[2] The juvenile court amended the section 300 petition to delete the allegation that mother and father failed to take action to protect Francisco upon learning of the abuse and to state instead that both parents took appropriate action once they knew of the abuse. The record on appeal did not include a copy of the petition as amended by the juvenile court on March 1, 2006. We ordered the clerk of the juvenile court to augment the record to include the amended petition.