In re Michael R.

Filed 4/5/07 In re Michael R. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kings County. Julienne Rynda, Temporary Judge. (Pursuant to Cal. Const., art. VI,  21.)

Roland Simoncini, under appointment by the Court of Appeal, for Defendant and Appellant.

Peter D. Moock, King County Counsel, and Bryan C. Walters, Deputy County Counsel for Plaintiff and Respondent.

Jennifer Lee Giuliani for the Minors.

-ooOoo-

Appellant Charlene R. (Mother) appeals from the jurisdictional findings and dispositional orders of the juvenile court regarding her three children. She contends there was insufficient evidence to support the petitions allegations and the removal of the children from the home. We reverse the dispositional orders as to two of the children and affirm the orders in all other respects.

FACTS

Mother and Father (together, the parents) have three children. When the family came to the attention of the Kings County Human Services Agency (the agency) on January 20, 2006,^[1]Michael was 15 years old, Catelynn was 13 years old, and Sydney was 10 years old. A school teacher reported that he or she suspected Catelynn was pregnant and Sydney was depressed.

When the deputies arrived at the house that evening, they asked Mother and Father about Catelynns pregnancy. Father did not believe Catelynn was pregnant. He thought she had gained weight from inactivity. He explained he worked long hours and rarely saw his children. Mother admitted knowing Catelynn was pregnant and told the deputies the father of the baby was an unknown boy from church camp. Mother thought Catelynn was about eight months pregnant, although Catelynn had not received any prenatal care during the pregnancy.

When asked where Catelynn was, Mother claimed she was at a friends house and Mother did not know how to contact her. But when the deputies said they would not leave until they spoke to Catelynn, Mother admitted she knew where to find her and she left to bring her home.

When Mother and Catelynn returned, the deputies asked Catelynn who the father of her baby was. Mother told the deputies that Catelynn had just told her on the drive back that Michael, her brother, was the father of the baby. Catelynn told the deputies she and Michael were in his bedroom and one of them had the idea to experiment with each other sexually. Michael got a condom from his parents room, where Mother was sleeping. Michael returned, put on the condom, masturbated and ejaculated onto Catelynns vaginal area. She said they did not have intercourse.

When the deputies interviewed Michael, he told them he and Catelynn had engaged in sexual intercourse on three separate occasions. Both their parents were gone the first time they had sex. On the last occasion, he did not wear a condom and ejaculated inside Catelynns vagina. When Catelynn was told Michaels story, she claimed he was lying.

Mother said she knew Catelynn had missed her period in early June. In Early November, Catelynn began wearing baggier clothes and Mother became curious. About a week before Thanksgiving, Mother gave Catelynn a pregnancy test. Mother said she found out Michael was the father about two or three days before Thanksgiving. The three of them decided not to tell anyone, including Father, about the pregnancy. Mother did not obtain prenatal care for Catelynn because she did not want anyone to know Catelynn was pregnant. Mother did not believe it was illegal for the children to have sexual intercourse and she did not want to report it to save the family the embarrassment.

The social worker was called to the home. Catelynn told her she and Michael agreed to mess around. They never had intercourse, but he ejaculated on her and sperm got inside her. She claimed the sexual conduct occurred only one time. She had never had sex with anyone but Michael, so he was the only possible father. When she got pregnant, they decided to tell Mother, who made up the story that Catelynn got pregnant from a boy at church camp and decided they would hide the pregnancy from everyone, including Father. Mother planned to take Catelynn out of town to deliver the baby, then give it up for adoption. Catelynn told the social worker Mother bought her baggy clothes to hide the pregnancy. She said Mother had not allowed the siblings to be alone after she found out about the pregnancy.

Michael told the social worker that he and Catelynn had engaged in consensual sex. They both decided to have sex one day and did it on several other occasions. They had sex when Mother was asleep in the other room and they took turns performing oral sex on each other. He said he and Catelynn decided to tell their mother about the pregnancy, at which point Mother and Catelynn made up the story about how Catelynn got pregnant because they were going to give the baby up anyway.

Sydney was unaware of what had happened. She did not know Catelynn was pregnant and she had never seen Catelynn and Michael behaving inappropriately toward each other. She had never been touched inappropriately by anyone in the home.

According to the social worker, Mother told her she had not sought medical care for Catelynn because they did not have medical insurance and because she was struggling to come to terms with the situation. She did not tell Father because she did not want to upset him.

That night, the three children were taken into protective custody. On January 24, the agency filed a petition alleging the children were persons described under Welfare and Institutions Code section 300, subdivisions (b), (d) and (j).^[2]

Mother later told the social worker Catelynn told her she thought she was pregnant in November 2005. She said the incestuous relationship began in May 2005. In December 2005, Catelynn told her Michael was the father. The social worker opined that Mother had minimized the situation and sexual relationship that her children had in that her solution was going to be taking Catelynn out of the area to deliver the baby, give the baby up for adoption, and hope that the problem would resolve itself. The social worker thought Mother failed to understand that the problem was not the pregnancy but the incestuous relationship between her two children. The social worker also learned the family had medical insurance.

During the regular visits between the parents and the children, the family exhibited very appropriate behavior and interaction. Catelynn and Michael interacted as normal siblings. No tension appeared to exist between them.

Father felt that Mother was already going through a lot and thought she was being blamed for what had happened. He asked to take the punishment for his son and move out so that the children could go back home.

On April 26, the agency filed an amended petition, alleging the parents knew or reasonably should have known of Catelynn and Michaels incest and failed to protect them from that sexual abuse and that the parents knew or reasonably should have known of Catelynns pregnancy and failed to provide her with proper medical care (b-1 and b-2); that Michael was sexually abused when Catelynn engaged in incestuous acts with him, which included vaginal penetration and oral copulation and resulted in a pregnancy (d-1); that Catelynn was sexually abused when Michael engaged in the same incestuous acts with him (d-2); that the parents knew or reasonably should have known that Catelynn and Michael were engaged in incest and failed to prevent the incest from occurring (d-3 and d-4); that Sydney was at a substantial risk of being sexually abused (d-5); and that Sydney was at a substantial risk of being similarly sexually abused by becoming a victim of incest due to her siblings abuse (j-1).

At the jurisdictional hearing on April 28, the agency submitted its case on the reports filed on February 14, March 16, and April 26. Mother and Father called Christy Watts, one of the social workers assigned to the case. Watts testified that she believed, but was not certain, that Catelynn and Michael did not have sex again after Mother found out and kept them separated; Watts had no specific reason to believe they did. Watts did not know what Mother could have done to prevent the sexual abuse in the first place. Watts admitted the agency was not alleging Mother knew the children were having sex and was not alleging Mothers conduct caused the children to have sex. Watts stated there was no longer any risk of harm to Catelynn due to the parents failure to provide her with prenatal care because the baby had been delivered without incident.

Watts testified that an appropriate response of parents learning of their childrens incest would be to seek professional counseling for the children. Although Mother told Watts she never left the children alone after learning that they had had sex together, the family did continue living together. Watts did not have any reason to feel confident that Catelynn and Michael would not engage in sex again in the future. Watts believed the family needed counseling to learn how to live together with appropriate boundaries and to prevent long-term consequences to all three children.

Mother testified that she had wondered if Catelynn was getting her period. Finally Catelynn told her she had had sex with Michael. Mother had noticed no unusual behavior between Catelynn and Michael. Mother asked Catelynn why they thought it would be okay to have sex together and Catelynn told her they just decided it was a good idea and they did it. Mother talked to Catelynn alone; she did not discuss it with Michael but made him aware that she knew about it. She kept Catelynn and Michael separated, taking either the girls or Michael with her when she left the house. At home, she kept the children under constant supervision. During the night, Catelynn and Michael slept in their separate rooms and Mother trusted them at their word that it would not happen again. As far as Mother knew, it did not happen again. Neither child told her it had happened. Although Michael said they had sex while Mother was asleep in the house, he also said they were no longer having sex and Mother believed him. Mother said she stayed up at night and slept during the day. She kept her door and the girls door open so there was no chance that Michael sneaked into their room or they sneaked out during the night. Mother believed the children would not engage in sex again, but she still kept watch to make sure.

Mother testified she chose not to tell Father about the pregnancy because she did not know how he would react. Catelynn had a very good relationship with Father, and Mother wanted to protect and preserve that relationship. Mother said she had previously spoken to all three of her children about sex, pregnancy, and inappropriate touchings. She did not specifically mention incest. She and Father did not engage in sexually demonstrative behavior in front of the children. The children were not permitted to view sexual websites or television shows.

Mother did not believe her children had been sexually abused. She thought they made a bad decision but did not abuse each other. She admitted she would never have disclosed or reported anything if the teacher had not noticed Catelynn was pregnant. Mother believed the incest was over.

Father testified he did not know his children were engaged in an incestual relationship. He never saw them touching inappropriately and never noticed any change in their behavior. He had no idea Catelynn was pregnant until the deputies arrived at his house. He spent most of his time working and had very little time to spend with the children. Father explained he was upset and hurt and wanted his children back so they could be a family again and get through their problems.

After considering the reports and the testimony, the juvenile court found all the allegations of the petition true. The court adjudged the children dependents and removed them from the parents custody and care.

On September 14, Catelynn and Sydney were returned to the parents. Michael was returned to the parents on March 14, 2007.^[3]

DISCUSSION

I. Standard of Review

In reviewing the jurisdictional findings and the dispositional orders of the juvenile court, we determine whether substantial evidence, contradicted or uncontradicted, supports them. (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the juvenile court; we review the record in the light most favorable to the juvenile courts determinations; and we note that issues of fact, weight, and credibility are the province of the juvenile court. (Ibid.; In re Shelley J. (1998) 68 Cal.App.4th 322, 329.) The party challenging the juvenile courts order has the burden of showing there is no evidence of a sufficiently substantial nature to support the order. (In re L.Y.L. (2002) 101 Cal.App.4th 942. 947.)

II. Jurisdiction

Mother contends the evidence was insufficient to support the juvenile courts finding of jurisdiction over the three children under section 300, subdivisions (b), (d) and (j). We conclude sufficient evidence supported the jurisdictional findings under sections 300(d) and 300(j).

To make a jurisdictional finding, the juvenile court must find by a preponderance of the evidence that the child comes within at least one of the subdivisions of section 300. (In re Heather A., supra, 52 Cal.App.4th at p. 193;  355 [standard of proof at the jurisdictional stage is preponderance of the evidence].) The juvenile court can establish jurisdiction by finding only one of several allegations true. (See 300 [Any child who comes within any of the following descriptions is within the jurisdiction of the juvenile court, italics added].) Similarly, on appeal, we may affirm the jurisdictional finding if the evidence supports the decision on any one of several grounds.(In re Jonathan B. (1992) 5 Cal.App.4th 873, 875.)
Dependency jurisdiction is taken over the child -- not the parent -- when the child needs to be protected. ( 300; see In re Alysha S. (1996) 51 Cal.App.4th 393, 397.) A petition to declare a child a dependent of the juvenile court is not a charge against the parents; rather the petition describes the basis for acquiring jurisdiction over the child. The purpose of juvenile dependency law is to protect the child, not to prosecute the parent. (Ibid.)

[A]ny matter or information relevant and material to the circumstances or acts which are alleged to bring [the child] within the jurisdiction of the juvenile court is admissible and may be received in evidence at the jurisdictional hearing. (In re Sheila B. (1993) 19 Cal.App.4th 187, 198.) 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 minor to the defined risk of harm. [Citations.] (In re Rocco M. (1991) 1 Cal.App.4th 814, 824.) Thus, past conduct, standing alone, does not establish a substantial risk of harm; there must be some reason beyond mere speculation to believe they will reoccur. [Citations.] (In re Ricardo L. (2003) 109 Cal.App.4th 552, 564-565; In re Rocco, supra, at p. 824 [there must be some reason to believe the acts may continue in the future]; In re James B. (1986) 184 Cal.App.3d 524, 529-530 [jurisdiction is necessary if parent is unwilling or unlikely to protect children against threat of similar harm in the future].)

Catelynn and Michael

Under section 300(d), the juvenile court may take jurisdiction over a child 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, 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. (Italics added.)

Penal Code section 11165.1 lists a variety of behaviors that qualify as sexual abuse, including both child molestation and sexual assault. Sexual assault includes conduct that violates Section 261 (rape), subdivision (d) of Section 261.5 (statutory rape), 264.1 (rape in concert), 285 (incest), 286 (sodomy), subdivision (a) or (b), or paragraph (1) of subdivision (c) of Section 288 (lewd or lascivious acts upon a child [under 14 years of age]), 288a (oral copulation), 289 (sexual penetration), or 647.6 (child molestation). (Pen. Code,  11165.1, subd. (a).) In addition, sexual assault also includes conduct described as follows: Any penetration, however slight, of the vagina or anal opening of one person by the penis of another person, whether or not there is the emission of semen (Pen. Code,  11165.1, subd. (b)(1)); [a]ny sexual contact between the genitals or anal opening of one person and the mouth or tongue of another person (Pen. Code,  11165.1, subd. (b)(2)); and [a]ny intrusion by one person into the genitals or anal opening of another person, including the use of any object for this purpose, except that, it does not include acts performed for a valid medical purpose (Pen. Code,  11165.1, subd. (b)(3)).

We disagree with Mother that the childrens voluntary sexual activity did not constitute sexual abuse within the meaning of Penal Code section 11165.1. The childrens behavior, which included oral copulation and sexual intercourse, clearly fell within the qualifying behavior described in section 11165.1, subdivision (b).^[4]

Furthermore, Mothers argument that the juvenile courts finding of jurisdiction under section 300(d) required a finding of fault on her part flies in the face of statutory language and well-settled case law. Section 300(d) states the court may take jurisdiction over a child 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 . As an alternative basis, the subdivision provides the court may take jurisdiction when the parent or guardian has failed to adequately protect the child from sexual abuse when the parent knew or reasonably should have known that the child was in danger of sexual abuse. Moreover, Mothers argument was rejected in both In re Nicole B. (1979) 93 Cal.App.3d 874 (Nicole B.) and In re Jennifer P. (1985)174 Cal.App.3d 322 (Jennifer P.) in the context of the former section 300(d). The court in Nicole B. explained: Under subdivision [d] of section 300, the jurisdiction of the juvenile court extends to any person whose home is unfit by reason of certain conditions. The fitness of the parent is not, under this subdivision, in issue as it might be in a proceeding under section 300, subdivision (b) [citation]. (Nicole B., supra, at p. 878.) The authority of the court to assume jurisdiction is based on a determination that one of these apparent exigent circumstances [listed under section 300] exists, indicating the minor may be in need of assistance. (Id. at p. 879.) In Jennifer P., the court stated: We have no trouble rejecting this aspect of [the mothers] argument. Section 300(d) embodies a strict liability concept in the sense the courts assumption of jurisdiction is appropriate whenever the juveniles home is presently unfit, regardless of whether the unfitness is due to the fault of the parent(s) or some other reason. The courts involvement in wardship matters is not necessarily based on a parents wrongdoing. It is the welfare of the child which is of paramount concern [citations]. [Citation.] (Jennifer P., supra, at p. 326, fn. 3.)

In this case, there was evidence that Catelynn and Michael were sexually abused by each other when they engaged in sexual activity and there was reason beyond mere speculation to believe at the time of the hearing that the sexual abuse would occur again in the future. As the agency argues, Mothers best efforts and plans to keep the children separated and to watch them unceasingly through the night were not reasonable or likely to be effective. She wanted to trust the children and believe they would not engage in sexual activity again, but even she believed her constant vigilance was required while the children lived in the same household. In the past, the children had engaged in undetected sexual activity while Mother was present in the house. Furthermore, the social worker stated she had no reason to be confident the sexual abuse would not continue. Sufficient evidence supported a finding of jurisdiction over Catelynn and Michael under section 300(d).^[5]

Sydney

Under section 300(j), the juvenile court may take jurisdiction over a child whose sibling has been sexually abused when there is a substantial risk that the child also will be sexually abused. The court must consider 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(j).) Here, substantial evidence supported the juvenile courts jurisdictional finding that Catelynn and Michael had been sexually abused, and Sydney, who was only a few years younger than Catelynn, was therefore placed at substantial risk of similar sexual abuse by Michael. As we explained, Mother was unlikely to succeed in keeping Michael separated from the girls at all times, including when Mother was sleeping. Michael and Catelynn had made a matter-of-fact decision to have sex because it seemed like a good idea and had avoided suspicion or detection. Once Mother learned of the incest, she did not even discuss it with Michael. The court was justified in finding substantial risk that Sydney could become involved in similar abuse and required the protection of the court.^[6]

III. Removal

Mother contends, and the agency concedes, that removal of all three children from the home was unnecessary because removal of Michael alone would have eliminated the need to remove the girls. We agree and find substantial evidence to support Michaels removal.

According to section 361, subdivision (c)(4), [a] dependent child may not be taken from the physical custody of his or her parents or guardian or guardians with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence [t]he minor or a sibling of the minor has been sexually abused, or is deemed to be at substantial risk of being sexually abused, by a parent, guardian, or member of his or her household, or other person known to his or her parent, and there are no reasonable means by which the minor can be protected from further sexual abuse or a substantial risk of sexual abuse without removing the minor from his or her parent or guardian, or the minor does not wish to return to his or her parent or guardian. (Italics added.)

As we have stated, in reviewing the sufficiency of the evidence to support the dispositional finding, we employ the same standard of review as that applied to jurisdictional findings. (In re Brison C. (2000) 81 Cal.App.4th 1373, 1378-1379.) Also, we note that the juvenile court has broad discretion to fashion a dispositional order in accordance with the childs best interests. The courts dispositional order will not be disturbed absent a clear abuse of that discretion. (In re Tanis H . (1997) 59 Cal.App.4th 1218, 1227.)

We believe ample evidence supported the juvenile courts order for continued removal of Michael in that he needed to be separated from the girls, but we also agree that his removal eliminated the need to remove the girls from their parents home. The order removing them was therefore an abuse of discretion. As we have been informed, the children have since been returned to their home. We nevertheless reverse the dispositional orders as to Catelynn and Sydney and remand for any further proceedings in light of this opinion.^[7]

DISPOSITION

The dispositional orders removing Catelynn and Sydney from the parents home are reversed. The remaining lower courts orders are affirmed. The matter is remanded to the juvenile court for further proceedings.

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Kane, J.

WE CONCUR:

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Harris, Acting P.J.

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Dawson, J.

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^[1] All references to dates are to 2006 unless otherwise noted.

^[2] All statutory references are to the Welfare and Institutions Code unless otherwise noted. We sometimes refer to these provisions as sections 300(b), 300(d), and 300(j).

^[3] We take judicial notice of the minute orders and orders after hearing. (Evid. Code,  452, subd. (c), (d); see In re Karen G. (2004) 121 Cal.App.4th 1384, 1390 [official acts and records of a court are expressly declared to be proper subjects of judicial notice].)

^[4] We also note that Michaels acts upon Catelynn, who was under the age of 14 years, constituted behavior in violation of section 288 and therefore qualified as sexual abuse under Penal Code section 11165.1, subdivision (a); Catelynns consent to and voluntary participation in the sexual conduct was irrelevant. (In re John L. (1989) 209 Cal.App.3d 1137, 1140 [consensual sexual contact between minors where one is over 14 years [Michael was approximately 14 years 9 months in May 2005] and one is under 14 years of age is within the ambit of section 288, subdivision (a)].) As the agency notes, Penal Code section 285, which prohibits incest, provides: Persons being within the degrees of consanguinity within which marriages are declared by law to be incestuous and void, who intermarry with each other, or who being 14 years of age or older, commit fornication or adultery with each other, are punishable by imprisonment in the state prison. This provision was amended in 2005 (Stats. 2005, c. 477 (S.B.33), 1), effective January 1, 2006, to include the italicized age limitation, which did not exist when the childrens sexual activity apparently occurred. But, having determined their sexual activity constituted sexual abuse as described by subdivision (b) of Penal Code section 11165.1, we need not address the applicability of Penal Code section 285.

^[5] Having so found, we need not address the other allegations regarding Catelynn and Michael. (In re Jonathan B., supra, 5 Cal.App.4th at pp. 875-876 [reviewing court may affirm a juvenile courts jurisdictional ruling if the evidence supports the decision on any one of several grounds].)

^[6] Again, we need not address alternative grounds for jurisdiction over Sydney. (In re Jonathan B., supra, 5 Cal.App.4th at pp. 875-876.)

^[7] [W]hen an issue raised in a timely notice of appeal continues to affect the rights of the child or the parents, the appeal is not necessarily rendered moot by the dismissal of the underlying dependency proceedings. (In re Hirenia C. (1993) 18 Cal.App.4th 504, 517-518.) Accordingly, the question of mootness must be decided on a case-by-case basis. (Id. at p. 518.) Here, although the children have been returned to the parents custody, dependency jurisdiction has not been dismissed. If the children are removed from the parents custody a second time, their previous detention would continue to affect the parents rights. (See 366.21, subd. (f) [limiting reunification services to 12 months].) Therefore, the appeal is not moot.