In re Amanda T. CA1/4 ( 2021 )

Filed 9/10/21 In re Amanda T. CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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 FOUR
In re Amanda T., a Person Coming
Under the Juvenile Court Law.
ALAMEDA COUNTY SOCIAL A161044
SERVICES AGENCY,
(Alameda County Super. Ct.
Plaintiff and Respondent, No. JD-032096-01)
v.
ILENE T.,
Defendant and Appellant.
Amanda T., now 12 years old, who had been sexually molested by her
mother’s live-in boyfriend, was ordered removed from her mother’s custody
and placed with her father in September 2020. Ilene T. (Mother) appeals,
alleging there was no substantial evidence to support the removal order. We
find there was substantial evidence and shall affirm the disposition orders.
I. BACKGROUND
A. The Facts
Mother and Ray T. (Father) are a married couple but have been
separated since 2015. Before the initiation of this case, Mother, who is 51
years old, had primary custody of Amanda and her older brother, Spencer.
The parents lived within a block of one another, so exchange of custody was
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convenient. Mother was a geriatric social worker with a master’s degree in
social work. As such, she was a mandated reporter trained in reporting
requirements. Father was disabled and did not work, so he usually picked up
Amanda and Spencer from school. The children would do homework at
Father’s house until Mother got home from work. Father also took Amanda
to her ice hockey practice twice a week, to Hebrew and Sunday school, and for
overnights at his house every two weeks.
In September 2017, Mother met Jeff L., now age 46, and he moved in
with her and the children in February 2018. He helped Mother with the rent
by performing handyman tasks for the landlord. Jeff had used
methamphetamine since about 2016. He also engaged in domestic violence in
a previous relationship. Mother was aware of Jeff’s history of being in jail,
abusing drugs, and engaging in domestic violence, but she thought he was
“over it.”
In the early morning hours of January 14, 2020, Amanda, then age 10,
who was sleeping naked in her own bed, crawled into bed with Mother and
Jeff after becoming worried about going to sleep-away science camp the next
day. Jeff was also naked, and Mother let Amanda snuggle in between the
two adults. When Amanda woke up later that morning, she told Mother that
Jeff had rubbed his penis up against her vagina and then had “ ‘wet’ the bed.”
Mother testified at the jurisdiction hearing that she woke up and felt a wet
spot next to her ear, and that’s when Amanda told her that Jeff had wet the
bed. Amanda demonstrated to Mother that Jeff’s penis went about a quarter
of an inch into her vagina. Mother thought the wet spot looked and felt like a
semen stain, and from its location on the bed did not think it could have
resulted from her own sexual activity with Jeff. After Amanda disclosed the
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molestation, Mother did not think she seemed upset and drove her to science
camp where she stayed for three days.
Mother confronted Jeff about Amanda’s accusation, and he said he did
not know whether he had rubbed his penis against Amanda’s vagina. Mother
was concerned she could get into trouble as a mandated reporter and did
some research to find out if the alleged acts were illegal. Mother did not
want to believe Jeff had done this, and she wanted to contain the fallout
within herself without involving the authorities or impacting the family. She
did keep it a secret, too, until the whole thing “got too out of control and too
big.” She told no one, not even Father or her parents, about Amanda’s
allegation for two weeks. Mother admits she was in denial and was
minimizing the episode. After two weeks, Mother told a friend, and the
friend told her to “do something about it.” After three weeks, Mother finally
went to the police. Jeff continued to live in the house during her delay.
Six months previously, Amanda had reported to Mother that Jeff
touched her vagina while sitting on her bed and saying goodnight to her.
When Mother asked him about it, Jeff did not deny it, yet Mother “thought it
was nothing” and dismissed Amanda’s report. Mother did not report the
touching incident to the authorities. She later testified she knew what were
reportable incidents for older adults, but did not know reportable incidents
for children. Mother also said she did not report Amanda’s complaint about
inappropriate touching because she did not want to falsely accuse Jeff. She
had never seen him touch Amanda inappropriately and thought Amanda was
more likely to touch him and explore his body. She had witnessed Amanda
do this and told her it was inappropriate.
Prior to this incident, Amanda had been hospitalized three times in
February and March 2019 under Welfare and Institutions Code section
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5150.1 She had cried, screamed, kicked, hit things, and threatened to commit
suicide at the time of these hospitalizations, but she had never reported
sexual abuse. She once attempted suicide about a year before this incident.
At least one of the hospitalizations was the result of inappropriate sexual
touching or sexual play with a peer at school.
As a result of the hospitalizations, Amanda had been evaluated for
medication, and she received therapy, school counseling, biofeedback, and a
special school plan for disabled students due to her “emotional disturbance.”
Her psychiatrist had prescribed Prozac and Guanfacine for her for mood and
anxiety issues.
On February 4, 2020, Mother reported the January 14 incident to the
police and to the Alameda County Social Services Agency (Agency). On the
same day, she told Jeff he needed to make plans to move out. She was
coming to understand he had pushed his way into her home. Later that day,
Amanda was interviewed at the Child Abuse Listening, Interviewing and
Coordination Center (CALICO). Amanda told the interviewer she usually
sleeps naked, and the night before going to science camp, she got into
Mother’s bed and woke Mother. It was Mother’s idea that she sleep in the
middle of the adults so she would not fall off the bed. Jeff was naked and
Mother had on underwear and a shirt. After Mother fell back asleep,
Amanda was facing toward Jeff, and Jeff put his “pee-hole” into her “pee-
hole.” He used his hands to pull her towards himself repeatedly as she
changed her position in the bed. She thought he then urinated, but Mother
told her the wetness was something else. In the morning she told Mother,
who told her not to worry while she was away at camp.
1 Undesignated statutory references are to the Welfare and Institutions
Code.
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Jeff continued to live in the home after the incident, but Mother would
not let Amanda sleep in the adults’ bed or allow her to be alone with Jeff.
Amanda had seen Mother shaking because she was nervous around Jeff, but
Mother said if he moved out their rent would go up. Amanda had not told
anyone else what had happened with Jeff.
Amanda also told the CALICO interviewer that in August 2019, she
went into Mother’s bed while Mother was in the bathroom getting ready for
bed. Jeff was wearing sweatpants, and Amanda could not remember if she
was naked or wearing underwear. She was watching videos on the phone,
and Jeff pulled down his sweatpants so his penis was exposed and put it into
her “butt.” Mother came into the room and took Amanda back to her own
bedroom. Mother later testified that she did not know of this sodomy
incident until after the CALICO interview.
On February 4, 2020, a warrant was issued for Jeff’s arrest on the basis
of Mother’s report and Amanda’s interview. Jeff was taken into custody the
next day. When he was arrested, he had more than five grams of
methamphetamine and a meth pipe in his possession. Mother and Spencer
told the police that Amanda frequently walked around the house naked. Jeff
admitted Amanda sometimes slept in the bed with him and Mother and
admitted he had slept naked with her in the bed. He admitted observing the
wet spot as described by Amanda, denied acting with intent, and said he did
not know if Amanda was lying. The police issued an emergency protective
order for Amanda. When the police arrived to arrest Jeff, Mother admitted
she knew of Jeff’s past domestic violence and other history, but she did not
think he currently used drugs or alcohol and claimed she had seen no red
flags.
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On February 5, 2020, Father said he had not been aware of Amanda’s
allegations of sexual abuse against Jeff until after Mother reported it to the
police. He said he was prepared to provide care for Amanda. On February 4,
2020, Amanda was taken into protective custody and was released to Father
on February 6, 2020. Spencer was deemed not to be at risk and continued
living with Mother.
B. The Dependency Proceedings
1. The Petition and Detention
On February 6, 2020, the Agency filed a petition under section 300,
subdivisions (b)(1) and (d), alleging Amanda was at substantial risk of
physical or emotional harm or sexual abuse due to Mother’s failure to protect
her from sexual abuse by Jeff, occurring on January 14, 2020, reported to
Mother by the child after the child had previously reported sexual abuse by
Jeff six months prior, yet Mother failed to report it until February 4, 2020.
On February 7, 2020, the juvenile court detained Amanda from Mother and
released her to Father (who was declared the presumed father). The court
directed Mother to have visitation supervised by Father until therapeutic
visitation could be arranged, and then it was to be limited to therapeutic
visitation.
2. Jurisdiction
The social worker’s jurisdiction report dated February 27, 2020,
recommended the juvenile court sustain the petition and provide family
maintenance services to Father and Amanda. The social worker
recommended that Amanda participate in mental health services to process
her sexual abuse and to monitor ongoing contact between Mother and
Amanda.
The social worker listed as concerns that Amanda has a history of
mental and emotional health issues, Mother reported difficulty getting Jeff to
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move from her home over a period of time, Mother did not tell Father or
others about the sexual abuse until her disclosure in February 2020, and
Mother lacked insight and judgment to avoid placing Amanda at risk of
further sexual abuse.
The social worker referred Mother for individual therapy, of which
Mother promptly availed herself. On May 8, 2020, Mother obtained a five-
year domestic violence restraining order protecting herself and her two
children from Jeff. By the end of May 2020, Mother had completed a 32-hour
online parenting class.
At the contested jurisdiction hearing on July 30, 2020, Mother testified
she was no longer in a relationship with Jeff. As a social worker herself,
Mother acknowledged she was a mandated reporter and had received
training as such. She testified she saw no sign that Jeff was an abuser but
admitted he took Amanda to stores and bought her gifts. After Amanda
reported the abuse, Mother read up on grooming behavior by child abusers
and realized this could have been grooming behavior. Amanda, too, told the
CALICO interviewer that Jeff used to be really nice to her and buy her
things, but in the past week or two, he wasn’t so nice anymore.
Mother testified that Amanda had engaged in yelling, screaming, and
hitting things, leading to a psychiatric hold when she was nine years old.
Amanda reported that a friend made her pull down her pants at her home,
which apparently led to the first section 5150 commitment. Amanda was
hospitalized under section 5150 on three occasions because she wanted to
“jump out the window.” These events occurred in February and March 2019,
after Jeff had moved into the home. In response, and after having trouble
locating a new psychiatrist to treat her, Mother and Father started Amanda
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with neurofeedback in October 2019, and she had visits with the school
psychologists.
According to Mother’s testimony, on January 14, 2020, she awoke to a
wet spot on the bed by her ear and Amanda told her Jeff had peed. Mother
denied that Amanda told her Jeff had engaged in vaginal or anal intercourse
with her; she testified she learned of that allegation in February 2020 from
the police and social service reports. Mother said Amanda told her Jeff’s
penis touched her and he peed on the bed. She told the police that Amanda
told her Jeff’s penis went into her vagina a quarter of an inch and, when
asked by the court, said she would not consider that intercourse. She
admitted allowing Amanda naked in bed with the couple was not “the best
idea,” but she trusted Jeff. Mother felt she had no role in the abuse.
When Mother was asked at the hearing about Amanda’s report that
Jeff had touched her vagina while putting her to bed, Mother said she
thought Amanda was describing Jeff’s penis accidentally brushing against
her, not an intentional act. She thought Jeff was fully clothed and they were
just “snuggling.” Mother’s testimony was inconsistent with her earlier
admission to the social worker and the police that Amanda told her Jeff had
touched her vagina while putting her to bed.
Mother did not initially report the “touching” or “brushing” incident
because she thought it was “innocent” and did not want to jump to
conclusions with so little information. She noted Amanda was historically
suicidal and emotionally fragile, and Mother apparently did not know
whether to trust her account of the events. When Mother reported the abuse
in February 2020, she suspected it was intentional conduct, but she
emphasized in her report to the police and her testimony that it was only
“suspected” abuse. She also noticed Jeff’s behavior had changed after
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January 14, so she did not allow him to be in the same room alone with
Amanda starting about a week after the incident.
The juvenile court sustained the petition and found Amanda was a
dependent child under section 300, subdivisions (b) and (d). The court made
a negative credibility finding with respect to Mother’s testimony. Visitation
between Mother and Amanda was limited to therapeutic visitation.
3. Disposition
The Agency had filed a July 30, 2020 addendum report before the
jurisdiction hearing, but due to lack of notice to Mother, the court did not
consider that report until the disposition hearing on September 17, 2020. In
the report, the social worker noted that in March 2020, Father expressed
concerns regarding Amanda’s contact with the district attorney handling
Jeff’s case because Amanda had been hitting her head against the wall due to
stress from the criminal prosecution of Jeff and from peer conflicts at school.
Amanda told the social worker she felt safe and comfortable with Father.
She was attending online schooling during the pandemic, weekly therapy, ice
hockey practice with her coach, and visits with Mother. In May, Amanda
completed her school year, and through July 2020, she continued attending
weekly video therapy and monthly psychiatric care to monitor her
medication. By the end of July, Amanda’s self-defeating statements had
decreased and she was not banging her head or becoming overly emotional
when frustrated.
In the same report, the social worker noted that Mother had obtained a
restraining order against Jeff, who remained in custody, and had formally
evicted Jeff from her home. Mother was attending weekly individual therapy
by phone and said she had developed an understanding of grooming, of which
she had previously been unaware. Mother said she now understood she
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should not have allowed Amanda into the adults’ bed when Amanda was
nude. Mother claimed she had tried to get Jeff to move out in September
2019, due to his inattentive treatment of her, but he refused.
Mother thought she had been “very protective” of Amanda; she had
always told Amanda not to let a grown person touch her, and she “trusted
Amanda too much.” She had not reported the abuse because of Amanda’s
history of suicidal tendencies and overwrought behavior, her lack of
specificity, and her desire not to talk about it. Mother said she had wanted to
call the authorities but worried that Jeff might be innocent. If Amanda had
been more specific, she claimed she would have reported it.
The Agency filed an addendum report September 15, 2020, noting that
Mother and Amanda had been referred to The Gathering Place for supervised
visitation, and they had completed two supervised video chat sessions which
were required before in-person visitation could take place. Those visits had
gone well.
At the end of July 2020, Amanda’s therapist reported that Amanda was
not ready for family therapy as she was still unwilling to talk about the abuse
or her feelings toward Mother. Amanda felt a great sense of responsibility for
the abuse, was suffering from anxiety, and was having nightmares. A week
before the disposition hearing, the same therapist again said Amanda was
not ready for family therapy but was beginning to open up during sessions.
Amanda had started saying she did not want to continue therapy, though,
and the therapist was concerned the parents might be sabotaging the
therapeutic process by saying therapy was “too slow.” The social worker was
concerned that Mother continued to minimize the abuse, to place
responsibility on Amanda, and to lack insight. Father had difficulty setting
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limits with Mother, and because he needed help with childcare, he tended to
put that need ahead of Amanda’s emotional welfare.
At the disposition hearing, Mother testified she had learned through
the services provided by the Agency about coparenting skills, parenting
skills, protecting her daughter, and maintaining boundaries in relationships.
Mother said she would now report immediately if Amanda said the same
things to her, even if she questioned the veracity of the report due to
Amanda’s age and history. Mother said she would not bring men into her
home so long as her children lived with her.
Mother claimed she realized after the jurisdiction hearing that she
should not have let Amanda come to bed with her and Jeff just because she
was tired from being busy. She said being busy was one of her excuses and
part of the reason for not wanting to report. Mother said her failure to report
the touching incident in the summer of 2019 was partly due to Amanda’s
having given her barely any information. She said she started to believe
Amanda’s report of the molestations after the CALICO interview. Mother
believed she was ready to resume custody of Amanda, but because her job
would not allow her to provide full-time supervision, she was agreeable to
splitting custody with Father.
The juvenile court declared Amanda a dependent child and ordered
removal from Mother after finding by clear and convincing evidence that
returning Amanda to Mother’s physical custody would cause a “substantial
danger to the physical health, safety, protection, or physical or emotional
well-being of the minor” and there were no reasonable alternative means to
protect Amanda (§ 361, subd. (c)(1)) due to unreported sexual abuse by a
member of the household (id., subd. (c)(4)). The judge said she had some
“issues with the mother’s credibility” in her testimony about belatedly finding
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out this was a reportable event and said she “just [didn’t] find the mother’s
testimony credible.” The judge continued Amanda in the custody of Father
and ordered supervised visitation between Mother and Amanda at least twice
a week. The judge found Mother was not entitled to reunification services
under section 361.2, subdivision (b)(3) (In re Pedro Z. (2010) 190 Cal.App.4th
12, 20–21), but ordered that Mother be provided informal child welfare
services at the discretion of the Agency. The court ordered both parents to
comply with the case plan and set future hearings for review under section
364. Mother timely appealed.
II. DISCUSSION
Mother’s sole contention on appeal is that the juvenile court lacked
sufficient evidence for its order removing Amanda from her custody. To order
removal from parental custody at a disposition hearing, the juvenile court
must find by clear and convincing evidence that one of the circumstances
specified in section 361, subdivision (c) applies, including subdivision (c)(1),
found by the court at disposition. To remove a child from a parent’s custody
under that subdivision, the juvenile court must find by clear and convincing
evidence that: (1) there is a substantial danger to the child’s physical health,
safety, protection, or physical or emotional well-being if the child is returned
home, and (2) there are no reasonable means by which the child can be
protected without removal. (§ 361, subd. (c)(1); In re T.W. (2013)
214 Cal.App.4th 1154, 1163.) Section 361, subdivision (c)(4), also allows
removal if “[t]he minor . . . has been sexually abused . . . by a . . . 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.” Here, the court found removal of Amanda
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from Mother’s custody was necessary for the reasons set forth in the Agency’s
reports, outlined above.
On review of the removal order, we apply the substantial evidence test,
bearing in mind the heightened standard of proof that applies in the trial
court. (In re Nathan E. (2021) 61 Cal.App.5th 114, 123; In re Isayah C. (2004)
118 Cal.App.4th 684, 694–695; see Conservatorship of O.B. (2020) 9 Cal.5th
989, 1005.) “ ‘ “[W]e draw all reasonable inferences from the evidence to
support the findings and orders of the dependency court; we review the record
in the light most favorable to the court’s determinations; and we note that
issues of fact and credibility are the province of the trial court.” [Citation.]
“We do not reweigh the evidence or exercise independent judgment, but
merely determine if there are sufficient facts to support the findings of the
trial court.” ’ ” (In re I.J. (2013) 56 Cal.4th 766, 773.)
To justify removal, the parent need not be dangerous, and the child
need not have been actually harmed. The focus of the statute is on averting
harm to the child. (In re Cole C. (2009) 174 Cal.App.4th 900, 917.) “In this
regard, the court may consider the parent’s past conduct as well as present
circumstances.” (Ibid.) Risk to a child’s physical health and safety may be
inherent in the absence of adequate supervision. (In re Kristin H. (1996)
46 Cal.App.4th 1635, 1650.) A parent’s denial about family problems is also a
relevant factor to consider. (Id. at pp. 1657–1658.) “Although the court must
consider alternatives to removal, it has broad discretion in making a
dispositional order.” (Cole C., at p. 918.) A mother’s disbelief of her
daughter’s claims of sexual abuse may support a removal order. (In re D.C.
(2015) 243 Cal.App.4th 41, 46–48, 55–56, superseded by statute on other
grounds as stated in In re A.M. (2020) 47 Cal.App.5th 303, 322.)
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The evidence in this case supports the trial court’s findings and orders.
Amanda self-reported sexual abuse to Mother but was at first disbelieved and
treated dismissively. To say Mother exercised poor judgment is an
understatement. On one view of the evidence, she practically facilitated the
abuse by placing her naked 10-year-old daughter in bed next to her naked
45-year-old boyfriend even after she had been told six months earlier he had
touched the child’s vagina while putting her to bed. Mother not only failed to
report the abuse but disbelieved her daughter and apparently worried more
about falsely accusing her boyfriend than she did about maintaining
Amanda’s safety. When Amanda told her plainly Jeff had rubbed his penis
against her vagina, Mother’s first reaction was to research whether that was
illegal. She instinctively feared she might get into trouble for failing to
report Amanda’s allegation and seemed more worried about that than about
the abuse.
Mother allowed Jeff to stay in the house for another three weeks,
though perhaps she became more vigilant, until after Amanda’s CALICO
interview, when the police removed him. Even after Amanda told her about
the January 14 molestation, Mother minimized the extent of the abuse by
suggesting Amanda never told her Jeff had “intercourse” with her. And her
definition of “intercourse” so as to exclude a man’s insertion of his penis a
quarter-inch into a child’s vagina was certainly foreign to anyone trained in
the law. (Pen. Code, §§ 261, 263; People v. Earp (1999) 20 Cal.4th 826, 888
[sexual intercourse is the penetration, “ ‘however slight,’ ” of a vagina by a
penis].) Yet, when her daughter turned to her for help, she effectively donned
blinders.
We disagree with Mother that the court’s removal order was based on
nothing but speculation. She cites In re Steve W. (1990) 217 Cal.App.3d 10,
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which involved an order removing an infant from the mother’s care after the
father had been convicted of killing an older child. (Id. at pp. 12–15.) The
mother testified she had no intent of resuming her relationship with the
father. (Id. at p. 15.) The appellate court found the removal order had been
improperly based on “speculation” that the mother “would enter a new
relationship with yet another abusive type of person.” (Id. at pp. 16, 22.) In
Steve W., however, the mother, though aware of the older child’s injuries, had
received an explanation for the injuries which a doctor testified would have
been believable to an untrained person. (Id. at p. 21.) Moreover, the infant
in Steve W. had not been abused himself, and the mother was not guilty of
the kind of emotional betrayal that was involved in this case. Here, the court
had substantial evidence of Mother’s failure to supervise Amanda’s
interactions with Jeff and of real harm to Amanda, both physical and
emotional. Jeff offered no explanation and did not even deny the abuse, yet it
was not clear by disposition if Mother understood and owned her role in the
crisis.
At the time of the disposition, Amanda still was not ready to engage in
family therapy because she was just starting to show more trust and open up
in individual therapy, although she was ambivalent about therapy. Amanda
was doing better in Father’s care, and she engaged in balanced activities, but
the Agency’s reports suggest she had not yet had time to heal emotionally
from Jeff’s molestation and Mother’s apparent lack of concern about it and
disbelief of her reports. Amanda had not fully processed the sexual violation
or worked through feelings of anger or abandonment she felt towards Mother.
Until Amanda becomes more stabilized, the trial court was justified in
finding, by clear and convincing evidence, that she remained at risk and
should be removed from Mother’s care to permit her own mental recovery.
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Mother continued to minimize the abuse, she placed responsibility on
Amanda for her own failings, and she lacked insight into the damage she had
done to Amanda by refusing to believe her and delaying the report of the
molestations. The trial court was justified in concluding Mother had not fully
comprehended by the time of the disposition hearing what she had done
wrong or how to avoid the same error again, for she continued to blame
Amanda’s lack of specificity and reluctance to talk about the abuse for her
own lack of vigilance. Mother believed she had no role in the abuse, but the
juvenile court had evidence to support a contrary finding.
Despite Mother’s rather egregious lapses in judgment, we see no reason
to doubt her stated concern for Amanda’s welfare and her declared resolve to
avoid such lapses in the future. Jeff has been removed from the household
and there is no basis to assume Mother will ever permit a recurrence of the
circumstances leading to the institution of these proceedings. It is incumbent
on Mother to demonstrate that she is now prepared and capable to ensure
that Amanda will feel safe and protected if she regains custody, and the court
must take into account the possibility that extended estrangement from
Amanda may itself have negative effects on the minor. Thus, although we
find evidence to support the juvenile court’s conclusions, close oversight is
critical to ensure that the separation does not extend beyond the point that it
is no longer in Amanda’s best interest.
III. DISPOSITION
The disposition orders filed September 17, 2020, are affirmed, including
the order removing Amanda from Mother’s custody and placing her in
Father’s care.
STREETER, J.
WE CONCUR:
POLLAK, P. J.
BROWN, J.
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