In re S.A. CA2/4 ( 2021 )

Filed 9/16/21 In re S.A. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FOUR
In re S.A. et al., B307669
(Los Angeles County
Persons Coming Under the Juvenile Super. Ct. No. 20CCJP02658A-D)
Court Law.
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
A.O.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County,
Martha Matthews, Judge. Affirmed.
Law Office of Robert McLaughlin and Robert McLaughlin, under
appointment by the Court of Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant
County Counsel, and Brian Mahler, Deputy County Counsel, for Plaintiff and
Respondent.
Appellant A.O. (mother) has four daughters. The oldest daughter
is S.A. (born Jan. 2005), whose father is David A. The younger
daughters are Leilani A. (born June 2012), Sofia A. (born Jan. 2014),
and Mia A. (born Dec. 2016), all of whose father is Axel M. (father).1
The Los Angeles County Department of Children and Family
Services (DCFS) filed a petition pursuant to section 300 of the Welfare
and Institutions Code,2 seeking to have the children declared
dependents of the court. As here relevant, the court sustained the
counts of the petition alleging that the children were at substantial risk
of serious harm based on the parents’ domestic violence (§ 300, subd.
(b)(1), count b-1) and mother’s substance abuse (§ 300, subd. (b)(1),
count b-2); and at risk of physical harm and/or sexual abuse based on
mother’s failure to protect S.A. from sexual abuse by father, which also
endangered mother’s three younger daughters (§ 300, subds. (b)(1), (d),
(j), count b-3).
The juvenile court declared all four children dependents of the
court. The court removed S.A. from mother’s custody and placed her in
David’s custody. As for the disposition plan for the three younger
children, both mother’s and father’s respective counsel informed the
court the parents had chosen to “submit[] the issue of removal to the
1 David A. and father are not parties to this appeal. S.A. is a subject of
the appeal, but mother challenges only select jurisdictional findings and
dispositional orders as to her three youngest children.
2 Unspecified statutory references are to the Welfare and Institutions
Code.
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court.” Thereafter, the court removed all three girls from parental
custody, and parents were given reunification services.
Mother appeals, contending that substantial evidence does not
support assertion of jurisdiction over her three younger daughters on
count b-3 under section 300, subdivisions (b)(1), (d), and (j), in that her
failure to protect S.A. from father’s sexual abuse does not place the
younger daughters at risk of physical or sexual abuse. She does not
challenge the other grounds for asserting jurisdiction. She also
contends that substantial evidence does not support the disposition
order removing the younger children from her custody. We conclude
that mother has forfeited the latter contention which, in any event, is
supported by substantial evidence, and as to the former, we conclude
that substantial evidence supports the court’s jurisdictional findings.3
Therefore, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Initial Investigation
In May 2020, following a referral, a DCFS social worker spoke
with S.A.’s maternal aunt, V.T. (aunt), who reported that S.A. had told
3 DCFS contends that we should not reach the merits of mother’s
contention because she does not contest the other jurisdictional findings that
her three youngest children were at substantial risk of harm (based on the
parents’ domestic violence, mother’s substance abuse, and father’s sexual
abuse of S.A. creating a danger to the children vis-á-vis father), as opposed to
mother’s failure to protect. Because the jurisdictional findings as to the
youngest girls premised on mother’s failure to protect S.A. from father’s
sexual abuse may prejudicially impact mother in the future, we exercise our
discretion to consider the contention. (See In re Drake M. (2012) 211
Cal.App.4th 754, 762-763.)
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her that father inappropriately touched her bra, legs, and body under
her clothing. Mother also told S.A. not to wear “short shorts” because
she did not “trust” father. The aunt informed the social worker that
mother had a history of substance abuse.
S.A. told the social worker that father had repeatedly touched her
back, legs, and body underneath her clothes from the time she was
seven years old, often under the guise of giving her a massage. S.A.
also said that mother drank alcohol daily, and after drinking would
verbally abuse the children by screaming at them and calling them
names (“idiots, stupid, [and] motherfuckers”). S.A. also reported that
mother and father frequently argued, using profanity with one another,
and father threatened to hit mother. S.A. was afraid to return home.
A few days later, the aunt reported that S.A. had disclosed that
father had raped and digitally penetrated her when she was 12 years
old. S.A. independently told the social worker and a police officer that,
in fall 2017, when she was 12 years old, she had been home alone with
father when he came into the room where she was watching television
and caressed her face and inner thigh. Father then grabbed S.A. and
took her into the parents’ bedroom as S.A. tried to fight him off. Father
removed S.A.’s clothes, held her hands behind her head, and painfully
penetrated her vagina with his penis as she pleaded with him to stop.
He was on top of her for 10-to-15 minutes, before ejaculating on her
stomach. Father then told S.A. to get dressed, and threatened to harm
her younger sisters if she revealed what he had done. S.A. went into
the bathroom to clean herself and saw that her vagina was bleeding.
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A few months later, when she was 12 or 13, S.A. was alone in the
bathroom when father came in. He had grabbed S.A.’s wrist and
undressed her as she again pleaded with him to stop. Father told her to
“shut up.” He digitally penetrated S.A.’s vagina for five minutes before
she was able to escape. Thereafter, S.A. feared father would sexually
assault her again. Every time he touched her during the years
following the incidents of abuse, it was in a sexually inappropriate
manner.
The social worker visited the family home and met with mother,
father, and the three youngest children. Father denied having ever
inappropriately touched S.A. Mother said she had never suspected that
father touched S.A. inappropriately. Mother said that she and father
had argued daily for the past two years and that, on occasion, father
engaged in domestic violence against her (pulling her hair and/or
pushing her against a wall). Mother wanted to end the relationship.
Mother acknowledged she had a history of substance abuse.
The social worker spoke with Leilani and Sofia, and each denied
that anyone had ever touched them inappropriately. Sofia confirmed
that mother drank beer in the home. Leilani did not respond when
asked about mother’s alcohol use or her parents’ arguments.
Following a detention hearing on May 19, 2020, the juvenile court
ordered S.A. detained from mother and released to David, and detained
the three younger children from mother and father. The court ordered
monitored visitation for mother, and ordered DCFS to provide her with
drug testing and other case-appropriate referrals.
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The Jurisdiction/Disposition Report and Last Minute Information Report
A forensic examiner interviewed S.A. on May 21, 2020. S.A.
recounted again the circumstances of the rape in the bedroom and the
digital penetration in the bathroom. She said that both incidents
occurred when she was in sixth grade. S.A. did not tell anyone about
the incidents because her emotions at the time were a “wreck,” and she
felt as though she had been “hit by a truck of sadness.” Prior to the
forensic interview, S.A. had a visit with mother, who had broken down
“crying” and said that “she was sorry and that this was all her fault and
that she was a bad mom.”
The social worker interviewed mother on June 10, 2020. Mother
said she began using crystal methamphetamine by the time she was 14,
stopped for a few years, and began using again as a coping mechanism.
Mother reported that she snorted methamphetamine and used cocaine
at home when no one else was around. She said she drank two-to-three
beers a day and fought with father when she got intoxicated.
Mother described her fights with father as primarily screaming at
one another, although she had gone “off on him” once, and the two had
pushed each other. Mother denied that the children had ever seen her
fight with father, but she acknowledged they had seen her cry and “shut
down” at home. Mother believed that she needed therapy to help her
process her emotions and end her substance abuse. Notwithstanding
the domestic violence and accusations of molestation, mother told DCFS
that she relied on father because she mistrusted others and lacked self-
esteem, and father had “helped [her] with [her] personal issues.”
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Mother denied having any awareness that father had sexually
abused S.A. However mother knew that S.A. was “cutting herself,” and
S.A. had “reach[ed] out to older men on the Internet,” including sending
sexual text messages and putting sexually suggestive photos of herself
online. When mother confronted S.A. about her conduct, S.A. locked
herself in a bathroom and cut herself, prompting mother to call for help.
When asked how she planned to respond to the allegations of sexual
abuse, mother said she wanted to protect the children and no longer
wanted to live with father. At the same time, however, mother
described father as “a great father and a great provider” who had given
her a home, and that he was the family’s primary earner. She
reiterated that father was a “great partner” who helped with her
emotional issues.
When the aunt spoke with the social worker, she reported that
mother had recently told her that the dependency case “was [S.A.’s]
fault,” that S.A. “shouldn’t have said anything,” and that she was the
reason “they took away the girls.”
The social worker separately interviewed the three younger
children. Despite reporting that her parents sometimes engaged in
verbal arguments, Leilani did not respond when asked if father ever
tried to hurt mother. Leilani reported that mother drank an adult
beverage from a blue can with the letters “M-O-D-E” on it (later
identified as Modelo beer), which mother described as her “energy
drink.” When Sofia was asked if her parents ever acted “rough” toward
one another, she said father gave mother “pretend hits.” When mother
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was “into trouble” with father, Sofia said her parents would “tell
themselves not to do that ever again,” and father would tell mother to
“calm down so he [wouldn’t] get [angrier].” Mia reported that mother
drank “a lot [of] beers.” When asked how many, the child held up 3, 4,
and then 10 fingers before spreading her arms wide and saying, “this
much.” All three girls denied having been touched in a sexually
inappropriate manner.
Between mid-May and mid-July 2020, mother tested positive for
methamphetamine once (May 19), failed to appear for four weekly drug
tests (on June 8 and 29, and July 10 and 16), and tested negative for
drugs five times (on June 11, 18, and 26, and July 3 and 23). Mother
told DCFS she was attending domestic violence, substance abuse, and
individual counseling programs.
DCFS recommended that the juvenile court assume jurisdiction
over the children and make separate dispositional orders for S.A. and
the three younger girls. As for S.A., DCFS recommended the court
terminate jurisdiction with a final custody order granting David sole
physical custody, and giving mother monitored visitation. DCFS
recommended that the court remove the three younger girls from
parental custody with reunification services in place for both parents.
In an August 2020 last minute information report, DCFS reported
that mother remained enrolled in her programs, including a sexual
abuse education program (in which mother had missed three classes).
Mother’s therapist reported that mother “often seem[ed] confused,” and
the therapist was concerned about her “mental well-being.” Between
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late July and mid-August, mother tested negative for all substances
three times (July 31, August 7 and 18), and failed to test one time
(August 12).
Due to the COVID-19 pandemic, mother was permitted only video
visitation with her three youngest girls, which was scheduled for three
days per week. The girls’ caregiver told DCFS that mother’s visitation
was “very inconsistent.” Mother often called late or not at all, and made
a variety of seemingly untruthful excuses for her missed visits. When
mother did appear for visits, she was often present with other people
(who were not adhering to social distancing protocol) and seemed
“emotionally overwhelmed.” Mother often wanted to cut the visits
short, which caused the girls to “experience emotional distress.”
The Jurisdiction/Disposition Hearing
At the combined jurisdiction and disposition hearing in September
2020, the court admitted DCFS’s evidence and heard argument. As
previously noted, the court sustained the allegations of the petition that
the children were at substantial risk of serious physical harm based on
the parents’ domestic violence (§ 300, subd. (b), count b-1), mother’s
substance abuse (§ 300, subd. (b), count b-2), and mother’s failure to
protect S.A. from sexual abuse by father (§ 300, subds. (b)(1), (d), (j),
count b-3).
Proceeding to disposition, the juvenile court declared all four
children dependents of the court, removed S.A. from mother’s custody,
and placed S.A. with David. As for the disposition plan for the three
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youngest children, both mother’s counsel and father’s attorney informed
the court that both parents had chosen to “submit[] the issue of removal
to the court.” The court removed the girls from parental custody, and
ordered the parents to participate in reunification services. Mother’s
case plan required that she submit to random drug testing or—in the
event of a missed or positive test—a full drug treatment program, a
domestic violence support group/victims’ program, and sexual abuse
awareness and individual counseling. Mother timely filed a notice of
appeal.
DISCUSSION
I. Jurisdictional Findings
Mother’s contends substantial evidence does not support the
jurisdictional findings that the three younger children (Leilani A., Sofia
A., and Mia A.) were at substantial risk of suffering serious physical
harm and/or sexual abuse under section 300, subdivisions (b)(1), (d),
and (j) due to mother’s failure to protect S.A. from father’s sexual abuse.
We disagree.
A. Subdivisions (b)(1), (d), and (j) of Section 300
Section 300, subdivision (b)(1), which deals with serious physical
harm, provides in relevant part that a juvenile court may assert
jurisdiction over a child if “[t]he child has suffered, or there is a
substantial risk that the child will suffer, serious physical harm . . . , as
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a result of the failure or inability of his or her parent . . . to adequately
supervise or protect the child.”
Section 300, subdivision (d), applies specifically to sexual abuse.
It states that that the juvenile court may assert jurisdiction over a child
that “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,[4] [because] 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 (j), deals with sexual abuse of a sibling,
and provides that a juvenile court may assert jurisdiction over a child if
the child’s sibling was abused or neglected, as defined in subdivisions
(a), (b), (d), (e) or (i), and “‘there is a substantial risk that the child will
be abused or neglected, as defined in those subdivisions.’” (In re
Rubisela E. (2000) 85 Cal.App.4th 177, 197, disapproved on another
ground by In re I.J. (2013) 56 Cal.4th 766, 775 (I.J.).)
4 Penal Code section 11165.1, subdivision (a) refers to “sexual abuse” as
sexual assault or sexual exploitation as defined by various violations,
including inter alia rape and statutory rape (Pen. Code, §§ 261, 261.5, subd.
(d)), and lewd or lascivious acts upon a child (id., §§ 289 [sexual penetration],
647.6 [child molestation]). Conduct described as “sexual assault” includes
any penetration, however slight, of the vagina by the penis of another person,
any intrusion by one person into the genitals of another person (not including
acts performed for a valid medical purpose), the intentional touching of the
genitals or intimate parts or the clothing covering them, of a child, or of the
perpetrator by a child, for purposes of sexual arousal or gratification. (Id.,
§ 11165.1, subd. (b).)
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Section 300, subdivisions (b) and (d) do not require the actual
infliction of abuse on the subject child, but rather only a substantial
risk of abuse arising from a parent’s failure to protect. (I.J., supra, 56
Cal.4th at p. 773.) And while section 300, subdivision (b) requires a
showing that the child faces a current risk of harm to sustain
jurisdiction, section 300, subdivision (d) does not. (In re Carlos T.
(2009) 174 Cal.App.4th 795, 803.)
When contemplating whether to assert jurisdiction under section
300, subdivision (j) for sexual abuse of a sibling, 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).) This
subdivision permits the court to take into consideration factors that
might not be determinative were the court adjudicating a petition filed
directly under subdivisions (a), (b), (d), (e) or (i). (See I.J., supra, 56
Cal.4th at p. 774.) Section 300, subdivision (j) vests the court with
“‘greater latitude to exercise jurisdiction as to a child whose sibling has
been found to have been abused than the court would have in the
absence of that circumstance.’ [Citation.]” (Ibid.)
Finally, a parent’s sexual abuse of one child may constitute
substantial evidence of risk to another child in the abuser’s household,
regardless of the child’s sex, age, or biological connection to the abused
child. (I.J., supra, 56 Cal.4th at p. 766; In re D.C. (2015) 243
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Cal.App.4th 41, 54 [a father’s “prolonged and severe” sexual abuse of
his 13-year-old adopted daughter put the child’s 10-year-old brother at
risk of abuse under § 300, subd. (j)], superseded by statute on another
ground as stated in In re A.M. (2020) 47 Cal.App.5th 303, 322 (A.M.);
Los Angeles County Dept. of Children & Family Services v. Superior
Court (2013) 215 Cal.App.4th 962, 968 [father’s sexual abuse of elder
cohabitant half-sister over the course of five years placed biological
daughter at risk of sexual abuse]; In re Andy G. (2010) 183 Cal.App.4th
1405, 1415 [two-year-old boy at risk because father sexually abused the
boy’s 12-year-old and 14-year-old half-sisters]; In re Karen R. (2001) 95
Cal.App.4th 84, 91 [rape of 13-year-old daughter reasonably could be
found “to be so sexually aberrant” that both male and female children
siblings of the victim are at substantial risk of sexual abuse].)
B. Substantial Evidence Supports the Court’s Jurisdictional Findings
We review the juvenile court’s jurisdictional findings orders for
substantial evidence. (In re Kadence P. (2014) 241 Cal.App.4th 1376,
1384 (Kadence P.), superseded by statute on another ground as stated
in A.M., supra, 47 Cal.App.5th at p. 322.) We resolve all evidentiary
conflicts in respondent’s favor and draw all reasonable evidentiary
inferences to uphold the juvenile court’s findings and orders. (I.J.,
supra, 56 Cal.4th at p. 773; Kadence P., supra, at p. 1384.) Here, ample
evidence supported the challenged jurisdictional findings.
First, father sexually assaulted S.A. twice in the family home
when the child was in middle school, first by raping the pre-teen in the
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parents’ bedroom and, later, by digitally penetrating her in the
bathroom. Father’s inappropriate touching continued after these
incidents.
Second, it is true that S.A. did not explicitly disclose the sexual
abuse to mother after father had threatened to harm S.A.’s sisters if she
did. Nevertheless, the record reflects that mother had legitimate
concerns about father’s behavior. Mother told S.A. not to wear “short
shorts” because she did not “trust” father. Moreover, mother was aware
that S.A. was “reaching out to older men on the Internet,” sending
sexually suggestive text messages, posting suggestive photos online,
and engaging in serious self-harm by “cutting herself.” Despite these
disturbing signs, mother made no effort to explore with S.A. the root
cause.
Third, after learning about the abuse in mid-2020, mother did not
rally to support her daughter. Instead, she blamed S.A. for the family’s
problems, telling the aunt the dependency case “was her fault,” saying
S.A. “shouldn’t have said anything,” and that S.A. was the reason the
juvenile court “took away the girls.” Indeed, mother remained
emotionally and financially dependent on father, describing him to
DCFS as a “great father,” “great provider,” and “great partner.”
Fourth, mother’s contention that she lacked “first-hand,
compelling evidence [that father] sexually abused” S.A. is beside the
point. The assertion of juvenile court jurisdiction due to a parent’s
failure to protect does not depend on the parent having first-hand
knowledge that a child has suffered sexual abuse. It is sufficient that
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the parent “reasonably should have known that the child was in danger
of sexual abuse.” (§ 300, subd. (d).) Viewing the evidence in the light
most favorable to the juvenile court’s findings and indulging all
legitimate and reasonable inferences to uphold the challenged ruling,
there is sufficient evidence to conclude that mother reasonably should
have known that S.A. had been abused, and should have known there
was a risk of similar abuse to her three younger daughters.
Fifth, we reject mother’s assertion that her three younger children
were “dissimilarly situated from [their older half-sibling S.A.] and did
not face a commensurate risk of abuse.” The severity of abuse father
inflicted on S.A. in the same home in which all of the children resided
with both parents suggested a serious risk of sexual abuse to the other
children. (I.J., supra, 56 Cal.4th at p. 778 [“the more severe the type of
sibling abuse, the lower the required probability of the [child at issue]
experiencing such abuse to conclude the child is at a substantial risk of
abuse or neglect under section 300. . . . [A]s the abuse becomes more
serious, it becomes more necessary to protect the child from even a
relatively low probability of that abuse”]; see ibid. [“the violation of
trust shown by sexually abusing one child while the other children were
living in the same home and could easily have learned of or even
interrupted the abuse” supports a finding of substantial risk of abuse as
to all children in the home].) Further, the likelihood that mother could
not protect the younger girls from that abuse was exacerbated by the
obliviousness caused by mother’s abuse of cocaine, methamphetamine
and alcohol. (See e.g., In re Alexzander C. (2017) 18 Cal.App.5th 438,
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442–443 [methamphetamine is an inherently dangerous drug, and
those under its influence cannot be trusted to safely and appropriately
care for a child], disapproved on another ground in Conservatorship of
O.B. (2020) 9 Cal.5th 989.)
In short, substantial evidence supports the jurisdictional findings
under section 300, subdivisions (b)(1), (d) and (j) that mother’s failure to
protect S.A. from father’s sexual abuse placed the three youngest girls
at substantial risk of suffering serious physical harm and/or sexual
abuse.
II. Removal Order
Mother contends the juvenile court’s disposition orders removing
the three youngest children from her custody are not supported by
substantial evidence. We conclude that mother has forfeited this
argument, and that if considered on its merits, the assertion fails.
The juvenile court asked mother’s counsel what mother’s “position
[was] regarding disposition as to the [three] younger children.” In
response and in mother’s presence, mother’s counsel affirmatively
stated that mother was “going to be submitting the issue of removal to
the court.” (Italics added.) Mother concedes that “a reviewing court
ordinarily will not consider a challenge to a ruling if an objection could
have been but was not made in the trial court. [Citation.] The purpose
of this rule is to encourage parties to bring errors to the attention of the
trial court, so they may be corrected. [Citation.] [¶] Dependency
matters are not exempt from this rule.” (In re S.B. (2004) 32 Cal.4th
161287, 1293, fn. omitted (S.B.), superseded by statute on other ground as
stated in In re S.J. (2008) 167 Cal.App.4th 953, 961–962; In re Anthony
Q. (2016) 5 Cal.App.5th 336, 345 [“the forfeiture doctrine applies in
dependency cases and the failure to object to a disposition order on a
specific ground generally forfeits a parent’s right to pursue that issue on
appeal”]; accord, In re Alayah J. (2017) 9 Cal.App.5th 469, 479.)
“[A]pplication of the forfeiture rule is not automatic.” (S.B., supra,
32 Cal.4th at p. 1293.) However, an “appellate court’s discretion to
excuse forfeiture should be exercised rarely and only in cases presenting
an important legal issue. [Citations.] Although an appellate court’s
discretion to consider forfeited claims extends to dependency cases
[citations], the discretion must be exercised with special care in such
matters. ‘Dependency proceedings in the juvenile court are special
proceedings with their own set of rules, governed, in general, by the
Welfare and Institutions Code.’ [Citation.] Because these proceedings
involve the well-being of children, considerations such as permanency
and stability are of paramount importance.” (Ibid.)
Here, mother did not object to removal of the children, and she
does not raise an important legal challenge to that ruling. We therefore
conclude that she has forfeited her right to challenge the disposition
order. In any event, even if we assume mother’s claim of error was not
forfeited, she has failed to demonstrate that the record lacks substantial
evidence to support the removal order.
When fashioning a dispositional order, the juvenile court may
make “all reasonable orders for the care, supervision, custody, conduct,
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maintenance, and support of the child.” (§ 362, subd. (a).) We have
already discussed the evidence supporting the findings under section
300, subdivisions (b)(1), (d), and (j) that mother’s failure to protect S.A
from sexual abuse by father created a serious risk of abuse to the
younger daughters. Mother does not contest the jurisdictional findings
that her three youngest children were at substantial risk of harm based
on the parents’ domestic violence and her own substance abuse. Given
the gravity of the bases for jurisdiction and the magnitude of the danger
to the children, it is apparent that substantial evidence supports the
court’s order removing the three younger daughters from mother’s
custody and ordering reunification services.
DISPOSITION
The jurisdictional and dispositional orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
MANELLA, P. J.
CURREY, J.
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