In re Ruby R. CA2/8 ( 2021 )

Filed 12/2/21 In re Ruby R. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re RUBY R., a Person Coming B309614
Under the Juvenile Court Law.
______________________________ Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. 20CCJP00143B
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
M.M.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Lisa A. Brackelmanns, Commissioner.
Affirmed.
Cristina Gabrielidis, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Peter Ferrera, Principal Deputy
County Counsel, for Plaintiff and Respondent.
____________________
A father appeals from the juvenile court’s dispositional
order regarding his daughter. We affirm. Undesignated
statutory references are to the Welfare and Institutions Code.
I
We recount the relevant factual and procedural
background.
A
The father has one daughter with the mother. The
daughter, Ruby, is 14. When the father and mother began their
relationship, the mother already had a daughter from a previous
relationship, Sarai. Sarai is 18. The father acted as a father-
figure to Sarai, who did not discover he was not her biological
father for many years. The father and mother separated when
Ruby was around eight or nine.
Sarai had a strained relationship with her mother. In June
2019, she began living with relatives. In November 2019, while
living with her aunt, she witnessed a domestic violence incident
between the aunt and the aunt’s boyfriend. The Los Angeles
County Department of Children and Family Services learned of
this event and a social worker interviewed Sarai. Sarai said she
had a strained relationship with her mother who made negative
and belittling comments to her. Sarai had attempted suicide by
hanging when she was in fifth grade and by overdosing on pills
when she was 15. Sarai also said she had been sexually
assaulted by the father when they all lived together, but she did
not recall details because it happened when she was young.
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Sarai claimed she told her therapist about the abuse a few
months earlier, but the therapist said this was not so. The
therapist then discussed the abuse with Sarai and said it was the
missing piece of the puzzle that made more sense of Sarai’s
recent behavior.
The police spoke with Sarai about the sexual abuse a few
days later. Sarai described two incidents. When she was six, the
father had told her to come into his room and lay on the bed with
him. He climbed on top of her and touched her chest and vagina.
When Sarai was 12, the father pinned her to the floor and laid on
top of her. He eventually let her go, and she ran to a relative’s
apartment. Sarai repeated her account of these two events
during a later forensic interview. During the later interview,
Sarai recalled that the father had told her to take off her clothes
except her underwear and that the father had also touched her
behind.
A social worker spoke to Ruby. Ruby had been living with
her father for the past year, but she had recently returned to live
with her mother. Ruby reported the father had not abused her or
acted inappropriately. Ruby had been sexually abused several
years earlier by an uncle who continued to live in the same
apartment complex as the mother.
The father denied he ever sexually abused Sarai. He said
Sarai was lying and he was hurt she would say something like
that.
The Department removed the children from the mother and
the father and placed them in foster care together. The juvenile
court detained the children and continued their placement in
foster care.
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The father attended nine individual therapy sessions and
missed 11 before his treatment was terminated for excessive
absences. The therapist reported the father denied the sexual
abuse and was defensive about the topic, although he was open to
exploring the issues that led to the Department’s involvement.
The father had monitored visits with Ruby and spoke with
her on the phone. When interviewed before the adjudication
hearing, Ruby reported the visits were great and her
communication with her father had greatly improved. Ruby
wanted to return to either her mother or her father’s care.
B
At the adjudication hearing, the mother pleaded no contest,
and the juvenile court sustained an amended allegation under
section 300, subdivision (c), finding that the mother had
emotionally abused Sarai. After reviewing the evidence and
hearing argument, the juvenile court sustained allegations under
subdivisions (d) and (j) against the father, finding that he had
sexually abused Sarai and that this conduct placed Ruby at risk.
At disposition, the juvenile court removed Sarai from the mother
and Ruby from the mother and the father. The court ordered the
father to take parenting classes and to engage in individual
counseling and sexual abuse counseling for perpetrators. The
court ordered the father’s visits with Ruby continue to be
monitored.
The father appealed the juvenile court’s order. The father
limits his challenge to the dispositional portion of the order,
conceding that the juvenile court’s finding that Sarai was credible
constitutes sufficient evidence for the jurisdictional order.
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II
The father challenges the juvenile court’s removal of Ruby
from his care and the order that his visits be monitored.
A
The father argues substantial evidence did not support the
juvenile court’s finding that Ruby needed to be removed from his
care. This argument is incorrect.
Our inquiry is whether the record contains substantial
evidence from which a reasonable fact finder could conclude it is
highly probable a fact is true. (Conservatorship of O.B. (2020) 9
Cal.5th 989, 1011–1012.)
The father argues there was no evidence Ruby would be at
risk in his care. He says there is no evidence he ever directly
harmed or engaged in inappropriate behavior with her. Rather,
he asserts the evidence shows his conduct has always been
appropriate. He points out that Ruby denied any inappropriate
conduct by the father and that she felt safe and wanted to return
to his care.
That the father has not yet acted inappropriately with
Ruby is no guarantee he will not. The court is not required to
wait until harm occurs to act to protect a child. (§ 361, subd.
(c)(1) & (4); In re I.J. (2013) 56 Cal.4th 766, 773.) The juvenile
court appropriately considered the father’s continuing denial that
he abused Sarai. The court also took into account the father’s
lack of progress in addressing the abuse. The therapist
terminated father’s therapy for excessive absences. When he did
attend, he denied the abuse and became defensive when asked
about it. These signs are bad. They are substantial evidence.
In determining the risk to a child, the court can properly
consider the gravity of the possible harm. (In re S.R. (2020) 48
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Cal.App.5th 204, 223–224 (S.R.).) Where the harm is serious, a
lessened probability of harm supports removal. (Id. at p. 224.)
The father tries to downplay the risk by emphasizing that Ruby
was not present during the abuse, no other family members have
alleged abuse, and that the last incident was several years ago.
But the harm involved here, sexual abuse by a parent, is
particularly grave. Even if the father’s conduct has been limited
to the incidents Sarai disclosed, that history represents a serious
threat to Ruby. The risk is heightened by the fact that Ruby is
around the age Sarai was at the time of the father’s second
assault.
The father minimizes Ruby’s particular vulnerability based
on the uncle’s past sexual abuse of Ruby, pointing to her
statement that she is comfortable living in the same complex as
the uncle. This argument is fallacious. Living in the same
apartment complex cannot be compared to suffering further
sexual abuse, the risk involved here. And Ruby has since stated
she does not want to return to her mother’s apartment in that
complex. The gravity of the harm coupled with the father’s
failure to address the issue supported the juvenile court’s
conclusion that the risk to Ruby required her removal from the
father.
The father tries to distinguish this case from S.R., supra,
48 Cal.App.5th 204. He notes the father in that case was found
in possession of child pornography at the time of the case, where
the father’s conduct here was years before and apparently an
isolated event. S.R. indeed is quite different from this case:
unlike the father in that case, who had no physical contact with a
child (id. at p. 224), the father here has already sexually abused a
young girl who considered him a father. S.R. does not show the
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father, who engaged in more aberrant and serious behavior than
the conduct in S.R., can safely have custody of Ruby.
The father also argues removal was improper because
alternative measures existed to protect Ruby in his custody, such
as unannounced visits and in-home services. The father also
claims it is especially improbable he would do anything while
under the Department’s microscope. The harm here, however,
was particularly great. Unannounced visits cannot eliminate the
risk.
B
The father argues the juvenile court abused its discretion
in ordering his visits with Ruby be monitored. This argument is
in error.
We review the juvenile court’s visitation orders for abuse of
discretion. (In re D.P. (2020) 44 Cal.App.5th 1058, 1070.)
The father largely repeats the arguments he made about
removal, emphasizing he had attended individual therapy
sessions, he had positive visits with Ruby, and Ruby denied any
abuse and expressed wanting to return to his care. For reasons
we already have canvassed, these facts do not negate the risk to
Ruby represented by the type of harm involved and the father’s
failure to address the issue. The juvenile court did not abuse its
discretion in ordering the father’s visits be monitored.
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DISPOSITION
We affirm.
WILEY, J.
We concur:
GRIMES, Acting P. J.
HARUTUNIAN, J.*
* Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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