In re Alexandra U. CA2/2 ( 2016 )

Filed 4/26/16 In re Alexandra U. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re ALEXANDRA U., a Person Coming B267264
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No. DK11283)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
PEDRO U.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County.
Victor H. Greenberg, Judge. Affirmed.
Jesse F. Rodriguez, under appointment by the Court of Appeal, for Defendant and
Appellant.
Mary C. Wickham, County Counsel, R. Keith Davis, Acting Assistant County
Counsel, William D. Thetford, Principal Deputy County Counsel, for Plaintiff and
Respondent.
___________________________________________________
Pedro U. challenges some—but not all—of the jurisdictional findings made by the
juvenile court in this dependency case. (Welf. & Inst. Code, § 300.)1 Piecemeal review
of the sustained findings is unnecessary: jurisdiction must be upheld because appellant is
an offending parent under each of the five counts. The court’s disposition order, based
on all of the evidence, was well within its discretion. We affirm.
FACTS
Seven-year-old Alexandra U. was detained from her father, Pedro U. (Father) in
May 2015, after she reported that he caressed her vagina over her pajamas, while they
shared a bed. She has overnight weekend visits with Father, but otherwise lives with her
mother, Mayra B. (Mother). The parents separated in 2011 due to Father’s domestic
violence against Mother while he was intoxicated. The Department of Children and
Family Services (DCFS) filed a petition on behalf of Alexandra.
When interviewed by a DCFS social worker, Alexandra recalled that before her
parents separated, “[t]hey fought all the time.” Mostly, the fights consisted of “yelling at
each other.” On one occasion, she heard “my mom crying and stuff falling.” She entered
the living room, saw the parents pushing each other, and Father “kicked my mom on her
legs.” The altercation ended when the parents realized that Alexandra was watching
them. After that incident, Alexandra and Mother went to live with a relative and the
parents’ relationship ended.
Mother stated that Father became verbally abusive when she was pregnant with
Alexandra. After the child was born, Father began drinking more and more, and the
parents yelled at each other in Alexandra’s presence. While intoxicated, Father assaulted
Mother, pressing her neck to prevent her from breathing and threatening to knock out her
teeth. On another occasion, Father put his foot on Mother’s throat, so that she could not
move or breathe. Mother fled Father for good after a police officer warned her that if she
stayed with Father and the fighting continued, she would lose custody of Alexandra.
1 Statutory references in this opinion are to the Welfare and Institutions Code.
2
During her last visit with Father, Alexandra fell asleep in the bed she shares with
him. Late at night, she awoke “because I felt someone touching me down there
(vagina).” Frightened, she turned and saw Father. Once she looked at him, Father
stopped rubbing her vaginal area. She was “scared.” Upon returning to Mother’s home
the next day, Alexandra “was crying and crying” and disclosed Father’s behavior to
Mother. This was the only time Father molested Alexandra. Mother relayed Alexandra’s
report to a school counselor and to a pediatrician, who called child protective services.
Father accused Mother of coaching Alexandra and denied touching the child
inappropriately. Father identified Mother as the instigator of domestic violence and
denied ever hitting or yelling at Mother. If Alexandra truly thinks that he molested her,
then “she needs to be evaluated mentally because I am innocent.” He opined that
Alexandra was crying when he dropped her off because “she loves me very much and
doesn’t want to leave my home.” However, Alexandra’s godmother was present when
Father arrived with Alexandra. The child was crying but refused to say why she was
upset until after Father departed. Mother and the godmother were shocked when
Alexandra disclosed that Father touched her.
Alexandra had a forensic interview with a psychologist and consistently related
what occurred when Father touched her. She told the evaluator that she was not sure if
she feels safe with Father. She hopes that he will “promise not to touch me anymore.”
At the jurisdiction hearing, Alexandra testified that she and Father share a small
bed at his house during overnight visits. Father sleeps a lot, and forgets that Alexandra is
playing at a neighbor’s house; when he fails to retrieve her, she spends the night with the
neighbor. Father never hits or yells at her and she enjoys staying with him. She is not
scared of Father and misses him.
Alexandra was asleep when Father began touching her for “a little bit.” She
looked at him and he “put his hands away,” adding “I didn’t like it.” She twice stated
that Father drinks “a lot of beer.” Sometimes he consumes a few beers before driving
her, but he drives well and she is not afraid. She recalls that Father and Mother argued
four years earlier, but now the parents do not talk or fight.
3
Father testified that Alexandra visited him every other weekend for the last four
years, since the parents separated. He shares his bed with Alexandra during visits but
denies touching her inappropriately; he does not know why she accuses him of it. Father
drinks beer on the weekend, but denies getting “really way out” drunk. He stops drinking
by 1:00 p.m. to drive Alexandra to Mother’s house. He has not argued with or had
altercations with Mother since they split four years ago.
The juvenile court sustained five counts against Father of conduct that endangered
Alexandra, places her at risk of serious harm, constituted sexual abuse, and was a failure
to protect the child: (1) the parents have a history of domestic violence and Father
engaged in violent acts against Mother in the child’s presence; (2) Father sexually abused
Alexandra by fondling her vagina with his hands; (3) Father pushed and kicked Mother in
Alexandra’s presence; (4) Father has a history of alcohol use and is a current abuser of
alcohol, which renders him incapable of providing the child with regular care and
supervision: after drinking, he falls asleep and forgets to pick her up; and (5) Father’s
sexual abuse creates a detrimental home environment and poses a risk of harm.
The court noted that Father drank up to three 24-ounce beers at a sitting, then
“sleeps a lot.” Though the domestic violence events were not recent, Father engaged in
violence on “many multiple occasions and that type of violence places the minor at risk.”
The problems were never remediated.
Moving to disposition, the court left Alexandra in Mother’s physical custody
under DCFS supervision. Though non-offending, Mother receives family maintenance
services, and is to participate in sexual abuse/awareness counseling, and individual
counseling to address domestic violence and other case issues. Father’s attorney said to
the court, “I’m asking if you can do the alcohol/drug testing at 12-step A.A. meetings, not
a full program,” inspiring the court to observe that Father’s counsel “and I seem to have
the same thought.” Counsel replied, “Thank you.” The court then struck the requirement
that Father enroll in a drug or alcohol program with testing and instead ordered that he
engage in a 12-step program with court card and sponsor; a parenting program; sexual
abuse counseling for perpetrators; and individual counseling to address domestic violence
4
and anger management issues. Father had monitored visits, and DCFS had discretion to
liberalize visits. At the end of the disposition orders, Father’s counsel once again said
“Thank you, your Honor,” and did not object.
DISCUSSION
1. Dependency Jurisdiction
Father does not challenge the sustained sexual abuse counts against him. Instead,
he questions the sufficiency of the evidence supporting the counts that Alexandra is at
risk of suffering serious physical harm from his domestic violence and alcohol abuse.
Father concedes that dependency jurisdiction is proper. He wants us to reject some of the
court’s findings while accepting the validity of other sustained counts.
Jurisdictional findings are not reviewed piecemeal. “‘When a dependency petition
alleges multiple grounds for its assertion that a minor comes within the dependency
court’s jurisdiction, a reviewing court can affirm the juvenile court’s finding of
jurisdiction over the minor if any one of the statutory bases for jurisdiction that are
enumerated in the petition is supported by substantial evidence. In such a case, the
reviewing court need not consider whether any or all of the other alleged statutory
grounds for jurisdiction are supported by the evidence.’” (In re I.J. (2013) 56 Cal. 4th
766, 773, italics added; In re Alexis E. (2009) 171 Cal. App. 4th 438, 451.) This Court has
held that “As long as there is one unassailable jurisdictional finding, it is immaterial that
another might be inappropriate.” (In re Ashley B. (2011) 202 Cal. App. 4th 968, 979. See
also Randi R. v. Superior Court (1998) 64 Cal. App. 4th 67, 72.)
Father relies on In re Drake M. (2012) 211 Cal. App. 4th 754 in urging us to reach
the merits of his appeal. Drake M. is inapposite. In Drake M., the court addressed the
merits because “the outcome of this appeal is the difference between father’s being an
‘offending’ parent versus a ‘non-offending’ parent. Such a distinction may have far
reaching implications with respect to future dependency proceedings in this case and
father’s parental rights.” (Id. at p. 763.) Here, by contrast, Father is an offending parent
under the uncontested sexual abuse counts, even if we do not examine the sufficiency of
the evidence regarding the domestic violence and alcohol abuse counts. This Court has
5
held that Drake M. “does not apply where, as here, several jurisdictional findings have
been sustained involving different conduct of the parent.” (In re Brianna V. (2015) 236
Cal. App. 4th 297, 310.)
The purpose of the dependency proceeding is “to protect the child, rather than
prosecute the parent.” (In re Alysha S. (1996) 51 Cal. App. 4th 393, 397.) Unlike a
criminal prosecution, no prison sentence is meted out for each count in the dependency
petition. If even one count of parental abuse or neglect is properly sustained, the courts
must assert dependency jurisdiction. Given the gravity of the uncontested sexual abuse
counts, the court had to exert jurisdiction to protect the Alexandra.
2. Disposition Orders
After finding that a child comes within its jurisdiction, the juvenile court has broad
discretion to make an appropriate disposition order to protect the child’s interests, which
“is not limited to the content of the sustained petition.” (In re Brianna V., supra, 236
Cal.App.4th at p. 311; In re Baby Boy H. (1998) 63 Cal. App. 4th 470, 474; § 358.) The
order must be designed to eliminate conditions that led to the sustained petition. (In re
Nolan W. (2009) 45 Cal. 4th 1217, 1229.) The court perceived a substantial danger if
Alexandra is returned to Father’s care and no reasonable means to protect her physical
and emotional health and well-being without removal from his physical custody. It could
then order parental participation in child welfare services, which “may include a direction
to participate in a counseling or education program.” (§ 362, subds. (c), (d).)
The court specified services for Father of an A.A. 12-step program, parenting
classes and counseling. Father did not object to the A.A. program: in fact, his attorney
suggested it and thanked the court for imposing it. Father’s newly minted objection to
the A.A. program was not preserved for review. (In re Anthony P. (1995) 39 Cal. App. 4th
635, 641; In re Richard K. (1994) 25 Cal. App. 4th 580, 590 [a parent who consents to an
order is not wronged by it and cannot object to it for the first time on appeal].)
Alexandra testified that Father drinks “a lot of beer” when she is staying at his
house, even before driving her in his car. Mother noticed that Father’s breath smelled of
alcohol when he dropped Alexandra off after visits: when she asked him not to drink in
6
the child’s presence, he replied that he “could drink and drive if he chose to.” Mother
stated that Father’s violence was triggered by alcohol abuse and intoxication. Alexandra
was deeply affected, referring during interviews to seeing Father hit Mother. Though the
child was only three years old during the violent acts, she remembered them four years
later. The evidence plainly showed that Father is still drinking considerable amounts of
alcohol, which poses a continuing risk to Alexandra’s physical and emotional health and
safety when she visits Father.
It is not unreasonable to infer that Father’s molestation of Alexandra occurred
while he was intoxicated, and that he forgets to pick up Alexandra from the neighbors’
home because he is in an alcoholic stupor. A service plan formulated to correct parental
deficiencies and create a suitable home—including alcohol abuse and anger management
or violence issues—is not an abuse of discretion. (In re Christopher H. (1996) 50
Cal. App. 4th 1001, 1005, 1008.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN, P.J.
We concur:
ASHMANN-GERST, J.
CHAVEZ, J.
7