In re L.L. CA2/3 ( 2021 )

Filed 3/30/21 In re L.L. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re L.L. et al., Persons Coming B307013
Under the Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct.
AND FAMILY SERVICES, Nos. 20CCJP03062A,
19CCJP03062B)
Plaintiff and Respondent,
v.
E.L. et al.,
Defendants and Appellants.
APPEALS from orders of the Superior Court of Los Angeles
County, Annabelle G. Cortez, Judge. Affirmed.
Jill Smith, under appointment by the Court of Appeal, for
Defendant and Appellant E.L.
Robert McLaughlin, under appointment by the Court of
Appeal, for Defendant and Appellant R.L.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Jane Kwon, Deputy County
Counsel, for Plaintiff and Respondent.
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E.L. (mother) and R.L. (father) appeal from the orders of
the juvenile court asserting dependency jurisdiction over their
two daughters, removing the children from father’s custody, and
ordering father to complete a drug and alcohol program. We
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The family came to the attention of the Los Angeles County
Department of Children and Family Services (DCFS) in May
2020, after the parents’ 10-year-old daughter, L.L., told law
enforcement that father touched her inappropriately while they
were lying on a bed together.
The incident occurred in the family’s home while mother
was at work and L.L.’s 22-month-old sister, K.L., was asleep in
the back bedroom. L.L. told police and, later, a DCFS social
worker, that on the evening of May 18, 2020, father entered the
main bedroom where she was sitting and closed the blinds. L.L.
thought father’s behavior was strange, so she went to the back
bedroom to wake up K.L. Father went to the back bedroom,
picked L.L. up by the waist, carried her to the main bedroom, sat
her on the bed, and told her to stay there. He then moved L.L. to
the center of the bed, laid her down, and got on the bed next to
her. Father pulled L.L. by the shoulder to face him and began
rubbing her thigh. L.L. told a police officer that father wrapped
her legs around one of his legs. Father then touched L.L.’s
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buttocks three times; L.L. said father “grabbed her butt and
caressed her thighs” during the incident.
L.L. knew the difference between a bad touch and a good
touch and stated that it was common for her family to pat each
other on the buttocks. However, on this occasion, L.L. was
uncomfortable because she thought father was going to “do
something” when he closed the blinds and mother was not home.
L.L. was scared and felt her heart beating faster than usual as
she and father were lying on the bed. When father got up and
went into the kitchen, L.L. closed herself in the bathroom. She
text messaged her mother, “mami,” about five times. When
mother did not respond, L.L. called 911 but was unable to get
through. She next sent a message to a friend who called police
for her.
Father was arrested for sexual battery pursuant to Penal
Code section 243.4, subdivision (e)(1). He was released the next
day and not charged with a crime. After father returned home
the family resumed their normal routines. Father continued to
care for the children alone while mother was not home.
DCFS received a referral on May 19, 2020, and opened an
investigation. Social workers interviewed L.L., mother, and
father on May 21, 2020, and again in June 2020. L.L. told a
social worker father had touched her in a similar manner by
patting her buttocks on two other occasions during an out-of-state
trip when she was sharing a bed with him. L.L. did not tell
anyone about these prior incidents. After father’s arrest, L.L.
told mother about the most recent incident. She was sad because
mother did not believe her, even though mother had previously
told her to speak up if anything ever made her feel
uncomfortable.
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According to L.L., her parents frequently argued.
Sometimes the arguments became physical and mother and
father pushed each other. L.L. said, “What I am living is not
safe.” She once heard mother slap father during an argument.
Another time, she heard mother and father arguing about an
incident where father threw keys at mother’s stomach, causing
mother pain. L.L. stated that father usually drank alcohol on
weekends and her parents argued when father was drinking.
L.L. felt uncomfortable when her father drank because he used
“bad words” and talked to the family like he was “crazy.”
Mother told DCFS she was shocked by the sexual abuse
allegations and did not believe father was abusing the children.
She confirmed that L.L. had text messaged her multiple times on
the day of the incident. She did not respond because she was not
allowed to use her cellphone at work. Mother interpreted father’s
conduct toward L.L. as a show of affection, not sexual abuse.
However, prior to police and DCFS involvement, mother had
considered telling father that they should stop patting each other
on the buttocks because someone could perceive it negatively as
L.L. was getting older. Mother said that L.L. had never appeared
distressed around father and had a strong bond with him.
Mother initially denied any domestic violence, but then
admitted she had once slapped father about two or three years
earlier. Mother claimed the incident with the keys was an
accident, stating that father threw the keys, but she failed to
catch them and they hit her in the stomach. She denied that she
and father pushed each other. However, she admitted that while
the family was living in Guatemala, she and father argued more,
and father drank excessively. According to mother, in
Guatemala, the parents argued two to three times per week,
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usually over money, and they called each other derogatory
names, but never in L.L.’s presence. Mother insisted “Guatemala
is separate.”
Still, mother said her recent arguments with father
stemmed from his drinking and she did not like it when father
drank. She reported that on the weekends, father typically drank
a six-pack of beer alone in his car. Mother asked father to stop
drinking alcohol so that he could spend more time with the
family. She denied that father’s drinking impacted his parenting
and said she cared for the children when father was drinking.
Father told a social worker that on the day of the May 2020
incident, L.L. had been watching television and playing on the
floor in the back bedroom where K.L. was sleeping. Father was
concerned that L.L. was making too much noise and would wake
K.L. so he moved L.L. to the main bedroom. He admitted that he
got on the bed next to L.L., kissed her three times on the cheek,
and said, “I love you daughter.” Father then spanked L.L. three
times on her buttocks, with an open hand and over her clothes.
Father confirmed that he and L.L. travelled out-of-state
together and slept in the same bed throughout the trip. He said
that on two separate nights, he hugged L.L. and told her, “I love
you momma,” before he spanked her three times, lightly, on her
buttocks, over her clothes. Father described his actions as
playful and innocent in nature. He never sensed that L.L. was
uncomfortable. Father had noticed, however, that L.L. was
moodier lately and appeared self-conscious that her body was
maturing. Father observed L.L. trying to hide her developing
breasts by hunching her back.
Father denied any domestic violence with mother, but
admitted the slapping incident had occurred. He also said that
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the incident with the car keys was an accident. Father confirmed
that he and mother pushed each other and argued weekly over
money while the family lived in Guatemala. According to father,
he and mother yelled or called each other names, but if their
verbal disagreements escalated, father would leave the home and
go for a walk.
DCFS filed a Welfare and Institutions Code1 section 300
petition on behalf of L.L. and K.L., under subdivisions (a), (b), (d),
and (j), alleging that the children were at serious risk of harm
from the parents’ domestic violence, father’s alcohol abuse, and
father’s sexual abuse of L.L. The juvenile court found prima facie
evidence that L.L. and K.L. were persons described by section
300 and detained them from father. It released the children to
mother and granted father monitored visits. The juvenile court
also ordered random alcohol testing for father.2
At the jurisdictional hearing, the juvenile court admitted
DCFS’s combined jurisdiction and disposition report, evidence
that father arrived for drug testing but could not test because his
name was not on the list, and a sign-in sheet showing father had
attended eight alcoholics anonymous sessions. After hearing
argument, the juvenile court sustained all counts of the petition.
The court found the domestic violence was unresolved, recurring,
and not a one-time incident. The court also found a nexus
1 All further statutory references are to the Welfare and
Institutions Code.
2 Atsome point before the jurisdictional hearing the
parents indicated they were willing to participate in a contract
for informal supervision, but only if father was allowed to return
to the family home.
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between father’s ongoing alcohol consumption and the parents’
domestic violence, noting the parents’ arguments stemmed from
father’s alcohol use, mother became upset when father drank,
and the issue remained unresolved.
In sustaining the sexual abuse counts, the juvenile court
noted the record included multiple incidents of a sexual nature.
The court found L.L.’s statements to police officers and DCFS
were consistent and she demonstrated fear and discomfort with
father’s actions. She tried to awaken K.L. after the incident,
texted mother six times, and when mother did not respond, she
told her friend that she was uncomfortable with father’s actions,
and asked the friend to call the police. The juvenile court
disagreed with father that his behavior with L.L. was merely an
appropriate display of love and affection. It also found that the
conduct was escalating and inferred the requisite intent for
sexual abuse from the totality of the circumstances. The court
agreed with the children’s counsel that father’s behavior with the
children appeared to constitute grooming for more egregious
sexual behavior.
The juvenile court proceeded to disposition. It found clear
and convincing evidence that there was a substantial danger and
risk of detriment to the children and declared them dependents of
the juvenile court. The court removed the children from father
and released them to mother, finding that it was premature to
release the children to father and that a substantial risk of harm
still existed. The juvenile court ordered mother to complete
individual counseling to address sexual abuse awareness and
appropriate sexual boundaries. It also ordered father to complete
a parenting program; individual counseling, including domestic
violence for perpetrators and appropriate sexual boundaries; and
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joint counseling with L.L., contingent on her therapist’s advice
and recommendations. The juvenile court also ordered father to
complete a full drug and alcohol program with aftercare,
including testing every other week.
Mother and father appealed.
DISCUSSION
I. Mother’s Appeal
Mother’s sole argument on appeal is that substantial
evidence did not support the juvenile court’s finding that she
failed to protect the children from father’s sexual abuse. She
does not contest the court’s other jurisdictional findings related to
her, or those based on father’s conduct. She therefore concedes
that the juvenile court will retain jurisdiction regardless of the
outcome of her appeal. However, mother urges this court to
consider the merits of her appeal.
“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 Alexis E. (2009) 171 Cal.App.4th 438, 451.) Nonetheless, a
reviewing court may consider the merits of a parent’s challenge
when it serves as the basis for dispositional orders that are also
challenged on appeal, could be prejudicial to the appellant or
could potentially impact the current or future dependency
proceedings, or could have consequences for the parent beyond
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jurisdiction. (In re Drake M. (2012) 211 Cal.App.4th 754, 762–
763.)
We exercise our discretion here to consider mother’s appeal.
We note that although the juvenile court did not remove the
children from mother’s custody, it ordered her to complete
individual counseling to address sexual abuse awareness and
appropriate sexual boundaries. The juvenile court could have
ordered mother to participate in this form of counseling based on
the jurisdictional finding that the children were abused or at risk
of sexual abuse because of father’s conduct. (In re Briana V.
(2015) 236 Cal.App.4th 297, 311–312 [juvenile court not limited
to content of sustained petition when making dispositional
orders; there need not be a jurisdictional finding as to the
particular parent upon whom the court imposes a dispositional
order]; In re I.A. (2011) 201 Cal.App.4th 1484, 1492.) Yet, this
dispositional order may also have flowed from the jurisdictional
findings based on mother’s failure to protect the children from
father’s sexual abuse. Under these circumstances, the
jurisdictional finding as to mother “ ‘could potentially impact the
current or future dependency proceedings.’ ” (In re M.W. (2015)
238 Cal.App.4th 1444, 1452.) We thus consider mother’s
arguments.
A. Substantial evidence supported the juvenile court’s
jurisdictional findings as to mother
The juvenile court may assume jurisdiction over a child
when a child “has suffered, or there is a substantial risk that the
child will suffer, serious physical harm or illness, as a result of
the failure or inability of his or her parent or guardian to
adequately supervise or protect the child.” (§ 300, subd. (b)(1).)
The juvenile court may also assume jurisdiction over a child
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when the child has been sexually abused or there is a substantial
risk the child will be sexually abused. (§ 300, subd. (d).) This
includes when a parent fails to protect a child from sexual abuse
and the parent knew or reasonably should have known that the
child was in danger of sexual abuse. (Ibid.)
“ ‘In reviewing the jurisdictional findings and the
disposition, we look to see if substantial evidence, contradicted or
uncontradicted, supports them. [Citation.] In making this
determination, we 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.’ ” (In re R.T. (2017)
3 Cal.5th 622, 633.)
Here, mother knew that father had inappropriately touched
L.L. after police confronted mother and L.L. told her about the
May 2020 incident. Mother acknowledged that even she had
begun to feel that father patting L.L. on the buttocks was not
appropriate. Nevertheless, mother did not believe L.L.’s
disclosures. She repeatedly defended father’s actions as playful
or innocent displays of affection. After father was released from
police custody, mother welcomed him back into the home and
took no steps to protect the children from him. Father continued
caring for the children alone.
Only when DCFS became involved and the juvenile court
ordered the children detained, and then removed them from
father’s custody, did mother agree to measures intended to
protect the children from father. Substantial evidence supported
the juvenile court’s jurisdictional finding that mother failed to
protect the children from father’s sexual abuse. (See In re D.G.
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(2012) 208 Cal.App.4th 1562, 1572–1573 [substantial risk of
harm established where mother did not believe father sexually
abused daughter, mother refused to address allegations until
after DCFS detained the children, and mother would not agree
not to allow father unmonitored visits]; In re S.C. (2006) 138
Cal.App.4th 396, 415–416 [jurisdiction appropriate where mother
did not believe stepfather molested minor and mother allowed
stepfather to remain in the home where he could have continued
unsupervised access to minor]; In re Katrina W. (1994) 31
Cal.App.4th 441, 447 [mother’s past conduct in disbelieving
father physically abused minor was evidence of risk of future
harm to minor].)
II. Father’s Appeal
Father asserts two arguments on appeal.3 First, father
contends the juvenile court’s order removing the children from
his custody was not supported by substantial evidence and there
were reasonable means short of removal to protect the children.
Second, father asserts that the disposition order directing him to
engage in a full drug and alcohol program was an abuse of
discretion. We find no error.
3Father initially also challenged the juvenile court order
granting him monitored visitation without specifying the
duration and frequency of the visits. On January 27, 2021, DCFS
requested that we take judicial notice of the juvenile court’s
minute orders entered on January 21, 2021, granting father a
minimum of three visits per week for three hours per visit. The
request for judicial notice is granted. In his reply brief, father
concedes his challenge to the juvenile court’s visitation order is
now moot.
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A. Substantial evidence supported the juvenile court’s
removal order
The juvenile court may remove a child from a parent’s
custody only upon a finding, by clear and convincing evidence,
that there “is or would be a substantial danger to the physical
health, safety, protection, or physical or emotional well-being of
the minor if the minor were returned home, and there are no
reasonable means by which the minor’s physical health can be
protected without removing the minor from the minor’s
parent[ ].” (§ 361, subd. (c)(1).) When we are “reviewing a
finding that a fact has been proved by clear and convincing
evidence, the question before the appellate court is whether the
record as a whole contains substantial evidence from which a
reasonable factfinder could have found it highly probable that the
fact was true.” (Conservatorship of O.B. (2020) 9 Cal.5th 989,
995–996; see In re V.L. (2020) 54 Cal.App.5th 147, 155 [same
standard applies in dependency cases].)
Father contends the evidence was insufficient for removal
because his physical confrontations with mother were minor,
sporadic, and historical, and neither child was actually harmed or
endangered. He minimizes his alcohol consumption and any risk
of harm posed by his drinking. Father also asserts that removal
was inappropriate because the sexual abuse of L.L. was relatively
minor and did not endanger K.L. He further argues that there
were services available to prevent removal of the children from
his custody because he acknowledged his mistakes and
communicated his willingness to change. Father’s arguments are
unavailing.
The evidence before the juvenile court established the
parents’ domestic violence was recurring, unresolved, and had
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occurred in L.L.’s presence. L.L. reported that she saw or heard
mother slap father only two months prior to DCFS’s involvement.
She also stated that father and mother argued a lot and pushed
each other. That other physical confrontations happened in
Guatemala several years earlier, and that such incidents
continued to occur, reflected a long history of unresolved domestic
violence. When describing the parents’ confrontations, L.L. told
the social worker her living situation was not safe. At least some
of the parents’ conflict was due to father’s regular drinking,
which caused the parents to argue, and led father to curse and
act “crazy.” The juvenile court could reasonably infer that the
parents were minimizing the severity of the altercations between
them, and the impact father’s drinking had on the family.
We further disagree with father’s characterization of the
sexual abuse as relatively minor and thus insufficient to support
the removal of both children. Father had engaged in the same
inappropriate behavior with L.L. multiple times. On at least two
occasions, he touched L.L.’s buttocks while lying in bed with her.
On both occasions, father acted while he and L.L. were alone.
During the May 2020 incident, L.L. became very uncomfortable
when, while mother was not home and K.L. was asleep, father
closed the bedroom blinds and placed L.L. on the bed. Viewing
the evidence in the light most favorable to the court’s findings,
father’s touching on that occasion was decidedly sexual. Father
placed L.L. on a bed, rubbed her thigh, wrapped her legs around
his, and squeezed her buttocks repeatedly. Despite father’s
claims that this was normal behavior, L.L. said father’s actions
were odd and frightening, leading her to take refuge in a
bathroom where she first texted mother, then confided in a friend
who called the police for her.
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The juvenile court disbelieved father, finding L.L.’s
statements consistent and credible. The pattern of incidents
supported the juvenile court finding that father’s behavior was
escalating and could properly be characterized as grooming for
further abuse. Moreover, the evidence supported an inference
that father’s sexualized conduct toward L.L. began with him
routinely patting her on the buttocks, that this was couched as a
family practice, and that the practice was likely to include K.L.
On this record, a reasonable trier of fact could have found it
highly probable that returning the children to father would pose
a substantial risk of them being harmed by exposure to future
domestic violence, father’s abuse of alcohol, and sexual abuse,
and also that there were no reasonable means to protect the
children without removal from father’s custody. (§ 361,
subd. (c)(1).) “The parent need not be dangerous and the minor
need not have been actually harmed before removal is
appropriate. The focus of the statute is on averting harm to the
child.” (In re T.V. (2013) 217 Cal.App.4th 126, 135–136.)
Throughout the case, father minimized his role in the
domestic violence, denied that it had occurred, or claimed it was
limited to the family’s distant past. Similarly, father minimized
the effects his alcohol consumption had on the family and failed
to recognize its connection to his confrontations with mother. He
also minimized his conduct with L.L., denying its sexual nature
and downplaying it as merely acts of affection. Father denied
negative consequences of his behavior and refused to participate
in programs such as domestic violence counseling without court
intervention. Despite father’s insistence that he was willing to
change, he also stated there was no need to participate in
programs to address domestic violence and sexual abuse before
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ordered to do so. By the time of the disposition hearing, he had
only minimally engaged in services to address any of the case
issues. (In re V.L., supra, 54 Cal.App.5th at pp. 157–158
[willingness to participate in services is conflicting evidence
regarding risk parent posed to children; under substantial
evidence test it must be disregarded].)
Accordingly, we find substantial evidence supported the
juvenile court’s removal order.
B. The trial court did not abuse its discretion in ordering
father to participate in a drug and alcohol program
Next, father argues that the juvenile court’s order directing
him to engage in a full drug and alcohol treatment program was
an abuse of discretion. We disagree.
A juvenile court may make any reasonable order “to
ameliorate the conditions that made the child subject to the
court’s jurisdiction.” (In re Neil D. (2007) 155 Cal.App.4th 219,
224.) The juvenile court has broad discretion to determine what
would serve a child’s interest and to issue dispositional orders
accordingly. (In re Christopher H. (1996) 50 Cal.App.4th 1001,
1006.) We will not disturb a discretionary decision unless it was
arbitrary, capricious, or patently absurd. (In re Raymundo B.
(1988) 203 Cal.App.3d 1447, 1456.)
Here, the juvenile court’s order requiring father to
participate in a full drug and alcohol treatment program was well
within its discretion. Father had a history of alcohol abuse that
preceded K.L.’s birth in Guatemala and continued after the
family moved to the United States. Although mother claimed
father no longer drank to excess, she admitted he regularly
consumed a six-pack of beer while sitting alone in his car.
Father’s alcohol consumption caused arguments between the
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parents, which led to physical confrontations. Prior to DCFS
intervention, father made no effort to stop drinking despite
mother asking him to stop. As the juvenile court noted, the drug
and alcohol program would teach father how to identify signs of
alcohol abuse and the effects of his drinking on the children and
family. Contrary to father’s assertion, random or on-demand
alcohol testing alone would not accomplish those results.
The order for a full drug and alcohol program was within
the juvenile court’s broad discretion.
DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED.
ADAMS, J.*
We concur:
EDMON, P. J.
EGERTON, J.
*Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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