In re D.M. CA2/4 ( 2020 )

Filed 11/24/20 In re D.M. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
In re D.M., et al., Persons B303088
Coming Under the Juvenile (Los Angeles County
Court Law. Super. Ct. No.
19CCJP06202)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
M.M., et al.,
Defendants and
Appellants.
APPEAL from orders of the Superior Court of Los Angeles
County, Marguerite D. Downing, Judge. Affirmed.
Cristina Gabrielidis, under appointment by the Court of
Appeal, for Defendant and Appellant M.M.
Maryann M. Goode, under appointment by the Court of
Appeal, for Defendant and Appellant R.B.
Mary C. Wickham, County Counsel, Kim Nemoy, Acting
Assistant County Counsel, Brian Mahler, Deputy County
Counsel for Plaintiff and Respondent.
The juvenile court exercised dependency jurisdiction over
half-brothers D.M. and H.B. under Welfare and Institutions Code
section 300, subdivisions (b)(1), (d), and (j)1 after finding they had
been sexually abused by H.B.’s father R.B., and their mother
M.M. had failed to protect them from the abuse. The court
ordered the children placed with M.M. and H.B. removed from
R.B.’s physical custody. The court also required R.B. to
participate in sexual abuse counseling and his visitation to be
supervised. R.B. and M.M. argue substantial evidence did not
support the jurisdictional findings. R.B. further contends the
removal order contained prejudicial errors and, alternatively, was
not supported by substantial evidence. We conclude (1) the
juvenile court’s findings were supported by substantial evidence
and (2) the removal order contained no errors and was supported
by substantial evidence. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Department Files a Dependency Petition and
the Juvenile Court Detains H.B. from R.B. and
places the children with M.M.
In 2019, M.M. had two children —D.M. (born 2006) and
H.B. (born 2010). R.B. is H.B.’s presumed father. D.M’’s father is
deceased. M.M. and R.B no longer lived together. The children
resided with M.M. H.B., sometimes accompanied by D.M, would
visit R.B. at his home.
In early September 2019, the Department of Children and
Family Services (the Department) received a referral that nine-
1 Statutory references are to the Welfare and Institutions
Code, unless otherwise indicated.
2
year-old H.B. may have been the victim of sexual abuse by R.B.
During the ensuing investigation, the Department social worker
interviewed family members and H.O., M.M.’s boyfriend.
On September 13, 2019, H.B. stated that for a year, R.B.
had been grabbing H.B.’s penis over his pants during home visits.
After grasping H.B.’s penis, R.B. asked, “[W]hose is this, yours or
mine?” If H.B answered, “Mine,” then R.B. pinched his penis
“hard.” H.B. would scream and try to stop his father from hurting
him, although the child knew they were “playing.” H.B. also said
R.B. wanted him “to say different words and if I did not say the
right [word, he would] squeeze [my genitals].” H.B. stated R.B.
was always fully clothed.
Thirteen-year-old D.M. reported having experienced similar
abuse. When he was seven or eight years old, R.B. would reach
inside D.M.’s pants and squeeze his penis, “a quick grab, a few
seconds maybe.” D.M. thought R.B.’s behavior was “weird” and
told M.M. According to D.M., M.M. “didn’t really do anything
about it.. . . she didn’t tell the police . . . . They were boyfriend
and girlfriend at the time, what was she going to do? I don’t think
she wanted to ruin the relationship.”2 D.M. believed R.B.’s
behavior was “a game or something” and saw him “do it to H.B.
too,” during a visit at R.B.’s home two or three weeks earlier.
2 M.M. did report R.B.’s abuse of D.M. to the Department,
but not until January 2016, when D.M. was nine years old. The
allegations were ultimately deemed inconclusive and the case
was closed. The Department referred the children for counseling
and determined there “appeared to be no immediate concerns
because the parents are no longer living in the same household.”
Thereafter, the Department received six additional referrals,
none of which alleged sexual abuse. All of the referrals were
determined to be either inconclusive or unfounded.
3
D.M. said R.B. “would make [them] say some weird words and if
[they] didn’t say what he wanted he would squeeze [their
genitals] harder.” D.M denied that R.B. had him touch his own
penis or watch pornography. D.M. stopped visiting R.B.
R.B. denied the allegations of sexual abuse, saying he was
only checking on H.B., who did not know how to clean himself. He
explained his son “smells” and is embarrassed to talk about it.
R.B. said he grabbed H.B.’s pants “from the middle” to check on
him, because H.B. “poops” in his pants so R.B. looks for “stains or
wetness.” M.M. confirmed that H.B. defecates on himself and
isolates himself. She also stated H.B. had difficulty talking about
his father and would “shut down” when questioned about him.
For her part, M.M. was reluctant to meet with the social
worker to discuss the sexual abuse allegations, to file a police
report, or to go to court because of the demands of her job. In a
telephone call on September 16, 2019, M.M. was upset with the
social worker. She claimed to have already filed police reports of
R.B.’s behavior, but “no one was doing anything about the
allegations.”
During a meeting on September 18, 2019, M.M. told the
social worker she had attempted to file a police report and obtain
a restraining order that day at the West San Fernando Valley
Police Station, but the officer directed her to the Van Nuys Police
Station. M.M. said she had no time to go to a different police
station. When the social worker urged M.M. to follow through to
ensure H.B.’s safety, M.M. became angry and yelled that she was
doing her best. M.M. insisted she was unaware of R.B.’s behavior
toward H.B. until her son reported it to his therapist. M.M.
complained that H.B. would not tell her anything and abruptly
terminated the meeting.
4
The social worker then interviewed M.M.’s boyfriend H.O.,
who was also present. He and M.M. had been together for five
years. H.O. said he no longer allowed D.M. to visit R.B.’s home
because of the sexual abuse. H.O. and M.M. had only recently
learned of H.B.’s abuse. R.B. had asked H.B. to keep the abuse a
secret.
Later that day, M.M. told the social worker she had nothing
against R.B., did not believe he was molesting H.B., and claimed
what father and son did together was “play.” M.M., however, was
not happy that R.B. was still touching H.B. after she had told
him to stop. M.M. said she was not protecting R.B. She simply
believed he was “incapable of hurting” H.B.
On September 19, 2019, a police officer informed the
Department that M.M. had filed a police report, but refused an
officer’s offer of assistance in obtaining a temporary restraining
order. M.M. said she did not believe R.B. was hurting her son.
On September 24, 2019, the Department filed a petition
under section 300, subdivisions (b)(1), (d) and (j) alleging R.B.’s
behavior, and M.M.’s failure to protect the children, placed the
children at risk. Specifically, as pertinent to this appeal, the
Department alleged “on prior occasions” R.B. “sexually abused”
D.M. “by touching and squeezing the child’s penis,” and in
“September 2019 and “on prior occasion[s]” R.B. “sexually
abused” H.B. “by touching the child’s penis,” and placed the
children “at risk of serious physical harm” and “sexual abuse.”
The petition further alleged M.M. “knew of [R.B.’s] sexual abuse”
of the children and failed to protect them by “allow[ing] R.B. to
have unlimited access” to them, and placed the children “at risk
of serious physical harm” and “sexual abuse.” The juvenile court
detained H.B. from R.B. and released both children to M.M.
5
In follow-up interviews in October 2019, M.M. said she
believed her sons’ accounts. Years ago, when D.M described
R.B.’s behavior, she demanded that he stop grabbing D.M.’s
private parts because the child “didn’t like it.” R.B. replied it was
“a game” played in Peru (where R.B. was born) and there “was
nothing weird about it.” M.M. had also seen R.B. grab H.B.’s
genitals over his pants on at least one occasion. She had told R.B.
to stop. M.M. again stressed she was unaware of R.B.’s ongoing
behavior because H.B. never complained about it to her.
At the time, M.M. was participating in wraparound
services and working with a parent partner to improve
communication with H.B. The parent partner reported M.M.
seemed averse to dealing with the effects of R.B.’s behavior and it
was unclear whether M.M. truly believed her children had been
sexually abused by him.
For his part, R.B. again denied the sexual abuse
allegations. He said, “[H.B.] has bathroom problems, he doesn’t
clean himself well, I’ll touch him around his private area over his
pants to make sure that he’s not wet. I’ve never touched [R.B.] or
[D.M.]’s penis ever.” R.B. blamed H.B.’s therapist for
misconstruing his efforts to discover whether H.B. had soiled
himself as molestation.
B. The Juvenile Court Issues Its Findings and
Disposition Orders
The juvenile court sustained the petition and declared D.M.
and H.B. dependents of the court under section 300, subdivisions
(b), (d) and (j). The court ordered the children placed with M.M.,
removed H.B. from R.B.’s physical custody, and ordered that
R.B.’s visitation be monitored by someone other than M.M. The
6
court ordered case plans for both parents and required R.B. to
complete sexual abuse awareness counseling for perpetrators, to
which he objected.
R.B. and M.M. timely filed separate notices of appeal.
DISCUSSION
I. R.B.’s Appeal
A. Substantial Evidence Supported the Juvenile Court’s
Jurisdictional Findings of H.B.’s Sexual Abuse
The juvenile court found R.B. sexually abused D.M. and
H.B., and placed them at substantial risk of serious physical
harm and sexual abuse within the meaning of section 300,
subdivisions (b)(1), (d) and (j). Although we need only consider
the evidentiary support for one of the grounds (In re I.J. (2013) 56
Cal.4th 766, 773-774 (I.J.)), common to all three is the court’s
finding that R.B. sexually abused the children. R.B. challenges
the sufficiency of the evidence to support these findings solely
concerning H.B. We conclude there was substantial evidence H.B.
was sexually abused and at substantial risk of future sexual
abuse pursuant to section 300, subdivision (d).
1. Applicable Law and Standard of Review
“The Department has the burden of proving by a
preponderance of the evidence that . . . children are dependents of
the court under section 300. [Citation.]” (I.J., supra, 56 Cal.4th at
p. 773; see § 355, subd. (a).) Pursuant to section 300, subdivision
(d), juvenile court jurisdiction is proper where “[t]he child has
been sexually abused, or there is a substantial risk that the child
7
will be sexually abused, as defined in Section 11165.1 of the
Penal Code, by his or her parent[.]”
Penal Code section 11165.1, subdivision (a) states “‘sexual
abuse’ means sexual assault,” which includes “conduct in
violation of . . . [Penal Code] [s]ection 647.6 (child molestation).”3
Penal Code section 11165.1, subdivision (b)(4) describes other
types of conduct that qualify as “sexual assault,” such as “[t]he
intentional touching of the genitals or intimate parts, including
the . . . genital area, groin, inner thighs . . . or the clothing
covering them, of a child . . . for purposes of sexual arousal or
gratification, except that it does not include acts which may
reasonably be construed to be normal caretaker responsibilities;
interactions with, or demonstrations of affection for, the child; or
acts performed for a valid medical purpose.” (See In re R.C.
(2011) 196 Cal.App.4th 741, 748-749, fn. 7.)
“[S]ection 300 does not require that a child actually be
abused or neglected before the juvenile court can assume
jurisdiction . . . . The legislatively declared purpose . . . ‘is to
provide maximum safety and protection for children who are
currently being physically, sexually, or emotionally abused . . .
and to ensure the safety, protection, and physical and emotional
well-being of children who are at risk of that harm.’ [Citation.]”
(I.J., supra, 56 Cal.4th at p. 773; see In re R.V. (2012) 208
3 A violation of Penal Code section 647.6, subdivision (a) is a
misdemeanor offense, which punishes “[e]very person who annoys
or molests any child under 18 years of age.” (Pen. Code § 647.6,
subd. (a)(1).) For the statute to apply, there must be “(1) conduct
a “‘normal person would unhesitatingly be irritated by”’
[citations] and (2) conduct “‘motivated by an unnatural or
abnormal sexual interest”’ in the victim [Citations].” (People
Lopez (1998) 19 Cal.4th 282, 289.)
8
Cal.App.4th 837, 843 [juvenile court “need not wait until a child
is seriously abused or injured to assume jurisdiction and take the
steps necessary to protect the child. [Citations.]”].)
“‘In reviewing a challenge to the sufficiency of the evidence
supporting the jurisdictional findings and disposition, we
determine if substantial evidence, contradicted or uncontradicted,
supports them. “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.” [Citation.] . . . ’ [Citation.]” (I.J., supra, 56 Cal.4th at p.
773; see In re S.C. (2006) 138 Cal.App.4th 396, 408 [“The juvenile
court’s judgment is presumed to be correct, and it is appellant’s
burden to affirmatively show error. [Citation.]”].)
2. Substantial Evidence Supported the Finding
That R.B. Sexually Abused H.B.
R.B. argues his behavior toward H.B. “seemed silly and
childish,” but there was no showing that he acted “for purposes of
sexual arousal or gratification” within the meaning of Penal Code
section 11165.1. R.B. points to evidence that he was merely
“teasing” or “playing a game” with D.M. and H.B. and grabbed
them quickly. Moreover, he argues, no pornography was involved
nor any indication that R.B. attempted to enter the children’s
bedroom at night or acted inappropriately toward them in the
bathroom. In short, R.B. is claiming he should not be faulted for
behavior that could have been worse. We disagree.
“‘Because intent can seldom be proved by direct evidence, it
may be inferred from the circumstances. [Citation.]’ [Citation.]”
9
(People v. Mullens (2004) 119 Cal.App.4th 648, 662.) “[T]he
‘circumstances’ which bear on the ‘sexual’ nature of the encounter
are those facts which indicate that the actor touched the child in
order to obtain sexual gratification.” (People v. Martinez (1995) 11
Cal.4th 434, 450, fn. 16.) Circumstances considered in
determining whether an act was performed with the requisite
intent include such factors as the act itself, the relationship of the
parties, whether secrecy was associated with the conduct, and
“the presence or absence of any nonsexual purpose.” (Id. at
pp. 445, 450, fn. 16.)
Not only is R.B.’s argument an invitation for us to reweigh
the evidence before the juvenile court, which we cannot do (In re
Jordan R. (2012) 205 Cal.App.4th 111, 135), it ignores
circumstances indicating he acted for purposes of sexual arousal
or gratification. A parent may have occasion to touch the genitals
of a young child in the context of routine hygiene; hence the
explicit exclusion in Penal Code section 11165.1, subdivision
(b)(4) for “acts which may reasonably be construed to be normal
caretaker responsibilities.”4 Perhaps a father may deem it
necessary to touch the crotch area of his young son’s pants to
determine whether the child had soiled himself. It is difficult,
however, to reconcile H.B.’s description of R.B.’s conduct as
“squeezing” or “pinching” his penis “real hard” with a normal
parental check for proper hygiene. Putting aside that H.B., at
eight and nine years old, presumably knew whether he had
urinated or defecated on himself and could so inform his father
when asked, a parental check for hygiene would not involve
4 Although R.B. characterizes his behavior as silly and
playful, he does not contend it falls within the exclusion as a
“demonstration[] of affection.” (Pen. Code, § 11165.1, subd. (b)(4).)
10
squeezing or pinching the child’s penis until he screamed in pain
and said a certain word.
H.B., himself, made this distinction in acknowledging to
the social worker that it was not normal for a man “to touch
[H.B.’s] private parts,” and no one should be allowed to touch
them. H.B. also protested the touching when it happened, asking
his father to stop. But, as H.B. told the social worker, R.B. “[did]
it anyways.”
Even in the absence of independent evidence of intent,
R.B.’s described conduct was peculiar, inconsistent with any
identifiably innocent purpose and sufficient to establish his
intent to achieve sexual arousal. Indeed, on the facts presented,
no purpose other than sexual gratification seems reasonable.
3. Substantial Evidence Supported the Finding
That H.B. Was at Risk of Future Sexual Abuse
R.B. engaged in sexual abuse over a period of time with
both D.M. and H.B. He either minimized his behavior to M.M. or
denied it had occurred to the Department. There was evidence he
had also asked H.B. to keep the abuse a secret. R.B. never
expressed regret, nor underwent counseling, nor showed an
intent to change his behavior. R.B. suggests the “games” he
played with the children demonstrated an age proclivity, having
not touched 13-year-old D.M. in several years. (See In re Nicholas
(2001) 88 Cal.App.4th 1126, 1134 [evidence of prior conduct may
be probative of current conditions, but standing alone does not
establish substantial risk of harm; there must be reason to
believe harmful conduct will continue]; see also In re J.O. (2009)
178 Cal.App.4th 139, 152.) However, the facts suggest that nine-
11
year-old H.B. would continue to be a target of his father’s sexual
abuse.
B. The Disposition Order Removing H.B. from
R.B.’s Custody Was Proper and Supported by
Substantial Evidence
1. R.B. Forfeited His Challenges to the
Removal Order
R.B. challenges the order removing H.B. from his physical
custody on several grounds. He contends the juvenile court
applied the wrong statute and failed to base its ruling on the
applicable standard of proof and to make the requisite findings to
support the ruling. His only objection at the disposition hearing,
however, was to the order that he participate in sexual abuse
awareness counseling for predators as part of the case plan. By
not objecting on the grounds he now raises on appeal, R.B. has
forfeited his claims. (See In re S.B. (2004) 32 Cal.4th 1287, 1293
[“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]” and “[d]ependency matters are not exempt
from this rule. [Citations.]”]; In re Ricky T. (2013) 214
Cal.App.4th 515, 522; [failure to object at jurisdiction hearing
forfeited issue on appeal]; In re A.E. (2008) 168 Cal.App.4th 1, 5
[“[t]he lack of an objection forfeited the point that father is
raising on appeal”]; In re Kevin S. (1996) 41 Cal.App.4th 882, 886
[“It would be unfair to the trial court and the [Department] to
consider this issue for the first time on appeal. [Citations.]”].)
12
2. The Removal Order Was Proper
Even in the absence of forfeiture, R.B. did not carry his
burden of demonstrating error. In issuing its removal order, the
court stated, “Pursuant to Welfare and Institutions Code section
360.1, sub[division] (c), the court finds that return of [H.B.] to the
physical custody of [R.B.] would create emotional – physical and
emotional damage to this child. [¶] The father has not enrolled in
programming. [¶] He denies the incidents, and so based on
[H.B.]’s young age, return to his father at this time would be
premature. [¶] [M.M.] shall retain physical custody of her son.”
We agree with the Department that the reference to
“section 360.1, subdivision (c)” in the reporter’s transcript as
authority for the removal order was a scrivener’s error; section
360.1, subdivision (c) does not exist. The correct statute is section
361, subdivision (c), which, as relevant here, provides that a
dependent child “shall not be taken from the physical custody of
his or her parents . . . with whom the child resides at the time the
petition was initiated, unless the juvenile court finds clear and
convincing evidence of any of the following circumstances”
including “(1) [t]here 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’s . . . physical custody.”5 (§ 361, subd. (c)(1).)
5 Although the juvenile court and the parties appear to have
relied on subdivision (c)(1) of section 361, subdivision (c)(4) would
also have applied, which prohibits removal “unless the juvenile
court finds clear and convincing evidence” that “(4) [t]he minor or
a sibling of the minor has been sexually abused, or is deemed to
13
Nonetheless, R.B. maintains the record shows the juvenile
court “was not relying upon section 361.” He argues (1) the
court’s failure to refer to the clear and convincing evidence
standard of proof, and (2) its repeated use of the word “return”—
in deciding against “returning” H.B. to R.B’s physical custody—
rather than “remove”—as in “removing” H.B. from his father’s
custody— “was reminiscent of the standard language” used at
status review hearings under section 366, which is governed by
the preponderance of the evidence standard of proof. We are not
persuaded.
Section 361, subdivision (c)(1) prohibits removing a child
absent clear and convincing evidence “there is or would be a
substantial danger to the child’s physical health, safety,
protection, or physical or emotional well-being of the minor if the
minor were returned home.” (emphasis added.) If anything, the
juvenile court’s use of the word “return” in the removal order
conveys it was well aware of the correct statute. To be sure, the
better practice is for the court to state on the record the clear and
convincing standard of proof, when it applies. The court’s failure
to do so here, however, cannot be equated with using the wrong
standard of proof. (See In re Bernadette C. (1982) 127 Cal.App.3d
618, 625 [where applicable standard of proof is new or unclear,
articulation is required, but where it is “‘ . . . well settled, it is
presumed that the trial judge applied the appropriate standard
and no articulation is required. [Citation.]’ [Citation.]”].)
be at substantial risk of being sexually abused, by a 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 . . . .”
14
Finally, R.B. faults the juvenile court for failing to make
certain findings in its removal order. Section 361, subdivision
(c)(1) requires the court to find “there are no reasonable means by
which the minor’s physical health can be protected without
removing the minor.” Additionally, the court must determine
“whether reasonable efforts were made to prevent or to eliminate
the need for removal of the minor from his or her home” and
“shall state the facts on which the decision to remove the minor is
based.” (§ 361, subd. (e).)
“In determining whether a child may be safely maintained
in the parent’s physical custody, the juvenile court may consider
the parent’s past conduct and current circumstances and the
parent’s response to the conditions that gave rise to juvenile court
intervention. [Citation.]” (In re D.B. (2018) 26 Cal.App.5th 320,
332; (D.B.) accord, In re Alexzander C. (2017) 18 Cal.App.5th 438,
451 (Alexander C.). overruled on another point by
Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011, fn.4) “‘A
removal order is proper if based on proof of parental inability to
provide proper care for the child and proof of potential detriment
to the child if he or she remains with the parent. [Citation.] “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 averting harm to the child.” [Citation.]” . . . ’ [Citation.]”
(Alexzander C., supra, 18 Cal.App.5th at p. 451; accord, D.B.,
supra, 26 Cal.App.5th at p. 328.)
Here, too, it would have been preferable for the juvenile
court to have made a clearer statement on the record—this time,
setting forth its findings in the context of section 361,
subdivisions (c)(1) and (e). Nonetheless, the court’s minute order
and factual findings in its removal order—that R.B. denied the
15
sexual abuse had occurred and had not enrolled in programming
to date, and H.B.’s youth—supported the child’s removal from his
father’s physical custody within the meaning of section 361,
subdivision (c).
3. Substantial Evidence Supported the Removal
Order
R.B. alternatively argues the removal order was not
supported by substantial evidence. R.B. contends his behavior
toward H.B. was not sexual abuse, both he and M.M. are
gainfully employed, and H.B. is healthy, well-adjusted, and
wants to continue visiting his father. R.B. asserts the removal
order itself demonstrated that the juvenile court, like the
Department, “seemed unsure about the family’s situation” and
thus wanted R.B. “to prove himself through services.”
A disposition order removing a child from a parent is
reviewed for substantial evidence. (In re Ashly F. (2014) 225
Cal.App.4th 803, 809.). In this case, substantial evidence
supported the juvenile court’s decision, based on clear and
convincing evidence, to remove H.B. from R.B.’s physical custody.
(See Conservatorship of O.B., supra, 9 Cal.5th at p. 1005.) M.M.
and R.B. were no longer residing together; H.B. lived with his
mother and visited R.B. The court found H.B. was sexually
abused by R.B. during visits at his father’s home. At such a
young age, H.B. was unable to stave off the abuse. Although R.B.
had expressed a willingness to participate in any court-ordered
program, at the time of the disposition hearing, he had not yet
received the much-needed counseling to help him stop his
harmful conduct. As the court found, “a return to his father at
this time would be premature.” Substantial evidence supported
16
the court's determination there were no reasonable means by
which H.B. could be shielded from R.B.’s sexual abuse without
removal.
II. M.M.’s Appeal
A. Substantial Evidence Supported the Juvenile Court’s
Jurisdictional Findings of M.M.’s Failure to Protect
Her Children
At the jurisdiction hearing, M.M. asked the juvenile court
to dismiss the dependency petition or, alternatively, to strike her
from the allegations. Without comment, the court denied her
requests and sustained the petition as alleged. M.M. contends,
joined by R.B., substantial evidence failed to support the findings
that she placed her children at risk by failing to protect them
from R.B.’s sexual abuse.
1. Applicable Law and Standard of Review
Under section 300, subdivision (d) a parent’s failure to
protect a child comes into play “when the parent . . . knew or
reasonably should have known that the child was in danger of
sexual abuse.” M.M. argues she neither failed to protect her
children from past sexual abuse nor placed them at risk of future
sexual abuse, because “she believed the touching took place,
reported [the] molestation to the police, was cooperative with [the
Department] and engaged in wraparound services prior to the
jurisdiction hearing.”
As stated, the Department must prove by a preponderance
of the evidence that D.M. and H.B. are dependents of the juvenile
court under section 300. (I.J., supra, 56 Cal.4th 766, 773.) And,
our review of the jurisdiction order is limited to determining
17
whether substantial evidence supported the juvenile court’s
finding, by a preponderance of the evidence, that M.M. failed to
protect her children. (Ibid.)
2. Substantial Evidence Supported the Findings
That M.M. Failed To Protect Her Children From
Sexual Abuse and Future Risk of Sexual Abuse
M.M. never wholeheartedly accepted the truth that R.B.
had sexually abused her children. After D.M. told her about
R.B.’s behavior and she saw him grab H.B.’s penis, M.M. simply
demanded that R.B. stop, because the children did not like it, not
because R.B. was engaging in sexual abuse. M.M. did not
intervene to stop the children from visiting R.B.’s home or
otherwise restrict their contact with him. Nor did she inquire of
her children whether R.B. was continuing to abuse them. When
M.M. learned H.B. was still being subjected to R.B.’s abuse, she
blamed her son for not confiding in her. M.M. never expressed
anger or concern over R.B.’s sexually inappropriate conduct. Even
after the Department became involved, M.M. seemed untroubled
by R.B.’s harmful conduct and appeared to be attempting to
exonerate him. She resisted filing a police report and did not seek
a restraining order. M.M. said she had nothing against R.B. and
he would never harm the children. M.M. never directly
acknowledged that R.B. had sexually abused her children and, as
late as two weeks before the jurisdiction hearing, she was still
ambivalent about the nature of R.B.’s behavior.
The juvenile court could reasonably have concluded that
despite M.M.’s claim to have believed her children’s accounts, she
never credited them as allegations of sexual abuse. If M.M. could
not acknowledge what R.B. had done, that failure of insight
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significantly increased the risk that she might fail to protect the
children from similar conduct by R.B. (See I.J., supra, 56 Cal.4th
at pp. 778-780.) There was substantial evidence that if the court
had not exercised jurisdiction over the children, M.M. would fail
to protect them from the risk posed by R.B.
DISPOSITION
The orders under review are affirmed.
CURREY, J.
We concur:
MANELLA, P.J.
WILLHITE, J.
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