In re Luis H.

Filed 8/30/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re LUIS H. et al., Minors. B276237
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super Ct. No. DK17782)
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
MORENA H.,
Defendant and Respondent;
LUIS H. et al.,
Appellants.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Julie Fox Blackshaw, Judge. Affirmed.
Valerie N. Lankford, under appointment by the Court of
Appeal, for Appellants.
Kate M. Chandler, under appointment by the Court of
Appeal, for Respondent.
_______________________
Minors Luis H. and Alan H. appeal from the dismissal of
the dependency petition filed on their behalf pursuant to Welfare
and Institutions Code1 section 300. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Morena H. has four children: Maria E. (born 2002),
Leslie O. (born 2008), Luis H. (born 2012), and Alan H. (born
2016). In 2016 the family came to the attention of the
Department of Children and Family Services when Leslie O.
disclosed to her teacher that her mother’s boyfriend and Luis H.’s
father, Manuel B., had sexually abused her.
After an investigation also revealed possible physical abuse
of Maria E. by Morena H., DCFS filed a petition alleging that the
four children came within the jurisdiction of the juvenile court
under section 300, subdivisions (a) (serious physical harm); (b)
(failure to protect); (d) (sexual abuse); and (j) (abuse of sibling).
The juvenile court conducted a contested jurisdictional
hearing. At the close of the hearing, the court dismissed the
allegations of serious physical harm as to all children; concluded
that Morena H. had failed to protect Leslie O. from being
sexually abused by Manuel H.; and sustained the failure to
protect and sexual abuse allegations under section 300,
subdivisions (b) and (d) as to Leslie O. only. The court did not
sustain the subdivision (b), (d), or (j) allegations as to the other
three children, saying, “I will not sustain the counts as to the
siblings. And the reason is this: I don’t have any evidence that
there has been any sexual abuse of any of the siblings, including
1 Unless otherwise indicated, all further statutory references
are to the Welfare and Institutions Code.
2
Maria [E.], the other possibly more obvious target. And I don’t
believe the abuse of Leslie [O.], at least based on the evidence in
front of me, reaches the level of egregiousness, for instance, that
was mentioned in [In re I.J. (2013) 56 Cal. 4th 766] where it
obviously puts the other children at risk. [¶] We have two young
boys. I don’t believe that they are—those young siblings are
similarly situated. And I actually don’t think Maria [E.] is
similarly situated. I do think that [Manuel B.] . . . was
opportunistic in that Leslie [O.] is shy, she is young, and he
thought he could do it to her. I’m not sure that I can also infer
that the same conduct would have been done with an older girl, a
girl who would be more explicit in what was happening, a girl
who actually might be able to push him away. But Leslie [O.]
was a target who was vulnerable, who was shy, who is not
terribly articulate. And I do believe that—that she is differently
situated than the other children in the home. So I won’t sustain
the allegations.”
The court declared Leslie O. a dependent child of the
juvenile court and dismissed the petition as to the other three
minors.2 Luis H. and Alan H. appeal the dismissal of the petition
with respect to the allegations under section 300, subdivisions (b)
and (j).
2 On our own motion, we take judicial notice of minute orders
concerning subsequent proceedings in this matter. We
understand from these orders that at disposition, the juvenile
court ordered Leslie O. placed in the home of her mother, and
that the court subsequently terminated dependency jurisdiction
over her.
3
DISCUSSION
Luis H. and Alan H. argue that no substantial evidence
supports the juvenile court’s “finding” that they were not placed
at a substantial risk of harm by Morena H.’s failure to protect
Leslie O. from sexual abuse by Manuel B. and by the abuse itself.
Here, the minors are “essentially urging that there was
insufficient evidence to support the juvenile court’s finding
against [their] position because evidence supports [their]
position.” (In re I.W. (2009) 180 Cal. App. 4th 1517, 1527.) As the
Court of Appeal observed in In re I.W., characterizing the
analysis as one of substantial evidence is misleading where, as
here, the trier of fact has expressly or implicitly concluded that
the burden of proof was not met. (Id. at p. 1528.)
We are aware that in In re I.W., supra, 180 Cal.App.4th at
page 1528, the Court of Appeal considered the situation in which
the appellant was also the party who bore the burden of proof in
the juvenile court proceedings. Here, DCFS bore the burden of
proof at the jurisdictional hearing (In re S.D. (2002) 99
Cal. App. 4th 1068, 1078 [agency that filed the petition “had the
burden of proof as to each fact necessary to sustain the
jurisdictional petition”]) but only Luis H. and Alan H. appeal the
dismissal. We do not believe that this distinction changes the
nature or standard of our review. At the jurisdictional hearing,
children who are the subject of dependency petitions have the
right to present evidence to the court, the right to use the process
of the court to summon witnesses, and the right to confront and
cross-examine witnesses. (Cal. Rules of Court, rule 5.534(g)(1).)
They have the right to counsel (§ 349), and their counsel is
obligated to perform investigations and to “examine and cross-
examine witnesses in both the adjudicatory and dispositional
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hearing.” (§ 317.) The children’s counsel is authorized by statute
to “also introduce and examine his or her own witnesses, make
recommendations to the juvenile court concerning the child[ren]’s
welfare, and participate in the proceedings to the degree
necessary to adequately represent the child[ren].” (§ 317.)
Indeed, the dependency scheme contemplates children presenting
evidence despite not bearing the burden of proof: “At any hearing
in which the probation department bears the burden of proof,
after the presentation of evidence on behalf of the probation
department and the minor has been closed, the court, on motion
of the minor, parent, or guardian, or on its own motion, shall
order whatever action the law requires of it if the court, upon
weighing all of the evidence then before it, finds that the burden
of proof has not been met.” (§ 350, subd. (c) (italics added). Here,
consistent with these provisions, Luis H. and Alan H. were
represented by counsel3 who had the opportunity to present
evidence at the jurisdictional hearing and who advocated for the
court to sustain the dependency petition. As the children had the
opportunity to produce evidence and to create a record that
supported their position that they came within the jurisdiction of
the juvenile court, we see no reason to depart from the general
rule that “where the issue on appeal turns on a failure of proof at
trial, the question for a reviewing court becomes whether the
evidence compels a finding in favor of the appellant as a matter of
law.” (In re I.W., supra, 180 Cal.App.4th at p. 1528.)
Here, the juvenile court concluded that the evidence
presented in support of the dependency petition was insufficient
to establish that Luis H. and Alan H. were at substantial risk of
3 One attorney represented Luis H., Alan H., and Leslie O.
Maria E. was represented by separate counsel.
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harm under section 300, subdivisions (b) and (j). Luis H. and
Alan H. have argued that the evidence showed that Morena H.’s
failure to protect and Manuel B.’s sexual abuse of Leslie O.
placed them at substantial risk of harm, but they have not
argued or demonstrated that the evidence “was (1)
‘uncontradicted and unimpeached’ and (2) ‘of such a character
and weight as to leave no room for a judicial determination that
it was insufficient to support a finding.’ [Citation.]” (In re I.W.,
supra, 180 Cal.App.4th at p. 1528.) Luis H. and Alan H. have
failed to meet their burden on appeal.
DISPOSITION
The judgment is affirmed.
ZELON, J.
We concur:
PERLUSS, P. J.
SEGAL, J.
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