IN RE: J.J. (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

M.J. (mother) appeals from the judgment of April 1, 2009, declaring her daughters, Je. and E., and her sons, Jo. and Jon., dependents of the court under Welfare and Institutions Code section 300.¹  Mother contends substantial evidence does not support the sustained allegations of the petition concerning mother's failure to protect Jo. and Jon. or the order removing E., Jo., and Jon. from her custody.   We hold substantial evidence supports the findings and order, and affirm the judgment.

STATEMENT OF FACTS AND PROCEDURE

Je. was born in 1992 to mother and an alleged father.   Jo., born in 1995, E., born in 1999, and Jon., born in 2002, were born to mother and J.J. (father), who married in 1994.   Father inflicted domestic violence on mother and Je. in the children's presence.   He was convicted of battery on mother and willful child cruelty of Je. in 1996, and placed on probation for 36 months conditioned upon serving 180 days in county jail.   He abused mother again in 2006.   Father admitted he had a hard time controlling his temper.   Jo. witnessed father physically abusing mother on more than one occasion.

Je. shared a bed with Jo. During the years when Je. was 9 to 12 years old, father would get into bed with Je. and rub her breasts and vagina under her clothes, while touching his own penis.   He made Je. rub his penis.   Jo. recalled father being under the blanket in the bed with Je. and recalled hearing them.   The molestations occurred at other locations in the house as well.   Father molested Je. several times per week.   When she was 11 years old, Je. told mother about the molestations, but mother did not believe her.   Mother did nothing to protect Je. and the molestations continued.

In September 2008, Je. disclosed to her boyfriend that father had sexually molested her.   Je. moved out of the home and went to live with her boyfriend's family.²  The boyfriend urged Je. to tell mother.   Fearing mother would not believe her again, Je. initiated a meeting in October 2008 between her family and her boyfriend's family at which she disclosed the molest.   Mother did not believe her, did not call the police, or require father to leave the family home.   Mother was satisfied with Je. living in the boyfriend's home.   With that arrangement, if Je. became pregnant, the boyfriend would have to take responsibility and mother would not be “left with the burden.”

In late October 2008, the Department received a referral regarding the sexual molestation.   Each boy separately disclosed to a social worker that father would hit them with an open hand on their backs.   E. disclosed both parents would hit her with an open hand on her back.   Father apologized to Je. “for everything he did to her.”

The children were detained from the parents and released to mother after mother signed a safety plan that required father to move out of the home.   Appearing to be cooperative, mother stated she accepted the children would be allowed to remain with her only if father was excluded from the home.   A section 300 petition was filed on October 29, 2009.

On October 29, 2009, at the detention hearing, the dependency court ordered the children released to mother and ordered that father not reside in the family home.   Father was ordered to have no contact with Je. Monitored visits with the other children were granted, but were not to take place in the family home.

Contrary to the dependency court's orders, father spent time with the children in the home almost every day with mother's permission.   He slept there overnight with the children at least twice before November 5, 2008, at mother's request, when mother stayed overnight with Jon., who was in the hospital.

On November 5, 2008, the children were removed from mother's home and placed in foster care, because mother violated the dependency court's orders by allowing father to reside in the home and have free access to the children.   At a detention hearing on November 10, 2008, the dependency court ordered the children detained from mother.   Mother received referrals for counseling.

When interviewed on November 19, 2008, mother again indicated she did not believe Je. and stated that Je. always seemed fine to her.   On November 21, 2008, mother received referrals for domestic violence counseling.

On November 24, 2008, father admitted to the police polygraph examiner he had sexually molested Je. He was arrested.   He subsequently stated his admission was coerced.

On December 4, 2008, mother told the social worker she did not want to reunify with Je. because Je. was the problem in the family.   Mother felt she did not need to provide a home for Je. because, since she had a boyfriend, Je. is grown up.

At a hearing on December 10, 2008, which mother attended, the dependency court ordered the Department to refer mother to sexual abuse awareness counseling and set up conjoint counseling between mother and Je. On December 17, 2008, mother received referrals from the social worker for sexual abuse awareness counseling.

On January 7, 2009, mother insisted Je.'s allegations were a lie, and she believed father.   She admitted the social worker had provided her with counseling referrals, but she did not enroll in any programs.   Mother was uninterested in conjoint counseling.   Mother depended on father to support the family financially.   She wanted him released from jail so that he could work and support the family.   Mother did not want to work.

On February 18, 2009, the dependency court adjudicated the allegations of the dependency petition regarding the risk of harm to Jo., E., and Jon.³ The dependency court sustained the following allegations.

Under section 300, subdivisions (b), (d), and (j), the child has suffered or there is a substantial risk the child will suffer serious physical harm or illness as a result of the failure or inability of the parent to supervise or protect adequately and as a result of the willful or negligent failure of the parent to supervise or protect the child from the conduct of the custodian with whom the child was left, based on the following facts.   Father “sexually abused the child [Je.] when the child was nine years old to twelve years old․  The mother knew or reasonably should have known of [father's] sexual abuse of the child and failed to protect the child or her siblings.   The mother allowed [father] to reside in the children's home and to have unlimited access to the children.   Such sexual abuse of ․ [Je.] by [father] endangers E.'s physical and/or mental health and mother's failure to protect [E., Jo., and Jon.], endangers [Jo.'s, E.'s, and Jon.'s] physical and emotional health, safety and well-being and places the siblings, [Jo., E. and Jon.] at risk of harm and failure to protect.” ⁴

“In essence, what I'm doing is finding that the molestation occurred.   That molestation by the father endangers E.'s physical and emotional health and safety, and that the mother's failure to protect the children endangers all three children, [Jo., E., and Jon.]” “Basically the court is not finding the boys at risk of sex abuse by father, but is finding the boys at risk of mother being unable to adequately protect them from future sex abuse or other physical harm in the future, based upon her behavior and actions in response to [father's] recent allegations about [Je.] [¶] ․ [¶] So, in essence I found the boys are not placed at any risk by father.  [¶] ․ [¶] And that E. is at risk both of sexual abuse by father and all three are at risk based upon mother's failure to protect them.  [¶] ․ [¶] I am [naming] the boys, because mother's inability to understand how to appropriately protect her children from action of people who are abusing one or more of her children and the problem is even after being told of what she needed to do to protect them from possible sexual abuse, still allowed father to then move back into the home while she was in the hospital, shows her inability to protect these boys.   Even if I'm now finding that [the boys] are not at risk of sexual abuse by the father[,] at a time when she was being told they were at risk of sex abuse, she failed to protect them and went directly against what she was being told needed to be done to ensure their safety and to be able to keep them in her home.”

The dependency court further stated:  “[Mother's] failure to protect any of the children from abuse by father puts [all] the children at risk of abuse by him or anyone else without [mother] being able to protect.  [¶] ․ [¶] Even at a time when she was being told he can pose a risk, she still allowed him to move back into the home, even when there were court orders as to whether he could or could not reside in the home, there was a prima facie showing he posed a risk.   She still, on her own, went again and allowed him to move back in the home when professionals were telling her he posed a risk, she still failed to protect.  [¶] ․ [¶] When she was under the understanding that it was believed he posed a risk, she let him move back in after it would have been a different story.   After a dismissal, different story letting him move back in when she is failing to call the police in the beginning, et cetera, for today that is my findings.”

The matter was continued to April 1, 2009, for the dispositional hearing concerning Jo., E., and Jon.

In February 2009, mother continued to believe father was innocent of the allegations.   Mother did not help the Department in its efforts to locate Je. because she felt it was not her responsibility.   Je. had dropped out of school in December 2008 and was not currently enrolled in school.

Mother rarely visited Jo., E., and Jon., who were in foster care.   She visited once in January and March, but not at all in February.   Mother did not call Jon. or ask for a visit on his birthday.   When she did visit, mother was “distant and uninterested in talking with the children․  [When she came for a Thanksgiving visit,] ․ she showed more interest in watching television than in talking to the children.”

In late March 2009, the social worker discussed with each child separately his or her thoughts about returning to mother's home.   These interviews revealed that, when the family lived together, mother neglected the children.   She did not provide affection or stimulation.   E. disclosed she did not want to go home.   Mother only occasionally hugged her, rarely helped with homework, and did not call or visit her in foster care.   In contrast, the foster mother hugged and played with E. and helped her with her homework.   Jon. revealed he did not want to return home.   He informed the social worker mother did not visit him, and he could not remember the last time she called or visited.   Jo., too, disclosed he did not want to go home.   He revealed his relationship with mother was distant.   Both boys stated mother kept them indoors a lot and did not let them go outdoors.

In foster care, “the children have improved in coming out of their shell․  [T]heir school teachers express how much the children have improved academically and socially․  [A]ll three children were extremely withdrawn and almost depressed.   However, ․ now the children seem more open to talk and are able to receive affection and attention more openly.”

On April 1, 2009, the dependency court declared the children dependents of the court.   Mother continued to side with father against Je. and to believe the family's problems were caused by Je. She had no understanding of the seriousness and dynamics of sexual abuse and how it affects both victims and family members.   Custody was taken from the parents.   Family reunification services were ordered.   Mother was granted monitored visits.   Mother was ordered to complete programs of conjoint counseling with the children, parenting, sexual abuse awareness counseling, domestic violence counseling, and individual counseling to address case issues.   Mother was ordered to start conjoint counseling with the children immediately.

DISCUSSION

Substantial Evidence Supports the Findings of the Petition

Mother contends substantial evidence does not support the sustained allegations of the petition concerning her failure to protect her sons.   We disagree.

“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.  [Citation.]”  (In re Heather A. (1996) 52 Cal.App.4th 183, 193.)  “We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court.”  (In re Matthew S. (1988) 201 Cal.App.3d 315, 321.)

Section 300, subdivision (b), describes, inter alia, a child who has suffered or is at substantial risk of suffering serious physical harm or illness as a result of “the failure or inability of [the] parent or guardian to adequately supervise or protect the child or the willful or negligent failure of the child's parent ․ to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left[.]”  “The statutory definition consists of three elements:  (1) neglectful conduct by the parent in one of the specified forms;  (2) causation;  and (3) ‘serious physical harm or illness' to the minor, or a ‘substantial risk’ of such harm or illness.”   (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.)

“ ‘[B]rothers of molested sisters can be molested ․ or in other ways harmed by the fact of the molestation within the family[,] by the knowledge that a parent has so abused the trust of their sister.   They can even be harmed by the denial of the perpetrator, the spouse's acquiescence in the denial, or their parents' efforts to embrace them in a web of denial.’  [Citation.]”  (In re Karen R. (2001) 95 Cal.App.4th 84, 90.)

The dependency court's finding that mother failed to protect the children and thereby placed her sons at risk is supported by substantial evidence.   Mother allowed the children to be exposed to numerous substantial risks of serious harm over a long period of time without protecting them, while she sided with the abuser.   Father sexually molested Je. in the children's home three times a week for over two years.   This created a risk that the boys might be sexually abused and a risk they would encounter the abuse and be harmed.  (In re P.A. (2006) 144 Cal.App.4th 1339, 1347 [the Legislature has determined that “[male] siblings of sexually abused [female] children are at substantial risk of harm and entitled to protection”];  In re Karen R., supra, 95 Cal.App.4th at p. 90.)   Jo. encountered the abuse in that father often molested Je. at night in the bed Je. shared with Jo. Five years later, Jo. still recalls the exposure to the molestations;  and he and Jon. risked being harmed by the knowledge of father's abuse of trust, father's denial, and mother's active acquiescence in the denial.   Mother was told about the abuse when it was occurring, but she let it continue, thus failing to protect her children from the abuse and from the risks to them created by the abuse.   Her sons were also exposed in the past to domestic violence in the home perpetrated by father.   Jo. witnessed it on more than one occasion, and Jon. was exposed to father's physical violence against Je. “Domestic violence against a spouse is detrimental to children[.]”  (Guardianship of Simpson (1998) 67 Cal.App.4th 914, 940.)   By allowing father to remain in the household, mother knowingly continued to expose the children to the perpetrator and failed to protect them from the risks and harms of domestic violence.

These facts were known to the dependency court when it ordered mother to protect her children from father by not allowing him in the home, not allowing any access to Je., and not allowing unmonitored access to Jo., Jon., and E. Mother stated she would cooperate, but she immediately and blatantly disobeyed by letting father live in the home and have free access to the children.   Valuing the financial support he provided, mother sided with father, and insisted Je. was lying, even after Je. disclosed and father confessed.

The foregoing is substantial evidence supporting the conclusion that mother had a history of repeatedly failing to protect her sons from exposure to substantial risk of serious harm, and her failure and inability to protect was ongoing, which created a substantial risk of harm the boys would suffer serious harm.

Substantial Evidence Supports the Removal Order

Mother contends substantial evidence does not support the order removing the children from her custody, because the dependency court failed to explore less drastic measures.   We disagree.

Section 361, subdivision (c), provides in pertinent part:  “A dependent child may 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 listed in paragraphs (1) to (5), inclusive ․:[¶]  (1) 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's ․ physical custody.”

Mother's contention that the dependency court did not explore less drastic measures mischaracterizes the record.   The record reflects the dependency court heard and considered mother's request that the children be returned immediately to her custody, with mother participating in therapy, obtaining a restraining order against father, and beginning conjoint therapy forthwith.   Although she claimed she was enrolled in a sex abuse awareness program, mother provided no documentation.   The dependency court denied mother's request but ordered a progress report on mother's participation in counseling and how much mother was benefitting.

Mother's failure and inability to protect the children over a long period of time, her failure to visit them in foster care, the stated wishes of E., Jo., and Jon. that they did not want to return to mother's care, mother's delay in enrolling in therapy, if she enrolled at all, and the fact that mother still did not believe Je.'s disclosures constitute substantial evidence supporting the removal order.

DISPOSITION

The judgment is affirmed.

KRIEGLER, J.

We concur:

TURNER, P. J.

MOSK, J.

FOOTNOTES

FN1. All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated..  FN1. All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.

FN2. Je. had a history of running away from home, in part because of father's sexual abuse..  FN2. Je. had a history of running away from home, in part because of father's sexual abuse.

FN3. The hearing on the petition's allegations regarding the risk of harm to Je. was continued to April 1, 2009, because Je.'s whereabouts were unknown.   On April 1, 2009, the dependency court sustained allegations concerning Je. under section 300, subdivisions (a), (b), and (d), based on allegations of the parents' domestic violence, father's sexual abuse, and mother's failure to protect..  FN3. The hearing on the petition's allegations regarding the risk of harm to Je. was continued to April 1, 2009, because Je.'s whereabouts were unknown.   On April 1, 2009, the dependency court sustained allegations concerning Je. under section 300, subdivisions (a), (b), and (d), based on allegations of the parents' domestic violence, father's sexual abuse, and mother's failure to protect.

FN4. The dependency court dismissed the allegation under section 300, subdivision (a), that there was substantial risk to E., Jo., and Jon. would suffer serious physical harm inflicted nonaccidentally by father's domestic violence against mother..  FN4. The dependency court dismissed the allegation under section 300, subdivision (a), that there was substantial risk to E., Jo., and Jon. would suffer serious physical harm inflicted nonaccidentally by father's domestic violence against mother.