IN RE: MARIA P. et al. (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

A.P., the father of two minor girls, appeals from the juvenile court adjudication of a dependency petition against him and later denial of father's motion to reconsider the adjudication that father failed to protect his daughter, Maria P., from sexual abuse.   Father does not challenge the jurisdictional findings against the mother of the minors.   Father does not challenge the juvenile court's order terminating jurisdiction and granting him legal and physical custody of the minors.   Father argues that since he took steps to protect his daughter and has provided a safe home for his children since they were removed from their mother's home, he should not be stigmatized by an adjudication that he failed to protect a child from sexual abuse.   We find the juvenile court did not abuse its discretion and affirm both the adjudication and the order denying reconsideration.

STANDARD OF REVIEW

The judgment against father and the order denying his motion for reconsideration are appealable under section 395 of the Welfare and Institutions Code.¹

The appropriate standard of review is for this court to determine whether the juvenile court's order was supported by substantial evidence.   Substantial evidence is evidence that is “reasonable, credible, and of solid value” such that a reasonable trier of fact could make such findings.  (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393.)   We do not try to resolve conflicts in the evidence or decide the credibility of witnesses.   The trial court's decision will not be reversed “unless it exceeds the bounds of reason.”   (Ibid.)

FACTS AND PROCEDURAL HISTORY

The children, Maria P. and Katie P., came to the attention of the Department of Children and Family Services (Department) on October 29, 2008, when the Department received a report that Maria had disclosed sexual abuse by her mother's live-in boyfriend, Rafael M. The next day, Maria told the Department's social worker that the abuse happened “about a year ago.”   Maria confirmed that the incident happened a year before her first disclosure when speaking with a different social worker seven months after the first interview with a Department social worker.   On May 26, 2009, Maria said the abuse happened when she was 11 years old;  Maria was 12 years and four months old at the time of that interview.

Maria and Katie had lived with their mother since her relationship with their father ended in 2004.²  Father lost touch with the girls for six or seven months, but he found out where they were living when he received child support “paperwork.”   At that point, the girls started to spend every other weekend with father.   Maria said she had reported the abuse to her father the weekend after it happened.

Maria told a social worker in October 2008 that after learning of the abuse, father confronted Rafael, who denied touching Maria inappropriately, and father told Maria to “watch [her] back” around Rafael.   In May 2009, Maria told a Department social worker that after she disclosed to her father that Rafael had abused her, father dropped Maria and her sister off at the mother's home, waited outside for Rafael, and confronted him.   Maria reported that when Rafael denied the incident, father asked Maria to come out and repeat “exactly what she had told [father].”   Maria said, “I then told him what he had done and he still denied it, so my dad went up to him and told him to never touch his little girl again or else he was going to ‘fuck him up and kill him.’ ”

According to father, Maria first told him about the abuse in October 2008.   Father confirmed that he had confronted Rafael, explaining that “he wanted Rafael to know that his daughters had someone to protect them and that he was not going to allow for anyone to hurt them.”

The Department met with mother and father in late November 2008 to create a safety plan for the children.   The parents agreed that the children would live with father while the Department offered reunification services to mother.   Mother and father signed a voluntary case plan in December 2008, agreeing to participate in the services outlined in the case plan.   However, mother continued to see Rafael and remained in denial that Rafael had abused her daughter.

In March 2009, Maria reported that Rafael was following her on her way home from school.   Father tried to get a civil harassment restraining order to protect the girls from Rafael, but the court denied the order.   In his declaration in support of his application for the restraining order, father stated that “[o]n or about November 10[, 2008,] Social services called me and said I have to pickup [sic ] my daughter for two weeks because the respondent [Rafael] sexually molested my daughter.   After about two weeks after the investigation, on or about November 26th[, the social worker] told me I will have to take care of my daughter for another six months.”   The girls were afraid to visit their mother after Rafael followed Maria.   In May 2009, the Department filed a section 300 petition.

At the jurisdiction hearing on July 21, 2009, father was represented by counsel.   All counsel submitted on the admission into evidence of four reports of the Department with attached exhibits, including the detention report, an addendum, the jurisdiction/disposition report, and an interim report.   Father's counsel did not object to the juvenile court sustaining the section 300, subdivisions (b) and (d) allegations that father failed to protect Maria from sexual abuse.   Father's counsel argued that the Department had not proved its allegations of father's history of domestic violence, and the juvenile court struck those allegations from the petition.

The court sustained the following allegations under section 300, subdivisions (b) (failure to protect) and (d) (failure to protect from sexual abuse):

“On prior occasions, the children Maria ․ and Katie['s mother's] male companion Rafael ․ sexually abused the child Maria by fondling the child's breasts and buttocks.   The male companion forced the child to disrobe prior to the sexual assault against the child.   The male companion viewed the child while the child was bathing.   The mother and [father] ․ knew of the male companion's sexual abuse of the child and failed to take action to protect the child.   The mother and father allowed the male companion to reside in the child's home and have unlimited access to the child.   The child is afraid of the male companion and refuses to return to the mother's home and care due to the male companion's sexual abuse of the child and the mother's failure to protect the child.   Such sexual abuse of the child Maria by the male companion and the mother and father's failure to protect the child endangers the child's physical and emotional health, safety and well-being and places child Maria and the child's sibling Katie ․ at risk of harm, damage, danger, sexual abuse and failure to protect.”

Several months later, in September 2009, father moved for reconsideration of the findings that he failed to protect Maria from sexual abuse.   The Department objected that the motion was untimely.   The Department also argued that father did not present any new or different facts to warrant reconsideration and contended there were sufficient facts to support the allegations against father.   After hearing counsel's arguments, the court took the matter under submission and denied the motion for reconsideration as untimely.

DISCUSSION

The Department acknowledges that we need not address father's challenge to the jurisdictional findings against him, because “a jurisdictional finding good against one parent is good against both.   More accurately, the minor is a dependent if the actions of either parent bring her within one of the statutory definitions of a dependent.  [Citations.]  This accords with the purpose of a dependency proceeding, which is to protect the child, rather than prosecute the parent.”  (In re Alysha S. (1996) 51 Cal.App.4th 393, 397.)   Nonetheless, the Department “concedes” the trial court should not have asserted jurisdiction over father and requests that we reverse and remand to the juvenile court with instructions to delete the references to father in counts b-2 and d-2 of the section 300 petition.   The Department now contends that the jurisdictional counts against father should not have been sustained, although the Department had opposed father's motion in the juvenile court to reconsider those counts.   This case is not exactly like In re Alysha S. because father does not challenge the juvenile court's finding that Maria and Katie were dependent children, or the court's disposition orders, including the termination of jurisdiction with the children in father's custody.   Rather, father asks this court to leave undisturbed all orders of the juvenile court and to reverse only the jurisdictional findings against him.

An appellate court reviews the correctness of a judgment as of the time of its rendition and upon the record before the court when it rendered its decision.   (In re Zeth S. (2003) 31 Cal.4th 396.)   Thus, we review the record to determine if there was substantial evidence before the juvenile court to support the jurisdictional counts against father, notwithstanding the Department's concession that those counts should be reversed.

Father contends that he took steps to protect the girls and, indeed, that he did all he could reasonably do to protect his daughters.   He argues there was no substantial evidence to support the juvenile court's finding that he failed to protect Maria from sexual abuse and exposed her to risk of further injury.   We disagree.   There is substantial evidence that Maria told her father that in 2007 Rafael had sexually abused her.   Yet, father did not object to Maria continuing to live with mother and Rafael until November 2008, when the Department removed them from mother's home and placed them with father.

Father cautioned Maria to “watch [her] back,” conveying to Maria that she should try to protect herself from further abuse, which the juvenile court may have concluded created an unreasonable risk for the 12-year-old child.   The juvenile court also may have concluded that father neglected to protect Maria by confronting Rafael on the street in front of the home where he lived with Maria to accuse him of molesting his daughter.   The juvenile court could also conclude that when father called Maria out to confront her abuser, father created a potentially dangerous situation for Maria.   By asking Maria to confront her 58-year-old abuser, unprotected in the street, the juvenile court could reasonably find that father exposed Maria to a risk of further harm.   After this confrontation, during which Rafael denied Maria's accusations, father left Maria to go back into the home of her mother and Rafael.   Father never contacted law enforcement when he learned of Rafael's abuse of Maria.   He told a social worker that mother had previously caused him to be falsely arrested for domestic violence and lied to the judge.   Apparently because of this, he did not want any further contacts with the police or the courts.   We find substantial evidence supports the juvenile court's judgment that father neglected to protect Maria from the risk of harm from sexual abuse.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

GRIMES, J.

We concur:

BIGELOW, P. J.

FLIER, J.

FOOTNOTES

FN1. All undesignated section references are to the Welfare and Institutions Code..  FN1. All undesignated section references are to the Welfare and Institutions Code.

FN2. It is not clear how long Rafael had lived with mother and the children, but he is variously referred to as “mother's live-in boyfriend” and the children's “stepfather” in the various Department reports to the court..  FN2. It is not clear how long Rafael had lived with mother and the children, but he is variously referred to as “mother's live-in boyfriend” and the children's “stepfather” in the various Department reports to the court.