IN RE: JENNIFER P. (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

INTRODUCTION

D.D. (mother) is the mother of twin daughters, Vicki and C.F., and their younger half-sister, J.P. She appeals from the juvenile court's disposition order removing custody of J.P. from her.   Mother contends that the removal order was not supported by substantial evidence of a current risk of harm to J.P. if she returned to mother's home.

We hold that there was substantial evidence to support the juvenile court's finding that mother was not yet capable of protecting J.P. from the risk of sexual abuse that her two older sisters suffered while in mother's care.   We therefore affirm the disposition order removing J.P. from mother's custody.

FACTUAL1 AND PROCEDURAL BACKGROUND

The detention report contained the following facts.   At the time of the incident that gave rise to this case, Vicki and C.F. were 14 years old and J.P. was nine years old.   In January 2006, Vicki reported that mother's boyfriend had sexually molested her from approximately October 2005 to December 2005.   According to Vicki, during that time span, mother's boyfriend sexually abused her approximately 20 times.   In or about October 2009, while Vicki was still living with C.F. in mother's home,² she told C.F. that mother's new boyfriend, Sam, had sexually molested her and that she told mother about the molestation.

C.F. reported that just after Halloween 2009, mother and Vicki had left home to run an errand, leaving C.F. and her younger sister, J.P., alone in the same house with Sam. C.F. was watching television in the living room while J.P. was in her bedroom.   Sam came into the living room, sat next to C.F., and asked C.F. if she wanted to kiss.   C.F. said no and tried to move away from Sam, but he grabbed her legs.   Sam started to feel C.F. “all over her body with his hands, and she tried to get away but he was too strong.”   Sam put his hand under C.F.'s basketball shorts and “put his fingers inside her vagina.”   C.F. struggled with Sam, but he held her down on the sofa and would not release her until he heard the front door knob rattling.   C.F.'s mother had come home and was entering the house.   Sam stood up from the sofa and went to the bathroom to wash his hands.   C.F. insisted that she told her mother that night that Sam digitally penetrated her vagina.   C.F. also reported that mother never called the police about the incident and that C.F. never told anyone other than mother that Sam had molested her.

Mother admitted that she saw Sam washing his hands on the day of the incident and that C.F. claimed Sam had “fondled” her, but denied being told that Sam had digitally penetrated C.F. According to mother, C.F. lied “a lot.”   Mother reported that she confronted Sam on the night of the incident, and he explained to mother that he had only touched C.F. to push her away because they were fighting over the television remote control.   Mother and Sam argued about the incident and he left home for about three weeks because he was angry with mother and her daughters.   But mother conceded that Sam later returned on his own.

Mother also admitted that she spoke to Sam about Vicki because Vicki had told mother that Sam had asked Vicki for sex.   Sam explained to mother that he was only questioning Vicki about sex to determine if Vicki was sexually active or using drugs because Vicki had behavior problems.   Mother stated that Vicki was “always acting out and doing poorly in school.”   And mother maintained that when Vicki decided to move in with her father in Bakersfield, mother did not want Vicki to move but Vicki insisted.   Mother denied that her decision to allow Vicki to move to Bakersfield to live with Vicki's father was due to Sam's molestation of Vicki.   According to mother, she did not believe that C.F. and Vicki had been molested by Sam.

Mother's younger daughter, J.P., denied that Sam had molested her.   But she remembered an incident during which mother and Sam argued causing Sam to leave home.   J.P. recalled that mother and Vicki had gone somewhere and J.P. was in her bedroom by herself.   C.F. and Sam were in the living room and Sam was playing “ ‘ranchera’ ” music on the stereo with the volume on high.   J.P. did not see what happened, but she could hear C.F. and Sam arguing loudly.   J.P. reported that when mother and Vicki came home, mother started to argue with Sam. J.P. claimed that she never knew that Vicki and C.F. had been molested by Sam.

Based on the incident between Sam and C.F., the Department of Children and Family Services (DCFS) filed a petition under Welfare and Institutions Code section 300 ³ alleging that Sam had sexually abused C.F., that mother had failed to protect C.F. from that abuse, and that mother's failure to protect C.F. placed C.F. and J.P. at risk.   The petition also alleged that Sam sexually abused Vicki, that mother failed to protect Vicki from the abuse, and that mother's failure to protect Vicki placed C.F. and J.P. at risk.

At the detention hearing, the juvenile court found that DCFS had made a prima facie case for detaining C.F. and J.P. from mother and showing that the children were persons described in section 300, subdivisions (b), (d), (g), and (j).  The juvenile court also found that a substantial danger existed to the physical and emotional health of the children and there were no reasonable means to protect them without removal from mother's home.   In addition, the juvenile court found DCFS had made reasonable efforts to prevent or eliminate the removal of the children from mother's home and that allowing the children to remain in mother's home would be contrary to their welfare.   The juvenile court vested DCFS with temporary custody of C.F. and J.P. Mother was granted visits with C.F. and J.P. with an approved monitor in an approved setting.   C.F. was released to her father and J.P. was placed in shelter care.

The jurisdiction/disposition report summarized follow-up interviews with Vicki and C.F. during which they repeated their accounts of sexual abuse by Sam. During the follow-up interview with mother, she again claimed that Vicki told her only that Sam had asked Vicki if she was having sex with someone, but that Vicki never said Sam had sexually abused her.   Mother also maintained that although C.F. told mother about an incident between Sam and C.F., Sam explained to mother that he was only arguing with C.F. about the television remote control and may have touched C.F. by accident.   Mother asked Sam to leave the day of the incident with C.F., but because neither C.F. nor Vicki had reported any other abuse by Sam, she allowed him back in the home.   Mother further denied having prior knowledge of any sexual abuse of C.F. or Vicki by Sam, but “felt bad because she should have been more aware.”   Mother did not have any intention of reconciling with Sam and regretted allowing him back in the home after C.F. told mother about Sam's abuse.

DCFS reported that C.F. was adapting to her father's home and wanted to remain there with Vicki.   J.P. was upset that C.F. was released to C.F.'s father, but was “doing better” in her foster home.

In an adjudicative progress report, DCFS reported that mother had monitored visits with C.F. and J.P. and that J.P. had also visited with her sisters.   According to DCFS, C.F. wanted to live with her father and did not want to return to mother's home.   DCFS was in the process of approving the maternal grandmother as an appropriate placement for J.P. DCFS requested discretion to place J.P. with her maternal grandmother if the grandmother received approval for such a placement.   DCFS also recommended that the juvenile court terminate jurisdiction over C.F. and issue an order granting her father sole physical custody over C.F.

At the adjudication hearing, mother signed a waiver of rights in which she agreed to submit the petition on the basis of the social worker's report and other documents.   The juvenile court admitted the detention report, the jurisdiction/disposition report, and a progress report into evidence and found specified allegations of the petition pertaining to mother to be true.   The juvenile court then continued the matter for a contested disposition hearing.

Prior to the disposition hearing, J.P. was placed with her maternal grandmother.   At the disposition hearing, in addition to the jurisdiction/disposition report and progress report that it had previously admitted into evidence, the juvenile court admitted a last minute information from DCFS and another progress report.   At mother's request, the juvenile court also admitted a report from mother's therapist.

Mother then testified as follows.   She had participated in 19 counseling sessions with her therapist.⁴  In those sessions, she discussed “what [her] problem [was] regarding the sexual abuse [of] her daughters and also the sexual abuse [she experienced] when she was a child.”   She had learned to give more attention to her daughters, to not leave them alone, and to protect them from abuse.   Mother also admitted that she believed Vicki and C.F. had been sexually abused and that she should have responded differently when they told her about the abuse.   Mother believed it was a “big mistake” not to call the police immediately.   In addition to the individual counseling mother received, she participated in one joint counseling session with J.P. the day before the hearing.

On cross-examination, mother admitted that Vicki had been molested by mother's other boyfriend, but added that on that prior occasion she called the police.   Mother also admitted that both of her daughters were subsequently abused by Sam and that even after she learned about Sam's abuse of Vicki, she still allowed him access to C.F.

The juvenile court heard the arguments of the parties, including a request by J.P.'s counsel that J.P. be placed with mother, as mother's counsel had requested.   The juvenile court then ruled as follows:  “The care, custody, and control of both children is taken from mother, and [C.F.'s] case, I'm going to close with a family law order of joint legal, sole physical, and primary to father, and [C.F.'s] visits to be reasonable unmonitored day visits, with discretion with the caretaker to allow overnights.  [¶] With regard to [J.P.], the child is detained from mother at this time and suitably placed, as the court does find, by clear and convincing evidence, there is a substantial danger to the minor's physical and mental well-being, and there is no reasonable means to protect without removal.   Reasonable efforts have been made to prevent the removal.”

DISCUSSION

A. Standard of Review

The substantial evidence standard applies to the review an order removing a dependent child from the custody of a parent under section 361, subdivision (c).  (In re A.O. (2010) 185 Cal.App.4th 103, 112.)  “We review the record in the light most favorable to the court's order to determine whether there is substantial evidence from which a reasonable trier of fact could find clear and convincing evidence that the children would suffer ․ detriment.   [Citations.]  Clear and convincing evidence requires a high probability, such that the evidence is so clear as to leave no substantial doubt.  [Citation.]”  (In re Luke M. (2003) 107 Cal.App.4th 1412, 1426.)  “Substantial evidence is any evidence which is of ponderable legal significance but it is not synonymous with any evidence;  rather it must be ‘reasonable, credible and of solid value․’  [Citation.]”  (In re Jasmine C. (2003) 106 Cal.App.4th 177, 180.)   Under the substantial evidence standard, “ ‘ “we are bound by the established rules of appellate review that all factual matters will be viewed most favorably to the prevailing party [citations] and in support of the judgment․  ‘In brief, the appellate court ordinarily looks only at the evidence supporting the successful party, and disregards the contrary showing.’  [Citation.]  All conflicts, therefore, must be resolved in favor of the respondent.”  (Campbell v. Southern Pacific Co. (1978) 22 Cal.3d 51, 60 [148 Cal.Rptr. 596, 583 P.2d 121].)' ”  (In re I.W., supra, 180 Cal.App.4th at p. 1527.)

B. Substantial Evidence in Support of J.P.'s Removal From Mother

Mother contends that the disposition order removing custody of J.P. from her was not supported by substantial evidence.   According to mother, although the petition may have correctly described the risk of harm to J.P at the time the petition was filed, the situation had changed by the time of the disposition hearing, such that J.P. was no longer at risk and reasonable means were in place to ensure her safety in mother's home.

The question at the dispositional phase was whether the evidence of risk of harm to J.P. was clear and convincing. (§ 361, subd. (c).)  “[I]n dependency proceedings the burden of proof is substantially greater at the dispositional phase than it is at the jurisdictional phase if the minor is to be removed from his or her home.  (In re Cheryl H. (1984) 153 Cal.App.3d 1098, 1111–1113 [200 Cal.Rptr. 789] [burden of proof in jurisdictional phase is preponderance of the evidence;  burden of proof in dispositional phase is clear and convincing evidence when court awards custody to a nonparent];  see also § 355, 361, subd. (b).)  [¶] This heightened burden of proof is appropriate in light of the constitutionally protected rights of parents to the care, custody and management of the children.  (See Santosky v. Kramer (1982) 455 U.S. 745, 753 [71 L.Ed.2d 599, 606, 102 S.Ct. 1388].)”  (In re Basilio T. (1992) 4 Cal.App.4th 155, 169.)   But even when the burden of proof at the trial level is clear and convincing evidence, the reviewing court's duty is still only to determine if there is substantial evidence in the record to support the order.  (Crail v. Blakely (1973) 8 Cal.3d 744, 750;  Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 880–881 [“The ‘clear and convincing’ standard ․ is for the edification and guidance of the trial court and not a standard for appellate review”].)

Contrary to mother's assertion, there was substantial evidence in the record to support the juvenile court's finding that J.P. was at risk of harm at the time of the disposition hearing.   That evidence consisted of the following.   In 2006, while under mother's care, Vicki was repeatedly sexually abused by mother's ex-boyfriend over a period of three months.   That mother was unable to recognize and prevent the abuse over such an extended period supported an inference that she either lacked the basic parenting skills necessary to protect her daughters or that she was indifferent to the risk of such abuse.   Moreover, the 2006 abuse of Vicki showed that, well prior to the abuse by Sam, mother was aware of the risk of sexual abuse of her daughters posed by having a boyfriend live in her home with access to the girls.   Nevertheless, in 2009, mother's live-in boyfriend, Sam, sexually abused Vicki.   Moreover, when Vicki told mother about the abuse, mother failed to call the police and allowed Sam to say in her home with continued access to the girls, including J.P. Mother then left C.F. and J.P. alone with Sam, and he forcibly sexually abused C.F. while J.P. was in another room close enough to hear the struggle between the two.   And when C.F. told mother about Sam's abuse, mother again failed to call the police and, after a three-week period during which Sam was absent from the home, mother allowed him to return, again providing him access to the girls, including J.P.

From the foregoing evidence, it was reasonable to infer that mother was either unwilling or incapable of protecting her daughters from sexual abuse by mother's live-in boyfriends.   Despite at least two incidents of sexual abuse by Sam, mother failed to report it and continued to allow Sam to live in the home with her daughters.   Although mother had participated in individual therapy following the filing of the petition, her own therapist could not state that mother had progressed to the point where she could effectively protect J.P. from the risk of abuse, and instead recommended further individual therapy for the minors and the family prior to reunification.⁵  That report contradicted mother's claim that she could protect J.P., cast doubt on her credibility in that regard, and supported a reasonable inference that mother was not yet capable of protecting J.P. from the risk of sexual abuse that had been inflicted on her older sisters while they were under mother's care.

DISPOSITION

The disposition order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

KUMAR, J.⁵

FOOTNOTES

FN1. Consistent with the standard of review governing this appeal discussed below, we state the facts that support the ruling and disregard any contrary showing.  (In re I.W. (2009) 180 Cal.App.4th 1517, 1527.).  FN1. Consistent with the standard of review governing this appeal discussed below, we state the facts that support the ruling and disregard any contrary showing.  (In re I.W. (2009) 180 Cal.App.4th 1517, 1527.)

FN2. Vicki subsequently moved to live with her father in Bakersfield.  (CT 16).  FN2. Vicki subsequently moved to live with her father in Bakersfield.  (CT 16)

FN3. All further references are to the Welfare and Institutions Code unless otherwise indicated..  FN3. All further references are to the Welfare and Institutions Code unless otherwise indicated.

FN4. The therapist's report indicated that 52 counseling sessions had been ordered..  FN4. The therapist's report indicated that 52 counseling sessions had been ordered.

FN5. In pertinent part, the report from the therapist stated, “[Mother] appears ․ [to have taken] some proactive steps to enhance her parental skills, however, due to the minimum level of visitation and contact with the minors which [is] still restricted, progress in regards to effective application of this knowledge is limited.   At this point it is unclear whether the minors are in therapy.   If family reunification is to take place it is highly recommended [that] [i]ndividual therapy [be provided] for the minors and family therapy as a means of reconstituting the family.”.  FN5. In pertinent part, the report from the therapist stated, “[Mother] appears ․ [to have taken] some proactive steps to enhance her parental skills, however, due to the minimum level of visitation and contact with the minors which [is] still restricted, progress in regards to effective application of this knowledge is limited.   At this point it is unclear whether the minors are in therapy.   If family reunification is to take place it is highly recommended [that] [i]ndividual therapy [be provided] for the minors and family therapy as a means of reconstituting the family.”

FN5. Judge of the Superior Court of the County of Los Angeles assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution..  FN5. Judge of the Superior Court of the County of Los Angeles assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

KRIEGLER, J.