Opinion
B303805
03-01-2021
In re H.S. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. P.S. et al., Defendants and Appellants.
Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and Appellant P.S. Paul A. Swiller, under appointment by the Court of Appeal, for Defendant and Appellant E.S. Rodrigo A. Castro-Silva, Acting County Counsel, Kim Nemoy, Assistant County Counsel, and Sarah Vesecky, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. 18LJJP00681) APPEAL from the jurisdictional and dispositional orders of the Superior Court of Los Angeles County, Stephen C. Marpet, Judge. Affirmed. The cross-appeal filed by Los Angeles County Department of Children and Family Services is dismissed. Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and Appellant P.S. Paul A. Swiller, under appointment by the Court of Appeal, for Defendant and Appellant E.S. Rodrigo A. Castro-Silva, Acting County Counsel, Kim Nemoy, Assistant County Counsel, and Sarah Vesecky, Deputy County Counsel, for Plaintiff and Respondent.
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Mother and father have three adult and three minor children. The juvenile court previously assumed jurisdiction over one of their adult children. The current appeal challenges the juvenile court's assumption of jurisdiction over mother and father's three minor children, H.S., M.S., and C.S. The court sustained numerous but not all of the counts in the Welfare and Institutions Code section 300 petition.
Undesignated statutory citations are to the Welfare and Institutions Code.
In addition to challenging the sufficiency of the evidence to support jurisdiction, mother and father argue that the juvenile court erred in removing H.S., M.S., and C.S. from their custody. We conclude substantial evidence supported the juvenile court's jurisdictional findings. Mother and father's contrary argument fails to consider this court's standard of review, and instead attacks the juvenile court's credibility determinations. We also affirm the dispositional order removing H.S. and M.S. from mother and father's custody. Mother and father's challenge to the removal of C.S. from their custody is now moot because during the pendency of this appeal, the juvenile court returned C.S. to mother and father's custody.
Los Angeles County Department of Children and Family Services (DCFS) filed a cross-appeal arguing that the juvenile court was required to sustain additional counts in the section 300 petition. We dismiss the cross-appeal because it presents a nonjusticiable issue.
BACKGROUND
At the time dependency proceedings began in October 2018, mother and father's daughter H.S. was 15 years old, her sister M.S. was 14 years old and their brother C.S. was 12 years old. C.S. was diagnosed with Down Syndrome and Autism and had the mental acuity of a three-to-six-month-old child. C.S. wore a diaper.
The children had adult sisters L.S. and A.S. and an adult brother E.S.
1. The family's history with the dependency system
In January 2009, L.S., mother and father's now adult daughter, reported that father physically abused her. DCFS was unable to complete its investigation because the family relocated to Riverside County. Mother admitted that E.S. was involved in dependency proceedings, but did not describe the details of that case, which are not included in the record.
It is not clear whether mother confused the case involving L.S. when she referred to E.S. or whether the juvenile court also assumed jurisdiction over E.S.
In January 2010, DCFS substantiated an allegation of physical abuse by father and assumed jurisdiction over L.S. At that time, DCFS found no risk to H.S., M.S., or C.S. As sustained, the count involving L.S. provided: "A parent-child conflict exists between child . . . and her father . . . and her mother. . . . Further, on or about 1/14/10, father's conflict with [child] resulted in injury to the child's back. The child . . . refuses to return home to the parents at this time. Said conflict and refusal to return home, places the child at risk of harm."
In December 2016, DCFS found allegations of emotional abuse against mother and father inconclusive. DCFS noted that M.S. ran away from home twice. M.S. was placed on an involuntary psychiatric hold, and at that time, reported domestic violence between mother and father. M.S. reported that she was afraid to return home because she heard voices that told her to hurt herself and her family. Mother, father, and H.S. denied domestic violence in the family home.
In April 2017, M.S. reported to an unidentified party, who notified DCFS that mother and father physically abused C.S. According to M.S., mother and father "would hit the child [C.S.] in the stomach, head, legs and arm" and slap his face. DCFS determined that the referral was inconclusive. At that time, H.S. denied seeing her parents hit C.S.
In another referral dated April 2017, M.S. reported that she would feel depressed and suicidal when her parents hit her. M.S. also reported that mother and father hit C.S. M.S. reported that she was scared at home. DCFS reported that the referral was "[e]valuated out," but the record does not show whether it was ever substantiated.
In December 2017, DCFS substantiated an allegation that mother and father minimized M.S.'s mental health needs and declined intensive mental health services that were essential to stabilize M.S. DCFS also substantiated an allegation that parents have "been inconsistent with following through for mental health services" necessary for M.S. The referral indicated that M.S. wanted to kill herself and was cutting her wrists.
In March 2018, M.S. contacted a hotline to report that she was suicidal. M.S. reported that mother withheld M.S.'s psychotropic medication. At the time, mother did not know the dosage of M.S.'s medication and acknowledged M.S. was not seeing a therapist. Mother explained that M.S. was in the process of changing therapists. The family participated in voluntary family maintenance services from March 2018 through July 2018. DCFS concluded services were no longer needed when M.S. and H.S. reported they were "doing well and feeling safe at home," and DCFS confirmed that M.S. was participating in therapy.
2. Events leading to the current dependency proceeding
On October 14, 2018, M.S. told her cheerleading coach, C.J., that father sexually abused her and that mother physically abused her. M.S. reported that mother hits her with her hands leaving marks and bruises and, on one occasion, hit her with a piece of wood. M.S. reported that mother also hit C.S. M.S. further reported that father touched her vagina. C.J. (the coach) reported M.S.'s statements to the local sheriff's station.
That same day, a deputy sheriff interviewed M.S., and M.S. reported that father grabbed her vagina on three occasions, once when she was 9 years old, once when she was 11 years old, and two weeks earlier. M.S. stated that father did not penetrate her vagina. M.S. also reported that mother used wood to beat her, threw chairs at her, and pushed her against a wall. M.S. no longer had bruises, but she showed the deputy sheriff a picture of a bruised arm. The picture did not show M.S.'s face or otherwise identify M.S. The deputy sheriff reported that H.S. corroborated M.S.'s statements, but did not describe what H.S. said in such corroboration. The district attorney's office did not pursue a criminal case against father.
3. Petition
On October 17, 2018, DCFS filed a petition identifying H.S., M.S., and C.S. as dependent children. The juvenile court subsequently sustained the following allegations.
Father sexually abused M.S. by fondling her vagina. Mother knew or reasonably should have known, and failed to protect M.S. Father's conduct and mother's failure to protect endangers M.S.'s physical health and safety and also places her siblings at risk of physical harm and sexual abuse. The juvenile court sustained the same allegations under section 300, subdivisions (b)(1) and (j). The court did not sustain the section 300, subdivision (d) count based on the same allegations.
Section 300 lists multiple bases for a juvenile court to assume jurisdiction over a child. It provides: "A child who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court:
"(a) The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm inflicted nonaccidentally upon the child by the child's parent or guardian. For purposes of this subdivision, a court may find there is a substantial risk of serious future injury based on the manner in which a less serious injury was inflicted, a history of repeated inflictions of injuries on the child or the child's siblings, or a combination of these and other actions by the parent or guardian that indicate the child is at risk of serious physical harm. For purposes of this subdivision, 'serious physical harm' does not include reasonable and age-appropriate spanking to the buttocks if there is no evidence of serious physical injury.
"(b)(1) The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child, or the willful or negligent failure of the child's parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left . . . . [¶] . . . [¶]
"(c) The child is suffering serious emotional damage, or is at substantial risk of suffering serious emotional damage, evidenced by severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others, as a result of the conduct of the parent or guardian or who has no parent or guardian capable of providing appropriate care. A child shall not be found to be a person described by this subdivision if the willful failure of the parent or guardian to provide adequate mental health treatment is based on a sincerely held religious belief and if a less intrusive judicial intervention is available.
"(d) The child has been sexually abused, or there is a substantial risk that the child will be sexually abused, as defined in Section 11165.1 of the Penal Code, by his or her parent or guardian or a member of his or her household, or the parent or guardian has failed to adequately protect the child from sexual abuse when the parent or guardian knew or reasonably should have known that the child was in danger of sexual abuse." (§ 300, subds. (a), (b)(1), (c), & (d).)
The juvenile court also sustained allegations of physical abuse, specifically that mother physically abused M.S. when she struck M.S. with a piece of wood, causing M.S. to sustain marks and bruises. Mother threw chairs and pushed M.S. Father knew or reasonably should have known of the abuse and failed to protect M.S. The physical abuse endangers M.S.'s health and safety and places her siblings at risk of serious physical harm. The juvenile court sustained these allegations under section 300 subdivisions (b)(1) and (j). The juvenile court did not sustain the section 300, subdivision (a) count based on the same allegations of physical abuse.
The juvenile court sustained the following allegations under section 300, subdivisions (b)(1) and (c): M.S. suffers from mental and emotional problems and her parents failed to ensure that she took the psychotropic medication as prescribed. Such neglect also endangers H.S. and C.S.
Finally, the juvenile court sustained the allegations that M.S. suffered from serious emotional damage evidenced by suicidal ideation, bipolar disorder, and self-mutilating behaviors as a result of the parents who failed to ensure that M.S. took her psychotropic medication as prescribed. Such conduct places M.S. and her siblings at risk of serious emotional damage. DCFS alleged similar allegations under section 300, subdivisions (b)(1), (c), and (j), but the court sustained these allegations only as to subdivisions (c) and (j). 4. M.S.
In May 2018, prior to the current dependency proceedings, a psychologist evaluated M.S. at mother's request. M.S. was then 13 years old. The psychologist recounted M.S.'s history as follows. M.S. reported feeling depressed beginning at age 11. She had been hospitalized five times, including for suicidal ideation. M.S. engaged in cutting behavior and she picked and scratched her arms excessively. A psychiatrist previously had diagnosed M.S. with major depressive disorder, schizoaffective disorder, and bipolar episodes. M.S. reported hearing voices commanding her to run away. M.S. had been taking Prozac for two years.
The psychologist "considered her [M.S.] report of auditory hallucinations and becoming disoriented as attempts to gain attention and justify defiant behavior." The psychologist also expressed "concerns of [M.S.'s] credibility. There was a clear discrepancy between report of symptomatology and testing results in addition to internal inconsistency in her subjective report." The psychologist believed that M.S. "feigns and malingers symptoms both intentionally and unintentionally, for gain. Thus, some of her symptoms including depression and anxiety are likely psychosomatic. . . . Her behavior appears to demonstrate some borderline and histrionic traits."
A social worker interviewed M.S. on the day she reported the sexual and physical abuse to her cheerleading coach. M.S. told the social worker that father sexually abused her since she was 9 years old and that mother physically abused her two weeks earlier and left marks and bruises. M.S. repeated that father did not penetrate but "grabb[ed]" her vagina. M.S. reported that mother beat her because she had a phone number from a friend. M.S. said that she "summoned courage to report the abuses because she does not wish to return back [to] the home of her parents."
M.S. told the social worker that she suffered from bipolar depression and had been in psychiatric treatment prior to the commencement of the current dependency proceedings. M.S. stated that her psychiatrist prescribed Prozac for her, but mother prevented her from taking the medication. A social worker observed four linear cut marks on M.S.'s wrists, and M.S. acknowledged that she cut herself with a light bulb.
A deputy sheriff reported that M.S. told her cheerleading coach that father raped her, but this may have been a misunderstanding because M.S. consistently stated that father did not penetrate her vagina. M.S. told the social worker that father "didn't rape" her but "he molested me [M.S.] 3 times." M.S. defined molestation as rubbing and fondling her vagina. M.S. indicated that the first time father touched her vagina, M.S. was wearing a bathing suit and father touched her over her bathing suit. The second time, father touched her outside of M.S.'s clothing. The third time, M.S. was asleep and when she awoke, her "pajama pants were down" and father was touching her vagina. M.S. reported that she did not tell mother because she did not think mother would believe her. M.S. also reported that father threatened to remove her from her dance class if she told her mother.
M.S. also reported that mother hit her multiple times "with a wooden stick on both her arms causing multiple bruises." On one occasion, M.S. took medication from her mother's room and then fell asleep. When she awoke, she told mother that she was unable to breath, and mother responded, "[D]eal with it."
In October 2018, after M.S. was removed from mother's and father's custody, M.S. "reported that she would kill herself if she went back home." M.S. did not want to have telephone calls or visits with her parents.
During the course of the dependency proceedings, when M.S. no longer resided with her parents, she was hospitalized again for suicidal ideations. In April 2019, hospital staff requested that mother and father have no contact with M.S. because M.S. was not ready to talk or visit with parents. M.S. told hospital staff that her relationship with mother triggered her suicide attempt and that mother was "relentless" in pursing phone contact with her. After M.S. was discharged, a social worker noted that "mother is continuing to discuss the case with the teen even while hospitalized . . . ."
DCFS reported that mother's telephone contact led to M.S.'s cutting behavior while in her foster care placement. A social worker believed that mother caused M.S. to become suicidal. The social worker concluded that mother "readily uses manipulative tactics at the expense of her children's emotional wellbeing and stability. [Mother] has demonstrated a relentlessness in working for the sole purpose of clearing her and her husband's record to avoid jail time even if that means her words and actions will be detrimental to her children."
In March 2019, Detective Vanessa Reddy spoke to M.S. M.S. described three incidents when father touched her vagina. According to Reddy, M.S. "admitted to lying about being physically abused by her mother." M.S. "said she hit her own arms on a dresser at her house." She lied about the physical abuse because she wanted to move out of the family home. Reddy further concluded that M.S. showed no remorse for lying. Reddy also reported that M.S.'s foster parent said M.S. lied about "being bullied" and "about things to get attention." M.S.'s foster parent told Reddy that M.S. knew what to say to obtain what she wanted.
Reddy reported that M.S. refused to "pursue prosecution for her father and mother and signed a victim refusal form." M.S. told Reddy she did not want her father to "get in trouble for what he did." M.S. would not discuss with Reddy whether she told a psychiatrist that father forced a screwdriver in her vagina. According to Reddy, M.S.'s foster parent heard from an unidentified source that M.S. had made that allegation during a psychiatric appointment.
M.S. reported that mother "contacted her on Facebook and told her that she wished she were dead." When interviewed in July 2019 by social workers, M.S. told the social worker she fabricated a story about mother contacting her on Facebook. Mother denied contacting M.S. on Facebook. M.S. also wrote a letter dated June 30, 2019, in which she allegedly recanted her allegations against her parents. The letter is not included in the record.
When interviewed by social workers, M.S.'s psychologist, Dr. Nancy Martinez, indicated that M.S. never reported being physically or sexually abused. Dr. Martinez never observed M.S. having bruises or visible marks. M.S. never reported that mother withheld psychotropic medication. Dr. Martinez also reported that mother supported M.S. receiving mental health services. 5. H.S.
A social worker interviewed H.S. on the same day M.S. reported the abuse to Coach C.J. H.S. never observed father sexually abuse M.S. H.S. reported that father did not sexually abuse her. H.S. reported that mother physically abused H.S., and H.S. believed that mother also physically abused M.S. H.S. told the social worker that she believed M.S. when M.S. said that father sexually abused her. Later, H.S. told a detective that she did not believe father would "touch anyone inappropriately."
H.S. told the social worker that mother did not like the children taking medications. H.S. also told the social worker that mother had instructed the children "never to have anyone's phone number" and H.S. saw pictures of marks and bruises mother inflicted on M.S. because M.S. had obtained a friend's phone number.
In a subsequent interview, H.S. reported that she previously saw mother throw a chair at M.S. H.S. also reported that when they were young, mother frequently "hit us a lot." It appears that H.S. was referring to herself and M.S. H.S. reported that M.S. tried to commit suicide by taking too much medication. H.S. reported that mother knew that M.S. had taken too much medication, but did not take her to the hospital. H.S. stated mother told H.S. that father walked in on H.S.'s sister, A.S., when A.S. was in the shower, and father said, "[N]ice butt, turn around so I can see the front." H.S. reported that mother told H.S. that father was a "pervert."
During the course of the dependency proceedings, DCFS reported that H.S. was doing well in her foster care placement. She maintained a 4.0 grade point average in her high school. H.S. told the social worker that she wanted to remain placed in foster care and "does not ever want to return to the home of her parents." H.S. stated she was responsible for changing C.S.'s diaper when she lived with her parents. H.S. also said that mother limited H.S.'s food, regularly warning her that she "would get 'fat.' " As a result, while she lived in mother's home H.S. had irregular menstruation. H.S. did not want to have telephone calls or visits with her parents.
H.S.'s and M.S.'s foster parent reported that "mother tries to get [H.S.] to tell [M.S.] to stop lying about the allegations or she's [mother] going to go to jail for a long time." The caretaker observed that both M.S. and H.S. suffered from increased anxiety after mother's telephone calls. 6. C.S.
C.S. was not verbal. In 2017, mother and father started an application process to obtain assistance for C.S. from the Regional Center, but they never completed that process. A Regional Center representative reported that if C.S. received more assistance earlier in his life, he could have been toilet trained. The representative further reported that "it may be too late for [C.S.] to be toilet[ ] trained at his current age of 12. . . . There is also concern that [C.S.] was not adequately assessed for a school IEP while he was in his parent's care . . . ." The Regional Center representative was concerned that mother and father wanted C.S.'s siblings to care for him rather than ensuring that C.S. obtain as much independence as he could.
A doctor observed C.S. on April 13, 2018 and had "no concerns for child abuse or neglect." When observed by a social worker in October 2018, C.S. had no marks or bruises except for one caused by a feeding tube he previously used.
H.S. reported that mother hit C.S. when C.S. upset her with his behavior, for example, when C.S. would remove his diaper. H.S. represented that both parents would "smack" C.S. when he would throw dishes. H.S. also reported that both mother and father were "aggressive" with C.S., "[r]epeatedly hitting him all over—his stomach, legs, all over his body." M.S. also reported that mother and father hit C.S. M.S. stated that sometimes they hit him for no reason and sometimes because C.S. made loud noises.
Social Worker Investigator Melinda Murphy observed mother and father during visits with C.S. She observed "both parents to speak lovingly to their son and hug him, smile at him, which [C.S.] appeared to enjoy." She described the parents as having positive communication with C.S. and encouraging him. The parents were concerned that C.S. has lost weight during the dependency proceedings. In June 2019, Murphy recommended that C.S. be returned home as soon as possible. Murphy explained, C.S. "who has Autism and Down Syndrome, has been replaced multiple times, where on one occasion the parents were not informed. He appears to be regressing behaviorally and cognitively. Health wise, since being in foster care, [C.S.] has lost a significant amount of weight and had blood in his stools. He was recently hospitalized with Dehydration." 7. L.S.
A social worker interviewed L.S. (the children's adult sister), who reported that mother and father were good parents. L.S. reported that mother "was not physically abusive" and father "has no history of sexually abusing any child in the home, including her and her adult siblings." L.S. reported that mother allowed the children to take medication. L.S. did not mention the dependency proceedings involving her.
In a second interview, L.S. represented that M.S. fabricated the abuse by using the tip of a pencil to scrape her skin. L.S. reported that M.S. had a short temper and ran away from home several times. L.S. also stated that M.S. "was in and out of mental hospitals and would always" involve DCFS. L.S. believed M.S. acted out in order to get her parents' attention. L.S. reported that M.S. never said father sexually abused her. L.S. also reported overhearing mother tell M.S. to take her medication.
8. Mother and father
Mother consistently denied any abuse by her or father. Mother denied hitting M.S. with a piece of wood and stated that she never uses corporal punishment on her children. Mother stated that "she raised 3 adult children, and that she did a good job raising them and that none of those adult children brought allegations" against her. Mother denied seeing father sexually abuse M.S. and reported that M.S. never told her about any inappropriate touching. Mother reported that she stayed home and provided care for C.S.
Mother believed that M.S. made up stories for attention. Mother reported that M.S. was diagnosed with bipolar disorder and depression. Mother was aware that M.S. had cut her wrists in the past. Mother indicated that M.S.'s psychiatrist discontinued the Prozac. Mother reported that DCFS previously investigated M.S.'s allegations that mother prevented M.S. from taking Prozac. In connection with those allegations, mother had agreed to a voluntary case with DCFS.
Father denied touching M.S. inappropriately. He stated that he would never sexually abuse or molest his children. Father stated that M.S. had been diagnosed with "borderline and depression" and that her moods could change rapidly. Father reported never observing mother physically abuse the children.
In October 2019, DCFS reported that "parents haven't acknowledged sexual abuse, physical abuse, or even the children's mental and special needs."
A letter from a case manager at Grace Resources dated October 7, 2019 represented that mother and father had completed a 10-week parenting class. The case manager also reported that mother and father "work as a team to care for their son" C.S. Mother and father show affection when they visit C.S. They bring food to the visits and they change his diapers. "Both parents encourage manners, praise and engage in age-appropriate activities with their son." Mother and father regularly visited C.S., and the monitor consistently described their visits as positive.
9. Jurisdictional and dispositional hearing
In addition to M.S. and H.S., a social worker, who was new to the case, testified at a jurisdictional and dispositional hearing. Neither mother nor father testified.
a. M.S.
M.S., who was then 15 years old, testified that mother hit her arm with a piece of wood from M.S.'s closet. Afterwards, M.S. had bruises. M.S. cried when mother hit her. Mother threw a chair at M.S. when M.S. was six years old. Mother did not otherwise hit her with objects, but mother hit M.S. with her hand about once a month. Mother hit M.S. because M.S. "would talk back" and mother did not like that.
In response to questions from the court, M.S. stated that she lied to Detective Reddy when she told Reddy that mother did not hit her. According to M.S., Detective Reddy had told M.S. that her parents could be "charged" "with a lot of things." M.S. did not want her mother to go to jail. M.S. testified that she lied to Detective Reddy because she "didn't want my parents to get in trouble."
M.S. also testified that mother told M.S. to lie and say mother never hit her with the wood. Mother asked M.S. to write a letter denying everything that happened. M.S. felt pressure from mother to say the allegations were false. Mother told M.S. she "needed to write a letter saying that I made everything up and that I was just mad at my parents. And she also told me that if I did this that she would put me back in cheer and I could have . . . all my extra-curricular activities back. And she would buy me presents."
M.S. testified that father fondled her vagina. M.S. did not tell mother because M.S. did not think mother would believe her. M.S. testified she was nine years old the first time father touched her vagina. The second time she was 11 years old. The last time he touched her vagina, M.S. was 14 years old. Father did not physically discipline M.S., but one time he locked M.S. in a room to prevent her from running away.
M.S. testified that she had been hospitalized five or six times. M.S. testified that she overdosed on medication that "should have been locked up and it wasn't." M.S. added that mother did not take her to the hospital.
M.S. testified that she came forward to protect her siblings and herself. M.S. saw her parents hit C.S. M.S. thought that mother hit C.S. because C.S. made loud noises and disturbed mother when mother was on the phone. M.S. testified that father would spank C.S. approximately twice a week.
b. H.S.
According to H.S., mother told her to tell M.S. to stop lying or mother would go to jail for a long time. Mother repeated the same statement in every phone call with H.S. H.S. believed that mother hit M.S. H.S. testified that mother also hit her and C.S., but only with her hands.
H.S. further testified her older sister, A.S., had told H.S. that father said "nice ass" to A.S. and told A.S., "Now turn around so I can see the front." H.S. testified that she and M.S. did not want their parents to go to jail. H.S. testified that mother made her feel bad when mother said, "I can't believe you do this to me. I'm your parent. . . . And then she would say, I'm going to go to jail. We're both going to go to jail for a long time." H.S. explained that her fear of her parents going to jail was why she said father would never inappropriately touch them. H.S. also acknowledged that she had lied when she stated that she never observed mother and father physically discipline C.S.
c. Social Worker Nicole Brackett
Brackett was new to the case and had not interviewed M.S. Brackett did not interview H.S. Brackett had not observed any visits between parents and C.S. Nor did she speak to anyone about allegations that mother and father hit C.S. Brackett testified that a child may recant based on pressure from a parent even if the original allegations were true.
10. Court orders
In a tentative opinion, the juvenile court expressed an inclination to dismiss the petition. After hearing all of the testimony, the court changed its tentative. The court stated that M.S.'s and H.S.'s testimony was "very compelling." The court also stated that mother constantly pressured the children. Based on the "compelling" testimony, the court sustained the allegations described above.
The juvenile court ordered the children removed from mother's and father's care finding clear and convincing evidence that a substantial danger existed to the children if they remained in their parents' care. The court also found no reasonable means to protect the children without removal. The court ordered mother to attend a parenting class, including one addressing special needs children, and to attend individual counseling. The court ordered mother to attend conjoint therapy with M.S. and with H.S. when the girls' therapists deemed it appropriate. The court imposed the same requirements on father and also ordered him to attend sex abuse awareness counseling and a sex offender program.
While the current appeal was pending, the juvenile court returned C.S. to mother and father's custody.
DISCUSSION
A. Substantial Evidence Supported Jurisdiction over M.S. and H.S.
We review the juvenile court's jurisdictional finding under the substantial evidence standard. (In re J.C. (2014) 233 Cal.App.4th 1, 5, 6.) Under that standard, we must "determine if substantial evidence, contradicted or uncontradicted, supports" the juvenile court's findings. (In re I.J. (2013) 56 Cal.4th 766, 773 (I.J.).) " ' "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.] "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." ' " (Ibid.)
" 'A party who challenges the sufficiency of the evidence to support a particular finding must summarize the evidence on that point, favorable and unfavorable, and show how and why it is insufficient. [Citation.]' [Citation.] Where a party presents only facts and inferences favorable to his or her position, 'the contention that the findings are not supported by substantial evidence may be deemed waived.' " (Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 738.)
Mother and father's principal argument is that no substantial evidence supported the juvenile court's assumption of jurisdiction over all three children. Neither mother nor father summarizes the evidence in the light most favorable to the juvenile court's order. Nor do they argue that in that light, the evidence is insufficient to support the juvenile court's order. Instead, they argue that the juvenile court improperly relied on M.S.'s testimony because she was not worthy of being believed and she had lied in the past. Mother and father have forfeited their challenge to the sufficiency of the evidence because they fail to summarize the evidence that supports the juvenile court's order. Additionally, as we explain below, on the merits, mother's and father's arguments are unpersuasive.
1. This court does not reweigh the juvenile court's credibility determinations
Mother argues that no substantial evidence supports the allegations because M.S.'s testimony was not credible. According to mother, "this case was built on [M.S.]'s words, and her words were absolutely not trustworthy as she lied repeatedly about the allegations and showed herself to be manipulative to an alarming degree. [M.S.] claimed abuse when it suited her. [M.S.] rejected her own allegations of abuse when it suited her." Mother argues that M.S. had "very serious credibility issues and a history of making dramatic and false claims . . . ." Father similarly argues that M.S., made conflicting statements and therefore could not be credited, and father emphasizes the court's questioning of M.S. about her conflicting statements. According to father, the "inconsistencies from the children necessarily should have injected substantial doubt into the children's other statements and made it very difficult to know whether they could be trusted to tell the truth in court."
Mother's and father's argument that this court cannot rely on M.S.'s and H.S.'s statements is inconsistent with our standard of review. We must defer "to the trier of fact on such determinations, and ha[ve] no power to judge the effect or value of, or to weigh the evidence; to consider the credibility of witnesses; or to resolve conflicts in, or make inferences or deductions from the evidence. . . . It is not [our] function, in short, to redetermine the facts." (In re Sheila B. (1993) 19 Cal.App.4th 187, 199-200.) These bedrock principles apply here even though as mother emphasizes, M.S. "had very serious credibility issues . . . ." The juvenile court recognized M.S.'s credibility issues and nevertheless found her testimony compelling. The same principles apply to H.S.'s testimony.
In order for this court to reject the testimony of a witness whom the juvenile court believed, " ' " 'there must exist either a physical impossibility that [her statements] are true, or their falsity must be apparent without resorting to inferences or deductions.' " ' " (Bloxham v. Saldinger (2014) 228 Cal.App.4th 729, 750.) " ' " 'Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the [trier of fact] to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.' " [Citation.]' " (Ibid.) Mother and father identify no physical impossibility in either M.S.'s or H.S.'s testimony.
2. Substantial evidence supported the juvenile court's assumption of jurisdiction over the children
a. M.S.
There is evidence that father touched M.S.'s vagina three times and that father failed to acknowledge his conduct. The evidence also shows that mother hit M.S. on multiple occasions with her hand and with objects. Mother failed to protect M.S. from father's conduct, and similarly, father failed to protect M.S. from mother's conduct. Once M.S.'s testimony is credited as required under our standard of review, it is undisputed that both mother and father failed to protect M.S. from a substantial risk of serious harm. (§ 300, subd. (b)(1) [permitting a juvenile court to assume jurisdiction over a child when there is a substantial risk the child will suffer serious physical harm or illness as a result of the failure to protect].) Instead of protecting M.S., mother protected father by repeatedly asking M.S. to recant and even imploring H.S. to ask M.S. to recant.
The same circumstances existed at the time of the jurisdictional hearing as at the time the dependency proceedings commenced because neither mother nor father acknowledged any wrongdoing and neither took steps to modify their conduct to assure M.S.'s safety. Although mother and father enrolled in a 10-week parenting class, there is no evidence that they learned anything from that class or that they would reform their conduct. Thus, there was " 'reason beyond mere speculation to believe the alleged conduct will recur.' " (In re Yolanda L. (2017) 7 Cal.App.5th 987, 993.) The trial court properly assumed jurisdiction over M.S. Because jurisdiction may be valid if based on any ground, we need not evaluate the additional grounds for assuming jurisdiction over M.S. (In re Alexis E. (2009) 171 Cal.App.4th 438, 451 (Alexis E).)
b. H.S.
Section 300, "[s]ubdivision (j) applies if (1) the child's sibling has been abused or neglected as defined in specified other subdivisions and (2) there is a substantial risk that the child will be abused or neglected as defined in those subdivisions. (§ 300, subd. (j).) . . . '[S]ubdivision (j) was intended to expand the grounds for the exercise of jurisdiction as to children whose sibling has been abused or neglected as defined in section 300, subdivision (a), (b), (d), (e), or (i). Subdivision (j) does not state that its application is limited to the risk that the child will be abused or neglected as defined in the same subdivision that describes the abuse or neglect of the sibling. Rather, subdivision (j) directs the trial court to consider whether there is a substantial risk that the child will be harmed under subdivision (a), (b), (d), (e) or (i) of section 300, notwithstanding which of those subdivisions describes the child's sibling.' " (I.J., supra, 56 Cal.4th at p. 774.) Subdivision (j) affords a juvenile court "greater latitude to exercise jurisdiction" when that child's sibling has been found to have been abused. (I.J., supra, at p. 774.)
Substantial evidence supported the juvenile court's finding that H.S., who was close in age to M.S., was at substantial risk of sexual and physical abuse. (I.J., supra, 56 Cal.4th at p. 774 [abuse of sibling is factor to consider in assessing whether child is at risk of abuse or neglect]; see also Los Angeles County Dept. of Children & Family Services v. Superior Court (2013) 215 Cal.App.4th 962, 968 (Los Angeles County Dept. of Children & Family Services) ["Cases overwhelmingly hold that sexual abuse of one child may constitute substantial evidence of a risk to another child in the household"].) The trial court properly assumed jurisdiction over H.S. under section 300, subdivision (j) and we need not determine whether substantial evidence supported the other grounds for jurisdiction. (Alexis E., supra, 171 Cal.App.4th at p. 451.)
c. C.S.
Mother argues that no sufficient evidence shows that C.S. was at risk of abuse. According to mother, C.S. "was differentially situated from his sisters in age, gender and mental functioning, and the only evidence that [C.S.] was at risk of any sort of abuse came from—his sisters, whose statements fluctuated wildly over the course of the dependency and are not credible." Mother also argues that at the time of the jurisdictional hearing, they had taken a parenting class and there was no evidence that C.S. needed protection from them. Father argues that there was "insubstantial evidence that [C.S.] had been physically abused" and no evidence he had been sexually abused. Father also argues that he and mother addressed C.S.'s needs when C.S. was in their care.
Substantial evidence supported the juvenile court's assumption of jurisdiction over C.S. under section 300, subdivision (j). Mother's physical abuse of M.S. placed C.S. at risk of similar abuse. Moreover, the evidence also showed that mother and father were "aggressive" with C.S. "[r]epeatedly hitting him all over—his stomach, legs, all over his body." Additionally, there was evidence that father physically abused C.S.'s adult sibling L.S. because the juvenile court previously assumed jurisdiction over L.S. As respondent argues, C.S.'s special needs made him especially vulnerable to abuse. This evidence supported the juvenile court's conclusion that C.S. was at risk of physical abuse. We need not evaluate whether substantial evidence supported the other grounds for jurisdiction over C.S. (Alexis E., supra, 171 Cal.App.4th at p. 451.)
B. Substantial Evidence Supports the Juvenile Court's Removal Order, Removing M.S. and H.S. from Mother and Father's Custody
"A removal order is proper if based on proof of parental inability to provide proper care for the child and proof of a 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 on averting harm to the child.' [Citation.] The court may consider a parent's past conduct as well as present circumstances. [Citation.] [¶] Before the court issues a removal order, it must find the child's welfare requires removal because of a substantial danger, or risk of danger, to the child's physical health if he or she is returned home, and there are no reasonable alternatives to protect the child. [Citations.] There must be clear and convincing evidence that removal is the only way to protect the child." (In re N.M. (2011) 197 Cal.App.4th 159, 169-170.)
Because the juvenile court was required to find that removal was necessary by clear and convincing evidence, this court applies a heightened standard of review. (Conservatorship of O.B. (2020) 9 Cal.5th 989, 995-996.) "[T]he question before the appellate court is whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true. Consistent with well-established principles governing review for sufficiency of the evidence, in making this assessment the appellate court must view the record in the light most favorable to the prevailing party below and give due deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence." (Ibid.)
Father argues that "for the same reasons that the court's having taken jurisdiction over the children was improper, so too was its order removing them from Father's custody." Mother and father argue that instead of removing the children from their custody, the court should have selected less drastic alternatives, such as family preservation services. Mother states that she "had completed a ten week parenting class and was committed to properly caring for her children going forward."
DCFS unpersuasively argues that the issue is forfeited. "[A] parent waives his or her right to challenge a juvenile court's order when the parent submits the matter on the social worker's recommendation." (In re Ricardo L. (2003) 109 Cal.App.4th 552, 565, citing In re Richard K. (1994) 25 Cal.App.4th 580, 589.) Here, mother and father did not submit on the social worker's recommendation regarding disposition.
The following substantial evidence supported removing M.S. and H.S. from mother and father's custody. Neither mother nor father acknowledged any wrongdoing and neither indicated that he or she would prioritize the safety of M.S. and H.S. "One cannot correct a problem one fails to acknowledge." (In re Gabriel K. (2012) 203 Cal.App.4th 188, 197.) M.S. and H.S. felt unsafe with their parents and refused to visit their parents. Further, unbiased observers, including hospital staff and a foster parent, observed mother's deleterious effect on M.S., contributing to M.S.'s attempted suicide. This occurred when M.S. was not living with parents, and neither explained how their conduct would change if the children were placed in their care.
In re Ashly F. (2014) 225 Cal.App.4th 803 is distinguishable. In Ashly F., this court held that there was "a reasonable probability that had the juvenile court inquired into the basis for the claims by DCFS that despite its efforts there were no reasonable means of protecting the children except to remove them from their home the court would have found that claim was not supported by clear and convincing evidence." (Id. at p. 881.) In contrast here, neither mother nor father identify a viable alternative to removal. Although mother argues that instead, the juvenile court could have ordered family preservation services, mother fails to account for the family's history in the dependency system dating back to 2010 and the failure of family maintenance services to address the family's need. These dependency proceedings did not commence until after voluntary services failed. Mother's statement that "in-home support services" would have "ensured the children's safety" is not supported by any citation to the record. Neither mother nor father testified at the jurisdictional/dispositional hearing, and there was no evidence that support services, which had failed in the past, would be sufficient to ensure the children's safety.
Father argues that the juvenile court could have provided mental health services for M.S. Father's argument falls short because it does not acknowledge the sustained allegations of sexual molestation and physical abuse. Providing mental health services would not protect the children from sexual molestation or physical abuse. The fact that neither mother nor father acknowledged their conduct leading to the juvenile court's assumption of jurisdiction undermines their claim that M.S. and H.S. would be safe in their home. Absent such an acknowledgement, there was no evidence that mother and father would reform their conduct to ensure M.S.'s and H.S.'s safety.
DCFS had assessed whether the children could be returned to mother's care if father moved out of the family home. If father moved out, he would have been rendered homeless. On appeal, neither mother nor father argue that father should move out of the family home.
C. Whether the Juvenile Court Properly Removed C.S. From Mother and Father's Custody is Moot
Since mother and father filed their appeal, the juvenile court has returned C.S. to their custody. Mother and father acknowledge that their challenge to the disposition as to C.S. is moot. Mother states that she "agrees that her challenge to the juvenile court's order removing [C.S.] from her custody is moot." Similarly, "Father concedes that his appeal of the juvenile court's order removing [C.S.] from parental custody is now moot and will no longer be pursued."
Mother and father each join in the other's arguments. Because we find no argument persuasive, we need not determine whether any parent's argument applies to the other parent.
D. DCFS's Cross-Appeal Must Be Dismissed
Courts have considered whether a juvenile court erred as a matter of law in dismissing a Welfare and Institutions Code petition. (See, e.g., In re Luis H. (2017) 14 Cal.App.5th 1223, 1227; Los Angeles County Dept. of Children & Family Services, supra, 215 Cal.App.4th at p. 967.) In that context, a reviewing court asks if the evidence in favor of jurisdiction is " '(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 [the dismissal]." [Citation.]' " (Luis H., supra, at p. 1227.)
Here, DCFS argues that the juvenile court should have sustained some of the same allegations already sustained under additional subdivisions of section 300. Specifically, DCFS argues: "[T]he juvenile court sustained the counts alleging physical and sexual abuse pled pursuant to section 300 subdivisions (b) and (j)." "However, it did not sustain identical counts pled pursuant to subdivisions (a) and (d). . . . This was error." We dismiss DCFS's cross-appeal because the issue is not justiciable. Any order we would enter would "have no practical impact on the pending dependency proceeding, thereby precluding a grant of effective relief." (In re I.A. (2011) 201 Cal.App.4th 1484, 1491.) When a jurisdictional allegation is supported, it is "irrelevant" whether remaining allegations are also supported. (In re Joshua G. (2005) 129 Cal.App.4th 189, 202.) Even if DCFS could show additional allegations should be sustained as a matter of law, we could afford DCFS no practical relief. "When the court cannot grant effective relief to the parties to an appeal, the appeal must be dismissed." (I.A., supra, at p. 1490.) In contrast to Los Angeles County Dept. of Children & Family Services, supra, 215 Cal.App.4th at p. 967, in which the appellate court could order the juvenile court to assume jurisdiction, here the juvenile court has already done so.
DISPOSITION
The juvenile court's jurisdictional and dispositional orders are affirmed. The cross-appeal filed by the Los Angeles County Department of Children and Family Services is dismissed.
NOT TO BE PUBLISHED.
BENDIX, Acting P. J. We concur:
CHANEY, J.
Judge of the San Luis Obispo County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.