In re K.R. CA2/8 ( 2014 )

Filed 12/11/14 In re K.R. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re K.R., a Person Coming Under the B252942
Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN AND Super. Ct. No. DK00111)
FAMILY SERVICES,
Plaintiff and Respondent,
v.
JESSICA P.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles County. D. Zeke
Zeidler, Judge. Affirmed.
M. Elizabeth Handy, under appointment by the Court of Appeal, for Appellant.
John F. Krattli, County Counsel, Dawyn R. Harrison, Assistant County Counsel,
Jacklyn K. Louie, Deputy County Counsel, for Plaintiff and Respondent.
_____________________________________
Jessica P. (Mother) appeals from the juvenile court’s dispositional orders
terminating jurisdiction and granting custody of two of her children, A.M. and K.R.,
to their respective fathers. We affirm the challenged orders.
FACTS
Mother has four children: son M.P., born in 2003 with Luis P.; daughter A.M.,
born in 2005 with Mauricio M.; daughter K.R., born in 2008 with William R.; and son
B.P., born in 2012 with David P. In 2013, Mother lived with David and B.P. The older
children did not live with Mother as a result of a voluntary placement plan Mother
entered into in 2011.1 M.P. lived with the maternal grandmother and A.M. and K.R.
lived with their respective fathers. Each of the children visited with one another,
generally at the maternal grandmother’s home, and K.R. had an extended visit with
Mother and David for approximately two weeks in June and July of 2013.
A petition under Welfare and Institutions Code2 section 300 was filed on July 24,
2013, alleging David hit A.M. with belts, fondled K.R.’s vagina, and had a history of
violent altercations with Mother in the presence of the children. It was further alleged
that Mother knew about the abuse, but failed to protect the girls. The boys were alleged
to be at risk of harm due to David’s abuse and Mother’s failure to protect.
1
On July 25, 2011, DCFS received a referral for general neglect and abuse. During
the course of the investigation, the children’s social worker (CSW) observed M.P. and
A.M. playing in the street while David sat on the porch drinking beer. The CSW also
noted that two-year-old K.R. was wandering around the house unsupervised while
Mother, who was pregnant with B.P., slept on the couch. The home also lacked hot
water. Mother agreed to allow K.R. and A.M. to live with their fathers while M.P. stayed
with the maternal grandmother. As a result of Mother’s voluntary plan, the referral was
closed and was never promoted to a case.
2
All further section references are to the Welfare and Institutions Code unless
otherwise specified.
2
The petition was precipitated by a call from the Los Angeles Police Department
(LAPD). On July 20, 2013,William brought K.R. to a LAPD station to report that David
touched her vagina inside her underpants. K.R. told William and his girlfriend that David
touched her several times between April and July 2013. K.R. also reported she witnessed
David choking Mother in April 2013.
During the ensuing investigation, the Los Angeles County Department of Children
and Family Services (DCFS) discovered that David had prior arrests for domestic abuse,
battery, and possession of narcotics dating back to 1993. Both David and Mother denied
all of the allegations. When confronted by the CSW about the allegations, Mother said,
“Supposedly my boyfriend David [P.] touched my daughter [K.R.] on her vagina but I
don’t believe her! She came a month ago and said that David touched her through her
panties. Her dad, William [R.] called me and told me that [K.R.] told him this.” In an
interview on July 21, 2013, A.M. told the CSW that David used to hit her with a belt
when she stayed with Mother. She also witnessed David choking Mother and on another
occasion, beating Mother. A.M. denied David touched her inappropriately. A.M.
confirmed she felt safe in her father’s care.
At the detention and arraignment hearing, the juvenile court found a prima facie
showing had been made that the children were dependents described under section 300.
B.P. and M.P. were detained in shelter care3 and A.M. and K.R. were released to their
fathers. DCFS was ordered to provide family reunification services and family
maintenance services to all parties. Monitored visits were granted to Mother and David.
However, they were ordered not to visit the children together and David was granted
visits only with B.P.
DCFS made its jurisdiction/disposition report on August 29, 2013, documenting
extensive interviews with the parties. In an August 23 interview, Mother indicated she
believed K.R. lied about the sexual abuse because the accusation came two weeks after
3
Although M.P. lived with the maternal grandmother and she indicated she was
willing to accept both M.P. and B.P. into her home, maternal grandmother’s home was
not initially approved because she had a previous referral against her.
3
Mother refused William’s request to keep K.R. for a longer period of time and to reunite
with him. William told her she was going to regret not keeping K.R. and not leaving
David. David denied any sexual or physical abuse, also asserting the accusations
stemmed from William. However, he believed William was motivated to coach K.R.
because he wanted full custody and child support from Mother. David observed that
K.R. was always with Mother, even when Mother was asleep or showering. He also
stated, “She [K.R.] tends to lie a lot. She lies about everything.” Both Mother and David
indicated it was suspicious that William allowed K.R. to stay with them for two weeks
during June and July after the alleged abuse began in April.
In an August 26, 2013 interview, K.R. confirmed, “David is my mom’s husband
and he touched my ‘panito’4 with his fingers.” She also reported he touched her over her
clothing and tried to kiss her on the mouth, but she said no, “because you don’t do that.”
K.R. also reported seeing David and Mother fighting and hitting each other. William
stated he waited approximately two weeks before reporting the abuse to the police
because he “wanted to make sure first.” When William confronted Mother about it, she
told him they were all lies. However, William and his girlfriend confirmed the story with
K.R. using a doll.
K.R. was interviewed over several days in September 2013 by a forensic case
worker pursuant to court order. During this time, forensic interviewer confirmed K.R.
knew the difference between what is true and what is not. K.R. then reiterated that David
tried to kiss her on the mouth and touched her vagina. In addition, K.R. confirmed that
David put his hands around Mother’s neck, hit her “many times,” and hit B.P.
DCFS noted some discrepancies in William and K.R.’s story regarding how and
when the sexual abuse was disclosed. William stated K.R. initially told the babysitter
about the abuse and the babysitter reported it to him. The babysitter, however, denied
K.R. disclosed any abuse to her. Also, William provided inconsistent dates as to when
K.R. first disclosed the sexual abuse, when he questioned Mother, and when he reported
4
K.R. identified her vagina as “panito” and her buttocks as “nalgas.”
4
the abuse to the police. K.R.’s story alternated between David touching her over her
panties and under her panties.
As to the domestic violence allegations, DCFS noted that A.M. and K.R.
consistently described incidents of domestic violence between Mother and David. In her
interview, A.M. described how David hit her with a belt: “I was crying, I forgot why but I
was crying really hard and my mom was inside with David in the room. Then he hit me
with the belt on my bottom.” Although Mother witnessed the incident, “[s]he didn’t do
anything.” A.M. further recounted that David “hits my mom, one day he choked her.
I don’t remember why he choked her, but he put her on the wall and my mom went down
and she was crying. That night, my mom was crying a lot. My brother [M.P.] was there
but he was outside and I told him. David said that he was going to call the police so they
can take my mom but I said that it was David that was supposed to go with the police.”
A.M.’s father indicated he wanted to retain custody of A.M. and was unaware of any
abuse. Although both Mother and David deny any domestic violence occurred, DCFS
noted that David’s record showed past incidents of a violent nature. Additionally, other
family members, including the other fathers, described David as violent or unpleasant.
The children all reported that they were reluctant to have contact with David.
The CSW concluded, “Despite the inconsistencies in [William’s] accounts of the
child [K.R.’s] disclosure, the child maintains that [David] was fondling her vagina on a
regular basis and also reported that [David] attempted to kiss the child in the mouth.
Nonetheless, the mother and [David] uphold that all the allegations have been fabricated
by [William] who is seeking to gain full custody of the child [K.R.].”
At the adjudication hearing on November 15, 2013, the juvenile court heard
testimony from the CSW, K.R., and A.M., which conformed to the information provided
in the DCFS reports. It also received stipulated testimony from Mother that she separated
from David on the day of the detention hearing. She initially lived with the maternal
grandmother, but then moved in with her friends once the maternal grandmother’s home
became a placement option. Mother also would have testified she was currently
5
participating in individual counseling and parenting. She would have denied that K.R.
told her David touched her inappropriately or tried to kiss her.
The juvenile court adjudged the children to be dependents under section 300 and
found by clear and convincing evidence that substantial danger existed to their physical
and emotional health. As to A.M. and K.R., jurisdiction was terminated with custody
orders granting legal and physical custody to their respective fathers. Weekly monitored
visits were granted to Mother as to all the children. However, Mother and David were
not to visit together. No reunification services were offered to David as to M.P. and B.P.
Mother was provided reunification services for B.P. and M.P. and individual counseling
was ordered for M.P. as needed. The court further ordered K.R. to attend counseling
until a therapist indicated it was no longer needed. The court indicated Mother was not
granted services as to K.R. and A.M. because K.R. and A.M. were safely in the care of
another parent. In any case, the juvenile court noted that Mother would receive services
in B.P. and M.P.’s case. Twice monthly sibling visitation was also ordered. The court
expressly noted and overruled Mother’s objection to the dispositional order terminating
jurisdiction as to K.R. Mother’s counsel argued the DCFS reports showed William did
not adequately protect K.R., there remained a substantial risk to K.R., and jurisdiction
should be maintained to ensure her safety. Mother timely appealed.
DISCUSSION
Mother does not dispute the juvenile court’s findings. She only challenges the
juvenile court’s dispositional orders relating to K.R. and A.M. According to Mother,
substantial evidence demonstrates a need for continued jurisdiction over both girls,
particularly since the court maintained jurisdiction over B.P. and M.P. Additionally,
Mother argues it is in the children’s best interests to preserve the family with Mother.
County Counsel filed a respondent’s brief contending the juvenile court’s orders as to
A.M. were proper, but it took no position on the court’s orders as to K.R. since DCFS
recommended continued jurisdiction over K.R. William also filed a respondent’s brief,
arguing substantial evidence supports the juvenile court’s orders as to K.R. Because the
6
girls are differently situated, we separately address whether the court’s orders as to each
of them were proper.
I. Applicable Law and Standard of Review
Mother assumes the juvenile court applied section 361.2, subdivision (b)(1)5 when
it granted custody of the girls to their fathers and terminated jurisdiction. William agrees
with Mother that section 361.2 applies because “[K.R.] was technically living with Father
[William] at the time the proceedings were initiated in juvenile court, however there was
no custody order in place with either the family law court or the juvenile court. [K.R.]
had overnight visitation with Mother, in the home she resided in with David, and [K.R.]
was abused during such visitation in Mother and David’s home. Thus, the incidents
which brought this matter to the attention of the juvenile court occurred during a time
when [K.R.] was ‘residing with Mother and David, not Father [William].” County
Counsel likewise cites to sections 361.2 and 362.46 as the governing law in this case.
The juvenile court, however, did not reference section 361.2 or 362.4 in its orders.
5
Section 361.2, subdivision (a) provides that when a court assumes jurisdiction of a
minor, it must determine “whether there is a parent of the child, with whom the child was
not residing at the time that the events or conditions arose that brought the child within
the provisions of Section 300, who desires to assume custody of the child.” If so, the
court must place the child with that parent unless it finds that doing so poses a risk of
harm to the child. (§ 361.2, subd. (a).) Once the child has been placed with the
noncustodial parent, the court has three options: (1) it may simply terminate jurisdiction
and give the noncustodial parent legal and physical custody of the child with visitation
rights to the other parent (§ 361.2, subd. (b)(1)); or (2) it may place the child with the
noncustodial parent and order a home visit be conducted within three months to
determine whether that parent should have permanent custody (§ 361.2, subd. (b)(2)); or
(3) it may order reunification services be provided to either or both parents and determine
at a later hearing which parent, if either, shall have custody of the child (§ 361.2, subd.
(b)(3)).
6
Section 362.4 provides, in pertinent part, “[w]hen the juvenile court terminates its
jurisdiction over a minor who has been adjudged a dependent child of the juvenile court
prior to the minor’s attainment of the age of 18 years, and . . . an order has been entered
with regard to the custody of that minor, the juvenile court on its own motion, may
issue . . . an order determining the custody of, or visitation with, the child. [¶] . . . [¶] If
no action is filed or pending relating to the custody of the minor in the superior court of
7
By its own terms, the options outlined in section 361.2 govern only when the
dependent child is placed with a parent “with whom the child was not residing at the time
that the events or conditions arose that brought the child within the provisions of Section
300[.]” Here, the girls resided with their fathers at the time the proceedings were
initiated. K.R.’s two-week stay with Mother and David in June and July 2013 was
merely an extended visit. Although Mother and William agreed that no custody orders
were issued by any court regarding K.R. and A.M., it is clear the girls lived with their
fathers and, at a minimum, the fathers shared custody of the girls with Mother. Under the
Welfare and Institutions Code, the residence of a minor is determined by the residence of
the person who has custody of the child. (§ 17.1, subd. (b).) Under this scenario, the
girls resided with their fathers prior to the proceedings and therefore, could not have been
placed under the terms of section 361.2.
Although this case does not fit neatly within its parameters, we nevertheless
believe the juvenile court derived its powers from sections 362 and 364. (See In re A.L.
(2010) 188 Cal.App.4th 138 [applying section 362 to adjudge a child a dependent of the
court, but leaving her in parental custody as part of the dispositional order]; In re Gabriel
L. (2009) 172 Cal.App.4th 644 [applying section 364].) Section 362 permits a juvenile
court to “make any and all reasonable orders for the care, supervision, custody, conduct,
maintenance, and support of the child” if he or she is adjudged a dependent of the court
under section 300. (§ 362, subd. (a).) Section 364 outlines the procedure when a court
has determined that jurisdiction under section 300 is appropriate, but “the child is not
removed from the physical custody of his or her parent or guardian . . . .” (§ 364, subd.
(a).) “After hearing any evidence presented by the social worker, the parent, the
guardian, or the child, the court shall determine whether continued supervision is
necessary. The court shall terminate its jurisdiction unless the social worker or his or her
any county, the juvenile court order may be used as the sole basis for opening a file in the
superior court of the county in which the parent, who has been given custody, resides.
The court may direct the parent or the clerk of the juvenile court to transmit the order to
the clerk of the superior court of the county in which the order is to be filed.”
8
department establishes by a preponderance of evidence that the conditions still exist
which would justify initial assumption of jurisdiction under Section 300, or that those
conditions are likely to exist if supervision is withdrawn.” (§ 364, subd. (c).) When
proceeding under section 364, the juvenile court is not concerned with reunification, but
with determining whether continued supervision is necessary in the family home because
the child is in placement with a parent and the existing custody arrangement is not
disrupted. (In re Gabriel L., supra, 172 Cal.App.4th at p. 650.)
Whether we apply section 361.2 or sections 362 and 364, the standard of review is
abuse of discretion. (In re Gabriel L., supra, 172 Cal.App.4th at p. 647 [court’s
discretion under section 364 is similar to the court’s broad discretion as to whether to
offer services under section 361.2 because in both situations the child is not in out-of-
home placement, but in placement with a parent.] Furthermore, the juvenile court’s
factual findings are reviewed for substantial evidence. (See, e.g., In re Austin P. (2004)
118 Cal.App.4th 1124, 1134 [appellate court reviewed record for substantial evidence
indicating whether there was a need for continuing supervision].)
This standard of review comports with the juvenile court’s “broad discretion to
determine what would best serve and protect the child’s interest and to fashion a
dispositional order in accordance with this discretion.” (In re Jose M. (1988) 206
Cal.App.3d 1098, 1103-1104; In re I.G. (2014) 226 Cal.App.4th 380, 386.) Thus, we
may not reverse the juvenile court’s dispositional orders in the absence of a clear abuse of
discretion.
II. K.R.
Mother contends the juvenile court erred in terminating jurisdiction as to K.R.
because there was sufficient evidence in the record to indicate that continued supervision
was needed to ensure K.R. was protected. In support of her position, Mother emphasized
William’s domestic abuse history, pointing to her own statements to DCFS describing
how William hit her and abused alcohol during their relationship. The family entered
into a voluntary family maintenance contract from December 2008 to November 2009
after Mother reported that William slapped Mother. Mother reported it was an isolated
9
incident and William denied it happened. Mother also highlights the inconsistencies in
his story about learning of K.R.’s abuse as well as his delay in reporting it. Mother
contends William may not be committed to caring for K.R. because he asked to extend
K.R.’s visit with her and he would often call Mother at 11 p.m., asking if she could take
care of K.R. “because he wanted to go out and have fun.” According to Mother, these,
along with the fact that K.R. was four years old and had not yet started therapy, were all
factors favoring continued jurisdiction over K.R. In short, “[t]he question remained
whether William R. should have permanent custody of [K.R.] and the case closed before
it could be assured that William R. would follow through with therapy, and [K.R.’s]
emotional health needs were known to the court.”
We find the juvenile court acted within its broad discretion to terminate its
jurisdiction over K.R. Mother and David were the sole cause of the dependency
proceedings. There were no allegations relating to William. Instead, the
jurisdiction/disposition report noted that an inspection of William’s one-bedroom home
with K.R. showed it to be in adequate condition, with working utilities, and appeared free
of clutter. The inspector observed sufficient food, toys, and clothing in the home.
The CSW concluded, “At this time, the child appears stable in the care of her father.”
K.R. also liked living with William, stating, “It’s good, I sleep well.” William denied
living with anyone else and having any other children.
Further, William completed parenting classes and counseling due to the voluntary
family maintenance contract in 2008 and 2009. There is no indication that domestic
violence continues to be an issue for William. Mother’s suggestion that William is not
committed to K.R. is belied by the fact that K.R. has lived with him since 2011 without
any problems. William has provided for K.R. during this time and ensured she continued
to have visits with Mother and her siblings. He enrolled K.R. in preschool at Jefferson
Elementary School and made an appointment for a mental health evaluation of K.R.
As to the delay in reporting David’s abuse of K.R., William explained that he did not
want to make such serious accusations until he was sure they were true.
10
Mother’s reliance on In re Austin P. (2004) 118 Cal.App.4th 1124, is misplaced.
There, the non-custodial father took custody of his son under section 361.2 after he was
removed from the mother’s home. At the review hearing, the court refused to terminate
jurisdiction, finding that continued supervision was necessary for several reasons: the
father knew his son was being abused but had taken no steps to protect him and without
continuing jurisdiction, the boy’s safety could not be assured; father had sporadic contact
with his son during the past 10 years and the child was more bonded with his mother;
there was significant conflict between the parents; the social worker believed the boy
needed both individual and conjoint therapy with each parent, which could occur only if
the matter remained open; and the mother was making good progress with her
reunification plan. (Id. at p. 1134.) The father appealed, contending the dependency
court should have terminated jurisdiction. The appellate court affirmed, finding
substantial evidence to support a finding that continued supervision was necessary, thus
precluding the termination of jurisdiction. (Id. at p. 1135.)
Contrary to Mother’s contention, similar facts do not exist here. Unlike In re
Austin P., there is no question as to K.R.’s safety because the conditions which justified
assumption of jurisdiction under section 300 no longer exist since K.R. is no longer in
contact with David. Moreover, there is no indication William is not willing or able to
protect K.R. He reported the abuse soon after he learned about it and he did not allow
David contact with K.R. after the initiation of the proceedings. He also has an
established bond with K.R., who likes living with him, and has provided an adequate
home for her. Further, the juvenile court ordered individual counseling for K.R., not joint
counseling with either parent. There is no indication William will not ensure K.R.
receives counseling. He has already made an appointment for a mental health evaluation
for K.R. While there may be evidence which shows continued supervision may be
beneficial in this case, the juvenile court did not make an arbitrary, capricious, or patently
absurd determination in terminating jurisdiction.
11
III. A.M.
Having determined that no abuse of discretion occurred in terminating jurisdiction
over K.R., we find even less reason to find the juvenile court abused its discretion in
terminating jurisdiction over A.M. We are persuaded by the analysis in In re A.J. (2013)
214 Cal.App.4th 525, which found the juvenile court properly exercised its discretion in
terminating jurisdiction after placing the dependent child out of state with her biological
and presumed father. The juvenile court’s finding that no protective issue existed which
would warrant retaining jurisdiction was supported by substantial evidence. (Id. at
p. 536.) The juvenile court found the father to be a committed, responsible parent who
could provide a stable, loving, and safe home for the child, and who had taken the
necessary steps to see that the child would receive all the services, education, and health
care that she needed. (Id. at pp. 539-540.)
A.M. has likewise been provided “a stable home and loving home” by her father,
Mauricio, since 2011. She has an established bond with him and he wishes to retain
custody of her. A.M. reports that Mauricio’s girlfriend, with whom they live, treats her
well. The CSW noted that she appears to be well adjusted in Mauricio’s home. A.M.
was not abused by David; therefore, she does not require therapy. There is nothing in the
record to indicate A.M. requires continued supervision.
Mother has not presented any evidence of a need for continued supervision,
arguing instead that it is in A.M.’s best interest to maintain a relationship with Mother
and her siblings. It is clear, however, that Mauricio has provided ample opportunity for
A.M. to continue a relationship with Mother and the siblings. He regularly brings A.M.
to maternal grandmother’s home for visits. The juvenile court properly exercised its
discretion when it terminated jurisdiction over A.M. after placing her with Mauricio.
12
DISPOSITION
The dispositional orders relating to A.M. and K.R. are affirmed.
BIGELOW, P.J.
We concur:
RUBIN, J.
FLIER, J.
13