In re Ashley B. CA2/7 ( 2014 )

Filed 5/12/14 In re Ashley B. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 SEVEN
In re ASHLEY B., a Person Coming Under B251692
the Juvenile Court Law.
(Los Angeles County
Super. Ct. No. CK98976)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
J.L. et al,
Defendants and Appellants.
APPEALS from an order of the Superior Court of Los Angeles County, Stephen
Marpet, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) As to J.L. the appeal
is dismissed as moot. As to William B., the appeal is dismissed.
Nicole Williams, under appointment by the Court of Appeal, for Defendant and
Appellant J.L.
Amy Z. Tobin, under appointment by the Court of Appeal, for Defendant and
Appellant William B.
John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel,
Peter Ferrera, Principal Deputy County Counsel, for Plaintiff and Respondent.
J.L. is the mother of Michel C. and Ashley B. Her husband, William B., is
Ashley’s presumed father. The juvenile court declared both children dependents of the
court, removed Michel from J.L.’s care and custody and placed her under the supervision
of the Los Angeles County Department of Children and Family Services (Department)
for suitable placement, and removed Ashley from William’s care and custody and placed
her with J.L. under the supervision of the Department on condition William no longer
reside in the family home. J.L. does not contest the findings and order as to Michel, who
is now 18 years old. However, both J.L. and William appeal from the findings and order
declaring Ashley a dependent child of the court. We dismiss William’s appeal pursuant
to In re Phoenix H. (2009) 47 Cal.4th 835 (Phoenix H.) and dismiss J.L.’s appeal as
moot.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Initial Petition
On April 12, 2013 the Department filed a section 3001 petition as to Michel, then
17 years old, and Ashley, then 11 years old, alleging J.L. had physically and emotionally
abused Michel and, since December 2012, had excluded Michel from the family home
without making a plan for her care and supervision. The petition alleged J.L.’s conduct
also placed Ashley at substantial risk of physical harm. Following a detention hearing,
Michel was detained; Ashley was released to J.L. and William.
2. The Amended Petition Adding Allegations Relating to William’s Sexual Abuse
On July 2, 2013 the Department filed an ex parte application pursuant to section
385 seeking to detain Ashley from William after social workers learned of allegations
William had sexually abused Ashley’s adult sister, Nelly M., when Nelly was a minor,
and had behaved inappropriately and in a sexual manner toward his step daughter Michel.
Pursuant to the Department’s recommendation, the court ordered Ashley detained from
William and released to J.L. provided William not reside in the family home.
1
Statutory references are to the Welfare and Institutions Code unless otherwise
indicated.
2
On July 9, 2013 the Department filed an amended section 300 petition adding the
sexual abuse allegations and asserting William’s behavior placed both Michel and Ashley
at substantial risk of sexual abuse. As to J.L., the amended petition alleged J.L. had been
informed of William’s conduct and had not adequately protected Michel or Ashley from
the risk of sexual abuse.
3. The Jurisdiction and Disposition Hearing
At the contested jurisdiction hearing the Department presented evidence of J.L.’s
physical and emotional abuse of Michel and failure to supervise her: J.L. had frequently
slapped Michel, threw her to the ground by yanking her hair and, on at least one
occasion, beat her with a broomstick. J.L. also repeatedly belittled Michel and called her
names to such an extent that it caused Michel to have thoughts of harming herself. In
addition, J.L. ordered Michel out of the home in December 2012 and refused to permit
her to return without making any plan for her care and wellbeing. J.L. acknowledged
most of the misconduct had occurred, but insisted Michel was a rebellious teenager who
disrespected her and her rules.
As to allegations of William’s sexual abuse and J.L.’s failure to protect Michel
and Ashley from the risk of sexual abuse, Michel testified, consistently with her reports
to social workers, that she had observed William sexually abuse her older sister Nelly
when Nelly was a minor and still lived with the family. In particular, while returning
home unexpectedly from elementary school, Michel had observed William rubbing his
genitals against Nelly’s bottom while Nelly was bent over in front of him. She believed
Nelly and William were both fully clothed. Michel immediately reported the incident to
her mother. J.L. confronted William; but when he denied any misconduct, J.L. believed
him. When interviewed by social workers, Nelly confirmed the incident had happened as
Michel described. Nelly also told social workers William had sexually abused her from
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the time she was eight years old until she moved out of the home when she was 16 years
old.2
Michel reported that, more recently, William had walked in on her several times
while she was in the bathroom showering and her mother was at work. During one of
these occasions, William saw Michel naked and “stared her down,” refusing to leave the
room until Michel screamed at him to get out. Michel told her mother about each of
these incidents, but her mother did not do anything about them. In addition, Michel
reported that William had started spanking her on the bottom in what felt like a sexual
touch, similar to how he had touched Nelly when Nelly lived in the home. Michel
repeatedly told her mother about William’s behavior, but her mother either ignored her
complaints or disbelieved her.
Ashley reported to social workers she felt safe with her mother, who had never
been violent toward her. She did not, however, feel safe with William. As had Michel,
Ashley stated William had come into the bathroom while she was showering and J.L. was
not at home. Ashley acknowledged William had not behaved inappropriately toward her
although there was something about his behavior in the bathroom she “did not like.”
J.L. tearfully told social workers she recalled Michel complaining about William
walking in on her in the bathroom, but thought she had resolved any problems by telling
William he had “no business going in there” when Michel was in the bathroom. J.L.
stated, “‘I never knew that he walked in on her naked and saw her. I just don’t remember
2
Nelly, who lived in another state, did not appear at the jurisdiction hearing.
William filed written objections to Nelly’s hearsay statements to social workers pursuant
to section 355 and argued at the jurisdiction hearing that, without those statements, the
allegations against William should be dismissed for insufficient proof. Michel and
Ashley’s counsel, as well as the Department, urged the court to deny the motion to
dismiss, arguing Nelly’s allegations of sexual abuse were supported by Michel’s
testimony and, to the extent Nelly’s statements described more egregious instances of
William’s sexual abuse than reported by Michel, the petition could be amended according
to proof. The court denied the motion. At the close of evidence the court ordered the
petition amended according to proof to read: William “sexually abused [Nelly] from the
age of eight/nine years old to the age of sixteen years old. On numerous prior occasions,
[William] fondled [Nelly].”
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. . . either one of them [(Michel or Nelly)] ever telling me anything. I don’t remember
them saying he did anything to them.’” J.L. also told social workers she believed Nelly
and Michel’s version of events and intended to initiate divorce proceedings against
William.
William denied the incidents reported by Michel and Nelly. He stated he
sometimes walked into the bathroom while others were showering, but that was
understandable since the family lived in a one-bedroom, one-bathroom residence. He
never saw Michel naked. He denied staring at her and refusing to leave until she
screamed at him. He also denied sexually abusing Nelly in any way and stated Michel
and Nelly had fabricated the alleged misconduct.
On August 23, 2013 the court found Michel and Ashley were persons described by
section 300, subdivisions (a) (serious physical harm), (b) (failure to protect), (d) (sexual
abuse) and (j) (abuse of sibling); and Michel was also a person described under section
300, subdivision (c) (serious emotional damage). The court declared Michel and Ashley
dependent children of the court. Michel was removed from J.L. and placed under the
care and supervision of the Department for suitable placement. Ashley was removed
from William and placed with J.L. in J.L.’s home under the supervision of the
Department. The court ordered William’s visitation with Ashley and J.L.’s visitation
with Michel be monitored. William was not permitted any visitation with Michel. The
court ordered family reunification services for J.L. and William, including counseling,
sexual abuse and sexual abuse awareness classes and parenting classes, and set a review
hearing for February 21, 2014.
On February 21, 2014, after J.L. and William had appealed from the juvenile
court’s jurisdiction findings and order concerning Ashley, the court ordered family
reunification services with respect to Michel terminated with all parties agreeing to place
her into a permanent plan living arrangement. The judicial review hearing as to Ashley
was continued for a contested hearing on the issue of termination of jurisdiction and entry
of an appropriate custody and visitation order under section 362.4 to become part of the
relevant family law file. On April 18, 2014 the court terminated its jurisdiction over
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Ashley (to be effective April 24, 2014) and entered an order giving J.L. and William joint
legal custody and J.L. sole physical custody of Ashley.3
DISCUSSION
William’s Appeal
After William filed his notice of appeal, this court appointed counsel to represent
him. Appellate counsel examined the entire record on appeal and then advised this court
in writing that there are no arguable issues. (See Phoenix H., supra, 47 Cal.4th at p. 845
[“[c]ounsel appointed to represent an indigent parent on appeal from a ruling affecting
parental rights does not have an obligation to challenge the judgment if there is no
colorable basis for such a challenge”].) Appellate counsel advised William of her
evaluation of the record, provided him with a copy of the appellate record and advised
him this court may grant him permission to personally file a brief on his own behalf. On
December 5, 2013 we notified William he had 30 days to submit any grounds for appeal,
contentions or issues he wished this court to consider. (Id. at pp. 844-845 [if appointed
counsel files a brief raising no issues on behalf of an indigent parent in a dependency
action, the appellate court has discretion to permit the parent to personally file a brief].)
On January 2, 2014 William filed a two-page typed letter effectively arguing
Michel was not credible and her testimony was rife with “contradictions, misinformation,
lies and improbabilities.” For example, Michel claims to have walked in on an act of
abuse but “admits Nell[y]’s clothes were on and [she] did not see my penis at all.” He
also emphasizes the “shower incidents” Michel described are not credible because at first
Michel told social workers he had walked in on her “while she was taking a shower, but
later changed it to after she was stepping out of the shower.” Finally, he points out that
Nelly did not testify at the hearing.
William’s letter brief does not identify any legally cognizable error in the juvenile
court’s order. William has not identified any material conflicts in Michel’s testimony;
3
We take judicial notice of the juvenile court’s February 21, 2014 and April 18,
2014 minutes orders pursuant to Evidence Code sections 452, subdivision (d), and 459.
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and, even if he did, the trial court resolved them in favor of finding Michel credible. (See
In re Jordan R. (2012) 205 Cal.App.4th 111, 135 [in determining whether jurisdiction
finding is supported by substantial evidence, appellate court “do[es] not reweigh
evidence, evaluate the credibility of witnesses or resolve evidentiary conflicts”]; accord,
T.W. v. Superior Court (2012) 203 Cal.App.4th 30, 47 [“[w]e defer to the juvenile court’s
findings of fact and assessment of the credibility of witnesses”].) Because William has
not asserted, much less made a prima facie showing, Michel’s version of events was
“physically impossible or inherently improbable” (cf. People v. Elliott (2012) 53 Cal.4th
535, 585 [“[u]nless it describes facts or events that are physically impossible or
inherently improbable, the testimony of a single witness is sufficient to support a
conviction”]; In re Ana C. (2012) 204 Cal.App.4th 1317, 1329 [“impeachment is not
impossibility”]), his letter brief fails to show good cause that an arguable issue exists.
(Phoenix H., supra, 47 Cal.4th at p. 843.) Accordingly, his appeal is dismissed.
J.L.’s Appeal
J.L. does not challenge the juvenile court’s jurisdiction findings that she had
physically and emotionally abused Michel, failed to supervise her and failed to protect
her from the risk of sexual abuse (§ 300, subds. (a), (b), (c), (d) & (j).) She also
acknowledges that dependency jurisdiction over Ashley was proper by virtue of the
court’s findings of William’s sexual misconduct. (See In re Alysha S. (1996)
51 Cal.App.4th 393, 397 [“the minor is a dependent if the actions of either parent bring
her within one of the statutory definitions of a dependent”]; In re Jeffrey P. (1990)
218 Cal.App.3d 1548, 1553-1554.) However, she contends there was insufficient
evidence to support the court’s findings her actions or omissions also placed Ashley at
risk of harm.
Although a finding as to one parent is sufficient to support jurisdiction, a
reviewing court may exercise its discretion to reach the merits of a parent’s challenge to
the dependency court’s jurisdictional finding when that finding could be prejudicial to the
appellant because of its potential to affect current or future dependency proceedings or to
have adverse consequences in another jurisdiction. (See In re Drake M. (2012)
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211 Cal.App.4th 754, 762-763 [when the outcome of appeal is “the difference between
father’s being an ‘offending’ parent versus a ‘non-offending’ parent,” reviewing court
should exercise its discretion to review jurisdictional challenge].) Here, however, as J.L.
acknowledges, her arguments on appeal, even if meritorious, would neither alter the
juvenile court’s proper assertion of jurisdiction over Ashley nor, because of the
unchallenged findings as to Michel, transform J.L. from an offending parent to a non-
offending parent. Any stigma associated with the juvenile court’s findings relating to
J.L.’s physical abuse of Michel and failure to protect her from the risk of sexual abuse
will not be reduced or eliminated even if J.L. were to prevail on this appeal.
Accordingly, it is difficult to conceive of any adequate reason to exercise our discretion
to consider J.L.’s arguments.4
DISPOSITION
The appeals of William B. and J.L. are dismissed.
PERLUSS, P. J.
We concur:
WOODS, J.
ZELON, J.
4
Our conclusion J.L.’s appeal is moot is reinforced by the juvenile court’s April 21,
2014 order terminating jurisdiction over Ashley and awarding J.L. sole physical custody
and joint legal custody of the child. As a general rule, an order terminating juvenile court
jurisdiction renders an appeal from a previous order in the dependency proceedings moot.
(In re C.C. (2009) 172 Cal.App.4th 1481, 1488.)
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