In re J.J. CA1/1 ( 2014 )

Filed 11/5/14 In re J.J. CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
In re J.J., a Person Coming Under the
Juvenile Court Law.
SAN FRANCISCO HUMAN SERVICES
AGENCY,
Plaintiff and Respondent, A139897
v.
(San Francisco City & County
S.M., Super. Ct. No. JD133164)
Defendant and Appellant.
S.M. (mother) appeals from jurisdiction and disposition orders pursuant to which
the juvenile court sustained dependency jurisdiction, adjudicated the minor, J.J., a
dependent of the court, removed the minor from mother’s custody, and ordered
reunification services and monitored visitation. Counsel filed a “no issues statement” in
accordance with In re Sade C. (1996) 13 Cal.4th 952 (Sadie C.) and In re Phoenix H.
(2009) 47 Cal.4th 835 (Phoenix H.).1 Counsel served mother with a copy and advised her
1
In Phoenix H., the Supreme Court reiterated that counsel’s filing of a “no issues
statement” in an appeal in a juvenile dependency proceeding does not trigger independent
review by the appellate court. (Phoenix H., supra, 47 Cal.4th at pp. 841–842.) Rather,
once counsel reviews the record on appeal and files such a statement, the appellate court
may rely on it, and may properly dismiss the appeal. (Id. at p. 842 [“we held [in Sade C.,
supra, 13 Cal.4th at page 994] that the Court of Appeal could dismiss an indigent
parent’s appeal if appointed counsel filed a brief raising no arguable issues”].)
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she could file a letter with this court suggesting errors for review. Mother has filed a
“Statement” which we have reviewed. (Phoenix H., supra, 47 Cal.4th at p. 844 [appellate
court “has discretion to permit the parent to personally file a brief” and is required to do
so “only upon a showing of good cause that an arguable issue does, in fact, exist”].)
Mother contends the dependency proceeding is the result of false accusations and
statements by a woman who was a competing vendor selling hotdogs, and by her sister-
in-law who allegedly can no longer bear children and wanted to take away her daughter.
Mother claims she did not know until the contested jurisdictional and dispositional
hearing about the “past” of the man accused of molesting her daughter, Henry Trejos,
who she states was her employer and who has had a sustained finding of sexual abuse in
another matter. Mother maintains she is devoted to and can protect her daughter, who is
nine years old.
“On appeal, the ‘substantial evidence’ test is the appropriate standard of review for
both the jurisdictional and dispositional findings.” (In re J.K. (2009) 174 Cal.App.4th
1426, 1433.) We must uphold the jurisdictional findings if, “after reviewing the entire
record and resolving all conflicts in favor of the respondent and drawing all reasonable
inferences in support of the judgment, we determine there is substantial evidence to
support the findings.” (In re Monique T. (1992) 2 Cal.App.4th 1372, 1378.) We resolve
all conflicts in support of the determination, examine the record in a light most favorable
to the dependency court’s findings and conclusions, and indulge all legitimate inferences
to uphold the court’s order. (In re Brison C. (2000) 81 Cal.App.4th 1373, 1379; In re
Tania S. (1992) 5 Cal.App.4th 728, 733–734.)
We have reviewed the record, paying particular attention to the reports prepared
for and the reporter’s transcript of the contested hearing. The child protective worker
(CPW) testified the department received a report of suspected sexual abuse, and she
found J.J. in a van with the windows covered. J.J. did not tell the CPW she had been
sexually abused, but avoided contact whenever the CPW raised the issue. The CPW did
learn J.J. had been told she had to urinate into a bucket in the van because mother and
Trejos were busy selling hotdogs at the location.
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The court dependency worker (CDW) also testified. She was familiar with Trejos
from a prior case involving sexual abuse. J.J. was timid in speaking with the CDW and
nervous when Trejos’ named was mentioned. J.J. told the CDW she did not feel safe at
her mother’s house, and the CDW did not recommend return of J.J. to mother because
mother denied Trejos presented any risk to her daughter.
Maria A., J.J.’s aunt, testified she was concerned about J.J.’s well being because
she had heard (although not actually seen) that J.J., mother and Trejos slept in the same
bed, with J.J. in the middle. Cecilia A., J.J.’s godmother, was concerned because she saw
J.J. in the van with Trejos, while mother was outside selling hotdogs. She had once
observed Trejos touch J.J.’s breast area. She was also concerned because Trejos talked
about mother not having sex with him, despite children being nearby at the time of this
conversation. She told mother of her concerns, but mother said J.J. had grown close to
Trejos because he bought her things.
Gloria Samayoa, the multidisciplinary interview coordinator, testified about her
interview with J.J. Mother was extremely reluctant to allow J.J. to be interviewed. Once
the interview began, J.J. seemed to relax somewhat and talked about her school and
background information. But when Samayoa asked about Trejos, J.J. became much less
communicative. Although J.J. did not acknowledge any sexual abuse, Samayoa felt she
should be interviewed again. Samayoa was also involved in the prior case involving
Trejos.
Although mother was present at the hearing , she did not testify. Nor did she call
any witnesses.
The reports prepared for the hearing stated mother did not believe J.J. had been
molested or there was any risk she would be, because mother was “always” with the
child. She did not believe anything could be going on inside the van because she would
have “heard” something. She admittedly allowed J.J. to be with Trejos after being
warned about his history and promising she would keep J.J. away from him. Her
explanation was she happened to meet Trejos while taking J.J. to school and they
accepted a ride. The reports also noted mother’s contention the dependency proceeding
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was the result of a false report by a fellow hot dog vendor who wanted to take over
mother’s street corner. The reports additionally provided information about an interview
with J.J., where she stated she did not feel safe at mother’s house, but did feel safe in her
placement. When asked whether in a “house of dreams” Trejos would be present, J.J.
said “no,” “shut down,” and became “visibly uncomfortable.” The reports also discussed
an incident when J.J.’s maternal aunt watched J.J. over a weekend, and Trejos called,
sounding “angry” and “frantic” that J.J. had been left in her care. The CPW was
“extremely concerned” about mother’s ability to protect J.J. Mother “clearly did not
understand” the danger posed by Trejos and admitted she had lied to another protective
services worker about keeping J.J. away from Trejos and she had contacted Trejos so she
could keep her job. Mother also admitted she lied about her address.
The juvenile court based jurisdiction on: (a) failure to protect J.J. (§ 300, subd.
(b)), finding among other things mother provided a false address and coached J.J. in an
attempt to cover up the actual situation; (b) failure to prevent sexual abuse (§ 300, subd.
(d)), finding among other things mother failed to protect against the probability of sexual
abuse by her boyfriend, and allowed the boyfriend access to J.J. after being informed of
the boyfriend’s prior sexual abuse of other children and after promising to keep J.J. away
from him; and (c) no provision for support (§ 300, subd. (g)). The court also found
removal from mother was appropriate because there was a substantial danger to J.J.’s
physical well-being and there was no reasonable means to protect her without removing
her from her parent’s custody.
As we have recited above, there is evidence in the record supporting the
dependency court’s jurisdictional and dispositional findings. While mother’s view of the
situation is different, we cannot reweigh the evidence on appeal. It is the province of the
dependency court to determine which witnesses are most credible and to decide what
evidence is most persuasive.
DISPOSITION
The jurisdiction and disposition orders are affirmed.
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_________________________
Banke, J.
We concur:
_________________________
Humes, P. J.
_________________________
Margulies, J.
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