In re M.D. CA2/1 ( 2020 )

Filed 12/4/20 In re M.D. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re M.D. et al., Persons B302466
Coming Under the Juvenile (Los Angeles County
Court Law. Super. Ct. No. 19CCJP06052)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and
Respondent,
v.
M.G.,
Defendant and
Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Nichelle L. Blackwell, Judge Pro Tempore.
Cristina Gabrielidis, under appointment by the Court of
Appeal, for Defendant and Appellant.
Mary C. Wickham, County Council, Kim Nemoy, Assistant
County Counsel, and Brian Mahler, Deputy County Counsel, for
Plaintiff and Respondent.
_______________________________________
Appellant M.G. (Mother) concedes that the juvenile court
properly exercised dependency jurisdiction over Mother’s preteen
daughter, who was molested by Mother’s live-in boyfriend. (Welf.
& Inst. Code, § 300, subd. (d).)1 Substantial evidence supports
the court’s finding that Mother’s refusal to protect her daughter
placed the child’s siblings at substantial risk of serious physical
harm or sexual abuse. (Id., subds. (b), (j).) We affirm.
FACTS AND PROCEDURAL HISTORY
Juvenile Dependency Prior History
Mother’s children are M.D. (born in 2003); K.D. (2007); A.D.
(2008); and A.D., Jr. (2011). The family’s contacts with
respondent Department of Children and Family Services (DCFS)
began in 2010 when Mother was hospitalized with suicidal
thoughts; she said she was verbally abused in front of the
children by their father A.D., Sr. (Father).2 The report was
deemed unfounded. DCFS received multiple reports in 2015
1 Undesignated statutory references are to the Welfare and
Institutions Code.
2 Father is not a party to this appeal. We recognize that
M.D. has taken a new name while transitioning genders. For
consistency, we use the name designated in the record.
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relating to domestic violence (including Father’s attempt to
strangle Mother), Mother’s suicide attempts, and child neglect.
The court sustained a petition in October 2015, finding that
Father engaged in domestic violence against Mother by kicking,
punching, slapping, suffocating, dragging her by the hair, and
injuring her in the children’s presence; his drug abuse rendered
him incapable of regularly caring for his children. The case
ended in 2016, with an order granting Mother sole legal and
physical custody of the children.
A second petition was sustained in 2017. The court found
that the parents created a detrimental home environment by
engaging in mutual combat, placing the children at risk of harm.
Mother attacked Father with a wrench and brandished a knife;
Father strangled Mother and struck her head. Mother’s mental
and emotional problems resulted in involuntary hospitalizations,
and Father’s drug abuse prevents him from regularly caring for
the children. The second case was closed in March 2019 after
Mother completed services, slowly reunified with the children,
and took sole custody of them.
The Current Petition
In September 2019, DCFS received a report of sexual abuse
at the family home by Mother’s live-in boyfriend, Armando G.
When the social worker arrived, Armando was at Mother’s home
tending to the minors while Mother was away. The social worker
interviewed A.D., then 11 years old, who denied that anyone
touched her private parts.
M.D., age 16, denied being sexually abused. He was aware
of A.D.’s disclosure to a paternal aunt that Armando touched her
private parts. M.D. was unsure whether to believe his sister. He
did not speak to A.D. about the abuse “due to fear of DCFS
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involvement.” A.D., Jr., age eight, denied that anyone touched
his private parts. K.D., age 12, was present when A.D. disclosed
that Armando touched her private parts. K.D. said she does not
talk to Armando because “we’ve never had a good connection” but
denied that a drunken Armando grabbed her leg.
Mother knew of the accusations against Armando. She did
not believe A.D. was molested, opining that paternal relatives
“brainwashed” A.D. to falsely accuse Armando. The sexual abuse
was brought to Mother’s attention four months earlier.
While the social worker interviewed Mother’s family, law
enforcement arrived. A.D. told a deputy sheriff that Armando
“touched her breasts and vagina area over her clothes during the
last year. . . . [A.D.] said she told Mother about this incident [and]
Mother told her that she would talk to [Armando] about it. . . .
[A.D.] said Mother told her to lie to [law enforcement] when they
responded to a similar call two weeks ago, which is why [A.D.]
did not say anything.” Officers intended to arrest Armando for
sexual acts with a minor and take the children into protective
custody because Mother failed to protect them from Armando.
The social worker confronted Mother about A.D.’s
statement to the deputy sheriff. “Mother said the allegations
were false and denied [Armando] sexually abused [A.D.] in any
way.” Mother repeated her claim that A.D. was brainwashed by
paternal relatives.
Father arrived while DCFS was formulating a plan for the
children. Though A.D. did not tell him about the molestation, he
believes her because “she wouldn’t lie about something like this.”
He does not have custody of the children because he did not
comply with court orders in the second dependency case.
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The social worker assessed the safety of Mother’s home,
which was “very messy, cluttered and dirty.” A bedroom shared
by A.D. and A.D., Jr., had “dog feces on the beds, dog urine on the
floor, trash and piles of clothes on the floor.”
One day after meeting with the family, the social worker
went to A.D.’s school to re-interview A.D. A.D. first said she lied
to law enforcement about sexual abuse; however, when the social
worker emphasized the importance of telling the truth, A.D.
admitted that Armando touched her breasts and vagina one night
before Christmas 2018. A.D. told Mother, who “said she would
talk to Armando.”
The social worker met with Mother after Armando was
released from jail. Mother said that no criminal charges would
be pursued because there was not enough evidence against
Armando. Mother repeated that A.D. “is being brainwashed by
paternal family, which is why she is making up false allegations.”
Mother plans to allow Armando to remain in the home because
Mother does not believe anything happened and said A.D. was
“lying because [Armando] was never alone with her.” When the
social worker noted that A.D. “confirmed the allegations” and it
appeared Mother was failing to protect the children, Mother
accused the social worker of lying about A.D.’s statements.
A paternal aunt told the social worker that three weeks
earlier A.D. said “out of nowhere” that Armando touched her
vagina beneath her underwear and her breasts over her shirt.
A.D. feared Mother would be mad at her. K.D. volunteered that
she “feels uncomfortable around [Armando] because there was a
time he was drunk and grabbed her leg, so [K.D.] got up and
walked away.” Mother observed the incident; when K.D. said
Armando made her uncomfortable, Mother replied that the
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minors are “ungrateful.” Father did not want the paternal aunt
to call police, to avoid DCFS involvement. Nevertheless, the aunt
reported the abuse because A.D. “appeared scared” and the aunt
feels the children are not safe with Mother or Father.
DCFS filed a petition alleging that Mother knew Armando
sexually abused A.D. by fondling her breast and vagina; Mother
failed to protect A.D. by allowing Armando to reside with and
have unlimited access to the child, and told A.D to lie to law
enforcement and DCFS. Mother’s conduct endangers A.D.’s
physical health and safety and places the child’s siblings at risk
of serious physical harm and sexual abuse. The petition further
alleged that Father’s history of abusing marijuana and
methamphetamine renders him incapable of providing regular
care and supervision of the children, who were prior dependents
of the court due to Father’s drug abuse. The children were placed
with their maternal uncle.
The parents denied the allegations and asked that the
children be released to them at the detention hearing. The
children wanted to be with their parents; however, their attorney
advocated for detention because Mother is more concerned about
proving Armando’s innocence than protecting A.D. Counsel noted
that Mother instructed A.D. to lie about the molestation.
The court found a prima facie case for detaining the
children and removed them from parental custody. The court
found it “striking and stunning” that Mother “believes her own
child lied” and was “more interested in exonerating her boyfriend
than in really trying to find out what is going on with her child
[A.D.]” The parents were given monitored visitation. Mother
was ordered to enroll in a parenting class, individual counseling,
and a sexual abuse awareness class. The court ordered “no
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contact” between the children and Armando and for both parents
“to eliminate discussing this case with the children.”
DCFS submitted a jurisdiction report in October 2019. In
the report, M.D. described Armando as “a second dad” and
expressed disbelief that he molested A.D. M.D. would be “sad” if
Armando was not there. K.D. claimed she did not remember that
Armando grabbed her leg. A.D. said she told Mother that
Armando touched her but said “it was an accident.” A.D. wants
to live with Mother and would “feel okay” if Armando was there
because he helps with homework and makes food when Mother is
busy. A.D., Jr., knew he was removed from parental care
“because they think Armando is touching [A.D.’s] private parts,
but he is not. And he went to jail.”
Mother continued to deny that Armando molested A.D.
She blames “paternal relatives who do not want for her to be
happy. Further, she feels the timing of the allegations occurred
just as she was filing for a divorce from the father.” Mother
accused A.D. of switching stories because the child initially said
she was touched on the breast in the third grade, then said it
happened in fourth grade. Mother observed that A.D. “acted
normal as if nothing was wrong,” asking Armando to go to the
dog park, help with homework, and make food. When asked how
she reacted when A.D. disclosed abuse to her, Mother replied that
it “did not happen” so she never spoke to Armando about
touching A.D. Mother opined that A.D. was “manipulated” by
paternal relatives, who are vengeful because Father went to jail
for domestic violence against Mother. Mother claimed Armando
no longer lives with her and she has ended their relationship.
Father stated that he completed court-ordered programs
and drug testing in his prior dependency case but did not file the
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certificates of completion with the court or seek reunification. He
reported seeing Mother and Armando together a week earlier.
Father said A.D. “blurted out Armando had touched her” during a
visit with paternal relatives. Father’s sister confirmed that A.D.
said, “Armando touches me,” but M.D. “shut it down. He didn’t
want [A.D.] to say anything.” A.D. later told her aunt that
Armando touched her under her shirt and under her underwear.
The children’s maternal uncle stated that he asked the
children as a group what happened, but there was no response.
Later, he asked A.D. alone. He recounted, “While she was telling
the story, there was no emotions, she didn’t give eye contact; she
didn’t seem to be credible, but I do take all accusations seriously.”
The older children knew Father had a drug problem and
failed to reunify with them because of substance abuse. M.D.
knew Father used “weed”; Mother told M.D. that Father was
aggressive because he used methamphetamine. K.D. said that
Father got “easily mad” when he used drugs. Father stated that
he has been sober since 2017 and no longer uses marijuana or
methamphetamine. He offered to undergo drug testing.
DCFS categorized the children as being at “very high” risk
for future abuse and neglect. Mother does not believe her child
was sexually abused by her boyfriend. She is not able to protect
her children by placing their needs over her own and is more
interested in clearing her boyfriend’s name than determining
why A.D. spontaneously disclosed sexual abuse. Father is
currently unable to safely care for the children.
The jurisdiction hearing was held on November 7, 2019.
M.D. testified that he was present with his siblings, paternal
aunts, and grandmother when A.D. disclosed sexual abuse by
Armando. M.D. did not want to listen to the conversation
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because he knew they were going to say Mother is “a bad mom.”
After A.D. made the disclosure, paternal relatives spoke to her
privately; M.D. believes they convinced A.D. to accuse Armando.
M.D. initially believed A.D. but then was unsure because A.D.
told police it happened in the third grade, when Armando was not
in their home, then said it happened in the fourth grade. M.D.
stated that A.D. seemed happy to be with Armando.
Father testified that he completed all court-ordered
programs in his prior dependency case, including a nine-month
drug treatment program. He recently tested negative for drugs.
A.D. did not testify. Her attorney represented to the court
that A.D. believes this case is “a mistake.” Armando pulled a
blanket onto her and “there was nothing more.” A.D. feels safe
with Mother and wants to live with her. Her siblings also asked
to live with Mother. Mother asserted that A.D. was inconsistent
in her sexual abuse allegations and was unduly influenced by
paternal relatives. She urged the court to heed A.D.’s siblings,
who were unsure if they believed A.D.
The court reviewed A.D.’s forensic examination, in which
A.D. stated that Armando touched her “breasts and private” one
night on the couch in the living room. She was “scared.” Since
that day, whenever Armando comes near her at night she moves
so that he knows she is awake, to encourage him to “walk away.”
A.D. told Mother that Armando touched her and Mother said “she
was going to take care of it.”
A.D. feared Mother will go to jail because she knew about
Armando’s abuse but did not do anything about it. A.D. was
scared “because we’re going to go to court on Wednesday and then
my mom might go to jail.” During a visit one day earlier,
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Armando told A.D. that he would leave Mother’s home for “a
while” if A.D. wanted.
The Court’s Findings
The court believed A.D. was touched on her breast and
lower private parts by Armando. If A.D. was hesitant, it was
because she worried Mother might go to jail. Though A.D.
recanted, the court said, “I don’t believe [the abuse] was an
accident.” It cited the forensic video in which A.D. described
exactly what happened and how she implemented protective
measures to ensure it did not happen again, including making
sure she is not asleep when Armando is around. The court
discounted claims that A.D. was coached by paternal relatives.
The court sustained all counts against Mother, who
“adamantly did not believe her child’s statements. And she
appeared to be more protective of Armando than of her children.”
It found DCFS did not meet its burden as to Father and
dismissed the allegations against him. It declared the children
dependents of the court. The court found by clear and convincing
evidence that the children would be at risk of detriment if they
remain in Mother’s care or were released to Father. Mother was
ordered to complete a sexual abuse awareness program, a
parenting class, and individual counseling to address child safety
and protection.
DISCUSSION
Mother contests the court’s exercise of jurisdiction.3 On
appeal, we uphold jurisdictional findings if they are supported by
3 On August 31, 2020, we dismissed Mother’s challenge to
the disposition order after the juvenile court returned the
children to her care.
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substantial evidence. We review the entire record, resolving all
conflicts in favor of the respondent and drawing all reasonable
inferences in support of the judgment. (In re R.T. (2017) 3
Cal.5th 622, 633; In re Israel T. (2018) 30 Cal.App.5th 47, 51.)
Mother’s opening brief states, “the juvenile court rightly
sustained jurisdiction over [A.D.] pursuant to a theory of sexual
abuse.” (§ 300, subd. (d).) “ ‘[A] reviewing court can affirm the
juvenile court’s finding of jurisdiction over the minor if any one of
the statutory bases for jurisdiction that are enumerated in the
petition is supported by substantial evidence.’ ” (In re I.J. (2013)
56 Cal.4th 766, 773.) Because Mother concedes that substantial
evidence supports the sexual abuse count, we “ ‘need not consider
whether any or all of the other alleged statutory grounds for
jurisdiction are supported by the evidence.’ ” (Ibid.)
Sustained findings require “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.” (§ 300, subd. (b)(1).) Jurisdiction
exists if there is a substantial risk that an abused child’s siblings
will be abused. (Id., subd. (j).) This provision “ ‘accords the trial
court greater latitude to exercise jurisdiction as to a child whose
sibling has been found to have been abused than the court would
have in the absence of that circumstance.’ ” (In re I.J., supra, 56
Cal.4th at p. 774.)
“[A]berrant sexual behavior directed at one child in the
household places other children in the household at risk.” (Los
Angeles County Dept. of Children & Family Services v. Superior
Court (2013) 215 Cal.App.4th 962, 970.) Armando sexually
abused A.D. and Mother did nothing when she learned of it. He
also pawed at K.D., though the child denied it once DCFS became
involved. When K.D. complained about Armando’s behavior,
Mother called her “ungrateful” and did nothing to protect K.D.
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Regardless of gender, siblings can be harmed by knowing a
parent has abused the trust of their sister, by the denials of a
perpetrator living in the household, by parental acquiescence in
the perpetrator’s conduct, or by parental “ ‘efforts to embrace
them in a web of denial.’ ” (In re I.J., supra, 56 Cal.4th at p. 776.)
Mother showed no interest in protecting her children.
When A.D. disclosed Armando’s sexual abuse, Mother falsely
promised to do something about it, then urged A.D. to lie about
the abuse—to law enforcement, to DCFS, and to the court. To
frighten A.D. into recanting, the child was falsely told that
Mother would be sent to jail at the dependency hearing.
Despite knowing that A.D. was abused, Mother told a
deputy sheriff that “the allegations were false and denied
[Armando] sexually abused [A.D.] in any way.” However, A.D.
confirmed to the social worker that Armando touched her breasts
and vagina, and she disclosed this to Mother. When confronted
with A.D.’s statements, Mother told the social worker that A.D.
was “brainwashed” and “making up false allegations.” She
denied that A.D. ever disclosed the abuse to her. Mother’s
persistent denials justify court supervision. (In re A.F. (2016) 3
Cal.App.5th 283, 293.)
Mother intended to keep Armando at her home, saying A.D.
was “lying because [Armando] was never alone with her.”
Mother’s claim is demonstrably untrue: When DCFS first arrived
to investigate sexual abuse, Armando was home alone with A.D.
and A.D., Jr. Mother returned to the home while the social
worker was interviewing the children.
The court could reasonably infer that Mother pressured her
children to lie, to protect Armando. K.D. initially disclosed that
Armando grabbed her leg while drunk; later, she pretended to not
remember the event. When A.D. disclosed that “Armando
touches me” to paternal relatives, M.D. “shut it down” to prevent
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A.D. from saying anything. Away from her siblings, A.D. said
Armando touched her under her shirt and underwear.
Although Mother claimed to have ended her relationship
with Armando, the court did not have to credit her claim. Father
saw her with Armando. More tellingly, A.D. revealed that the
day before her forensic examination, Mother and Armando
visited her; Armando told A.D. he would be willing to leave the
family home temporarily if A.D. was uncomfortable.
Mother’s decision to go behind the back of DCFS and the
court to ask A.D. during a visit if Armando could remain in the
family home—with unfettered access to the children—exemplifies
Mother’s refusal to protect her children. She ignored her child’s
request for protection and help. Instead, she kept a sexual
predator in her home who threatens the safety of her children.
Substantial evidence supports a finding that A.D.’s siblings were
at risk of serious harm or abuse at the time of the jurisdiction
hearing. Dependency jurisdiction over all four children is
warranted to protect them from Mother and Armando.
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DISPOSITION
The jurisdiction/disposition order is affirmed.
NOT TO BE PUBLISHED.
LUI, P.J.
We concur:
CHAVEZ, J.
HOFFSTADT, J.
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