In re M.D. CA2/2 ( 2020 )


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  • Filed 12/8/20 In re M.D. CA2/2
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been
    certified for publication or ordered published for purposes of rule 8.1115.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION TWO
    In re M.D. et al., Persons                        B302466
    Coming Under the Juvenile                         (Los Angeles County
    Court Law.                                        Super. Ct. No. 19CCJP06052)
    MODIFICATION ORDER
    LOS ANGELES COUNTY                                (No Change in Judgment)
    DEPARTMENT OF
    CHILDREN AND FAMILY
    SERVICES,
    Plaintiff and
    Respondent,
    v.
    M.G.,
    Defendant and
    Appellant.
    THE COURT:
    It is ordered that the opinion filed herein on December 4, 2020, be
    modified in the following particular:
    On the first page, at the line just before the caption In re M.D. et al.,
    the words “DIVISION ONE” are changed to “DIVISION TWO,” so the line
    reads:
    DIVISION TWO
    There is no change in the judgment.
    LUI, P.J.               CHAVEZ, J.                    HOFFSTADT, J.
    2
    Filed 12/4/20 In re M.D. CA2/1 (unmodified opinion)
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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    has not been certified for publication or ordered published for purposes of rule 8.1115.
    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.
    2
    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
    3
    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.
    4
    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
    5
    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
    6
    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
    7
    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
    8
    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,
    9
    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.
    10
    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.
    11
    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
    12
    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.
    13
    DISPOSITION
    The jurisdiction/disposition order is affirmed.
    NOT TO BE PUBLISHED.
    LUI, P.J.
    We concur:
    CHAVEZ, J.
    HOFFSTADT, J.
    14
    

Document Info

Docket Number: B302466M

Filed Date: 12/8/2020

Precedential Status: Non-Precedential

Modified Date: 12/8/2020