Opinion
A156307
12-18-2019
In re S.R., a Person Coming Under the Juvenile Court Law. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. G.R., et al., Defendants and Appellants.
(Alameda County Super. Ct. No. JD-029908-01)
ORDER MODIFYING OPINION AND DENYING REHEARING
BY THE COURT:
It is ordered that the opinion filed herein on December 18, 2019, be modified as follows:
1. On page 8, the second sentence of the third paragraph, which begins "Father's attorney specifically argued . . ." is deleted and replaced with the sentence "Father's attorney argued minor 'had a dream that was so real, she believed it to be real.' "
2. On page 11, the first two sentences of the second full paragraph, beginning with "Mother at one point concedes . . ." are deleted and replaced with the following text. "Further, there was substantial evidence to support the juvenile court's findings that neither mother nor father believed minor suffered any sexual abuse in the home. Mother told a social worker that minor's allegations were 'totally in her head,' and father believed the accusations were the result of a nightmare. Immediately after mother testified that she did not believe father or the older brother sexually assaulted minor, Agency counsel asked, 'Do you believe anybody sexually assaulted your daughter in June of 2018?' and mother responded, 'No.' "
The petitions for rehearing are denied. This modification does not change the judgment. Dated: __________
/s/_________
Kline, P.J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. JD-029908-01)
G.R. (mother) and M.R. (father) appeal from the juvenile court's jurisdictional order finding their daughter was a dependent child under Welfare and Institutions Code section 300 and the court's dispositional order removing the minor from the home. They argue no substantial evidence supports these orders. We affirm.
Further undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In June 2018, 17-year-old S.R. (minor) lived at home with mother, father, and minor's three brothers.
On the morning of June 14, 2018, mother approached minor after she noticed minor was emotional and crying. Minor told her that father assaulted her in the early morning hours when everyone was asleep. Minor said her oldest brother also sexually assaulted her in the early morning on different occasions. Mother reported minor's allegations to the police.
A Union City police officer took minor's statement, which minor gave while being comforted by mother. Minor said that on June 14, around 3:00 a.m., she believed she was carried out of bed by either father or her oldest brother and sexually assaulted. She reported the incident occurred in her bedroom, and she may have been drugged. Minor stated she had an altered state of mind during the incident, and it felt like a dream. When she woke up in bed, she felt something sticky on her vagina that she believed was semen. She said she wiped it off with a tissue and placed the tissue in a drawer.
Minor said the incidents were a blur, and she suspected father because she recalled father sodomizing her when she was five or six years old. Minor stated that she had soreness in her knees, jaw, and vaginal area over the last month, and she believed she was being drugged and sexually assaulted on numerous occasions.
Minor was given a SART (sexual assault response team) examination. The exam recorded that minor had purple/red bruises and abrasions on her legs and inner thighs, some of which appeared as a "finger pattern" and "fist pattern." Minor reported jaw pain, and vaginal and anal tenderness, but no visible genital injuries were noted.
Petition and Detention
On June 18, 2018, the Alameda County Social Services Agency (Agency) filed a dependency petition for minor. It was alleged mother failed or was unable to protect the minor (§ 300, subd. (b)) based on factual allegations that mother "state[d] that she does not believe the allegations made by the minor," and that she "believes [minor] needs psychological treatment." As to father, it was alleged the minor had been sexually abused or there was substantial risk that she would be sexually abused (§ 300, subd. (d)), based on factual allegations that minor reported that she believed father and her oldest brother sexually assaulted her while she was unconscious or drugged.
The juvenile court found a prima facie case was made that minor was described in section 300 and ordered minor detained. Minor was placed with a paternal aunt.
CALICO Interview
On June 22, 2018, minor gave a CALICO forensic interview. In the videotaped interview, minor described a few different incidents of sexual abuse by father and her oldest brother. Minor reported that around Wednesday, June 13, she began having "flashbacks" from when she was little. In one flashback, she recalled feeling scared of a man behind her in a white shirt in a bathroom.
CALICO stands for Child Abuse, Listening, Interviewing, and Coordination Center. (In re I.C. (2018) 4 Cal.5th 869, 879.)
Minor described an incident during which her eyes were closed but she was not fully asleep in bed and she felt someone touch her face and mouth. She reported being carried and it felt like sleepwalking. She felt like someone was putting their elbow in her mouth and forcing it open. She couldn't tell who it was, but it sounded like her "dad's feet."
In another incident, minor remembered standing near her closet and being grabbed from the neck and forced to move her head back and forth. The person was standing in front of her, but she could not identify the person because her eyes were closed. She was unable to control her body, and she felt like she was sleepwalking. She thought the person was her oldest brother because "it looked like his body."
Minor did not remember how she got the finger-shaped bruises on her thighs. She thought father and her brother may have punched her, but she did not remember being punched.
Agency Reports and Recommendation
In July 2018, the Agency filed a jurisdiction/disposition report recommending that minor be declared a dependent of the court and that mother and father receive family reunification services. It was reported that a criminal investigation regarding the case was ongoing, but no charges had been filed against any accused person.
In June 2018, minor told a social worker that she did not want to return home although she did want to see mother. Minor said she used marijuana approximately once per week and drank alcohol about once every two weeks. She reported that she had been feeling down for the past six months or so. She stated that father and her oldest brother were not safe people, but she did not have concerns for her younger brother and mother in the home with father and her oldest brother. In July, minor told the social worker she did not want to return home if father and her oldest brother remained in the home, but if they left the home, she would like to return to live with mother and her other brothers.
In July 2018, mother told the social worker that she believed minor's allegations were "totally in her head." Mother was aware of the bruises on minor's thighs and thought they could be the result of anemia. Minor had been diagnosed with anemia about three months earlier, and mother said it caused her to sleep heavily and not react to anything. Mother reported that minor and her oldest brother always had "friction," and that he would scold her about her marijuana use. She said father and minor had a positive relationship.
Father believed minor's accusations were the result of a nightmare. He thought minor had friends who were abused by their parents, and minor may have heard a story from one of these friends and started to believe it also happened to her. Father said he "would never be able to do something like that," and reported that neither he nor his oldest son uses drugs or alcohol. He said he had good communication with minor before she began using marijuana about two years ago. He said he and mother offered to get her help for her substance abuse, but minor did not want to see a therapist, and she threatened to leave the family home if she was forced to attend a treatment program. Father asked about tests being done by law enforcement and asked if minor could return home once the tests exonerated him. He said he was willing to leave the home for minor to return and live with mother, and he would definitely be willing to participate in family therapy.
The Agency recognized as "complicating factors," that minor did not remember many details of the alleged assaults, that minor "report[ed] having dreams that feel real, where she is not always able to distinguish reality from fantasy," that the Agency was awaiting DNA test results and toxicology results from the police, and that mother and father reported minor abused marijuana. Nonetheless, the Agency determined minor's allegations of sexual assault were based in reality, concluding minor was at risk of continued sexual abuse by father and her oldest brother if she were to be returned home and, further, minor "may experience emotional harm if the mother and father continue to disregard her disclosures of abuse."
The Agency filed addendum reports in September and December 2018, in which the Agency continued to recommend minor be declared a dependent of the court.
By September 20, 2018, it was reported that minor had recanted her allegations of sexual assault. The Agency had been waiting for DNA evidence from the police, but the police now reported they had no DNA evidence. In addition, the criminal investigation had been placed on inactive status due to minor's recantation, ambiguity regarding her allegations, and the lack of DNA evidence. A toxicology report for minor indicated she tested positive for marijuana metabolite and acetone.
The Agency did not accept minor's recent recantation. It was concerned that minor may have recanted due to emotional stress and was concerned that minor presented with bruises on her legs and thighs that were described as finger and fist marks but minor and her parents were unable to explain how she got the bruises.
Contested Hearing
A contested hearing on jurisdiction and disposition was held over a few days in December 2018. A social worker, mother, and another family member testified.
Social worker Sylvina Cooper was assigned the case in September 2018. She reviewed the CALICO interview and found minor's accusations of sexual assault were credible. Cooper based her conclusion on minor's demeanor and her consistency in describing the incidents to the police, prior social workers, and the CALICO interviewer. Cooper noted that in the CALICO interview, minor had difficulty talking, she took long pauses, "she seemed to be in distress," and "[s]he didn't seem to embellish anything that she was saying." Cooper also found that minor was consistent in the things she could not remember.
Cooper met with minor four times. Minor did not tell Cooper that her initial accusations were "false," but she "said that perhaps it was a dream. She's not sure." Minor's current expressions of uncertainty did not cause Cooper to disbelieve the CALICO interview. Cooper found minor's initial accusations credible in part because of the physical evidence of fingerprint marks and punch marks on her legs.
Cooper thought that mother could not adequately protect minor because mother did not believe the allegations. Cooper believed it was not safe to return minor to the family home because all of the family members that lived in the home when minor was removed were still there.
Cooper met with minor and mother at the end of November 2018. During the meeting, mother said she was very concerned about her family members, specifically father and the accused oldest brother. With minor sitting next to her, mother said it was very upsetting to them. Mother and Cooper discussed how mother would keep minor safe if she returned home. Mother said she was no longer employed and she would be home in the evening when minor was home. Cooper did not think this was adequate to keep minor safe because the persons accused of sexually assaulting her still lived in the home.
Mother testified with the assistance of a Spanish language interpreter. Mother testified that minor was sad and crying one morning. She told mother that father was abusing her at night. Mother asked her if she wanted to go to the police, and minor said yes. Minor told mother she had blankets, a pillow, and a towel that were evidence of the abuse. Mother thought "the police would help me," and "I wanted to help [minor] because of her emotional state." When the police came to the house, minor gave them the towel, the pillow, and the blankets. Mother saw an officer had gloves, and everything was put in bags.
Later in mother's testimony, the interpreter interjected that "towel" can refer to a tissue.
Mother did not believe anybody sexually assaulted minor in June 2018. Asked where she thought minor's bruises came from, mother said, "she still has bruises because of P.E., when she was exercising at school," and at home "[s]he will run into something." However, mother said these bruises show up on her feet and different areas of her body. Mother testified that minor had cried in her sleep before. Mother would run to see her, and she would say it was a dream.
Mother testified her sons (that is, minor's three brothers) did not have friends over after 10:00 p.m. Mother agreed that she was concerned about father's and her oldest son's reputations based on minor's allegations, but she did not convey this concern to minor. No one other than the family (mother, father, minor, and her three brothers) was home on the night of June 13, 2018. Mother testified that she thought it was safe for minor to return home because she did not believe minor was sexually assaulted.
Before the accusations, minor was diagnosed with anemia. Mother was worried about minor's bruising, and the doctor told her that when a person has anemia, "their skin becomes very sensitive to any blow or hit." Mother testified that minor was prescribed iron, but she would forget to take it. Mother had seen bruises on minor's inner thighs before June 14, 2018; they would come and go.
Mother testified that minor had been taking iron pills for about a year (as of December 2018) and, in the month before she reported the sexual assault, minor was taking her iron pills.
Minor's older brother D.R., who is not the accused oldest brother, also testified. He lived at home with the oldest brother, minor, and a younger brother. He testified there were two dogs in the house. Sometimes the smallest dog would be in minor's room. D.R.'s room was next to minor's room, and the parents' room was across from minor's.
Some time in 2018 before she was removed from the home, minor passed out in the kitchen. Minor stood up, and then fell on the ground. Father came in and picked her up. D.R. testified that minor then said, "Backup" because she wanted some space. Father backed up, and minor fell "violently" and hit her head on the floor of the kitchen. Then father and the oldest brother picked her up and moved her to the parents' room and sat her in a chair.
D.R. testified that he usually goes to bed between 2:00 and 4:00 a.m. Late at night, he is at home studying and listening to music with headphones on. He testified that he could hear a door closing and the floorboards are squeaky. D.R. thought that even if a person took off his shoes and tried to walk quietly, he would hear it. Asked whether he would hear somebody go into minor's room, D.R. responded, "I'm not sure if this was the day, but every so often my sister would have one of the smallest dogs in her room. So if anything happened, I'm pretty sure the dog would have barked."
Agency counsel conceded the CALICO interview was difficult to follow at times, but argued, "that does not discredit the minor's statements and does not provide an alternate explanation for the injuries noted during the SART exam." Minor's attorney stated that minor's position was that the alleged assaults did not occur and she wanted to go home, but her attorney went on to join the Agency's argument and request the court find the allegations of the petition true and order out-of-home placement.
Attorneys for mother and father argued minor's initial accusations and CALICO interview were not credible. Father's attorney specifically argued that no sexual assault occurred.
Court Ruling
After hearing the parties' arguments, the juvenile court issued its ruling. The court found minor to be a person described by section 300, subdivisions (b) and (d), and ordered her removed from mother and father.
The court noted it was not unusual for children who are victims of sexual assault to recant at some point and it was not unusual for there to be some level of inconsistency in a child victim's statements. The court stated it was familiar with dogs in the house and they don't always bark when they know the people walking in the home. The lack of DNA evidence "d[id]n't really help" resolve the question of whether a sexual assault occurred, and D.R.'s testimony was unpersuasive and "confusing."
The court stated: "The question is really whether or not [minor]'s memory is that of a dream, or something that really happened." The bruises on minor's body and the location of those bruises as depicted in the SART report—"[t]he thigh, inner thigh, and the inner thigh looks to be one of the bigger bruises, the backs of the legs, and specifically its says that it appears as a fist pattern, deep colored to center purple red"—supported the conclusion that something really happened.
The court reasoned: "Preponderance of the evidence, it's a low standard. And I think that at least from the Court's perspective, the Court could find that by a preponderance of the evidence some sexual assault occurred in the house. The question is I don't think I can find that the father or the [oldest] brother were the perpetrators of those sexual assaults. . . . [¶] I'm not sure who's responsible for those assaults, but with that level of bruising one would assume that someone in the home would have heard something, seen something, done something." (Italics added.) Thus, the court found that a sexual assault occurred in the home and that "the parents should have been aware that something was happening."
The court amended the petition to conform to the evidence and found the following factual allegations true. For dependency based on subdivision (b) of section 300, the court found mother "is unable to protect [minor] adequately, in that the mother states she does not believe the allegations made by the minor . . . that she was sexually assaulted in the family home. The mother also believes [minor] needs psychological treatment." And father "is unable to protect [minor] adequately, in that he does not believe the allegations made by the minor . . . that she was sexually assaulted in the family home." For dependency under subdivision (d) of section 300, the court found "the minor . . . was sexually assaulted in the family home while she was unconscious or drugged. . . . [Minor] was observed at Washington Hospital to have multiple bruises on her legs and thighs. . . . [Minor] was observed at Washington Hospital to have jaw pain which she reports is the result of coerced oral sex in the family home. . . . [Minor] was observed at Washington Hospital to have a tender vagina . . . without laceration or bleeding."
Based on these findings, the court stated it could not order minor returned to the home "because I need to make sure that home is a safe place."
DISCUSSION
A. Standard of Review
" 'In reviewing a challenge to the sufficiency of the evidence supporting the jurisdictional findings and disposition, we determine if substantial evidence, contradicted or uncontradicted, supports them. "In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court's determinations; and we note that issues of fact and credibility are the province of the trial court." [Citation.] "We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court. [Citations.] ' "[T]he [appellate] court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence . . . such that a reasonable trier of fact could find [that the order is appropriate]." ' " ' " (In re I.J. (2013) 56 Cal.4th 766, 773.) B. Substantial Evidence Supports the Court's Finding That Minor was Described by Section 300 , Subdivision (b)
Under section 300, subdivision (b), a child may be adjudged a dependent of the court if "[t]he child has suffered, or there is 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, or the willful or negligent failure of the child's parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left . . . ." (§ 300, subd. (b)(1).)
Under section 300, subdivision (d), a child may be adjudged a dependent of the court if "[t]he child has been sexually abused, or there is a substantial risk that the child will be sexually abused . . ., by his or her parent or guardian or a member of his or her household, or the parent or guardian has failed to adequately protect the child from sexual abuse when the parent or guardian knew or reasonably should have known that the child was in danger of sexual abuse."
Both father and mother contend there was no substantial evidence that minor was sexually abused. This argument lacks merit. Minor's statements to mother, the police, the social worker, and the CALICO interviewer describing incidents of sexual abuse together with the SART evidence of bruises on minor's thighs provide substantial evidence that minor was sexually abused in her bedroom in June 2018. The juvenile court found minor's statements in the CALICO interview credible, noting it was not unusual for children who are victims of sexual assault to recant at some point. We do not second-guess the court's credibility finding. (In re A.S. (2018) 28 Cal.App.5th 131, 149.)
Mother at one point concedes "there may be evidence to support that a sexual abuse occurred, [but] there is clearly a lack of substantial evidence to support that the father or brother abused her." It is undisputed, however, that mother and father do not believe minor suffered any sexual abuse in the home. In light of the court's finding that minor was sexually abused in her home, mother and father's disbelief that any abuse occurred is, by itself, sufficient evidence to support the court's finding that mother and father are unable to protect minor under section 300, subdivision (b). This is because a parent's "disbelief that anything improper had occurred places [the abused child] at risk that . . . any reports of future abuse might be ignored by" the parent. (In re Katrina W. (1994) 31 Cal.App.4th 441, 447 [finding that the mother " 'does not believe minor Katrina was molested' " supported section 300 jurisdiction]; see In re D.G. (2012) 208 Cal.App.4th 1562, 1572-1573 [where the mother did not believe one of her daughter's allegations of sexual abuse against her boyfriend, the mother's denial supported finding that mother's daughters were at substantial risk of harm "as a result of the failure or inability of Mother to adequately protect them."].)
Jurisdiction "may be based on any single subdivision" of section 300 (In re Shelley J. (1998) 68 Cal.App.4th 322, 330), and we "may decline to address the evidentiary support for any remaining jurisdictional findings once a single finding has been found to be supported by the evidence" (In re I.A. (2011) 201 Cal.App.4th 1484, 1492). Therefore, we need not address parents' various arguments that there was insufficient evidence to support jurisdiction under subdivision (d) of section 300. (See In re Shelley J., supra, at p. 330 ["Having concluded there was substantial evidence to support the court's determination that the minor came within the provision of section 300, subdivision (c), we need not address appellant's claim that there was insufficient evidence to find jurisdiction under section 300, subdivision (j)"].) C. Substantial Evidence Supports the Court's Removal Order
Under section 361, subdivision (c)(1), "[a] dependent child shall not be taken from the physical custody of his or her parents . . . unless the juvenile court finds clear and convincing evidence" that "[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's . . . physical custody."
"We review an order removing a child from parental custody for substantial evidence in a light most favorable to the juvenile court findings." (In re Miguel C. (2011) 198 Cal.App.4th 965, 969.)
Removal may be warranted when a parent is in denial about the abuse that led to the dependency. (E.g., In re T.V. (2013) 217 Cal.App.4th 126, 136-137 [the court could reasonably find no reasonable means by which the minor could be protected without removal where the father "denied responsibility for the violence, claiming [the mother] was the aggressor and he did not know how she sustained her injuries"; In re A.F. (2016) 3 Cal.App.5th 283, 292-293 ["In light of mother's failure to recognize the risks to which she was exposing the minor, there was no reason to believe the conditions would not persist should the minor remain in her home."].) Here, mother and father's denial that minor suffered abuse in the home provides substantial evidence that removal from the home was necessary to protect minor from further abuse because parents cannot be expected to protect against harm they do not believe is occurring or do not understand.
DISPOSITION
The orders are affirmed.
/s/_________
Miller, J. We concur: /s/_________
Kline, P.J. /s/_________
Richman, J.