NOT TO BE PUBLISHED IN OFFICIAL REPORTS
C.S. (Mother) appeals from the juvenile court's jurisdictional and dispositional orders declaring her 12-year-old daughter, S.T., a dependent, and removing custody pursuant to Welfare and Institutions Code section 300, subdivision (d) and section 361, subdivision (c).
FACTUAL AND PROCEDURAL BACKGROUND
Mother married Kenneth S. in 2012. At that time, Mother had two children, S.T. and a 10-year-old son from a prior relationship with Jeffrey T. Kenneth and Mother have a two-year-old son together. Jeffrey had no contact with S.T. in the last three to four years and minimal contact before that point. According to Jeffrey, Mother precluded him from maintaining contact with S.T. after a contentious divorce.
In late August 2016, the San Diego County Health and Human Services Agency (Agency) received a report that S.T. had disclosed sexual abuse by her stepfather, Kenneth, to her maternal grandmother. S.T. reported Kenneth repeatedly entered her room at night and climbed into her bed. He touched her breasts, stomach, and vaginal area under her clothing. S.T. stated Kenneth had put his fingers inside of her on multiple occasions. The abuse had been occurring for a year and a half, with the last incident taking place in July 2016. S.T. told Mother that Kenneth had been touching her and she was uncomfortable around him. However, Mother told S.T. that Kenneth had been asleep and rubbed S.T.'s stomach because he mistook S.T. for Mother.
The report to the Agency also indicated that S.T. had been expressing sexualized behaviors, engaged in sexual role play conversations via social media, and uploaded pornographic anime. Additionally, S.T. had engaged in self-injurious behaviors and was suicidal.
A social worker interviewed S.T., Mother, Kenneth, and maternal relatives. Mother told the social worker that Kenneth had been tucking S.T. into bed and cuddling with her since S.T. was a little girl. Mother explained that Kenneth sometimes rubbed S.T.'s belly when S.T. had a painful menstrual cycle and Kenneth may have mistaken S.T. for Mother because he often rubbed Mother's belly when she was pregnant. According to Mother, the last time Kenneth cuddled with S.T. in bed was in April 2016.
Mother suggested S.T. made up the allegations against Kenneth in retaliation for having gotten in trouble for viewing sexually explicit images, sexting, and role playing on a social media game. According to Mother, S.T. "tended to lie." Mother suspected that S.T. wanted to live with her maternal grandmother and indicated the maternal grandmother and aunt were trying to convince S.T. to live with them because the grandmother did not like Kenneth.
Upon S.T.'s disclosure, the maternal grandmother had refused to let S.T. return home until Mother kicked Kenneth out of the home. Thus, Mother asked Kenneth to stay at a friend's house. According to Mother, Kenneth left the house on August 19, 2016, and returned six days later. Mother stated she got S.T.'s permission for Kenneth to stay the night. However, the maternal grandmother and aunt reported that Mother allowed Kenneth to immediately return home.
Kenneth denied that he had touched S.T. inappropriately. He explained that he used to cuddle with S.T. because she always asked him for snuggles and belly rubs. At some point, S.T. told Kenneth that she was uncomfortable, so he told her he would stop touching her.
On August 26, 2016, Mother and Kenneth signed a safety plan that required Kenneth to leave the home while the Agency investigated S.T.'s allegations. Under the safety plan, Kenneth could not have unsupervised contact with S.T. or her brothers. Further, Mother agreed to demonstrate acts of protection and ensure the safety and well-being of S.T.
The maternal aunt reported that S.T. and Mother got into an altercation on the night the social worker visited the home and conducted interviews. S.T. locked herself in the bathroom with a pair of scissors because she felt Mother did not believe her. Mother called 911. S.T. was placed on an involuntary psychiatric hold, treated, and monitored at a hospital.
The Agency social worker met with S.T. at the hospital. S.T. stated that Kenneth was "guilt tripping" her by expressing concern about losing his job, losing their dog, and the impact on S.T.'s brothers. S.T. also told the social worker that Kenneth had been in their home every night to see her brothers while she stayed in her bedroom. The social worker spoke to Mother, who made excuses for Kenneth's behavior and deflected blame onto S.T. and S.T.'s sexualized behaviors. Mother said she did not believe S.T.
On August 29, 2016, Mother entered into a second safety plan and agreed to allow the maternal aunt to obtain guardianship of S.T. so that the aunt could make decisions related to school and aftercare treatment. Additionally, under the plan, S.T. would reside with the maternal aunt upon S.T.'s release from the hospital. On September 1, 2016, S.T. underwent a forensic interview. During the interview, S.T. disclosed that the maternal grandmother wanted to emancipate S.T. and said the only way that could happen was if Kenneth had molested S.T. S.T. reported that after her grandmother made that comment, her grandmother saw the look on S.T.'s face and began asking questions. S.T. then disclosed sexual abuse by Kenneth to the maternal grandmother.
S.T. discussed Kenneth and reiterated that he had engaged in sexually inappropriate behavior with her. S.T. had difficulty disclosing in depth descriptions to the interviewer's questions. When the interviewer attempted to obtain details of the abuse, S.T. did not respond and stated it was like reliving it. According to S.T., she had a bad habit of lying.
On September 9, 2016, S.T. was released to the maternal aunt from the hospital. Mother refused to give the maternal aunt guardianship or power of attorney. Thus, the maternal aunt could not register S.T. in school or take her to therapy appointments. The maternal aunt also informed the social worker that S.T. and Mother had engaged in an altercation about S.T.'s electronic devices. Although Mother had agreed to give the electronic devices to the aunt, Mother changed her mind, resulting in a dispute with S.T. S.T. later told the maternal aunt, "this is why I want to kill myself."
The social worker discussed the safety plan with Mother and reminded her that she had agreed to allow the maternal aunt to enroll S.T. in school. Mother had no response when the social worker asked Mother about her plans with Kenneth. Mother also did not respond when the social worker expressed her belief that Mother was waiting for the safety plan to expire to bring S.T. and Kenneth back into the home.
A detective with the San Diego Police Department sex crimes and child abuse unit spoke to Mother about S.T.'s allegations. The detective expressed concern that S.T. may have fabricated the allegations to improve her living situation. The detective was concerned by S.T.'s inability to provide details about where she had been touched because, in the detective's experience, much younger children had been able to explain where they had been touched during forensic interviews.
The Agency filed a petition under section 300, subdivision (d), alleging Kenneth had sexually abused S.T. The petition further alleged that Mother was aware of the abuse, did not believe S.T., blamed S.T. for problems S.T.'s disclosure had created, and demonstrated an unwillingness and inability to protect S.T.
At the detention hearing, the court found the Agency had made a prima facie showing that S.T. was a person described by section 300, subdivision (d). The court also found there was no reasonable means to protect S.T. without removing her from Mother's custody. The court issued a no contact order protecting S.T. from Kenneth. The court found Jeffrey was the presumed father under Family Code section 7611, subdivision (a) and entered a judgment of paternity.
Jurisdiction and Disposition
The Agency's jurisdiction and disposition report noted that S.T. remained placed with the maternal aunt and was doing well in her care. S.T. was registered in school and excited to attend. Mother called S.T. daily, and the maternal aunt supervised the calls.
S.T. had spoken with Jeffrey on the phone and communicated with him through text messages. According to S.T., Mother expressed disappointment that S.T. was willing to allow Jeffrey back into her life even though he had not been around for years, yet S.T. refused to give Kenneth another chance. S.T. wanted to stay with the maternal aunt and feared returning home because Kenneth would be there.
The social worker questioned Mother about her plans going forward. Mother reported that Kenneth had been out of the home since late August 2016, and had not returned since that time. Mother stated that she and Kenneth discussed their relationship, but had not made any decisions and were unsure of what they will do. When the social worker asked Mother if Mother believed S.T.'s allegations, Mother responded, "I have taken it into account yes" and "I've really considered it with her." When the social worker noted that Mother previously did not believe S.T., Mother stated, "A little, I've thought a little more into it."
Jeffrey reported that he only wants what is best for S.T. and that he understood it would take some time to rebuild his relationship with her. He had not reached out to his children in the last few years because of his health problems from Multiple Sclerosis. Jeffrey was hopeful that he could build a relationship with S.T., but was not ready to have her placed with him because she did not know him. However, Jeffrey wanted S.T. placed with him if she could not return to Mother's home.
The Agency's addendum report, dated November 3, 2016, noted that Mother had told S.T. that S.T. would regret lying about the allegations against Kenneth. Further, Mother asked the maternal aunt to ask S.T. to give Kenneth another chance. S.T. believed that Kenneth had returned home because during visits, her siblings said, "daddy's at home."
Mother informed the social worker that Kenneth was still out of the home. When asked if Mother had plans for Kenneth to move back in, Mother responded, "Not yet, no." Mother said she spoke to S.T. almost every day and reported that visits were going well.
Mother completed an intake assessment for a sexual abuse protection group for nonoffending, nonprotective parents. The intake psychologist noted that Mother was completely unaware of the reason for the assessment. According to the psychologist's assessment report, Mother expressed "significant skepticism" about S.T.'s sexual abuse allegations and appeared intent on reuniting with Kenneth. During the intake assessment, Mother lacked insight and denied the sexual abuse allegations.
On November 6, 2016, the maternal aunt told the Agency social worker that S.T. had engaged in self-injurious behavior. S.T. went to a park, broke a beer bottle, and scratched her arms. Mother visited S.T. shortly after the incident, which the maternal aunt found helpful.
The juvenile court held a contested jurisdiction and disposition hearing. The court received the Agency's reports into evidence. The court made a true finding on the petition and continued disposition.
On November 28, 2016, the court held the contested disposition hearing. S.T. testified by phone. She informed the court that she wanted to live with her maternal aunt. S.T. stated that if she were told to leave her maternal aunt's home, she would refuse to leave. S.T. was afraid of losing her friends and hurting herself. She also testified that she did not want to live with Jeffrey because she did not know him well, she felt uncomfortable being alone with a man, and Jeffrey had broken promises to her. For example, Jeffrey had told S.T. he would not fight for her to live with him unless she asked him to, but he broke that promise. S.T. also stated she was afraid of Jeffrey because Mother had previously told S.T. that Jeffrey had abused Mother. S.T. further testified that Jeffrey had threatened her in the past. S.T. indicated that she was afraid she would hurt herself if she was separated from her aunt and cousin because she relies on them.
The Agency and Jeffrey asked that S.T. be placed with Jeffrey. Mother objected to the court removing S.T. from her custody, but if it chose to do so, Mother supported placement with Jeffrey. At the conclusion of the hearing, the court removed S.T. from Mother's custody, denied placement with Jeffrey, and continued S.T.'s placement with the maternal aunt.
Approximately one month later, S.T. was hospitalized and placed on a psychiatric hold while in the maternal aunt's care. Thereafter, S.T. changed her mind and wanted to live with Jeffrey. Jeffrey continued to want S.T. placed with him and provided the social worker with a detailed plan of how he would care for S.T. On January 31, 2017, the juvenile court ordered S.T. placed with Jeffrey for a 60-day trial visit.
I. Standard of Review
A parent may seek review of both the jurisdictional and dispositional findings on an appeal from the disposition order. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 249.) When the sufficiency of the evidence to support a finding or order is challenged on appeal, the reviewing court must determine if there is any substantial evidence, that is, evidence which is reasonable, credible, and of solid value to support the conclusion of the trier of fact. (In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) In making this determination, all conflicts are to be resolved in favor of the prevailing party and issues of fact and credibility are questions for the trier of fact. (In re Steve W. (1990) 217 Cal.App.3d 10, 16.)
"However, substantial evidence is not synonymous with any evidence. [Citations.] A decision supported by a mere scintilla of evidence need not be affirmed on appeal. [Citation.] Furthermore, `[w]hile substantial evidence may consist of inferences, such inferences must be "a product of logic and reason" and "must rest on the evidence" [citation]; inferences that are the result of mere speculation or conjecture cannot support a finding [citations].' [Citation.] `The ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record.'" (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393-1394.)
II. Substantial Evidence Supported the Court's Jurisdictional Finding
Mother does not dispute the allegations that Kenneth sexually abused S.T. Instead, Mother argues there was insufficient evidence to support a finding that she failed to protect S.T. Specifically, Mother contends the record establishes that after the Agency began its investigation, she kept Kenneth out of the home, regardless of her disbelief of S.T.'s sexual abuse allegations.
A minor may come within the jurisdiction of the court if "[t]he child has been sexually abused, or there is a substantial risk that the child will be sexually abused, as defined in Section 11165.1 of the Penal Code, 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." (§ 300, subd. (d).) "The basic question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm." (In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1134.)
Although "the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm" (In re Rocco M. (1991) 1 Cal.App.4th 814, 824), the court may nevertheless consider past events when determining whether a child presently needs the juvenile court's protection. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1135; In re Troy D. (1989) 215 Cal.App.3d 889, 899-900.) A parent's past conduct is a good predictor of future behavior. (In re Petra B. (1989) 216 Cal.App.3d 1163, 1169-1170.) "Facts supporting allegations that a child is one described by section 300 are cumulative." (In re Hadley B. (2007) 148 Cal.App.4th 1041, 1050.) Thus, the court "must consider all the circumstances affecting the child, wherever they occur." (Id. at p. 1048.)
Here, Mother contends the court's jurisdictional finding based on her failure to protect S.T. was not supported by substantial evidence because Mother kept Kenneth out of the home as soon as the Agency's investigation began. Mother further argues that the evidence that she disbelieved S.T.'s allegations is irrelevant. Contrary to Mother's argument, there is substantial evidence to support the court's jurisdictional finding based on her failure to protect S.T. from sexual abuse.
Despite Mother's claim that she kept Kenneth out of the home, the evidence indicates that she intends for him to return, putting S.T. at risk of future abuse. Mother has consistently failed to confirm that she will protect S.T. by keeping Kenneth out of the house. For example, in September 2016, Mother did not respond when the social worker asked her about her future plans with Kenneth. Mother also had no response when the social worker expressed her belief that Mother was waiting for the Agency's involvement to end so that Mother could bring both S.T. and Kenneth back into the home. Mother said that she and Kenneth had discussed their relationship, but had not made any decisions and were still unsure of what they will do. In October 2016, S.T. reported that Mother had asked the maternal aunt to ask S.T. to give Kenneth another chance. In early November 2016, the social worker asked Mother if Kenneth had moved back in. Mother responded, "Not yet, no." Mother's statements and actions demonstrate that she is focused on having Kenneth return to the home rather than on S.T.'s safety. Further, the psychologist that performed an intake assessment on Mother for a sexual abuse prevention group concluded that Mother lacked insight, was skeptical about S.T.'s sexual abuse allegations, and was intent on reuniting with Kenneth.
We also reject Mother's contention that her disbelief of S.T.'s allegations is "largely irrelevant as long as she keeps Kenneth out of the home." There was evidence that S.T. disclosed the sexual abuse to Mother before the Agency's involvement in the case. Yet, Mother chose to disbelieve S.T. and instead made excuses for Kenneth's behavior, such as suggesting that Kenneth had been asleep or mistook S.T. for Mother. Moreover, despite S.T.'s disclosure, Mother permitted Kenneth to have continued access to S.T., and there is evidence that he continued to molest her. Mother has consistently deflected blame onto S.T. Mother accused S.T. of lying about the sexual abuse allegations and made S.T. feel guilty about disclosing the abuse. Mother's past conduct, coupled with her disbelief of S.T.'s allegations, poses a substantial risk that she will fail to protect S.T. from further abuse. (In re Carlos T. (2009) 174 Cal.App.4th 795, 800, 805-806 [substantial evidence supported juvenile court's finding that children were at substantial risk of future abuse where mother denied the abuse and did nothing to protect her children]; In re Maria R. (2010) 185 Cal.App.4th 48, 60-61 [court found substantial evidence supported finding that mother failed to protect her children because mother knew of sexual abuse, but denied the abuse, maintained the children were lying, and sought to protect her husband rather than protect her children].)
Further, contrary to Mother's argument, there is evidence in the record indicating that Mother has not kept Kenneth out of the home. In October 2016, S.T reported that she thought Kenneth was still living in the home with Mother because during visits, S.T.'s brothers told her "daddy's at home."
Lastly, Mother argues her case is distinguishable from cases where the nonoffending parent fails to protect a child despite "clear or undeniable" abuse. (See In re Carlos T., supra, 174 Cal.App.4th at pp. 805-806; In re Maria R., supra, 185 Cal.App.4th at pp. 60-61.) Mother points to evidence that S.T. admitted she had a bad habit of lying, S.T. had a motive to lie because Mother had taken away her electronic devices, S.T. wanted to live with maternal relatives, the maternal grandmother wanted to have S.T. emancipated, and the detective who conducted S.T.'s forensic interview questioned the truthfulness of S.T.'s allegations. Despite this evidence, as we discussed, the record indicates that Mother intends to have Kenneth return home, disbelieves S.T.'s sexual abuse allegations, deflected blame onto S.T., has failed to protect S.T. in the past, and made excuses for Kenneth rather than focusing on S.T.'s well-being. Under these circumstances, the record establishes that Mother was not a protective parent.
Based on the foregoing, we conclude that the juvenile court properly exercised jurisdiction under section 300, subdivision (d), based on Mother's failure to protect S.T. from sexual abuse.
III. Substantial Evidence Supported Removal from Mother's Custody
Mother argues the juvenile court erred in removing S.T. from her custody because removal was not necessary to protect S.T. Specifically, Mother contends she eliminated the protective issues that brought S.T. into the dependency system because Mother agreed Kenneth should move out of the home, was cooperating with the Agency, and was participating in services. We reject Mother's argument.
In this case, the juvenile court removed physical custody of S.T. from Mother under section 361, subdivisions (c)(1) and (c)(4). To support an order removing a child from parental custody under those subdivisions, the court must find by clear and convincing evidence any of the following:
"The juvenile court has broad discretion to determine what would best serve and protect the child's interest and to fashion a dispositional order in accordance with this discretion." (In re Jose M. (1988) 206 Cal.App.3d 1098, 1103-1104.) Although "the [juvenile] court makes findings by the elevated standard of clear and convincing evidence, the substantial evidence test remains the standard of review on appeal." (In re Cole C. (2009) 174 Cal.App.4th 900, 916.)
Substantial evidence supports the juvenile court's removal of custody under both subdivisions (c)(1) and (c)(4) of section 361. Pertaining to subdivision (c)(1), the juvenile court was presented with evidence that there would be a substantial danger to S.T.'s safety, protection, and physical and emotional well-being if she was returned home to Mother. The evidence detailed above supporting the juvenile court's jurisdictional order also supports removal of custody from Mother. (Ante, pt. II.) S.T. disclosed to Mother that Kenneth had sexually abused S.T., but Mother failed to protect S.T. Mother lacked insight into the protective issues leading to S.T.'s removal from her custody, placed blame on S.T., and appeared intent on reuniting with Kenneth. Further, there was substantial evidence to suggest that Mother intends to have Kenneth move back into the home. (Ante, pt. II.)
Additionally, the evidence indicates that S.T. may harm herself if returned to Mother's care. After S.T.'s disclosure to the maternal grandmother, S.T. locked herself in a bathroom with a pair of scissors because she felt that Mother did not believe her. S.T. stated that she felt like dying and wanted to slit her wrists. S.T. was hospitalized as a result and placed on an involuntary psychiatric hold. During her hospitalization, S.T. experienced suicidal ideation, noting that she was overwhelmed, anxious, and people were making her feel guilty. After S.T. was released from the hospital, she had an altercation with Mother and expressed to the maternal aunt that "this is why I want to kill myself." Based on this evidence and Mother's continued disbelief of S.T.'s allegations, accusations that S.T. is lying, and lack of insight, there is a substantial danger that S.T. will harm herself if returned to Mother's care.
Under subdivision (c)(4) of section 361, a minor can be removed from her parent's physical custody if the minor was sexually abused by a member of her household and does not want to return to her parent. In this case, there was substantial evidence to support removal under section 361, subdivision (c)(4). In August 2016, S.T. disclosed to her maternal grandmother that Kenneth had been inappropriately touching S.T. on her breasts, stomach, and vaginal area under her clothing. The abuse had been occurring for a year and a half. Further, S.T. repeatedly asserted that she did not want to return to Mother and instead wanted to stay with her maternal aunt.
Contrary to Mother's argument, S.T.'s desire to live with her maternal aunt is not similar to the situation in In re Yvonne W. (2008) 165 Cal.App.4th 1394. In that case, the mother was living in a homeless shelter and her daughter expressed a dislike for the shelter. (Id. at pp. 1398-1399.) This court found that "[a] child's dislike of a parent's living arrangement, without more, does not constitute a substantial risk of detriment" to the child. (Id. at p. 1401.) Unlike In re Yvonne W., there was evidence that S.T. would suffer psychological and emotional injury if returned to Mother's custody because Mother did not believe S.T., made S.T. feel guilty about her disclosures, and accused S.T. of lying. S.T. also expressed that she may harm herself if removed from the maternal aunt. Thus, S.T.'s desire to live with the maternal aunt was based on more than a dislike of Mother's living arrangement.
Mother further argues that in addition to removing Kenneth from her home, her participation in services eliminated the need to remove S.T. from her care. However, the record before us does not support Mother's contention. By the time of the contested disposition hearing, Mother had completed an intake assessment for a sexual abuse prevention group. The assessment revealed that Mother lacked insight, was completely unaware of the cause for her referral to the sexual abuse prevention group, expressed significant skepticism about S.T.'s sexual abuse allegations, and was intent on reuniting with Kenneth.
Lastly, we reject Mother's argument that there were reasonable alternatives to protect S.T. other than removing her from Mother's custody. In particular, Mother argues a reasonable disposition plan would have been to maintain S.T. at home with Mother, with intensive services and protective orders, if necessary. However, as we have set forth in detail, the evidence revealed that Mother was focused on reuniting with Kenneth, intended to have him return home, and disbelieved S.T.'s allegations. Mother had allowed Kenneth into the home even after S.T. disclosed sexual abuse to her. Further, although Mother contends she was cooperative with the Agency, the record suggests otherwise. For example, Mother initially agreed to allow the maternal aunt to obtain guardianship of S.T. so that the aunt could enroll S.T. in school and make treatment decisions, but Mother changed her mind upon S.T.'s release from the hospital. Similarly, Mother changed her mind about returning S.T.'s electronic devices, which resulted in an altercation. In sum, the record supports the juvenile court's findings that there were not reasonable alternative means to protect S.T.
Based on the foregoing, substantial evidence supports the juvenile court's dispositional order removing S.T. from Mother's custody.
The juvenile court's jurisdictional and dispositional orders are affirmed.
McCONNELL, P. J. and NARES, J., concurs.