In re D.T. CA2/3

Filed 9/29/15 In re D.T. CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

In re D.T., a Person Coming Under the B258878 Juvenile Court Law. (Los Angeles County LOS ANGELES COUNTY Super. Ct. No. DK03776) DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

SUZANNE M.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Tony Richardson, Judge. Reversed in part, affirmed in part. Aida Aslanian, under appointment by the Court of Appeal, for Defendant and Appellant. Mark J. Saladino, County Counsel, Dawyn R. Harrison, Assistant County Counsel, and Kim Nemoy, Principal Deputy County Counsel, for Plaintiff and Respondent. _________________________

INTRODUCTION Legal guardian Suzanne M. appeals from the order of the juvenile court sustaining a petition under Welfare and Institutions Code1 section 300, subdivisions (b) and (d) after finding true that Suzanne has a history of alcohol abuse, domestic violence, emotional problems, and had sexually abused her grandson and ward, D.T. We conclude there is no evidence to support the allegations that Suzanne sexually abused D. or that the child is at risk of sexual abuse. Accordingly, we reverse the portion of the jurisdictional order finding true counts (b)(5) and (d)(1). In all other respects, the order is affirmed. FACTUAL AND PROCEDURAL BACKGROUND The Department of Children and Family Services (the Department) filed and the juvenile court sustained a petition alleging that Suzanne, grandmother and guardian of then 10-year-old D., and her male companion engaged in a violent altercation outside Suzanne’s house while the child was inside, and Suzanne’s history of alcohol abuse along with her emotional problems placed the child at risk of harm. (§ 300, subd. (b).) More relevant to this appeal, the court sustained counts (b)(5) and (d)(1), as amended to conform to proof, under section 300, subdivision (b) (neglect and failure to protect) and subdivision (d) (sexual abuse). Those counts read, “On 1/6/14, the child, [D.T.]’s legal guardian maternal grandmother, Suzanne M[.], engaged in sexual relation[s] with the legal guardian’s male companion, [S.T.] while the child and the [Department’s] Children’s Social Worker, Rebecca M[.], were present in the home, and in an area that was accessible to the minor, by orally copulating the male companion. The sexual abuse of the child by the legal guardian endangers the child’s physical health and safety and places the child at risk of physical harm, damage, danger and sexual abuse.” (Italics added.) The events leading to the allegations in counts (b)(5) and (d)(1) are that the social worker came to Suzanne’s house in response to a police report of domestic violence. She