California Court of Appeal Jan 9, 2024 No. E080486Unpublished
Filed 1/9/24 In re I.H. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re I.H., a Person Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, E080486
Plaintiff and Respondent, (Super.Ct.No. J294336)
v. OPINION
O.D.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes,
Judge. Affirmed in part; reversed in part.
Liana Serobian, under appointment by the Court of Appeal, for Defendant and
Appellant.
Tom Bunton, County Counsel, and Dawn M. Martin, Deputy County Counsel, for
Plaintiff and Respondent.
1
INTRODUCTION
Defendant and appellant O.D. (mother) contends there was insufficient evidence to
support the juvenile court’s jurisdictional findings under Welfare and Institutions Code1
section 300, subdivisions (b) and (d), regarding her child, I.H. (the child). Mother also
argues the court erred in removing the child from her custody and in bypassing her
reunification services under section 361.5, subdivision (b)(6). We reverse in part and
affirm in part.
FACTUAL AND PROCEDURAL BACKGROUND
On September 9, 2022, plaintiff and respondent San Bernardino County
Department of Children and Family Services (CFS) filed a section 300 petition on behalf
of the child, who was nine years old at the time. The petition alleged that she came
within subdivisions (b) (failure to protect), (d) (sexual abuse), and (g) (no provision for
support). The petition contained the following allegations under section 300, subdivision
(b): mother had developmental delays and mental health concerns, which impaired her
ability to protect and safely care for the child; and the child’s father, O.H. (father),2 had
an extensive criminal history. Under section 300, subdivision (d), the petition alleged
that mother allowed the child to continuously be sexually abused by her boyfriend, A.M.,
1 All further statutory references will be to the Welfare and Institutions Code, unless otherwise indicated.
2 Father is not a party to this appeal. Therefore, this opinion will focus on the allegations concerning mother. The allegation under section 300, subdivision (g), concerned father only.
2
including letting him watch the child shower, massaging her vaginal area over her
clothing, and lying on top of her while in his underwear.
The social worker filed a detention report stating that, on April 26, 2022, CFS
received a referral alleging sexual abuse and general neglect of the child. A subsequent
referral was received on September 6, which the social worker stated “invalidat[ed] the
previously agreed upon safety plan” and led to the investigation being reassigned from
the prior social worker to the current one. The current social worker interviewed the
child at school on September 6, and the child said A.M. was “ ‘a pervert, a pedophile, a
meanie and a jerk, [and] he is inappropriate.’ ” The child stated mother told her A.M.
was all those things. The child stated that A.M. would regularly “ ‘[s]lap my butt and lay
on top of me on the bed while he tickles in between my thighs’ ” and then pointed to her
vaginal area. She said her clothing was on during those times. The child also said A.M.
“ ‘[h]ugs me and he’s only wearing his underwear and I have to sleep in the middle of the
bed between him and my mom even though I don’t want to.’ ” The child said A.M. took
her to the movies and was touching her stomach over her clothing. The child added,
“ ‘My mom always sees him touching me and she doesn’t say anything.’ ” The child
further stated, “ ‘I go to his hotel sometimes, he slaps my butt there, he watches me take a
shower with the glass door at his hotel.’ ”
The social worker called the reporting party, who was apparently mother’s
caregiver, Ms. G. Mother was a client of the Inland Regional Center (IRC) due to her
intellectual disability, and she and the child lived with Ms. G. Ms. G. said she had made
multiple reports to CFS over the last three years regarding the sexual abuse of the child,
3
but the previous social worker said CFS would not get involved “ ‘unless there is penile
penetration.’ ” Ms. G. added the director of the agency3 to the call with the social
worker. The director said, as mother’s caregivers, they tried to enforce their own safety
plan, in order to keep A.M. from accessing the child. Ms. G. said that, after the child
made multiple disclosures of sexually inappropriate conduct, the agency “attempted to
coerce mother into keeping [the child] safe from [A.M.]” by informing her that she may
go to jail for allowing him unrestricted access to the child. Ms. G. said that officers had
also attempted to dissuade mother from allowing A.M. access to the child; however, after
a few weeks would pass, mother would reunite with him because she was “ ‘obsessed’ ”
with him and because she believed the allegations were not serious, since there had been
no repercussions (i.e., the child had not been removed from her). Ms. G. reported that
A.M. had picked up the child from school and taken her alone on outings.
The social worker spoke with mother, who stated she did not believe A.M. was a
safety threat to the child, since the child said she was not afraid of him. The social
worker informed mother the child was going to be placed in the care and custody of CFS,
due to the safety threats. Mother said she wanted the child to stay with Ms. G., and she
(mother) would move out of the house.
The court held a detention hearing on September 12, 2022, and removed the child
from mother and detained her with Ms. G.
3 The agency appears to be IRC.
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Jurisdiction/Disposition
The social worker filed a jurisdiction/disposition report on September 28, 2022,
recommending that the court find the section 300, subdivisions (b) and (d) allegations
true, and that no reunification services be provided to mother. The social worker reported
that she interviewed mother on September 27, and mother adamantly denied the sexual
abuse allegations, stating, “ ‘I believe [A.M.] will never hurt [the child].’ ” Mother
reported she had been diagnosed with schizophrenia, bipolar disorder, and attention
deficit hyperactivity disorder (ADHD), and described herself as very impulsive. She
added that she had not taken any psychotropic medication since 2011.
The social worker reported that she also interviewed father, and he said mother
had told him in the past that A.M. “ ‘has done things’ ” to the child and showed him a
picture of A.M. lying on top of the child. Father said he had concerns about the child’s
safety in mother’s care, and he told mother she needed to keep the child away from A.M.
He also stated that mother’s caregivers have reached out to him to express their concerns
about the child’s safety.
The social worker noted that mother had intellectual disabilities but observed that
she was “fairly high functioning nonetheless” and knew right from wrong. The social
worker reported that, although mother admitted she made bad decisions, she never
expressed remorse for her actions. The social worker stated that mother appeared to be
obsessed with A.M. and admitted she was currently living with him, but she said they
were “ ‘just friends.’ ” The social worker stated that mother made it very clear she did
not believe the child’s disclosure of sexual abuse and had no concerns about continuing
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to have A.M. around the child; thus, the social worker opined that it was not in the child’s
best interests to offer mother reunification services. The social worker recommended that
services be provided to father.
The court held a jurisdiction/disposition hearing on October 3, 2022, and mother
set the matter contested. The matter was continued to November 30.
On October 11, 2022, a forensic examination was conducted at the children’s
assessment center (CAC). The examiner spoke with Ms. G., who reported that she had
known mother for some time, since mother lived in a residential facility she managed.
Ms. G. said that, at some point, A.M. lived with mother and the child, and during that
time, mother made statements that A.M. was more interested in the child than in her. Ms.
G. stated the child told her that A.M. came into the bathroom when she was showering;
A.M. would slap her butt and lie on top of her; and mother, the child, and A.M. would be
lying together, and mother and A.M. would be “doing stuff” and trying to involve her,
but the child “would tell him to stop.”
The forensic interviewer spoke with the child, who said A.M. slapped her butt “a
few times,” and tickled her arm pits and between her thighs. The child pointed to her
upper inner thighs to show where he tickled her. She said the slaps did not hurt and her
clothes were on. She also said that she and mother frequently visited A.M. in different
hotel rooms. During one hotel visit, mother took pictures of A.M. tickling the child while
they were on the bed. The child said she was in “ ‘weird positions’ ” on the bed with him
and described him as being on top of her while he tickled her between her thighs and
blew on her stomach. She said she felt weird when he blew on her stomach. The child
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added that mother did not say or do anything “because it was a ‘funny moment’ ” and the
child was laughing while he tickled her. During another hotel visit, the child recalled
A.M. walking into the bathroom and just staring at her through the glass, while she was
in the shower; he did not say anything. She covered her breast area with one arm and
used her other hand to cover her vaginal area. The child said A.M.’s staring at her made
her feel “ ‘nervous and disgusting.’ ” The child said she thought mother came into the
bathroom after A.M. but did not remember mother saying or doing anything.
On November 22, 2022, the social worker filed an “Additional Information to the
Court” memorandum, reporting that mother was dropped off at her supervised visit on
October 3, by A.M., which scared the child a lot. The child had to be reassured that she
was safe and would be protected from him. Mother was admonished but did not appear
to have any insight into why it was inappropriate to have A.M. bring her to the visit. The
social worker further reported she was informed that mother recently became pregnant by
A.M., although mother may have terminated the pregnancy. Additionally, the social
worker reported that Ms. G. was willing to provide long-term care for the child, and the
child was attached to her and thriving in her home.
The court held a contested jurisdiction/disposition hearing on November 30, 2022.
Mother’s counsel objected to the allegations and requested reunification services. He
asserted that mother was an IRC client, and while she had mental health concerns and
developmental delays, they did not prevent her from providing a loving environment for
the child. Counsel admitted that mother did witness A.M.’s actions as described in the
jurisdiction/disposition report and argued that she has attempted to stop him and keep
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him away from her daughter; however, she was not able to do so since she was
vulnerable and was overpowered by him. Counsel asserted that mother “understands
what has occurred is extremely serious and wrong” and said she “has completely
separated” from A.M. and would ensure he would be kept out of her life and the child’s
life. Thus, mother’s counsel asked that the allegations be stricken or modified.
Counsel for the child asked the court to sustain the allegations under section 300,
subdivision (b), stating she believed mother’s mental health issues and developmental
delays had impeded her ability to protect the child, and citing mother’s counsel’s
statements that mother was overtaken by A.M. and unable to maintain a safe environment
for the child. The child’s counsel also asked the court to sustain the allegation under
subdivision (d), since mother knew her boyfriend was sexually abusing the child and still
allowed him to be around her. The child’s counsel questioned mother’s claim that she
was no longer in a relationship with A.M., as she was recently impregnated by him.
County counsel agreed with the child’s counsel and further pointed out that mother
previously stated she absolutely did not believe A.M. had sexually abused the child.
After hearing arguments, the court found true the allegations under section 300,
subdivisions (b) and (d); declared the child a dependent; and removed her from mother’s
and father’s custody. The court adopted the social worker’s recommended findings and
orders. It ordered reunification services for father, but it denied them for mother pursuant
to section 361.5, subdivision (b)(6), finding that she was aware of A.M.’s “severe sexual
abuse” and that “all the behaviors afterwards are indicative of her failure to protect and
take an active role in allowing this to happen.”
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DISCUSSION
I. The Court Properly Took Jurisdiction of the Child
Mother contends there was insufficient evidence to support the jurisdictional
findings under section 300, subdivisions (b) and (d). We agree the evidence was
insufficient to support findings under section 300, subdivision (b). However, we
conclude there was sufficient evidence to support the true finding under subdivision (d).
Thus, the court properly took jurisdiction of the child.4
A. Standard of Review
“The issue of sufficiency of the evidence in dependency cases is governed by the
same rules that apply to all appeals. If, on the entire record, there is substantial evidence
to support the findings of the juvenile court, we uphold those findings. [Citation.] We do
not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or
evaluate the weight of the evidence. Rather, we draw all reasonable inferences in support
of the findings, view the record most favorably to the juvenile court’s order, and affirm
the order even if other evidence supports a contrary conclusion. [Citations.] The
4 We note that mother cites section 350, subdivision (c), to say that the juvenile court may dismiss a dependency petition when it finds the burden of proof has not been met. However, she does not actually argue that the court should have dismissed the petition pursuant to that statute. In any event, section 350, subdivision (c), is not relevant, since it applies “[a]t any hearing in which the probation department bears the burden of proof.” (§ 350, subd. (c).)
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appellant has the burden of showing the finding or order is not supported by substantial
evidence.” (In re Christopher L. (2006) 143 Cal.App.4th 1326, 1333.)5
B. The Evidence Did Not Support the Findings Under Section 300,
Subdivision (b)
Section 300, subdivision (b), provides that the juvenile court may adjudge a child
a dependent of the juvenile court when “[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 . . . (A) [t]he
failure or inability of the child’s parent or guardian to adequately supervise or protect the
child,” or by “ (D) [t]he inability of the parent or guardian to provide regular care for the
child due to the parent’s or guardian’s mental illness, developmental disability, or
substance abuse.” (§ 300, subd. (b)(1), italics added.) “The standard of proof required in
a section 300 dependency hearing is the preponderance of evidence.” (In re Basilio
T. (1992) 4 Cal.App.4th 155, 168.) “The statutory definition consists of three elements:
(1) neglectful conduct by the parent in one of the specified forms; (2) causation; and
(3) ‘serious physical harm or illness’ to the minor, or a ‘substantial risk’ of such harm or
illness.” (In re Rocco M. (1991) 1 Cal.App.4th 814, 820 (Rocco M.).)
The allegations sustained against mother under section 300, subdivision (b), were
that she had developmental delays and mental health concerns which “impair[ed] her
5 Mother agrees that a juvenile court’s findings are reviewed under the substantial evidence test and goes on to argue that the findings under section 300, subdivisions (b) and (d), were not supported by substantial evidence. However, at the same time, she claims that de novo review is required, stating “this Court reviews de novo a mistake of law on disputed facts.” However, mother’s first position is correct that “[a] substantial evidence standard of review applies.” (In re Lana S. (2012) 207 Cal.App.4th 94, 103.)
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ability to protect and safely care for the child.” However, no actual or substantial risk of
serious physical harm to the child was argued or even alleged in this case. (§ 300,
subd. (b)(1).) Moreover, although mother undisputedly had been diagnosed with
schizophrenia, bipolar disorder, and ADHD, CFS offered no evidence that these
issues/concerns caused, or created a substantial risk of causing, serious physical harm to
the child. (In re David M. (2005) 134 Cal.App.4th 822, 830 (David M.); see Rocco M.,
supra, 4 Cal.App.4th at p. 168.) Further, as mother points out, “the law is settled
that harm may not be presumed from the mere fact of a parent’s mental illness.” (In re
A.L. (2017) 18 Cal.App.5th 1044, 1050; David M., at p. 830.)
Thus, because there was no evidence that mother’s mental health issues created a
substantial risk of physical harm, we conclude there was insufficient evidence to support
the court’s findings under section 300, subdivision (b).
C. There Was Sufficient Evidence to Support the Court’s Jurisdiction Under
Section 300, Subdivision (d)
Mother also argues there was insufficient evidence to support the court’s true
finding under section 300, subdivision (d). We disagree.
Section 300, subdivision (d), provides that a child may be declared 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, as defined in Section 11165.1 of the Penal Code, by the
child’s parent or guardian . . . , 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.” Section 11165.1 equates sexual
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abuse with sexual assault, which it defines as including “[t]he intentional touching of the
genitals or intimate parts, including the breasts, genital area, groin, inner thighs, and
buttocks, or the clothing covering them, of a child, or of the perpetrator by a child, for
purposes of sexual arousal or gratification, except that it does not include acts which may
reasonably be construed to be normal caretaker responsibilities; interactions with, or
demonstrations of affection for, the child; or acts performed for a valid medical purpose.”
(§ 11165.1, subd. (b)(4).)
Penal Code section 11165.1 also defines sexual assault as including child