K. v. Brandon K. (In re Ka)

• Decision Date: 09 October 2014
• Docket Number: B253542
• Court: California Court of Appeals Court of Appeals
• Parties: In re KA. K., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. BRANDON K., Defendant and Appellant.

In re KA. K., a Person Coming Under the Juvenile Court Law.LOS ANGELES COUNTY DEPARTMENT OF CHILDRENAND FAMILY SERVICES, Plaintiff and Respondent, v. BRANDON K., Defendant and Appellant.

B253542

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE

October 9, 2014

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. CK99838)

APPEAL from orders of the Superior Court of Los Angeles County, Emma Castro, Commissioner. Affirmed.

Catherine C. Czar, under appointment by the Court of Appeal, for Defendant and Appellant.

John F. Krattli, County Counsel, Dawn R. Harrison, Assistant County Counsel, and Jeanette Cauble, Deputy County Counsel for Plaintiff and Respondent.

I. INTRODUCTION

The father, Brandon K., appeals from the juvenile court's November 8, 2013 dispositional orders as to the child, Ka. K. The father is Ka.'s biological father. The father challenges: Commissioner Emma Castro's authority to make jurisdictional and dispositional findings and orders in this case; the removal order because it was not supported by substantial evidence; and the juvenile court's monitored visitation order. We affirm the disposition orders.

II. PROCEDURAL HISTORY

On June 26, 2013, the Los Angeles County Department of Children and Family Services (the department) filed a petition on behalf of 14-year old H.P., 11-year old Nathan P. and 16-month old Ka. The petition alleges the father sexually abused his stepdaughter H.P. The mother did not believe the father sexually abused H.P. The father's sexual abuse and the mother's failure to protect H.P. endangered the youngster and placed the two other children at risk of harm.

At the June 26, 2013 detention hearing, H.P. was detained and placed with the maternal grandmother. Nathan and Ka. were released to the mother. The father was granted monitored visits with Ka. with the department having discretion to liberalize visits.

On November 8, 2013, the juvenile court sustained the allegations as amended under Welfare and Institutions Code¹ section 300, subdivisions (b), (d) and (j). The juvenile court sustained counts b-1, d-1 and j-1: "On 06/16/2013, and on numerous prior occasions, . . . the father of the child Ka., sexually abused the child [H.P.]. The [K.] father repeatedly sodomized the child by placing the [K.] father's penis in the child's anus, inflicting pain to the child. The [K.] father fondled and digitally penetrated thechild's anus. The [K.] father fondled the child's breasts and vagina. The [K.] father forced the child to masturbate the [K.] father's penis. The [K.] father placed [his] head on the child's lap and rubbed [his] head against the child's vagina. The [K.] father lay on top of the child. . . . The mother does not believe the [K.] father's sexual abuse of the child. Such sexual abuse of the child [H.P.] by the [K.] father and the mother's failure to protect the child endangers the child's physical health, safety and well-being and places [the] child and the child's siblings, Nathan [P.] and Ka. [K.], at risk of harm." In addition, the juvenile court amended the petition to conform to proof by sustaining an added count b-2, "The child H.P. has suffered serious physical harm as a result of [the] failure or inability of her mother to adequately supervise or protect [H.P.]."

The juvenile court removed Ka. from the father's custody. Ka. was placed with the mother. The juvenile court found by clear and convincing evidence pursuant to section 361 that there was a substantial danger to Ka. if he was returned to the father. The juvenile court stated Ka.'s emotional well-being would be affected unless the youngster was removed from the father's custody and care. The father was ordered to: attend individual therapy with a licensed therapist with child sexual abuse experience; participate in group sexual abuse counseling; and participate in individual counseling with the mother.

The father was not allowed contact with H.P. until further order from the juvenile court. The father was allowed monitored contact with Nathan with a department-approved monitor. Finally, the father was granted monitored visits with Ka. twice a week for two hours per visit.

III. EVIDENCE

A. Detention Report

The June 26, 2013 detention report was prepared by children's social worker Tiffani Walton. On June 21, 2013, Ms. Walton received a referral from the AntelopeValley Hospital alleging H.P. had been sexually abused by the father, who is her stepfather. H.P. had been taken to the hospital because of abdominal pain. H.P. disclosed the last sexual assault incident occurred three weeks earlier. H.P. stated once while the stepfather was performing anal sex, her brother Nathan said, "Brandon why are you moving the bed so much?" The caller stated H.P. was "scared" of her stepfather and afraid he would go to jail. The mother was informed about H.P.'s allegations but did not believe them. A deputy sheriff had interviewed all the parties, including H.P. and the father, but no arrest was made at the time. However, a deputy sheriff advised the father not to have any contact with the mother, H.P., Nathan and Ka.

After the referral call, Ms. Walton contacted Deputy Monica Alburez of the Los Angeles County Sheriff's Department. Deputy Alburez interviewed H.P. During the interview, H.P. disclosed the father had penetrated her anally and fondled her. Deputy Alburez reported the father denied all sexual abuse allegations.

Deputy Alburez 's June 21, 2013 incident report was attached to the detention report. According to the incident report, H.P. stated the father started touching her inappropriately about one and one-half years ago. The father would lay his head on H.P.'s lap while she was sitting on the couch. He would fondle her breasts and rub her vagina under her shorts. Several times, the father would have H.P. "jack him off" as well. H.P. stated about six months ago, the father began having anal intercourse with her in his bedroom while watching television. H.P. said this happened 15 to 20 times. Her brother Nathan was present but never knew it happened. The father would pretend to be asleep so Nathan would not suspect anything. At times, Nathan would tell the father to stop moving the bed. H.P. stated she was afraid to say anything because the father was the sole provider and the family would lose everything. H.P. did not tell the mother about the sexual abuse. H.P. did not think the mother suspected anything.

The detention report also included a forensic medical report from Sylvia Fink, who is a registered nurse at Antelope Valley Hospital. Ms. Fink conducted a forensic examination of H.P. as a member of the hospital's sexual assault response team on June 21, 2013. Ms. Fink reported H.P. had the following anal injuries: multiple clefts aroundthe anus; reddened perianal tissue with some white spots; and possible scar tissue along the rectum with red linear marks. Ms. Fink was present during H.P.'s interview with Deputy Alburez. During that interview, H.P. said her stepfather began touching her about one and a half years ago. H.P. stated the stepfather had anal sex with her about six months ago. Nathan was present about half of the times she had anal sex with the stepfather. H.P. stated the stepfather last touched her on Father's Day but there was no intercourse. Ms. Fink observed H.P. cried during the interview. H.P. asked if her stepfather would be okay. H.P. indicated she did not want him to get in trouble because he was the provider. H.P. stated, "If he goes we will lose everything."

Ms. Walton interviewed H.P. at Antelope Valley Hospital on June 21, 2013. H.P. reported the sexual abuse started a year ago. On one occasion, the father put his head in H.P.'s lap near her private area. The father gradually began touching her, giving her neck and back massages and fondling her private areas. H.P. did not resist or report it to anyone. About 8 to 10 months ago, the father made H.P. masturbate him. About 6 to 8 months ago, the father began engaging in anal sex with H.P. She denied the father forced her to have sex with him or touch him. In addition, H.P. denied the father ever threatened her. H.P. stated her mother did not know about the abuse because she was not present when it occurred. H.P. stated she knew what her stepfather did was wrong but she cared for him deeply and did not want to get him in trouble. She wanted to continue having a relationship with her stepfather because he was the only person she considered to be a father.

Ms. Walton also interviewed the mother at Antelope Valley Hospital. The mother was distraught by the allegations. But she doubted the allegations were true because there was not enough physical evidence to support them. The mother could not think of when the father and H.P. were left alone. According to Ms. Walton, "The mother] stated she thought [H.P.] made the allegations because she was upset with her and [the father.]" H.P. did not like the new rules that were imposed after the father moved into the home about two years ago. About a year ago, H.P. had tried to get the two adults to hit her so she could report the abuse to the department. They did not hit her. The mother reportedH.P. displayed some sexualized behavior. On one occasion, the mother found H.P. had been searching and looking at online pornography sites. On another occasion, the mother found some letters in which H.P. had been writing to an unknown friend discussing sexual activity. The mother did not address these concerns with H.P. H.P. never said anyone had touched her inappropriately including the father.

Ms. Walton interviewed Nathan on June 24, 2013. Nathan denied any abuse...