Kieshia E., In re

• Decision Date: 28 October 1993
• Docket Number: No. S029210,S029210
• Citation: 6 Cal.4th 68,859 P.2d 1290,23 Cal.Rptr.2d 775
• Court: California Supreme Court
• Parties: , 859 P.2d 1290 In re KIESHIA E., A Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. Cherie WILLIAMS, Defendant and Respondent; Derrick Chapple, Intervener and Respondent; Kieshia E., Appellant.

Page 775

23 Cal.Rptr.2d 775

6 Cal.4th 68, 859 P.2d 1290

In re KIESHIA E., A Person Coming Under the Juvenile Court Law.

SAN DIEGO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. Cherie WILLIAMS, Defendant and Respondent;

Derrick Chapple, Intervener and Respondent;

Kieshia E., Appellant.

No. S029210.

Supreme Court of California,

In Bank.

Oct. 28, 1993.

As Modified Nov. 23, 1993.

[6 Cal.4th 70] [859 P.2d 1291] Robert D. Frank, under appointment by the Supreme Court, Katherine A. Yesson and Frank, Ayers and Larsen, Del Mar, for appellant.

Lloyd M. Harmon, Jr., County Counsel, Susan Strom, Chief Deputy County Counsel, and Gary C. Seiser, Deputy County Counsel, for plaintiff and respondent.

Lynne G. McGinnis, San Diego, under appointment by the Supreme Court, for defendant and respondent.

Susan Cardine, under appointment by the Court of Appeal, and James G. Dunn, San Diego, for intervener and respondent.

BAXTER, Justice.

In In re B.G. (1974) 11 Cal.3d 679, 114 Cal.Rptr. 444, 523 P.2d 244, this court established an important rule of procedure for child custody and dependency cases. We held that one who is not the child's parent or legal custodian, but who has become a "de facto parent" by assuming that daily role over substantial time, may be privileged to participate as a party to the court proceedings. We must now decide whether a nonparent may attain this privilege in proceedings which have adjudged a minor to be a juvenile court dependent because of sexual or other serious physical abuse committed by the nonparent. We conclude that the answer is "no."

FACTS

Cherie Williams began living with Derrick Chapple in May 1989. Their daughter Desiree was born in November 1989. Kieshia E., born to Cherie and another man, Curtis E., in May 1987, was also living with the couple.

On June 11, 1991, Cherie brought Kieshia to the University of California at San Diego Medical Center (UCSD) for treatment of a persistent vaginal irritation. There she was examined by doctors and interviewed by hospital social workers.

Based on information thus obtained, the San Diego County Department of Social Services (County) filed a petition, dated June 13, 1991, alleging that Kieshia was a person within the jurisdiction of the juvenile court because Derrick had molested her "on or about and between 9-1-90 and 6-11-91," and she was in substantial danger of further abuse. (Welf. & Inst.Code, § 300, subd. (d).) ¹ A "sibling" petition At a June 14 detention hearing, the court appointed counsel for Cherie, Derrick (as the father of Desiree), both children, and Kieshia's father, Curtis. The court then found prima facie evidence that both minors were persons described in section 300, and that their immediate removal from Cherie's custody, pending a jurisdictional hearing, was necessary to avoid substantial danger to their physical health. (§ 319, subd. (a).)

[859 P.2d 1292] was contemporaneously filed on behalf of Desiree. (Id., subds. (d), (j).) ²

The court ordered interim custody to be with the County, specified liberal visitation rights for Cherie, and gave the County discretion to place the minors with Cherie under certain circumstances. Derrick was ordered to move from Cherie's residence and avoid contact with the children. The County placed Kieshia and Desiree in foster care.

The jurisdictional hearing was held on September 5. (§§ 345-356.) Cherie, Derrick, and Curtis were present with counsel. Appointed counsel for the minors was also in attendance. Without objection from any counsel, the County rested after offering in evidence its "Detention Information/Jurisdictional Facts/Readiness Report" dated June 14, 1991, and its social study dated July 16, 1991. (See §§ 281, 355; In re Malinda S. (1990) 51 Cal.3d 368, 272 Cal.Rptr. 787, 795 P.2d 1244.)

According to these documents, Kieshia was treated at various times between September 1990 and June 1991 for persistent vaginal irritation. On June 11, 1991, she complained again to Cherie that her "potty" (vagina) hurt. At UCSD, Dr. Dorfman found inflammation of the vaginal area, but no tears or discharge. The physical examination could neither confirm nor "rule out molest."

In Cherie's presence, Dr. Dorfman asked Kieshia about touching problems. Kieshia first said she could not "tell" but then stated that "Daddy" (her name for Derrick) touched her "potty" with his hands and penis. ³ Dr. Dorfman contacted the hospital's social worker, Linda Newsum.

While Dr. Dorfman was out of the room, Kieshia told Cherie that "Daddy choked me.... [H]e put his potty in my mouth and it felt like it was making another hole in my throat." Kieshia said it happened while Cherie was at the grocery store and at Derrick's "work." When Cherie asked if Derrick had threatened her, Kieshia replied that "[h]e said he'd cut my head off."

Newsum arrived and interviewed Kieshia privately. Kieshia said sometimes she did not like her "Daddy" because he touched her "potty" with his hand and also touched her with his "potty." This happened, according to Kieshia, in Cherie's bed, but Cherie did not know about it. Kieshia demonstrated her claims by unzipping the pants of an anatomically correct male doll and touching its penis. Kieshia indicated Derrick had molested her more than once, but she could provide no specific times.

Cherie confirmed to social workers that opportunities for molestation such as those described by Kieshia could have arisen. Cherie also told them she had to believe Kieshia's accusations because the "details [were] too much for her to have made up."

When interviewed by County workers about Kieshia's claims, Derrick responded, "You gonna believe a four-year-old over me?" He also suggested that perhaps the children should not return home because Derrick called several witnesses at the September 5 hearing. Cherie testified that Kieshia had made no previous accusations, and that Kieshia's vaginal problems began before Cherie met Derrick. Cherie said Derrick had sometimes undertaken the task of applying prescribed medicinal creams to the genital areas of both children. Kieshia had said once or twice that she did not want to stay home with "Daddy," but Cherie ascribed no sinister significance to this. Cherie admitted she was "stuck in the middle" between her loyalty to Derrick and her inclination to believe her daughter.

"the perpetrator may be in the [housing] complex."

Derrick's friend, sister, and mother each testified that Kieshia related well to Derrick as a father figure. These witnesses saw no evidence of tension or fear in the relationship. Kieshia never told them Derrick had molested her.

Testifying in his own behalf, Derrick denied abusing Kieshia. He conceded he was often home alone with the children. He also confirmed, as Cherie had suggested, that he applied medicinal creams to Kieshia's vaginal area on many occasions.

Following the hearing, the court found by a preponderance of evidence (§ 355) that the allegations of the petitions were true. ⁴ The court therefore concluded that Kieshia and Desiree were persons described by section 300.

On November 26, 1991, the date set for the dispositional hearing, Derrick applied to intervene as Kieshia's de facto parent. The court deferred the application and proceeded with disposition.

According to the additional information report considered by the court (see § 358, subd. (b)), Derrick's psychological tests suggested "patterns seen in known child molesters." The report also indicated that Kieshia could distinguish between Derrick and her real father, and that she wanted visits with Curtis.

The court adjudicated the children dependents of the juvenile court and placed them with Cherie. Cherie and Curtis were directed to participate in a family reunification plan with respect to Kieshia. Cherie and Derrick were given similar orders with respect to Desiree. (§§ 360, subd. (c), 361.3, 361.5.)

Derrick's de facto parenthood hearing took place on December 19, 1991, and January 10, 1992. Cherie and others testified that Derrick had provided parental care to Kieshia and that they had a positive relationship akin to parent and child.

Clinical psychologist Raymond Murphy testified about how a child bonds with a "psychological" parent. Dr. Murphy indicated that molestation by such a person might or might not damage the child or destroy the bond. While victim and abuser should be separated until the perpetrator "stabilizes" in therapy, Dr. Murphy said, the ultimate goal should be reunification, especially if the child has been separated from siblings.

Kieshia's therapist and social worker testified that their conversations with her after the molestation indicated she distrusted Derrick, understood who her real father was, did not see Derrick in that role, was "confused" and "hurt" by what Derrick had done, and did not want contact with him. Similar information was provided in an additional information report prepared by the County.

At the conclusion of the hearing, the court ruled that Derrick had established a bond of psychological parenthood with Kieshia, and that there was insufficient evidence this bond had been severed by the molestation. Accordingly, the court granted Derrick's application for party status in Kieshia's case as her de facto parent.

Kieshia appealed this order, and the Court of Appeal affirmed. We granted review to determine whether a child abuser may ever intervene as the victim's de facto parent in proceedings which arose from the

[859 P.2d 1294] abuse. We now answer that question in the negative. ⁵

DISCUSSION

In In re B.G., supra, 11 Cal.3d 679, 114 Cal.Rptr. 444, 523 P.2d 244, the children of a Czechoslovakian refugee were declared dependent and placed in foster care after the death of their father. Over two years later, their mother, who was still in Czechoslovakia, learned of the dependency proceedings and intervened to obtain the children's return. The juvenile court allowed the foster...