L.A. Cnty. Dep't of Children & Family Servs. v. Superior Court of L.A. Cnty. (In re K.R.)
| Decision Date | 25 April 2013 |
| Docket Number | No. B247519,B247519 |
| Parties | In the Matter of K.R., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; A.C. and V.R., Real Parties in Interest. |
| Court | California Court of Appeals Court of Appeals |
CERTIFIED FOR PUBLICATION
ORIGINAL PROCEEDING. Petition for Extraordinary Writ. Mark A. Borenstein, Juvenile Court Judge. Petition granted.
John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, David Saft, Principal Deputy County Counsel, Kimberly A . Roura, Senior Associate County Counsel, for Petitioner.
Law Office of Alex Iglesias, Sonia Salazar, for Real Party in Interest, Father V.R.
Law Office of Marlene Furth, Jessica Morgan, for Real Party in Interest, Mother A.C.
Petitioner Department of Family and Children's Services (DCFS) seeks a writ of mandate to set aside respondent juvenile court's order dismissing a petition under Welfare and Institutions Code1 section 300, subdivisions (a), (b) and (j) as to 10-year-old female K.R., despite the respondent's finding that real party in interest, her father V.R., sexually abused her elder half sister, N.C., for five years, including at the same age that K.R. is now. Because we hold that the trial court erred in dismissing the petition, we grant the petition for writ of mandate.
In 2012, DCFS received a referral alleging past sexual abuse of N.C. by father. N.C. reported that father had sexually abused her by inappropriate touching when she was about seven or eight years old until she was about 12 years old—which was about five or six years prior to the filing of the petition. Father would tell N.C., N.C.'s mother started dating father when N.C. was four or five years old, and father moved in with them. In 2002, when N.C. was about seven or eight years old, K.R. was born to mother and father. It was around that time, father's sexual molestation of N.C. began.
The abuse occurred at night while mother was at work and N.C. was alone with father. N.C.'s bed was in the living room, and father would sit next to her on the bed watching television and put his hand inside her pants, touching her vagina. Father repeatedly orally copulated N.C. When these events occurred, K.R. was on the premises, as was a babysitter. On one occasion, K.R. may have seen the abuse taking place.
When N.C. was about 12 years old, she told her mother about the sexual molestation. According to N.C., mother tried to expel father from the house, but fatherthreatened to take K.R. away. Mother did put locks on doors to stop the abuse. N.C. has now expressed concern that father would sexually abuse K.R., a physically maturing child; N.C. noted that father would "shower or bathe" K.R., which N.C. considers "weird."
DCFS filed a section 300 petition on behalf of N.C. and K.R., asserting counts under section 300, subdivisions (b), (d) and (j), and setting forth the allegations of father's sexual abuse of N.C. The juvenile court found a prima facie case and ordered the children removed from father and released to mother. The juvenile court ordered monitored visits and telephone calls for father with K.R., but no contact between father and N.C.
After initial denials, mother admitted that N.C. disclosed the sexual abuse to her when N.C. was 13 years old. Mother said she put locks on the doors, took father's keys to the rooms away, and was more vigilant about not leaving the children alone with father if the babysitter was not there. Mother also said she remained with father after N.C.'s disclosure because of economic reasons, as father paid half the rent and other costs.
DCFS recommended that father attend parenting and sexual abuse treatment classes, and that mother attend parenting and sexual abuse awareness classes for nonoffending parents. In a last-minute report for the March 12, 2013, hearing, DCFS reported that father enrolled in a 52-week program for sex offenders in Fresno, California, in which city he worked. Mother was in a sexual abuse awareness group through the family preservation program.
Because N.C. had turned 18 in 2013, DCFS recommended she be dismissed from the section 300 petition. DCFS further recommended that the court take jurisdiction over K.R., and monitor father's progress and the risk to K.R. as father began the program for sexual abuse perpetrators. DCFS continued helping mother with services for K.R. and with funds for the family's housing.
At the adjudication hearing, N.C. testified about the father's sexual abuse of her. Father denied the sexual abuse. K.R. testified that father never inappropriately touched her and that she liked father. Mother testified that her relationship with father beganabout 14 years ago and ended about March 2012 because father had harmed N.C. She testified she was informed about the abuse years earlier and had put "locks on the door to protect" N.C., but later testified that she did not know about the abuse until March of 2012.
The juvenile court found by a preponderance of the evidence that father sexually abused N.C., father's denials were not "credible," N.C.'s demeanor in the forensic interview supported her credibility, K.R. and a babysitter were in the home at least some of the time that the abuse of N.C. took place, and N.C. had told mother about the abuse. The juvenile court dismissed N.C. from the section 300 petition because she had turned 18 and found that K.R., "beautiful as she is," was differently situated from N.C. because K.R. was father's biological daughter and his sexual abuse of N.C. did not put K.R. at risk for sexual abuse. The juvenile court also observed that the last incident of sexual abuse of N.C. occurred six years earlier. Consequently, the juvenile court dismissed the petition in its entirety.
DCFS promptly filed a petition for a writ of mandate contending that the respondent juvenile court erred in dismissing the section 300 petition as to K.R. This court immediately stayed respondent juvenile court's order dismissing the petition as to K.R, and directed that the detention and visitation orders be continued pending further order of this court. This court then issued an alternative writ of mandate directing the respondent juvenile court to confer with the parties and vacate its March 13, 2013, order dismissing the petition as to K.R., or alternatively to show cause why a peremptory writ ordering respondent to do so should not issue.
On April 4, 2013, the respondent juvenile court held the hearing directed by the writ and filed a return. The juvenile court, in explaining its reasons for not changing its prior decision, said that without new evidence, DCFS did not establish by a preponderance of the evidence that K.R. was at substantial risk of future harm from father. Accordingly, the show cause proceeding went forward before this court.
A juvenile court's jurisdictional findings are reviewed for substantial evidence. (In re David M. (2005) 134 Cal.App.4th 822, 828.) Generally, (In re David M., supra, 134 Cal.App.4th at p. 828.) DCFS has "the burden to prove the 'jurisdictional facts by a preponderance of the evidence.'" (In re Drake M. (2012) 211 Cal.App.4th 754, 768; see In re D.C. (2011) 195 Cal.App.4th 1010, 1014.)
A court has said that when the trier of fact has concluded that the party with the burden of proof did not carry the burden and that party appeals, "it is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment. (In re I.W. (2009) 180 Cal.App.4th 1517, 1528.) (Id. at p. 1528.) Nevertheless, courts in this situation have still employed the test of whether there is substantial evidence that supports the determination of the trier of fact. (See In re Roberto C. (2012) 209 Cal.App.4th 1241, 1254.) Regardless of the applicable standard of review, we conclude that the juvenile court erred.
Jurisdiction over a child under section 300 may be based on there being "a substantial risk that a child will suffer[] serious physical harm or illness, as a result of the failure or inability of his or her parent . . . to adequately supervise or protect the child" (subd. (b)); if "there is a substantial risk that the child will be sexually abused, as defined by section 11165.1 of the Penal Code,2 by his or her parent or guardian or a member of his or her household" (su...
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