San Bernardino Cnty. Children & Family Servs. v. L.O. (In re L.O.)

• Decision Date: 29 July 2021
• Docket Number: E075921
• Citation: San Bernardino Cnty. Children & Family Servs. v. L.O. (In re L.O.), 67 Cal.App.5th 227, 281 Cal.Rptr.3d 900 (Cal. App. 2021)
• Parties: IN RE L.O., a Person Coming Under the Juvenile Court Law. San Bernardino County Children and Family Services, Plaintiff and Respondent, v. L.O., Defendant and Appellant.
• Court: California Court of Appeals

67 Cal.App.5th 227

281 Cal.Rptr.3d 900

IN RE L.O., a Person Coming Under the Juvenile Court Law.

San Bernardino County Children and Family Services, Plaintiff and Respondent,

v.L.O., Defendant and Appellant.

E075921

Court of Appeal, Fourth District, Division 2, California.

Filed July 29, 2021

Elizabeth A. Klippi, Los Angeles, under appointment by the Court of Appeal, for Defendant and Appellant.

Michelle D. Blakemore, County Counsel, and Jodi L. Doucette, Deputy County Counsel, for Plaintiff and Respondent.

OPINION

MILLER J.

L.O. (Father) and Z.T. (Mother) are the parents of six-year-old L.L.O. (L.), a boy born in December 2014. Father appeals from the juvenile court's October 7, 2020 jurisdictional and dispositional orders adjudicating L. a dependent of the court ( Welf. & Inst. Code,¹ § 300, subds. (b) & (d) ) and removing L. from parental custody ( § 361, subd. (c)(1) ).² Father contends that there was insufficient evidence to support the juvenile court's findings sustaining the petition against him under section 300, subdivisions (b) and (d) and the order removing L. from his custody. We find substantial evidence supports the juvenile court's finding under subdivision (b) of section 300 and the order removing L. from Father's custody. We, however, agree insufficient evidence supports the court's finding under section 300, subdivision (d), and modify the order to strike the allegation under that subdivision. The order is affirmed in all other respects.

FACTUAL AND PROCEDURAL BACKGROUND

In June 2020, the San Bernardino County Children and Family and Services (CFS) received a referral alleging physical abuse, emotional abuse, and general neglect of L., after L. reported to Father that Mother's boyfriend, G.B., had physically abused him. L. had marks and bruises on his lower back, right eye, and buttocks, and a cut on the bottom of his left foot. The parents shared joint custody of L. and a court order was issued to not hit L. Father explained that he, Mother, and G.B. had been in a physical confrontation where restraining orders were sought. L. was born with a condition called Fanconi anemia and was small for his age and vulnerable to illnesses and diseases. L. also disclosed that G.B. hit Mother too, and that G.B. often showed L. his guns.

When law enforcement responded to the referral, officers observed the various marks and bruises on L. and took pictures. The officers also took pictures of belt loop marks on L.'s shins, circular bruises on the side of his face, and bruising on his buttocks. Father informed the officers that this was not the first time L. had returned to his home with suspicious bruises, but it was the first time he had reported it to CFS. Father also stated that L. displayed sexualized behaviors upon return from Mother's home, such as humping, moaning, and saying " ‘oh yeah baby.’ " Father denied that such sexual conduct was picked up from his home. Father admitted to using marijuana a year ago and drinking on occasion.

L. stated that Mother's boyfriend G.B. had hit him with a sandal and showed the social worker his marks and bruises. During the interview, L. had acted out the sexual behavior described above, humping things and kissing the mirror and walls for an extended period of time. L. would not disclose where he learned the sexualized behavior. He was also cussing, saying " ‘F _ _ k. Shit. Bitch. N _ _ _ a.’ " L. described Mother getting beat up by G.B. When asked if someone had told him not to talk to anyone about his bruising and marks, L. stated that "[M]om said she would hit me."

Mother generally blamed Father for L.'s injuries and noted that one of the injuries to L.'s eye had occurred at a party when he ran into a table. Mother claimed that when she picked L. up from Father's home, she saw bruising and marks on L.'s body "all the time." Mother denied being beaten by her boyfriend. She noted that L.'s cussing was from an "app" Father had on his phone. She also denied engaging in sexual activity in front of L. and claimed L. had described Father and his girlfriend engaging in sexual acts. Mother had sought a restraining order against Father following an altercation between Father and G.B. during which L. was present in December 2019, but it was denied due to insufficient evidence.

L. later informed CFS that he had seen his father and girlfriend having sex and that he was mimicking what they did. Due to conflicting stories and alleged issues at both parents' homes, CFS removed L. from the parents' custody.

On June 22, 2020, CFS filed a petition on behalf of L. pursuant to section 300, subdivisions (a) (serious risk of harm), (b) (failure to protect), and (d) (sexual abuse). As to Father, the petition alleged: (1) L. was at substantial risk of serious harm due to Father's failure to adequately protect L. from physical harm (a-1); (2) Father had failed to protect L. from physical abuse by Mother and her boyfriend (b-3); (3) Father had a substance abuse problem (b-5); (4) Father had a history of engaging in domestic violence with his partners and that such ongoing violence in the home placed L. at risk of physical and emotional harm (b-6); and (5) Father had exposed L. to inappropriate sexualized behaviors and L. was acting out in a sexualized manner, thereby placing L. at risk of abuse and/or neglect (d-10).

At the detention hearing on June 23, 2020, Father appeared, denied the allegations, and submitted on detention. Father submitted on CFS's recommendations for placement of L. with the paternal grandmother (PGM). The juvenile court formally removed L. from parental custody, maintained L. in his PGM's home, provided the parents with supervised visitation, and ordered the parents to drug test. The court also ordered L. to be assessed at the Children's Assessment Center (CAC) and ordered no contact between L. and Mother's boyfriend G.B.

CFS interviewed the parents again before the jurisdictional hearing. Father stated that he did not have a history of domestic violence, but noted that Mother had " ‘socked’ " him and " ‘scratched [him] up pretty good’ " about three to four years ago. He reported four or five incidents of domestic violence with the last incident occurring three years ago. Father also admitted that L. had been a witness to " ‘lots of arguing and yes, three ... times when it got physical.’ " Father did not believe those incidents were domestic violence. Father admitted that L. shared a room with him and his girlfriend, but denied having sexual relations in front of L. Father noted that L.'s display of sexualized behavior was " ‘almost as if he's watched porn.’ " Father also stated he had not used marijuana for a month and a half but tested positive for marijuana when ordered to drug test by the court at the detention hearing.

When Mother was interviewed, she described the physical altercation in December 2019 involving Father and G.B. She noted that while L. was in her arms, she tried to stop the altercation between Father and G.B. She admitted that she and Father had been in other verbal and physical fights involving slapping. Mother believed that L. learned the sexualized behavior from Father, as L. says " ‘baby’ " when sexually acting out and Father calls his girlfriend " ‘[b]aby.’ " Mother explained that L. showed her what Father's girlfriend does to Father. She thus believed L.'s sexual conduct was learned at Father's house, especially since L. displayed behavior similar to real-life sexual acts.

The social worker interviewed L. over Facetime due to concerns for his special medical condition and susceptibility to harm from COVID-19. Without prompting while on the phone, L. blurted out that Mother's boyfriend " ‘hurted’ " him and " ‘squished’ " him hard. He also stated that Mother "got really hit." At one point, he puckered his lips, made kissing sounds, and said " ‘[o]h baby.’ "

PGM reported that she saw L. dancing sexually and acting out sexual behavior. She opined that whatever L. was doing sexually, " ‘he saw it.’ " PGM also stated that she had to watch L. carefully because he acted out, cussed, and tried to choke his six-year-old cousin on two occasions. PGM further asserted L. informed her that Mother's boyfriend had hit him with a belt while Mother was watching, and told L. if he told, he would hit him harder.

Because drug use by both parents did not rise to a concerning level and no evidence existed of mental illness with Mother, CFS requested dismissal of those allegations (b-5, b-8, and b-9). In addition, because Father had recently tried to get custody of L. by reporting the physical abuse to the Family Law Court, and because he had reported the current abuse to CFS, CFS dismissed the willful failure to protect the physical harm allegations involving Father (a-1 and b-3). Prior to the jurisdictional hearing, CFS thus recommended dismissal of allegations a-1, b-3, and b-5 as to Father and allegations b-8 and b-9 as to Mother. The remaining allegations pertaining to Father's conduct therefore included two allegations, namely b-6 (Father's history of engaging in domestic violence) and d-10 (Father exposing L. to inappropriate sexualized behaviors).³

Both parents essentially blamed the other parent and denied any wrongdoing themselves, while acknowledging L.'s injuries and sexualized behavior existed. CFS thus recommended L. be removed from parental custody and be maintained with PGM while the parents received reunification services until it could be determined L. was safe from sexual misconduct, domestic violence, and physical abuse.

The scheduled July 14, 2020 jurisdictional/dispositional hearing was continued to obtain the CAC report, which had not yet been completed. By August 11, 2020, the CAC report was completed, but without L.'s interview as he refused to go into the interview room. PGM continued to describe concerning behaviors by L., such as cussing, touching/patting his penis in front of people, two attempts to choke his six-year-old cousin, and not asking...