Los Angeles County Department of Children & Family Services v. Ruben E.
Los Angeles County Department of Children & Family Services v. Ruben E.
Opinion of the Court
Opinion
Ruben E. (Father) appeals following the juvenile’s court’s adjudication and disposition of a petition alleging he had molested his oldest daughter. That child, Rubisela E., was removed from the home; the other five children in the family were also found to be within the jurisdiction of the juvenile court but were allowed to remain in the home of their mother, with appellant Father allowed monitored visitation. He contends that substantial evidence does not support the juvenile court’s decision and that the department has not proved violation of Welfare and Institutions Code section 300, subdivisions (b), (c), (d), and (j). We shall reverse jurisdiction as to the sons, modify the jurisdictional order and otherwise affirm.
Procedural History and Statement of Facts
The petition
The petition in this matter was filed June 21, 1999, alleging that the six minor children of Odulia (Mother) and Father came within the jurisdiction of
Proceedings prior to adjudication hearing
The alleged incident of Father asking for oral copulation happened in the middle of the night on June 17, 1999. The matter came to the attention of the authorities when at school the day of the incident, Rubisela reported the incident to a friend and then to a teacher. A counselor contacted by the teacher reported the incident to the police, who then interviewed Rubisela.
The police report upon detaining the children gave a brief summary of the alleged offense, stating that the suspect is the victim’s Father, who awoke her in the middle of the night. She discovered her shorts pulled down, but her underwear was still on. Father stated to the victim in Spanish “suck right here.”
The report related the interview with the victim at Rubisela’s school. According to the report, she told them that about 1:00 a.m. on June 17, 1999, she was “sleeping on living room floor while her parents slept on a bed in the living room as well. Vict awoke to an unknown noise and stood up to investigate [noise], Vict lost her balance due to the fact her shorts were down just above her knees. Vict added that she was wearing an additional pair of shorts underneath and was never nude. While vict was on her knees, her head was waist level of [her] father . . . , she observed Susp standing appox 3’ away wearing only a pair of shorts. Susp stated to Vict in Spanish while facing her, ‘Suck right here.’ Vict immediately became upset, began to cry and looked away, Sus then replied, ‘Are you scared?’, Vict nodded her head yes, Susp began apologizing and kissed her on the forehead goodnight and walked into the kitchen without further incident. Vict could not clearly see due to the dark and is unaware if Susp was pointing to any specific area on
The initial assessment reported that Rubisela made the following statement:
“[O]n 6-17-99 about 1:00 a.m. she was awakened by a noise and noticed Father was right beside her with his arm around her neck. Minor indicated she then noticed that her short[s] were down and asked Father what he was doing. Minor stated Father told her to ‘suck his penis.’ Victim stated she kicked and tried to get up. However she fell because her underpants were up to her knees. Rubisela said she confronted her father with the fact 'I am your daughter you are not suppose to do this to me’. Minor further stated she told her father she would tell her mother and call the police. According to victim once this was said Father left the room and told her to go back to sleep. Minor stated she did not tell her mother immediately because Mother was not home she works at night.
“Rubisela said she did not tell her mother in the morning because she had to go to school. The Minor explained that she and her sibling sleep on the floor. She indicated there is only two beds where her parents sleep and one bed where he[r] older brother sleeps. When the incident happened Father was next to her on the floor where she was sleeping. She indicated her sister was sleeping also on the floor but she did not wake up. Minor denied any further incident and indicated this was an isolated one.”
Siblings Yesenia, Renau and Gustavo denied any sexual or other abuse by their parents and stated that they did not see anything the day of the incident. Those siblings all wanted to return to the home of parents. Rubisela was afraid for her parents and did not want her father to be angry with her.
Mother was interviewed and said she was not aware of the abuse and it is “impossible” that her husband could do such a thing and her daughter must
The parties appeared June 22, 1999. The juvenile court found a prima facie case for detaining the minors and showing they were persons described by the alleged subdivisions. Rubisela was detained in shelter care and was to enroll in individual counseling.
Rubisela, her parents, and some of her siblings were interviewed for the Department’s jurisdictional/disposition hearing report for August 17, 1999.
Mother, interviewed in person, stated she did not believe the allegations and thought Rubisela was lying. Mother denied any knowledge of the sexual
Siblings Renau and Yesenia also reported they had never seen Father sexually molest Rubisela or any of the children, there was no domestic abuse between their parents and neither parent hit them. Renau believed Rubisela was lying; Rubisela told him she was screaming the day of the incident, but he did not hear anything.
Interviewed on August 11, 1999, Rubisela told investigator Martinez that she was sleeping in the bedroom with sister Yesenia and brother Marvin while her mother was working late the night of June 17, 1999. She was awakened by a noise about 1:00 a.m. (which she knew because she saw the time on the stereo clock.) Rubisela stood up to go to the bathroom and tripped on a pillow. Then her Father came over and attempted to help her get up. As she felt him kneeling next to her, Father told her “Chúpame aqui” (Suck me here). She told him “I am your daughter and you are not suppose to talk to me this way.” He said he was sorry and asked her to please forgive him. She was scared. Her Father told her to go back to sleep and he walked out of the room. When asked, she denied that Father had ever touched her breast, vagina or buttocks, or asked her to touch his penis. Rather, contrary to testimony she would later give, this was the first time Father had ever attempted to sexually molest her or made a sexual comment to her.
Rubisela reported the room was too dark to see anything and denied she saw his penis. She added that she was sleeping in her tight jean shorts and
She admitted being in two fights at school, being suspended once, and completing community service as ordered by the criminal court. Reporting that she and Father have had a good relationship, she denied she was making up allegations of sexual abuse to get back at her parents for not letting her go out with friends. In addition, she reported never telling Mother about Father’s sexual comment until after the police were contacted.
Two of Rubisela’s siblings, Renau and Yesenia, were interviewed on August 10, 1999. Renau told the investigator that Rubisela was lying about the allegations, that he and brothers Gustavo and Jorge slept in the living room and heard nothing. He denied that Father sexually molested any of the siblings. Moreover, he denied any physical abuse and reported that Father and Rubisela had a “good relationship.”
Yesenia also denied any sexual molestation of herself or any sibling by Father. Rubisela told her and Mother after the detention that Rubisela saw Father standing over her on several occasions and that, when Rubisela would discover him and would ask what he was doing, he would just walk away. Yesenia has not awakened at night to find Father standing over either her or Rubisela. Yesenia reported that Rubisela “gets into a lot of trouble at school and at home” and argues with Mother about not wanting to do her chores.
The Department stated that Rubisela admitted to behavior problems and appeared to recognize her negative behavior, which were “at a stage where the Minor can get help in dealing with her own issues.” In addition, Rubisela wanted to return home to her mother but had reservations because Mother does not believe her.
The medical examination of Rubisela conducted on June 21, 1999, revealed that her hymen was attenuated at 7:00 and 5:00 o’clock.
Rubisela’s foster mother reported that during a weekly visit with Mother and the siblings, the foster mother overheard Mother accusing Rubisela of “making up the allegations because of her past behavior.” The foster mother reminded Mother of the court orders, and Mother then stopped the conversation. Rubisela was attending counseling.
In an addendum report filed August 17, 1999, the CSW (children’s social worker) reported that Father was living with his brother, but in an apartment only three or four apartment complexes from the family’s.
At the hearing on August 17, 1999, the juvenile court set the matter for adjudication on October 5, 1999, after the parties were unable to reach an agreement in mediation. Rubisela was to remain detained in shelter care, with her siblings released to Mother. Rubisela was not transported to court on October 5, so the matter was continued to October 25. Visits with Rubisela were to be with her consent.
Adjudication hearing
The adjudication hearing was to begin October 25, 1999, but was continued to November 22, 1999, because the court was engaged in another trial. Prior to that hearing, Rubisela’s therapist wrote a letter disclosing to the department the minor’s “idea of committing suicide in case she would be sent home by Court. Minor stated that she is afraid and does not want to go back to her home. Minor disclosed that there were-more than one incident of molestation. Minor disclosed [she had] been molested by her father on ‘more than five opportunities and less than ten.’ Minor seems to be genuinely concerned about her reunification with family. Minor stated that she could not feel safe with her family.” The letter was delivered the day of the hearing. At the October 25 hearing, Rubisela’s counsel announced that Rubisela was “adamant” she wanted to remain in foster placement and not return home. She was afraid of her mother because “she feels that she will not be protected, and that he can abuse her again.”
Rubisela’s therapist, Irma Seilicovich, was an intern working under licensed therapists. She had seen Rubisela on a weekly basis since July 1999. The child told her that she had been molested by Father the night before reporting it at school. During the night, Rubisela found herself with her pants down, woke up and fell to the floor while trying to run away. She was
Sometime after the last court date, the minor revealed other incidents involving sexual misconduct with her father, i.e., she was touched on her breast area, vaginal area, and on her buttocks and legs between five and 10 times.
When the therapist talked to Mother about the situation, Mother said she had been working that night so had not seen anything “so she needs to have
Yesenia, whom the therapist also saw as a patient, did not report abuse by her Mother or Father. Yesenia verified that Rubisela was crying when she told Yesenia about the incident with Father.
Rubisela testified on her birthday. Her counsel, noting she had been in tears the day before during the therapist’s testimony, asked to have her testimony in chambers, which was granted over Father’s objection. The incident came to the attention of the authorities when Rubisela talked to a friend, who went with her to a teacher, who called a counselor. The counselor called an emergency social worker, who came to the school and interviewed the minor.
She described the living arrangements, with her older brothers sleeping in the living room and her youngest brother, along with her sister and parents, in the bedroom. She and her sister slept on the floor, while Marvin slept in
According to Rubisela, the year she was 13 years old her Father had touched her more than five and less than 10 times before. Each time he approached her from the back while she was lying on the floor asleep; she was never facing him. By the third time, he touched her breasts, groin part or vagina, and butt. He touched her vagina with his fingers at night while she was wearing clothes; others in the bedroom were asleep. It was dark and she did not know if he was dressed or not. The fourth time involved the same touching; the fifth time he did not touch her breasts. She thinks he touched her under and over the jeans, both only at the time of the final incident did her jeans come down to her ankles. The final time was the one she reported at school. Her Mother was home the next morning when Rubisela and her brother left for school, but she never told her mother about the touchings because “I didn’t trust her that much.” She was not afraid of her Mother, but was afraid of Father and that he might hurt her.
Rubisela admitted having trouble in school, such as fighting and bad grades. Her parents got mad at her for both. In turn, she got upset because her parents were mad at her. She was also angry because they would never let her go out with friends and they threatened to send her to Mexico. She was also upset when her Father embarrassed her in front of the apartment manager and the man who kissed her. However, she denied lying in court or trying to get back at them or hurt either of them. She conceded that neither parent had physically abused her, aside from her Father’s touchings. She also admitted that her Mother and then her Father took her to court; Father also went with her to school, during the middle of the time he was touching her.
Mother testified that on June 17, 1999, she was working in an envelope factory about half an hour from her home. She arrived home about 1:00 a.m. They had lived in that home since March 1999 and before that lived in a three-bedroom home on the same street. At the previous home, all the children slept in one bedroom, the girls sharing a bed and the boys sharing a bed.
When Mother woke Rubisela the next morning, her daughter acted no differently than on most mornings. She did not ask to talk to Mother
The Pretrial Resolution Conference report of dependency investigator Agustin Martinez was admitted in evidence. According to Martinez’s testimony, Rubisela was sad and serious when interviewed at the foster home without her parents present. Rubisela said her relationship with her parents was good and denied being physically abused by them. Rubisela told him she tripped on a pillow on the way to the bathroom and fell. She told him she had not told her Mother about the incident because it was early in the morning and the minor left in a rush. The minor did not tell him she had ever asked Mother to protect her from Father or that she was afraid of Father. He never clarified inconsistencies with the information Rubisela had given emergency response worker Grissell Jover.
Further, Rubisela said that incident was the only time her Father touched her inappropriately. When the allegations of other touchings came to light, Martinez, tried to talk to her about them, but she did not want to discuss the allegations with him. She said she felt uncomfortable and had told the truth to the therapist. She did remember that she was sleeping with tight jeans on that night, something she initially forgot to tell the investigator. In his experience, it is not unusual for a child to disclose more details later on in the therapeutic process. There can be a variance in details, especially in a traumatic situation such as sexual abuse by a father.
Moreover, Rubisela confirmed she had conflicts with her parents and thought they were too strict. Specifically, they would not let her leave the apartment. He did not uncover any reason to think the accusations might be lies to get back at her parents. Rather, he thought she was telling the truth. Having interviewed hundreds of minors, he based this belief on her affect, her summary and that she did not exaggerate or make up a lot of stuff, and she was consistent.
When the investigator interviewed Mother, which was before he‘talked to Rubisela, Mother was cooperative. She told him they had had some problems with Rubisela, who had been expelled for fighting, but that she was not
Father did not want to meet face-to-face with the investigator, saying he was too busy, but did talk to him over the phone. Father confirmed some of the problems mentioned by Mother during her interview. The investigator’s interviews with Yesenia, Renau, and Gustavo revealed no evidence of physical abuse of those children. Yesenia said she had not woken up the night of the alleged incident. Moreover, Yesenia told him that after the children were detained, Rubisela told Yesenia that she had woken up during the night and found Father standing over her several times.
The investigator found out about the letter from the therapist, alleging other incidents, in court. He had not heard about these allegations from the foster mother.
Father called Yesenia and Renau as witnesses and testified himself. Yesenia, 11 years old at the hearing, testified that before the detention she slept in the bedroom with her parents, sister, and their little brother.
Renau, 12 at the time of the hearing, testified he now sleeps in the bedroom with his brother and Yesenia. But when Father was living in the home, Renau slept in the living room with his brothers. In the old apartment, from which they moved in about March, he never saw his Father in the children’s bedroom, nor did he ever wake up and see his Father standing over the bed of his sisters. Rubisela never told him Father had touched her or said anything to her in the middle of the night.
Father testified and denied the allegation, stating he did not even get up that night. He had not lain down next to Rubisela, nor did he ever touch her in a sexual way
The family had moved in March because his brother, with whom they had shared the previous rent, was getting his own apartment and Father could not pay the rent himself. At the previous apartment, Rubisela and Yesenia slept in the parental bedroom only when Rubisela had a problem with a young boy through the window of the apartment. Rubisela never objected that she did not want to sleep in the same bedroom with him.
Father testified that he spoke to investigator Martinez only once. Because Father did not have car and had to take the bus, he agreed to talk over the phone rather than come in that very day. He did not ask if he could come in the next day. Father told the investigator he was having some problems with Rubisela.
On the night in question, Father’s final conversation with Rubisela was to ask her to take care of the younger children because he had a headache. She said no because she wanted to go outside. He then asked if she could take the children outside with her, and she did. They were outside for about two hours, came in around 7:00 p.m., and then were supposed to go to bed. Father testified that he went to bed before Rubisela, when the children were still outside. He then explained that he got up when the children were coming in at 7:00 a.m. When he woke up in the morning to leave at 6:00 a.m., Mother was home; he had not talked to her after she came home from work.
Adjudication and disposition
On December 14, 1999, finding this a “difficult case,” “maybe not a very close case, but. . . not a slam-dunk case by any means,” the juvenile court
In sum, the court was troubled by Yesenia’s not waking up and, despite some inconsistencies in Rubisela’s testimony, “thought that Rubisela’s affect throughout the case was consistent with her testimony. She never seemed to me to be acting. She always struck me as being sincere. On occasions, I observed her very gently, slightly shaking her head from side to side when testimony as given that was contrary to herself. It didn’t appear to me that she knew that I was observing her. She wasn’t acting in a way that seemed as I’ve seen on many occasions to try to get attention. It seemed to reflect a sincere act on her part.” Furthermore, the court was troubled by Mother’s testimony that she sneaked in at night to check whether something was wrong, and then to downplay that statement saying it was because of what she had seen on television.
In addition, the court remarked it “couldn’t tell what to think about when the mother said softly and with emotion at one point that she believed Rubisela. I don’t know if there was something missing in the translation, but it struck me that that might have been a moment of authenticity.” As for his evaluation of Father’s testimony, while the court found it “credible,” the court found it “somewhat striking” though not determinative that when asked if he believed Rubisela was lying “[Father] was unable to answer that question without pausing for a considerable period of time before saying yes, which seemed to indicate that it was difficult for him to do so.”
As for Mother, the court could not have sustained language that Mother knew the activities was taking place but thought “she had reason to, and I think she suspected something was going on, and ... for fear of what it meant, looked the other way and didn’t want to see what was right in front of her and what she was worried about when she was coming home at night to see if anything was wrong.”
Rubisela’s care, custody and control was placed under supervision of the Department for suitable placement. All the other children were placed with Mother, conditioned upon Father’s not residing in the home. The court ordered Father, Mother, and Rubisela to be in sexual abuse counseling with conjoint counseling for Rubisela and both of her parents. Father was to be
Further, the court ordered Mother could have unmonitored visits including overnights and holiday visits with Rubisela, but Father was not to be present. Father could have day visits with the siblings in the family home and Mother may monitor those visits so long as Rubisela was not present during those visits.
Contentions on Appeal
Father contends: 1. There is insufficient evidentiary support for the juvenile court’s conclusion that minor Rubisela had been abused. 2. The evidence presented at the jurisdictional hearing was insufficient to support a finding that the minors are described by section 300, subdivisions (b), (c), (d) and (j). 3. Clear and convincing evidence did not support the continued removal of Father from the family home and denial of custody of his children.
The Department concedes in its brief that section 300, subdivision (b) does not fit appellant’s conduct, but does fit Mother’s, and that since she has not appealed, the finding as to subdivision (b) should be affirmed as to her.
Discussion
1. Substantial evidence supports the juvenile court’s finding of abuse.
“[T]he appropriate standard of review is for this court to determine whether the trial court’s order was supported by substantial evidence. Substantial evidence is evidence that is ‘reasonable, credible, and of solid value’; such that a reasonable trier of fact could make such findings. (In re Angelia P. (1981) 28 Cal.3d 908, 924 [171 Cal.Rptr. 637, 623 P.2d 198].) [U] It is axiomatic that an appellate court defers to the trier of fact on such determinations, and has no power to judge the effect or value of, or to weigh the evidence; to consider the credibility of witnesses; or to resolve conflicts in, or make inferences or deductions from the evidence. We review a cold record and, unlike a trial court, have no opportunity to observe the appearance and demeanor of the witnesses. [Citation] ‘Issues of fact and credibility
Father claims that the inconsistencies in Rubisela’s retelling of the incident to various investigators, as well as the fact her sister never awoke during the confrontation, compel a conclusion that her testimony and the evidence as a whole does not support a finding that Father ever touched Rubisela in a sexual way or proposed oral sex. We disagree.
As Father concedes, the testimony of a single witness can be sufficient to uphold a judgment. {In re Sheila B., supra, 19 Cal.App.4th 187, 200.) The juvenile court observed Rubisela and her parents. As is often the case, her testimony and the various reports given to investigators contained inconsistencies. Nevertheless, although the exact circumstances surrounding the event may have differed in the retelling, the essence of the offense, that her Father asked her to orally copulate him in the middle of the night, did not change. Only after months of therapy did the prior sexual acts become known; but such belated revelation is understandable and not inherently incredible. Moreover, Mother’s testimony that she sneaked into the house to see if her husband was doing anything wrong was certainly disturbing.
The juvenile court especially noted the demeanor of Rubisela and her parents in court. Mother at one point testified Rubisela was telling the truth, and Father had a difficult time when he testified the minor was lying. Rubisela appeared to shake her head when testimony against hers was presented. Substantial evidence supports the juvenile court’s determination that Father touched Rubisela in a sexual way on several occasions and that he proposed oral sex to her.
2. The evidence presented at the jurisdictional hearing supports a finding that the minors are described by section 300, subdivisions (c), (d), and (j) as to Father.
Father first again argues that there is insufficient evidence to support the finding of sexual abuse of Rubisela. As we have explained above, substantial evidence in the record as a whole supports the juvenile court’s finding of sexual abuse. Even assuming such evidence of sexual abuse of Rubisela, Father next argues the absence of evidence to indicate the risk of future harm to the siblings under any of the indicated subdivisions of section 300.
Subdivision (d)
A child may be found dependent under section 300, subdivision (d), if the “child has been sexually abused, or there is a substantial risk that the child
This is far different than the circumstances in In re James B. (1986) 184 Cal.App.3d 524, 530 [229 Cal.Rptr. 206], where there was one incident of sexual molestation of a two-year-old girl by her seven-year-old brother when bathing together, followed by their mother’s prompt reaction to the situation. Under section 300, former subdivision (d), the court stated in In re James B, supra, 184 Cal.App.3d 524, 529: “There must be some reason to believe the acts may continue in the future. (In re Jennifer P. [(1985)] 174 Cal.App.3d [322,] 326 [219 Cal.Rptr. 909] [molestations occurred at former husband’s home during court-ordered visitation and the mother took swift action once the incidents were discovered].)” As to Rubisela, the court was justified in implicitly determining that Rubisela had been placed at risk and continued to be at risk for future misbehavior by Father and lack of protection by Mother.
Subdivision (b)
A child may be adjudged dependent and within the jurisdiction of the juvenile court under section 300, subdivision (b), if “[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 the failure or inability of his or her parent or guardian to adequately supervise or protect the child . . . .” The Department concedes that Father’s conduct does not place the children within this subdivision but that there is evidence the conduct of Mother, who did not appeal, in failing to protect Rubisela places her and her siblings in danger. We shall therefore reverse the subdivision (b) finding as to Father.
Subdivision (c)
A child may be found dependent under section 300, subdivision (c), where the “child is suffering serious emotional damage, or is at substantial risk of suffering serious emotional damage, evidenced by severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others, as a result of the conduct of the parent . . . .” Again, given the conduct of Father toward Rubisela and her later suicidal ideation, the juvenile court is amply justified in finding that Rubisela falls within this section.
Section 300, subdivision (j), provides that a child who comes within the following description is within the jurisdiction of the juvenile court, which may adjudge that person to be a dependent child: “The child’s sibling has been abused or neglected, as defined in subdivision (a), (b), (d), (e), or (i) and there is a substantial risk that the child will be abused or neglected, as defined in those subdivisions. The court shall consider the circumstances surrounding the abuse or neglect of the sibling, the age and gender of each child, the nature of the abuse or neglect of the sibling, the mental condition of the parent or guardian, and any other [facts] the court considers probative in determining whether there is a substantial risk to the child. . . .” (See In re Lucero L. (2000) 22 Cal.4th 1227, 1237, fn. 4 [96 Cal.Rptr.2d 56, 998 P.2d 1019] and accompanying text.)
As we have discussed above, substantial evidence supports the court’s findings that Rubisela fell within section 300, subdivisions (c) and (d) and, because of her mother’s neglect, subdivision (b): Thus, pursuant to subdivision (j), “[t]he child’s sibling has been abused or neglected, as defined in subdivision (a), (b), (d), (e), or (i) . . .” The remaining question is whether the department has demonstrated the second prong of subdivision (j), i.e., that “there is a substantial risk that the child will be abused or neglected, as defined in those subdivisions.”
The circumstances surrounding the abuse of Rubisela support a finding under section 300, subdivision (j) as to her sister. It is reasonable for the juvenile court to determine that in Rubisela’s absence, Father’s sexual offenses were likely to focus on his only other daughter. (See In re Joshua J. (1995) 39 Cal.App.4th 984, 994-995 [46 Cal.Rptr.2d 491] [substantial risk of abuse to second brother where first had been subject to serious sexual abuse and father’s mental condition had not changed].)
The question of whether section 300, subdivision (j) can be upheld as to the sons is more problematic. Sexual abuse of one’s sibling can support a trial court’s determination that there is substantial risk to the remaining siblings. (In re Jason L. (1990) 222 Cal.App.3d 1206, 1215 [272 Cal.Rptr. 316]; In re Carmen O. (1994) 28 Cal.App.4th 908 [33 Cal.Rptr.2d 848] [affirming jurisdictional order under subd. (j) as to brother whose sister was molested, without directly addressing the issue]; but see In re Amy M. (1991) 232 Cal.App.3d 849, 865 [283 Cal.Rptr. 788] [where the department conceded that the juvenile court had no jurisdiction under § 300, subd. (j), over a brother whose sister had been molested since “that subdivision does not include allegations of emotional harm based on sibling abuse.”].)
We note, however, that the father’s contact with the minor son was suspicious in Jason L., while there is no evidence of this type of conduct in the case at bench: “The evidence in this case also supports the judgment: In addition to the proof of appellant’s sexual molestation of Brandi, there was evidence appellant had one, possibly two, previous adult homosexual relationships, shared a bedroom with Jason, showered with him at least twice when Jason was ten years old, and initially denied the joint showers occurred. Mrs. Wardrop testified Jason felt responsible for appellant, and was very protective of him. As a result, she was concerned Jason might not be entirely truthful about his relationship with appellant.” (In re Jason L., supra, 222 Cal.App.3d 1206, 1217.)
We do not discount the real possibility that brothers of molested sisters can be molested (see In re Mark C. (1992) 7 Cal.App.4th 433, 439 [8 Cal.Rptr.2d 856] [sister and brother both molested; as alternative ground, court did not err in excluding character testimony as to § 300, subd. (j) regarding brother]) or in other ways harmed by the fact of the molestation within the family. Brothers can be harmed by the knowledge that a parent has so abused the trust of their sister. They can even be harmed by the denial of the perpetrator, the spouse’s acquiescence in the denial, or their parents’ efforts to embrace them in a web of denial.
Addressing a different issue, our Supreme Court in In re Kieshia E. (1993) 6 Cal.4th 68, 76-77 [23 Cal.Rptr.2d 775, 859 P.2d 1290], observed the inherent and serious harm to children who have suffered sexual abuse by a parent: “Of course, sexual or other serious physical abuse of a child by an
3. Clear and convincing evidence supports the continued removal of Father from the family home and denial of custody of his children.
Finally, Father contends that he should be allowed to return to the family home and regain custody of his children. We disagree. The younger daughter is still in the family home. Given Father’s repeated molestation of Rubisela, the juvenile court did not abuse its discretion in ordering Father to remain outside of the family home.
Disposition
The order of December 14, 1999, is modified so as to delete a finding that as to Father the children are dependent pursuant to Welfare and Institutions Code section 300, subdivision (b). Jurisdiction is terminated as to Renau, Gustavo, Jorge, and Marvin. In all other respects, the adjudication and disposition orders are affirmed.
Boren, P. J., and Nott, J., concurred.
Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.
The children and their ages on June 17, 1999, were Rubisela, 13; Renau, 11; Yesenia, 9; Gustavo, 8; Jorge, 4; and Marvin, 2. Rubisela and Yesenia are female. According to an arrest report that is part of the record on appeal, Rubisela was 4’10” and 90 pounds.
Mother explained that Rubisela had gotten into two fights in school and once was speaking to a boy from her bedroom window but denied it when asked. Mother further stated she thought her daughter “has had boyfriends in the past.”
Mother admitted in her testimony that she told the worker she “sneaked” into the house to see if her husband was doing anything wrong. According to Mother, she had seen a lot of television programs where fathers abuse their children “but I don’t have any mistrust about him.” Then she changed her testimony to state she was checking to see that the children were covered so they would not be cold. Moreover, Mother testified that if the worker said Mother made the statement, the worker was lying.
Rubisela’s counsel had discussed options with his client, who indicated she wished to remain in foster care rather than be released to her parents or a relative. According to counsel, the minor indicated that “she doesn’t feel as though she would be safe in relative care . . . .” However, she wanted the court to know that she did not want to contribute to her family being split apart and was “very upset at the prospect of her father moving out."
The report stated that neither parent had a criminal arrest record in California.
At the time, brothers Renau, Gustavo and Jorge slept in the living room while Rubisela and Yesenia slept in the same bedroom with their parents and little brother Marvin.
Rubisela told the investigator she had never had sexual intercourse and no one, including her Father, had penetrated her. When asked if she every hurt herself on the vagina, she reported that in October 1998 she was riding her bike and crashed and hit her private part; the reported telling the same thing to the emergency response children’s worker when asked about the medical results. A public health nurse reported that trauma to the hymen can possibly be caused by a bicycle accident or by a fall.
Her foster mother observed that Rubisela had been agitated and depressed, crying and mentioning suicide. When the foster mother inquired, Rubisela told her about the additional incidents with her Father. The foster mother then told the therapist. Rubisela had disclosed her depression from the beginning, part of which was from being separated from her siblings, whom she missed a lot.
Rubisela was in the courtroom during the therapist’s testimony and needed a break at one point. Her counsel stated “It is very emotional for my client.” After the therapist’s testimony, Rubisela was to be the next witness. The court noted that it was late in the day and “[i]t’s been a hard day for her. I’m not going to put her through testimony at this time.” During argument to the court, counsel stated that the minor “basically cried throughout” the therapist’s testimony. During her own testimony the following day, Rubisela corroborated the therapist’s testimony about what the minor had told the therapist.
During her own testimony, Rubisela denied that she had seen his private parts that night or any other night. She denied telling the police or anyone else that she had.
The therapist was aware that Rubisela was involved in some fights prior to being placed in foster care. She was not aware that the minor had to go to juvenile criminal court for some of those fights.
According to the therapist, Rubisela was both very protective of her parents and afraid of them. The child was afraid that her siblings would also be molested. Even when her Father was outside the house, she thought he presented a risk to her. However, she had an expectation that Mother would protect the other children, at least while Father was not living at the house.
Mother’s counsel requested the department to provide another referral to Mother for therapy.
The therapist denied that Mother told her Gustavo’s finger was pricked by a doctor to get blood because he was being treated for anemia and that Mother then told him it was because he stole. She called the Department about the matter and was told a CSW was going to investigate.
Mother testified that Gustavo’s fingers were pricked by a doctor because he had anemia and needed a blood sample. However, according to Mother, she had told the therapist not that she had taken Gustavo to the doctor, but that she told Gustavo that taking blood was a punishment because he had taken some money.
She did not remember telling the emergency worker that her Father’s arm around her neck is what woke her up, nor did she remember that happening. Neither did she remember telling the worker that she was wearing only underwear and it was around her knees when she tried to get up or that she threatened to tell the police and that her Father left only after that threat. Further, she denied telling the police her Father was under investigation for trying to have sex with her sister. Nor did she remember telling the police that Father was already standing over her when she woke up. She told the police it was about 1:00 a.m. but does not remember telling an investigator that she knew the time because of a clock radio in the room.
Before moving to that apartment in April 1999, she had her own bedroom with her siblings. After she talked to some guy though the window, kissed him, and then denied it happened, her father moved her into the parental room when she was 12. Since she was lonely, she asked Yesenia to join her, and her sister started sleeping in the room with her. Father did not touch her until after they moved. During the whole time she was 13, Rubisela testified she slept with her parents in their room.
She felt him leaning or kneeling towards her, like air moving by.
Rubisela testified that Yesenia is a heavy sleeper. Although Mother testified that Yesenia is a light sleeper, neither Yesenia nor any of the other children woke up when Mother turned on the lights in the middle of the night.
On the other hand, she had had a good relationship with her Father in the past. Now that this has happened, she is not able to trust him enough to be alone with him “not even for one
According to Rubisela, she told her brother on their way to school and Renau said “I can’t believe this.” She told her sister at the house before going to school, and Yesenia “was just like sad.”
At one point, in about February 1999, she made Rubisela sleep on the floor in the parental bedroom in their previous home. This was because Rubisela was seeing some boy and talking to him through the window at midnight. Mother explained the situation to Rubisela, who did not object to changing rooms or complain that Father was unfair.
Mother testified that she had problems with Rubisela’s following house rules. Rubisela was never out after curfew; she was not allowed out.
Rubisela had lied to her about receiving a citation to go to court. She told Mother she had not received any citation.
In the apartment before that, she initially slept in a bedroom with her brothers and sister but later, with Rubisela, moved into her parents’ room. Renau corroborated the sleeping arrangements in both apartments.
On cross-examination, he admitted telling investigator Martinez that Rubisela had told him that her Father was on top of her that night and she was screaming. His sister was crying when she told him that.
Father’s initial reply to the question “Was there ever a time when you touched Rubisela in a sexual way?” was “I don’t remember having done it.” When she was very young, he cuddled with her.
The Department objected to Mother’s monitoring Father’s visits.
Reference
- Full Case Name
- In re RUBISELA E., a Person Coming Under the Juvenile Court Law LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, and v. RUBEN E., and
- Cited By
- 1 case
- Status
- Published