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In re Carlos T.

June 3, 2009

IN RE CARLOS T. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW.
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, PLAINTIFF AND RESPONDENT,
v.
MARGARITA S. ET AL., DEFENDANTS AND APPELLANTS.



APPEAL from an order of the Superior Court for Los Angeles County, Marilyn H. Mackel, Referee. Affirmed. (Los Angeles County Super. Ct. No. CK58679).

The opinion of the court was delivered by: Willhite, J.

CERTIFIED FOR PUBLICATION

This is the third appeal in a dependency case involving two children, Linsey T. and Carlos T., and their parents, Margarita S. (mother) and Carlos T., Sr. (father).*fn1 In the first appeal, B194611, we affirmed the juvenile court‟s dispositional orders denying mother reunification services as to Linsey and suspending mother‟s visitation with Linsey. In the second appeal, B202783, we affirmed the juvenile court‟s order establishing a plan of legal guardianship for Carlos and suspending mother‟s visitation with Carlos. While the second appeal was pending, the Los Angeles County Department of Children and Family Services (DCFS) filed, and the juvenile court sustained, a subsequent petition under Welfare and Institutions Code section 342.*fn2 Mother and father now appeal from the order sustaining the subsequent petition, contending there was insufficient evidence to support the juvenile court‟s order that Carlos and Linsey were at substantial risk of harm at the time of the jurisdictional hearing. We affirm the jurisdictional order.

BACKGROUND*fn3

A. Previous Referrals

This family first came to the attention of DCFS in December 2001, when DCFS received a referral alleging that Linsey (who was seven years old at the time) had been sexually abused by father, and that mother knew about the abuse. That referral was closed as unfounded. DCFS received a second referral in April 2005 based upon similar allegations. Linsey and Carlos were removed from their parents‟ custody and declared dependants of the juvenile court, but Linsey later recanted the allegations of sexual abuse and the children were returned to parental custody. The juvenile court terminated jurisdiction in January 2006.

B. Initial Petition in This Case

A month before the juvenile court terminated jurisdiction, Linsey was raped by father while mother was away. When mother returned home, the door to father‟s bedroom was locked. She knocked and, after a delay, father opened the door. She saw Linsey lying in the bed. Linsey told mother what father had done, and mother responded by telling Linsey to wash up and stay away from father. Although mother said she would file a police report, she did not do so, nor did she report the rape to DCSF.

Eleven-year-old Linsey became pregnant as a result of the December 2005 rape.*fn4 Six months later, in May 2006, mother asked Linsey‟s school to transfer Linsey to a school for pregnant girls. Upon discovering that Linsey was pregnant, school officials contacted DCFS and the police. When Linsey disclosed that father had raped her, mother yelled at Linsey, "Why did you tell them?" She said that Linsey was a liar and a bad child, and denied that she was aware of any sexual abuse by father. Father was arrested for sexual abuse/assault against Linsey.

DCFS filed a section 300 petition as to Linsey and Carlos based upon father‟s sexual abuse of Linsey and mother‟s failure to protect Linsey and Carlos, and the children were removed from parental custody. The juvenile court sustained the allegations of the petition as to both parents and denied reunification services to father. After a contested disposition hearing almost six months later, the court denied reunification services to mother "in light of her persistence and consistent lack of demonstrated ability to understand the impact of what has happened here and her responsibility in it, and in light of the continued denial of the facts." The court suspended mother‟s visitation with Linsey, finding visitation posed substantial risk of detriment to Linsey. Although the court ordered monitored visitation for mother and Carlos in a therapeutic setting, no visits took place after that October 2006 disposition hearing.*fn5

In September 2007, the juvenile court ordered legal guardianship as the permanent plan for Carlos, and his foster mother, Hilda M. (foster mother) was named his legal guardian. Linsey continued in foster care. The court ordered no visits between Carlos and his parents at that time, finding visitation would be detrimental to his emotional well-being.

C. Subsequent Petition

In the meantime, at some point during the summer of 2007, DCFS received a referral from Linsey‟s therapist, who said that Linsey told her that Carlos attempted to molest a cousin. The therapist also said that foster mother told her that Carlos disclosed that "father performed unimaginable sexual acts on him."

DCFS conducted an investigation. In the initial interviews with foster mother, Linsey, and Carlos, DCFS gathered information that suggested Carlos may have been sexually abused by father. Initially, Carlos neither confirmed nor denied the abuse; he said he did not want to talk about it. By August 17, 2007, however, Carlos‟ therapist reported that Carlos was beginning "to open up about the abuse he had suffered." Three days later, Carlos told the emergency case worker that father had sexually abused him more than once, but he would not provide any details about the abuse. In November 2007, the case worker met again with Carlos in an attempt to get further information about the alleged abuse. Although Carlos was generally more talkative than he had been earlier, he did not provide any details about the alleged abuse. In December 2007, foster mother reported to DCFS that Carlos told her that father had performed oral sex on him. In January 2008, DCFS filed the subsequent petition at issue in this appeal.

The subsequent petition alleges counts under section 300, subdivisions (b), (d), and (j). The allegations of each count are identical: father sexually abused Carlos on numerous occasions, mother reasonably should have known of the abuse but failed to take action to protect the children, and father‟s abuse and mother‟s failure to protect places Carlos and Linsey at risk of physical harm, ...


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