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In re Andy G.

April 20, 2010

IN RE ANDY G., A PERSON COMING UNDER THE JUVENILE COURT LAW.
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, PLAINTIFF AND RESPONDENT,
v.
A.G., DEFENDANT AND APPELLANT.



APPEAL from orders of the Superior Court for the County of Los Angeles. D. Zeke Zeidler, Judge. Affirmed. (Los Angeles County Super. Ct. No. CK 75875).

The opinion of the court was delivered by: Lichtman, J.*fn8

CERTIFIED FOR PUBLICATION

SUMMARY

The father in this juvenile dependency proceeding seeks reversal of the juvenile court's orders adjudging his two-year-old son Andy a dependent child of the juvenile court, refusing to release Andy to his father, and ordering the father to attend sexual abuse counseling for perpetrators. The court found that the father had sexually abused Andy's 12- and 14-year-old half-sisters and that Andy was at substantial risk of sexual abuse as well. The father contends the evidence was insufficient to support the court's jurisdictional findings as to Andy and that the court should have released his son to the father's custody. We disagree and affirm the orders.

FACTUAL AND PROCEDURAL BACKGROUND

Andy and his four half-siblings were detained in January 2009. At the time, the family was being supervised by the Department of Children and Family Services (the Department) under a voluntary family maintenance program to ensure adequate and appropriate parenting by the mother. Andy's father (who is not the father of the other four children) was not part of the program because the mother and children reported he did not live in the home and only had visits with his son Andy, but it was later discovered that he did live in the home. In early January, the Department received a child abuse report alleging that Andy's half-sisters Maria and Janet were victims of sexual abuse by Andy's father (to whom we will refer as A.G. or Andy's father), who was arrested. The referral to the Department was generated after the girls told J.O. (their father) about A.G.'s conduct; J.O. confronted A.G. at the girls' home and then reported the matter to the police.

The Department's dependency petition alleged that A.G. sexually abused Janet and Maria by fondling Maria's breast, fondling Janet's vagina, exposing his penis, and exposing Maria to a pornographic movie and masturbating in her presence, and that the mother told the girls to recant their disclosure of the sexual abuse. The Department alleged that A.G.'s sexual abuse and the mother's actions endangered the physical and emotional health and safety of Janet and Maria and placed them and their three siblings "at risk of physical and emotional harm, damage, sexual abuse, danger and failure to protect." (Welf. & Inst. Code, § 300, subds. (b), (d) & (j).)*fn1

The Department's detention report described the girls' reports of A.G.'s sexual abuse (more fully described in their testimony, post). Maria told her mother about A.G. exposing his penis to her, and thought her mother confronted A.G. because there was an argument, but A.G. remained in the home and continued to expose himself to Maria. Maria reported that her mother blamed her for A.G.'s arrest and was telling her and Janet to recant their statements so A.G. could be released and return home. The police report stated Maria told police that A.G. tried to have Maria reach into his front pocket for money a few weeks previously. On another recent occasion, when Maria walked into the kitchen late at night she found A.G. watching a pornographic video; he was rubbing his penis and "offered her to rub him." The police report indicated Maria said that, a few days after A.G. had fondled her breast as she was lying in bed, A.G. told her that "she better not tell anyone."

Janet and Maria reported that their mother was at home when the incidents of abuse occurred, but was elsewhere in the apartment and did not witness them. The family lived in a small single-studio apartment with a bathroom and kitchen, and all slept in a small space. The oldest half-brother, Javier (then 16), stated he did not know of anything happening to his sisters, but believed their statements, as they would not make something like this up. The youngest half-sister, G.R. (then seven years old) did not report any incidents of inappropriate behavior by A.G., but indicated, without verbalizing why, that she was fearful of A.G. When the Department interviewed the mother, she said she thought the girls were lying and never liked A.G., and J.O. (their father) was trying to get A.G. out of the house in order to control her (the mother).

The Department's assessment was that the mother could not ensure the immediate safety of her daughters, as she doubted them, and admitted she had been told about A.G. before J.O. took the matter to the police and did not want to believe it was true. The Department concluded that G.R. and Andy "were at risk as well as it was unclear if the mother could ensure their safety," so all the children were taken into protective custody.

At the detention hearing, A.G. denied the allegations in the Department's petition and asked for Andy's release to him. The court detained all the children from the mother, and detained Andy from A.G., finding that "continuance in the home of the mother at this point and of [A.G.], I believe, is contrary to the children's welfare," and there were no reasonable means to protect the children "without removal at this time from the physical custody of the mother and [A.G.]." The juvenile court placed J.O.'s children (Javier, Maria and Janet) with J.O., and placed G.R. and Andy in foster care, with discretion to place them with any appropriate relative. (A few days later, Andy was placed with his adult half-sister.) The Department was ordered to provide family reunification services, and visitation and other orders were made.

After various continuances, the hearing on jurisdiction and disposition began on April 27, 2009. At the hearing, Janet and Maria testified, as did J.O. and A.G.*fn2

Maria testified that A.G. had touched her breast (on top of her shirt); that A.G. had shown her his sexual parts (the first time when she was 11 years old) three or four times, two of which Maria described in some detail (and in one of which he asked her "if I want to play with it"). Janet testified that A.G. showed his private part and tried to touch her "down there" while she was in bed, "like right next to [her vagina]," but she moved so "he didn't do anything." Janet testified that A.G. had shown her his private part, "[h]is dick. It was when I was going to get my baby brother [Andy]," when A.G. asked her to take Andy to the store, "and when I was going to reach for him, [A.G.] lifted the pillow and that's when I saw his dick. So that we just went away, tried to ignore it." Janet then explained she was reaching for the money A.G. had in his hand to give to her when A.G. lifted up the pillow. At the time of this incident, "Baby Andy was in the sala [living room], like he was next to the T.V., in front of the T.V. because he was already to go to the store because this -- he was in his little cart." Janet said Andy was in the room at the time, but "he was not facing the side where [A.G.] was -- he picked up the pillow." (When asked about the room where this incident occurred, Janet said: "You enter and you just enter the house where we sleep and then T.V. is there and the kitchen is separated and the restroom, too.")

A.G. and J.O. also testified. A.G. denied the allegations in the Department's petition and in the girls' testimony, and said that when J.O. confronted him at the home before reporting him to the police, their argument was about a broken camera and "he never mentioned . . . I was ...


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