(Contra Costa County Super. Ct. Nos. J10-01077 & J10-01101) Superior Court of Contra Costa County, Nos. J10-01077 (In re Ashton R.) and J10-01101 (In re Ashley M.) Nancy Davis Stark, Judge.
The opinion of the court was delivered by: Simons, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Ashley M., born in June 1993, and Ashton R., born in January 2005,are the children of Jamie W. (Mother). Both were the subject of dependency petitions. James R. is Ashton's father and lived with Mother at the commencement of these proceedings.*fn2 Following the jurisdictional hearing, the court found "not true" all the counts relating to Ashton and the sexual abuse allegations relating to Ashley. Ashton's petition was dismissed. The Minors appeal these rulings, which we affirm in the unpublished portion of this opinion. James appeals Ashley's dispositional order providing her with supervised visitation rights with James's son, Ashton. In the published portion of this opinion, we reverse that order.
In August 2010, the Contra Costa County Children and Family Services Bureau (Bureau) filed a dependency petition alleging that Mother had neglected Ashley's medical needs and failed to provide for Ashley's support (Welf. & Inst. Code, § 300, subds. (b) & (g)),*fn3 and that Ashley had been sexually molested by James (§ 300, subd. (d)). A dependency petition was also filed alleging that James and Mother neglected Ashton's medical needs and that Ashton was at risk of sexual abuse by James. (§ 300, subds. (b) & (d).)
The Bureau's August 9, 2010 detention/jurisdictional report regarding Ashley stated that Mother had not provided proper treatment for Ashley's life-threatening Crohn's disease. The report also stated that Ashley told Melissa C., Ashley's foster mother, that James had continuously sexually abused her from age 11 to age 14. According to Ashley, "[James] did everything to me." The molestation stopped when Ashley began menstruating. After interviewing Ashley twice, the police said her statements were consistent and detailed and she appeared to be truthful about the molestation. James was arrested on July 21 for molesting Ashley. The August 11 detention/jurisdictional report regarding Ashton stated that in September 2006, at 20 months of age, he was diagnosed as overweight and Parents failed to follow through with a diet plan or additional medical visits until June 2010, when he was described as extremely obese and had high blood pressure. Ashton also had documented speech problems for which Mother failed to begin treatment.
Ashton was ordered detained solely from James. Ashley was ordered detained from Mother and ordered to have no contact with James. Parents elected to be represented by the same attorney.
An August 25, 2010 memo from a Bureau social worker noted Ashley reported that Ashton frequently masturbated to the point of causing rawness and abrasions. Ashton told the social worker that he missed Ashley.
In September 2010, Parents moved for an order prohibiting visitation between the Minors. The Bureau filed a response thereto.
In October 2010, the Bureau filed an amended section 300 petition regarding Ashley alleging that Mother failed to provide medical care resulting in Ashley's hospitalizations and a life threatening emergency and failed to protect Ashley from James's molestation.*fn4 The Bureau also filed a second amended section 300 petition regarding Ashton alleging that Parents neglected his medical needs, and he was at risk of sexual abuse by James as a result of James's sexual abuse of Ashley. It also noted Parents failed to acknowledge and seek treatment for Ashton's behavior of masturbating to the point of hurting his penis.
On December 10, 2010, the court ordered supervised monthly visitation between the Minors.
December 2010 Jurisdictional Report
The Bureau's December 2010 jurisdictional report regarding the Minors included various proposed witness statements.*fn5 Ashley would testify she obtained permission to live with a family friend whose home environment was less stressful than living with Mother and Ashton. Ashley would also testify that during the relevant period James committed vaginal and anal penetration and oral copulation, and asked her to orally copulate him. Ashley's friend since third grade, Teresa B.,*fn6 would testify that during an eighth grade art class, Ashley was upset and crying. When asked by Teresa whether James had "done anything to" or had raped Ashley, Ashley nodded affirmatively. Teresa would also testify that she wrote in her journal about Ashley's being raped and abused by James and that the journal was with the Martinez Police Department. Mother would testify that Ashley never disclosed to her that she was being molested by James. As to the allegations regarding Ashton, Ashley would testify that Ashton masturbated until his penis was raw and bruised and he had complained to her that his penis hurt. Ashton would testify that he told his attorney that he touched his penis sometimes and it hurt.
An August 4, 2010 police report stated that Ashley reported that, shortly after the abuse stopped, she told Teresa she had been raped by James; Ashley had not told anyone else. An August 17 supplemental report stated that Ashley again said she told only Teresa about the incidents with James. An August 19 supplemental report stated that Martinez Police Investigator Fred Ferrera attempted to contact Teresa, but she did not return his calls. Melissa told Ferrera she had been in contact with Teresa, who said she would call Ferrera, but Teresa did not do so.
Jurisdictional Hearing *fn8
At the jurisdictional hearing, Melissa testified that she and Mother had been friends since elementary school. Ashley had been living with Melissa since May 2010. According to Melissa, the Minors are "very close." Ashley was Ashton's primary caretaker on a daily basis for the first three years of his life and he preferred Ashley over Mother when he got hurt. Ashley complained to Melissa about missing out on time with friends because she had to take care of Ashton. Ashley told Melissa she had stopped taking the medicine prescribed for her Crohn's disease because she hated her life and wanted to die. Ashley also told Melissa she and Mother fought a lot and she was afraid of Mother. Ashley first lived with Melissa for a few months after a month-long hospitalization. In May 2010, after living with Mother for five or six months, Ashley got sick again and resumed living with Melissa. When Ashley turned 17 years old, she and Melissa had a conversation about lying and telling the truth. Thereafter, Ashley told Melissa that James had raped her between the ages of 11 and 14. Melissa said that, the year before, Ashley had told this to Melissa's daughter, who was 13 years old at the time of the jurisdictional hearing. After Ashley told Melissa, Melissa told her boyfriend to call the police. Ashley then described the details of James's molestation to Melissa. Ashley told Melissa she had told Teresa about the molestation during junior high school, while the molestation was occurring. Melissa said she called Teresa's mother that night.
Ashley testified she began taking primary care of Ashton when he was three months old and Mother went back to work. She described her relationship with him as "very strong" and said she was "practically his mom." After Ashley got sick and was hospitalized, "CPS" told Mother Ashley had to go to school and could not stay home to watch Ashton.
Ashley described in detail James's molestation of her beginning at age 10 or 11. She said that at a certain point Mother told her Mother and James were fighting and were no longer having sexual relations. Ashley said she eventually told her best friend, Teresa, that James had raped her. She said she may have told Teresa that it only occurred one time, but she could not remember. She also admitted that she falsely told Teresa that during the rape she was screaming "no." She testified she knew it was wrong, but allowed it, and initiated sex with James 30 to 40 percent of the time. Ashley said Teresa complied with her request not to tell anyone. Ashley said when she was about 13 years old she started telling James she wanted the sex with him to stop and she stopped initiating it. When she began menstruating at age 14, James stopped having sex with her. Ashley said that, when she was 15 or 16 years old, she told her friend "Maurice" about the sex with James. Thereafter, Melissa read about it in one of Ashley's diaries. When Melissa asked if Ashley had been molested by James, Ashley answered affirmatively.
On cross-examination by the Minors' counsel as to whether she ever observed Ashton masturbating, Ashley said she saw him touching his penis, but was not sure whether he was masturbating. She had seen Ashton's penis when it was "red" but not "where it got bad, because [she] heard [Mother] and [James] talking about how it got really bad and it was ...