California Court of Appeals, Second District, Seventh Division
In re LUIS H. et al., Minors.
MORENA H., Defendant and Respondent LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, LUIS H. et al., Appellants.
from a judgment of the Superior Court of Los Angeles County,
No. DK17782 Julie Fox Blackshaw, Judge. Affirmed.
Valerie N. Lankford, under appointment by the Court of
Appeal, for Appellants.
M. Chandler, under appointment by the Court of Appeal, for
Luis H. and Alan H. appeal from the dismissal of the
dependency petition filed on their behalf pursuant to Welfare
and Institutions Code section 300. We affirm.
AND PROCEDURAL BACKGROUND
H. has four children: Maria E. (born 2002), Leslie O. (born
2008), Luis H. (born 2012), and Alan H. (born 2016). In 2016
the family came to the attention of the Department of
Children and Family Services when Leslie O. disclosed to her
teacher that her mother's boyfriend and Luis H.'s
father, Manuel B., had sexually abused her.
an investigation also revealed possible physical abuse of
Maria E. by Morena H., DCFS filed a petition alleging that
the four children came within the jurisdiction of the
juvenile court under section 300, subdivisions (a) (serious
physical harm); (b) (failure to protect); (d) (sexual abuse);
and (j) (abuse of sibling).
juvenile court conducted a contested jurisdictional hearing.
At the close of the hearing, the court dismissed the
allegations of serious physical harm as to all children;
concluded that Morena H. had failed to protect Leslie O. from
being sexually abused by Manuel H.; and sustained the failure
to protect and sexual abuse allegations under section 300,
subdivisions (b) and (d) as to Leslie O. only. The court did
not sustain the subdivision (b), (d), or (j) allegations as
to the other three children, saying, “I will not
sustain the counts as to the siblings. And the reason is
this: I don't have any evidence that there has been any
sexual abuse of any of the siblings, including Maria [E.],
the other possibly more obvious target. And I don't
believe the abuse of Leslie [O.], at least based on the
evidence in front of me, reaches the level of egregiousness,
for instance, that was mentioned in [In re
I.J. (2013) 56 Cal.4th 766] where it obviously puts
the other children at risk. [¶] We have two young boys.
I don't believe that they are-those young siblings are
similarly situated. And I actually don't think Maria [E.]
is similarly situated. I do think that [Manuel B.]... was
opportunistic in that Leslie [O.] is shy, she is young, and
he thought he could do it to her. I'm not sure that I can
also infer that the same conduct would have been done with an
older girl, a girl who would be more explicit in what was
happening, a girl who actually might be able to push him
away. But Leslie [O.] was a target who was vulnerable, who
was shy, who is not terribly articulate. And I do believe
that-that she is differently situated than the other children
in the home. So I won't sustain the allegations.”
court declared Leslie O. a dependent child of the juvenile
court and dismissed the petition as to the other three
minors. Luis H. and Alan H. appeal the
dismissal of the petition with respect to the allegations
under section 300, subdivisions (b) and (j).
and Alan H. argue that no substantial evidence supports the
juvenile court's “finding” that they were not
placed at a substantial risk of harm by Morena H.'s
failure to protect Leslie O. from sexual abuse by Manuel B.
and by the abuse itself. Here, the minors are
“essentially urging that there was insufficient
evidence to support the juvenile court's finding against
[their] position because evidence supports [their]
position.” (In re I.W. (2009) 180 Cal.App.4th
1517, 1527.) As the Court of Appeal observed in In re
I.W., characterizing the analysis as one of substantial
evidence is misleading where, as here, the trier of fact has
expressly or implicitly concluded that the burden of proof
was not met. (Id. at p. 1528.)
aware that in In re I.W., supra, 180
Cal.App.4th at page 1528, the Court of Appeal considered the
situation in which the appellant was also the party who bore
the burden of proof in the juvenile court proceedings. Here,
DCFS bore the burden of proof at the jurisdictional hearing
(In re S.D. (2002) 99 Cal.App.4th 1068, 1078 [agency
that filed the petition “had the burden of proof as to
each fact necessary to sustain the jurisdictional
petition”]) but only Luis H. and Alan H. appeal the
dismissal. We do not believe that this distinction changes
the nature or standard of our review. At the jurisdictional
hearing, children who are the subject of dependency petitions
have the right to present evidence to the court, the right to
use the process of the court to summon witnesses, and the
right to confront and cross-examine witnesses. (Cal. Rules of
Court, rule 5.534(g)(1).) They have the right to counsel
(§ 349), and their counsel is obligated to perform
investigations and to “examine and cross-examine
witnesses in both the adjudicatory and dispositional
hearing.” (§ 317.) The children's counsel is
authorized by statute to “also introduce and examine
his or her own witnesses, make recommendations to the
juvenile court concerning the child[ren]'s welfare, and
participate in the proceedings to the degree necessary to
adequately represent the child[ren].” (§ 317.)
Indeed, the dependency scheme contemplates children
presenting evidence despite not bearing the burden of proof:
“At any hearing in which the probation department bears
the burden of proof, after the presentation of evidence on
behalf of the probation department and the minor has
been closed, the court, on motion of the minor, parent, or
guardian, or on its own motion, shall order whatever action
the law requires of it if the court, upon weighing all of the
evidence then before it, finds that the burden of proof has
not been met.” (§ 350, subd. (c) (italics added).
Here, consistent with these provisions, Luis H. and Alan H.
were represented by counsel who had the opportunity
to present evidence at the jurisdictional hearing and who
advocated for the court to sustain the dependency petition.
As the children had the opportunity to produce evidence and
to create a record that supported their position that they
came within the jurisdiction of the juvenile court, we see no
reason to depart from the general rule that “where the
issue on appeal turns on a failure of proof at trial, the
question for a reviewing court becomes whether the evidence
compels a finding in favor of the appellant as a matter of
law.” (In re I.W., supra, 180
Cal.App.4th at p. 1528.)
the juvenile court concluded that the evidence presented in
support of the dependency petition was insufficient to
establish that Luis H. and Alan H. were at substantial risk
of harm under section 300, subdivisions (b) and (j). Luis H.
and Alan H. have argued that the evidence showed that Morena
H.'s failure to protect and Manuel B.'s sexual abuse
of Leslie O. placed them at substantial risk of harm, but
they have not argued or demonstrated that the evidence
“was (1) ‘uncontradicted and unimpeached' and
(2) ‘of such a character and weight as to leave no room
for a judicial determination that it was ...