In re J.M., B206994 (Cal. App. 9/19/2008)

Page 1

In re J.M., et al., Persons Coming Under the Juvenile Court Law LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. NICHOLE H., Defendant and Appellant.

B206994

Court of Appeals of California, Second Appellate District, Division Five

September 19, 2008

Not to be Published

Appeal from an order of the Superior Court of Los Angeles County, No. CK62855, Zeke D. Zeidler, Judge. Affirmed.

Deborah Dentler, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., Los Angeles County Counsel, James M. Owens, Assistant County Counsel, and Jeanette Cauble, Deputy County Counsel for Plaintiff and Respondent.

TURNER, P. J.

I. INTRODUCTION

Nichole H. (the mother), appeals from a juvenile court order terminating her parental rights as to her three children, J.M., P.C., and K.W., pursuant to Welfare and Institutions Code¹ section 366.26. The mother argues the juvenile court erred in applying exceptions to termination of parental rights because: the evidence showed the potential adoptive parent was unwilling to adopt and had been pressured by the Los Angeles County Department of Children and Family Services (the department) contrary to standards set forth in current section 366.26, subdivision (c)(1), effective January 1, 2008; the evidence was insufficient to show that 14-year-old J.M. did not object to termination of parental rights (§ 366.26, subd. (c)(1)(B)(ii)); and the evidence was insufficient to show that the wishes of J.M. and P.C. were considered as required by section 366.26, subdivision (h). We affirm.

II. BACKGROUND

On March 29, 2006, the department filed a section 300 petition on behalf of the children. As sustained, the petition contained the following allegations. The children were exposed to violent physical confrontations between the mother and K.W.'s father. K.W.'s father physically assaulted the mother in the children's presence endangering their physical and emotional health and safety. K.W.'s father sexually abused J.M. by: exposing his penis to her; forcing her to touch and fondle his penis; and touching and fondling the child's breasts. The mother knew of the sexual abuse but failed to take action to protect J.M. and continued to allow K.W.'s father to have unlimited access to the children. The mother also instructed J.M. not to disclose the sexual abuse.

The detention report stated that, on March 26, 2006, the department responded to a referral about the children being left home alone and that K.W.'s father was currently in the residence. The report stated that K.W.'s father had been investigated in the past for allegedly molesting J.M. Also on March 26, 2006, a Pomona police officer arrived at the family residence to verify K.W.'s father's presence in the home at around 1:30 a.m. Officer Ewald broke a window to enter the home after he knocked on the door several times but received no response. J.M. did not know where the mother was. According to J.M. the mother had been leaving the children home alone in the afternoon until the early morning. Officer Ewald stated the apartments are narcotics infested and people have been shot because of drug sales.

On March 26, 2006, K.W.'s father arrived at the home at around 2:30 a.m. and used his own personal key to enter the residence. J.M. told Officer Ewald that K.W.'s father has lived in the home for two years although he was not supposed to be there. J.M. said that, about three months prior to March 2006, K.W.'s father got into bed with her while he was naked. K.W.'s father started to fondle her breasts and asked her to touch his penis. The report stated that the department had responded to a referral on November 28, 2005, about the allegations. The mother had stated that she put K.W.'s father out of the home at that time. The mother also stated that she allowed K.W.'s father to come to the home to visit his child and to bring her money. But the mother said K.W.'s father did not spend the night. On January 20, 2005, the department responded to a referral that J.M. awakened to find K.W.'s father naked in her bed. K.W.'s father had a condom on and said he wanted her to rub his penis but did not want to mess up the bed. K.W.'s father was holding her hand and trying to get her to hold his penis. J.M. stated that K.W.'s father had been drinking earlier in the evening and walking around naked. K.W.'s father left the bedroom when P.C. woke up. J.M. told the mother about the incident the following day. The mother told J.M. not to tell anyone else. The mother had contacted the police for domestic violence by K.W.'s father on two occasions.

K.W.'s father informed the police that he lived in the home. He had lived there for two years. K.W.'s father denied ever inappropriately touching J.M. K.W.'s father indicated that he could not understand why J.M. would lie. K.W.'s father suggested that the mother's family disliked him and told J.M. to say that he sexually abused her. K.W.'s father stated he had always been a good parent for all three children. He also stated that he had gone to prison for four years for something he did not do. K.W.'s father informed the police that the mother was three minutes away but stated he did not know how to contact her.

The mother arrived at the home three hours later. The mother stated that she had only left the children home alone twice within two months. The mother was only three minutes away and J.M. was a responsible child. The mother denied that K.W.'s father lived in the home. The mother was told that he used a key to enter the home. The mother responded that she gave K.W.'s father a key to check on the children when she was away from home. The mother stated that K.W.'s father had never touched any of her children inappropriately and he had never sexually abused J.M. The mother stated that J.M. was telling lies because she was afraid. According to the mother, K.W.'s father could no longer live in the home because of the domestic violence. She stated that she has a history of attracting criminals who had served time in prison. All three of her children had different fathers each of whom had served time in prison. The mother stated that J.M.'s father was serving a life sentence in prison and P.C.'s biological father's whereabouts were unknown. None of the fathers are parties to this appeal.

J.M. told a social worker, "`I just want to go back with my mom.'" But J.M. did not understand why the mother would say not to tell anyone about K.W.'s father. J.M. told an uncle and aunt who contacted law enforcement. J.M. stated that she had a difficult time going to sleep because she was afraid of K.W.'s father. She would not have a problem sleeping if the mother would stop coming home early in the morning and leaving K.W.'s father to supervise the three youngsters. P.C. stated that the mother always left him and his sisters home alone for long periods of time. P.C. was afraid to stay at home because the people who live in the apartments are bad as they sell drugs and shoot at people. P.C. had never been touched by K.W.'s father. However, P.C. was afraid of K.W.'s father. This was because K.W.'s father was always hitting the mother. The children had originally been placed with a maternal aunt by the department. At the detention hearing, the juvenile court ordered the children placed with the maternal aunt. The mother was given monitored visits. The fathers were not given visits until ordered by the juvenile court.

On May 2, 2006, the department reported that the mother stated J.M.'s father was serving a life prison term. The mother stated K.W.'s father lived in one of two Lodge Motels in Pomona. However, the department was unable to locate K.W.'s father at either motel.

J.M. explained that when she was 11 years old, K.W.'s father came into her room at 3 a.m. and made her touch his private part. J.M. stated that she woke up and her hand was on it. Her hand was wet. K.W.'s father told her that when she turned 13 he was going to be the first person to go out with her. He then left and washed his hands. J.M. said K.W.'s father only touched her once. J.M. told the mother about the incident. The mother told J. M to go back to bed.

The mother related that J.M. said that K.W.'s father had come into the room naked. K.W.'s father explained that she was crying. K.W.'s father said that he thought J.M. was asleep. Because it was dark, he thought could just run in the room and give K.W. her cup. He did not think J.M. would see him. The mother told him not to go into the room with no clothes on or at all. K.W.'s father apologized. According to the mother: "`In 2005 . . . the police told me [J.M.] told them that he made her hold his penis. She never told me about the penis. [J.M.] told me he put his pee pee in her hand, but he said he didn't do it. He said he was sorry she saw him naked.'" The mother said she believed both versions of what had occurred, "`I mean, I believe both sides.'" The mother claimed to believe J.M. But the mother also did not want to believe J.M. This was because J.M. did not like K.W.'s father. The mother admitted that K.W.'s father came around after the prior dependency case was closed. The mother admitted that she was "`still in a relationship'" with K.W.'s father.

J.M. said that she had seen K.W.'s father hit the mother. J.M. saw K.W.'s father throw the mother on the ground. This occurred while the mother was pregnant with K.W. P.C. denied ever seeing K.W.'s father hit the mother. P.C. also denied fearing K.W.'s father. The mother stated that she had obtained a restraining order against K.W.'s father in 2005 but she was unable to enforce it because he was using her address. According to the mother, K.W.'s father had not hit her since 2005. The mother explained that she thought the age to leave children home unsupervised was 12. The mother only planned to go to a club for two hours from 12 to 2 a.m. The children were asleep when s...