L. A. Cnty. Dep't of Children & Family Servs. v. C.M. (In re A.M.)

249 Cal. Rptr. 3d 817, 37 Cal. App. 5th 614
CourtCalifornia Court of Appeal, 5th District
DecidedJune 26, 2019
DocketB293062
StatusPublished
Cited by8 cases

This text of 249 Cal. Rptr. 3d 817 (L. A. Cnty. Dep't of Children & Family Servs. v. C.M. (In re A.M.)) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
L. A. Cnty. Dep't of Children & Family Servs. v. C.M. (In re A.M.), 249 Cal. Rptr. 3d 817, 37 Cal. App. 5th 614 (Cal. Ct. App. 2019).

Opinion

ASHMANN-GERST, Acting P. J.

*616Al.M. (father) sexually abused A.M. (minor) and the juvenile court issued a two-year restraining order prohibiting father from having any visitation or contact with minor. Father appeals the portion of the restraining order denying him any contact, claiming it is not supported by substantial evidence. We find no error and affirm.

FACTS

Minor was born in November 2005.

The evidence in the dependency proceeding below established that father and C.M. (mother) periodically lived together for short periods of time during an on and off relationship. They were never married. When they were apart, he would occasionally visit minor and stay overnight at mother's house. In October 2007, when minor was almost two years old, she pointed to her vagina and buttock and said, "Papi aqui."

In July 2009, minor told mother that father bit her while on a bed, and then said that father touched her private parts over her clothing. She said that father licked her vagina five times, and that it was underneath her underwear. There was a subsequent investigation, and the allegation was substantiated. The police thought minor was repeating something that she had heard on television and dropped charges against father. Mother forced father out of the house. Nonetheless, minor had overnight visits with father.

In 2016, mother and father began dating again. She gave birth to G.M., a boy, in April 2018.1

On April 19, 2018, mother found a note in minor's pocket saying that father had raped her. When mother talked to minor, she denied that there had been any penetration, and said father had not threatened her. Minor never reported the abuse because she did not want her unborn brother to grow up with separated parents, and she did not want her mother to be stressed and lose the baby.

*617Mother texted father and confronted him about touching minor. He called and mother asked, "How could you do this to your daughter?" He did not confirm or deny the allegations. He said it was a misunderstanding and that he wanted to talk to mother and minor about it. That night, mother filed a police report.

On April 20, 2018, the Department of Children and Family Services (Department)2 received a report that minor had been sexually abused by father and wanted to kill herself. In her initial interview with a social worker, minor confirmed the referral allegations, said she was no longer suicidal, and that the abuse started when *819mother was two months pregnant in September 2017.

While recounting instances of abuse, she explained that father would get in bed behind her, rub his penis against her buttocks and vagina, and squeeze her breasts under her clothing. At times he would use two fingers to rub her vagina over her clothing. Father had a pattern: he would lie next to her to touch her, then go to the bathroom for a long time, and then return to touch her again. The touching would last an hour to an hour and a half. During the abuse, she was fully clothed but believed that father was undressed because of the way his penis felt. She pretended to be asleep. He would put his finger into her vagina over her clothes, and it hurt her "a little bit." One time he tried to put his hand inside her shorts but stopped when she elbowed him.

She was scared and confused during the abuse, which occurred at night. During the day, he would act normal as though nothing had happened. He would talk about God and say that because people are born with a conscience, they know what is right or wrong. In the minor's opinion, he was trying to justify what he had done to her. She had headaches and her body was sore. The last time he touched her was on Valentine's Day 2018.

Father denied the allegations and blamed them on minor not wanting him to resume a relationship with mother. Also, he blamed it on minor being jealous due to the prospect of having a sibling, and on maternal grandmother for trying to interfere and keep mother away from him.

In early May 2018, mother went to Family Law Court to obtain a restraining order against father. The Family Law Court granted a temporary restraining order pending a September 13, 2018, hearing on the merits.

Twice, minor conducted pretext phone calls to father. He did not make any incriminating statements. Minor sent a text message directly addressing the issue of sexual abuse but father did not respond.

*618A social worker called father and offered to arrange a polygraph test. He did not respond.

On June 6, 2018, the Department obtained an order to remove minor and G.M. from father. About two weeks later, the Department filed a petition under Welfare and Institutions Code section 300, subdivisions (b)(1) and (d)3 as to both children, and under subdivision (j) as to G.M. The petition contained allegations that father sexually abused minor, and that mother failed to protect minor from father.

A detective submitted the case to the District Attorney but no criminal charges were filed.

The juvenile court detained the children from father and released them to mother. It held a combined adjudication and disposition hearing on September 13, 2018, and it considered the request for a restraining order.4 The juvenile court stated that it had considered a video of an interview with minor as well as the rest of the record and found minor to be consistent and credible every time she gave an account of the sexual abuse. Then the juvenile court stated, "I just completely disagree with the reported results from the police and find that, in fact, all these allegations are ... true. The father did rub his penis on her.

*820He fondled her vagina and her breast. And this is a total abrogation of his role as a father and very, very detrimental to his child."

The juvenile court struck the failure to protect allegations against mother. It then sustained the amended petition as to both children based on the section 300 subdivisions (b), (d) and (j) allegations against father.

Turning to disposition, the juvenile court was informed that minor did not want visitation with father. It removed the children from his custody and ordered that he receive family enhancement services. In contrast, as to father, no reunifications services were ordered. While father was granted visitation with G.M., he did not receive visitation with minor. Father was ordered to participate in a parenting class, sex abuse counseling for perpetrators, and individual counseling.

The juvenile court granted a restraining order prohibiting father from having any contact with minor, "either directly or indirectly in any way, including but not limited to, in person, by telephone, in writing, by public or *619private mail, by e-mail, by text message, by fax, or by other electronic meas." The order was for two years.

This appeal followed.

DISCUSSION

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Cite This Page — Counsel Stack

Bluebook (online)
249 Cal. Rptr. 3d 817, 37 Cal. App. 5th 614, Counsel Stack Legal Research, https://law.counselstack.com/opinion/l-a-cnty-dept-of-children-family-servs-v-cm-in-re-am-calctapp5d-2019.