In re A.H.
Filed 7/16/13 In re A.H. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re A.H. et al., Persons Coming Under the Juvenile Court
Law.
SAN BERNARDINO
COUNTY CHILDREN
AND FAMILY SERVICES,
Plaintiff
and Respondent,
v.
G.B. et al.,
Defendants
and Respondents;
A.H. et al.,
Appellants.
E056869
(Super.Ct.Nos.
J243785 & J243786
&
J243787 & J243788 & J243789
&
J243790 & J243791 & J243792)
OPINION
APPEAL
from the Superior Court
of
Bernardino County.
Cheryl C. Kersey, Judge.
Affirmed.
Linda
S. Rehm, under appointment by the Court of Appeal, for Appellants.
Karen
J. Dodd, under appointment by the Court of Appeal, for Defendant and Respondent
G.B.
Konrad
S. Lee, under appointment by the Court of Appeal, for Defendant and Respondent
S.H.
Jean-Rene
Basle, County Counsel,
Jamila Bayati, Deputy County Counsel for Plaintiff and Respondent.
At
a contested jurisdiction and disposition hearing, the juvenile court dismissed
the allegations that (1) children, J.J. and J.B., were sexually abused by their
half-sibling’s father, thus placing the other half-siblings, K.E., S.H., L.H.1,
L.H.2, and A.H., at risk for the same or similar abuse (Welf. & Inst. Code,
§ 300, subd. (j));
title="">[1] and (2) J.B. and J.J. were sexually abused and
defendant and respondent G.B. (Mother) failed to protect J.B. and J.J. from the
abuse (§ 300, subd. (d)).
Appellants
K.E., L.H.1, L.H.2, A.H., S.H., K.H. J.B., and J.J. (collectively “Minorsâ€),
appeal the juvenile court’s ruling dismissing the sexual abuse
allegations. Minors assert the juvenile
court erred by dismissing the sexual abuse allegations because they were
supported by substantial evidence. San Bernardino County Children and Family
Services (the Department) supports Minors’ contention. We affirm the judgment.
A. BACKGROUND
Mother
has eight children: (1) J.J., a female
born in 1995; (2) J.B., a female born in 1996; (3) K.H., a female born in 1998;
(4) S.H., a male born in 2001; (5) K.E., a female born in 2004; (6) L.H.1, a
female born in 2006; (7) L.H.2, a female born in 2007; and (8) A.H., a male
born in 2008. J.B. has her own
child. J.J. was pregnant during this
dependency. There are five fathers
associated with Minors: (1) M.J. is J.J.’s
presumed father; (2) J.B.1 is J.B.’s alleged father; (3) K.H.1 is the
presumed father of K.H.; (4) K.E.1 is the presumed father of K.E.; and (5)
defendant and respondent S.H.1 (Father) is the presumed father of S.H., L.H.1,
L.H.2, and A.H.
Mother
appeared to suffer from Dissociative Identity Disorder/Multiple Personality
Disorder. Mother had various
personalities that would surface during times of stress. Mother had not sought medical treatment for
her mental disorder or been officially diagnosed. In October 2010, Mother had a voluntary
family maintenance case with the Department.
The voluntary case was closed after six months when Mother failed to
participate in the services being offered to her.
B. DETENTION
In
April 2012, the Department received a referral reflecting Mother choked five
year old L.H.1 and threw a shoe at the child.
On April 12, a Department social worker visited Mother and several of
the children at their home. The social
worker knew Mother from the prior voluntary maintenance case and found Mother’s
demeanor to be “out of character.â€
Mother admitted “‘snatching’†L.H.1, because the child was having a
tantrum and refused to get ready for school.
Mother agreed to participate in a team decision making meeting with the
Department.
The
team decision making meeting took place on April 17. During the meeting, Mother suffered “an
extreme change in her affect.†A
clinician from the Department of Behavioral Health was present at the meeting
and assessed Mother. It appeared that
one of Mother’s alternate personalities surfaced during the meeting. Mother, as this different personality,
introduced herself as Keisha. Keisha
said she babysat the children when Mother was stressed and “not
available.â€
A
social worker contacted the police.
Officers from the San Bernardino Police Department found Mother was a
danger to the children and detained her at a psychiatric facility. The Department detained seven of the
children. J.B. was residing with her
baby at her boyfriend’s home; she was not detained. It appeared J.B. also suffered from
Dissociative Identity Disorder, and she was taking medication for
depression. The seven children were
placed in three separate foster homes.
C. JURISDICTION/DISPOSITION
Father
had been diagnosed as suffering from Bipolar Disorder and Schizophrenia. Father had a history of abusing
methamphetamines. The Department’s
report reflected the following information related to the sexual abuse
allegations: Father was accused of
sexually abusing J.J. and J.B. in May 2007.
The Riverside County Department of
Public Social Services (Riverside Department) investigated the
allegations. Mother filed a police
report after J.J. and J.B. told Mother that Father sexually abused them. The police questioned Father and told him not
to have contact with J.J. and J.B. during the investigation. A criminal investigation and child welfare
investigation took place. However,
Mother, J.J., and J.B. could not be located after the investigations were
initiated, and therefore, the investigations ceased.
In
August 2007, a detective and social worker located the family after Father
“absconded with the children†and “fled†to Riverside
County. At that point, the sexual abuse investigation
resumed. J.J. and J.B. (the Girls) were
taken for forensic interviews by Riverside County Sheriff’s detectives. The Girls stated Father touched their vaginal
and anal areas with his hand, both under and over their clothes. Since there was not penetration, forensic
exams were not conducted.
The
forensic interviewer and law enforcement officers found the Girls statements
“were credible†and “planned to file felony charges†against Father; however,
the charges were never filed. The
information was cross-reported to the Department and the Riverside Department,
but “[t]he allegations were found inconclusive.†The Girls continued to maintain that the
sexual abuse occurred. Father told the
Department he was falsely accused.
Mother
and Father had a “long history of domestic violence that has continued for more
than 11 years.†Father had stalked
Mother and always tried to locate her when he was released from
incarceration.
D. PETITIONS
The
Department’s petitions included various allegations regarding Mother’s failure
to protect Minors. (§ 300, subd.
(b).) The petitions of K.E., A.H., S.H.,
L.H.1, and L.H.2 also included an allegations that J.J. and J.B. were sexually
abused by Father, thus placing K.E., A.H., S.H., L.H. 1, L.H.2 at risk for the
same or similar abuse. (§ 300,
subd. (j).) The petitions of J.B. and
J.J. alleged they were victims of sexual abuse, and Mother failed to protect
them from the abuse. (§ 300, subd. (d).)
The
petition of K.H. did not include allegations related to sexual abuse. K.H.’s father removed K.H. from Mother’s
custody when the sexual abuse allegations were made involving Father, J.J., and
J.B., but eventually returned K.H. to Mother’s care.
E. HEARING
The
juvenile court held a contested jurisdiction and disposition hearing on July
31, 2012. Father was present, in
custody, at the contested hearing.
Father contested the sexual abuse allegations. At the beginning of the hearing, Father’s
attorney (Levy) stated his intent to call Mother as a witness, in order to ask
about J.B. and J.J. informing Mother of the sexual abuse. The juvenile court suggested Levy call J.B.
and J.J. as witnesses. Levy explained
that Father did not “want to put the kids through any more stress,†so Levy was
going to limit his witnesses to adults.
The
juvenile court told Levy, “I understand where you’re coming from, sir, but the
fact that they may have told their mom or not doesn’t mean anything unless they
tell me what happened because it could be made up, and I don’t know that . . .
. [T]he fact that she may know about it
or not isn’t persuasive.†Father
explained that Mother would not testify about being told of the allegations;
rather, she would say the Girls created the allegations in order to make Mother
leave Father and move away.
Levy
called J.J. as a witness. J.J. was 17
years old when she testified. J.J.
explained that when she was eight years old, she was living with Mother,
Father, J.B., K.H., and S.H., in Blythe.
Twice during that time, Father touched J.J. inappropriately. The first time, Father laid behind J.J. on a
bed as they both laid on their sides.
Father placed his hand inside J.J.’s underwear and rubbed her vagina. After the first incident, J.J. told a family
friend and Mother about the touching.
Mother moved J.J. into a different home, away from the family, but
eventually J.J. moved back in with the family.
The
second occasion took place after the family moved to another home in
Blythe. During the second incident, J.J.
and Father were in the living room. J.J.
and Father were lying on a couch together; Father was lying behind J.J. Father touched J.J.’s vagina under her pants,
but over her underwear. Months, but not
years, elapsed between the two incidents.
J.J. did not tell Mother about the second incident. Approximately two years after the touching,
J.J. was interviewed by police about the sexual abuse allegations.
Father
also testified at the hearing. Father
denied ever inappropriately touching J.J. and J.B. Father said he lived with J.J. for only two
weeks per year during a three-year period because he was in prison the
remainder of the time. Father said he
was never questioned by police about abusing the Girls, never arrested for
abusing the Girls, and never prosecuted for abusing the Girls.
Mother
testified at the hearing as well. Mother
stated Father was living with the family in Blythe more than two weeks per
year. The Girls both told Mother about
Father sexually abusing them. The Girls
never indicated to Mother that they were lying about the abuse. Mother explained she moved away during the
investigation because Father continually violated the court’s protective
order. Mother was unsure what happened
to the abuse investigation after she moved away.
After
the witnesses’ testimony, the juvenile court stated it found untrue the
allegation that J.J. and J.B. were sexually abused by Father, thus placing
K.E., A.H., S.H., L.H. 1, and L.H.2 at risk for the same or similar abuse. (§ 300, subd. (j).) The court explained it did not believe the
Girls were sexually abused by Father.
The juvenile court found it problematic that (1) the Girls were not
taken to report the abuse to law enforcement until two years after the incident
took place, and (2) the abuse reports were just allegations from nine years in
the past without any corroborating evidence.
The trial court explained, “There is nothing in writing. There was no action by law enforcement; no
action by Riverside Child and Family Services.â€
The
trial court asked the Department if the Sheriff’s Department’s report was
included in the evidence. The Department
said the report was not included. The
court said the details in the Department’s report were “lacking.†Minor’s counsel responded, “I don’t know what
details the Court needs because all the Code requires is that there is
skin-to-skin contact.†The court
explained, “But it is a very serious allegation against him; I would expect
more than a he said; she said.â€
Minor’s
counsel argued it was problematic to not have true findings on the sexual abuse
allegations because the children would be visiting Father and he would not be
receiving services for being a sexual predator, which would place the kids at
risk. The juvenile court asked Father if
he would voluntarily participate in sexual predator counseling upon his release
from incarceration. Father agreed to do
“[a]nything in the best interest of [his] children.â€
The
Department told the juvenile court it was unsure what corroborating evidence it
would need, since J.J. testified in court.
The court responded, “I have evaluated the credibility and age of the
complaint. The complete absence of
corroboration—I’m not going to find it true by a preponderance of the
evidence. I’m not. Sorry.
Sometimes you win; sometimes you lose.â€
Minor’s
counsel told the court, “It is not about winning or losing. This is about protecting the kids.†The court responded, “You can take it up on
appeal. Ask the appellate court to
change my ruling. There was nothing to
it. And the fact that the girls were
taken to the police station over two years later, and there is no physical
evidence of abuse. There was no real
fresh complaint, not even by [the family friend]. There is no evidence it happened at
all.â€
Minor’s
counsel explained that there could not be more evidence than what was already
provided. The juvenile court said,
“There would be if they went to the police immediately. If they told their mother immediately, if
[the family friend] did something about it immediately. You’re asking me to do something now, which
is ridiculous.â€
The
Department moved to dismiss various allegations in K.E.’s petition, including
the allegation that J.J. and J.B. were sexually abused by Father, thus placing
K.E. at risk for suffering the same or similar abuse. (§ 300, subd. (j).) The court dismissed the allegation. In regard to A.H., L.H.1, L.H.2, and S.H.,
the court dismissed the allegation that J.J. and J.B. were sexually abused by
Father, thus placing the four children at risk of suffering the same or similar
abuse. (§ 300, subd. (j).)
In
regard to J.B. and J.J., the court dismissed the allegations they were victims
of sexual abuse, and Mother failed to protect them from the abuse. (§ 300, subd. (d).) The Department and Mother objected to the
court dismissing the allegations. The
court found Minors came within section 300, pursuant to other allegations in
the petitions.
The
juvenile court modified the proposed case plan to require Father to participate
in sexual abuse counseling. The court
further ordered Father not have contact with J.J., J.B., and K.H. K.H. was included in the no contact order due
to “some recent disclosures.†J.J. was
placed in her father’s custody. K.H. was
placed in her father’s custody. K.E. was
placed in her father’s custody. J.B.
remained at the home of a non-related extended family member. S.H., L.H.1, L.H.2, and A.H. were placed in
foster care.
A. STANDING
Father
asserts Minors and the Department do not have standing to argue on appeal that
the juvenile court erred by dismissing the sexual abuse allegations because
they are not aggrieved by the ruling.
Father reasons Minors and the Department are not aggrieved because
Minors were adjudged wards and removed from Mother’s and Father’s care based
upon other findings, such as Mother’s failure to protect the children from her
mental illness. (§ 300, subd. (b).) Father believes Minors and the Department
were not injured by the juvenile court’s ruling, and therefore they lack
standing to appeal. We disagree.
An
aggrieved party has standing to bring an appeal. (Code Civ. Proc., § 902.) “‘One is considered[] “aggrieved†whose
rights or interests are injuriously affected by the judgment. [Citations.]
Appellant’s interest “‘must be immediate, pecuniary, and substantial and
not nominal or a remote consequence of the judgment.’†[Citation.]’
[Citation.] ‘“[A] party must be
‘beneficially interested’ [citation], i.e., have ‘some special interest to be
served or some particular right to be preserved or protected over and above the
interest held in common with the public at large.’ [Citation.]
. . . ‘The purpose of a standing requirement is to ensure that the
courts will decide only actual controversies between parties with a sufficient
interest in the subject matter of the dispute to press their case with
vigor. [Citations.]’ [Citations.]â€
(In re Jasmine S. (2007) 153
Cal.App.4th 835, 842.)
Section
361.5, subdivision (b)(3), provides that if a child or sibling has previously
been adjudicated a dependent of the court due to sexual abuse, is returned to
the parent, and then removed again due to further sexual abuse, then
reunification services do not need to be provided to the parent. Thus, Minors and the Department have an
interest in ensuring the juvenile court did not err in dismissing the sexual
abuse allegations, because the sexual abuse allegations, if found true, will
immediately trigger a protective statute that allows only one more incident of
sexual abuse before ceasing reunification services. Given this law, we conclude Minors and the
Department are aggrieved parties and have standing to appeal because if the
allegations should have been found true, then Minors would benefit from the
triggering of section 361.5, subdivision (b)(3).
B. DISMISSED ALLEGATIONS
1. CONTENTION
Minors
contend the juvenile court erred by dismissing the sexual abuse allegations,
because the allegations were supported by substantial evidence. The Department supports this contention.
2. STANDARD
OF REVIEW
Minors
assert we should review the dismissal ruling under the substantial evidence
standard of review. Mother asserts
Minors are incorrect about the standard of review, because the juvenile court
found the Department did not meet its evidentiary burden. Mother asserts the issue on appeal should be
whether the Department’s evidence compels a true finding on the sexual abuse
allegations as a matter of law. We
conclude the parties are advocating for the same standard of review.
Typically,
the substantial evidence test is the appropriate standard of review for
jurisdictional findings. (
1022.) Under the substantial evidence
standard we view “the evidence in the light most favorable to the prevailing
party, giving the prevailing party the benefit of every reasonable inference
and resolving all conflicts in support of the order.’ [Citation.]â€
(In re D.M. (2012) 205
Cal.App.4th 283, 291.)
In
In re I.W., the appellate court
reasoned it was not proper to apply the substantial evidence standard when the
party carrying the burden of proof failed to meet its burden, because the
standard would allow for attacking the evidence of the party who did not have a
burden of proof. (In re I.W. (2009) 180 Cal.App.4th 1517, 1528.) Thus, the appellate court in
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. [Citations.]
Specifically, the question becomes whether the appellant’s 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 insufficient to
support a finding.’ [Citation.]†(Id.
at p. 1528.)
These
standards of review are the same: if
there is reasonable and credible evidence supporting the juvenile court’s
ruling, then the ruling must be upheld.
In other words, if there is evidence reflecting the
is substantial evidence supporting the ruling, and (2) minors’ evidence is
necessarily contradicted—the standards advanced by both parties are met. Accordingly, Minors and Mother are advocating
for the same standard of review, which presents the following question for
appeal: Is there substantial evidence
supporting the juvenile court’s non-finding, i.e., that the molestation did not
occur?
3. ANALYSIS
(a) Section 300, subdivision (d)
The
abuse allegation concerning J.J. and J.B. provided that the Girls had been
sexually abused by Father, and Mother failed to protect them from the
abuse. (§ 300, subd. (d).)
Father
testified he never inappropriately touched J.J. or J.B. Father also stated that he was never
questioned, arrested, or prosecuted in connection with the Girls’ molestation
allegations. Given this evidence, it is
contradicted that the molestation took place, because Father denies the
allegations against him. As a result,
the evidence does not compel a finding that the
Further,
as to whether Mother failed to protect the children, there is evidence that
Mother moved J.J. out of the house—away from Father—after J.J. told Mother
about the first molestation incident; J.J. did not tell Mother about the second
incident. When Father repeatedly
violated a protective order by coming to Mother’s house, Mother “fled†the
home—moving the family to a new location.
Thus, there is evidence contradicting a finding that Mother failed to
protect the children from Father, because Mother placed the children outside of
Father’s reach when he appeared to be a threat to them. Therefore, the evidence does not compel a
finding that Mother failed to protect the children.
As
a result, the juvenile court did not err by dismissing the sexual abuse
allegations pertaining to J.J. and J.B. because the evidence does not compel a
finding in favor of the Department’s sexual abuse allegations. In other words, there was evidence supporting
a finding that the sexual abuse allegations lacked merit.
It
is important to note that if any one of the three justices comprising this
panel had been presiding over this matter at the juvenile court, then the result
would likely have been different, in that any one of us would have found merit
in the allegations; however, we are bound by the standard of review on appeal,
and must conclude there is evidence supporting the juvenile court’s finding.
Minors
present all the evidence supporting a finding that J.J. and J.B. were molested
by Father. Minors conclude the evidence
reflects “[t]here was sufficient evidence to find that J.J. and J.B. were
sexually abused by [Father] and Mother failed to protect them under section
300, subdivision (d).†Minors’ argument
is not persuasive because they are not looking at the evidence in the light
most favorable to the ruling. Rather,
Minors are presenting the evidence in the light most favorable to the
Department, when it was the Department’s allegations that were dismissed. Since Minors are not discussing the evidence
in the light most favorable to the ruling, we find Minors’ argument to be
unpersuasive.
(b) Section 300, subdivision (j)
The
abuse allegations involving K.E., A.H., S.H., L.H.1, L.H.2 provided J.J. and
J.B. were sexually abused by Father, thus placing K.E., A.H., S.H., L.H. 1, and
L.H.2 at substantial risk for the same or similar abuse. (§ 300, subd. (j).) As explained ante, the evidence does not compel a finding that the abuse
occurred, because Father denied touching the Girls in an inappropriate
manner. Given this contradiction in the
evidence, we must conclude the juvenile court did not err, because the record
provides support for the juvenile court’s finding that the Girls did not suffer
sexual abuse.
Minors
assert the section 300, subdivision (j) allegation could remain despite the
failure of the section 300, subdivision (d) allegation because “[t]his Court
could infer that the juvenile court believed that [Father] had sexually abused
J.J. and J.B. and somehow found [the other] children to be at risk by [Father],
because the court ordered sexual abuse counseling.â€
This
court is reviewing the record for substantial
evidence. A possible implication in
the juvenile court’s ruling is not evidence.
Thus, this court cannot consider the ruling as evidence when reviewing
the record. Moreover, the juvenile court
expressly found untrue the allegation that Father molested J.J. and J.B., thus
making it unnecessary for this court to resort to inferences. In sum, we find Minors’ argument to be
unpersuasive.
C. REQUEST FOR JUDICIAL NOTICE
On
November 21, 2012, the Department filed a motion to augment the record on appeal. The Department sought to augment the record
with documents pertaining to the 2007 molestation investigation involving
Father, J.J., J.B., and K.H. Mother
opposed augmenting the record. On
December 28, 2012, this court ordered the motion to augment be deemed a request
for judicial notice and reserved ruling on the request in order to consider it
with the appeal.
We
deny the Department’s request. Even if
this court were in the habit of considering new evidence on appeal, which it is
not, there would be no reason to grant this request. (See In
re Zeth S. (2003) 31 Cal.4th 396, 413 [normal rules precluding
consideration of new evidence on appeal apply equally in juvenile dependency
cases].) As set forth ante, we must
view the evidence in the light most favorable to the ruling, which means
determining whether there is any credible evidence that contradicts the
Department’s evidence.
The
record contains Father’s testimony reflecting that he never molested J.J. and
J.B., as well as Mother testimony reflecting that she removed the children from
Father’s physical custody when he posed a threat to them. No matter what other evidence is presented,
the record will contain this testimony compelling a conclusion that the
juvenile court’s ruling is supported by the record. Minors do not argue Father’s claim of
innocence is impossible or inherently improbable. (People
v. Fierro (2010) 180 Cal.App.4th 1342, 1347 [A single witness’s testimony
can constitute substantial evidence unless the testimony is physically impossible
or inherently improbable].) Accordingly,
there would be no purpose to granting the Department’s request. As a result, the request is denied.
D. FURTHER DISCOVERY
In
Minors’ Appellants’ Reply Brief they argue this court should reverse the juvenile
court’s untrue findings pertaining the sexual abuse allegations, or,
alternatively, remand the matter for further discovery and another hearing on
the sexual abuse allegations. Minors
argue the evidence presented in the Department’s motion to augment the
record—reports pertaining to the 2007 molestation investigation—“solidifiesâ€
the Department’s and Minors’ allegations concerning sexual abuse.
We
cannot grant the request for further discovery or a hearing because the
juvenile court did not err. There would
be no purpose to the hearing or the discovery because the jurisdictional
findings have already been rendered.
(See In re Jessica C. (2001)
93 Cal.App.4th 1027, 1040 [collateral estoppel applies in jurisdictional
hearings, unless the child makes disclosures about the alleged molestation that
were not made prior to the initial dependency petition].) Accordingly, we deny the alternative request
for further discovery and another hearing.
E. DEPARTMENT’S CONTENTIONS
In
the Department’s Respondent’s Brief, it argues the juvenile court should have
continued the jurisdiction hearing in order to permit the Department to produce
evidence supporting the sexual abuse allegations. The Department asserts the juvenile court
should have sua sponte continued the matter, since it was the juvenile court
raising questions about the Department’s evidence. Also in its Respondent’s Brief, the
Department contends the juvenile court erred because it “misapplied the law[,]
misread the facts, and was given incorrect information.â€
These
issues are not properly before us. It is
the job of the Minors, as the appellants, to frame the issues on appeal. The Department, as a respondent, cannot raise
new issues. (Kardly v. State Farm Mut. Auto Ins. Co. (1995) 31 Cal.App.4th 1746,
1749, fn. 1 [“A respondent who fails to file a cross-appeal cannot urge error
on appealâ€]; see also Cal. Rules of Court, rule 8.216(b) [discussing briefs for
party that is a respondent and cross-appellant].)
Additionally,
the timing is problematic from a due process perspective because Mother,
Father, and the Department are all respondents.
Mother and Father may not have had time to consider the independent
arguments for reversal raised in the Department’s brief and respond to those
arguments, since they are all respondents and were presumably working on their
briefs at the same time. (See
California (2011) 201 Cal.App.4th 1289, 1292 [respondents need to have an
opportunity to respond to arguments for reversal and issues cannot be raised
that are beyond the scope of the appellants’ opening brief].) Thus, we do not address these independent
arguments raised by the Department, because the Department is a respondent and did
not file a cross-appeal. (
supra, 31 Cal.App.4th at p. 1749, fn.
1 [“A respondent who fails to file a cross-appeal cannot urge error on
appealâ€].)
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
KING
Acting P. J.
CODRINGTON
J.
subsequent statutory references will be to the Welfare and Institutions Code
unless otherwise indicated.
the substantial evidence standard typically poses the question, “Is there
substantial evidence to support the finding sexual abuse occurred,†in this
case we are presented the opposite question—“Is there substantial evidence to
support the finding sexual abuse did not
occur?†This is not a de novo review and
we are not the trier of fact. We may
have reached a different finding if we were sitting as the juvenile court in
this case, but that is not the issue.
Under the substantial evidence standard, we can only determine whether
there is evidence to support the juvenile court’s finding that the molestation
did not occur. (See People v. Millwee (1998) 18 Cal.4th 96, 132 [if the evidence is
open to two reasonable interpretations, then the appellate court cannot
substitute its conclusions for that of the trier of fact].)
