In re A.Y.

Filed 6/22/07 In re A.Y. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from an order of the Superior Court of Orange County, Dennis Keough, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

Brent Riggs, under appointment by the Court of Appeal, for Defendant and Appellant Austin Y.

Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant Aurora B.

Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Paula A. Whaley, Deputy County Counsel, for Plaintiff and Respondent.

* * *

Austin Y. (father) and Aurora B. (mother) appeal from the juvenile courts order sustaining dependency jurisdiction over their daughters, A., age 16, and J., age 15. The parents challenge the sufficiency of the evidence to support the order. They contend father posed no risk of serious physical harm, emotional damage, or sexual abuse to the girls, and consequently mother did not neglect the children by failing to protect them from father. (Welf. & Inst. Code,  300, subds. (a), (b), (c) & (d); all further statutory references are to this code unless specified otherwise.) Alternatively, they contend the children should have been left in mothers care. We conclude ample evidence supports the courts order, and we therefore affirm.

I

FACTUAL AND PROCEDURAL BACKGROUND

On Halloween night 2006, father whipped A. twice across her back with his belt because she stood too close to the microwave. When A. protested, father struck a blow to her head with a mopstick, cracking the wooden handle. Father pressed the mop handle across his daughters throat until she could barely breathe. Father pushed J. and mother away. Mother retreated to another room. Father finally relented when Auroras 21-year-old brother intervened. On the way to school the next day, father warned, [W]ait until you see me when you get back home. Fearing they would be beaten, the girls disclosed the incident to school authorities.

In interviews with social workers and police, A. and J. revealed father sexually molested them. Father raped A. when she was 10 years old and again when she was 14 years old. Father threatened, [I]f you tell anyone, I will kill you. On a weekly basis, father continued touching A.s buttocks under her clothes and would reach under her shirt to touch her breasts over her bra. Mother usually excused this behavior as cuddl[ing], since the parents and both girls shared a bedroom. Sometimes, however, mother would confront father about the inappropriate contact, but she remained passive when he retorted it was none of her business. Similarly, when mother caught father trying to reach down J.s pants or under her shirt, he would simply tell mother to fuck off. Father had fondled J.s buttocks as recently as the day before she entered protective custody.

Father struck his daughters with an open hand daily. A few months before Halloween, father had slapped A. across the face and kicked her in the ribs. Although the blows hurt a lot, she denied visible injuries, claiming she was hard to bruise in general. On J.s 13th birthday, father had punched her in the face because she lost her glasses. Mother defended fathers use of a belt on the girls because they bring that on. Mother noted there were no marks, no scars. The girls worried for their mother because shes always scared. When she disagreed with father, he pushes her and calls her names; all the nice little cuss words . . . the B word (bitch) and F word (fuck). Unable to defend herself, mother relied on her son, who the girls revealed has actually got in a fist fight with dad once. According to J. and A., father smoked marijuana and drank alcohol every day, both of which made him paranoid.

J. felt guilty about revealing fathers abuse. She feared father would be pissed off because I told on him and because I have bad grades and he will probably kill me. When a schoolmate observed that A. seemed depressed, A. explained she was still haunted by father raping her. While detained at Orangewood Childrens Home, A. had nightmares in which father shot her with a gun.

According to mother, the girls had a fantastic relationship with father, but resented him because he disciplined them for their failing grades. Mother denied father raped A., reasoning intercourse at age 10 would have torn up the child internally and there would be blood all over. A. had disclosed to the social worker that she bled vaginally when father raped her the first time, but not the second. Mother insisted on a genital exam, believing it would show A. was still a virgin. A rape kit proved inconclusive but consistent with A.s account.

Father expressed no interest in reunification services before the jurisdiction hearing. The Orange County Social Services Agency (SSA) social worker could not locate him, and he refused to contact her. Mother informed the social worker father refused to read the dependency petition.

II

DISCUSSION

Father and mother join together in claiming no substantial evidence supports the courts decision to assume jurisdiction over the girls or, alternatively, to remove them from mothers custody. We disagree.

A. Substantial Evidence Supports the Juvenile Courts Jurisdictional Finding

The testimony of a single witness suffices to support jurisdiction. (In re Sheila B. (1993) 19 Cal.App.4th 187, 200.) An appellate court is in no position to judge the credibility of witnesses or reweigh the evidence, and therefore must resolve all evidentiary conflicts in favor of the juvenile courts findings. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947; In re Nada R. (2001) 89 Cal.App.4th 1166, 1177.)

The parents challenge each of the bases on which the juvenile court sustained jurisdiction. ( 300, subds. (a), (b), (c) & (d).) According to father and mother, their daughters neither suffered nor were at risk of serious physical harm within the meaning of subdivision (a). The parents argue the juvenile court mistakenly equated any physicalabuse with serious physical harm, and they distinguish reported cases involving great bodily injury such as a skull fracture. They note subdivision (a) does not define the requisite degree of harm, and they implicitly suggest the threshold level of injury should be high, relying on statutes outside the dependency context. Father also observes that no evidence showed when Austin kicked the girls, it was with a shod foot or with such force as to leave a mark.

We conclude a high threshold for serious physical harm would undermine the Legislatures goal of protecting the best interests of children. In any event, attempting to asphyxiate ones child establishes a risk of serious physical harm under any conceivable standard. A. could barely breathe, and J. witnessed her sisters face turn red as father pressed the broomstick against her throat. As for J., the juvenile court could reasonably extend her protection without awaiting another strangling episode.

Father argues the mopstick incident was without precedent and did not presage a future of serious physical harm to the girls. But the court could conclude the potent mixture of fathers violent temper, substance abuse, paranoia, and stated retaliatory intent created a risk for everyone in the household. Because father showed no interest in reform, the juvenile court could reasonably conclude the threat of harm persisted at the time of the jurisdictional hearing. Moreover, in addition to striking the children with slaps, punches, and kicks, father increasingly resorted to instruments capable of inflicting great bodily injury, and the growing severity of his attacks warranted the juvenile courts concern. In sum, substantial evidence supports the juvenile courts jurisdictional finding under subdivision (a). Because mother stood by or retreated to another room as fathers attacks gained ferocity, declaring the girls dependents was also proper under subdivision (b), which calls for jurisdiction where a parent fails to protect the children against serious physical harm or illness.

Although the juvenile courts jurisdiction need rest on but a single ground (In re Janet T. (2001) 93 Cal.App.4th 377, 389), the parents note the jurisdictional findings will affect the future course of the case and ask that we reach their claims no evidence supported findings of a risk of sexual abuse or serious emotional damage. (See  300, subds. (c) & (d).) Our review of the record discloses ample evidence supporting jurisdiction on these grounds.

Father concedes A.s testimony established sexual abuse but quibbles that unless two is numerous, it did not establish that [father] had abused her numerous times, as SSA alleged in its petition. Fathers glib mathematical distinction is insulting. Two child rapes are two too many, and cry out for court intervention. Plus, the record established father sexually violated A. numerous times by touching her buttocks and chest weekly since she was eight years old.

Father contends his earlier offenses against A. when she was 10 years old and 14 years old did not show the older J. was at risk at the time of the jurisdictional hearing. Father overlooks, however, that J. was 14 years old at the time of the hearing, and therefore a prime target for father without court protection. (See In re P.A. (2006) 144 Cal.App.4th 1339, 1347 [any younger sibling who is approaching the age at which the child was abused, may be found to be at risk of sexual abuse].) Moreover, the juvenile court could reasonably conclude fathers prior transgression made violation of the incest taboo easier for the perpetrator and hence more likely. In any event, the risk to J. was not theoretical. J.s testimony established father touched her inappropriately on her breasts from the time she was 12 years old, and on her buttocks from age 5. Mother dismissed this contact, which often occurred in her presence, as cuddling, but the juvenile court determined the girls version was credible, not mothers, and we may not second-guess this determination.

Substantial evidence also supports the courts determination A. and J. suffered or were at risk for serious emotional damage. The parents contend the evidence showed merely that the girls feared their father, in part because he disciplined them for poor grades, and not that they suffered serious emotional damage. The parents rely on the language of section 300, subdivision (c), defining serious emotional damage as severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others. The parents note the girls were model wards at Orangewood, displaying no behavioral problems that would suggest emotional disturbance.

The parents mistake the applicable standard for jurisdiction, which does not require evidence of actual emotional damage. The juvenile court is charged to protect children against the risk of serious emotional harm, and no matter how well A. and J. bore up under fathers abuse, the evidence demonstrating father raped and choked a daughter supported the inference the girls were in danger of grave emotional fallout from these horrific acts. Indeed, the evidence demonstrated both girls suffered severe anxiety: J. worried father would probably kill [her] and A. had nightmares father would murder her. Given that mother witnessed the choking incident but defended father, and aligned with father against the girls when she learned of the rapes, the juvenile court could reasonably conclude mothers web of denial portended emotional harm for her daughters. (In re Rubisela E. (2000) 85 Cal.App.4th 177, 198.) In short, substantial evidence supports the courts jurisdictional findings with respect to both girls and both parents.

B. Substantial Evidence Supports Removal of the Girls from Mothers Custody

Similarly without merit is the parents challenge concerning the sufficiency of the evidence to support removal of the children from mothers care. Section 361 provides that the juvenile court may issue orders limiting parental control over a minor adjudicated a dependent child described by section 300. But the juvenile court may not remove a dependent child from parental custody unless the court finds clear and convincing evidence [t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no other reasonable means to protect the child. ( 361, subd. (c)(1); see also In re Paul E. (1995) 39 Cal.App.4th 996, 1004.) Although the juvenile court must base its decision on the clear and convincing standard required under section 361.5, subdivision (b), we review the courts order under the substantial evidence standard. On appeal, the clear and convincing test disappears . . . [and] the usual rule of conflicting evidence is applied, giving full effect to the respondents evidence, however slight, and disregarding the appellants evidence, however strong. (Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 881.)

As should be apparent from our discussion, the trial court could reasonably conclude mother was too entangled with father and lacked the resolve to protect them from him. The parents contrary claim invites us to reweigh the evidence, which we may not do.

III

DISPOSITION

The order of the juvenile court is affirmed.

ARONSON, J.

WE CONCUR:

SILLS, P. J.

FYBEL, J.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line attorney.