In re David P.

Filed 5/25/10 In re David P. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from an order of the Superior Court of Los Angeles County, Stephen Marpet, Court Commissioner. Affirmed.

Jesse F. Rodriguez, under appointment by the Court of Appeal, for Defendant and Appellant.

Office of the Los Angeles County Counsel, James M. Owens, Assistant County Counsel, and Timothy M. OCrowley, Senior Deputy County Counsel, for Plaintiff and Respondent.

Joshua P. (Father) and Mi.G. (Mother) are the parents of four children: David (born Nov. 2001), Hannah (born Jan. 2003), M. (born Oct. 2005), and Jonathan (born Feb. 2008). Father appeals from the June 3, 2009 order of the juvenile court sustaining an allegation pursuant to Welfare and Institutions Code section 300, subdivision (b)(2).[1] We affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

In September 2008, the Department of Children and Family Services (the Department) received a referral alleging domestic violence by Father against Mother. The parents admitted that they had been in a verbal and physical confrontation because Father had brought a child from another relationship into the home. The children witnessed the incident. The parents agreed to a safety plan which required Father to move out of the home. Later that month, the Department received another referral alleging that Father was back in the home and there was another incident of domestic violence.

The Department filed a petition pursuant to section 300, subdivisions (a) and (b) on October 17, 2008. At a hearing held that day, the juvenile court found a prima facie case for detaining the minors and conditioned release of the children to Mother on Fathers not residing in the home. It issued a restraining order against Father.

On November 8, 2008, police officers responded to the home after they received a child abuse referral. Maternal grandmother Patricia W. told them that M., then three years old, recently had been exhibiting a number of changes in her behavior. She resisted having her diaper changed by Patricia W. and said that Father had touched her, pointing between her legs. The officers asked M. to show them what Father did. M. used her right hand and placed it on her buttocks. Then she closed her left hand into a fist and inserted her right index finger between the fingers of her left hand. She did not state when or where it had occurred. The officers took M. into protective custody. At the police station, they reinterviewed her, and she said that Father would get naked and begin to undress her. She demonstrated Fathers actions by using the same gestures with her two hands which, according to the detective, resembled digital penetration.

At a medical examination at the County Medical Center, doctors asked M., who was with Mother, if it hurts down there. She nodded affirmatively. M. then said, My daddy didnt hurt me! M.s anal/genital examination revealed no trauma, injuries, or abnormalities.

On November 10, 2008, the social worker interviewed M. Referring to the sexual abuse allegations, the worker wrote the following in the jurisdiction/disposition report. [T]he child stated, My daddy hurt me like this (child shoved her index finger between her legs near her vaginal area). He did this! (Child inserted her index finger into the balled fists of the other hand and forcefully twisted her finger quickly.) He did it hard to me and he touched me right here (child pointing [to] her butt area).

The social worker also spoke to the older children, David and Hannah. Both denied seeing Father touch M.s genitals. Hannah said her father had never touched my privates.

On the same subject, Mother stated, At first I didnt want to believe it because Joshua is a good dad. But it is not impossible that it happened.

When asked about M.s allegations, Father replied, I did not touch my daughter. I dont even bathe her. I dont know why she would say that. I dont bathe her or wipe her because I want them to know its not okay for everybody to do that. . . . I would never do any sick shit like that to my own daughter.

On November 13, 2008, the Department filed an amended petition adding allegations of sexual abuse by Father against M. pursuant to section 300, subdivision (b).

On November 14, 2008, the initial hearing on the amended petition, the court ordered the children detained with relatives and the parents were allowed monitored visitation.

On January 6, 2009, Father filed a notice of objection to hearsay statements of M., David, Hannah, two police officers, the maternal aunt, and Patricia W., which were contained in the November 13 detention report and the November 14 jurisdiction/disposition report.

On June 2, 2009, a contested jurisdiction/disposition hearing was held. The Department reports were admitted into evidence. Father did not renew his previously filed objections or ask the court to rule on those objections.

Three-year-old M. denied telling Patricia W. that Father had hurt her. M. said she told Patricia [t]hat Daddy didnt do nothing to me. M. testified she did not tell police or anyone else that Father had hurt her and denied that he had. M. told the court she had never been to the hospital. When the court asked her, Did you ever point and show the police what Daddy did to you?, M. pointed to her vaginal area and said, Right here. She went on to say that Father had never touched her there and she said she did not tell the police that he had. Later, when M. was asked why she had pointed to her vaginal area while on the witness stand, she denied that she had.

Patricia W. testified that M. disclosed she had been abused when Patricia took her out of the bathtub. In describing how M. communicated that she had been touched, Patricia told the court the following. M. said, Granny, my daddy took his finger. He put his finger here. [Patricia pointed to her vaginal area.] And she turned around and said, He put his finger in my back. [Patricia pointed toward her rectum.] When Patricia asked M. when Father touched her, she replied, Granny, I dont know, but I know what he did. Patricia said that every day during the first three or four months that she lived with her, M. repeated the accusation and cried. Nonetheless, M. seemed happy to speak to Father on the telephone and Patricia opined that M. loves Father.

The social worker testified M. told her that Father had hurt her between her legs and demonstrated by jamming an index finger of one hand in the closed fist of the other hand.

The court sustained the petition as to counts a-1 (domestic violence causing serious physical harm), b-1 (domestic violence causing risk of physical and emotional harm), b-3 (substance abuse causing risk of physical and emotional harm), b-4 (striking the children with a belt as disciplinary measure causing risk of physical and emotional harm), and j-2 (striking a child with a belt as disciplinary measure placing the other siblings at risk of physical and emotional harm) as pled. It amended the allegations on counts b-2 (risk of physical harm from failure to protect) and j-1 (abuse of sibling) from sexual abuse to one of inappropriate[] touching [of M.]s private parts and sustained those counts as amended. It struck count d-1 (sexual abuse) entirely. The children were removed from parents custody and only monitored visitation was allowed. Father was ordered to participate in drug rehabilitation, violence counseling, parent education, and individual counseling programs and undergo random drug testing.

On July 6, 2009, Father filed a notice of appeal from the order that: The court sustained allegation b-2 (amended). He does not challenge the courts other jurisdictional findings or the dispositional order.

DISCUSSION

I. The Alleged Legal Insufficiency of the Amended Petition

Father contends that the amended petition, in particular count b-2, does not state a cause of action under section 300, subdivision (b). The Department argues Father forfeited the claim by failing to object in the trial court. We agree with the Department.

While Father acknowledges he did not object to the alleged insufficiency of the petition in the trial court, he claims that because the court amended the petition to conform to proof after argument, he did not have an opportunity to object. He notes that the cases relied upon by the Department, specifically In re David H. (2008) 165 Cal.App.4th 1626, involve a failure to object pre-adjudication. Thus, he concludes, the forfeiture doctrine does not apply in this case. We are not persuaded.

In In re Christopher C. (2010) 182 Cal.App.4th 73, we agreed with the holding of David H. and concluded that a parent may not challenge the facial sufficiency of a petition for the first time on appeal. (In re Christopher C., supra, 182 Cal.App.4th at pp. 82-83.) In Christopher C., as in the present case, the court amended the petition after the jurisdictional hearing commenced. Father does not explain why his failure to object should be excused when the court clearly outlined the manner in which the petition was going to be amended. Allowing parties to challenge the facial insufficiency of a petition for the first time on appeal conflicts with the emphasis on expeditious processing of these cases so that children can achieve permanence and stability without unnecessary delay if reunification efforts fail. [Citation.] Enforcing the forfeiture rule requires parties to raise such issues in the juvenile court where they can be promptly remedied without undue prejudice to the interests of any of the parties involved. [Citations.] (In re David H., supra, 165 Cal.App.4th at p. 1640.)

Even if we were to assume the amended petition was deficient, Father cannot establish prejudice. The court amended the petition to conform to proof because, while it believed Father intentionally touched M.s private parts, it was not convinced that he digitally penetrated or fondled her vagina. Amendments to conform to proof are favored and should be allowed unless the pleading as drafted prior to the proposed amendment would have misled the adversarial party to its prejudice. (In re Jessica C. (2001) 93 Cal.App.4th 1027, 1042.) There is no doubt that Father would not have defended against the sexual abuse allegation differently had the petition alleged that he inappropriately touch[ed] [M.s] private parts as opposed to digitally penetrat[ed] the childs vagina and fondl[ed] the childs vagina and anus. He does not contend otherwise.

II. Sufficiency of the Evidence

Father contends there is insufficient evidence to support count b-2 because there is no evidence that M. was at substantial risk of suffering serious physical harm or illness. We disagree.

Section 300, subdivision (b) provides that a child may be declared a dependent of the juvenile court if: The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child . . . .

In juvenile cases, as in other areas of the law, the power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the verdict, if possible. Where there is more than one inference which can reasonably be deduced from the facts, the appellate court is without power to substitute its deductions for those of the trier of fact. [Citation.] (In re Carlos T. (2009) 174 Cal.App.4th 795, 804.)

In this case, there was evidence that M. told her grandmother and the social worker that her Father touched her vaginal and anal area and hurt her. She did not describe an inadvertent or innocent touching while being dressed or bathed. The gesture she made in demonstrating how she was touched clearly indicated force beyond inadvertent touching. While M. denied at trial that Father had touched her or hurt her, the court was entitled to credit her statements to the contrary. We conclude that a three-year-old child who has her private parts touched in an inappropriate manner and experiences pain as a result is necessarily at substantial risk of suffering physical harm.

We find ample evidence to sustain the b-2 count of the amended petition.

DISPOSITION

The order sustaining count b-2 of the amended petition pursuant to section 300, subdivision (b) is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

SUZUKAWA, J.

We concur:

EPSTEIN, P.J. MANELLA, J.

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[1] All further statutory references are to the Welfare and Institutions Code.