In re E.S.

Filed 8/20/07 In re E.S. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County. Steven L. Berman, Juvenile Court Referee. Affirmed.

Judy Weissberg-Ortiz, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, and Aileen Wong, Senior Associate County Counsel, for Plaintiff and Respondent.

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Edgar S. (father) appeals from the judgment of February 8, 2007, declaring his daughter, E.S., a dependent of the court under Welfare and Institutions Code section 300.^[1] He contends substantial evidence does not support the sexual abuse allegation sustained under section 300, subdivisions (b) and (d). He further contends that if the record does not support the allegation, the orders removing E. from his custody and requiring father to participate in sex abuse rehabilitation services should be reversed. As substantial evidence supports the findings, we affirm the judgment.

STATEMENT OF FACTS AND PROCEDURE

E. was born in October 2002 to father and Irene P. (mother),^[2]who were married. Father had a history of domestic violence and drug abuse. He was physically and verbally abusive to mother. On several occasions during sex, father wanted to insert his finger in mothers anus, but mother would not let him. Mother and father separated in 2003. E. lived with mother, but father had weekly contact with E.

On November 8, 2006, E. told her day care provider, Denise Miller, that father had touched her in her butt on November 5, 2006, and it hurt. She stated, My daddy hurt me right here and here [and] pointed to her vagina and her butt. . . . He stuck his finger back here and it hurted. . . . [S]he told [Millers husband] three times too, My daddy hurt me right here and pointed with her finger to her behind. E. underwent a child sexual abuse examination. She told the nurse practitioner that father touched her on her back area with his finger. She stated that it hurt but she did not cry. Medical examination revealed small lacerations, irritation, and redness in the area of her anus. E. was detained by the Department of Children and Family Services in mothers home.

On November 9, 2006, E. told Los Angeles Police Department police officers that Papi put his finger in my cola (anus). During the interview she pointed several times with her finger towards the direction of her butt and stated that her butt hurts. She stated the molestation occurred on her bed. Mother stated that E. told mother after returning home from a visit on November 5, 2006, that mother did not love her and she was alone. On November 9, 2006, father explained to a social worker E. played horse with him on November 5, 2006, and, on the way home, grabbed her pants on her private part and stated that it hurt. Father stated that he told mother about it and told her to take care of it. Mother denied father told her this. On December 15, 2006, after the Department filed a detention report containing mothers denial, father told a different social worker that he totally forgot to tell [mother] what [E.] said.

On December 15, 2006, E. told a Department interviewer that she [s]aw Santa Claus and to eat to my daddys house. Something bad to my cola (butt). He (father) did something bad with his finger in my colita (butt). El me metio el dedo. He (father) put his finger in; (E. pointed to her behind). Si me doleo (yes, it hurt me). I want to stay with my mommy.

At the jurisdiction/disposition hearing on February 8, 2007, the dependency court found that E. was too young to qualify to testify, but was aware and able to communicate, and knew what was going on. Her statements to the police, Miller, the medical personnel, and the social worker, which were contained in the social workers reports, were admitted into evidence.^[3] The dependency court found jurisdiction under section 300, subdivisions (b) (substantial danger of serious physical harm) and (d) (sexual abuse) based on a sustained allegation that father sexually abused E. on or about November 8, 2006, consisting of digitally penetrating the childs anus resulting in the child sustaining lacerations, irritation and redness. The section 300, subdivision (b) allegation was also found true on the grounds that, on prior occasions, mother and father had a history of domestic violence, and father had a history of illicit drug abuse and was a current user of marijuana and cocaine. The dependency court ordered E. placed in home-of-parent-mother. The dependency court awarded father monitored visits and made counseling orders.

DISCUSSION

Substantial Evidence Supports The Jurisdictional Allegation That Father Sexually Abused E.

Father contends substantial evidence does not support the sustained allegation under section 300, subdivisions (b) and (d) that father sexually abused E. by digitally penetrating her anus, because the record contains some evidence that might suggest a different scenario. The contention is without merit. Fathers brief correctly states the standard of review when a challenge is made to the sufficiency of the evidence to support a finding, but disregards it in his analysis of the record. ^[4]

The evidence that E. told Miller, a medical worker, the social worker, and the police that father digitally penetrated her anus on November 5, 2006, coupled with the presence of lacerations, redness, and irritation in her anal area, and E.s change in affect after the abuse, amply supported the finding. The evidence father changed the story he told the social workers indicated fathers denial was not credible.

Father argues that no witness corroborated E.s allegations, the medical evidence was consistent with constipation and with inserting his finger in her anus in order to relieve her constipation instead of to achieve sexual gratification, mother was hypervigilant due to her own history of being sexually abused, E. did not qualify to testify, no physical evidence showed father sexually abused E., and the police felt father would not be prosecuted. By these arguments, father attempts to persuade us to reweigh the evidence, infer a different scenario, and conclude no sexual abuse occurred. This we will not do. (In re Matthew S., supra, 201 Cal.App.3d at p. 321.) Moreover, there was no evidence E. suffered from constipation on November 5, 2005, or that mother was hypervigilent. There was no evidence father inserted his finger in E.s anus to relieve her constipation, and such a scenario contradicted fathers denial he inserted his finger in her anus. On the record in this case, the sex abuse finding must be upheld.

As substantial evidence supports the sex abuse allegation, the findings under section 300, subdivisions (b) and (d) and the removal and sexual abuse rehabilitation orders must be affirmed.

DISPOSITION

The judgment is affirmed.

KRIEGLER, J.

We concur:

TURNER, P. J.

ARMSTRONG, J.

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^[1] All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.

^[2] Mother did not appeal.

^[3] E.s hearsay statements to the police, social worker, and medical worker, as well as the statements by the police, social worker, and medical worker, came in without objection. Father objected under section 355 to the admission of Millers interview if Miller did not testify. Under section 355, subdivision (c)(1), If any party to the jurisdictional hearing raises a timely objection to the admission of specific hearsay evidence contained in a social study, the specific hearsay evidence shall not be sufficient by itself to support a jurisdictional finding[,] . . . unless the petitioner establishes one or more of the following exceptions: [] . . . [] (D)  The hearsay declarant is available for cross-examination. The dependency court ruled that, if Miller did not testify, her interview was admissible but a finding of dependency jurisdiction could not be based solely on her interview. Father did not call Miller to testify.

^[4] In reviewing the jurisdictional findings and the disposition, we look to see if substantial evidence, contradicted or uncontradicted, supports them. [Citation.] In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court's determinations; and we note that issues of fact and credibility are the province of the trial court. [Citation.] (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court. (In re Matthew S. (1988) 201 Cal.App.3d 315, 321.)

The evidence must be reasonable in nature, credible, and of solid value. [Citation.] The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)