In re Grace L.

Filed 8/29/06 In re Grace L. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Robert W. Nagby^* and Becky Dugan, Judges. Affirmed.

Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant.

Joe S. Rank, County Counsel, and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.

Kate M. Chandler, under appointment by the Court of Appeal, for Defendant and Respondent.

Konrad S. Lee, under appointment by the Court of Appeal, for Minor.

J.M. (mother) and her daughter, Grace L., are adherents of a religious group called the Christ Family. They believe that Lightning Amen, the founder of the Christ Family, is God.

In 2001, it was reported that Amen had sexually molested three sisters, Shelley, Sharon, and Yvonne Y. As a result, the Y. girls were declared dependents of the juvenile court. Amen pleaded guilty to one count of annoying or molesting a child.

In 2004, the mother of the Y. girls reported that Amen had also sexually molested three other girls, including Grace. Although Grace and a second girl denied any molestation, the third girl, according to a social worker, said that Amen had “rubbed [her] all over [her] body” and had touched the girls’ private parts. In subsequent videotaped sexual abuse interviews, however, all three girls denied any molestation.

The juvenile court found that Grace was in danger of molestation. It further found that, because the mother believed that Amen was God, she was unable to protect Grace from molestation. Accordingly, it declared Grace a dependent of the juvenile court and removed her from the mother’s custody.

The mother appeals, contending:

1. There was insufficient evidence to support the juvenile court’s finding that it had jurisdiction based on failure to protect (Welf. & Inst. Code, § 300, subd. (b)) and sexual abuse (Welf. & Inst. Code, § 300, subd. (d)).

2. There was insufficient evidence to support the removal of Grace from the mother’s custody.

3. The bench officer who presided over the detention hearing and other pretrial hearings should have recused himself because he had previously presided over hearings in the case of the Y. girls.

4. The juvenile court’s order barring anyone who believed that Amen was God from supervising the mother’s visitation violated the right to freedom of religion.

We find no error. Accordingly, we will affirm.

I

PROCEDURAL BACKGROUND

On January 5, 2005, the Department of Public Social Services (the Department) filed this dependency proceeding. On January 6, 2005, the juvenile court (per Commissioner Nagby) sustained the detention. On January 10, 2005, the juvenile court ordered the Department to investigate placement with the father, who lived in Missouri.

On January 31, 2005, Commissioner Nagby ordered Grace transported to Missouri for a visit with the father, from February 25 through March 2. On March 2, 2005, he authorized an “extended visit“ with the father; the father was to enroll Grace in school in Missouri.

On May 5, 2005, the mother refused to stipulate to Commissioner Nagby. The case was reassigned to Judge Dugan.

Meanwhile, the mother repeatedly attempted to file papers with her attorney’s name on the caption, but without her attorney’s authorization; sometimes she signed her own name, and sometimes she signed her attorney’s name. The juvenile court told her “on several occasions” not to do this, but she persisted.

From August 2 through 5, 2005, the juvenile court (per Judge Dugan) held a contested jurisdictional/dispositional hearing. At the time, Grace was still living with her father in Missouri. According to her therapist, she had bonded with him, and her adjustment was “excellent.” She appeared “happy and outgoing.” Grace told the social worker that “she likes living with her father, but misses her mother a lot.”

At the conclusion of the hearing, the juvenile court found that “[t]he mother knew or should have reasonably known that her daughter was at risk of being sexually abused by . . . Amen, in that she was aware that several other children who resided on the property disclosed that they were sexually abused by him, thus placing the child at risk of suffering serious physical harm.” It therefore sustained jurisdiction based on both failure to protect (Welf. & Inst. Code, § 300, subd. (b)) and sexual abuse (Welf. & Inst. Code, § 300, subd. (d)).

The juvenile court also found a substantial danger to Grace’s well-being if she was returned to the mother. Pursuant to Welfare and Institutions Code section 361.2, it gave custody to the father. It allowed the mother supervised visitation, including during winter and spring break and for most of the summer. It added, however, that the supervisor could not be “anybody who thinks [Amen]’s God . . . .” It also ordered the mother not to allow Grace to be around Amen or on Amen’s property.

The court directed the father’s counsel to prepare “family law orders.” It further ordered that “[u]pon filing of the formal order in the appropriate[ ]Family Law Court the dependency is to be terminated . . . .”

II

FACTUAL BACKGROUND

Lightning Amen founded a religious community called the Christ Family. In 1986, Amen was convicted of sale or transportation of a controlled substance. (Former Health & Saf. Code, § 11379; see now Health & Saf. Code, § 11379, subd. (a).) In 2003, he was convicted of driving under the influence. (Veh. Code, § 23152.)

A. The Y. Case.

K.M. (the Y. mother) had three daughters -- Shelley, Sharon, and Yvonne Y. K.M. was a follower of Amen.

On December 9, 2001, a neighbor called the police and reported that Sharon and Yvonne were at her house and afraid to go home “because of their mother’s boyfriend, [Lightning] Amen.” When the police responded, Sharon and Yvonne said they had found their mother and Amen in bed together; Amen then said, “Take your clothes off and get in bed with us.” Sharon and Yvonne went to the neighbor’s house instead; Shelley went to her room. Sharon and Yvonne also told police that, earlier that day, Amen had pulled off Shelley’s shirt, exposing her breasts. When Shelley started to cry, Amen told her, “Be quiet, the[y’]re mine anyways.” Finally, they said that a few years earlier, Amen had put his hand down their pants and touched their buttocks.

The police went to the home. They asked Shelley “if Amen ha[d] touched her inappropriately”; she said he had pulled off her shirt and exposed her breasts. Shelley told a social worker about the “get in bed” incident. She also said that, four years earlier, Amen had put his hand down her pants. All three girls wanted to be placed in a foster home rather than stay with their mother and Amen.

The Y. mother told the police that “ . . . Sharon sometimes makes up stories to get attention and none of the accusations [are] true.” Amen said the accusations “were crazy and untrue.”

The Y. girls were detained, and on December 11, 2001, the Department filed a dependency petition concerning them. Amen was arrested and charged with three counts of lewd acts against a child.

On January 10, 2002, the Y. mother told a social worker that the girls had seen her and Amen hugging and kissing, but they had both been fully dressed. She admitted that Amen “did . . . lift [Shelley’s] shirt up” and that “that was not appropriate behavior.” She also said Amen had instructed the girls that, whenever he came into the room, they had to give him a hug. The Y. mother said she knew nothing about him touching their buttocks.

On January 22, 2002, the juvenile court sustained the petition, finding that Amen had sexually abused Shelley and that the other Y. girls were at risk for sexual abuse.

In February 2002, on the Department’s application, a restraining order was issued forbidding Amen to contact the Y. mother or the Y. girls for three years.

On August 2, 2002, Amen pleaded guilty to one count of annoying or molesting a child (Pen. Code, § 647.6, subd. (a)) and was placed on three years’ summary probation. As a condition of probation, he was required to have no contact with the Y. girls.

In family therapy, Shelley “confronted [the Y. mother] about her anger at her for her failure to protect her when Lightning Amen sexually abused her. [The Y. mother] responded appropriately.”

On or about February 24, 2003, the girls were returned to the Y. mother’s custody, and the dependency was terminated. The Y. mother had assured the social worker “that she has not and will not see Lightning Amen.”

Nevertheless, on March 14, 2003, Amen visited the Y. mother’s home while her daughters were there. At Shelley’s instance, both the police and the Department were called. The Y. mother claimed that Amen had been “wrongly accused.” The social worker gave her a copy of the restraining order.

B. The R. and L. Cases.

At the end of 2004, the mother and Grace were living in a trailer in the Homeland area. K.R. (the R. mother) and her two daughters, Glory and Joy R., lived with them, sleeping in a nearby van. Grace was seven, Glory was eight, and Joy was six. Amen and other adherents of the Christ Family were building a home on the property for the two families to live in.

1. The Initial Report from the Y. Mother.

On or about December 22, 2004, the Y. mother hosted a birthday party. On December 29, 2004, she reported to the Department that some of the children at the birthday party said they had been abused by Amen. She also left a profane phone message for the mother, threatening “to take down Amen” and “to take you down.”

On December 30, 2004, around 8:00 a.m., the mother got a phone call from another adherent of the Christ Family. He told her that the Y. mother had reported that Amen had molested Grace, Glory, and Joy. He warned her that that the Department was coming to take the girls and that she, the R. mother, and Amen were all going to be arrested.

That evening, a deputy came out and interviewed Grace. Grace denied being molested.

The R. mother asked her daughters if they had been molested. According to her, they denied it, and they denied telling the Y. girls that they had been.

2. The Interviews at School.

On January 3, 2005, someone (presumably the Y. mother) reported again that Amen was sexually abusing Grace, Glory, and Joy. Two social workers, accompanied by a uniformed police officer, went to the public school that all three girls attended and interviewed them.

Glory said that Amen was “like a grandfather to her.” She visited him every day after school. When people disobeyed him, they were asked to leave the community. She said she was not afraid of him because he was her God and would not do anything to hurt her. She denied that anybody had ever touched her private parts.

Joy said that Amen was “her ‘God,’ and she obeys whatever he tells her to do.” He visited her house every day. When asked if anyone had ever touched her private parts, she said “Amen has touched me on my private parts on the outside of my clothes.”^[1] She said he had also touched the private parts of Glory and Grace. She also said, “Amen has rubbed my hands, legs, and skin all over my body while my mom and other people have watched.” When asked “if anyone told her not to tell about Lightning Amen touching her,” she said, “My mom told me if they ask questions I am supposed to say [n]o to everything.”

Grace seemed to be terrified that her mother might go to jail. She said she lived “in a place where there are lots of people” who “believe that Lightning Amen is God and that they all should obey whatever he says.” She said she had not been hurt. She added, “[S]omething happened,” but she did not remember what. She said “one has to believe that [Amen] is God because ‘if you believe that he is God, nothing bad will happen.’” When asked what bad could happen, “[s]he stated ‘like taking your mother away . . . .’” She repeated that “something bad has happened, but I don’t remember.”

At this point, Grace, Glory, and Joy were detained. A social worker then interviewed the mother. She said “she does not believe Lightning Amen could do anything wrong to Grace because he loves her very much” and because he “has the Spirit of God in him . . . .” She said the Y. girls had accused him falsely in the past because “he used to have a relationship with their mother, and . . . would not let them do whatever they wanted to do.” Moreover, the Y. mother was now accusing him falsely because she “got her children taken away from her and . . . wants to make our life miserable.”

Meanwhile, the Y. girls were also detained. Shelley and Sharon each separately told a social worker that, at the birthday party, Glory, Joy, and Grace had disclosed that Amen was having sex with them. “[T]he[ir] mothers have been present and don’t say anything about it.” Yvonne told a social worker that Amen had “asked her to help him go to the bathroom”; the Y. mother had helped him instead. Yvonne explained, “[I]t’s an honor for the women to hold his penis when he goes to the bathroom.”

3. The Social Worker’s Meeting with the Mother and the R. Mother.

On January 5, 2005, the Department filed (1) a new dependency proceeding concerning the Y. girls, (2) a dependency proceeding concerning the R. girls, and (3) this dependency proceeding concerning Grace.

Also on January 5, 2005, the mother asked to see the social worker. She arrived with the R. mother. According to the social worker,^[2] the mother said “she had a weight on her shoulders for not telling . . . the truth” in the initial interview. She explained, “ . . . I told the girls not to tell you about Lightning Amen being God, because I knew that you would not believe [them] . . . . I told [Grace] that if she was to tell the truth to you, I would go to [j]ail.” She said that she believed Amen was God and “they have to . . . obey whatever he says.”

When asked if Amen had touched the girls’ private parts, the mother replied, “There is not a part of their bodies that he has not kissed and he has not touched! But . . . it is not in a sexual manner, it is out of love.” She added, “For God, there are no bounds . . . .” When asked if she had seen Amen touch the girls’ private parts, she replied, “The way your world sees things is different than in our world. [T]o be with God, you have to leave all of your possessions, including your loved ones, just like Jesus Christ says.”

According to the social worker, the mother said, “ . . . Lightning Amen does this,” then kissed the R. mother on the lips and “grabbed” the R. mother’s breasts. She explained, “[T]his is the way Lightning Amen could be showing his affection . . . .” When she said Amen helps people, the social worker asked if he touched the private parts of people he was trying to help. The mother replied, “If he believes that the person had a crutch, and he needs to do that to help the person to overcome that, yes, he will definitely do that.” The R. mother said she agreed with what the mother had said.

4. The RCAT Interviews.

On January 18, 2005, the Riverside Child Assessment Team (RCAT) conducted separate videotaped interviews with Glory and Joy. When Glory was asked why she was in foster care, she said the Y. mother had told someone that Amen had touched their private parts, “but he really didn’t.” She identified Amen as her “grandpa.” She denied thinking of him as anything else. She got along well with Amen, “because he’s really, really nice, and he likes to do a lot of fun things.” She liked to “play dragon” with him. In this game, he pretended to be a dragon; Glory, Joy, and Grace chased him and jumped on his back. Glory denied that Amen had ever done anything to her that she “didn’t care for or feel comfortable about[.]” If he did, she would tell her mother. She denied that Amen had ever touched her private parts.

Joy said she did not know why she was in foster care, except that some people had come to her school and asked her and Glory and Grace about Amen. When asked who Amen was, she said, “He’s just a person who comes around” and who was helping to finish the house. She liked to “play dragon, where [Amen] was the dragon.” If he caught them, he would tickle them “under our neck and on our stomach . . . and the bottoms of our feet and spots where it tickles a lot.” Sometimes he asked them to scratch or rub his back. Joy denied that “anything [had] ever happened to [her]” involving her private parts. When asked if Amen had ever done anything or made her do anything she did not like, she said sometimes he made her carry heavy bricks.

Meanwhile, on February 2, 2005, the Y. mother told a social worker that she had had “a brief sexual relationship” with Amen, which she likened to a “one night stand.” She added, “[A]ll the women have a sexual relationship with him because he believes that everyone belongs to him.” He also believed that “all the women and their children are his.” According to the Y. mother, Glory and Joy told her that Amen had “touched their privates many times . . . .” Glory also told her “that Amen had his fingers in her.” Sharon Y. told a social worker that she had seen Amen “put his finger in Gracie’s privates while they watched television.”

On February 3, 2005, the RCAT conducted a videotaped interview with Grace. When asked about Amen, she said, “[H]e’s nice. He helps my mom.” She was asked if anything ever happened with Amen that she did not like; she said, “Nope.” When asked further similar questions, however, she kept stating, “I don’t really remember.” She denied that anybody had ever done anything to her private parts. She specifically denied that Amen had ever touched her private parts.

5. Dr. Ryan’s Psychological Evaluation of the Mother.

On March 24, 2005, Dr. Edward J. Ryan performed a court-ordered psychological evaluation of the mother. He reported: “She said that in her view, the Holy Spirit resides in [Amen]. I specifically asked if that would make him God, to which her reply was a definite ‘no[.]’ . . . The indications are that he holds a lot of influence with her, but not to the point that she would commit a crime or hurt anyone.” He noted “a deep bond between [the mother] and [Grace]” and that the mother was “dedicat[ed] to the well[-]being of this child.”

Dr. Ryan concluded that the mother could protect Grace: “It is my opinion that no one tells [the mother] what to believe, . . . what to do or when to do it. I don’t believe that she is a pawn of anyone, nor that she would allow her child to be victimized in any manner, by anyone. [S]he would do whatever it took to protect her child rather than letting any of her own needs or beliefs . . . interfere with that.”

C. Additional Trial Testimony.

The mother admitted believing that Amen was God Almighty, the father of Jesus Christ. She did not believe that Amen had ever touched a child sexually. She testified that Grace had never been alone with him.

According to the mother, if Grace told her that Amen had touched her private parts, “[m]y reaction would have been, tell me more about that. I mean, I would have wanted to know exactly what she was talking about.

. . .

Then I would have brought her to Amen and I would have said, what’s going on?

. . .

[I]f it was determined that that was true I would definitely separate myself . . . .” However, she also said that, if Grace said Amen had molested her, she would believe her, because Grace “loves Amen very much” and “wouldn’t lie . . . about something like that.”

The mother gave a very different account of her meeting with the social worker. She denied saying that she had lied or that there was a weight on her shoulders. She denied saying she told Grace she could go to jail if Grace told the truth. She denied saying Amen had to be obeyed. She denied saying Amen had touched or kissed the girls all over. She also denied saying God has “no bounds.” She claimed that, when asked if she had seen Amen touch the girls’ private parts, she said, “No! Never!” According to the mother, she gave the R. mother a “peck on the lips” and “pinched” her chest, to show “how, by doing something normal in front of someone with perverse ideas, they see something perverse.”

The R. mother, too, considered Amen to be God Almighty and the father of Jesus Christ. She had taught this to Glory and Joy. However, if Amen told her to do something she considered unethical, she would not obey him.^[3] If Glory told her that Amen had molested her, she would believe her. She testified that her daughters were supervised constantly and were never left alone with Amen.

The R. mother was aware of the Y. case, but the Y. girls were known to be liars, and the Y. mother had told her “there was no molest that ever happened.” According to the R. mother, Grace did not attend the birthday party. Glory and Joy did attend, but their father went with them, and they did not stay overnight.

Both the mother and the R. mother denied telling the girls to lie about being molested; they only told them not to tell anyone that Amen was God.

The R. mother generally supported the mother’s account of the meeting with the social worker.

In a declaration, the Y. mother testified that Amen had never molested any children. In her daughters’ case, she had “agree[d] to the social workers[‘] terms in order to get my daughters back.” After the birthday party, “under the influence of alcohol, anger and jealousy,” she had accused Amen of molesting Grace, Glory, and Joy, based on information that she later found out was not true. She agreed that Grace had not attended the birthday party and that Glory and Joy had attended but had not spent the night. She concluded, “Glory, Joy and Grace never said anything to me about any kind of inappropriate behavior by Amen.”

III

THE JUVENILE COURT’S FINDINGS

The juvenile court stated: “Do I believe Grace was molested? No. Do I believe she’s at risk of molest? Yes. Do I believe other children were molested? I do. I truly do.”

Concerning Grace’s RCAT interview, the juvenile court observed that “when [Grace] was sure of something she said it in no uncertain terms. ‘No way.’ . . .

. . .

And she answers every question with perfect memory and perfect description until Lightning Amen is brought up.” At that point, she started saying, “I don’t remember” and “I don’t know . . . .” However, when “they get down to the vagina . . . she says, and it’s . . . very credible, ‘No way. He’s not touching me down there.’” The court concluded, “ . . . I think I can clearly make a finding that I don’t think Grace was molested. I think he’s done some stuff that has made her uncomfortable . . . .

. . . I would refer to [it] as ‘grooming activity.’ . . .

. . .

. . . I don’t think it’s appropriate for mid-50-year-old men^[[4]] to be tickling girls all over.” The court noted that, when the subject of tickling came up, the girls appeared to be uncomfortable.

The juvenile court then discussed Joy’s RCAT interview: “[S]he [had already] confessed . . . . She [had] said that he touched her body parts and she saw Lightning Amen touch other people’s body parts. . . . She’s afraid she’s going to get in trouble.

By the RCAT interview three weeks later Glory has clearly told Joy, you better shut up. . . .

. . .

[E]verybody arrives on the ‘I don’t remember.’ That’s not a denial. These kids very clearly know how to deny. . . .

. . . We get shrugs, ‘I don’t know,’ we get the looking down and the swallowing, the things people do when they are clearly remembering and cannot say.

I think that Joy said it right to begin with. . . . ‘He touched us on the outside of our clothing on our private parts.’ I think that’s exactly what occurred with Joy and the other kids.”

With regard to the Y. girls, the juvenile court stated: “The Y[.] girls clearly are not the best kids in the world. I believe [the mother]. They’re raised by a troubled mom, you know, an alcoholic person with her own issues. They’re disobedient to her. . . . They’re out of control . . . .

“Those are the kids and the moms[,] by the way[,] that are the victims[,] generally speaking. They’re easy victims and easy marks. Nobody believes them. They’re the kind of people we often see as victims of these kinds of injuries because everybody can just say, oh, they lie. They lie and nothing they say is true. They’re all liars and drunks.”

“One more telling thing . . . . Here is this guy that’s God, that can do no wrong, that only does good. I never leave my child alone with him. I am with my child 24/7. The children never go in his house. . . .

“Why all of that protection for such a perfect guy? Why all of that concern about never leaving your children? . . . Because . . . [i]n your heart you know there’s a problem.”

Finally, concerning the mother’s ability to protect Grace, the juvenile court stated: “When I come down to it, I don’t care who believes who is God. . . .

What matters is that if you believe somebody is God and all-good and all-powerful and that that person can do no wrong, . . . and . . . the kids are taught the same thing, . . . how on earth can anybody be protected from a wrongdoing from that person? . . .

“[The mother] . . . after [counsel for the Department] . . . asked her . . . , [w]hat would you do, the first statement . . . was very telling to me. If Grace told me that she had been touched by [Amen], I would bring her right down to [Amen]. That was the first thing she said . . . . And I believe that’s what she would do . . . .

“Now, picture that. Picture a 7-year-old in that situation. Hey, mom, you know God, he touched me and I don’t like it. It felt really wrong.

All right. Well[], let’s go down and talk to him.

Can you see the problem with the 7-year-old being caught in that whirlwind?”

“I do not think [the mother] would ever intentionally hurt her child . . . . I do not think she would intentionally let any other human being hurt her child. . . .

It’s just very hard when you live with God. . . .

“If I believe[d] that [the mother] would follow my orders and leave there I would probably return Grace to her . . . , but I know she won’t follow my orders. I am absolutely convinced of that.

“First of all, Lightning Amen is her Lord. . . . Second of all, she’s never listened to one thing I’ve ever told her to do. For the life of the case I told her repeatedly to stop filing papers in her attorney’s name. As late as the start of the trial I was returning papers to her attorney.

“It’s only relevant insofar as . . . she’s not going to listen to me. I’m not any authority for her. . . .

Lightning Amen is her authority. . . . So . . . I don’t think I can do anything to safely return Grace to her mother not being exposed to Lightning Amen. That’s the bottom line.”

IV

THE SUFFICIENCY OF THE EVIDENCE

The mother contends there was insufficient evidence to support the juvenile court’s findings.

A. Standard of Review.

Preliminarily, the mother argues that we should review the RCAT interviews de novo because they were videotaped, and hence we are in as good a position to evaluate the credibility of the child witnesses as was the trial court.

We disagree. “‘”An appellate court will not disturb the implied findings of fact made by a trial court . . . . When the evidence is conflicting, it will be presumed that the court found every fact necessary to support its order that the evidence would justify. So far as it has passed on the weight of evidence or the credibility of witnesses, its implied findings are conclusive. This rule is equally applicable whether the evidence is oral or documentary. . . .” [Citations.]’” (Kulko v. Superior Court (1977) 19 Cal.3d 514, 519, fn. 1, italics added, quoting Griffith Co. v. San Diego Col. for Women (1955) 45 Cal.2d 501, 507-508, quoting 4 Cal.Jur.2d § 614, p. 495; revd. on other grounds in Kulko v. California Superior Court (1978) 436 U.S. 84 [98 S.Ct. 1690, 56 L.Ed.2d 132].) “Only where an order rests on undisputed facts from which only one conclusion can be drawn, is an appellate court not bound [by these rules]. [Citation.]” (Murray v. Superior Court (1955) 44 Cal.2d 611, 620.)

Arguably, we are in as good a position as the trial court to evaluate the credibility of a document. Nevertheless, we defer to the trial court’s findings even when they are based, in part, on a document. A videotape is just one particular kind of document. Hence, we see no reason not to afford the same deference to findings that are based, in part, on a videotape.

B. Jurisdictional Findings.

The juvenile court may assert jurisdiction based on failure to protect if, among other things, “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 . . . to adequately supervise or protect the child . . . .” (Welf. & Inst. Code, § 300, subd. (b).)

It may assert jurisdiction based on sexual abuse if, among other things, “the parent . . . has failed to adequately protect the child from sexual abuse when the parent . . . knew or reasonably should have known that the child was in danger of sexual abuse.” (Welf. & Inst. Code, § 300, subd. (d).)

Here, the juvenile court found that “[t]he mother knew or should have reasonably known that her daughter was at risk of being sexually abused by . . . Lightning Amen, in that she was aware that several other children who resided on the property disclosed that they were sexually abused by him, thus placing the child at risk of suffering serious physical harm.” It concluded that it had jurisdiction based on both failure to protect (Welf. & Inst. Code, § 300, subd. (b)) and sexual abuse (Welf. & Inst. Code, § 300, subd. (d)).

The juvenile court could reasonably find that Grace was in danger of sexual abuse by Amen. First, according to the Y. girls, he had molested them. Even though the police interviewed Shelley separately from Sharon and Yvonne, all three girls told the same story. The Y. mother eventually admitted that Amen had lifted up Shelley’s shirt in an “inappropriate” manner. It seems unlikely that she said this out of vengeance or jealousy, because the rest of her statement was exculpatory. The Y. mother later recanted, but her daughters never did. In family therapy, Shelley “confronted” the Y. mother about her failure to protect the girls from molestation. This seems inconsistent with the notion that both Shelley and the Y. mother knew that the molestation was fictional.

The mother makes much of the juvenile court’s finding that “[n]obody believes [the Y. girls].” In context, however, the juvenile court meant that this made their molestation claim more credible, not less. Its point was that sexual predators “generally” select victims who are known to be liars and bad kids, because, even when they truthfully report molestation, “[n]obody believes them.”

The mother also refers to a sheaf of declarations that she filed. Most of the declarants testified to Amen’s good character. Some, however, stated that the Y. girls were liars who resented Amen. Others claimed the Y. mother had admitted to them that the Y. girls’ accusations were untrue. No fewer than three declarants claimed that they were personally present at the Y. mother’s home when the Y. girls were detained in December 2001. These declarations, however, were neither offered into evidence nor admitted at the jurisdictional/dispositional hearing.

In any event, the juvenile court knew that the Y. girls had the reputation of being liars and that the Y. mother had recanted. It could nevertheless find that Amen had molested the Y. girls. It did not have to believe the three declarants who were allegedly present at the time, in light of the fact that the police evidently did not find them there and neither the Y. mother nor Amen told the police about them.

Second, Amen had pleaded guilty to annoying or molesting a child, in violation of Penal Code section 647.6, subdivision (a). The mother was present when he entered this plea. This crime requires “conduct ‘”motivated by an unnatural or abnormal sexual interest”’ in the victim [citation].” (People v. Lopez (1998) 19 Cal.4th 282, 289, quoting People v. Maurer (1995) 32 Cal.App.4th 1121, 1127.) Although the mother maintained that Amen had pleaded guilty solely to help the Y. mother get her children back, his guilty plea would seem to make this harder for her, not easier.

Third, when Joy was first interviewed, at school, she said, “Amen has rubbed my hands, legs, and skin all over my body while my mom and other people have watched.” She also said that Amen had touched her private parts, albeit outside her clothing, and the private parts of Glory and Grace. The mother speculates that the interviewers may have asked unduly suggestive questions, but there is no evidence of that.

Fourth, the juvenile court could reasonably accept the social worker’s version of her meeting with the mother and the R. mother. The mother’s counsel had an opportunity to question the second social worker who was present about the meeting, but did not. It is reasonable to conclude that she would have supported the first social worker’s account. At that meeting, the social worker asked the mother if Amen had touched the girls’ private parts; she said he had kissed and touched the girls all over, although she insisted this was not sexual. When asked if she had seen Amen touch the girls’ private parts, not only did she not deny it, she tacitly admitted it. Finally, to demonstrate how Amen displayed affection, she kissed the R. mother on the mouth and grabbed the R. mother’s breast.

Of course, in the RCAT interviews, all three girls denied any molestation. The juvenile court, however, found that these denials were not entirely credible. As we discussed in part IV.A, ante, we must defer to this finding if it is supported by substantial evidence. We also note, however, that even if we were to review the videotapes independently, we would come to much the same conclusions as did the juvenile court.

All three girls affirmatively concealed their belief that Amen was God. At the same time, they denied that there was anything they had been told not to say. The mother and the R. mother had, in fact, told them not to say that Amen was God. Thus, the girls clearly were not being entirely forthcoming.

On the videotape, Glory comes across as a cool customer. She plainly did lie, identifying Amen as her grandfather and denying that she regarded him as anything else. Her other denials are, therefore, not credible.

Grace presents as one feisty little girl. As the trial court observed, she had no difficulty flatly denying that certain things had ever happened.^[5] However, when asked crucial questions, going to whether Amen had molested her or the other girls, she kept saying she did not remember.

Joy, although more timid than Grace, likewise appeared evasive. When asked what the interviewers at school had talked to her about, instead of saying Amen, she said, “Just about a person.” When asked if Amen had told her to touch his private parts, she readily said, “Nope.”^[6] However, when asked questions like, “[H]as anything ever happened to you on those parts of your body?,” she merely said, “Not that I remember of.” The juvenile court could reasonably infer that Glory had coached Joy.

Finally, the mother argues that there was insufficient evidence of a substantial risk of serious physical harm to support a finding of failure to protect under Welfare and Institutions Code section 300, subdivision (b). Unlike that subdivision, however, Welfare and Institutions Code section 300, subdivision (d) does not require a substantial risk of serious physical harm. “Having concluded there was substantial evidence to support the court’s determination that the minor came within the provision of section 300, subdivision ([d]), we need not address appellant’s claim that there was insufficient evidence to find jurisdiction under section 300, subdivision ([b]). Section 300 contemplates that jurisdiction may be based on any single subdivision.” (In re Shelley J. (1998) 68 Cal.App.4th 322, 330.)

C. Dispositional Findings.

The juvenile court cannot take a child from a parent’s custody unless it makes one of several alternative findings. The one the juvenile court made here was that “[t]here is a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor or would be if the minor were returned home, and there are no reasonable means by which the minor’s physical health can be protected without removing the minor from the minor’s parent’s . . . physical custody.” (Former Welf. & Inst. Code, § 361, subd. (c)(1), Stats. 2003, ch. 862, § 10; see now Welf. & Inst. Code, § 361, subd. (c)(1).)

The juvenile court could reasonably find that the mother was unable to protect Grace from sexual abuse by Amen, primarily because the mother believed Amen was God. She refused to believe that the Y. girls had been molested. She told a social worker “she does not believe Lightning Amen could do anything wrong to Grace . . . .” She admitted that Amen had kissed and touched the girls all over their bodies, though she insisted that this was not sexual. When asked if Amen had touched the girls’ private parts, she replied, “For God, there are no bounds . . . .” When asked if she had seen Amen touch the girls’ private parts, she replied, “The way your world sees things is different than in our world. [T]o be with God, you have leave all of your possessions, including your loved ones, []just like Jesus Christ says.[]” Although this was somewhat Delphic, we understand her to mean that she refused to see the touching as sexual, but even if it was, she had to side with “God” rather than with her “loved one.”

She had instructed Grace not to tell the truth. According to the mother, she merely told Grace not to say that Amen was God. According to the social worker, however, the mother said, “I told [Grace] that if she was to tell the truth to you, I would go to [j]ail.” (Italics added.) As people are not generally put in jail in this country for their religious beliefs, it was fairly inferable that what she actually told Grace to lie about was criminal sexual activity.

She herself had not told the truth to Dr. Ryan. When he asked the crucial question -- whether she believed Amen was God -- she replied evasively that the Holy Spirit resided in him. He then asked if that would make Amen God; she replied no. At trial, she admitted believing that Amen was God. She nevertheless claimed she did not lie to Dr. Ryan; she explained that having the Holy Spirit in one is not sufficient to make one God. The trial court rejected this; it found: “You lied to Dr. Ryan. . . . It’s a cold-stone lie.” Dr. Ryan’s conclusion that the mother could protect Grace was based largely on this lie. Thus, the trial court could reasonably not only disregard his conclusion, but also use the fact that she lied to him as evidence of her inability to protect.

Finally, as the juvenile court astutely noted, the mother admitted that, if Grace told her Amen had molested her, “ . . . I would have brought her to Amen and I would have said, what’s going on?” This would be the very opposite of protection.

The mother argues that “there were less drastic measures [than removal] available . . . .” She fails, however, to explain what those might be. The trial court did consider giving her custody, while issuing some suitable order to prevent contact between Grace and Amen; however, it concluded that the mother would not obey. This followed from her devotion to Amen and her disobedience to the court. We note, however, that there was also evidence that Amen would not obey. After all, he had violated both a restraining order and a probation condition that prohibited him from contacting the Y. girls.

We therefore conclude that there was sufficient evidence to support the juvenile court’s order removing Grace from the mother’s custody.

V

COMMISSIONER NAGBY’S PREVIOUS INVOLVEMENT

IN THE Y. GIRLS’ DEPENDENCY

Commissioner Nagby acted as a judicial officer in the Y. girls’ dependency proceeding. Among other things, in 2002, he issued the restraining order that prohibited Amen from contacting the Y. girls.

When the present case was filed, it was assigned to Commissioner Nagby. He presided over the detention hearing, he placed Grace with the father in Missouri, and he heard various other pretrial matters. However, because the mother thereafter refused to stipulate to him, he did not preside over the jurisdictional/dispositional hearing.

The mother now contends that Commissioner Nagby had a “conflict of interest” and should have recused himself.

Preliminarily, we note that we can reach this issue, even though Commissioner Nagby did not enter the order from which the mother has appealed. In an appeal from a dispositional order, we can review any intermediate ruling that involves the merits, that necessarily affects the order appealed from, or that substantially affects the rights of a party. (In re Athena P. (2002) 103 Cal.App.4th 617, 624 [Fourth Dist., Div. Two].)

The objection that a judge is disqualified must be raised “at the earliest practicable opportunity after discovery of the facts constituting the ground for disqualification.” (Code Civ. Proc., § 170.3, subd. (c)(1).) The mother argues that she had no way of knowing that Commissioner Nagby was involved in the Y. dependency, because juvenile court records are confidential. On February 22, 2005, however, many of the records from the Y. dependency were filed in this case, as attachments to a social worker’s report; these included the restraining order against Amen, signed by Commissioner Nagby, on which the mother now relies. At that point, the mother was on notice of the asserted conflict of interest. Nevertheless, she never argued below that Commissioner Nagby was disqualified. In particular, she did not argue this on March 2, 2005, when Commissioner Nagby placed Grace with the father in Missouri. “It is too late to raise the issue for the first time on appeal. [Citations.]” (People v. Scott (1997) 15 Cal.4th 1188, 1207.)

Moreover, “[t]he determination of the question of the disqualification of a judge is not an appealable order and may be reviewed only by a writ of mandate from the appropriate court of appeal sought within 10 days of notice to the parties of the decision . . . .” (Code Civ. Proc., § 170.3, subd. (d).) By failing to raise this issue in a timely writ petition, the mother has waived it. (People v. Brown (1993) 6 Cal.4th 322, 336.)

We do not mean to imply that the mother’s accusation against Commissioner Nagby, if not waived, would have merit. Hence, we will discuss it on the merits, albeit briefly.

A judge is disqualified if he or she “has personal knowledge of disputed evidentiary facts concerning the proceeding.” (Code Civ. Proc., § 170.1, subd. (a)(1)(A); see, e.g., Fletcher v. Commission on Judicial Performance (1998) 19 Cal.4th 865, 895-896.) Commissioner Nagby did not have personal knowledge of any of the facts; any knowledge he had was gathered in court proceedings and therefore based on hearsay.

A judge is also disqualified if “a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.” (Former Code Civ. Proc., § 170.1, subd. (a)(6)(C), Stats. 2002, ch. 1094,§ 1; see now Code Civ. Proc., § 170.1, subd. (a)(6)(A)(iii).) However, “the law is clear that the state of mind of a judge based upon his observation of the witnesses and the evidence during the trial of an action . . . does not amount to such prejudice which disqualifies the judge from continuing to preside over the proceedings before him. [Citation.]” (In re Marriage of Lemen (1980) 113 Cal.App.3d 769, 791.) For example, the judge who presided over a preliminary hearing is not disqualified from presiding over the trial. (People v. DeJesus (1995) 38 Cal.App.4th 1, 17.) Likewise, the judge who presided over the trial of one criminal defendant is not disqualified from presiding over a trial of an alleged accomplice. (People v. Aubrey (1970) 11 Cal.App.3d 193, 195-196.) Here, the mere fact that Commissioner Nagby had presided over a previous dependency involving similar allegations and a similar cast of characters does not suffice to raise a doubt about his impartiality. (See Jack Farenbaugh & Son v. Belmont Construction, Inc. (1987) 194 Cal.App.3d 1023, 1031-1032.)

We conclude that Commissioner Nagby was not disqualified; but even assuming he was, the mother waived the issue.

VI

ORDER THAT VISITATION CANNOT BE SUPERVISED

BY ANYONE WHO BELIEVES AMEN IS GOD

The mother contends the juvenile court’s order that nobody who believed Amen was God could supervise visitation violated the right to freedom of religion.

The mother waived this contention by failing to raise it in the juvenile court. (People v. Burgener (2003) 29 Cal.4th 833, 886.) Separately and alternatively, she lacks standing to raise it. Admittedly, the juvenile court’s order, on its face, discriminates on the basis of religion. (See Church of the Lukumi Babalu Aye v. City of Hialeah (1993) 508 U.S. 520, 533-534 [113 S.Ct. 2217, 124 L.Ed.2d 472].) The discrimination, however, is against the supervisor, not the supervisee.

“[I]t is necessary in a free exercise case for one to show the coercive effect of the enactment as it operates against him in the practice of his religion.” (School District of Abington School T.P., P.A. v. Schempp (1963) 374 U.S. 203, 223 [83 S.Ct. 1560, 10 L.Ed.2d 844]; accord, Harris v. McRae (1980) 448 U.S. 297, 320 [100 S.Ct. 2671, 65 L.Ed.2d 784]; McGowan v. State of Maryland (1961) 366 U.S. 420, 430-431 [81 S.Ct. 1101, 6 L.Ed.2d 393].) Likewise, to have standing under the establishment clause, plaintiffs must “identify a[] personal injury suffered by them as a consequence of the alleged constitutional error . . . .” (Valley Forge, etc. v. Americans United, etc. (1982) 454 U.S. 464, 485 [102 S.Ct. 752, 70 L.Ed.2d 700].) There is no indication that one of the practices of the mother’s religion is to be supervised during visitation with a minor child by someone who believes Amen is God. Thus, the order does not burden the mother’s exercise of her religion.

VII

DISPOSITION

The order appealed from is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

J.

We concur:

HOLLENHORST

Acting P.J.

McKINSTER

J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.

^* Temporary Judge (pursuant to Cal. Const., art. VI, § 21).

^[1] According to the police officer, Joy was asked “if the touching occurred under the clothing,” and she replied, “‘[S]ometimes.’”

^[2] Two social workers were present at the meeting -- Jacqueline Red, who was investigating Glory and Joy’s case, and Francisca Russo, who was investigating Grace’s case. However, only Russo’s account of the meeting is in the record. Red did testify at the jurisdictional hearing, but she was not asked about this particular meeting.

^[3] She explained the apparent contradiction as follows: “Well, how many people do you know [who] follow every single thing God Almighty wants us to do?”

^[4] Actually, Amen was closer to 70.

^[5] Parts of the RCAT interviews do seem unduly suggestive. Fortunately, Grace and the other girls turned out to be quite resistant to suggestion. For example, Grace’s interviewer told her that, if she did not know the answer to a question, she should say, “I don’t know.” Later, however, there was this exchange:

“[INTERVIEWER]: . . . I do understand that some things happened that maybe weren’t that okay?

“GRACE L[.]: I don’t really remember about that.

“[INTERVIEWER]: And did someone tell you not to remember?

“GRACE L[.]: No, of course not.

“[INTERVIEWER]: So where did you ever get that idea that you don’t remember?

“GRACE L[.]: I just don’t remember.

“[INTERVIEWER]: Yeah. But that idea came from somewhere.

“GRACE L[.]: From me. That’s where it came from. I just don’t remember.

“[INTERVIEWER]: Why don’t you want to remember?

“GRACE L[.]: I do want to remember, but I can’t.

“[INTERVIEWER]: Are you worried --

“GRACE L[.]: No.

“[INTERVIEWER]: -- that if you remember something, you won’t be able to go back somewhere?

“GRACE L[.]: No. I just don’t remember.

. . .

“[INTERVIEWER]: Because a lot of times that’s --

“GRACE L[.]: I just want to go home.”

^[6] Here is another example of unduly suggestive questioning, this time from Joy’s interview:

“[INTERVIEWER]: . . . I thought I read where . . . you told your mom something about something Amen did, and mom said not to tell.

What was that about?

“JOY R[.]: What do you mean?

“[INTERVIEWER]: I believe you and your sister told your mom something about Amen, about something that he did that bothered you or your sister, both of you, and mom said not to tell someone, not to talk about it.

“JOY R[.]: (Nodding ‘Yes’).

“[INTERVIEWER]: Okay.

I see you moving your head.

So tell me about that. . . .

“JOY R[.]: [S]ometimes when we do stuff that we’re not allowed to do and we don’t know, he just yells at us a lot.

“[INTERVIEWER]: Okay.

[B]ut I think there was a time when he did something to you or your sister that you really didn’t like, or he told you to do something to him.

What was that about?

“JOY R[.]: He didn’t tell us to do something to him. He didn’t tell us to do that.”