In re L.A.

Filed 10/23/06 In re L.A. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from orders of the Superior Court of San Diego County, Peter Riddle, Judge. (Retired judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.) Affirmed.

Ruby P., the mother of L.A., Alyssa A., and Elijah A., appeals orders adjudicating her five-year-old daughter, L.A., a dependent of the juvenile court under Welfare and Institutions Code section 300, subdivision (d),^[1] and two-year-old Alyssa and two-month-old Elijah dependents of the juvenile court under section 300, subdivision (j). Ruby also appeals the orders removing the children from her custody. She contends the evidence is insufficient to support the jurisdictional and dispositional orders.

Ramiro A., the father of Alyssa and Elijah, joins in and adopts by reference the arguments presented in Ruby's opening brief as they relate to Alyssa and Elijah. (Cal. Rules of Court, rule 13(a)(5).)

FACTUAL AND PROCEDURAL BACKGROUND

In the summer 2005, Ruby and Ramiro were living together with L.A. and Alyssa. Ruby was then pregnant with Elijah. Ruby and Ramiro had been together in a relationship for approximately six years and had lived together sporadically for five years. Although L.A. was not his child, Ramiro had raised her since her birth, and she referred to him as her dad.^[2]

On July 29, 2005, L.A. told a preschool classmate that the classmate should wipe her bottom well because otherwise she would get a rash and would not want someone to insert something into her rectum like L.A.'s dad did.^[3] The teacher asked L.A. about her statement and L.A. replied that her dad "stuck the blue thing in my butt." L.A. also said it happened while her mother was at work.

The social worker visited the home in August, and L.A. repeated her statements. Upon request, L.A. demonstrated the position she was in when Ramiro inserted the object into her rectum. L.A. said she tried "not to cry because it hurts." L.A. added that when her dad was finished, "he gives me ice cream because I didn't cry." L.A. said her dad had inserted the "blue thing" in her rectum five times. L.A. said her dad "told me to say that he puts medicine on my butt." Asked by the social worker if the "blue thing" was in the apartment, L.A. retrieved a blue vibrator from a drawer in her parents' room.

Ruby acted surprised by L.A.'s revelation. Ruby said L.A. had not had a rash on her buttocks since she was in diapers. Ruby said L.A. had told her that Ramiro had put ointment on her buttocks and that it hurt, but L.A. never said he inserted anything into her rectum. However, Ruby added: "She said something about a blue thing but I guess I wasn't paying attention."

After hearing L.A.'s account, Ruby became extremely upset. Ruby said Ramiro was "not like that" and he "wouldn't do that." Ruby said she did not believe L.A. Ruby said Ramiro had used a blue rectal thermometer on L.A. twice and perhaps L.A. had confused the blue thermometer with the blue vibrator.

A physical examination disclosed some abnormalities in L.A.'s vagina, but not in her rectum. At a second examination, the doctor concluded L.A. had "an abnormal anal-genital exam, [which was] inconsistent with [the] history[;] sexual abuse is highly suspected." Abnormalities were found on L.A.'s hymen; there was a "notch" or area of tearing on the hymen.

Ramiro denied he ever used a vibrator on L.A.'s anus or vagina.. He had used an anal thermometer on L.A. twice, most recently within the past month. Ramiro also applied diaper rash cream on L.A.'s buttocks because she a rash. Ramiro denied ever sticking his finger in L.A.'s anus or vagina. L.A. knew the blue vibrator was kept in a bedroom drawer.

Ruby and Ramiro related an incident in which L.A. had coloring from markers all over her body and falsely said a friend had colored her body. Later, L.A. admitted she had lied and she had colored herself. According to Ramiro, L.A. originally said her friend also stuck a marker in L.A.'s vagina.

On August 30, the San Diego Health and Human Services Agency (Agency) filed a dependency petition on behalf of L.A., alleging she had been sexually abused by Ramiro when he inserted a vibrator into her anus. (§ 300, subd. (d).) Agency also filed a sibling dependency petition on behalf of Alyssa, alleging she was at substantial risk of being abused based on Ramiro's sexual abuse of L.A. (§ 300, subd. (j).)

At the detention hearing, the juvenile court granted supervised visitation for Ruby and ordered Ramiro to have no contact with the children.

L.A. and Alyssa were detained in the same foster home. Ruby enrolled in a parenting class and was attempting to obtain an individual therapist. Ruby was visiting her daughters on a regular basis, and the visits went well. Ramiro said he was willing to move out of their home so the children can be placed with Ruby.

On October 18, Ruby underwent a psychological evaluation by psychologist Robert Kelin, who characterized her as follows:

"[Ruby] is an individual of average intellectual skills. She does care about her children. However, she tends to be a simplistic and naive individual who is regressed in her emotional functioning. She does have some difficulty in relationships. She was not found to be violent or aggressive, but there is concern about her ability to recognize problems so that she could safely protect her children. She does experience some depression, but the evaluator believes that it is situational because of the removal of her children."

Kelin also said Ruby would not "do anything purposely to hurt her children," and he believed "she could care for her children if she were not living with anybody else."

In early November, Ruby gave birth to a boy, Elijah. On November 9, Agency filed a dependency petition on behalf of Elijah, alleging he was at substantial risk of harm because Ramiro had sexually abused his half-sister. (§ 300, subd. (j).) The court detained Elijah with Ruby and ordered that he have no contact with Ramiro.

Ruby told Elijah's social worker she did not believe L.A.'s accusation that Ramiro had molested her with the blue vibrator.

At a therapy session on January 4, 2006, L.A. was visibly upset. Upon questioning, L.A. revealed that Ruby, at a visit earlier that day, had instructed her to tell the social worker that she had lied and that Ramiro had only put a thermometer in her buttocks. Ruby told L.A. if she did this she could live with Ruby again. When the social worker arrived to pick up L.A., the therapist informed her about the L.A.'s disclosure at the session. L.A. told the social worker she knew the difference between a truth and a lie. The social worker asked if Ramiro put a thermometer in her buttocks and L.A. replied that it was a " 'blue thing,' " not a thermometer.

The contested jurisdictional hearing for all three children was held on January 11 and January 20.

L.A.'s therapist, Judy Murtha, testified about a session with L.A. on the morning of January 11. L.A. told Murtha that Ramiro had put a thermometer in her buttocks. L.A. acknowledged this was different from her statements to the therapist at the previous session on January 4. L.A. said she lied then about saying Ruby had told her to lie. Murtha said L.A. was "very conflicted" and "challenged by all of this." Murtha added, "She feels like a child who is torn." L.A. admitted she was afraid of getting into trouble if she did not do what Ruby told her to do.

Diana Thompson, the nurse practitioner who had examined L.A. after the initial disclosure of molestation, testified that the absence of visible injuries or abnormalities in L.A.'s anus did not mean there had never been sexual abuse in that area. Thompson explained the anus is flexible and heals quickly.

Social worker Julie Smith testified that L.A. wanted to return to Ruby's home. L.A. did not express fear of Ruby or Ramiro, but said Ramiro had hurt her. The social worker did not believe that L.A. was confused about the difference between a thermometer and the blue thing.

L.A. testified that she did not know why Ramiro had put medicine on her buttocks. L.A. said it hurt. L.A. said Ramiro used his finger to apply the medicine as well as a thermometer. However, moments earlier L.A. had said she did not know what a thermometer was or what it looked like. L.A. said she did not know if the item Ramiro inserted into her anus was big or small because she did not see it. L.A. was not afraid of Ramiro, but he had hurt her, "a little bit."

The court found the L.A. was a child described by section 300, subdivision (d) and Alyssa and Elijah were children described by section 300, subdivision (j). The court sustained the petitions as amended. The court remarked that it found L.A.'s account convincing on the issue of the anal molestation, and any confusion in her testimony could be explained by Ruby encouraging her to lie one week before trial.

On January 30, Agency learned that Victoria L., Ramiro's daughter from another relationship, had disclosed that Ramiro, on various occasions, had taken her to the bathroom, pulled down her pants and underwear, and placed his hands next to her genital area. The molestation disclosure by Victoria did not change Ruby's opinion about L.A.'s accusation of Ramiro; Ruby continued to disbelieve L.A. and defend Ramiro. Consequently, Agency recommended that Elijah be removed from Ruby's care.

The contested dispositional hearing was held on February 8.

Social worker Valeria Briseno recommended all three children be removed from Ruby's custody because she believed they were at risk of abuse in Ruby's care. Briseno said Ruby consistently denied that L.A. had been abused and "continuously stated that she did not believe her child's disclosure." Briseno opined Ruby could not protect her children because she did not believe Ramiro could have been responsible for any inappropriate behavior with L.A.

Briseno testified that on more than one occasion L.A.'s biological father had telephoned Ruby in the morning and Ramiro answered the phone. When Briseno confronted Ruby with this information, Ruby replied that Elijah had not had contact with Ramiro, but did not say whether Ramiro had stayed at her home.

Briseno also testified about a referral Agency received concerning Victoria, Ramiro's daughter from another relationship. When Briseno told Ruby that Ramiro was the suspected perpetrator in a sexual abuse allegation involving Victoria, Ruby replied: " 'I don't believe you people.' " Briseno testified Ruby's unwillingness to hear any negative information about Ramiro added to the risk of abuse to L.A., Alyssa and Elijah.

The parties stipulated that if Ruby and Ramiro were called as witnesses, they would testify that there had been "no inappropriate contact between [Ramiro] and Elijah allowed by [Ruby]."

The court declared L.A., Alyssa and Elijah dependents of the court, removed the children from the custody of Ruby in the case of L.A. and from the custody of Ruby and Ramiro in the cases of Alyssa and Elijah, and ordered Ruby and Ramiro to participate in their case plans. The court placed Elijah in a licensed foster home.

DISCUSSION

I. Jurisdictional Finding

Ruby contends the evidence is insufficient to support the juvenile court's jurisdictional findings.

In a dependency proceeding, the child welfare agency must prove by a preponderance of the evidence that the child who is the subject of the petition comes under the court's jurisdiction. (§ 355; Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 248; In re Amy M. (1991) 232 Cal.App.3d 849, 859-860.)

We review the evidence most favorably to the court's order, drawing every reasonable inference and resolving all conflicts in favor of the prevailing party, to determine if it is supported by substantial evidence. (In re Shelley J. (1998) 68 Cal.App.4th 322, 329.) The parent has the burden of showing there is insufficient evidence to support the order. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

The court need not wait until a child is seriously abused or injured to assume jurisdiction and take steps necessary to protect the child. (In re Michael S. (1981) 127 Cal.App.3d 348, 357-358; In re Luwanna S. (1973) 31 Cal.App.3d 112.) The court may consider past events in deciding whether a child presently needs the court's protection. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, overruled on another ground in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6; see also In re Petra B. (1989) 216 Cal.App.3d 1163, 1169.)

At issue is whether there was substantial evidence to support the section 300, subdivision (d) allegation of sexual abuse of L.A., the basis of the court assuming jurisdiction over L.A. The alleged sexual abuse of L.A. was also the basis of the court's assumption of jurisdiction of her half-siblings, Alyssa and Elijah, under section 300, subdivision (j).

The juvenile court may take jurisdiction under section 300, subdivision (d), if it finds, by a preponderance of the evidence, "[t]he child has been sexually abused, or there is a substantial risk that the child will be sexually abused, as defined in Section 11165.1 of the Penal Code, by his or her parent or guardian or a member of his or her household, or the parent or guardian has failed to adequately protect the child from sexual abuse when the parent or guardian knew or reasonably should have known that the child was in danger of sexual abuse." (§ 300, subd. (d).)

Penal Code section 11165.1 defines sexual abuse as sexual assault. Further, the statute defines sexual assault as including, but not limited to, any of the following:

"(1) Any penetration, however slight, of the vagina or anal opening of one person by the penis of another person, whether or not there is the emission of semen. (2) Any sexual contact between the genitals or anal opening of one person and the mouth or tongue of another person. (3) Any intrusion by one person into the genitals or anal opening of another person, including the use of any object for this purpose, except that, it does not include acts performed for a valid medical purpose. (4) The intentional touching of the genitals or intimate parts (including the breasts, genital area, groin, inner thighs, and buttocks) or the clothing covering them, of a child, or of the perpetrator by a child, for purposes of sexual arousal or gratification, except that, it does not include acts which may reasonably be construed to be normal caretaker responsibilities; interactions with, or demonstrations of affection for, the child; or acts performed for a valid medical purpose. (5) The intentional masturbation of the perpetrator's genitals in the presence of a child." (Pen. Code, § 11165.1, subd. (b), italics added.)

L.A.'s petition, as amended, alleged: "On or about and between [August 5] to August 26, 2005, the child's mother's boyfriend, [Ramiro], a member of the child's household, sexually abused said child, including inserting a vibrator into the child's anus." The juvenile court found this allegation true. Our review of the record shows that substantial evidence supports the court's finding.

A preschool teacher overheard L.A. telling a classmate that she better clean herself well after going to the bathroom or she would get a rash and her father would "have to stick the blue thing up your butt." The classmate inquired: "Up your butt crack?" L.A. replied: "Yes. It hurts a lot. He did it many times." L.A. also told the teacher and the investigating social worker that Ramiro had inserted a "blue thing" in her anal opening. Further, L.A. demonstrated the position Ramiro told her to take. L.A. said Ramiro inserted the "blue thing" in her anus five times and gave her ice cream afterward because she did not cry. L.A. said Ramiro smeared diaper rash ointment on the tip of the "blue thing" before he inserted it inside her rectum.

When L.A. first disclosed these incidents, Ruby related that L.A. had previously told her that Ramiro had put ointment on her buttocks and said it hurt; however, L.A. never said he inserted anything into her rectum. Ruby added, "She said something about a blue thing but I guess I wasn't paying attention." When the social worker asked L.A. if the "blue thing" was in the home, L.A. retrieved a blue vibrator from a drawer in Ruby's bedroom.

L.A.'s report of Ramiro's conduct did not change until one week before trial when Ruby encouraged her to lie and say Ramiro had only inserted a blue thermometer in her anus. Ruby told L.A. that if she changed her report she could live with Ruby. L.A.'s previous statements were consistent, and she gave a detailed account of Ramiro's conduct. Although the physical examination neither substantiated nor disproved anal abuse had occurred, the court was entitled to find L.A. credible and to disbelieve Ruby's and Ramiro's denial that abuse had occurred. (See In re Casey D. (1999) 70 Cal.App.4th 38, 53.) We defer to the court below because we have no power to judge the effect, value or weight of the evidence, consider the credibility of witnesses or resolve conflicts in the evidence. (In re Rubisela E. (2000) 85 Cal.App.4th 177, 194.)

Ruby asserts the lack of physical findings of abuse shows the molestation did not occur. However, as the nurse practitioner explained, the absence of injuries or abnormalities did not mean that she had not suffered anal molestation. The rectum is flexible and elastic; the nurse practitioner testified it heals quickly unless subjected to severe trauma.

Ruby contends the jurisdictional finding must be reversed because there was no evidence the molestation continued at the time of the jurisdiction hearing. "[T]he question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm." (In re Rocco M. (1991) 1 Cal.App.4th 814, 824, italics in original.) At the time of the hearing, Ruby and Ramiro denied the molestation occurred. That denial supports the conclusion the risk of harm to L.A. and her half-siblings existed at the jurisdictional hearing. Risk of harm was the determinative fact, not whether the molestation continued at the time of the hearing. There would be no evidence of continuing molestation at the time of the hearing because in late August 2005, L.A. was removed from the family home, and the court ordered there be no contact between her and Ramiro. The no-contact order was still in place when the contested jurisdictional hearing took place approximately four months later.

We also reject Ruby's suggestion that her discussion with L.A. of the case and the child's upcoming testimony was akin to the social worker and therapist discussing the case and her testimony with L.A. Although there is no direct evidence that Ruby coached L.A. to testify that she did not see what Ramiro used to apply ointment to her buttocks, there was substantial evidence that Ruby told L.A. to lie and recant her report of the blue vibrator. In contrast, there was no evidence that the social worker or therapist told L.A. how she should testify. Their discussions with L.A., to which Ruby alludes, occurred only after L.A. disclosed that Ruby had told her to lie.

Ruby does not cite any authority for her statement that evidence corroborating L.A.'s statements that she was molested by Ramiro was necessary to sustain the jurisdictional finding. The testimony of a single witness is sufficient to uphold a judgment. (In re Sheila B. (1993) 19 Cal.App.4th 187, 200.) In any event, there was evidence corroborating L.A.'s statements: the presence of the blue vibrator in the family home.

Substantial evidence supported the jurisdictional finding that L.A. was a child described by section 300, subdivision (d). Thus, the record also contains substantial evidence to support the section 300, subdivision (j) jurisdictional finding as to Alyssa and Elijah based on the molestation of their half-sibling, L.A.

II. Dispositional Orders

Ruby contends the juvenile court erred by removing the children from her care because the removal order was not supported by substantial evidence and was based on inadmissible hearsay.

After the juvenile court finds a child to be within its jurisdiction, the court must conduct a dispositional hearing. (Cynthia D. v. Superior Court, supra, 5 Cal.4th at p. 248.) At the dispositional hearing, the court must decide where the child will live while under the court's supervision. (In re Michael D. (1996) 51 Cal.App.4th 1074, 1082.)

A custody removal order is proper if based on proof of parental inability to provide proper care for the child and proof of a potential detriment to the child if he or she remains with the parent. (In re Jeannette S. (1979) 94 Cal.App.3d 52, 60.) "The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child." (In re Diamond H., supra, 82 Cal.App.4th at p. 1136.) The court may consider a parent's past conduct as well as present circumstances. (In re Troy D. (1989) 215 Cal.App.3d 889, 900.)

Before the court issues a custody removal order, it must find the child's welfare requires removal because of a substantial danger, or risk of danger, to the child's physical health if he or she is returned home, and there are no reasonable alternatives to protect the child. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654; § 361, subd. (c)(1).) There must be clear and convincing evidence that removal from the parent's custody is the only way to protect the child. (See, e.g., Cynthia D. v. Superior Court, supra, 5 Cal.4th at p. 248.)

Whether the conditions in the home present a risk of harm to the child is a factual issue. We apply the substantial evidence test. (In re Kristin H., supra, 46 Cal.App.4th at p. 1654.)

We find the custody removal orders are supported by evidence that there was a substantial danger or risk of danger to the children's safety if they were returned to Ruby's custody. Ruby did not protect L.A. when told that Ramiro had used a "blue thing" that hurt her. Ruby's explanation was she was not "paying attention" at the time. When Agency learned of the molestation and informed Ruby, she did not believe it was true and defended Ramiro. Ruby's support for Ramiro's innocence continued throughout the proceedings, which spanned several months. Her denial continued in the face of additional evidence, including the nurse practitioner's explanations of the physical findings and the allegation that Ramiro had molested his daughter from another relationship. Ruby continued to insist that L.A.'s account was false. Ruby encouraged L.A. to lie in her testimony to the court. Ruby considered her relationship with Ramiro to be of more value than the safety of her children. In determining the risk to the children, the court properly could consider Ruby's minimization and denial of the protective issues. (See In re Esmeralda B. (1992) 11 Cal.App.4th 1036, 1044.) Ruby's inability or refusal to acknowledge that Ramiro had molested L.A. and the adverse impact this had on the lives of her children reflected an underlying resistance to the treatment she needed to make the welfare of her children her highest priority and to provide a safe home for them. (Ibid.)

At the time of the dispositional hearing, Ruby continued to deny that Ramiro had molested L.A.; she had even coached the child to recant the accusation in her testimony to the court.

We note that in deciding whether to remove a child from home, the child's best interests are paramount. (In re Corey A. (1991) 227 Cal.App.3d 339, 346-347.) "The juvenile court has broad discretion to determine what would best serve and protect the child's interest and to fashion a dispositional order in accordance with this discretion." (In re Jose M. (1988) 206 Cal.App.3d 1098, 1103-1104.) We discern no abuse of discretion here.

Ruby asserts that the removal orders must be reversed because they were based on inadmissible hearsay evidence. Ruby claims the court erred by allowing the social worker to testify that Gilbert, L.A.'s biological father, had related that occasionally, when he telephoned Ruby in the morning, Ramiro answered the telephone. The calls occurred while Elijah was detained in Ruby's home, and there was an order prohibiting Ramiro from having contact with Elijah.

Assuming arguendo that the court improperly admitted hearsay evidence, the error was harmless. We conclude it is not reasonably probable that a result more favorable to Ruby would have been reached had the evidence not been admitted. (People v. Watson (1956) 46 Cal.2d 818, 836.)

Disregarding the statements made by L.A.'s biological father, the record contains substantial evidence that Ruby was continuing her relationship with Ramiro. She consistently advocated on his behalf--even to the extent of insisting that L.A. had falsely accused Ramiro of the molestation and saying the physical evidence of a notch on L.A.'s vagina was the child's fault because she played with herself and had inserted a marker into her vagina. In addition, Ruby wanted Ramiro to be allowed to visit the children. As the juvenile court observed, Ruby's "extreme denial" and her unwillingness to "even entertain the possibility of the molest" were "major factor[s]" that exposed the children to the risk of sexual abuse.

Ruby also contends the court abused its discretion by not granting her unsupervised visitation.

The juvenile court determines a parent's visitation rights. (In re Donnovan J. (1997) 58 Cal.App.4th 1474, 1476.) The standard of review for a visitation order is abuse of discretion. The test is whether any rational trier of fact could conclude that the visitation order advanced the child's best interests. (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.) To find an abuse of discretion, a reviewing court must conclude the court's ruling exceeded the bounds of reason. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) We find no abuse of discretion in this case.

Ruby's psychological evaluation concluded it would be difficult for her to recognize if her mate was abusing her children. The evaluation pointed to Ruby's lack of insight and her regressed emotional functioning. These assessments were reflected by Ruby's actions. Ruby did not bother to question L.A. further when the child told her Ramiro was using a "blue thing" that hurt her. Ruby did not question Ramiro about L.A.'s "blue thing" statement. After Agency related to Ruby L.A.'s statements at the preschool, Ruby refused to believe Ramiro had molested L.A.

As the trial approached, Ruby encouraged L.A. to change her story and testify that Ramiro had inserted only a blue thermometer into her rectum, not the blue vibrator. The enticement was that if L.A. recanted her account of molestation, she could live with Ruby. After the therapist and social worker learned of this witness tampering, they recommended that Ruby's visitation be more closely supervised and structured, not less.

Under these circumstances, the court acted within its discretion by denying unsupervised visits to Ruby.

DISPOSITION

The orders are affirmed.

McDONALD, J.

WE CONCUR:

HUFFMAN, Acting P. J.

NARES, J.

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

^[2] L.A.'s biological father is Gilbert R. He is not a party to this appeal.

^[3] According to the reporting party, the colloquy between L.A. and her classmate was as follows:

"[L.A.:] You're going to get a rash and then your dad is going to have to stick the blue thing up your butt.

"[Classmate:] Up your butt crack?

"[L.A.:] Yes. It hurts a lot. He did it many times."