Filed 6/30/17 In re S.L. CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

In re S.L., a Person Coming Under the Juvenile Court Law. H044200
(Santa Clara County
Super. Ct. No. 1-16-JD-024044)

SANTA CLARA COUNTY DEPARTMENT OF FAMILY & CHILDREN’S SERVICES,

Plaintiff and Respondent,

v.

M.L.,

Defendant and Appellant.

After contested hearings on jurisdiction and disposition, the juvenile court declared the eight-year-old minor, S.L., a dependent child under Welfare and Institutions Code section 300, subdivisions (b) and (d), and removed her from the custody of her mother, appellant M.L. (mother). The court then awarded full legal and physical custody to the minor’s father, with supervised visitation to mother, and dismissed the dependency. Mother appeals, contending that insufficient evidence supported both the jurisdictional findings and the dispositional order. We find no error in either ruling and therefore must affirm the order of disposition.
Background
On August 18, 2016, shortly after turning eight, S.L. was taken to a local hospital with a “purulent vaginal discharge,” “slightly blood tinged,” along with slight redness, irritation, and tenderness in the vaginal area. Mother told the examining physician that S.L. had had a fever for the last three days, but she had no suspicions of anyone touching or assaulting S.L. The physician initially concluded that the child had vulvovaginitis, and mother left with S.L. When laboratory tests later revealed that S.L. had gonorrhea, the physician reported the result to the Gilroy police department and notified mother. Contacted at her home by police and two social workers, including an Emergency Response Social Worker (ERSW), mother told the detective that she did not understand how S.L. could have contracted the disease, as S.L. never “left her side.” She then stated that S.L. was cared for by only a handful of people. Throughout the interview mother exhibited “flat and stoic” reactions.
The family had had five prior child welfare referrals for neglect of mother’s other children between 1993 and 2009. Her 20-year-old daughter, M., lived in the home with S.L. and mother; M. provided most of the child care. Two other adult sons were incarcerated, and the third son, V.L., stayed at the home sporadically; he had “free range,” and had on occasion babysat S.L. Two unrelated housemates, Arturo and Susana, also lived in mother’s home with their son.
Mother agreed to take S.L. to the police station to be interviewed. During the ensuing interview she remained mostly expressionless and silent with a flat affect. Mother explained that she had noticed vaginal bleeding earlier in the week, “possibly Monday or Tuesday,” but she did not think it serious until S.L. developed a fever and a stomach ache. She still did not accept that S.L. had been sexually abused, because S.L. would have told her if she had been. She would leave S.L. with Susana when she went dancing on weekends, but she would not leave S.L. with Arturo because he was always drinking in the home. She could not think of who might have done this, but she did say that it concerned her.
S.L. was also interviewed at the station. She denied any inappropriate touching of her, but she appeared to “tense up” when Arturo’s name was mentioned.
In a follow-up visit to her home by the ERSW, mother said that there were no concerns, that S.L. was doing fine, and that she did not understand why this diagnosis had been made. She did, however, agree to a safety plan, providing for M. to care for S.L. when mother was unavailable. In a subsequent school visit, S.L. told the social worker that she felt “somewhat OK” around her siblings, but she did not feel 100 percent safe around her brother V.L.
On August 22, 2016, mother told the ERSW that she did not know “who could possibly cause any harm to her child,” and that she was “not too concerned” because S.L. was doing fine and had not displayed any behavior indicating that she was being abused. Mother did admit that S.L. had spent the night with Arturo and Susana on two occasions, August 6 and August 15, 2016. V.L. had cared for S.L. about three weeks earlier, but S.L. had not shown any behavior changes after that.
On August 24, 2016, notwithstanding mother’s and M.’s protests that S.L. was safe, S.L. was taken into protective custody. The Department of Family and Children’s Services (DFCS or the Department) filed its initial section 300 petition on August 26, 2016, alleging that S.L. came within the provisions of subdivisions (b)(1) and (d) of that statute. The juvenile court ordered S.L. detained on August 29, 2016; directed that S.L. have no contact with V.L., Arturo, or Susana; and ordered supervised visitation with mother. The next day S.L. was released to her father.
DFCS filed an amended petition on September 9, 2016. In preparation for the jurisdictional hearing, the social worker initially recommended family services for S.L.’s father; but in an October addendum report the social worker recommended dismissal of the case with full custody to S.L.’s father.
A contested jurisdictional hearing took place over three days from October 31 to November 3, 2016. The intake social worker, Josie Masner, after being qualified as an expert in risk assessment, testified that returning S.L. to mother would pose a current risk of physical and emotional harm to the child. S.L. had not yet acknowledged the sexual abuse, and because mother remained reluctant to acknowledge and unable to understand it, Masner believed that with mother S.L. would not have a safe emotional environment in which to begin coping with the experience. Currently, although S.L. loved her mother, she felt safer with her father. Masner had no safety concerns about S.L.’s father.
Masner recounted mother’s inconsistent descriptions of the caretaking S.L. had been receiving. The initial safety plan devised for the family was based on mother’s untruthful assertion that no one except her and M. ever provided care for S.L. Although mother told the ERSW that V.L. visited, she initially said that he had not provided care for S.L.; only later did she disclose that she occasionally left S.L. with V.L. and his girlfriend. She also admitted later that Arturo’s partner or wife, Susana, provided care for S.L., and that Arturo himself had also watched S.L. After some discussion between mother and Masner, Arturo and Susana moved out, but V.L. continued to visit.
By the time of the hearing mother appeared to have taken an interest in and had begun to understand what sexual abuse is and how S.L. could have acquired gonorrhea, from group sessions conducted by a domestic violence and sexual assault advocate. She nevertheless continued to struggle to believe that S.L. was sexually abused.
Masner further testified that in March or April of 2016 mother had reportedly taken S.L. out of school to go to Mexico, even though truancy proceedings were underway based on S.L.’s frequent absences. Those absences, the social worker opined, had resulted in educational delays for S.L. and indicated additional parental neglect.
Mother also testified at the hearing. She stated that she took S.L. to the hospital on the same day that she noticed S.L.’s vaginal bleeding, not days later as the reports had indicated (based on her disclosures during the hospital visit and subsequent investigation). According to mother, she “was the one that asked [the doctor] if because she was bleeding if my daughter had been abused.” She said she had asked S.L. eight times, both on the 18th and in the remaining days before S.L.’s removal, whether someone had sexually touched her; S.L. said no each time, and mother believed her.
Mother further stated that she took S.L. to her local clinic on August 20, 2016, two days after leaving the hospital. She explained that she was confused at that time, thinking “that maybe it might have been some other urine sample that they got, you know, confused, and so that’s why I went to that doctor.” However, she later said that she did not learn about the gonorrhea diagnosis until August 24. When asked about the conflict in her testimony, she said that she did not remember whether the police told her late at night on August 18, when they came to her home, that S.L. had gonorrhea. They told her that S.L. had been sexually abused “and then they left.” In later testimony she explained that she had been confused about the date she took S.L. to the clinic; it was August 23, not August 20. She returned the next day, August 24, because the doctor had called to tell her that the hospital had informed him of S.L.’s diagnosis.
Mother recalled signing a safety plan with the ERSW, in which she agreed that only she or M. would provide care for S.L. Between that plan on August 19 and S.L.’s removal from the home on August 24, she did not leave S.L. with V.L., because V.L. had not visited during that period. She had last allowed V.L. to babysit for S.L. about a week before the hospital visit while she went dancing; but V.L.’s girlfriend and his young son were there also. Mother told the court that she learned about V.L.’s diagnosis of gonorrhea from V.L.’s girlfriend on August 26, two days after S.L. was removed. She then reported this to the police. She did not confront V.L., but M. told V.L. to stay away from the house.
Mother said she had never left S.L. for longer than four hours. She also said that she had never left S.L. in the house with Arturo, even while Susana was babysitting. She denied telling the social worker that S.L. would occasionally sleep in Susana’s room with Susana, Arturo, and their nine-year-old son; she had left S.L. with Susana overnight, but Arturo was not there.
Mother further testified that S.L. had never expressed discomfort around either V.L. or Arturo. Mother herself had not considered the possibility that V.L. could be the perpetrator of the abuse until this hearing. She now believed that S.L. had been sexually abused. The next day of her testimony, however, she maintained that if something had happened, S.L. would have told her; by saying “I don’t remember” when asked, S.L. was saying that nothing happened. S.L. had in fact told mother that nothing had happened, and mother believed her because S.L. told mother “everything really, everything.”
Mother was asked how she would take care of S.L. if the child were returned to her care. Mother answered, “I would take care of her. I would pay more attention to her needs, and I would try to protect her to the best of my capabilities. [¶] I would dedicate all of my time to her . . . I would not leave her with any males. I would not allow Arturo or [V.L.] to have access to her. I would take my child everywhere I would go, especially for me not to go out.” In other words, she would keep S.L. by her side at all times when S.L. was not in school. She would meet S.L.’s emotional needs by “[b]eing by her side and speaking to her.” And she would help S.L. protect herself from further abuse by taking her to classes and by telling S.L., as she had told S.L. in the past, that “she’s not to allow others to touch her inappropriately, and when someone comes near her, that she’s to move away from them.”
M. also testified at the hearing. She stated that when mother was absent, either she or, sometimes, Susana would watch S.L. When Susana and Arturo babysat S.L., S.L. would sleep in their room until mother returned. She then clarified, however, that only Susana and her son were there. When asked whether mother was incorrect in reporting that S.L. had slept in the room with Susana, Arturo, and their son, M. said that she wasn’t sure; she did not personally remember. As for V.L., M. testified that V.L. had watched S.L. only once, about a week before S.L. was diagnosed with gonorrhea, and his girlfriend and son were with him, during a period in which he spent four nights at mother’s home. She did not remember whether V.L. had also provided care for S.L. on a weekend in early August.
M. said that she was attending classes on sexual abuse with her mother. In October S.L. told M. that she did not feel safe at home and that all three of them (mother, S.L., and M.) should go live in a foster home together; but when M. asked her what made her feel unsafe, she just shrugged as if to say she did not know.
After hearing the evidence and arguments by counsel, the juvenile court sustained the allegations of the amended petition. The court found that mother had not “really accepted the fact that her daughter was sexually abused. She says it because she knows she has to say it because there’s a doctor telling her that her daughter has [g]onorrhea, and the Department is saying it, and everybody is saying it, but in her heart, I do not think that she has come to terms with that fact.” The court noted that when mother took S.L. to the clinic on August 23, she seemed to want a second opinion, because she did not tell the doctor that S.L. had been diagnosed with gonorrhea. As recently as October 12, only a few weeks before the hearing, mother was “still in denial,” with “insufficient insight,” preferring to rely on S.L.’s repeated denials that anything happened and on the fact that S.L. was not “acting out.”
The court found it especially troubling that mother had not confronted V.L. and asked him to tell her the truth so that she could help her daughter admit that it had happened and heal. In the court’s view, mother’s reluctance to have that necessary conversation was “direct evidence of her unwillingness and inability to protect her eight year-old child.” The court concluded that the evidence “all adds up to someone who has seriously not come to terms with the fact that her child needs to be protected, and mom is not there yet. I think mom is still really covering up for [V.L.] Doesn’t want to go too far down that road, and I think that’s very, very problematic.” Accordingly, the court sustained the amended petition under section 300, subdivisions (b) and (d).
The court proceeded to disposition the following week. The Department advocated an order of full custody to S.L.’s father with supervised visitation for mother. Mother’s counsel maintained that the evidence supplied for jurisdiction was insufficient to meet the higher burden of proof for disposition, clear and convincing evidence. Both of the suspected men had been removed from the home, mother had agreed not to let them back in, and she had demonstrated her willingness to learn about sexual abuse and learn how to help S.L. overcome the experience. The proper disposition, counsel argued, was not to remove the child and offer mother only limited visitation indefinitely with no reunification services; a better resolution was the one originally proposed by the Department—parenting classes, support groups, and counseling for mother and similar classes for the father. Mother should also be allowed unsupervised daytime visits and joint legal custody so that she could continue being a part of S.L.’s educational and therapeutic process. Both S.L.’s father and counsel for the minor argued in favor of the Department’s recommendation.
The court saw nothing in the five days that had elapsed since the jurisdictional hearing to convince it that mother could safely take care of and protect the child. The court therefore adopted the recommendations made in the Department’s most recent addendum report. It declared S.L. a dependent of the court and found by clear and convincing evidence that there was “a substantial danger to [S.L.’s] health that cannot be protected without removal” of physical custody from mother, despite the reasonable efforts that had been made to prevent or eliminate the need for removal. The court further determined that S.L.’s father, the previously noncustodial parent, had requested custody, and placement with him “would not be detrimental to the child’s safety, protection or physical or emotional well-being.” Legal and physical custody was therefore awarded to S.L.’s father, with visitation to mother, subject to supervision as approved by father or at a supervision center. Dependency was then dismissed.
Discussion
1. Jurisdiction
A child may come within the juvenile court’s jurisdiction under section 300, subdivision (b)(1), if he or she “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 . . . .” Jurisdiction may also be taken under section 300, subdivision (d), if the 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.”
The Department must support its allegations under either of these provisions by a preponderance of the evidence. (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) On appeal, “we look to see if substantial evidence, contradicted or uncontradicted, supports them.” (Ibid.) “ ‘It is axiomatic that an appellate court defers to the trier of fact on such determinations, and has no power to judge the effect or value of, or to weigh the evidence; to consider the credibility of witnesses; or to resolve conflicts in, or make inferences or deductions from the evidence. We review a cold record and, unlike a trial court, have no opportunity to observe the appearance and demeanor of the witnesses. [Citation.] “Issues of fact and credibility are questions for the trial court.” [Citations.] It is not an appellate court’s function, in short, to redetermine the facts.’ (In re Sheila B. (1993) 19 Cal.App.4th 187, 199-200 (Sheila B.).) Under the substantial evidence rule, we ‘must accept the evidence most favorable to the order as true and discard the unfavorable evidence as not having sufficient verity to be accepted by the trier of fact.’ [Citation.]” (In re S.A. (2010) 182 Cal.App.4th 1128, 1140.)
Mother acknowledges that “[t]he facts in this case seem beyond dispute.” It is the conclusion of the social worker, testifying as an expert, that she disputes on appeal—specifically, the social worker’s opinion that S.L. was at risk of future neglect if she were returned to mother’s custody. No evidence of such risk was presented, mother insists. She candidly acknowledges the facts presented at the hearing and the inferences the social worker and the court drew from those facts, including testimony about mother’s continued inability to accept the fact of the abuse and mother’s contact with Arturo and V.L. even after S.L.’s removal. She insists, however, that “[t]hese thoughts and conduct of the mother do not negate her expressed desire to keep her daughter safe. No evidence contradicted the mother’s expressed resolve to protect [S.L.] or her ability to provide said protection. The mother stated to the court [that] she would report anything [S.L.] told her.” Mother cites her own testimony as demonstrative of her credibility in asserting her intent to protect S.L.
Mother’s credibility, however, was decided against her. It was the province of the juvenile court, as trier of fact, to evaluate her testimony and determine whether to believe her. The court found mother not to be credible in several respects. It did not believe her testimony that she did not learn about V.L.’s gonorrhea until August 26, 2016. It did not escape the court’s observation that the evidence had shifted from mother’s statement that S.L. never had an opportunity to be alone with a man to evidence of V.L.’s ready access to the house. The court also found that mother had not been truthful regarding dates on which mother sought medical attention for S.L., which caused the court “to distrust much of her testimony.”
Moreover, mother’s “expressed desire,” “expressed resolve,” and “intent” were not enough; the court found her incapable of translating her desire to retain custody into an ability to protect S.L. and ensure that her medical, emotional, and educational needs were met. The court regarded the delay in seeking medical treatment as evidence of a “failure to appropriately respond and protect her child. There was simply no reason to wait three days to take her to the doctor, and it’s consistent with prior conduct on the part of mother.” The court further noted that mother had failed to meet S.L.’s dental needs and her mental health needs, and she had allowed S.L. to be absent from school on multiple occasions without notifying the child’s school. We may not reweigh this evidence by reevaluating the credibility of the witnesses or by resolving conflicts in their testimony and the written reports relied on by the juvenile court. On this record, therefore, we are compelled to uphold the jurisdictional findings of the court.
2. Dispositional Order
The juvenile court was authorized to remove S.L. from mother’s custody upon a finding by clear and convincing evidence that there would be “a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor’s physical health can be protected without removing the minor from the minor’s parent’s or guardian’s physical custody.” (§ 361, subd. (c)(1).) As mother acknowledges, while the decision to remove a child from parental custody must be made by clear and convincing evidence, on appeal it is reviewed for substantial evidence. (In re A.R. (2015) 235 Cal.App.4th 1102, 1116; In re Walter E. (1992) 13 Cal.App.4th 125, 139.)
In considering the issue of custody, the juvenile court followed the procedure described in section 361.2, subdivision (a). That provision, states, in relevant part, “When a court orders removal of a child pursuant to Section 361, the court shall first determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child. If that parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child.”
In recommending placement of S.L. with her father, the Department noted that S.L. felt safe in her father’s home, that her father’s wife was affectionate toward S.L., and that on occasion S.L. had referred to her stepmother as her mother. Since being placed with her father, S.L. had regularly attended school and had received dental treatment. Counseling services had been arranged for her. The social worker believed that there were “no legal grounds to intervene in the father’s rights to parent the child.” The court adopted that recommendation in its disposition, after finding that placement of S.L. with him “would not be detrimental to the child’s safety, protection or physical or emotional well-being.”
In her challenge to the dispositional order, mother maintains that “her care does not pose a substantial danger and [S.L.’s] removal is detrimental to the child.” In her view, there was “no substantial evidence to support [the court’s] decision that [S.L.] would be at risk of substantial risk of [sic] harm if returned to her mother. Here, the evidence showed the opposite.” She does not elaborate on this contention, however; instead, she asserts, “ ‘Perceptions of risk, rather than actual evidence of risk, do not suffice as substantial evidence,’ ” and she insists that the risk of returning S.L. to mother was not shown by clear and convincing evidence. The quoted sentence, however, pertained to a social worker’s speculation that a mentally ill parent poses a risk to her child (In re James R. (2009) 176 Cal.App.4th 129, 136-137); and the case cited by the James R. court emphasized that a dependent minor’s perception of risk was not to be relied upon without “actual evidence of risk.” (Nahid H. v. Superior Court (1997) 53 Cal.App.4th 1051, 1070 (Nahid H.)
In any event, mother’s position is undermined by the extensive testimony presented over the course of the jurisdiction and disposition hearings. The court stated that the same reasons supporting its assumption of jurisdiction also supported S.L.’s removal from mother’s custody, even under a clear and convincing evidence standard. The court stated that since the jurisdiction hearing five days earlier, it had hoped that mother might have confronted V.L. and “had the discussion with him that I suggested” at the jurisdictional hearing. That discussion had not happened, “and that still shows me that she’s not capable of really protecting and doing what it takes to take care of this child.” The court explained that “mother, one, was not honest with me; and two, I don’t think she has come to terms, and still has not come to terms with what was really happening and really was not in a position that she could safely take care of and protect her child. I think all of that evidence is clear and convincing, and I don’t think anything has really changed.” Thus, “actual evidence of risk” existed here. (Nahid H., supra, 53 Cal.App.4th at p. 1070.)
Aside from contesting the removal order, mother does not specifically dispute placement of S.L. with her father or the order for supervised visitation, and we see no error in those aspects of the court’s decision. The juvenile court could reasonably find that S.L. was being well cared for and enjoyed stability and affection in her father’s home. Because the record supports the court’s conclusion that removal of S.L. was necessary to protect her, and because the change of custody to S.L.’s father was undisputedly proper, the dispositional order must be upheld.
Disposition
The order is affirmed.




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ELIA, ACTING P.J.

WE CONCUR:



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BAMATTRE-MANOUKIAN, J.



_______________________________
MIHARA, J.