In re Aaron M.

Filed 7/30/07 In re Aaron M. CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

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

Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, and Liana Serobian, Deputy County Counsel, for Plaintiff and Respondent.

____

Ernesto M. (Father) appeals from a jurisdictional order declaring his sons Aaron M. (born in January 1994) and Sebastian M. (born in November 1991) and his step-daughter J.M. (born in March 1989) dependents of the juvenile court pursuant to Welfare and Institutions Code section 300, subdivisions (a) (serious physical harm), (b) (failure to protect), (d) (sexual abuse of J.M. by Father), and (j) (abuse of sibling).^[1] Father also appeals from the dispositional order removing the children from parental custody. We reject Fathers challenges to the sufficiency of the evidence and affirm the orders.

BACKGROUND

In 1997 and in 1999, the three children were detained from Mother and Father and declared dependents of the juvenile court. Dependency court jurisdiction in 1999 was based on Mothers inappropriately disciplining Aaron by striking him in the face and eye with a shoe and on Fathers failure to protect Aaron from Mothers physical abuse. Juvenile court jurisdiction was terminated in May 2001.

All three children were again detained on April 21, 2006, after the Department of Children and Family Services (DCFS) received a report that J.M. had been sexually abused by Father from the time she was five years old until she ran away from home in April or May 2005, when she was 16. J.M. told DCFS that Father touched her breasts, buttocks and vagina under her clothes, digitally penetrated her, exposed his penis to her, and watched her shower.

When she was 11 years old, J.M. shared a bedroom with Aaron. Father came into her bedroom two or three times a week at night, and J.M. would wake up to find Fathers finger inside her vagina. J.M. said, What are you doing? Get out of my room. Father would storm out, like, really fast. She did not previously disclose the abuse because she was afraid of Mother, who had beat her many times. J.M. also told DCFS that she ran away in April 2005 after Mother hit her, leaving her bruised up.

In the year before April 2006, J.M. had lived with her 21-year-old boyfriend, Paul C., and his mother. On April 21, J.M. was in the hospital maternity ward, giving birth to a child fathered by Paul C. Immediately before the birth of J.M.s baby, Mother went to the hospital to see J.M., who disclosed Fathers sexual abuse to Mother. Mother did not believe J.M.s allegations and believed that J.M. made up the allegations so she would not have to return home. Paul C. called hospital security and Mother was escorted out of the hospital. Mother was angry and filed a police report against Paul C., who was arrested.

Upon their discharge from the hospital, J.M. and her baby were detained in a foster home, and then in June 2006, they were placed in the home of Paul C.s mother, where they remain. Aaron and Sebastian were detained home with Mother after Father agreed to leave the home. On April 26, 2006, the juvenile court ordered that Father was not to reside in the family home.

A petition was filed alleging that the children were dependents of the juvenile court pursuant to section 300, subdivisions (a), (b), (d), and (j), based on Mothers physical abuse of J.M., Fathers sexual abuse of J.M., Mothers allowing J.M. to reside with her adult boyfriend and to be sexually abused by him, and the failure of previous juvenile court services to resolve the familys problems.

According to a May 25, 2006 jurisdiction and disposition report, J.M. stated that her family does not communicate with each other and there is only screaming and hitting. Sebastian and Aaron denied any abuse in the home and claimed that J.M. was not telling the truth because things did not go her way. Both Mother and Father denied sexual abuse of J.M. by Father. Mother believed that J.M. made up the allegations in retaliation for not being allowed to live with Paul C. But Mother admitted slapping J.M. shortly before she ran away from home, claiming it was due to J.M.s coming home drunk and under the influence of marijuana. Sebastian, who was gang-affiliated, was suspended from school for fighting and bringing to school a blade, a small bat, and tobacco paraphernalia.

On June 2, 2006, Sebastian and Aaron were detained from Mother and placed in foster care after DCFS received a report that Father had beaten Sebastian. On that day, according to Sebastian, he and Aaron, as well as his parents, were in the family van returning from an outing at a swap meet when Father, who was driving, turned around and punched Sebastian in the face. Father stopped the van, got out, and went back inside the van and beat Sebastian, causing a swollen and bruised eye, a cut under the eye, and abrasions to his back. At home, Sebastian called 911 and was taken by ambulance to the hospital for treatment. Mother came to the hospital and told the police that Sebastian had mouthed off to Father. Sebastian told the police that Father had been living in the home and that Father had always beat him and J.M., but not Aaron. A DCFS social worker at the hospital visiting Sebastian was approached by another patient who told the social worker that she was a neighbor of the family, that she had seen Father in the home after he was not supposed to be living there, and that she had seen the boys sleeping in the family van. The neighbor did not wish to be identified for fear of retaliation.

On June 2, Mother told a social worker that she was not in the van when Father hit Sebastian and that this was the first time that Father hit any of the children. But on June 22, Mother claimed that it was her adult son Joshua who physically assaulted Sebastian. On June 22, Father admitted to DCFS that he hit Sebastian two times in the back and grabbed him and threw him into the car, but he did not hit him hard. Father denied hitting Sebastian on the face. Aaron denied being in the van when the family went to the swap meet. According to a social worker, Aaron was reluctant to speak about events in the family home and denied that he, Sebastian, and Joshua were involved in a gang.

On June 7, 2006, DCFS filed a first amended petition adding allegations about Fathers physical abuse of Sebastian on June 2 and about Mothers violation of the order requiring Father not to reside in the family home. Pictures taken on June 2, depicting Sebastians injuries from the June 2 incident, were attached to a July 2006 jurisdiction and disposition report.

In September 2006, Sebastian was hospitalized with a diagnosis of psychotic disorder. He was characterized by a hospital social worker as guarded, paranoid, easily agitated, difficulty verbalizing, danger to others, angry, disorganized, posturing aggressive, refusing to take medication. Because Sebastians condition was unstable, he remained hospitalized through the jurisdiction and disposition hearings in October 2006, when the juvenile court found that Sebastian was unavailable to testify because of mental illness.

J.M., Mother, and Joshua testified at the jurisdiction and disposition hearings, held over the course of several days in September and October 2006. J.M. testified about the same incidences of sexual abuse she had disclosed to DCFS. J.M. testified that she did not get along with Mother. Mother and Father hit her and her brothers very often throughout childhood. She did not tell Mother about Fathers sexual abuse because she was afraid that Mother would not believe her and would hit her if she told Mother the things that Father did to her. J.M. did not disclose the abuse when she was placed in foster care in the previous dependency cases because no one ever asked her about sexual abuse. When she was returned to Mothers custody in the previous case, she attended family counseling, or group counseling with her brothers. Mother told her to lie to the counselor and to deny that Mother hit her children. Eventually, J.M. left home because she was tired of Father touching her.

J.M. also testified that she told Paul C. about Fathers abuse in April 2005, and sometime in 2006 she also told her cousin Thalia. In March 2006, Paul C. told Mother about Fathers abuse of J.M. Paul C. told Mother that he would not allow J.M. to return home because of Fathers abuse. Mother came to the delivery room shortly before J.M.s baby was born; J.M. told Mother about Fathers sexual abuse in the presence of Father. J.M. was scared and crying; Mother was loud. Nurses escorted Mother and Father out of the delivery room.

Mother testified that she did not believe J.M.s allegations of sexual abuse by Father because J.M. never complained. Mother denied that anyone told her about the sexual molestation until she went to court. Mother also claimed that when she came to the hospital, J.M. told her that Father touched her on her arms and thighs. Around February 2006, Paul C. telephoned Mother and told her that if Mother continued to call Pauls house, Mother was going to be sorry. According to Mother, Father moved out of the family home on April 21, 2006. But they were then living together because the children were not living there.

Joshua testified as to the events on June 2, 2006, claiming that when Sebastian went after Father with a spray paint can, Joshua stepped in and socked Sebastian. Joshua was the one who got aggressive with Sebastian, not Father. Father hit Sebastian on the chest, but not hard. In previous foster care placement, Joshua and J.M. received individual, not family, counseling and therapy sessions.

On October 23, 2006, the juvenile court sustained the first amended petition as amended by interlineation. The court declared the children dependents under section 300, subdivisions (a), (b), (d), and (j), based on the June 2, 2006 incident with Sebastian, Mothers physical abuse of J.M., Fathers sexual abuse of J.M., the prior assertion of dependency court jurisdiction, and the provision of services and failure of such prior intervention to resolve the familys problems. The court also removed the children from parental custody and ordered reunification services for Mother and Father.

In sustaining the first amended petition, the juvenile court stated that obviously, this comes down to a credibility case, and that the court did not find Mother to be credible. Mothers hostility and anger toward J.M. came out when Mother sat there, arms crossed, glaring at [J.M.] during the testimony. With respect to J.M.s testimony, the court remarked that J.M.s tears were appropriate unless she is the greatest actor in the world. Her crying and her affect on the stand [were] completely appropriate for somebody who had been molested. She had the details. Certainly, the details may change from time to time, but that does not indicate that she was lying. [] . . . [] This is certainly a family in disarray. Sebastian is completely violent and out of control. They saw the violence. They saw the violence in the house. Thats the way the children were raised, with violence. [] Again, Mothers attitude in court clearly indicates Mother has a tremendous anger management problem, and it doesnt surprise me that [J.M.] never said a thing about being molested to Mother because she knew exactly what would happen if she said anything to Mother. [] [U]ntil the Mother found out about the molestation, Mother and Father did absolutely nothing about Paul having an affair with the minor daughter. [W]hen Mother found out the best defense is a good offense thats when Mother had Paul arrested to diffuse the molesting situation.

The juvenile court also noted that Sebastians statement to authorities that Father was living in the home in disregard of the court order was corroborated by a neighbor who reported that Father was living there after the court ordered him to leave the family home, so [i]ts not just Sebastian with his ax to grind.

On appeal, Father challenges the sufficiency of the evidence supporting the jurisdictional findings and the order removing the children from his custody.

DISCUSSION

A. Jurisdiction

In his challenge to the sufficiency of the evidence supporting jurisdiction under section 300, subdivision (d), Father contends that J.M.s testimony regarding the sexual abuse was not credible. He maintains that it is not reasonable to believe that Father molested J.M. for 11 years during which time Mother and her brothers were around, and sometimes sleeping in the same bed, and that J.M. was so abused and did not disclose the abuse to the social workers, therapists, judges, attorneys, and caretakers when she was under DCFS protection in the course of the two prior dependency cases. Father also argues that J.M. had motivation for making false allegations against him because J.M. was retaliating against Mother for reporting Paul C. to the police.

But we may not discount J.M.s testimony unless it is physically impossible or inherently improbable and such inherent improbability plainly appears. (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1204.) J.M.s testimony is not inherently improbable. Father essentially is asking us to reassess J.M.s credibility, to draw inferences contrary to those drawn by the juvenile court, and to reweigh the evidence. We cannot do so under the substantial evidence standard of review. We also note that the details of the sexual abuse which J.M. reported to the social workers in April 2006 were remarkably consistent with the details she recounted on the stand in October 2006. The juvenile court also found that J.M.s demeanor was appropriate for a child who had been abused. The evidence is sufficient to support the sexual abuse allegations.

One of the bases for jurisdiction under section 300, subdivisions (a) and (b), was a finding of Mothers physical abuse of J.M., causing J.M. serious physical harm. Father claims that there was insufficient evidence of serious physical harm and that the juvenile court did not base its findings on circumstances current at the time of the hearing. But J.M. testified that Mother beat her very often throughout childhood, and J.M. told a social worker that Mother beat her in April 2005 and left her bruised up. Mother admitted slapping J.M. before she left home in April 2005. And, there was evidence that, at the time of the jurisdictional hearing, Mother was still angry at J.M. and was glaring at her and intimidating her when she testified. Thus, the juvenile court reasonably could have concluded that J.M. remained at risk of serious harm at the time of the hearing. The evidence is sufficient to support the jurisdictional findings based on Mothers physical abuse of J.M.

Another of the bases for jurisdiction under section 300, subdivisions (a) and (b), was the June 2, 2006 incident involving Sebastian. Father contends that because Sebastian was unavailable for cross-examination and because he timely objected to Sebastians hearsay statements under section 355, such statements alone are insufficient to constitute substantial evidence.^[2] But there is no violation of section 355, subdivision (c)(1), because the jurisdictional findings involving the June 2 incident are supported by evidence in addition to Sebastians hearsay statements. On June 2, 2006, Mother admitted Fathers June 2 abuse to the social worker when she said that this was the first time Father had hit the children. The story about Joshua being the one to hit Sebastian surfaced only later in June. And Joshuas testimony at the hearing was insufficient to explain the extent of Sebastians injuries to his back and to his face, as depicted in the photographs. Under these circumstances, the juvenile court reasonably could have rejected Joshuas testimony and Mothers and Fathers June 22 statements to DCFS. But the juvenile court reasonably could have credited the photographs and Mothers June 2 statements, both of which provide corroboration for Sebastians hearsay statements. Substantial evidence thus supports the assertion of jurisdiction under section 300, subdivisions (a) and (b).

As to the finding that Father resided in the family home in violation of the court order, Sebastians hearsay statements on this point were corroborated by the neighbors statements. Father, for the first time, claims that the unidentified neighbors statements are also hearsay, but such evidentiary objection was not raised below and is therefore waived pursuant to section 355, subdivision (c)(1).

Fathers challenge to the sufficiency of the evidence supporting jurisdiction under section 300, subdivision (j) (abuse of sibling), is based on the same arguments we have rejected in connection with section 300, subdivisions (a), (b), and (d). Father thus fails to establish that jurisdiction was improper under subdivision (j) of section 300.

B. Disposition

Father contends that removal of the children from his custody was not proper because there was not clear and convincing evidence of a defined substantial danger or risk of harm in returning the children to the home. We disagree.

On a challenge to an order removing a dependent child from his or her parent, we view the record in the light most favorable to the order and decide if the evidence is reasonable, credible and of solid value. [Citation.] We draw all reasonable inferences from the evidence to support the findings and orders of the dependency court. (In re Javier G. (2006) 137 Cal.App.4th 453, 462463; In re Henry V. (2004) 119 Cal.App.4th 522, 529 [substantial evidence test applies to determine the existence of the clear and convincing standard of proof].)

The record contains substantial evidence that there was a risk of harm in returning the children to Father. Father not only sexually abused J.M., but severely beat Sebastian. And there was no evidence that Father was participating in any services or obtaining any counseling to help him resolve the issues of domestic violence and sexual abuse. The juvenile court reasonably concluded that returning the children to Father would pose a substantial danger to their physical and emotional health and safety.

DISPOSITION

The orders of October 23, 2006, are affirmed.

NOT TO BE PUBLISHED.

MALLANO, Acting P. J.

We concur:

VOGEL, J.

JACKSON, J.^*

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^[1]Guadalupe B. (Mother), the mother of the three children, is not a party to this appeal. Although Mother was not married to Father, we refer to J.M. as his step-daughter. J.M.s alleged biological father, Roberto A., has not appeared in this proceeding and his whereabouts were unknown.

Statutory references are to the Welfare and Institutions Code.

^[2]Section 355 provides in pertinent part: (c)(1) If any party to the jurisdictional hearing raises a timely objection to the admission of specific hearsay evidence contained in a social study, the specific hearsay evidence shall not be sufficient by itself to support a jurisdictional finding or any ultimate fact upon which a jurisdictional finding is based, unless the petitioner establishes one or more of the following exceptions: [] (A) The hearsay evidence would be admissible in any civil or criminal proceeding under any statutory or decisional exception to the prohibition against hearsay. [] (B) The hearsay declarant is a minor under the age of 12 years who is the subject of the jurisdictional hearing. . . . [] (C) The hearsay declarant is a peace officer . . . , a health practitioner . . . , a social worker . . . , or a teacher . . . . [] (D) The hearsay declarant is available for cross-examination. . . .

Unless specifically permitted by statute, hearsay evidence does not satisfy the requirement of due process of law and does not constitute substantial evidence. (In re Lucero L. (2000) 22 Cal.4th 1227, 12441245.) Section 355, subdivision (c)(1), also incorporates this due process principle, providing that a hearsay statement contained in a social study that is inadmissible in a criminal or civil trial generally cannot by itself . . . support a jurisdictional finding or any ultimate fact upon which a jurisdictional finding is based. (In re Lucero L., supra, 22 Cal.4th at p. 1245.)

^*Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.