In re S.G.

Filed 9/10/07 In re S.G. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. David Cohn and James C. McGuire, Judges. Affirmed as to case No. E040166. Affirmed as to case No. E041175. Affirmed as to case No. E041849.

Neil R. Trop, under appointment by the Court of Appeal, for Defendant and Appellant Timothy G.

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

Ruth E. Stringer, County Counsel, and Ramona E. Verduzco, Deputy County Counsel, for Plaintiff and Respondent.

Valerie N. Lankford, under appointment by the Court of Appeal, for Minors.

This is an appeal by Timothy G., the father of then six-year-old S. and stepfather of then 12-year-old M. (hereafter referred to as father), and Gina G., the mother of both girls (hereafter referred to as mother), from the trial courts March 23, 2006, disposition on Welfare and Institutions Code section 300[1]petitions filed with respect to each girl in January 2006 after M. disclosed, among other things, that father made her lay nude on the living room floor while he watched television, and then made her fold laundry nude, purportedly to punish M. for misbehaving. After the San Bernardino County Department of Childrens Services (hereafter DCS) removed both girls from the custody of mother and father and placed them in foster care, S. reported that father had molested her. DCS filed a subsequent petition under section 342 with respect to S., and mother and father appeal from the dispositions on the original and subsequent petitions. Father also challenges the trial courts October 2006 postdisposition findings at the six-month review hearing that DCS had provided reasonable reunification services to father, and that returning S. to fathers custody posed a substantial risk of detriment to the child.[2]

We conclude that mothers and fathers contentions, which we set out in detail below, are meritless. Therefore, we will affirm the dispositions and the postjudgment order.

FACTUAL AND PROCEDURAL BACKGROUND

The pertinent facts are not in dispute, and are set out at great length and in great detail in the parties briefs. The issue in the trial court was whether M. and S. were telling the truth when they claimed they each had been molested by father, who is an Army staff sergeant based at Fort Irwin. Father and mother had been married for about eight years and lived with both girls in base housing at the times the events at issue in this appeal are alleged to have occurred. On January 13, 2006, M. told her school counselor that the preceding night, while mother was across the street visiting a friend, father made M. remove her bathrobe and lay naked on the floor next to him while he watched television. M. said that after about 30 minutes, father made her fold laundry in the nude. According to M., father said he was doing this as punishment because M. had gotten home late from school that day and lied to mother and father about where she had been and what she had been doing. M. told mother and father that she had been at school taking a test. Mother knew that M. had not been at school because mother had gone there to pick up M. but could not find her and school personnel told mother that M. was not there. M. eventually admitted that she had gone to her friend Ryans house, but claimed that she had done so after taking the test. In fact, M. had not taken the test and had gone with Ryan to his house right after school.

The school counselor, Ms. Gaines, reported M.s molestation claim to DCS. Two DCS social workers, Ms. Watts and Ms. Kempf, interviewed M. later that day. M. told them that father had not only made her disrobe the preceding evening but that since about October, he had also taken nude photographs of M., and had touched her breasts and vagina both over and under her clothes. The first time father touched M.s vagina occurred while the two were wrestling and father acted as if the touching had been an accident. Ms. Watts stated in her detention hearing report that M.s allegations of abuse were supported not only by M.s demeanor during the interview (M. squirmed, moved back in her chair, and got a sick look on her face when the social worker asked how the touching made her feel) but also by changes, described by the school staff, in M.s behavior from October 2005 to the present (deteriorating grades during the semester, increasing social isolation, mischievous behaviors outside of school, dyed hair and more provocative dress). According to Ms. Watts, the noted behaviors are consistent with behaviors seen in children who have experienced inappropriate sexual attention from an adult. Ms. Watts also reported that M. had been involved in other acts of attention seeking behavior in April 2005 she and a friend spray painted the local park; in October 2005 M. and some friends went into a vacant house in the neighborhood and played on a computer they found there. M. said that she was grounded for two months as punishment for going into the house and that father committed the first act of molestation during this period of grounding.

When interviewed by DCS social workers, mother denied any knowledge of the sexual abuse and claimed that father was incapable of committing such acts with a child. Mother told the social workers that M.s biological father is a German national who had recently been released from prison there after serving time for rape. M. had never met her natural father, but had been in contact with him over the past two years by mail and phone. Mother believed that M. lied about the sexual abuse allegations because she was angry that she had been grounded and/or because her biological father recently had reentered her life.

Because father was in the military, the Armys Criminal Investigation Division (CID) investigated M.s sexual molestation claim. In the course of that investigation, CID executed a search warrant at fathers home and obtained the familys two computers and their digital camera. As described by M., first in her statement to the CID investigator, next to a forensic interviewer at the Childrens Assessment Center (CAC), and finally in her testimony at the contested jurisdiction hearing, father took photographs of M. nude on at least 10 occasions. The first time was before Halloween, mother was not home, S. was either watching television or in her room, and father directed M. to remove her clothes and to pose naked on her parents bed with her legs spread open. About three weeks later, father had M. pose naked lying on top of a large pink stuffed mouse M. had in her bedroom. Father took two shots each time he photographed M., but M. believed he then deleted the photographs from the camera. By the time of the contested jurisdiction and disposition hearing in March, CID experts had recovered nine photographs, four from the digital camera and five from one of the computers. CID reproduced only five of the photographs, one from the camera and four from the computer.[3]

Mother initially refused to believe that father had taken photographs of M. On the morning of the jurisdiction hearing, mother viewed the photographs CID had recovered and later testified that she believed it was possible father had taken them but because there was no evidence to establish when the photographs had been taken, mother could not say yes or no for a fact. Mother thought it was also possible that M. or a friend had taken the photographs.

M. testified at the jurisdiction hearing, as she had also stated to the CID investigator and the CAC interviewer, that in addition to taking photographs of her, father touched her vagina and her breasts, both over her clothing and by reaching inside her undergarments. According to M., father first rubbed her vagina and pretended it was by accident while the two were wrestling. Father also put his hand down M.s shirt and pants when she was lying with him on the couch watching television. Other times, father would simply walk up to M. and put his hands down her shirt or pants. Mother was never at home when father photographed M. or when the touching incidents occurred, and M. did not tell her mother because she was scared and thought mother would not believe her. M. was also afraid that if mother confronted him, father would retaliate by hurting M.

M. admitted during her testimony that she had lied to mother and father in the past. M. also admitted that she told Dayle Lopez, the CAC forensic interviewer, that she had taken the test at school on January 12, 2006, when in fact she had not taken the test. M. did not know why she lied to Ms. Lopez. M. explained that she lied to mother and father because she was afraid of getting in trouble, and because she had lied so much, even when she tells the truth, her mother and father do not believe her. M. also admitted, as mother had testified, that she and two friends had once gone door to door pretending to collect money for the American Heart Association. They then used the money they collected to buy candy. M. also admitted that after she was placed in foster care, she accessed mothers e-mail account and read mothers messages. M. forwarded one message, from mothers lawyer, to M.s own e-mail account.[4] M. also admitted that she had sent an e-mail to mothers best friend from mothers e-mail address in which she told the best friend to f-off and that she hated her, then M. signed mothers name.

The trial court made jurisdiction findings as to both M. and S. at the combined jurisdiction and disposition hearing in March. The trial court removed both children from the physical custody of mother and father and ordered they be placed together in foster care. The trial court also ordered reunification services for mother and father which initially required both parents to attend parenting classes. The social worker later amended the service plan by adding a requirement that both mother and father participate in individual counseling and father also participate in group counseling for sexual perpetrators. Additional factual and procedural details will be recounted below as pertinent to the issues raised in this appeal.

DISCUSSION

Father and mother both challenge the sufficiency of the evidence to support the trial courts jurisdiction and disposition findings on the original and supplemental petitions. We first address those claims.

1.

SUFFICIENCY OF THE EVIDENCE CLAIMS

A. Original Petition

At the contested combined jurisdiction and disposition hearing on March 23, 2006, on the original petition, the trial court made jurisdiction findings under section 300, subdivision (d) with respect to M., and under subdivisions (d) and (j) with respect to S. As alleged in the pertinent petitions, in order to make the noted true findings, the evidence had to show that M. and S. came within the jurisdiction of the court under section 300, subdivision (d) because M. was sexually abused by father, that mother knew, or reasonably should have known, about the abuse but failed to adequately protect M., and as a result S. was at substantial risk of similar abuse. ( 300, subd. (d).) With respect to section 300, subdivision (j), the evidence had to show that M. had been abused, as defined in subdivision (d), and as a result there was a substantial risk that S. would be similarly abused.[5] ( 300, subd. (j).) Thus, in order to make jurisdiction findings as to both M. and S., the evidence had to show, first, that M. had been sexually abused within the meaning of section 300, subdivision (d).

Welfare and Institutions Code section 300, subdivision (d)[6]adopts the definition of sexual abuse set out in Penal Code section 11165.1, and that section states, in pertinent part, that sexual abuse means sexual assault or sexual exploitation. Subdivision (b) of section 11165.1 defines sexual assault to include [t]he 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 . . . 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. (Pen. Code, 11165.1, subd. (b)(4).) Subdivision (c) defines sexual exploitation to include, (2) Any person who knowingly . . . uses . . . a child . . . to either pose or model alone or with others for purposes of preparing a . . . photograph . . . or other pictorial depiction, involving obscene sexual conduct . . . . [] (3) Any person who depicts a child in . . . any . . . photograph . . . in which a child is engaged in an act of obscene sexual conduct . . . . (Pen. Code, 11165.1, subd. (c)(2), (3).)

In challenging the sufficiency of the evidence, mother and father acknowledge, as they must, that evidence was presented in the trial court to show that father had sexually abused M. As recounted above, that evidence consists of the five photographs that CID recovered that apparently depict M. naked and with her legs spread open. The evidence also includes M.s statements to her school counselor, the DCS social workers, the CID investigator, the forensic interviewer, and her testimony at the jurisdiction hearing. Mother and father contend that M. is not a credible witness, given her admitted propensity to lie and her willingness to engage in dishonest acts; that M.s various statements regarding fathers acts of molestation are replete with inconsistencies and are inconsistent with the fact that father was on military assignment for the month of October 2005, and was only home one night during that month; and M.s version of what happened on the night of January 12, 2006, conflicts with the testimony of other witnesses, in particular, mother and her friend Jennifer.

When the sufficiency of the evidence to support a finding or order is challenged on appeal, even where the standard of proof in the trial court is clear and convincing evidence, the reviewing court must determine if there is any substantial evidence that is, evidence which is reasonable, credible and of solid value to support the conclusion of the trier of fact. [Citations.] In making this determination, we recognize that all conflicts are to be resolved in favor of the prevailing party and that issues of fact and credibility are questions for the trier of fact. [Citations.] The reviewing court may not reweigh the evidence when assessing the sufficiency of the evidence. [Citation.] (In re Jasmine C. (1999) 70 Cal.App.4th 71, 75.) In short, We have no power to judge the effect or value of the evidence, to weigh the evidence [or] to consider the credibility of witnesses . . . . [Citation.] (In re Mark L. (2001) 94 Cal.App.4th 573, 581.)

Application of the noted legal principles requires us to affirm the trial courts jurisdiction finding, absent a showing by mother and father that, as a matter of law, M.s testimony was inherently incredible or impossible. (See People v. Cortes (1999) 71 Cal.App.4th 62, 81 [Our review of the record does not compel a finding that as a matter of law [the victims] testimony was inherently incredible or impossible. Under the circumstances we are bound by the trial courts determination.].) M.s testimony and the nude photographs of M. support the trial courts jurisdiction finding under section 300, subdivision (d), that father sexually abused M. on several occasions. That same evidence also supports the reasonable inference that mother failed to protect M. from such abuse.[7]

Evidence that father sexually abused M. and that mother failed to protect her from such abuse also supports the trial courts jurisdictional finding with respect to S. that as a result of fathers sexual abuse of M. there was a substantial risk of harm to S. In arguing otherwise, father cites other inferences that the trial court could have drawn from the noted facts. As set out above, in reviewing a trial courts finding, our function is limited to determining whether there is credible evidence to support that finding. The existence of other evidence that would support a different finding, or outcome, is irrelevant because we have no power to reweigh the evidence or to assess the credibility of the witnesses. (In re Mark L., supra, 94 Cal.App.4th at p. 581.) We will not address this issue in any more detail because the trial court made a subsequent jurisdiction finding regarding S. after DCS filed the section 342 petition with respect to her, and father also challenges the sufficiency of the evidence to support the trial courts August 4, 2006, jurisdiction finding on that subsequent petition.

B. Subsequent Petition

DCS filed a subsequent petition under section 342 in July 2006 alleging S. came within the jurisdiction of section 300, subdivision (d) because father touched S. on or about the vaginal area with his hand.[8] The pertinent facts are that Mary P., the girls foster mother, contacted the social worker on March 1, 2006, after S. disclosed that father had tickled her private part while she and father were wrestling. In her testimony at the jurisdiction hearing on the subsequent petition, Mary P. stated that she was having a conversation with S. about something, the nature of which she could not recall, when all of a sudden [S.] hung her head, and when [Mary P.] asked her what the problem was, she just hung her head . . . . S.s behavior apparently set off red flags for Mary P., so she asked, [S.], has anybody touched you? And thats when she said that [father had [t]icked [sic] me in my private part]. When the social worker talked with her, S. said, among other things, that she did not like to wrestle with father because he tickles her. According to the social worker, as S. made the statement, she clenched her fingers and put them down at her vaginal area and clenched and unclenched the fingers at her vaginal area when she used the word tickle. Dayle Lopez, a forensic interviewer at the CAC, interviewed S. and reported that S. disclosed that sometimes [father] tickles her vagina, over the clothing, with his fingers. The tickling always occurs while they are wrestling on her parents [sic] bed when her mother is not home. [S.s] mother does not know about the tickling and it has not occurred in her presence. If [S. and father] are wrestling and they hear the mothers car or the jingling of her keys, they stop wrestling and hide.

The DCS social worker, Mary P., Dayle Lopez, and S. each testified at the August 4, 2006, jurisdiction hearing on the subsequent petition. At the conclusion of that hearing, the trial court made a true finding on the allegation that S. came within the jurisdiction of the court under section 300, subdivision (d). In making that finding the trial court noted that the evidence was not strong and was riddled with question and ambiguity. The trial court also noted various problems with the evidence, including the fact that Mary P. jumped right to the conclusion that someone had touched [S.] in an inappropriate way based on very innocuous behavior the fact that she let her head drop, or hang down while talking with Mary P. In the trial courts view Mary P. seems a little overly concerned with the private parts, and as a result, the court had a little suspicion about her testimony.[9] The trial court also expressed concern with the forensic interview, and found it very disturbing that Ms. Lopez seized on S.s statement that father tickled her tush[10]but ignored S.s statement and gesture indicating that father had actually tickled her stomach. The trial court also acknowledged the possibility that S. had been coached, either by her sister M. or Mary P., to make the sexual abuse claim. Nevertheless, the trial court found that the preponderance of the evidence established the truth of the allegation.

Mother and father challenge the trial courts jurisdiction finding on the ground that it is not supported by sufficient evidence. They first note that the evidence regarding whether an inappropriate touching occurred is slight at best, and riddled with problems, including those identified by the trial court. In addition, mother and father contend, assuming a touching occurred, the evidence does not show it was done with the requisite intent and therefore that the touching comes within the definition of sexual abuse as set out in section 300, subdivision (d).

As the trial court noted, although the evidence is not strong, it nevertheless is sufficient to support a finding that father intentionally touched S.s vagina under the guise of tickling the child. S. stated that father had tickled her private part, and the social worker testified, based on her experience, that she believed father had sexually abused S. That evidence, which the trial court apparently believed, is sufficient to support the trial courts finding that the act occurred. (In re Jasmine C., supra, 70 Cal.App.4th at p. 75.) Although the trial court purportedly did not consider the fact that father also had sexually molested M.,[11]that fact adds further support for the jurisdiction finding on the subsequent petition regarding S.

As father correctly points out, in order to make a true finding under Welfare and Institutions Code section 300, subdivision (d), the trial court must find that father committed an act of sexual abuse as defined in Penal Code section 11165.1, which as pertinent here requires that the act of intentional touching be committed for purposes of sexual arousal or gratification. (See Pen. Code, 11165.1, subd. (b)(4).) The intent with which an act is performed may be inferred from the doing of the act itself. (See, e.g., People v. Ivans (1992) 2 Cal.App.4th 1654, 1664 [in most cases, evidence of intent [is] only circumstantial].) In other words, once the trial court found that father intentionally touched S.s vagina, the trial court could reasonably infer that father committed that act for the purpose of sexual arousal or gratification. Accordingly, we conclude the evidence is sufficient to support the trial courts true finding on the Welfare and Institutions Code section 342 subsequent petition.

2.

CONTINUANCE REQUEST

At the conclusion of the presentation of evidence at the jurisdiction hearing, but before closing arguments, and based on the representation of mothers counsel that the preceding evening, in the course of preparing for closing argument, counsel came across a paragraph in a document that indicated CID had information to show, among other things, the date and time each computer file CID recovered from mother and fathers computer had been created, mother requested a continuance. Mothers attorney represented that he had just spoken with a captain at CID, who confirmed that the information existed and that CID would have given it to DCS. According to mothers attorney, the information was not included in the materials he received from child protective services and when he asked the CID captain to provide the information, the captain said he could not just give it to counsel. Because the information could be . . . extremely critical, counsel asked the trial court to recess so that DCS could contact CID and have the information faxed over to the court. The trial court denied the request for a recess and then denied counsels request for a continuance, in which fathers attorney joined, after noting that counsel should have discovered the omitted information long before now. In the trial courts view, [T]here is . . . a prejudice to continuing this case, if for no other reason we have a minor child whos sat through some very ugly testimony for three days, and I think that it is time for this matter to be closed. The trial court then had the social worker confirm that she had given county counsel everything that CID had provided to the social worker.

Because the information was potentially exculpatory, in that it could have shown that the photographs of M. were taken during October 2005 when father was away on field exercises, and therefore he could not have taken the photos, mother contends that the trial court not only abused its discretion in denying her continuance request, but also violated mothers due process rights because the trial court did not order DCS to produce the information. The trial court did not preclude mother from obtaining the information; it simply denied mothers request to continue the jurisdiction hearing while she did so. In addition, mother did not ask the trial court to order discovery and therefore may not raise the purported discovery violation on appeal. The rule is well established that points not urged in the trial court may not be urged for the first time on appeal. (Damianiv. Albert (1957) 48 Cal.2d 15, 18.)

Moreover, mothers claim that the information was potentially exculpatory depends entirely on the assumption that the date and time data on the computer files in question is accurate. The accuracy of that information requires a showing that the clock and calendar on the computer and/or camera had been set to the correct date and time. In addition, CID was conducting its own investigation of father to determine whether there was probable cause to believe that he committed the alleged acts of abuse on M. Given that investigation, it occurs to us that if the date and time data on the computer and camera files established that father could not have taken the photographs of M., CID would have said so in its investigation report. In other words, even if we were to conclude that the trial court abused its discretion in denying mothers request to continue the jurisdiction hearing, mother has not demonstrated that she suffered prejudice as a result of the claimed error. For each of these reasons we must conclude that the trial court did not abuse its discretion when it denied the continuance request. (In re Gerald J. (1991) 1 Cal.App.4th 1180, 1187 [A reviewing court will reverse an order denying a continuance only upon a showing of an abuse of discretion].)

3.

JUDICIAL BIAS CLAIM

Mother contends that we must reverse the jurisdiction and disposition orders on the original dependency petition because the trial court was biased against mothers attorney, as evidenced by comments the trial court made at the outset of the jurisdiction hearing and continuing throughout that proceeding. We will not address the issue because mother did not raise the claim in the trial court either by way of an objection or a motion to disqualify the judge.

A claim of judicial bias 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).) To support her bias claim, mother cites various comments the trial court made, the first and in our view most telling of which occurred at the start of the jurisdiction hearing.[12] If the trial court were biased against mothers attorney, that purported bias is revealed in the trial courts very first comment, yet mother did not object to the comment or move to disqualify the judge. Nor did mother object or move to disqualify the judge after any of the other comments mother cites as evidence of bias. It is too late to raise the issue for the first time on appeal. [Citations.] (People v. Scott (1997) 15 Cal.4th 1188, 1207.) It would seem . . . intolerable to permit a party to play fast and loose with the administration of justice by deliberately standing by without making an objection of which he is aware and thereby permitting the proceedings to go to a conclusion which he may acquiesce in, if favorable, and which he may avoid, if not. (Ibid., quoting Caminetti v. Pac. Mutual L. Ins. Co. (1943) 22 Cal.2d 386, 392.)

We are not dissuaded from applying the above quoted rule in this case even though, as mother notes, the trial judge in question recused himself several months later from presiding over the jurisdiction hearing on the subsequent petition involving S., an act mother claims discloses the fact that the judge remained biased against her counsel. Contrary to mothers view, in recusing himself the trial court stated clearly that he was in no way biased in any fashion in this case but due to a possible appearance of impropriety the judge recused himself in order to avoid that appearance. Moreover, mothers obligation to object or move to recuse the trial judge is independent of the trial judges act of recusing himself in order to avoid an appearance of impropriety or perceived bias. The trial judges act of recusing himself does not excuse mothers failure to act in her own right. Because mother did not take any steps in the trial court to disqualify the judge in question, we must reject her judicial bias claim.

4.

SIX-MONTH REVIEW HEARING

In a supplemental brief, father challenges the trial courts findings at the October 18, 2006, six-month review hearing on the original section 300 petition that DCS had provided father with reasonable reunification services and that returning S. to fathers custody would create a substantial risk of detriment to S. The pertinent factual and procedural details are that in the pertinent status review report, the social worker recounted her efforts, all unsuccessful, to find a therapist to provide counseling for father.[13] According to the social worker both mother and father continue to deny there has ever been any abuse, but focus their energies on proving there is some type of wrong doing on the part of [DCS]. . . . [T]he only services parents have participated in are parenting classes. Shortly before the review hearing, the social worker found a licensed clinical psychologist, Dr. Nick Addonov,[14]willing to meet with father and who also would travel to Victorville from his office in San Bernardino, sparing father the four hour roundtrip drive from Fort Irwin to the therapists office. Father had two sessions with Dr. Addonov by the time of the review hearing on October 18, 2006.

Father and Dr. Addonov both testified at the review hearing. In his testimony father, among other things, acknowledged that he was aware the social worker might never recommend he be reunified with S. unless he admitted he had sexually abused M. or S. When asked if he would ever admit to molesting either one of the girls, father responded, I cant admit to something I didnt do. Father also stated that he was not willing to participate in group counseling with other men who have molested children because father had not done anything wrong. In fathers view, participating in group counseling with molesters was an admission that he had molested his daughters.

Dr. Addonov testified in pertinent part that he had two meetings with father, each three hours long. In the first meeting, Dr. Addonov took a detailed history and in the second meeting he did testing. Dr. Addonov also spoke with mother and with fathers father. County counsel objected on the basis of relevance when fathers attorney asked Dr. Addonov if in his opinion father is a sexual perpetrator. After extended discussion, the trial court concluded that the question of whether father is a sexual perpetrator was answered at the jurisdiction hearing when the trial court found the allegations of the petition true. Therefore, the trial court ruled that the court would consider Dr. Addonovs opinion for the sole limited purpose of evaluating this witnesss opinion about what kind of treatment is necessary, whether or not [father] needs to make an admission, whether thats important. When questioning resumed, fathers attorney asked Dr. Addonov his opinion regarding fathers propensity now in terms of being a pedophile, and Dr. Addonov answered, I did not find evidence that hes [a] danger to his children or anybody at this point. During cross-examination, county counsel asked whether father would need counseling to address the molestation issues before it would be safe for M. and S. to return home to mother and father, and Dr. Addonov said, If it happened, indeed. But I dont believe it happened. In Dr. Addonovs opinion, The focus is on the wrong person. Dr. Addonov also confirmed that since he believes that father did not molest either M. or S., there is no reason for Dr. Addonov to see father again.

At the conclusion of the hearing, the trial court found, among other things, that DCS had provided reasonable services to father. The trial court declined to return S. to fathers custody and instead found that return continues to be detrimental and poses a substantial risk of detriment to S.s physical and emotional well-being. Despite the social workers contrary recommendation, the trial court returned M. and S. to the custody of mother with an appropriate order requiring father to move out and stay away from the home and the childrens schools.

Father challenges the trial courts finding that returning S. to fathers custody would pose a substantial risk of detriment to the child. According to father, the trial court incorrectly limited the admissibility of Dr. Addonovs testimony and therefore did not consider that testimony in deciding whether father posed a continuing danger to S. When Dr. Addonovs testimony is considered, father contends the evidence does not support the trial courts finding that returning S. to fathers custody posed a substantial risk of detriment to the child. We disagree with fathers assertions.

When a child has been removed from the physical custody of his or her parent, the trial court must order the child returned to the parent at the six-month review hearing unless a preponderance of the evidence shows that doing so would pose a substantial risk of detriment to the child. ( 366.21, subds. (c) & (e).) Father argues that if the trial court had not limited the admissibility of Dr. Addonovs testimony, the trial court would have found that father did not pose a risk of harm to S. Both father and DCS focus initially on the correctness of trial courts ruling regarding the admissibility of Dr. Addonovs testimony. We will not resolve that issue because even if we were to assume, without actually deciding, that the testimony was admissible to show father had not molested either M. or S., that showing does not require the trial court to find father did not pose a risk of harm to S. for the simple reason that the trial court was not required to accept the truth of Dr. Addonovs opinion.[15]

The issue, as father correctly points out, ultimately turns on whether the trial courts detriment finding is supported by substantial evidence. The pertinent evidence includes the trial courts true findings on the jurisdictional allegations in both the original and subsequent dependency petitions that father had sexually abused M. and also had sexually abused S. According to the social workers report, father denied that the molestations occurred, and as a result father refused to participate in counseling or other treatment directed at alleviating the reason S. had been removed from fathers custody. Although Dr. Addonov did not believe father had molested either child, he also acknowledged that it is very difficult to treat sexual abuse unless the abuser admits the problem and absent an admission, the rate of recidivism is very high. That evidence is sufficient to support the trial courts finding at the six-month review hearing that returning S. to fathers physical custody posed a substantial risk of detriment to S. (In re Jasmine C., supra, 70 Cal.App.4th at p. 75.)

Father also contends that the evidence does not support the trial courts finding that DCS offered reasonable reunification services to father. Again, we must disagree.

As previously noted, the social worker stated in her report and testified at the review hearing that she had difficulty locating a therapist for father. The therapists located in the high desert who were closest in proximity to Fort Irwin, were either unable to provide treatment for various reasons or were unwilling to do so unless father would admit that he had committed the acts of molestation. The social worker eventually located a psychologist in Rancho Cucamonga willing to work with father, but father was unwilling to make the four hour round trip drive to meet with the therapist. Ultimately the social worker contacted Dr. Addonov.

Father does not dispute the effort the social worker undertook to locate a therapist. Instead he contends that the social worker should have contacted Dr. Addonov first, and because she failed to do that, the delay in obtaining counseling for father within a reasonable distance from his home was inexcusable. Father bases his assertion solely on the fact that Dr. Addonovs name was on the DCS provider list the social worker eventually consulted after she had been unable to find a therapist closer to Fort Irwin or willing to work with father. In other words, father contends that the social worker should have anticipated that therapists in the areas closest to Fort Irwin would decline to provide counseling for father, and also should have known that Dr. Addonov not only would provide services but also would be willing to drive from his office in San Bernardino to Victorville in order to meet with father. The social worker had no way to divine these facts, fathers contrary assertion notwithstanding.

Under the circumstances of this case, which include the relatively remote location of Fort Irwin, fathers unwillingness to drive long distances to obtain counseling, and his steadfast denial of the molestation allegations, we cannot say that it was unreasonable for the social worker to take nearly six months to locate a therapist for father. In order to agree with father we would have to conclude as a matter of law that the social workers effort was inadequate and therefore DCS failed to provide reasonable reunification services to father. We cannot reach such a conclusion in this case. The evidence presented above is sufficient to support the trial courts finding that DCS provided reasonable reunification services to father. Accordingly, for the reasons noted we reject fathers challenges to the trial courts findings at the six-month review hearing.

DISPOSITION

The disposition orders on the original and subsequent dependency petitions are affirmed. The trial courts findings at the six-month review hearing are affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKinster

Acting P.J.

We concur:

/s/ Richli

J.

/s/ King

J.

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

[2]We consolidated the appeals on our own motion.

[3]The social worker apparently appended copies of the photographs to an addendum report submitted for the jurisdiction hearing. M. testified at the jurisdiction hearing that the photographs in question are the ones father had taken of her, but it is unclear whether the photographs were actually admitted into evidence. In any event, they are not included in the record on appeal.

[4]In the e-mail, mothers lawyer told mother to get on one of the websites that M. visits and try to start a relationship with M.

[5]The trial court dismissed an allegation under section 300, subdivision (b), that mother suffered from substance abuse and as a result was unable to adequately provide for M. and S. The only evidence to support that allegation was the social workers suspicion based on mothers physical appearance when interviewed (mother apparently is thin and has acne, which are consistent with methamphetamine use), but mothers drug test was negative.

[6]Section 300 states, Any child who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court: [] . . . [] (d) 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 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.

[7]Mother does not claim otherwise and instead only challenges the sufficiency of the evidence to support the trial courts finding that father sexually abused M.

[8]The section 342 petition does not include allegations against mother.

[9]We assume the trial courts comment refers to the fact that Mary P. not only jumped to the conclusion that S. had been touched inappropriately, she also sent a letter to the social worker documenting what Mary P. viewed as S.s propensity to show affection by touching people inappropriately, such as on the breasts and the buttocks. The social worker appended that letter to her detention report.

[10]S.s term for the vaginal area.

[11]In the trial courts view, the fact that father molested M., a teenager to whom he is not biologically related, has little bearing . . . [on] whether he would molest a child that he is biologically related to.

[12]In response to an apparent off-the-record comment by the trial court, mothers attorney said, I want to respond to the Courts comments about my being a pain. In trial, I want to make it clear I intend to make all objections necessary. I hope you wont be offended. The trial court responded, I am not offended by that at all. I assume that thats your business. [] . . . [] And I expect you to be a very good advocate for your position. [] What I dont expect is you to be and we have never met, so when I hear from a judicial officer you try to take on the bench, I just dont want to be wasting any time doing that, because I want you to understand that in any disagreements between you and the bench, the bench will win. And its a waste of time for us to do that. [] My purpose in telling you that is so that well move on expeditiously, not waste time with either personalities or some sort of testosterone fight over whos going to run the courtroom, because that isnt an issue. Thats my point in telling you that.

[13]Counseling was not a requirement of fathers initial family reunification plan and was added after the jurisdiction and disposition hearing. When presented with the revised plan, father refused to sign it and instead wrote, as his explanation, I did not participate in development & will not go to Group or Individual Counseling due to on going [sic] military investigation.

[14]The social worker misspelled the therapists last name in her letter to father and in her report. We use the correct spelling.

[15]Father contends that we must also consider Dr. Addonovs testimony in assessing whether the evidence is sufficient to support the trial courts jurisdiction findings on the original and subsequent petitions. Father is simply wrong. We assess the trial courts findings based on the evidence that was presented at the challenged hearing. (In re Daniel C. H. (1990) 220 Cal.App.3d 814, 830.) Dr. Addonovs testimony was not presented at the jurisdiction hearings and therefore we cannot consider that testimony in determining whether substantial evidence supports the trial courts jurisdiction findings. Moreover, even if we were to consider Dr. Addonovs testimony, we are not required to accept that testimony as true. Therefore, we could (and would) find that the trial courts jurisdiction findings on both the original and subsequent petitions are supported by substantial evidence, despite the testimony of Dr. Addonov.