In re M.N.

Filed 9/15/06 In re M.N. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Hideo Chino, Referee. Affirmed.

Michael N. appeals the judgment declaring his daughter M.N. a dependent of the juvenile court pursuant to Welfare and Institutions Code[1] section 300, subdivision (d) and removing her from his custody pursuant to section 361, subdivision (c)(1) and (c)(4). He contends that the court's findings are not supported by substantial evidence. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On October 24, 2005, the San Diego County Health and Human Services Agency (the Agency) received a referral to investigate allegations that M.N., then age five, had been sexually molested by her father, Michael. M.N.'s mother, Lizette N., brought M.N. to Long Beach Children's Hospital for an evaluation after Lizette told her daughter not to allow anyone to touch her genital area, and M.N. had replied, "Daddy does."

M.N. told the social worker at Long Beach Children's Hospital that her father touched her with his finger in the vaginal area when she was in bed at night. M.N. denied that any other type of sexual or physical abuse had occurred. Because the family lived in San Diego, the social worker instructed Lizette to report the incident to the Agency and to San Diego law enforcement, which she did.

On October 25, 2005, a San Diego police officer interviewed M.N. at her elementary school. The officer explained to M.N. the difference between a "good touch" and a "bad touch" and asked her whether anyone had ever touched her in her private areas. M.N. replied, "No." When the officer specifically asked M.N. whether anyone in her family such as her mother, father, grandmothers, grandfathers, aunts, or uncles had ever touched her private areas, M.N. responded, "No." In a separate interview that same day, M.N. told the investigating social worker that her father rubbed her genital area, under her clothing, with his index finger at bedtime.

The Agency referred M.N. to Children's Hospital and Health Center (Children's Hospital) for a forensic interview, which was conducted on October 27, 2005. M.N. told the interviewer that her father touched her "hootchie" at night. When asked what part of the body a "hootchie" was, M.N. pointed directly between her legs and stated, "right there." In response to the interviewer's question what that part of the body is used for, M.N. stated, "for going pee but I don't know why my dad does that." She held up her index finger and moved it back and forth. M.N. also made a rubbing motion with her index finger on the table to demonstrate how she was touched and said, "like that, really soft." M.N. reported that she wore "jammies" to bed and that the touching occurred "inside [her] jammies." When the interviewer asked M.N. what her "hootchie" felt like when her father touched it, M.N. replied, "warm." She said the touching happened when she was five years old, adding, "I am five."

Doctors at Children's Hospital conducted a forensic medical examination on November 11, 2005. The examination was normal.

In interviews, Lizette disclosed that she and Michael were divorcing and that they were fighting over custody of their daughter. Lizette had discussed the issue of inappropriate touching with M.N. only after Michael told her that he witnessed Lizette's brother stroking M.N.'s leg and that the brother appeared to be sexually aroused. Michael's allegations upset Lizette. She admitted to investigator that in the past, when she was angry with her husband, she had threatened to "scream inappropriate sexual stories." Lizette denied that she had encouraged or coached M.N. to report sexual molestation by Michael.

Michael and Lizette adopted M.N. from a Russian orphanage when she was 26 months old. While they were still in Moscow, Michael told Lizette that he believed M.N. had been sexually molested at the orphanage because she had tried to touch his penis when he was in the bathroom. Lizette responded that "she just did not want to hear that [M.N.] could have been molested."

Michael told investigators that M.N. continued to display inappropriate behaviors after they returned to California. For example, she had touched Michael's penis when he was urinating and had wiped its end with toilet paper after he finished urinating. M.N. tried to pat his penis dry on two or three occasions. On another occasion, M.N. tried to pull his foreskin back. Michael told her to stop because it hurt him. M.N. displayed other sexualized behaviors. Michael had observed M.N. masturbating or playing with her vaginal area "a dozen times." Michael reported that M.N. pointed to her genital area with her finger and stuck out her tongue, which Michael interpreted as a request to lick her vagina and to put his finger in her anus and vagina and then smell his finger. Michael said that on occasion, he and M.N. had slept in the same bed in the nude; however, when that happened, they were not under the same bedcovers or there was a pillow between them. Michael denied that he put his hands inside M.N.'s pants or that he touched her in a sexual way.

The Agency filed a petition pursuant to section 300, subdivision (d) alleging that M.N. had been sexually abused by her father when he rubbed her genital area with his finger, and that her mother had allowed the child to visit her father after she had been told not to allow contact. At the detention hearing, the court noted that there was a pending family law matter and expressed its concern that the adults interviewing M.N. may have influenced the child's reports of sexual molestation. The court detained M.N. with her maternal grandmother, authorized supervised visitation between M.N. and each parent, and directed the parents and the grandmother not to discuss the allegations with M.N. except in a therapeutic setting.

At the contested jurisdiction and disposition hearing, the court admitted into evidence the detention and jurisdiction/disposition reports and the attachments to the reports, which included hospital records and law enforcement reports. The court also admitted into evidence the videotape of M.N.'s interview at Children's Hospital, and a transcript of the detention hearing. The parties stipulated that between February and April 2004, Michael and Lizette saw a marriage counselor approximately eight times. During those sessions, Lizette raised concerns about Michael showering with M.N. and sleeping in the nude with her. Michael never mentioned any inappropriate acts or behaviors by M.N. during these sessions. No further evidence was presented.

The court stated that although it had been concerned that the allegations of sexual molestation may have been "a question of over interviewing or overdiscussing, overexamining" the child, after reviewing the videotape of M.N.'s interview at Children's Hospital, the court determined that M.N.'s statements to the interviewer were credible. In reaching its decision that the allegations in the petition were sustained by clear and convincing evidence, the court also considered the history of Michael's interactions with his daughter.

In its disposition order, the court removed M.N. from Michael's custody pursuant to section 361, subdivision (c)(1) and (c)(4), and ordered the Agency to provide Michael reunification services. The court found that it was appropriate to return M.N. to Lizette's care, provided that Lizette continued to participate in therapeutic services and clearly understood the boundaries imposed on her conversations with M.N.

DISCUSSION

I

The Court's Jurisdiction Findings are Supported by Substantial Evidence

Michael contends that the evidence is insufficient to support the juvenile court's jurisdictional finding that M.N. was a child described by section 300, subdivision (d).

Section 300 provides:

"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 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 knew or reasonably should have known that the child was in danger of sexual abuse."

Penal Code section 11165.1, subdivision (b)(4) defines sexual abuse to include:

"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 the 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 with a valid medical purpose."

The standard of proof at a jurisdiction hearing that is required to sustain allegations of sexual abuse pursuant to section 300, subdivision (d) is a preponderance of the evidence. (§§ 356; 355, subd. (a).) A jurisdiction hearing involving charges of sexual abuse is extraordinarily important. If the court's findings are not reliable, the consequences to the child, the accused, and the family are enormous. (In re Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738, 1754.) "The ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record." (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 652.)

We therefore review the entire record to determine whether there is substantial evidence to support the trial court's findings. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) The evidence must be reasonable in nature, credible, and of solid value. (DiMartino v. City of Orinda (2000) 80 Cal.App.4th 329, 336.) "In making this determination, all conflicts are to be resolved in favor of the prevailing party, and issues of fact and credibility are questions for the trier of fact." (In re Ricardo L. (2003) 109 Cal.App.4th 552, 564.) The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947; In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

Michael argues that Lizette made false allegations of sexual abuse in order to gain custody of M.N. in family court. He maintains that there is no evidence of a substantial nature to support the finding that he sexually molested M.N. because M.N.'s statements to investigators were inconsistent, and there was no physical evidence of abuse. In addition, Lizette's statements concerning the abuse were inconsistent, she admitted that she had threatened to make false accusation of abuse against Michael in the past, and her actions in allowing Michael to have continued contact with M.N. were inconsistent with someone who believed that the allegations of sexual molestation were true.

While this would be a fair argument to raise before the trial court, it is not the function of the appellate courts to reweigh the evidence or draw new inferences. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1135, disapproved on another ground in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6; In re Autumn H., supra, 27 Cal.App.4th at p. 576.) The trial court considered and rejected this argument. The record shows that the trial court was well aware of the fact that the allegations of sexual abuse were made in the context of a divorce in which the custody of the child was contested. However, after the court reviewed the videotape of the forensic investigator's interview with M.N., the court determined that M.N.'s statement that her father had touched her genital area with his finger was credible. Of particular importance to the court were the child's "matter-of-fact" demeanor, her use of the word "warm" to describe the sensation on her genitals when the area was rubbed in the manner she described and demonstrated, and her references to her father.

"The testimony of a single witness is sufficient to uphold a judgment even if it is contradicted by other evidence, inconsistent or false as to other portions." (People v. Leigh (1985) 168 Cal.App.3d 219, 221.) Although M.N. denied that she had been touched in her private areas when she was interviewed at school by a police officer, she consistently described the manner in which she was touched to the other professionals who interviewed her. M.N. identified only her father as the perpetrator.

Corroboration of the statements of children who allege they have been sexually abused is an additional safeguard, but is not required, in dependency proceedings. (In re Lucero L. (2000) 22 Cal.4th 1227, 1248-1249; see also Halagan v. Ohanesian (1967) 257 Cal.App.2d 14, 21 [the trier of fact may accept that portion of the testimony it believes true, particularly where it is corroborated by other evidence].) The trial court found M.N.'s statements to be credible. Her description of acts of sexual abuse constitutes sufficient evidence to support a court's finding of jurisdiction, without corroborating evidence.

In this case, although Michael denied that he had touched or rubbed M.N.'s genital area, his description to investigators of her sexualized behaviors and his responses to those behaviors tend to corroborate rather than to negate the child's statements. According to Michael, M.N. asked him to perform a variety of sexual acts on her and she touched or attempted to touch his penis on more than one occasion. Michael did not report M.N.'s behaviors either to her mother or to a professional, and he continued to shower with her and to sleep with her in the nude. Michael discovered M.N. masturbating an "unusual amount of times," and claimed Lizette was unaware of this activity. M.N. exhibited sexualized behaviors with her father, but not with her mother.

Although she was not aware of these behaviors, Lizette was disturbed by Michael's nudity with M.N. to such an extent that she felt it necessary to discuss during marital counseling sessions whether it was appropriate for Michael to shower and sleep in the nude with their then four-year-old daughter. When she raised the issue, Michael did not disclose M.N.'s sexualized behaviors to Lizette or to their counselor, nor did he seek professional help for their daughter. Although family nudity in the presence of young children is not necessarily inappropriate, under the circumstances here, Michael's nudity with M.N. while showering and sleeping supports the conclusion that he failed to set appropriate boundaries with his daughter after he became aware that her interactions with him were inappropriately sexualized. Further, Michael's failure to bring M.N.'s age-inappropriate behaviors to the attention of her mother or another third party supports the inference that he intended to keep their sexualized interactions secret.

M.N.'s statements that her father rubbed her genital area with his finger, making it feel "warm," and Michael's history of sexualized interactions with his daughter, support the trial court's determination that the Agency met its burden of proof to prove the allegations of the petition pursuant to section 300, subdivision (d).

II

The Court's Disposition Findings and Orders are Supported by Substantial Evidence

A dependent child may not be taken from the physical custody of the parent or parents with whom the child resides at the time the petition was initiated, unless the court finds by clear and convincing evidence that one of the grounds for removal from custody pursuant to section 361, subdivision (c) apply. In this case, the court sustained M.N.'s removal from Michael's custody pursuant to section 361, subdivision (c)(1) and (c)(4) and ordered the Agency to provide reunification services to Michael. Despite the heightened burden of proof required for removal from parental custody at disposition, on review the appellate court "employ[s] the substantial evidence test, however bearing in mind the heightened burden of proof." (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.)

For the reasons stated earlier in this opinion, we conclude that substantial evidence supports the court's finding by clear and convincing evidence that M.N. had been sexually abused by Michael. In addition, Michael's attempt to blame M.N. for their sexualized interactions, his failure to appreciate the need to set appropriate boundaries with M.N., and his continued denial that he acted inappropriately with his daughter

clearly support the court's determination that there were no reasonable means by which to protect the child from sexual abuse and the effects of such abuse on her physical health, safety, protection, or physical or emotional well-being without removing her from Michael's custody. The court did not err.

DISPOSITION

The judgment is affirmed.

AARON, J.

WE CONCUR:

HALLER, Acting P. J.

IRION, J.

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