In re Eunice B

Filed 3/15/06 In re Eunice B. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from orders of the Superior Court of San Diego County, Joe Littlejohn, Judge. Affirmed.

Jorge B. and Yadira B. (together the parents) appeal orders declaring their minor children, Eunice B., Rebeca B. and Manuel B. (collectively the minors), dependents of the juvenile court under Welfare and Institutions Code^[1] section 300, subdivisions (b), (d) and (j) and removing them from the parents' custody under section 361, subdivision (c)(1). The parents challenge the sufficiency of the evidence to support the court's jurisdictional findings that Jorge sexually molested Eunice and that the parents' domestic violence subjected the minors to a substantial risk of harm. Yadira further challenges the sufficiency of the evidence to support the court's dispositional orders removing the minors from parental custody. We affirm the orders.

FACTUAL AND PROCEDURAL BACKGROUND

In April 2003, three-year-old Eunice and two-year-old Rebeca came to the attention of the San Diego County Health and Human Services Agency (Agency) because of domestic violence concerns. The parents minimized any domestic violence and refused voluntary services. Nevertheless, Agency gave them referrals to counseling and domestic violence groups. The parents' third child, Manuel, was born in July 2003. In November 2003, Agency received a referral concerning sexual abuse allegations but the family could not be located.

In January 2005, Eunice told Yadira that Jorge had put his finger in her vagina and offered her money to let him do this. The next day, Yadira reported the sexual abuse to the police and was given information about obtaining a temporary restraining order. Yadira brought Eunice and Rebeca to the hospital where a clinical examination was inconclusive. Yadira told the hospital social worker that she suspected Jorge had been sexually abusing the girls, explaining Jorge often went into the bathroom with the girls and Yadira was unable to get them out. The girls would cry whenever they were with Jorge. One time, Yadira heard Jorge pull his finger from Eunice's vagina or underwear. He then went into the kitchen to wash his finger. On an earlier occasion, Yadira heard Jorge force himself on Rebeca while they were in a locked bedroom and she heard Rebeca say, "no, dad!" When Jorge came out of the room, he wiped his finger, causing Yadira to believe he had digitally penetrated Rebeca. Yadira later heard Rebeca ask Jorge for a dollar, and assumed this was payment for allowing Jorge to molest Rebeca. Yadira further reported two incidents of domestic violence in which Jorge struck her in the face, causing visible injuries.

During an interview with social worker Antonia Torres, Eunice and Rebeca both said Jorge had touched their vaginal areas and buttocks with his hand. Eunice reported her three uncles had also touched her. Torres gave Yadira housing referrals because she and the minors were living with the maternal uncle who had molested Yadira when she was a child.

On February 14, 2005, Yadira obtained a temporary restraining order prohibiting Jorge from contacting her and the minors and requiring him to stay at least 100 yards away from them. Immediately after the court issued the restraining order, Yadira was seen walking and talking with Jorge, who was carrying Manuel and holding the hand of one of the girls. Yadira admitted Jorge got on a bus with her and the minors. She said she did not "think it would be a big deal" and she did not remember she was supposed to call the police. Yadira came to a hearing to extend the restraining order accompanied by Jorge.

During an interview with social worker Tammy Hunter, Yadira said Jorge had violated the restraining order on two other occasions: once when he brought food to her home and again when he brought court documents to her home. Yadira said she did not call the police when Jorge violated the restraining order because she did not have permission to use the telephone in the home where she lived. She also believed she was not required to call the police unless Jorge was physically attacking her. As a further explanation, Yadira said she did not want to make a scene or give her neighbors the impression she was mean to her husband.

Hunter interviewed Eunice, who said Rebeca told her that Jorge had touched her many times. Eunice demonstrated how her three uncles rubbed their hands across her crotch and buttocks, stating they did this to Rebeca too. Eunice reported that Jorge had been at the house where she currently lived. She said her mother did not want Jorge to go to jail because he would not be able to see them.

Agency took the minors into protective custody and filed petitions in the juvenile court under section 300, subdivision (d) on behalf of Eunice and subdivision (j) on behalf of Rebeca and Manuel. The petition as to Eunice alleged sexual abuse by Jorge in that Eunice disclosed Jorge had inserted his fingers in her vagina, and Yadira had continued to allow Jorge to have contact with Eunice despite having previously obtained a restraining order based on allegations of molest. (§ 300, subd. (d).) The petitions as to Rebeca and Manuel alleged they were at risk based on the allegations of sexual abuse of Eunice. (§ 300, subd. (j).)

Agency later filed amended petitions, adding an allegation the minors were at substantial risk of suffering serious harm because they were exposed to domestic violence. (§ 300, subd. (b).) Specifically, the petitions alleged Jorge, in the minors' presence, hit Yadira in the face with a closed fist, resulting in a bloody nose, and the parents' history of domestic violence included a prior incident of Jorge hitting Yadira in the face and causing her to have a black eye. The petitions further alleged Yadira allowed Jorge to have contact with the minors after obtaining a restraining order.

Social worker Miriam Curiel interviewed Eunice and concluded Eunice knew the difference between the truth and a lie. Eunice said she liked visiting Yadira but did not want to visit Jorge because he hit her with a belt. Eunice said she did not see Jorge hit Yadira, but she saw a photograph of Yadira with a bruised eye, which Yadira said resulted from Jorge hitting her.

Eunice told Curiel that her three uncles had touched her vaginal area and buttocks. She initially denied anyone else had touched her there, but when Curiel mentioned the possibility of parents touching their children, Eunice interrupted by saying, "I forgot to tell you, my father touched my [vagina] also. That's why I don't want to see him, because he touches me." Eunice drew a picture and explained her father put cream on his finger, and while she was sleeping, he took off her panties and put the cream in her vagina.

Curiel interviewed Jorge, who denied the allegations of sexual abuse. He claimed Yadira made them up because she had been molested as a child. Jorge said Yadira allowed him to see and talk to the minors because she knew the allegations were untrue. He denied there was any domestic violence, but admitted he and Yadira yelled and argued. Jorge also admitted he pushed Yadira one time when she would not let him spank their daughter. However, Yadira described to Curiel two incidents of domestic violence, during which Jorge caused her to have a bruised eye and a bloody nose. Jorge later admitted Yadira's eye swelled when he pushed her, but he maintained he did not hit her. He explained Yadira's nose bled when she hit her face on the door after he opened it during an argument.

Curiel believed the minors remained at high risk because of sexual abuse and domestic violence issues. Despite having obtained a restraining order, Yadira continued to have contact with Jorge. Jorge admitted he had contact with Yadira even though she had a restraining order against him. Curiel noted Eunice's disclosure about the sexual abuse was consistent with disclosures made to two other social workers as well as with statements made by Yadira.

At a jurisdiction hearing, neither parent presented evidence. Through counsel, Yadira acknowledged two domestic violence incidents and submitted on the section 300, subdivision (b) allegations as to all three minors. Further, because Yadira believed Eunice's disclosures of sexual abuse made to the social worker, she submitted on the section 300, subdivision (d) allegations as to Eunice and Rebeca. The court sustained the allegations of the petitions regarding sexual abuse as to Eunice under section 300, subdivision (d) and as to Rebeca under section 300, subdivision (j). The court also sustained the allegations of the petitions under section 300, subdivision (b) regarding domestic violence as to all three minors.

At a contested disposition hearing, the court received into evidence an addendum report and a psychological evaluation of Jorge. Yadira refused to authorize or participate in a psychological evaluation.

Curiel testified Jorge had begun individual counseling and domestic violence group therapy. Although there were no Spanish-speaking programs in north San Diego County to address sexual abuse, Curiel believed Jorge could address this issue in individual therapy. Yadira had begun individual therapy and parenting classes. Yadira's therapist reported she was not doing well in therapy, but hoped a psychological evaluation would clarify why Yadira was resisting treatment. Although Agency had not limited the number or length of visits with the minors, Yadira was visiting one hour per week in a supervised setting. The visits were going well.

Yadira testified she had housing and part-time employment. She admitted she had not started domestic violence counseling, but she had completed a parenting class. She could not remember when she completed it or how many classes she had attended. She had attended six individual therapy sessions, but missed the previous week because the trial had been difficult for her. Yadira was afraid to complete a psychological evaluation and wanted assurance from the court that the minors would not be taken away from her.

After the court considered the evidence and heard argument of county counsel, Yadira's counsel and minors' counsel, Jorge submitted as to disposition. In discussing the parents' case plans, the court noted Yadira had refused to provide information through a psychological evaluation and thus, her reunification plan was to include a non-offender sexual abuse treatment program. The court declared the minors dependents, removed them from parental custody and placed them with a relative.

DISCUSSION

I

The parents challenge the sufficiency of the evidence to support the court's jurisdictional findings that Eunice was sexually molested by Jorge and that the minors were at risk of harm due to the parents' domestic violence.

A

Preliminarily, Agency argues Yadira forfeited her right to challenge the court's jurisdictional orders by submitting on the allegations of the petitions. The record shows that at the jurisdiction hearing, Yadira submitted on the allegations under section 300, subdivision (b) after acknowledging two incidents of domestic violence. She also acknowledged the sexual abuse as disclosed by Eunice to the social worker, and submitted on Eunice's petition under section 300, subdivision (b) and Rebeca's petition under section 300, subdivision (j). These submissions coincided with the social worker's recommendations for jurisdiction. Yadira then objected to the court taking jurisdiction under section 300, subdivision (j) as to Manuel, arguing the evidence was insufficient to support a finding Manuel was at risk of sexual abuse by Jorge.

Yadira acquiesced to facts sufficient to support the court's true findings under section 300, subdivision (b) as to all three minors and subdivisions (d) and (j) as to Eunice and Rebeca. This was equivalent to submitting on the social worker's recommendations for jurisdiction, which ordinarily "dispels any challenge to and, in essence, endorses the court's issuance of the recommended findings and orders. Consequently, a parent who submits on a recommendation [forfeits] his or her right to contest the juvenile court's decision if it coincides with the social worker's recommendation." (Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 813; In re Richard K. (1994) 25 Cal.App.4th 580, 590.) In contrast, where a parent submits on a particular report or record, he or she acquiesces as to the state of the evidence without forfeiting the right to challenge it as insufficient to support a particular legal conclusion. (In re Tommy E. (1992) 7 Cal.App.4th 1234, 1237.)

Here, Yadira did not submit on the record or the social worker's report, but instead stipulated to facts that supported or endorsed the court's issuance of the social worker's recommended findings under section 300, subdivision (b) as to all three minors and subdivisions (d) and (j) as to Eunice and Rebeca. Thus, Yadira has forfeited any claim of insufficient evidence to support the court's jurisdictional orders. (Steve J. v. Superior Court, supra, 35 Cal.App.4th at p. 813.) Even had Yadira submitted on the social worker's report rather than on the recommendations or specific allegations of the petitions, she has not met her burden of showing no substantial evidence supports the court's jurisdictional orders. Thus, we proceed to address both parents' challenges to the sufficiency of the evidence to support the court's jurisdictional findings and orders.

B

In reviewing the sufficiency of the evidence on appeal, we look to the entire record to determine whether there is substantial evidence to support the findings of the juvenile court. We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence, or determine where the weight of the evidence lies. Rather, we draw all reasonable inferences in support of the findings, view the record in the light most favorable to the juvenile court's order and affirm the order even if there is other evidence supporting a contrary finding. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53; In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) The appellant has the burden of showing that there is no evidence of a sufficiently substantial nature to support the order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)

C

Section 300, subdivision (b) provides a basis for juvenile court jurisdiction if the child has suffered, or there is a substantial risk the child will suffer, serious physical harm or illness as a result of the parent's failure to adequately supervise or protect the child or provide adequate medical treatment. In enacting section 300, the Legislature intended to protect children who are currently being abused or neglected, "and to ensure the safety, protection, and physical and emotional well-being of children who are at risk of that harm." (§ 300.2, italics added.) The court need not wait until a child is seriously abused or injured to assume jurisdiction and take the steps necessary to protect the child. (In re Heather A. (1996) 52 Cal.App.4th 183, 194-196; In re Michael S. (1981) 127 Cal.App.3d 348, 357-358.)

Domestic violence in the presence of children constitutes neglect in that it is a failure to protect the children from the substantial risk of encountering the violence and suffering serious physical harm from it. "Such neglect causes the risk." (In re Heather A., supra, 52 Cal.App.4th at p. 194; see also In re Basilio T. (1992) 4 Cal.App.4th 155, 169 [substantial evidence supported jurisdictional finding children were at substantial risk of serious harm due to violent confrontations in family home]; In re Benjamin D. (1991) 227 Cal.App.3d 1464, 1470, fn. 5 [common sense and expert opinion indicate domestic violence is detrimental to children].) Domestic violence impacts children, even if they are not the ones being physically hurt, "because they see and hear the violence and the screaming." (In re Heather A., supra, 52 Cal.App.4th at p. 192; see also In re Jon N. (1986) 179 Cal.App.3d 156, 161.)

Here, the evidence showed the parents had a history of domestic violence dating to 2003. They refused voluntary services to address this issue. Yadira reported two specific incidents of domestic violence when Jorge hit her in the face, causing her eye to swell, and when he punched her in the face, causing her nose to bleed. Jorge initially denied any domestic violence, but later admitted he pushed Yadira in the face on one occasion and caused injury to her eye, and he also admitted Yadira sustained a bloody nose during an argument.

The parents assert there was no evidence the minors were at future risk of harm as a result of domestic violence. In a related argument, Yadira claims the evidence did not support a finding she failed to protect the minors within the meaning of section 300, subdivision (b). However, the record shows that even though Yadira had restraining orders to keep Jorge at least 100 yards away from her and the minors, the parents continued to see each other and Yadira allowed Jorge to have contact with the minors. Yadira claimed to be an innocent victim, alternately stating she forgot to call the police, she had no access to a telephone to call the police, she believed she was not required to call the police unless Jorge was physically attacking her, or she did not want to make a scene or have her neighbors think she was mean to her husband. Jorge's version was that Yadira allowed him to see and talk to the minors in spite of having a restraining order because she knew the allegations were untrue. Eunice reported Jorge had been to their home and said her mother did not want Jorge to go to jail because he would not be able to see them. This evidence provided a basis for inferring Yadira might allow Jorge continued contact with the minors and that she lacks the ability to protect the minors from future harm. (See In re Nicole B. (1979) 93 Cal.App.3d 874, 878-879 [although perpetrator of abuse no longer lived in home, court could properly infer he might return].) Thus, there was ample evidence that domestic violence occurred and the minors remained at substantial risk of serious physical harm as a result of their parents' domestic violence.

D

Jorge contends the evidence was insufficient to support a finding he sexually molested Eunice. He asserts: (1) Yadira never witnessed any inappropriate touching and only speculated he had offered the girls money for sexual favors; (2) there were no medical findings confirming sexual molestation; and (3) Eunice's statements about the molest were not reliable.

Section 300, subdivision (d) provides a basis for jurisdiction where the child has suffered, or is at substantial risk of suffering, sexual abuse. Here, Eunice's statements made to Yadira and several social workers were consistent and gave a detailed account of what Jorge did to her. Although a physical examination neither substantiated nor disproved abuse had occurred, Eunice described how Jorge had inserted his finger in her vagina and touched her buttocks. While being questioned by the social worker about inappropriate touching, Eunice said, "I forgot to tell you, my father touched my [vagina] also. That's why I don't want to see him, because he touches me." Without prompting, Eunice drew a picture and explained her father put cream on his finger, and while she was sleeping, he took off her panties and put the cream in her vagina. The court was entitled to find Eunice credible and to disbelieve Jorge when he denied having molested her. (See In re Casey D., supra, 70 Cal.App.4th at p. 53.) In this regard, we defer to the trial court because we have no power to judge the effect, value or weight of the evidence, consider the credibility of witnesses or resolve conflicts in the evidence. (In re Rubisela E. (2000) 85 Cal.App.4th 177, 194.)

Moreover, even though Yadira did not witness any inappropriate touching, she suspected Jorge had been molesting the minors because he went into the bathroom with the girls for long periods of time and came out to wash his finger. Yadira heard suspicious noises she associated with molest and she noticed the girls would cry whenever they were with Jorge. We cannot reweigh Yadira's credibility or redetermine the facts. Substantial evidence supports the court's jurisdictional findings under section 300, subdivision (d) as to Eunice and subdivision (j) as to Rebeca.

II

Yadira challenges the sufficiency of the evidence to support the court's dispositional orders. She asserts the minors would not be at risk in her care because she was employed, had appropriate housing, was participating in services and no longer had contact with Jorge.

A

Before the court may order a child physically removed from his or her parent, it must find, by clear and convincing evidence, the child would be at substantial risk of harm if returned home, and there are no reasonable means by which the child can be protected without removal. (§ 361, subd. (c)(1); In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.) The jurisdictional findings constitute prima facie evidence the child cannot safely remain in the home. (§ 361, subd. (c)(1).) The parent need not be dangerous and the child need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, disapproved on another ground in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6; In re Jamie M. (1982) 134 Cal.App.3d 530, 536.) In this regard, the court may consider the parent's past conduct as well as present circumstances. (In re S.O. (2002) 103 Cal.App.4th 453, 461.)

We review the court's dispositional findings for substantial evidence. (In re Kristin H., supra, 46 Cal.App.4th at p. 1654.) Even when the trial court makes findings by the elevated standard of clear and convincing evidence, the substantial evidence test remains the standard of review on appeal. (In re Mark L. (2001) 94 Cal.App.4th 573, 580-581.)

B

The court's removal order was based on findings the minors were at substantial risk of harm because of sexual abuse by Jorge and the parents' domestic violence. As we previously held, those findings are supported by substantial evidence. The evidence also showed that although Yadira believed Jorge had sexually abused Eunice and admitted two incidents of domestic violence resulting in injury, she did not fully understand the risk Jorge posed as shown by allowing him to have contact with the minors. Even after obtaining temporary restraining orders against Jorge, Yadira failed to enforce them, offering various excuses for her conduct. In the social worker's opinion, the minors remained at high risk because of sexual abuse and domestic violence issues.

At the time of the disposition hearing, Yadira was employed, had housing and had attended six individual therapy sessions. According to her therapist, she was not doing well in therapy and needed to have a psychological evaluation to clarify why she was resisting treatment. Yadira admitted she had not started domestic violence counseling. Because issues of sexual abuse and domestic violence had not been addressed, the evidence supports a finding the minors were at substantial risk of harm if returned home.

C

Yadira asserts the court erred by not specifying a factual basis for its removal order. However, when the juvenile court does not state the factual basis for an order, we may infer the basis from the evidence. (In re Jason L. (1990) 222 Cal.App.3d 1206, 1218-1219; In re Corienna G. (1989) 213 Cal.App.3d 73, 83.) If the evidence is sufficient to support the basis, the error is deemed harmless. (In re Basilio T., supra, 4 Cal.App.4th at p. 171.) As we already concluded, the evidence was sufficient to support the court's factual findings and its removal order based on the substantial risk to the minors if they remained in Yadira's custody. Yadira was not prejudiced by a more explicit statement of reasons for the court's dispositional order.

D

Yadira asserts the court improperly removed the minors from her custody because she refused to complete a psychological evaluation before the disposition hearing. She claims this impermissibly shifted the burden of proof to her to show she could safely parent the minors.

Agency met its burden of showing, by clear and convincing evidence, the minors could not safely remain in Yadira's care. Contrary to Yadira's argument, the court did not require her to prove she was a "safe" placement. Rather, the court's discussion properly focused on the need to determine Yadira's capacity to utilize reunification services. (See Laurie S. v. Superior Court (1994) 26 Cal.App.4th 195, 201.) Indeed, a psychological evaluation was an appropriate tool to aid Yadira in addressing the protective issues and to tailor services to allow her the greatest opportunity to reunify with the minors. The court's removal decision was not based on the absence of a psychological evaluation.

E

Yadira contends the court erred by not considering disposition alternatives less drastic than removal. She asserts the minors could have safely remained with her under stringent conditions of supervision.

As we previously noted, before the court removes a child from parental custody, it must find there are no reasonable means by which the child's physical health can be protected without removal. (§ 361, subd. (c)(1).) Although the court must consider alternatives to removal, it has broad discretion in making a dispositional order. (Ibid.)

Here, the evidence showed the same allegations of domestic violence and sexual abuse that came to Agency's attention in 2003 resurfaced in 2005. The parents had previously refused referrals for domestic violence groups, counseling and information about restraining orders. Yadira eventually obtained a temporary restraining order based on Jorge's sexual abuse of Eunice. Nevertheless, she allowed Jorge to have contact with the minors, telling Eunice she did not want Jorge to go to jail because he would not be able to see them. At the time of the disposition hearing, the parents had just begun to participate in services, and Yadira remained resistant to treatment. Under these circumstances, the social worker believed the minors remained at high risk of continued abuse. The lack of reasonable alternatives to removal, coupled with the identified risk the parents posed to the minors' well-being, was sufficient to support a finding there were no reasonable means of preventing removal.

DISPOSITION

The orders are affirmed.

NARES, J.

WE CONCUR:

McCONNELL, P.J.

IRION, J.

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^[1] Statutory references are to the Welfare and Institutions Code.