In re Kimberlim M.
Filed 9/4/13
In re Kimberlim M. CA2/2
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opinion has not been certified for publication or ordered published for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 TWO
In
re KIMBERLIM M., et al., Persons Coming Under the Juvenile Court Law.
B245340
(Los
Angeles County
LOS
ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent.
v.
SELVIN
C.,
Defendant and Appellant.
Super. Ct.
No. CK92730)
APPEAL
from orders of the Superior Court
of
County. Robert L.
Stevenson, Juvenile Court Referee.
Affirmed.
Anne E.
Fragasso, under appointment by the Court of Appeal, for Defendant and
Appellant.
John
F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and
Stephen D. Watson, Deputy County Counsel for Plaintiff and Respondent.
Appellant, Selvin C.
(father) appeals from the juvenile court’s jurisdictional and dispositional
orders with respect to his stepdaughter, Kimberlim (born October 1997), and
biological sons, David (born October 2005) and Jerryn (born June 2010). Father contends that
juvenile court’s jurisdictional order declaring Kimberlim a dependent child
under Welfare and Institutions Code section 300, subdivision (d),
Jerryn dependents under subdivision (j).
Father also challenges the juvenile court’s denial of reunification
services as to David and Jerryn under section 361.5, subdivision (c). We affirm.
Mother
is Kimberlim’s biological mother. Father
is Kimberlim’s step-father. Father and
mother are the biological parents of David and Jerryn. Kimberlim’s biological father, Oscar M.,
lives in Texas. Oscar M. and mother are not parties to this
appeal.
The family came to the
attention of the Los Angeles County
Department of Children and Family Services (DCFS) on March 9, 2012, when
DCFS received an expedited immediate response referral alleging sexual abuse of
Kimberlim by father and alleging that siblings, David and Jerryn, were also at
risk of abuse. The caller alleged that
Kimberlim reported to her teacher that father had been inappropriately touching
and grabbing her all over her body. DCFS
responded to Kimberlim’s school and also made contact with mother. DCFS investigated and interviewed the three
children and mother. DCFS was not able
to contact and interview father.
DCFS interviewed mother
on March 9, 2012,
during which mother initially denied knowledge of any abuse by father. However, during the same interview mother
admitted she was aware that something was going on between father and
Kimberlim. Kimberlim had told mother
that father harassed Kimberlim. Mother
recounted an incident which occurred five months prior to the interview when
she returned home and heard Kimberlim screaming “stop it†and “leave me
alone.†Mother entered the room and
found Kimberlim cornered on the bed and father on top of Kimberlim’s waist
area. Mother said Kimberlim looked
nervous, but both father and Kimberlim claimed they were playing. Mother said after that incident, she heard
Kimberlim say to father in Spanish, “I will tell my mother.†Also during the March 9 interview, mother
recollected that when Kimberlim was 12 years old, her son David indicated to
mother verbally and with gestures that father was touching and harassing
Kimberlim. Mother told Kimberlim when
she was 13 years old, that there were hidden cameras in the house. Mother then asked Kimberlim whether father
ever touched her, and Kimberlim responded affirmatively.
Also during the March 9
interview, mother told DCFS of a March
5, 2012 incident when mother called home to check on
the children. After mother had talked to
all the children, Kimberlim unknowingly did not hang up her cell phone and
mother remained on the line and heard Kimberlim yelling “Stop it, leave me
alone†and father asking Kimberlim to come to him so he could caress her.
DCFS also interviewed
Kimberlim on March
9, 2012.
Kimberlim stated that father started caressing her legs four years
ago. Kimberlim reported that no one had
ever touched her inappropriately before and that she felt very scared and asked
father to stop the touching. Kimberlim
reported to DCFS that father would usually touch her when mother was at work,
and that father would rub her thighs and touch her breasts over her
clothes. She added that father would
slap her buttocks, rub her vagina over her pants, and on one occasion unbuckled
and pulled down her pants. Kimberlim
denied being digitally penetrated by father.
During the interview
Kimberlim said she reported father’s behavior to mother as early as November
2011, but mother continued to leave Kimberlim alone with father. Kimberlim told DCFS she never observed father
inappropriately touching either David or Jerryn.
Kimberlim reported that
the latest incident of abuse occurred on March
5, 2012.
Kimberlim corroborated the incident described by mother in which mother
heard over the phone father asking to caress Kimberlim. Kimberlim told DCFS that father entered her
room and indicated to Kimberlim he wanted to touch her. Kimberlim screamed and told father not to
touch her. Mother and Kimberlim did not
discuss the incident the next day.
David was also
interviewed by DCFS on March
9, 2012. When
asked whether he had ever seen father touch any of his siblings
inappropriately, David responded, “No, I go to the bathroom by myself so no one
touches my pee-pee.â€
DCFS did not interview
Jerryn given his age at the time.
On March 9, 2012,
Kimberlim, David, and Jerryn were detained pursuant to section 300 for sexual
abuse and at risk sibling abuse.
Section
300 petition and detention
On March 27, 2012, DCFS
filed a petition alleging, in relevant part, that father sexually abused
Kimberlim and that the abuse placed David and Jerryn at risk of harm, pursuant
to section 300, subdivisions (d) and (j).
and found a prima facie case that the children were described by section
300. The court then issued an initial
detention order detaining all three children in foster care.
Interim
review report
DCFS
filed an interim review report on April
3, 2012, after having conducted a pre-release
investigation of the paternal grandmother’s home. DCFS recommended all three children remain
appropriately situated in foster care.
Jurisdiction/disposition
report
The May 17, 2012
jurisdiction/disposition report contained information collected in another
interview of Kimberlim by DCFS on April
23, 2012.
Kimberlim reiterated to DCFS that father began sexually abusing her by
touching her legs, thighs, stomach, and hands, and gradually started touching
her breasts, vaginal area, and buttocks over her clothing. Kimberlim reported to DCFS that father would
tell her to be quiet during these incidents, and that father abused her
approximately every two to three days while her mother was at work. Kimberlim stated that when she was between 10
and 11 years old, father started touching her breasts and vagina under her
clothing and that he would rub his penis around her vagina. Kimberlim also told DCFS that father would
insert his penis into her vagina, ejaculate on her stomach area, and clean her
up with a towel afterwards.
Kimberlim told DCFS that
father would tell her she was pretty, instruct her not to tell anyone that he
touched her, and that if she did tell anybody, mother and her brothers would be
taken away. She also told DCFS she did
not report the full extent of the abuse during the March 9, 2012 interview because she was
nervous and afraid she would be separated from mother.
The May 17
jurisdiction/disposition report also memorialized another DCFS interview with
David where he told DCFS that father would “bother [Kimberlim] and would grab
her hands.†David also said that
Kimberlim told mother about the touching and that father lied by saying he did
not touch Kimberlim. When asked where
father would touch Kimberlim, David responded by pointing to his hands,
stomach, and legs, but when asked how father touched Kimberlim, David
responded, “I forgot†and ceased to answer any further questions.
The
jurisdiction/disposition report documented an April 23, 2012 interview with
mother. Mother told DCFS that David,
using sign language indicated that father laid Kimberlim on the bed and hit her
as she laid down. When mother asked
about the incident, both Kimberlim and father denied it happened. Mother also reiterated the incident in
October 2011 when mother returned home and heard Kimberlim screaming. At the April 23 interview, mother described
“just regular child screams,†but added she found father on top of Kimberlim in
a bed “riding her.†Both Kimberlim and
father were clothed, and David and Jerryn were in the bed with them. Although father and Kimberlim denied any
inappropriate behavior, mother sensed both were nervous.
Mother expressed doubts
that father and Kimberlim were being honest with her. Consequently, she told Kimberlim there were
hidden cameras in the apartment and asked Kimberlim whether father had done
anything inappropriate. Kimberlim
responded that father tried to inappropriately touch her by grabbing her
breasts and her vaginal area, and that she would use David as a shield to
prevent father from touching her. Mother
purchased Kimberlim a cell phone believing it would protect Kimberlim in the
event she was home alone with father.
Again mother discussed the March 5, 2012 incident in which mother heard
over the phone father telling Kimberlim all he wanted to do was caress
her. Mother added that she heard David
and Jerryn playing in the background and she confronted both Kimberlim and
father the next day. Kimberlim denied
any inappropriate behavior, but father responded that the devil gets in him.
Mother confronted
Kimberlim again on March 9, 2012, at which time Kimberlim told mother that
everything mother heard during the March 5 call happened and that father had
been molesting her and penetrating her.
DCFS interviewed father
on April 19, 2012, and the contents of the interview were reported in the
jurisdiction/disposition report. Father
denied sexually abusing Kimberlim, said that he and Kimberlim had “a perfect
father/daughter relationship†and that he and Kimberlim were never home alone
together.
Adjudication
A
jurisdiction hearing was held on July 26, 2012.
The juvenile court received into evidence the March 27, 2012 detention
report, the April 3, 2012 interim review report, the May 17, 2012
jurisdiction/disposition report, the May 17, 2012 last minute information, and
the July 26, 2012 interim review report.
Based on the information in these reports, the court sustained the
section 300 petition and adjudged all three children dependents of the court
pursuant to section 300, subdivisions (a), (b), (d), and (j). The juvenile court set a disposition hearing
for September 26, 2012. Father objected
to admission of statements father reportedly made to the Los Angeles Police
Department (LAPD) admitting to sexually abusing Kimberlim as violating the best
evidence rule. The juvenile court noted
father’s objection, admitted the report containing the alleged admission, but
found Kimberlim’s statements clear and credible and that the court did not need
to consider father’s admission to reach its decision.
Disposition
At
the September 26, 2012 disposition hearing, the juvenile court ordered the
children returned to mother’s custody, but pursuant to section 361.5,
subdivision (b)(6), the court found the case was one of severe sexual abuse and
ordered no reunification services for father.
Father
requests that this court reverse the trial court’s jurisdictional and
dispositional orders because the evidence does not support the section 300
allegations that he sexually abused Kimberlim or that David and Jerryn were at
risk of sexual abuse.
I. Standard of review
Challenges to a juvenile
court’s jurisdictional order are reviewed for substantial evidence. (In re
Kristin H. (1996) 46 Cal.App.4th 1635, 1649.) We look to the record to determine whether
substantial evidence supports the juvenile court’s findings. (Ibid.) If substantial evidence exists, contradicted
or not, “[a]ll conflicts must be resolved in favor of the respondent and all
legitimate inferences indulged in to uphold the verdict, if possible.†(In re
Katrina C. (1988) 201 Cal.App.3d 540, 547.)
If the record supports more than one reasonable inference, we may not
substitute our own deductions for those of the juvenile court. (Ibid.)
Similarly,
we review a juvenile court’s dispositional order denying reunification services
for substantial evidence. (
470, 484; In re Harmony B. (2005) 125
Cal.App.4th 831, 839.) We affirm if the
record contains any substantial evidence supporting the juvenile court’s
order. (In re Henry V. (2004) 119 Cal.App.4th 522.)
II. Jurisdictional order
Father
argues the evidence does not support the juvenile court’s finding that father
sexually abused Kimberlim because the court based its finding primarily on
Kimberlim’s inconsistent statements concerning the sexual abuse and because no
physical findings corroborated Kimberlim’s statements.
Section 300, subdivision
(d) provides, in relevant part, that a court may adjudge a child a dependent of
the court if “[t]he child has been sexually abused . . . as defined in Section
11165.1 of the Penal Code, by . . . her parent or guardian or a member of . . .
her household . . . .†Penal Code
section 11165.1, subdivision (4) describes sexual abuse as “[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 . . . .†The absence of physical evidence of sexual
abuse does not preclude a finding of sexual abuse. (See In
re Jordan R. (2012) 205 Cal.App.4th 111, 137.)
Substantial evidence
supports the juvenile court’s finding of sexual abuse. Based on Kimberlim’s statements to DCFS,
father touched her inappropriately on multiple occasions over a period of four
years starting when she was nine years old.
Father caressed her legs, rubbed her thighs, touched her breasts over
her clothes, slapped her buttocks, and rubbed her vagina over her pants. Father also rubbed his penis on her genital
area, inserted his penis into her vagina, and ejaculated on her stomach
area. On at least one occasion,
Kimberlim indicated father put his mouth on her genital area. As recently as March 12, 2012, Kimberlim
reported that father took off Kimberlim’s clothes, rubbed his penis on her, and
ejaculated around her genital area.
The juvenile court
expressly stated it found Kimberlim credible.
We defer to the juvenile court’s assessment of the credibility of
witnesses and the weight of the evidence.
(In re Cole C. (2009) 174
Cal.App.4th 900, 915-916.)
Moreover, the record
contains statements by mother and David that corroborate Kimberlim. David reported that father would grab
Kimberlim’s hands, and touch Kimberlim’s stomach and legs. Mother stated that on one occasion she heard
Kimberlim screaming at father to leave her alone and when mother entered the
room, mother found father lying on top of Kimberlim and “riding on her.†Mother reported that both David and Jerryn
were in the room with father and Kimberlim at the time.
These statements are
reasonable, credible, and solid. As
such, they constitute substantial evidence supporting the juvenile court’s
conclusion that father sexually abused Kimberlim within the meaning of section
300, subdivision (d).
Father
also argues that the trial court erred by admitting into evidence a DCFS report
referencing father’s alleged confession to the LAPD that he sexually abused
Kimberlim. Father contends the court
erred because the report of the confession was not “the best evidence that the
statement had been made by father.â€
The trial court has
broad discretion regarding the admissibility of evidence. (In re
Jordan R. (2012) 205 Cal.App.4th 111, 121 (Jordan R.).) We review
challenges to the juvenile court’s admission of evidence for abuse of
discretion. The juvenile court abuses
its discretion if it exceeded the bounds of reason. (Ibid.) In addition, the erroneous admission of
evidence is subject to the harmless error rule.
(See People v. Watson (1956)
46 Cal.2d 818, 835-836 [reversal not merited when a different outcome would not
otherwise have been probable].)
The juvenile court
reached its conclusions specifically without considering father’s alleged
confession. The juvenile court
explicitly stated its findings were based substantially on Kimberlim’s
statements in the detention/jurisdiction report, which the court found to be
credible. Based on Kimberlim’s
statements, discussed earlier, the juvenile court found considerable evidence to
support its findings without considering father’s alleged confession. Even if the juvenile court’s admission of
father’s alleged confession was in error, the error was immaterial and harmless
in that it was not used by the juvenile court and thus does not merit reversal
of the juvenile court’s findings.
C. Risk of harm of sexual abuse of David and
Jerryn
Having affirmed the
juvenile court’s finding of sexual abuse, we address father’s contention that
the jurisdictional order with respect to David and Jerryn must be reversed in
that there was no evidence the sexual abuse of Kimberlim subjected David and
Jerryn to substantial risk of abuse.
Section 300, subdivision
(j) provides, in relevant part, that any sibling of a child adjudged to be a
dependent of the court pursuant to section 300, subdivision (d) may also be
adjudged a dependant of the court if there is a substantial risk that the
sibling will be abused or neglected, as defined in subdivision (a), (b), (d),
(e), or (i). Subdivision (j) provides a
number of factors to determine substantial risk of abuse including: (1) the circumstances surrounding the abuse;
(2) the age and gender of the siblings; (3) the nature of the sexual abuse; and
(4) any other probative factors. (§ 300,
subd. (j).)
Recently, the California
Supreme Court considered whether sexual abuse of a daughter supports
jurisdiction over sons, absent evidence of sexual abuse of the sons or evidence
the sons were aware of the sexual abuse.
(In re I.J. (2013) 56 Cal.4th
766, 770 (I.J.).)
abused his own daughter “by fondling the child’s vagina and digitally
penetrating the child’s vagina and forcefully raped the child by placing
father’s penis in the child’s vagina.â€â€™â€
(Id. at p. 778.) Based on this finding, the Supreme Court upheld
the juvenile court’s jurisdictional finding as to the sons. The court emphasized that the father sexually
abused his daughter “while the other children were living in the same home and
could easily have learned of or even interrupted the abuse.†(Ibid.) Weighing the totality of the circumstances,
the court concluded that “[t]he serious and prolonged nature of father’s sexual
abuse of his daughter under these circumstances support[ed] the juvenile
court’s finding that the risk of abuse was substantial as to all the
children.†(Ibid.)
Considering the totality
of the circumstances surrounding the sexual abuse in this case, the juvenile
court was justified in finding David and Jerryn to be at substantial risk of
sexual abuse. As in I.J., father’s conduct involved forceful rape over a period of
years. David and Jerryn lived in the
house where the abuse took place, and moreover, both David and Jerryn were in
the same room as Kimberlim and father during at least one incident of sexual
abuse. The totality of the circumstances
of the sexual abuse supports the juvenile court’s orders as to David and
Jerryn.
Father cites
48, 67-68 and Jordan R. for the
proposition that sexual abuse of a female sibling does not put male siblings at
risk of sexual abuse absent evidence demonstrating the father has an interest
in sexually abusing the male siblings.
Given the recent holding in I.J.
disapproving of these cases to the extent they are inconsistent with
inapposite.
III. Denial of reunification services
Father argues that, even
if he did sexually abuse Kimberlim, the trial court erred by denying him
David and Jerryn. Specifically, father
argues that no evidence supports a finding that the sexual abuse of Kimberlim
placed David or Jerryn at risk of sexual abuse, and that David and Jerryn would
benefit from father receiving reunification services.
Section 361.5, subdivision
(b)(6) provides that reunification services are not warranted if the juvenile
court finds by clear and convincing evidence, that a child has been adjudicated
a dependent of the juvenile court pursuant to any subdivision of section 300 as
a result of severe sexual abuse. A court
may base its finding of severe sexual abuse on evidence of sexual intercourse
involving genital-genital or oral-genital contact, or the penetration or
manipulation of a child’s genital organs for the sexual gratification of the
parent. (§ 361.5, subd. (b)(6).) If the court finds by clear and convincing
evidence that section 361.5, subdivision (b)(6) applies, “the court shall not
order reunification for a parent . . . unless the court finds, by clear and
convincing evidence, that reunification is in the best interest of the
[children].†(§ 361.5, subd.
(c).) Subdivision (c) thus contains a
presumption against reunification unless the juvenile court finds that
reunification is in the best interest of the children.
Because we conclude
there was substantial evidence of sexual abuse and that David and Jerryn were
at risk of abuse, we now decide whether father met his burden to demonstrate
that reunification is in the best interest of the children. We conclude father did not meet his burden.
Though father argues
that neither David nor Jerryn were exposed to any severe sexual abuse of
Kimberlim and that he and his sons have a positive relationship, the record
belies father’s contention. Instead, the
record shows there was an occasion when David and Jerryn were in the room when
father sexually abused Kimberlim and that David was aware that father’s conduct
was inappropriate and reported it to mother.
Moreover, Kimberlim said she used David as a shield to prevent father
from touching her. There is no evidence
that a continued relationship with father would be beneficial to any of the
children. As such, father’s argument
that reunification is in the best interest of David and Jerryn is
unavailing. There is substantial
evidence in the record to support the juvenile court’s finding that father did
not meet his burden pursuant to section 361.5, subdivision (c).
The
juvenile court’s jurisdictional and dispositional orders are affirmed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________________,
J.
CHAVEZ
We
concur:
_____________________________,
P. J.
BOREN
_____________________________,
J.
ASHMANN-GERST
name="_ftn1" title="">[1] All further statutory references are to the Welfare &
Institutions Code.
name="_ftn2" title="">
David by striking David’s buttocks with a belt and that mother failed to
protect Kimberlim, David, and Jerryn pursuant to section 300, subdivision (b).
